Why Spain is not a reciprocating territory -- and what that means
Section 44A of the Code of Civil Procedure, 1908 allows a judgment from a declared “reciprocating
territory” to be filed for direct execution in an Indian district court, almost as if it were a
decree of an Indian court, without the need for a fresh civil suit. The declared list is a specific,
limited group of mostly Commonwealth-linked jurisdictions -- the United Kingdom, Singapore, Malaysia,
Hong Kong SAR, Bangladesh, Trinidad and Tobago, New Zealand, the Cook Islands and Niue, Papua New Guinea,
Fiji, Aden, and the UAE -- and Spain, as an EU member state, is not among them, the same position as most
other EU member states and major non-Commonwealth economies this platform covers. This means a
Spain-based decree-holder must bring a fresh civil suit under Section 13 of the CPC in the appropriate
Indian court, using the Spanish judgment as conclusive evidence on the matters it decided, subject to
Section 13's own exceptions (for example, that the judgment was not obtained by fraud, was given by a
court of competent jurisdiction, and does not sustain a claim founded on a breach of Indian law).
What the Section 13 route involves in practice
An NRI in Spain seeking to enforce a Spanish divorce decree, maintenance order, or civil judgment in
India should expect a genuine fresh proceeding -- filing a suit, serving notice, and having the Indian
court examine the Spanish judgment against Section 13's conditions -- rather than a summary execution
filing. This generally takes materially longer and costs more than the direct-execution route available
for a reciprocating-territory judgment, so NRIs in Spain with a pending or anticipated cross-border family
law matter should plan timelines accordingly and engage Indian counsel early.
Custody and maintenance considerations for NRI families
As with other countries, India's non-membership of the 1980 Hague Convention on the Civil Aspects of
International Child Abduction remains a real gap for NRI families in Spain facing a cross-border custody
dispute -- a Spanish custody or return order is not automatically enforceable in India through any
summary mechanism, and pursuing custody or return of a child typically requires separate proceedings in
the relevant jurisdiction. Spain itself is a long-standing party to the 1980 Hague Abduction Convention
and applies EU cross-border family law instruments (such as Brussels II ter) within Europe, neither of
which extends to India as a non-EU, non-Hague-Abduction-Convention country. Maintenance claims by an NRI
spouse or child can generally still be pursued under ordinary Indian family law where the respondent or
assets are within Indian jurisdiction.
Common mistakes NRIs in Spain make in family law matters:
- Assuming a Spanish judgment can be directly executed in India the way a reciprocating-territory
judgment can -- it cannot; a fresh Section 13 civil suit is required.
- Underestimating the time and cost of the Section 13 route compared to direct execution, and not
planning accordingly for a time-sensitive matter.
- Assuming EU family law instruments like Brussels II ter extend to India -- they do not, since
India is not an EU member state.
