• 498a case in India + DV / Maintenace in USA + Protection order in USA

I recently applied the US student VISA for my wife and then she ditched me.

She came to Indian got her F1 VISA stamped and then file 498a agaisnt me. I also came to the India attended CAW cell and then left for the USA.

She then came to the USA and filled "Dissolution of marriage" under irreversible condition. Then she filled protection order to claim maintenace , my house etc.

I didn't attended the hearing there and returned to India. I now filled DV case in India against her.

She in parallel file maintenance case against me in USA.

I want to know how things will go if she US court order the maintenance without my appearance in the USA. I am not planning to go back to the USA?

 Which DV will take the precedence ?

Can US court send her judgment to me in India ?

What I can do against as she's harrasing me at each and every step ?
Asked 4 years ago in Family Law
Religion: Hindu

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22 Answers

Any ex-parte order which she obtains in her favour in the US, cannot be executed/enforced by her in India.

Matrimonial cases instiuted here in India, including the DV case will have precedence.

Can US court send her judgment to me in India ?

And. If they are ex-parte, you are not expected to comply with it.

I think looking at the circumstances, you must apply for a divorce from your wife, here in India

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

Hello,

If both the parties are not in US then the order of maintainance passed there can not be enforced and they can not in particular enforce the same in India. You may continue with your legal proceedings against her in India.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

hello

you married her as per Hindu marriage act in India. the Indian law is applicable on you unless you submit to the US law. don't be intimidated by the summons. they cannot compel you to appear before them as the marriage can only be dissolved in India. the Indian laws will be applicable on Indian citizens.

you should file a writ petition in India before the HC for arrest stay and FIR quashing as now the SC has given the revised guidelines which are much more strict than the diluted version before.

regards

Rahul Mishra
Advocate, Lucknow
13760 Answers
65 Consultations

5.0 on 5.0

1) Don't worry foreign court order are not valid in India at all as per foreign marriage act. Only Mutual Consent divorce are valid as per foreign marriage act.

2) Let her do what she wants, you file case in Indian court as per Indian law.

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

1. DV case is to be filed by your mother and/or sister against your wife and not by you.

2. Any order passed by foreign court will be enforceable or considered as valid unless vetted by any Indian court.

3. If you are not planning to go to USA and if you have no property there, you need not worry for any adverse order passed by any USA Court against you since the same will not be considered as valid and enforceable in India.

4. US Court and/or her lawyer will send the copy of the Judgement of the US Court to you at your address in India.

5. You can file a divorce suit against your wife in India on the ground of cruelty to get rid of her for good.

Krishna Kishore Ganguly
Advocate, Kolkata
26614 Answers
726 Consultations

5.0 on 5.0

Husband can initiate proceeuunder DV act, do not worry

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

You cannot file DV case against your wife

2) husband cannot file DV case against wife

3) only aggrieved women can file DV case

Ajay Sethi
Advocate, Mumbai
87973 Answers
6207 Consultations

5.0 on 5.0

Wife an seek maintenance from husband

2) you can object to jurisdiction of US courts for divorce as marriage solemnised in India , divorce can only be on grounds recognised in India

3) you can file petition in India seek stay of divorce proceedings in USA

Ajay Sethi
Advocate, Mumbai
87973 Answers
6207 Consultations

5.0 on 5.0

Oh. I was thinking domestic violence for which DV generally stands for. Divorce case is maintainable on ground of cruelity

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Your divorce case is maintainable against wife

Ajay Sethi
Advocate, Mumbai
87973 Answers
6207 Consultations

5.0 on 5.0

Please note judgment of foreign court is not binding on you as our law is not recognised in their country so the order passed by US court cannot be enforced in India. On the other hand since you have filed divorce on ground of cruelty take ground of her filing false case against you will amount to cruelty. Decree passed by US court in your wife favour will not be binding on you so no need to contest the same.

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

1, The judgement and order of foreign can be executed in India as well but under certain circumstances.

2. once such circumstance is you will have to be ordinary resident of that country. Since you have left USA and make no immediate plan to settle once again in USA you can rest assured about the fall out of the orders passed by American court.

