• Not getting divorce - still fighting for 9 years

Hi , It's been 9 years that I have filed for a divorce case in India but my wife is not willing to give divorce and after the divorce case she has filed fault 498 case against my family and kept my mother in prison and they are ready to push me in to jail .Due to these incidents I am unable to travel to India as there is a 498 case . It's been 4 years that I never visited India, I would like to know as I am a green card holder is it ok if I marry some one here in USA and lead my rest of the life here . As it's been so long years that I am fighting to get divorce in India but of no use .AS it's almost 9 years that I am not staying with her and never got her to USA due to her worse behavior and fighting against all these cases 498 , divorce ..I would like to know what is the best solution that I can have here .
Can I marry in USA as I am a green card holder ?
Asked 7 years ago in Family Law
Religion: Hindu

7 answers received in 1 day.

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16 Answers

1) you cnnaot remarry during subsistence of your eearlier marriage

2) your first wife will file case of bigamy against you under section 494 of IPC

3) for divorce case your personal; presence is necessary during trial

4) appear in 498A case in india apply for and obtain AB in 498A case and with court permission travel back to USA

5) if your wife is contesting the divorce case then also in 5 years generally court pronounces judgment in divorce cases .

Ajay Sethi
Advocate, Mumbai
95197 Answers
7607 Consultations

5.0 on 5.0

1.Since 498A case is filed there is no reason to get worried much.

2. if charge sheet is filed then come to India and take bail.It is likely to be allowed.

3. Without taking of bail your case would worsen further.

4.Since marriage is broken there is need to file divorce suit asap.

5.You have wasted so many years without doing anything.

Devajyoti Barman
Advocate, Kolkata
22920 Answers
497 Consultations

5.0 on 5.0

Proper follow ups and actions are necessary for contesting a case. You had lose your time and life without proper instructions. In a contested divorce case the presence of petitioner is necessary. What is the stage of the case now?

In 498A case , first you have to take anticipatory bail and contest the case. Without divorce second marriage is an offence under section 494 of ipc. Live in relationship also will be treated as an act of adultery punishable with jail term, should your wife lodges complaint against you in this regard.

Divorce allows a person to break free from an onerous marital relationship. But since marriage is not merely a contract but a very important societal institution. The law has an interest in protecting marriage, and not allowing it to be severed only by choice and on ordinary wear and tear. Since society in countries like ours takes special interest in protecting it – In our country to get a divorce one needs to prove certain grounds for eg : cruelty/adultery/desertion etc. Known as matrimonial offences.

A happy marriage is a harbour in the tempest of life an unhappy marriage a tempest in the harbour of life, more and more people are realising the reality of their relationships, and accepting divorce as the rational choice to a better life necessary premised on better relationships.

Ajay N S
Advocate, Ernakulam
4080 Answers
111 Consultations

5.0 on 5.0

1)in divorce case you will have to come down to India to give evidence

2) similarly in 498A case your personal presence is necessary during trial

3) POA holder cannot adduce evidence on your behalf

Ajay Sethi
Advocate, Mumbai
95197 Answers
7607 Consultations

5.0 on 5.0

you cannot marry in USA because according to the united nations International private and personal law, a man carry his personal law wherever he goes. so according to Hindu personal law, Hindu marriage act bigamy is prohibited. whenever you visit India you can be prosecuted under section 494 IPC.

Shivendra Pratap Singh
Advocate, Lucknow
5127 Answers
78 Consultations

4.9 on 5.0

you should file a writ before the high court for expedite hearing of your case. high court can fix a time for its disposal thereafter lower court cannot grant unnecessary adjournment in your case and bound to decide the case in stipulated time otherwise court commits contempt of high court.

Shivendra Pratap Singh
Advocate, Lucknow
5127 Answers
78 Consultations

4.9 on 5.0

1. It is strange that your divorce case is pending even after 9 years.

2. At what stage it is now standing?

3. Has she filed written Statement?

4. You might be a green card holder but you are still an Indian Citizen governed by Indian Law.

5. It was a wrong step on your part to avoid appearing before the Court for availing anticipatory bail in the said 498A case filed against you.

6. Now a days, there will be no arrest to be made against the complaint filed by wife u/s498A of IPC without conducting investigation as per Supreme Court order.

7. In 98% of 498A cases, the allegations have been found to be false.

8. Once you manage to get the AB or surrendered bail, your 80% job is over and you are then left with the task of contesting the case fittingly through your lawyer.

9. You can not marry again without availing the decree of divorce and should you do that, charge of adultery will be imposed on you which is punishable with jail term.

10. Indian Court has the authority to ask the Ministry of external Affairs to arrange to get yourself extradited from the foreign country by applying through the concerned Indian Consulate.

11. Your best course of action shall be to get AB or surrendered bail and then contest the 498A and also the divorce case fittingly.

12. You can file a petition before the High Court praying for direction upon the Court below to expedite hearing the case and complete the hearing with in next 6 months.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

you cannot obtain AB from USA

2) personal presence is necessary for obtaining AB

Ajay Sethi
Advocate, Mumbai
95197 Answers
7607 Consultations

5.0 on 5.0

1. Your case is something very unusual. Has the lower Court dismissed your divorce petition for which you have approached the High Court? It is now pending before the High Court but what is the stage now? What you are expected to do now? Is it at the argument stage?

