• Applied for divorce in USA, but already case is running in India

Hello, 

Husband, who is living in US had completely abandoned me and my daughter for 3years and then he filed a divorce in India and I responded here with all the proofs that will screw him. While the case is on file he also filed a divorce in USA. 
How should proceed now? Will this be valid if he gets a divorce granted in US? 

Please respond.
Asked 6 years ago in Family Law
Religion: Hindu

21 answers received in 1 day.

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28 Answers

1) No, it will be not valid in India, Exparte Divorce order, only Mutual consent Divorce is valid from foreign country court decree. So you continue here what right now is going on and stick to it.

In case you want to get a divorce in the foreign country where you reside, it must be a mutual consent divorce. The Indian legal system does not recognize Exparte divorce orders, i.e., where only spouse participates.

You can apply for a divorce according to the foreign marriage law prevailing in the country where you reside. Afterwards, you need to seek a declaration in accordance with the Family Courts Act to make the foreign judgment valid in India. This declaration can be sought only in the family court which has the jurisdiction to try the case.

2) A person who has married an NRI, seeking divorce should be aware of the basic laws related to NRI divorce.

· If both the spouses are Indians and have been married under Hindu marriage Act, 1955 then they can seek divorce with mutual consent under section 13-B that provides for divorce by mutual consent.

· If both the spouses are residing in USA, or any other foreign country, then they can seek divorce by mutual consent under the country’s divorce laws related to foreign marriages. The Indian legal system will recognize the divorce only if it is with the consent of both the parties.

There are not many laws that protect the interest of Indians married to NRIs. However, due to rise in the number of troubled marriages among Indians and NRIs, the government is initiating non- government organizations in India and abroad which can guide Indian men and women who are married to NRIs and residing abroad. They offer counseling, legal advice, and moral support in the event of divorce and separation. Even if the divorce is taking place abroad, it would be good to appoint an attorney who is proficient in dealing with Indian divorce laws related to NRIs.

Ganesh Kadam
Advocate, Pune
12910 Answers
253 Consultations

4.9 on 5.0

Make application in family court and seek stay of divorce proceedings pending in USA

2) divorce decree passed in USA would not be valid in India if you don’t participate in divorce proceedings in USA

Ajay Sethi
Advocate, Mumbai
94523 Answers
7485 Consultations

5.0 on 5.0

Foreign court decree of divorce or dissolution of marriage can be valid in India provided such decree is according to the provision of law in India as provided under section 13 of the Civil Procedure Code and Principle of law as laid down by the Indian courts. A foreign court divorce decree may be valid in India ONLY if the spouse had lived in that country and had consented to that country's jurisdiction.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.

So proceed the case is in India only .If someone has accepted the authority of a court, it cannot be open to the person to later question the authority of the court.Who wish to take benefit of Indian laws and legal system to avoid facing up to any foreign judicial system

Ajay N S
Advocate, Ernakulam
4072 Answers
110 Consultations

5.0 on 5.0

Since he had filed the suit first in India in which you also seem to have been contrasting by appearing in the suit,the subsequent suit in USA will not not be maintainable.

So inform the USA court about the pendency of the casein india on the same issue. The law of ' Amity and COmity' demands that two different courts do not encroach upon the same issue at the same point of time.

Moreover you can also seek injunction in Indian court for injunction restraining your husband to seek similar relief in USA court.

Devajyoti Barman
Advocate, Kolkata
22779 Answers
484 Consultations

5.0 on 5.0

1. The ground on which your husband obtains divorce from a US Court has to be one of the grounds under the Hindu Marriage Act and then only such a divorce is acceptable in India.

2. The only ground similar to Mutual consent divorce of Hindu Marriage Act in US is No fault divorce.

3. Even to accept No fault divorce granted by US Court in India, both husband and wife should have been given an opportunity to defend themselves in US Court and both should have attended the court proceedings without fail.

