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U.S. divorce judgement is valid in India?

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  • #16
    I found a good answer and the position of Indian courts from a person that claims to be a legal professional on the internet. Credit goes to him. Posting it for future reference of the forum members.

    When both the parties were India & married in India according to any of the India form of marriage then the dissolution of such marriage should be done through the Indian Family Court of the competent jurisdiction where the marriage took place or where either of the parties usually reside or where both the parties last resided together. In such a case the decree of divorce passed by the Indian Family Court would be non controversial way out for dissolving such marriage. Now coming to the second point whether such divorce granted by a foreign court is valid for the purpose of dissolving such a marriage or not. Section 13 of the Civil Procedure Code provides When foreign judgment not conclusive.


    A foreign judgment 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 litigating 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 India in cases in which such law is applicable;

    (d) where the proceedings in which the judgment 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.
    So these six conditions are fulfilled by such foreign judgment/decree of divorce then it will be valid for dissolving such Indian marriage as has been held by the Supreme Court of India in several of its judgments. The very first condition is with regard to Jurisdiction of such foreign court, what it means that both or either of the parties should be residing in the foreign country where from such decree of divorce has been obtained. The second important condition is with regard to merits of the case for divorce, whether those merits considered by the foreign court to arrive on this conclusion or not. Next, a proper notice was served to the other party with regard to such divorce proceedings & the other party was assigned a sufficient time to file his or her defense against the case, hence following the principle of natural justice. There was no fraud or force involved in such case & both the parties either mutually agreed to surrender itself to such foreign court for getting the decree of divorce or neither of them objected to such foreign court proceeding with such matter & deciding it accordingly. Lastly the decree so passed by the foreign court should not be such which may not be executable in India. In your case if you both had agreed for going through such divorce in Spain through their Family Court having similar status as Indian Family Court, such decree of divorce was passed after considering all the merits of your case, both the parties were heard & their statements properly recorded by the foreign court & a proper judgment followed by the decree passed by such foreign court dissolving your marriage, then this will be a valid dissolution of marriage & the decree of divorce executable in India. Now should you get this decree of divorce declared as valid by the family court of India or not. It all depends on you or on the precondition as mentioned in such decree of divorce by the foreign court. Some foreign courts do put a condition in the decree to any such matter to become valid only after the Indian court or competent government authority gives its ascent of approval on such decree. In such a case you have to file an application in the Family court of competent jurisdiction as discussed above in India to get the approval & validation of such decree of divorce. Otherwise it is entirely on both of you to go in for Indian court validating such foreign divorce decree or not, for all purpose you both can proceed for second marriage if such foreign divorce decree was obtained keeping in mind all the prerequisite conditions as mentioned in section13 of the CPC. Try using the Foreign Family Court divorce decree for both these purposes if the Indian government/authorities don't agree then get this decree validated by Indian Family Court.

    I am not a lawyer and you need to consult with one to validate any info posted on the forum and discuss your case specifics. H1b Question? Read the FAQ first.

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    • #17
      thank you...

      Thanks, txh1b....that was quite a comprehensive reply! Some of the language was a bit hard to follow, but it sounds like there should be no problem as long as:

      1. The divorce is by mutual consent, and I provide my wife with notice that I'm going to be filing in the U.S., and get her consent for that, as well.

      2. I can prove that I'm a citizen and resident of the U.S.

      3. The court in the U.S. doesn't stipulate that the divorce order granted here has to be validated in India in order to be effective. Conversely, the divorce order shouldn't have some stipulation which PREVENTS it from being valid in India.

      4. The factors taken into consideration for granting a divorce in the U.S. are comparable to those factors which would be considered for a similar case in India.

      Looks like there are a couple of things which I'll have to research, and consult a lawyer for. Thanks so much for your help. I'll keep this thread updated with any info I get, and would be grateful if you could do the same.

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      • #18
        Please help me......

        Basically, I have indian citizenship & married in India itself{we both are Indians}. Just to come out of marriange it self I've come here to United states on B2 visa{Visiting visa}, so being a foreigner can I get divorce from my husband in United states??? & would it be valid in India as well as in USA??

        Thanks in advance........

        Vasaveela

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        • #19
          hi raja100

          i have similar kind of problem as yours. how did you solve it. could you pls provide me your email address??

          thanks

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          • #20
            I have the same issue....I came here on F1,now on OPT and my H1 will begin in OCT. I went to India to get married in nov 2009 and came back in Jan 2010 and he went to Abu Dhabi where he works. We have been living in two different ocuntries since then. Things are not working out between and his parents made it worse. Now I want to file for divorce.He has agreed to a mutual but I dont want to go to India to file for divorce. I wanna know the following

            1. Can I file for divorce here? I live in NJ.
            2. If yes, will it be valid in India and wat is the process in getting it validated in India.
            3. I'm also a catholic and have to get divorce in Chruch too.

            Any help in this matter will be highly appreciated.

            Regards,
            Leah

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            • #21
              Types of divorce valid in India for remarriage

              Could any one please explain as what types of divorces obtained in USA (marriage was in India under hindu marriage act) is VALID in India?

              This is for purpose of remarriage.

              The divorce decree issued in USA is NOT accepted in India registration of remariage.

              Could anyone please provide information about what to do in this case.