3. When you file a case like divorce Suit, the Respondent is directed to submit her reply which is called Written Statement and based on he said W.S., the case further proceeds.

5 . High Court will not quash FIR unless charge sheet has been filed. Has the charge sheet been filed? However, since it has been sent to he lower Court, appear before it and avail AB showing reason for your not being able to appear before.

8. There has been no stamp used by immigration or other Govt. department as 'Accused". No accused is guilty till he is proved to be guilty. No body will put 'Accused' stamp on your passport.

9. I did not find you mentioning that you have already availed the decree of divorce in the USA. The decree of divorce passed by the foreign country is not valid as per Indian law. So, you shall stay as married to your said wife in India untill you get the decree of divorce passed by Indian Court.

10. Indian Consulate will not decide on any matter which is pending before he Court. they will just act as per the direction which may please be noted. You shall have to advance all yur arguments before the Court of law where you are being tried.

11. Your brother in law is not the owner of this Country and India is still governed by law may be with lots of loopholes. As explained above, there is no chance that your passport will be marked 'Accused' for the said 498A case filed against you. For solving this problem you shall have to appear before the Court in India.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

1. Your POA holder will be able to handle the divorce case in India but you shall have to appear before the Court for availing AB against the 498A case filed against you.

2. After obtaining AB, your lawyer can pray for waiving your appearance before the Court permitting your travel to your place of working abroad for earning your livelihood.

3. Your lawyer can also propose that you shall appear before the local Indian Consulate weekly once or as directed by the Court.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

As it's been so long years that I am fighting to get divorce in India but of no use .AS it's almost 9 years that I am not staying with her and never got her to USA due to her worse behavior and fighting against all these cases 498 , divorce ..I would like to know what is the best solution that I can have here .

Can I marry in USA as I am a green card holder ?

If you have not visited India for more than four years now, then how do you say that the case is running or 9 years?

If you have filed the divorce case then it would have been dismissed for not prosecuting the case properly,

If she had filed the case then she would have got exparte divorce.

About your marriage in US, what will be the status you will furnish in the column meant marital status while applying for registration of the proposed second marriage to be held at US. what if the father of the second wife demands divorce judgment order copy?

Better handle the situation

T Kalaiselvan
Advocate, Vellore
85398 Answers
2235 Consultations

5.0 on 5.0

As it's been so long years that I am fighting to get divorce in India but of no use .AS it's almost 9 years that I am not staying with her and never got her to USA due to her worse behavior and fighting against all these cases 498 , divorce ..I would like to know what is the best solution that I can have here .

Can I marry in USA as I am a green card holder ?

A divorce case, under ordinary situations will not take more than three years for disposal, you may ask your sister/agent the reasons for delay.

Also you may ask the police to expedite the filing of charge sheet.

You may postpone the remarriage for getting the matter solved .

T Kalaiselvan
Advocate, Vellore
85398 Answers
2235 Consultations

5.0 on 5.0

If I go to India, they can stamp passport as accused, then it will be a problem for me to come back to USA. Now a days USA is finding small issues also as bigger to not to re enter this country. So that My job might be at stake.

There is no provision to stamp accused in the passport, it is against the rights of the holder/citizen

As I have taken divorce in USA and if I marry in USA are they going to file case in India ?and how long does it takes in India to proceed

If you have taken divorce in US and planning to marry in US itself and also do not have plans to visit India, you remain married with the girl in US itself then what is your worry.

s there at least a way that I can get AB from USA .

No there is no way that you can get AB in USA.

T Kalaiselvan
Advocate, Vellore
85398 Answers
2235 Consultations

5.0 on 5.0

1. Have you not already obtained AB in the 498A case? If AB has been obtained then you shall have no fear in coming to India and contesting 498A. If despite the grant of AB you have consistently not appeared before the competent court in 498A case then possibly NBW must have been issued till now, in which event you have to applyf or cancellation of NBW.

2. Bigamy is impermissible even in US according to US law. Holding a green card does not permit you to remarry without obtaining divorce from the court.

3. In these circumstances you should move the High Court for an expeditious conclusion of your divorce case. The HC can direct the court below to wind up the case within 6 months.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

1. If you wish to conclude the divorce petition then you are required to appear before the court for evidence, failing which there is no way the court can pass a decree of dissolution of marriage in your favour. I repeat that if you have obtained AB and also got any NBW (which may have been standing against you) cancelled then you cannot be arrested on landing in India.

2. You may further file a writ petition in the High Court to seek police protection if you apprehend that you may suffer an injury to your life or liberty on arriving in India.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

1. If you have obtained divorce in US, and no petition has been filed in India by your ex-spouse to declare it not binding on her, you are free to remarry in US.

2. You are not required to appear personally before the court for the grant of AB, but if a NBW has been issued then it will not be cancelled unless you personally appear before the court.

3. If you want a concrete opinion then consult a lawyer with complete set of documents.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

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