Shashidhar S. Sastry
Advocate, Bangalore
5068 Answers
314 Consultations

5.0 on 5.0

US court does not have jurisdiction to decide the case, When the case is pending before the Indian court. He cannot file a second divorce petition in U.S court. You may raise the jurisdictional issue before the U.S Court. Assuming that he get an exparte divorce order in U.S court that cannot be a executable order. In your case is concern, you need not to worry about the divorce case filed before the U.S court, the U.S court doesnot have jurisdiction to try the issue and any order passed by the U.S court is not a valid one to execute in India. When the marriage is being covered under the Hindu Law and case is pending before the jurisdictional court in India the U.S court lacks its jurisdiction.

Selva Perumal
Advocate, Chennai
339 Answers
36 Consultations

4.9 on 5.0

Dear Madam,

Since foreign decree is also valid in India except in few cases, you have to take some steps to stay the one which was filed abroad. More in person.

Kishan Dutt Kalaskar
Advocate, Bangalore
6135 Answers
483 Consultations

4.8 on 5.0

1. If your husband is residing in US then the courts in US have the jurisdiction to dissolve the marriage on the grounds tenable under the US law. However, if the marriage is dissolved by the court on a ground which is not a ground for divorce under the Indian law then you may file a petition in the competent court in India to declare the said decree of US court as non binding on you. Unless the court in India declares the decree as non binding on you it will hold its ground.

2. Contest his petition in US.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

The divorce granted in US will only be valid if both parties participate and the ground on which divorce is granted is in terms with the Indian law.

The ex-parte divorce in US is not valid in India and inost of cases only foreign mutual consent divorce is validated by Indian courts.

So if you have good case in India prooced with it. You don't need to be worried about exparte divorce in US(in case US court decide) it won't be valid in india if decided without your presence.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

If a marriage was solemnised in india then both of you need to appear before indian court of law only.

Laksheyender Kumar
Advocate, Delhi
734 Answers
2 Consultations

4.8 on 5.0

No problem, let him get the decree from there as you are not attending the proceedings there.

The validity of the decree from US will be ratified in the court where the petition is pending for the decision and law will take its own course and you will get you due what you deserve to.

Good luck!!!

Vimlesh Prasad Mishra
Advocate, Lucknow
6852 Answers
23 Consultations

4.9 on 5.0

The divorce case instituted by him in the US, is meaningless and having no value, since even before this case was instituted, the husband himself preferred a divorce petition in India.

Even otherwise, ex-parte divorce decree passed by a US Court is not valid in India. Please take not e of the fact that you do not have to appear before the US Court.

Vibhanshu Srivastava
Advocate, Lucknow
9588 Answers
303 Consultations

5.0 on 5.0

Divorce granted in US is valid only thing you need to do is get the divorce of US declared in Family Court in India.

Rajashekar
Advocate, Bangalore
591 Answers
4 Consultations

4.8 on 5.0

1. You need not proceed in connection with the divorce suit filed by your husband in USA.

2. The law for obtaining Divorce is very simple in USA and it is easy to get it there.

3. However, the decree of divorce passed by USA Court is not valid in India unless it has been obtained based on the ground which is acceptable by Indian Law like mutual consent divorce.

4. So, even if your husband gets the decree of divorce in USA, it will not be treated as valid in India and both of you shall be treated as married couple in India.

5. In addition to the above, you should check what benefit will you get if the divorce decree is passed by USA court since in some States of USA the divorce law stipulates that the divorced wife will 50% of the assets/properties of the husband which he has acquired post marriage.

6. If his property in USA is substantial and you are sure to get 50% thereof, then you can decide accordingly and contest the case filed by him.

7. In the above case also the decree of divorce passed by the foreign court will not be treated as valid in India.

Krishna Kishore Ganguly
Advocate, Kolkata
27191 Answers
726 Consultations

5.0 on 5.0

The law is fairly well settled that the marriage solemnized in india as per the law in force has to be dissolved in india. However, if the parties submit voluntarily to the jurisdiction of the foreign court and the foreign court having consideration to the law of the land where marriage was solemnized shall dissolve the marriage. Such dissolution shall be conclusive between the parties and need not be declared in india.

Rajaganapathy Ganesan
Advocate, Chennai
2132 Answers
8 Consultations

4.9 on 5.0

If the marriage is as per Hindu customs and traditions and you are residing here he can't file for divorce in foreign country. The decree passed by such country won't be valid in India. In turn you file petition under Crpc 125 claiming maintenance from him and if he don't come get warrant issues through embassy against him.

