Divorced in Australia, Still Married in India?The Legal Realities of Cross Border Divorce for NRIs

Twinkle Khemka
Nov 12
7 min read

When “No Fault” Abroad Meets “No Divorce” at Home

For many Non-Resident Indians (NRIs), a divorce abroad feels like closure. But the question remains: does India see it the same way? The recent decision of the Gujarat High Court in Smiti v. Aakash Kirankumar Shah (2025 SCC OnLine Guj 3730) makes the answer clear, not necessarily. The Court ruled that an Australian divorce decree obtained on the ground of irretrievable breakdown of marriage was not valid in India. Why? Because the marriage was solemnised under the Hindu Marriage Act, 1955 (HMA) and that Act simply does not recognise “breakdown” as a ground for divorce.

The Case that Redefined NRI Reality

The story began like that of many modern Indian couples. A Hindu man and woman, both Indian citizens, married in India according to Hindu rites under the HMA. After marriage, they relocated to Australia for work and eventually acquired Australian citizenship. Over time, the relationship deteriorated. The husband filed for divorce before an Australian court, citing the irretrievable breakdown of marriage, the only ground recognised under Australian law. The wife, who continued to live in India as an Overseas Citizen of India (OCI), did not meaningfully participate in the Australian proceedings. The foreign court nonetheless granted the decree of divorce.

When she learned that her husband had declared himself divorced, the wife approached the Family Court at Ahmedabad, seeking a declaration that the Australian decree was null and void in India, and that she continued to be his legally wedded wife.

The Family Court, however, rejected her plaint at the threshold under Order VII Rule 11 of the Code of Civil Procedure, 1908, holding that the issue had already been adjudicated abroad and that the marriage had ended by operation of the foreign decree. The High Court held that Family Courts have jurisdiction to decide suits seeking a declaration on matrimonial status, which includes determining whether a foreign divorce is null and void in India.f Unwilling to accept this, the wife appealed before the Gujarat High Court and the result has now become a significant clarification for NRIs with India-solemnised marriages.

The Court’s Reasoning: Law, Logic, and Jurisdiction

1. Indian marriage, Indian law: The Court reaffirmed that a marriage solemnised in India under the HMA “remains governed by Indian personal law, irrespective of subsequent citizenship or residence abroad.”

“A subsequent change of domicile will have absolutely no effect on the marriage which has been conducted under the Hindu Marriage Act.”

2. Foreign decrees must pass the Section 13 CPC test: A foreign judgment is not conclusive if:

The foreign court lacked competent jurisdiction;
The judgment was not on the merits;
It was obtained by fraud or in violation of natural justice; or
It sustains a claim founded on a breach of Indian law.

3. Narasimha Rao precedent reaffirmed: Relying on Y. Narasimha Rao v. Y. Venkata Lakshmi (1991 3 SCC 451), the Court reiterated that:

Jurisdiction must have a real and substantial connection to the marriage;
The ground for divorce must be recognised under Indian law; and
Both spouses must have had a fair opportunity to contest.

Since the Australian decree was based on an unrecognised ground, it failed these tests, rendering the couple still married in India.

The Statutory Landscape: What the Hindu Marriage Act Says

The Hindu Marriage Act, 1955 governs marriages between Hindus, Buddhists, Jains, and Sikhs solemnised in India.Under Section 13(1), divorce may be granted only on specific “fault-based” grounds: adultery, cruelty, desertion, conversion, mental disorder, venereal disease in a communicable form, renunciation, or presumption of death.

Notably, “irretrievable breakdown of marriage” is not among them.

Supreme Court and the Limited Use of “Irretrievable Breakdown”

The Supreme Court of India, using its extraordinary power under Article 142 of the Constitution, has in select cases dissolved marriages to “do complete justice.” Yet this power is exceptional and not legislative. Several landmark rulings illustrate both its scope and restraint:

Shilpa Sailesh v. Varun Sreenivasan (2023 14 SCC 231): A five-judge Constitution Bench settled decades of uncertainty by holding that the Supreme Court may grant divorce on the ground of irretrievable breakdown of marriage, even without mutual consent. The Court observed that when mutual respect and emotional support have irreversibly vanished, forcing parties to remain bound in law serves no purpose but warned that this power must be exercised with circumspection, not as a substitute for Parliament.
Rajib Kumar Roy v. Sushmita Saha (2023 17 SCC 441): Divorce was granted after 12 years of separation, described as a “classic case of irretrievable breakdown.” The Court noted that continuing a dead marriage only prolongs suffering, while ensuring fair maintenance and visitation to balance equity and duty.
Dr Nirmal Singh Panesar v. Paramjit Kaur Panesar (2025 3 SCC 790): Divorce was refused despite long discord, with the Court reminding that Article 142 cannot be invoked mechanically. “Not every long separation signifies irretrievable breakdown,” it cautioned, especially where one spouse still wishes to preserve the relationship.
Delma Lubna Coelho v. Edmond Clint Fernandes (2023 18 SCC 447) and Reshmi Shaw v. Bidesh Gupta (2024 SCC OnLine SC 556): Both cases reinforced a balanced approach: in the first, divorce was denied after a brief cohabitation; in the latter, it was granted only after full settlement and acknowledgment that reconciliation was impossible.