              Thanks
              Suga

              Comment


              • #22
                I have married in india to an indian but with a permanent resident card in US five years ago as per hindu marriage act.I accompanied him after 3 months of marriage to US and i delivered a boy there.When our son is about 6 month old he acquired the US citizenship.I went to India for some family reason..then he processed my permanent resident card and came back to US .In about a year i was pregnant for the second time and he force me to deliver the baby in india and he send me to india..after which he sstopped communicating by all means.
                I want to live with him but don't have my visa papers in my hand...What the best can i do?I don't know whether he started any legal proceedings or obtained an ex-parte order against me..
                can anyone help me in this regard
                Last edited by roseelizabeth; 01-30-2012, 11:46 AM.

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                • #23
                  Is my US divorce valid in India

                  I got my US divorce and child custody in 2009 and after almost 4 years my husband filed a case for divorce in India and is asking for child custody.

                  I also got my documents attested by the Indian Embassy.

                  what else can i do to legalize my US divorce in India please help!!
                  Last edited by sangeeta786; 05-02-2012, 01:06 PM. Reason: correction

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                  • #24
                    Need help in Divorce case

                    My husband emotionally abused me,belittled me eversince I got married . I never told this to my parents who lived in India last october he took my Green card and passport and cell phone and told me to leave the house. It happened so many times he forced me to leave the house while I have nowhere else to go. He never let me drive . Last JAnuary when he came to India for funeral he again harrased me and forced me to leave the house said he won't come back to US if I won't leave the house. I was stay at home mom till then I didn't know anybody there my father had to make tickets for me and kids. MY question is can he get Divorse there while I'm in INdia ,without my sighn,(expart3 decision)
                    2) Both my kids are US citizen can he do anything using that as wepon to get them back. Thanks !

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                    • #25
                      US divorce valid in India?

                      I am married in India. I want to apply for divorce in US. My husband is in another state of US. We have been living separately for over a yr. I could not get him consent for mutual divorce as he and his family are demanding money from my family that he used for my support before I got into a job. My lawyer in US told that we can get divorced even if he does not attend court here. But, will that be valid in India?

                      If not, what are my options of applying in India on basis of irreconcilable differences and how long would it take to get the hearing? From 2012 rules, there is no cooling off period of 6 months. Are there any changes to this recently? I also heard that husband can't deny divorce in India if wife wants to-any changes to this? Can I apply in India while residing in US or should I be present in India while applying?

                      Pls suggest.

                      Comment


                      • #26
                        Hi All,

                        This thread seems to be a life saver!!

                        I have same question.. can I get divorce from my wife in United states???

                        Raja/Sangeeta- If you can share your email ID that would be great help ?

                        Comment


                        • #27
                          Hello Rajaa,

                          Can you please let me know your contact, I am in real need of your help

                          Thanks

                          Comment


                          • #28
                            Domestic Abuse - US Citizen applying for divorce from husband in India

                            Hi,

                            I got married in India almost a year ago. Our marriage is registered in India, but not in the US. I am a Christian, by the way.

                            I was an Indian citizen at the time, but now have US citizenship. My husband has Indian citizenship and is still residing in India. After we got married, I stayed with him in India for 5 months.

                            During these five months, he physically and emotionally abused me, including hitting me, trying to strangle me, etc which constitute as assault under Domestic Violence laws.

                            So, I returned to my parent's house in the US. It has now been almost 7 months that I have been back in the US.

                            In addition, he also cheated us by falsely stating that he has an MBA from a university in London. It was only I returned, when we dug deeper into the matter due to suspicions from his changed behavior and examined the copy of his supposed MBA certificate, which he sent us, that we realized it was bogus.

                            I want to apply for divorce from the US (New Jersey). I do not know if he will agree to a mutual consent divorce or not (I highly doubt it). My parents and I will be traveling to India to let them know of our decision and discuss this possibility. I plan on filing for divorce when we return.

                            If by any chance he does agree to the divorce, how can I negotiate to get back the money my parents gave him and his parents before and after marriage?

                            (As is more likely) If I apply on grounds of "extreme cruelty" (i.e. emotional and physical abuse) from the US...Will this work? Will it be valid in India?


                            This second issue is the more pressing one that I really need answers for. Please help.

                            *Before and after marriage, my parents have given him and his family a lot of money - part of it was used for their wedding expenses (we paid out of pocket for our own), he also wasted part of it on his business venture, used part of it as a down payment for our flat - which is in his name, and for other expenses.

                            About the flat - the down payment was given in part before marriage, but the flat was signed/registered/bought after marriage in his name (on a mortgage/home loan).

                            My parents also paid for almost all our living expenses as well while he was "starting" his business, which has not started even a year later. My parents were pressurized to pay by his and his family's mistreatment of me.

                            I need and want all this money back to build a life for myself now and to support my parents, for whom that money was the bulk of their savings.

                            My Questions:
                            1) How do I claim this money when I am filing for divorce from the US? Will I need to go to a Indian court to claim this money?

                            One problem is that almost all of this money was transferred through cash dealings, so only bank statements - amounts and dates - will show anything I guess. However I do not have access to his or his parents' bank statements.

                            So, what proof can I show?



                            2) Will my filing for divorce on the basis of domestic abuse result in any punishment/penalty in India for him?
                            (I never filed any police complaint while in India on this issue).



                            Any help/advice/answers to these questions, especially concerning the claim to return the money and the proof I can show, would be greatly appreciated.

                            Thank You

                            Comment

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