Swarnarka Chowdhury
Advocate, Mysore
1879 Answers
5 Consultations

5.0 on 5.0

Please note power of attorney is not applicable in criminal cases and matrimonial cases. Better ask the criminal court to issue warrant against him. NOTE that he cannot get divorce in America if he has sent you notice from America ask your counsel to write a letter to the court in America that it can't pass any order of divorce as it's without jurisdiction.

Swarnarka Chowdhury
Advocate, Mysore
1879 Answers
5 Consultations

5.0 on 5.0

1) you should seek stay of divorce proceedings in USA

2) you have correctly filed case of dowry harassment against husbandunder section 498A of IPC as were harassed for dowry by husband

3) if your husband does not cooperate with investigations non bailable warrant would be issued against him . he would be declared an absconder

4) if he appears in court then conditions would be imposed on his travel abroad

Ajay Sethi
Advocate, Mumbai
94523 Answers
7485 Consultations

5.0 on 5.0

1. Has he got the citizenship of USA?

2. If not then he is under the legal jurisdiction of Indian law and the Indian Courts of law.

3. If he marries again in USA without getting the decree of divorce from you then the charge of bigamy will be levied against him if you can prove your case before the Court in India with evidence and in that case court can direct the MEA to arrange for his extradition.

4. However, if he can manage to get the citizenship of USA by that time then the Indian law will not be applicable on him.

5. You have already file 498A complaint against him. Has the police registered FIR based on your said complaint u/s498A of IPC?

6. If not then file a Writ Petition before the High Court against police inaction praying for direction upon police to register FIR, investigate and act based on your said complaint.

7. If police registers FIR u/s498A of IPC against him, he shall have to come to India for availing anticipatory bail and if he fails to avail AB, the Court can issue NBW against him and simultaneously police can issue LOC notice against him for which he will be detained at the Airport whenever he arrives at India.

8. If he does not come to India, the Court will direct the MEA to arrange for his extradition and also direct the passport authorities to impound his passport.

9. Engage a local lawyer having expertise in this field to handle your case.

Krishna Kishore Ganguly
Advocate, Kolkata
27191 Answers
726 Consultations

5.0 on 5.0

An exparte divorce obtained from a foreign country for a marriage solemnized and registered in India, is not valid in India.

Therefore you need not be worried about the exparte divorce he may obtain in USA but fight back the divorce case he filed in India with tooth and nail.

T Kalaiselvan
Advocate, Vellore
84722 Answers
2172 Consultations

5.0 on 5.0

So if thats the case, how can i make him to come back to india with LAW? What are my possibilities?

There is no law to force him or to extradite him to India for this reason.

You cannot do anything if he is getting married in US and not returning to India for ever.

I already filed Sec.498A-IPC and Sec 3 and 4 of dowry harassment. He gave power of attorney to his father in India.

He cannot be represented by a power of attorney agent in the criminal cases against him.The court will not accept his father to represent him in the criminal case against him.

T Kalaiselvan
Advocate, Vellore
84722 Answers
2172 Consultations

5.0 on 5.0

For all of your queries below is citation how it was proceed and given in favour of wife by the Indian court he order.

In Vikas Aggarwal v Anubha (AIR 2002 SC 1796), the Supreme Court had been approached by the NRI husband whose defence had been struck off in a maintenance suit filed by the wife in the High Court as he had not appeared in the High Court despite the High Court's order directing him to personally appear and giving him several opportunities. The High court had directed him to personally appear to give clarifications to the court on the circumstances in which the US court had proceeded with and granted decree in a divorce petition filed by the husband in the US despite order of restraint having been issued by the Indian court against the proceedings in the US. The High Court had also rejected his application for exemption from personal appearance on the basis that he apprehended that he would be arrested in the case under Section 498 A, IPC filed by the wife.

The Supreme Court upheld the High Court's order and held that Order X of CPC is an enabling provision that gives powers to courts for certain purposes. The Delhi High Court was therefore justified in requiring the husband to personally appear before the Court for his clarification, especially since the affidavit of his counsel in America annexed with the affidavit filed in the trial court was not enough to clarify the position and his father, as found by the trial court, could not throw further light in the matter, having not been present during the proceedings in America. Also the inherent powers of the Court under Section 151 C.P.C. can always be exercised to advance interests of justice and it was open for the Court to pass a suitable consequential order under Section 151 CPC as may be necessary for ends of justice or to prevent the abuse of process of Court.

