• Is USA divorce decree based on publication service valid in India

I currently live in USA and got divorced recently through "service by publication" since my wife was living separately for more than a year and don't know where she is.   Is the divorce decree valid in India based on "service by publication" ? If not, what is the process for getting divorce in India when both parties(husband & wife) are living in US ?
Asked 3 years ago in Family Law from United States
Religion: Hindu
1) divorce decree obtained in USA would be valid in india if obtained on grounds recognised by HMA 

2) substituted service is permissible if wife whereabouts are not known 

3) if your wife had participated in divorce proceedings she could not have challenged the divorce decree 

4) your wife can move courts in india challenging divorce granted in USA 

5) better file for divorce in india also if divorce decree has been obtained on grounds not recognised by HMA
Ajay Sethi
Advocate, Mumbai
45617 Answers
2680 Consultations

5.0 on 5.0

1. The decree passed by a foreign court is valid in India  provided it complies with the conditions of sections 13 of CPC.
2. In once such conditions the law warranting passing of decree must be recognised as a ground for relief in India also.
3.I believe the you mentioned that decree passed in UA was ex-parte after satisfaction of service of summons through ' publication'.
4. If that is so then the ground of divorce must be on some ground which is not mentioned in your query.
5. if such ground is recognised in India then the decree of divorce is valid in India.
Devajyoti Barman
Advocate, Kolkata
12856 Answers
166 Consultations

5.0 on 5.0

1. Legally speaking, the divorce granted by the US court would be valid in India if it has been granted on the touchstone of the grounds which are recognized by the Indian law. 

2. It may be added that the courts in India are reluctant to recognize ex parte divorces granted by the foreign courts which emanate out of publication. 

3. Your wife can challenge the judgment of US court in an Indian court which may refuse to award recognition to the judgment of US court. If the judgment of US court is derecognized by the Indian court it will not only revive the marriage, but will also pave the way for your wife to take recourse to her other remedies under the law prevailing in India.

4. File for divorce in India if it is granted on a ground alien to the Indian law.
Ashish Davessar
Advocate, Jaipur
22977 Answers
634 Consultations

5.0 on 5.0

1. Understand you have obtarined an Ex-Parte  decree of divorce in USA by serving notice on your wife through publication,

2. What was the ground for seeking divorce?

3. In most cases No-Fault Divorce decree is sought in the USA,

4. If the said decree of divorce was sought on grounds which are also specified as acceptable grounds in HMA for granting decree of divorce, the said divorce is valid in India,

5. No-Fault divorce is not acceptable in India,

6. So, it is advisable to file a divorce suit in India.
Krishna Kishore Ganguly
Advocate, Kolkata
18511 Answers
448 Consultations

5.0 on 5.0

Dear Querist
When the US court has granted the divorce and  opposite party was residing in US then either she should be appear before court and fight the case on merit otherwise the court may grant ex party divorce against her and this divorce will be valid and she can not challenge the divorce in India due to no information of the case.
Nadeem Qureshi
Advocate, New Delhi
4856 Answers
221 Consultations

4.9 on 5.0

As per the latest Supreme Court judgment which had held that a decree of divorce granted by a foreign court is not valid in India if the ground is not recognized by Indian law. 

Settled position in India:
1.	Ex-parte decree of Divorce granted by foreign Court will not be recognized by Indian Court.
2.	Mutual Consent Divorce amongest NRIs, etc: Generally a mutual consent divorce granted by foreign Court is considered as valid, legal and binding in Indian Courts by virtue of section 13 and 14 of Code of Civil Procedure and also on account of comity of Nations. Such decree of divorce granted by foreign Courts need not to be validated in Indian Courts. However, as a matter of abundant precaution, one can approach to the Indian Court for declaring that divorce is valid and binding. Contested Divorce in foreign Court can be valid and binding depending upon on Matter is contested by both spouses in foreign Court. And Matter is uncontested in foreign Court and one spouse comes back to India
Who wish to take benefit of Indian laws and legal system to avoid facing up to any foreign judicial system
In your case: 
1.	You got divorced recently through "service by publication" since your wife was living separately for more than a year and don't know where she is. Your wife does not move courts in India and challenging divorce granted in USA, and then it is valid up to that extent. 
2.	File a divorce case under Hindu marriage Act
Ajay N S
Advocate, Ernakulam
2768 Answers
47 Consultations

5.0 on 5.0

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