Cross-Border Divorce Decrees—Recognition in India and Public Policy Considerations

Abstract

The framework of Private International Law is based on the premise of choice of law in matters that are considered private or personal. Private persons may determine the law that applies to them and may seek remedies in forums that are available for the law chosen. The right to agency, consent and contract which are fundamental to private law are also libertarian values intrinsic to public law. The critique of private law from a feminist perspective has focused on the need to mainstream gender concerns into public and private law. Gender mainstreaming has led to an increased concern for gender issues as part of public policy. One of the controversies in the private law domain has been with regard to adding the ground of irretrievable breakdown of marriage in Indian Law. Thus while an irretrievable breakdown of marriage is a valid ground for divorce in many jurisdictions it is not a ground under Indian law although there have been judgments which have suggested that this might be added as a ground by the legislature. The Indian Judiciary has been reluctant to recognise a foreign court’s judgment and has held women who do not want to submit to the jurisdiction of foreign courts may invoke that domestic jurisdiction. In this context Indian law is clearly not in tune with many other jurisdictions. This paper will examine the position of Indian courts with regard to the matrimonial relief of divorce by examining public policy considerations that Indian courts have used.