• Divorce in USA is valid in India?

Dear Sir/Madam,

I am Madhavi from India. We got married in India in 2000. Lived there for 7 years and had a daughter then we both came to USA in 2007. He came as a dependent and we realized that its not working out between us. He went back to India. I brought my daughter (was born in India and was with my parents till that time - 8 years old) to USA in 2011 and filed for divorce and served him notice. He received the notice and replied to the USA court that he could not attend. USA court granted divorce in Jan 2012 by considering him as default. Given my daughter's primary custody to me as a mother.

Is the divorce in USA is valid in my case? 

He filed a case in India with "restriction of conjugal rights" and its going on in the court and its not going anywhere. What are my options to get clearance from the case. I am in USA and can't travel to India because of my immigration issues. Can you please check and advise.

Thanks in advance for your help!
Asked 2 years ago in Family Law from United States
Religion: Hindu
1. Are you and your husbands citizens of US, or you still hold the Indian citizenship?

2. Divorce granted by the US court may be challenged by your husband in an Indian court which may refuse to recognize it in view of the fact that it was granted by the US court in the absence of your husband. This is a possibility which is inherent in every divorce granted in default by a court outside India. Indian courts are not bound by the judgment of a foreign court. If the judgment of US court is not sustained by the Indian court it will imply that marriage subsists for all legal and practical reasons.

3. Have you filed your appearance to contest the case for restitution of conjugal rights filed by your husband? You should contest his case by engaging your lawyer. It is manifest that your husband has set up a challenge to the judgment of divorce granted by the US court. You should contest the proceedings initiated by your husband on the ground that you have secured divorce from the US court.

4. Your husband can also seek the custody of your daughter by filing a petition for child custody.

5. You do not need to travel to India. The presence of your lawyer will suffice in the Indian court.
Ashish Davessar
Advocate, Jaipur
18061 Answers
446 Consultations
5.0 on 5.0
Dear Querist
the divorce decree passed by US Court can be challenged before indian court

law can not force you to live with him as he file RCR. you can send your reply through post to court.

if you are not willing to fight the RCR case then no need to worry, check the status of your case with the help of lawyer.

until & unless he file a civil suit for declaration and challenge the divorce decree passed by USA court your divorce will be valid...

you can contact to me over the phone after getting my detail from admin.
Nadeem Qureshi
Advocate, New Delhi
3522 Answers
129 Consultations
4.9 on 5.0
1. Filing divorce in India instead of US would have been a wise decision when your marriage was solemnized in India coupled with the fact that you held and still hold Indian citizenship.

2. Why did you execute a GPA? In whose favour has it been executed? GPA was going to run into rough waters. It should never have been executed in the first place as you were not required to appear in the court except for your deposition.

3. Since the court has mandated your personal appearance before it you should comply with the court order. Contest his case fittingly as you cannot be forced to live with him.
Ashish Davessar
Advocate, Jaipur
18061 Answers
446 Consultations
5.0 on 5.0
Hi, Restitution of conjugal right decree can not be executed even though the court has passed a decree in favour of your husband.
2. You can  take defense that there is no relationship of husband and wife as the US court has already granted divorce.
3. Burden lies on him to say it is not binding.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
1. Citizenship has no concern in your case and the decree of divorce is very much valid.
2. Ideally you should contest the the case of RCR in India on the ground of granting decree of divorce and hence the suit in india shall not run.
3. The RCR decree if passed against you ex-parte then the decree can be put to execution by attachment of your property, if any, in India.
4. If you have no plan to come to India and settle here any time soon then you can ignore the suit filed by your husband.
5. I am not sure why the judge is insisting your presence as unless the stage is fixed for ' Reconciliation' your physical presence is not required at all.
Devajyoti Barman
Advocate, Kolkata
5174 Answers
54 Consultations
4.9 on 5.0
1) divorce decree granted by Us courts would be valid in india if was obtained on grounds recognized under HMA . 

2) your husband has not filed any proceedings in India wherein he has challenged grant of divorce decree . 

3) your husband was duly served with divorce proceedings but he informed court that he would not be in position to attend 

4)in reply to RCR proceedings taken out by your husband you should take the plea that RCR is not maintainable as divorce has already been granted by USA courts.
Ajay Sethi
Advocate, Mumbai
23145 Answers
1215 Consultations
5.0 on 5.0
1) your personal presence would be necessary at the stage of evidence . 

2) since RCR has been filed in 2013 your reply must already be on record . 