Taken together, these judgments make the position clear that, “irretrievable breakdown of marriage” remains a constitutional exception, not a statutory ground.

The Australian Position: No-Fault, No Problem

Under Australia’s Family Law Act 1975, the only ground for divorce is irretrievable breakdown of marriage, established by 12 months of separation.

Either spouse may apply if they are:

an Australian citizen,
regard Australia as their home, or
have lived there for at least 12 months before filing.

The Federal Circuit and Family Court of Australia (FCFCOA) follows a simple “no-fault” rule, no need to prove blame or misconduct. However, the divorce order itself does not automatically resolve property division, maintenance, or custody; those require separate proceedings. This streamlined model may feel efficient, but for marriages governed by Indian law, it creates a recognition gap, and the grounds valid in Australia are invalid in India.

Consequences for NRIs and OCIs

Still married in India – A foreign decree on “no-fault” breakdown may leave you legally married under Indian law.
Risk of bigamy – Remarrying abroad could attract prosecution under Section 494 IPC.
Property & inheritance issues – Unrecognised divorces complicate succession, joint assets, and maintenance rights.
Custody & enforcement – Orders passed abroad may require fresh recognition by Indian courts.

Practical Guidance for NRIs

Check the governing law before filing abroad: Was your marriage solemnised under Indian personal law?
Align the grounds: Ensure the reason for divorce corresponds to a recognised ground under Indian law.
Avoid ex parte decrees: Indian courts often reject judgments obtained without fair participation.
Retain certified or apostilled copies of all foreign orders.
Seek Indian legal advice early, especially before remarriage or property transfers.
File a declaratory suit in India to validate or challenge a foreign decree when in doubt.

At Khemka & Associates, our NRI Desk bridges two legal worlds, the efficiency of global systems and the nuance of Indian family law. Over the years, our experience has taught us to err on the side of caution: when it comes to family status, property, or custody, it is always better to have matters legally clarified in both jurisdictions than to face complications later.

We have advised and represented clients across Australia, the UK, the USA, Canada, and the Middle East, helping them assess the Indian legal effect of foreign decrees and orders, plan dual-jurisdiction strategies, and secure rights across borders.

For NRIs, cross-border family law is rarely just a legal problem, it is also a question of identity, culture, and belonging. Our approach combines global understanding with Indian legal precision, ensuring that every solution stands up, both abroad and at home.

“A marriage solemnised in India carries its Indian legal character wherever you go.”

The Gujarat High Court’s ruling is a cautionary reminder for every Indian living abroad:A foreign divorce may dissolve emotions, but not always the law.

Before you close one chapter overseas, ensure it’s closed in India too.

References

[1] Smiti v. Aakash Kirankumar Shah, 2025 SCC OnLine Guj 3730 (Gujarat High Court).

[2] Y. Narasimha Rao v. Y. Venkata Lakshmi, (1991) 3 SCC 451 – Supreme Court guidelines on recognition of foreign matrimonial decrees.

[3] Code of Civil Procedure, 1908, Section 13 – “When foreign judgment not conclusive.”

[4] Hindu Marriage Act, 1955, Section 13(1) – Statutory grounds for divorce: adultery, cruelty, desertion, conversion, mental disorder, venereal disease in a communicable form, renunciation, and presumption of death.

[5] Shilpa Sailesh v. Varun Sreenivasan, (2023) 14 SCC 231 – Constitution Bench clarified that the Supreme Court may grant divorce on the ground of irretrievable breakdown of marriage under Article 142.

[6] Rajib Kumar Roy v. Sushmita Saha, (2023) 17 SCC 441 – Divorce granted after 12 years of separation; recognised as a “classic case” of irretrievable breakdown.

[7] Dr Nirmal Singh Panesar v. Paramjit Kaur Panesar, (2025) 3 SCC 790 – Divorce refused; held that long separation alone does not prove irretrievable breakdown.

[8] Delma Lubna Coelho v. Edmond Clint Fernandes, (2023) 18 SCC 447 – Divorce denied; short cohabitation insufficient to invoke Article 142.

[9] Reshmi Shaw v. Bidesh Gupta, 2024 SCC OnLine SC 556 – Divorce granted under Article 142 after full settlement between the parties.

[10] Family Law Act 1975 (Australia), Section 48 – Irretrievable breakdown of marriage established by 12 months of separation.

[11] Federal Circuit and Family Court of Australia (FCFCOA), “Divorce Overview”, available at: https://www.fcfcoa.gov.au/fl/divorce/divorce-overview (accessed November 2025).

[12] Bharatiya Nyaya Sanhita, 2023 , Section 82 – Marrying again during lifetime of husband or wife (Bigamy); corresponds to Section 494 of the Indian Penal Code, 1860.

[13] Family Courts Act, 1984, Section 7 – Jurisdiction over suits relating to matrimonial status and recognition of foreign decrees.

Disclaimer

This article is intended for general informational purposes only and does not constitute legal advice or create an advocate – client relationship. The analysis is based on reported judgments and statutory interpretation as of the date of publication. Legal outcomes depend on the specific facts, evidence, and jurisdiction of each case. Readers are strongly advised to seek independent professional legal counsel before acting on any information contained herein.While every effort has been made to ensure accuracy, the author and firm accept no responsibility for any errors or omissions or for any consequences arising from reliance on this material.