ORDER :

VIVEK JAIN, J.

The present petition under Article 227 of the Constitution of India has been filed by the petitioner-husband being aggrieved by the order dated 06.10.2025 passed by the Family Court, Jabalpur, whereby application of the petitioner under Section 44-A of the Code of Civil Procedure 1908, has been rejected by the Family Court.

2. The learned counsel for the petitioner has argued before this Court that a marriage between the petitioner and the respondent was solemnised in India on 28.11.2019 and a marriage certificate was issued by the Marriage Registering Officer, Jabalpur on 02.12.2019. It is argued that both the parties i.e. petitioner-husband and respondent-wife are citizens of India but because the husband is at present domiciled in New Zealand as he is residing in New Zealand since the year 2021 and he intends to settle down in New Zealand permanently, therefore, he filed an application for divorce before the Court at New Zealand i.e. Family Court, Auckland, New Zealand in FAM-2023-095-005830 under Family Proceedings Act, 1980 applicable in New Zealand.

3. It is argued that on account of irreconcilable breakdown of marriage, which is a ground under Section 39 of the Family Proceedings Act 1980, applicable in New Zealand, a decree of divorce has been granted.

4. The learned counsel for the petitioner has vehemently argued before this Court that a decree of divorce cannot be physically executed but since it was not a decree passed by the Family Court situated in India but it was a divorce decree passed by Family Court situated in New Zealand and, therefore, it was a foreign decree, hence the petitioner was required to file an application under Section 44-A of CPC to get the divorce decree/order authenticated by a Court in India so that the technical position of the marriage still being subsisting to be valid in India may come to an end and the petitioner may have the fruits of divorce decree passed by the Court in New Zealand, in India also.

5. It is argued that the decree in question is a bi-parte decree and it will bind both the parties and is a decree on merits. It is further argued that New Zealand is a reciprocating territory and as per Section 13 of the Civil Procedure Code, the foreign judgment would be conclusive because it has been pronounced by a Court of competent jurisdiction on merits of the case and is founded on correct view of law and has not been obtained by fraud or on breach of any law in force in India. Therefore, the application was filed before the Family Court under Section 44A of CPC. It is further argued that a person in possession of a foreign decree of divorce can file such an application to get the foreign decree authenticated by a Court in India in terms of Section 13 of CPC and such a course of action as well as maintainability of application under Section 44A of CPC has been upheld by two different High Courts in India i.e. Madras High Court in case of August Pedre vs. Sub Registrar Pondicherry Municipality Puducherry, reported in 2024 SCC OnLine Mad 9738 and in the case of Seethal Joseph vs. Marriage Officer, Kayamkulam Municipality, reported in 2018 SCC OnLine Ker 19269. Therefore, it is prayed to set aside the impugned order of the Family Court and allow the petition or to remand the matter back to the Family Court to pass an order in accordance with Section 44A read with Section 13 CPC so that the decree may be got authenticated in India whenever the petitioner comes down to reside in Indian territorial limits.

6. Heard.

7. The present case raises a very interesting question that where marriage has been solemnised by between two Indian citizens in India and is a marriage in terms of provisions of the Hindu Marriage Act, 1955 and one of the parties to marriage has gone abroad and it is his case that he has gone abroad for the purpose of permanently settling in that foreign country, though he may not have been still granted citizenship of that foreign country but he is now domici