3. Well, as per the recent supreme court decision even the male member can also file a DV case.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

By DV, everybody here(all the lawyers including me) meant it to be a complaint under the Domestic Violence Act. Since, husband can't file a complaint under DV Act, everyone here was confused. Now you clarified that by DV you meant the divorce case you filed against your wife. Good.

divorce filed by you in India will prevail over the matrimonial initiated by your wife in US.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

DV (Domestic violence) can be filed only by a female sharing a common shared household. Order/judgement of Indian court will have precedence over the foreign court on the same issue.

Junaid Ali Khan
Advocate, New Delhi
173 Answers
1 Consultation

4.7 on 5.0

Hi,

You are suggested to strongly contest all her cases and win. The foreign decree is also enforceable in India under provisions of law.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

1) Its domestic violence and a female should file against another female and Not be male.

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

1. DV case is generally filed by women being victim of domestic violence against men and also women of her house who are living together in the same house.

2. In the instant case your mother and/or sister shall have to file the DV case against your wife for causing DV against her/ them.

Krishna Kishore Ganguly
Advocate, Kolkata
26614 Answers
726 Consultations

5.0 on 5.0

1. DV means domestic Violence in legal parlance.

2. However, to answer your query put in your first post being " Which Divorce Case will take the precedence ?", please note that both will run separately having no connection with each other.

3. The decree of divorce passed by foreign court will not be treated as valid in India whereas the same passed by Indian Court will only be treated as valid and enforceable all over the world.

Krishna Kishore Ganguly
Advocate, Kolkata
26614 Answers
726 Consultations

5.0 on 5.0

What kind of DV case have you filed in India against her?

As far as DV case is concerned though Act clearly is loaded in favour of women only and it does not contemplate any male person being aggrieved by domestic violence, Karnataka high court in a criminal petition No. 23571/2017, between Mohd. Zakir and Shabana and others, in view of all other observations the high court held that whether the provisions of DV act can be invoked or not is no longer a res-integra hence the petition is to be entertained.

The exparte decision given by US court is not enforceable in India.

The US court may not send the judgment copies to you in India.

You can file a divorce case also in India from your side.

T Kalaiselvan
Advocate, Vellore
78131 Answers
1543 Consultations

5.0 on 5.0

Can you pls. elaborate over "DV case is to be filed by your mother and/or sister against your wife and not by you". I have already filled the DV case in India.

Since you have already filed the same and it has been taken on the files of that court you need not worry about such technical issues.

T Kalaiselvan
Advocate, Vellore
78131 Answers
1543 Consultations

5.0 on 5.0

One clarification. By DV ( in my case ) I mean to say I filled divorce against her for cruelty.

So you have wrongly mentioned the divorce case as DV case.

That does not matter, you may even file a DV case also.

T Kalaiselvan
Advocate, Vellore
78131 Answers
1543 Consultations

5.0 on 5.0

Dear Sir,

The decrees passed by foreign Courts not binding upon Indian Courts in respect of marriages celebrated in India and covered under Hindu Marriage Act as per following judgment.

======================================================================================

VALIDITY DIVORCE GIVEN BY FOREIGN COURT

NOT VALID AS HINDU LAW IS NOT IN EXISTENCE IN FOREIGN LAW……EXCEPTIONS

The key rule laid by the Supreme Court can be summed up as follows: If a couple is married under Hindu law, (a) the foreign court that grants divorce must be acceptable under Hindu law; and (b) the foreign court should grant divorce only on the grounds which are permissible under Hindu Law. The two conditions make it almost impossible for a Hindu couple married in India to get a legally valid divorce from a foreign court since no foreign court is an acceptable one under Hindu Marriage Act and also because no foreign court is likely to consider the provisions of Hindu Marriage Act before granting divorce. The exceptions that Supreme Court has permitted to the above rule laid by it are as follows in a case where husband has filed for divorce in a foreign land: A) The wife must be domiciled and permanently resident of that foreign land AND the foreign court should decide the case based on Hindu Marriage Act. B) The wife voluntarily and effectively attends the court proceedings and contests the claim on grounds of divorce as permitted under Hindu Marriage Act. C) The wife consents to grant of divorce.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

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