• Urgent Response needed - Divorce in US, null and void in India

My husband filed for "legal separation" in a California Court as we both live in US.I ended up responding to that legal separation petition asking for spousal support. 





A month later, he amended the existing petition to "divorce". I did not respond to that. Few days back, I found out that a divorce filed in US can be made null and void by the Indian courts provided the person filing for it does not participate in the legal proceedings in US and the marriage was registered as per the Hindu Marriage Act which is the case with us.




I want to ensure that my divorce case in US gets declared as null and void in India as I do not want divorce from my husband. Please suggest how can I ensure that given that I ended up responding to "legal separation" petition earlier.




In California court in US, once you respond to the petition, you are supposed to provide your Preliminary Declarations and Disclosures(PDD) which is a disclosure of your income and assets within 60 days of your response.




I have not provided those disclosures once I came to know that I shouldn't provide any documents or participate in any proceedings.I just came to know that my husband's attorney has sent a motion to the Court to obtain a hearing date for an order to compel my preliminary disclosure statements and also seeking sanctions against me in the amount of $2,000 for forcing him to have to file this motion. 




His attorney has also sent a court notice requesting for additional documents for discovery and stated that if I don't provide them, he will again file a motion to impose monetary sanctions against me.




I told his attorney that I want to default on the proceedings.He said that is only possible if I sign a stipulation that dismisses the initial Response that I filed earlier and to agree to a default in writing so that he can present this document to the Court. 




Please advice urgently on how should I proceed with the case in California and should I file for "Restitution of Conjugal Rights" here in India right away as we have been living separately for almost 4 months now.
Asked 7 years ago in Family Law
Religion: Hindu

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9 Answers

1.You have already particiapted in the proceeding earlier in USA and I doubt whether by dismissing the ealrier reply as asked by your lawyer there would amount to non participation in USA court proceeding.

2.It is not clear whether you are going to come to India and stay rest of your life here or not.

3. if yes then you can initiate fresh proceeding in india .

4. However if you do not have any immediate plan to settle in India then you better sort out your dispute in California court only.

5. To file RCR in India you can get in touch with an advocate here and get the case filed through him. No worries.

Devajyoti Barman
Advocate, Kolkata
22920 Answers
497 Consultations

5.0 on 5.0

1) you should come down to india file petition under section 9 of HMA for restution of conjugal rights

2) seek stay of divorce proceedings pending in USA

3) divorce decree passed by Us courts would not be valid in india

4) contact a local lawyer in india

Ajay Sethi
Advocate, Mumbai
95197 Answers
7607 Consultations

5.0 on 5.0

1) don't sign any stipulation sought by your husband attorney

2) don't attend the hearing fixed in USA courts

3) you have to come to India to file RCR proceedings

4) RCR takes around 5 years to be disposed of

5) you can execute POA in favour of family member to attend courts on dates fixed for hearing of your petition

6) your presence would be necessary during trial

Ajay Sethi
Advocate, Mumbai
95197 Answers
7607 Consultations

5.0 on 5.0

1. No stay can be asked for from Indian court.

2.No

3.Yes as advised earlier

4. You need not come down immediately for hearing

5.2-5 years.

Devajyoti Barman
Advocate, Kolkata
22920 Answers
497 Consultations

5.0 on 5.0

Dear Querist

as per section 13 of CPC the Order passed by the Foreign Court shall not be conclusive.

Read the below mention section:-

13. 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 recognize 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.

You should immediately file an objection regarding the petition that the marriage has been solemnized as per Hindu Marriage Act-1955 in India hence the Court at US has no jurisdiction to decide the matter.

You may file a RCR petition in India through your Power of Attorney holder or left US and come to India and challenge the validity of US Court's Order.

My Opinion on your queries are as under:

1. How do I seek stay of divorce proceedings in US? Should I sign the stipulation mentioned by his attorney?

Opinion: Engage an advocate/Attorney in US and filed your objections, being an Indian and solemnization of Marriage as per Hindu Law the US Court has no jurisdiction to entertain the divorce petition filed by your Spouse.