Ganesh Kadam
Advocate, Pune
12910 Answers
253 Consultations

4.9 on 5.0

In 498A case he will appear before the court, The power of attorney has no role in criminal case. If he is not appear before the court then you can take steps through embassy.More over file a Maintenance case in family court .

A Hindu woman's right to maintenance is a personal obligation so far as the husband is concerned, and it is his duty to maintain her even if he has no property. It is well settled that under the Hindu Law, the husband has got a personal obligation to maintain his wife and if he is possessed of properties then his wife is entitled to a right to be maintained out of such properties . If he is not paid the court will issue warent against him.

Ajay N S
Advocate, Ernakulam
4072 Answers
110 Consultations

5.0 on 5.0

For 498A case you can send the warrant to the local branch of his office and also to his US office so that the company put pressure on him to complete the case and report back to duty.

Rajashekar
Advocate, Bangalore
591 Answers
4 Consultations

4.8 on 5.0

Dear Madam,

You are correct. You should not leave a person who committed offences to take shelter in Foreign Countries. The law has vast hands. You may bring your husband to India though you may have to face little difficult in secure in him. The following link gives you full idea as to how a Court can execute warrant against your husband by Indian Court.

https://mehnat.in/nri_pio_dowry_case_faq.html

NRIs and PIOs: 498a FAQs

प्रवासी भारतियों तथा भारतीय मूल के व्यक्तियों हेतु ४९८अ प्रश्नावली

• Introduction

• Extradition of Foreign Citizens to India, in Marital Disputes: Is it a possibility?

• Red Corner Notices and related questions.

• Letters Rogatory in Marital Disputes.

• Extradition of Indian Citizens to India in Marital Disputes.

• Proclaimed Offender Status.

• Deportation of Proclaimed Offenders to India.

• Lookout Notice / Alert / Circular.

• In Conclusion.

• Exemption from Personal Appearance in Court Proceedings for NRIs/PIOs.

Introduction

Top of Page

It is fairly common for highly educated men or men with technical qualifications or computer engineers aka techies and their families to get trapped in 498a cases. Many such men go abroad to seek their fortune. They –just like their brethren in India– epitomise the intelligent and educated man who wishes to rise in life through hard work and perseverance in his chosen field; the man who has no room in his life for lying or stealing to make money. It is therefore ironical –and very distressing for any justice loving person– that such men and their parents are accused of trying to get rich quick through the dowry route by the kind of women whose main common aim at the time of choosing such men is to get a comfortable life without hard work…..

The short answer is no. If you are a citizen of the country where you are living, then your government has the power to extradite you only in cases where you have committed a crime which is recognised by both countries as a crime. No country other than India considers dowry harassment a crime. A variation to this rule is found in certain countries which never extradite their own citizens, regardless of the charges against them. This of course does not take into account situations where the country which wants the accused starts bombing the country which is sheltering him in his capacity as its citizen.

Kishan Dutt Kalaskar
Advocate, Bangalore
6135 Answers
483 Consultations

4.8 on 5.0

Hello,

tell the court in US that the case has already been filed in India by the husband and therefore the subsequent proceedings before the court in US be quashed.

regards

Anilesh Tewari
Advocate, New Delhi
18077 Answers
377 Consultations

5.0 on 5.0

If he gets the divorce while the cases are pending in India. Ask the criminal court to issue a red corned notice so that he can be called to India.

As and when you will apprise the US court about the pendency of case in India, I am hopeful that the US court will drop the proceedings.

regards

Anilesh Tewari
Advocate, New Delhi
18077 Answers
377 Consultations

5.0 on 5.0

Try to file a reply or inform the US court that the said divorce is already pending in Indian court and matter is subjudice. You can take help of US embassy in India and do the needful. The US Divorce is valid in India but you need to inform the court that he has hidden the said fact before US court that already the divorce is pending in India.

Prashant Nayak
Advocate, Mumbai
31807 Answers
176 Consultations

4.1 on 5.0

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