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Can Indian expat couple file for divorce in UAE courts?

KT reader asks which rules will apply when it comes to child custody and alimony

Question: For a marriage solemnised in my home country (India), can divorce proceedings be initiated from here in the UAE? If yes, which law will apply when it comes to child custody and alimony?

Answer: Pursuant to your queries, it is assumed that you are a non-Muslim married as per the personal laws of India and currently a resident of UAE. Therefore, the provisions of Federal Decree-Law No. 41 of 2022 on Civil Personal Status, Federal Law No.28 on Personal Status as amended by Federal Decree Law No. 8 of 2019, Federal Decree Law No. 5 of 2020 and Federal Decree Law No. 29 of 2020 and the Indian Code of Civil Procedures, 1908 are applicable.

In the UAE, a non-Muslim individual who is a resident may file for a divorce as per the provisions of the recently enacted UAE Personal Status Law for Non-Muslims or may also apply his or her respective religious law under which he or she is married. This is in accordance with Article 1 (1) of the UAE Personal Status Law for Non-Muslims, which states, “The provisions of present Decree-Law shall apply to non-Muslim citizens of the United Arab Emirates, and to non-Muslim foreigners who reside in the State unless one of them invokes the application of their respective law, in relation to matters of marriage, divorce, estate, will and proof of affiliation, without prejudice to Articles 12, 13,15,16 and 17 of the referenced Federal Law No. 5 of 1985.”

Based on the aforementioned provision of law, a non-Muslim Indian in UAE may apply his or her personal laws of India related to divorce, custody and alimony based on his or her religion.

(1) An Indian Hindu, Sikh, Jain, and Buddhist may apply the provisions of the Hindu Marriage Act of 1955 with regard to divorce, alimony and custody of a child. Further, the provisions of Hindu Minority and Guardianship of 1956 are applicable with regard to the guardianship of a minor child;

(2) An Indian Christian may apply the provisions of the Indian Divorce Act of 1869 with regard to divorce, alimony and custody of a minor child;

(3) An Indian individual who is Parsi may apply the provisions of The Parsi Marriage and Divorce Act of 1936 with regard to divorce, alimony and custody of a minor child;

(4) Any Indian individual who is married under the provisions of the Indian Special Marriage Act of 1954 may apply the same law for divorce, alimony and custody of a minor child. This law is applicable especially for individuals who do not wish to be married by laws which are codified for a specific religion or in case of both the parties to marriage belong to different religions (except if one of the parties to the marriage is a Muslim); and

(5) An Indian individual who is married outside India before the marriage officer (generally before the Indian Embassy and Consulate General of India) under the Indian Foreign Marriage Act of 1969 may apply the provisions of the Indian Special Marriage Act of 1954 for divorce, alimony and custody of a minor child.

In the event, if one of the aforementioned laws which are applicable to an Indian non-Muslim are not applied by any one of the party or both parties to the plea of divorce, alimony and custody of a child in the relevant Personal Status Court of UAE, then judgement issued by the Personal Status Court of UAE may not be valid in India or may be challenged by one of the parties in India. Section 13 of the Civil Procedures Code of India stipulates the conditions under which a foreign judgement is valid in India.

It reads as, “When foreign judgement not conclusive:

A foreign judgement shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim to litigate under the same title except--

(a) where it has not been pronounced by a Court of competent jurisdiction;

(b) where it has not been given on the merits of the case;

(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of 1 [India] in cases in which such law is applicable;

(d) where the proceedings in which the judgement was obtained are opposed to natural justice;

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a breach of any law in force in India”.

If you are an Indian Muslim, you may have to apply the Sharia procedures and the provisions of the UAE Personal Status Law to obtain a divorce, matters related to alimony and custody of children in the UAE.

Ashish Mehta is the founder and Managing Partner of Ashish Mehta & Associates. He is qualified to practise law in Dubai, the United Kingdom and India. Full details of his firm on: www.amalawyers.com. Readers may e-mail their questions to: news@khaleejtimes.com or send them to Legal View, Khaleej Times, PO Box 11243, Dubai.

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