Supreme Court: foreign divorce on grounds Indian law rejects is no shield against bigamy

A divorce granted by a foreign court on a ground that Indian law does not recognise cannot protect a husband from prosecution for bigamy in India, the Supreme Court ruled on Tuesday, even if he has since become a foreign citizen and remarried abroad.

A bench of Justices Prashant Kumar Mishra and Shree Chandrashekhar refused to quash bigamy proceedings against a doctor from Andhra Pradesh who obtained a divorce in England in 2014 and remarried there weeks later. The judgment opens by describing the case as one that "brings into sharp focus the limits of matrimonial forum shopping", and asks: "Can the sanctity of matrimonial status be allowed to yield to such forum non conveniens?"

The case

According to the judgment, the couple married under Hindu rites at Sattenapalli in Guntur district in April 2003. The husband moved to the United Kingdom in 2005 to work as a doctor. His wife joined him in 2006 but returned to India in 2007 for the birth of their son.

He then sought a divorce in a court at Narasaraopet in Guntur district. It was dismissed, and he withdrew his appeal in the High Court, so the marriage continued. After becoming a British citizen by naturalisation on 1 February 2013, he filed for divorce before the Cambridge County Court in England in August 2013. His wife objected to that court's jurisdiction. The English court granted a decree on the ground of irretrievable breakdown of marriage, which was made absolute on 29 January 2014. He married again in Norfolk on 3 March 2014.

His first wife complained to the police in Sattenapalli in February 2016, and a chargesheet was filed for bigamy under Section 494 of the Indian Penal Code against him and his parents. The Andhra Pradesh High Court refused in July 2019 to quash the case, and the appeals reached the Supreme Court the same year.

What the court held

Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955, under which the couple married. The court said the foreign decree "was passed in contravention of the existing matrimonial law in India and on a ground that is not even recognized statutorily", and so failed the test in Section 13 of the Code of Civil Procedure that every foreign judgment must pass to be recognised in India. It relied on its 1991 ruling in Y. Narasimha Rao v. Y. Venkata Lakshmi, which set out when a foreign divorce can bind Indian spouses, and on a decision earlier this year in Kishorekumar Mohan Kale v. Kashmira Kale, in which it refused to recognise a US divorce granted on the same ground.

The court rejected the argument that the wife had accepted the English court's authority by taking part in its proceedings. Because she had objected to its jurisdiction, her participation could not "be equated with an unconditional submission", it said.

It also rejected his argument that, as a British citizen who remarried outside India, he was beyond the reach of the Indian Penal Code. The marriage had taken place in India under Hindu law, the court said, so the "enquiry for the offence of bigamy cannot be confined to the place of second marriage", and the consequences of that marriage "cannot be defeated by a subsequent change in the nationality" of the husband. It said a two-year gap before the complaint did not matter, as bigamy is a continuing offence.

The court, however, quashed the case against his parents and his second wife. It found no material showing any agreement between the parents and their son to commit bigamy, and said that merely knowing about the second marriage was not enough to make them conspirators. It found that the magistrate had taken cognisance against the second wife without reasons and without any allegation that she knew the first marriage was still subsisting, and said "criminal liability must be established qua each accused separately".

Why it matters

The ruling matters to the many Indian families with members abroad, where a spouse who has emigrated can seek a divorce on grounds such as irretrievable breakdown that Indian law does not offer. Under Indian law only the Supreme Court can end a marriage on that ground, using its special powers under Article 142 of the Constitution, as it did in the Kale case. The judgment makes clear that a foreign decree of that kind, obtained over the other spouse's objection, will not shield the person who obtained it from criminal liability in India.

The court stressed that its findings are limited to the question of whether the case should be quashed and are not a final view on the merits. The trial against the husband will now continue before the magistrate's court at Sattenapalli.