3) GPA cannot lead evidence on your behalf . you have to depose before the court . 

4) you should on next date after consultations with your lawyer attend court .
Ajay Sethi
Advocate, Mumbai
23145 Answers
1215 Consultations
5.0 on 5.0
It is depends on the husband if he challenges in Indian court, the decree of divorce taken by you in USA on the basis of section 13 of the Civil Procedure Act & well laid down principle of the Apex & other High Courts of India with regard to foreign court judgements/order/decrees. 
 If your husband  never objected to the US court jurisdiction to adjudicate the matrimonial dispute between both of you as you both were Indian citizens , married according to Hindu form of Marriage under the Hindu Marriage Act,1955, according to which only the Indian courts have jurisdiction to adjudicate any matter under this Act, in such case on the basis of his agreeing to the jurisdiction of US court you get benefit in Indian court.
 Another important issue is merits of the case or the grounds on the basis of which the decree of divorce passed. In most of US court divorces the ground is "irretrievably broken matrimonial home". 
 This ground is not provide  under the H M.Act., the law say that the ground under which divorce was granted by a foreign court should be one which is available under the H.M.Act,1955. The Supreme Court of India has held in its landmark judgement in Y. Narasimha Rao case, concerning US court divorce that was granted on the ground of "irretrievably broken matrimonial home" is not available under the H.M. Act,1955 & hence such divorce will not be valid according to the Indian Law hence it shall be considered void divorce in India. 

Ignore the summon of RCR suit as filed in India, you need not contest the suit for RCR.A decree of restitution of conjugal rights implies that the guilty party is ordered to live with the aggrieved party. Restitution of conjugal rights is the only remedy which could be used by the deserted spouse against the other. A husband or wife can file a petition for restoration of their rights to cohabit with the other spouse. But the execution of the decree of restitution of conjugal rights is very difficult. The court though is competent to pass a decree of restitution of conjugal rights, but it is powerless to have its specific performance by any law. The non-compliance of the issued decree results to constructive destruction on the part of the erring spouse.Execution RCR decree is not possible in USA.
Minansu Bhadra
Advocate, Kolkata
266 Answers
23 Consultations
4.8 on 5.0
The divorce case would be valud in india if the decree was obtained on the grounds recognized by the indian law.  If the court is not taking ur gpa it is advisable that you visit the court for evidence since evidence cannot be gven by a gpa holder
Shaveta Chaudhary (Sanghi)
Advocate, Chandigarh
821 Answers
60 Consultations
5.0 on 5.0
Hello,
1) The divorce you obtained valid on India though it can be challenged in Indian court.

2) In fact the most that can happen due to your non attendance in the RCR matter is that your husband may succeed in getting a decree in his favour. The decree cannot be executed even if you don't comply and will become a ground for divorce an year later.

3) So don't bother about the RCR proceedings now. If he speaks against or challenge the Decree of divorce or file for custody of the child deal with it then.
S J Mathew
Advocate, Mumbai
1950 Answers
65 Consultations
5.0 on 5.0
1. The decree of Divorce obtained by you ex-parte will not be acceptable by Indian Courts unless it has been obtained on grounds acceptable by Indian Law. The 'No-Fault' divorce obtained in the USA is not acceptaed in India,

2. However, if yoy can get the said decree of divorce vetted by any India court, then it can be treated as valid in India also. The ground for seeking divorce is not know for proper giving advice,

3. If gets favouravle order in the RCR case filed by you wherein you may be directed to join him for starting conjugal life, you can still refuse to join him and in that case he can file a divorce suit in India to get the decree of divorce,
Krishna Kishore Ganguly
Advocate, Kolkata
12074 Answers
228 Consultations
5.0 on 5.0
1. If there is any order against you in the said RCR case filed by your husband, it will an order directing to to join him,

2. There will be no punichment if you do not join and you are at liberty not to join him,

3. RCR is a wasteful effort. If you refuse to join your husband even after being directed by the Court, only option left before him will be to file a divorce suit showing your refusing to join him as a ground and in that case he is lkely to get divorce easily.
Krishna Kishore Ganguly
Advocate, Kolkata
12074 Answers
228 Consultations
5.0 on 5.0
divorce in usa is valid in India but you should have to execute it in India by filing of execution suit on the basis of certified copy of judgment. without doing so your divorce has no force in India and you may be prosecuted for bigamy if you contracted second marriage.
Shivendra Pratap Singh
Advocate, Lucknow
2731 Answers
41 Consultations
4.9 on 5.0

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