2 If a hearing date comes up soon enough in US for declaration of assets, should I attend the hearing?

Opinion: It should be.

3. Can anyone file RCR on my behalf in India?

Opinion: Yes, Your power of attorney holder may file RCR petition on behalf of you in India.

4. Once RCR is filed, will hearing date be given immediately or will I need to come down again for the hearing.

Opinion: Your personal presance is not mandatory until the evidence/examination stage. next date of hearing shall be provided to your POA Holder on same day.

5. How much time it takes usually for RCR cases to be settled?

Opinion: If both the parties are not ready to settled their dispute amicably then more then 2 years.

Feel Free to Call

Nadeem Qureshi
Advocate, New Delhi
6307 Answers
302 Consultations

4.9 on 5.0

Please advice urgently on how should I proceed with the case in California and should I file for "Restitution of Conjugal Rights" here in India right away as we have been living separately for almost 4 months now.

The US laws on divorce is different to tht of Indian laws.

If you do not participate in the U divorce proceedings filed by yor husband, then any decree even if exparte decree granted there shall not be legally valid in India.

As you said that you have been living separately away from him, you can file a petition under section 9 of HMA for restitution of conjugal rights in your jurisdictional family court in India.

This will indicate that you are not willing for divorce proceedings initiated by him on his own and are still interested to live with him in the marital relationship.

T Kalaiselvan
Advocate, Vellore
85398 Answers
2235 Consultations

5.0 on 5.0

Can you please confirm if the divorce decree passed by US court will not be valid even if I filed the initial Response to legal separation.

As advised by his attorney, you may sign a stipulation dismissing your initial response and allow it on default, his would take care of the issue even if the proceedings are disposed exparte.

1. How do I seek stay of divorce proceedings in US? Should I sign the stipulation mentioned by his attorney?

Any attempt to thwart his steps would indicate that you are participating in the proceedings, hence better leave it just like that and concentrate on the reliefs in India as per Indian laws.

2 If a hearing date comes up soon enough in US for declaration of assets, should I attend the hearing?

You can decide based on the prevailing circumstances

3. Can anyone file RCR on my behalf in India?

You can do it through a POA deed

4. Once RCR is filed, will hearing date be given immediately or will I need to come down again for the hearing.

If represented through a POA agent then you may have to be present for deposing your evidence.

5. How much time it takes usually for RCR cases to be settled?

cannot be predicted.

T Kalaiselvan
Advocate, Vellore
85398 Answers
2235 Consultations

5.0 on 5.0

I had advised you to come down to India and seek stay of divorce proceedings in USA

2) you had raised query 23 days back and had you filed petition in India you could have obtained stay by now for proceedings in USA

3) divorce proceedings would not be put on hold in USA . Stay of any had to be obtained in India

4) you have not responded to divorce petition hence divorce decree would not be valid in India

Ajay Sethi
Advocate, Mumbai
95197 Answers
7607 Consultations

5.0 on 5.0

1. Also, can you please confirm once again (just for my comfort) that the divorce decree passed by US court will not be valid even if I filed the initial Response to legal separation.

Any exparte divorce decree in a foreign country for a marriage solemnised in India is not valid in India.

2. If I don't attend the hearing and the court imposes monetary sanctions of $2000 as requested by his attorney, what should I do? Do I need to pay that?

Since you are here in India, it may not be possible for recovery by the US authorities.

3. Is there any way the court proceedings in US can be put on hold in the court? I spoke to the attorneys in US and they have no clue about this Hindu Marriage Act. Is there any reliable legal source available online which I can ask them to refer to prepare a case to cancel/hold this case in US.

The proceedings canot be kept on hold or cancelled from other country for a trial being conducted in US court, dont spread any wild imaginations about it.

T Kalaiselvan
Advocate, Vellore
85398 Answers
2235 Consultations

5.0 on 5.0

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