• Is no fault (mutual consent) divorce from US decree valid in India

Hi,

Me and my wife don't get well along and don't see any bright future by being together. We want to go to the nearest family court in New Jersey, USA and get divorced after following the legal process and attending court proceedings. This is by mutual consent one and there are no allegations or disputes involved.But I could not find any Mutual Consent Divorce option when I looked up online. It says it should be No-Fault divorce where neither party is at fault if you want to treat it as Mutual Consent one.

Please tell me whether the above makes sense and will be valid in India by default or an affidavit has to follow in Indian courts. I do not want to spend time travelling back and forth to India for this issue

Regards,
Manohar
Asked 2 years ago in Family Law
Religion: Hindu

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17 Answers

A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-

(a) where it has not been pronounced by a Court of competent jurisdiction;

(b) where it has not been given on the merits of the case;

(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;

(d) where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a breach of any law in force in India.

So these six conditions are fulfilled by such foreign judgment/decree of divorce then it will be valid for dissolving such Indian marriage as has been held by the Supreme Court of India in several of its judgments.

 

If your wife has accepted the authority of US court, it cannot be open to her to later question the authority of the US court.

 

Decree of Divorce by a foreign Court is also valid in India if there is no challenge by the other party. If both of you go for mutual consent divorce, then it is recognised and valid in India.

Ajay N S
Advocate, Ernakulam
3734 Answers
79 Consultations

5.0 on 5.0

Divorce by mutual consent is valid in India 

 

2) if your wife participate in divorce proceedings divorce decree would be valid in India 

 

3) you can file petition for declaration under section 7 of family court act that marriage is dissolved by US divorce decree 

Ajay Sethi
Advocate, Mumbai
81077 Answers
5010 Consultations

5.0 on 5.0

  • No fault divorce would serve the purpose.
  • After obtaining no fault divorce you can execute the same in Indian courts with the help of a lawyer by granting him a power of attorney.

Junaid Ali Khan
Advocate, New Delhi
173 Answers
1 Consultation

4.7 on 5.0

1) Mutual Consent Divorce means it's MOU between two parties and that you have to get signed in front of court and take judge signature and ciurt stamp.

Ganesh Kadam
Advocate, Pune
11931 Answers
121 Consultations

4.9 on 5.0

Hi,

The orders and decree passed by foreign court is fully valid and accepted as per Indian law. So, you may go for no fault divorce in USA.

Ganesh Singh
Advocate, New Delhi
6605 Answers
13 Consultations

4.5 on 5.0

1. Do get written consent of your wife while getting this one and there is proof in order that the decree of divorce was obtained with consent of your wife then you would breath easy.

2. It is true that foreign decree in certain conditions is not recognised in India and can be challenged in India but if it was done with mutual consent by submitting both of you to the jurisdiction of court it would be difficult for her to ignore the order passed by a USA court.

3. Now lie low and wait for her remarriage. Else if she starts making foul play you can go for mutual cosnent divorce in India.

Devajyoti Barman
Advocate, Kolkata
22141 Answers
331 Consultations

5.0 on 5.0

If wife appears and gives consent in the divorce in US and both parties are agreeing for same then it is mutual consent and same is valid in India.

Further for India a declaration suit can be filed based on this mutual divorce to declare your marital status and divorce valid 

Shubham Jhajharia
Advocate, Ahmedabad
25521 Answers
128 Consultations

5.0 on 5.0

1. Divorce decree passed by a foreign court to dissolve the marriage of two Indian citizens is absolutely valid in India.

2. A foreign decree can be impeached in India only on the ground that it has been obtained fraudulently or the marriage has been dissolved on a ground which is not recognised as a ground for divorce in India.

Ashish Davessar
Advocate, Jaipur
30308 Answers
881 Consultations

5.0 on 5.0

No fault divorce petition in US is just like petition of divorce by mutual consent in India. The divorce once taken from the US court is effective and valid in India. It can not be contested in India unless it is without the consent of one party.

Mohammed Mujeeb
Advocate, Hyderabad
19001 Answers
17 Consultations

4.5 on 5.0

  1. As per the information mentioned in the present query, makes it clear that you both have been residing in US, and want to go for mutual divorce.
  2. As per the law of our country and various recent judgments on this issue, it has been held that both should be residing in the same country at the time of taking the divorce.
  3. And also must be, the ground in which divorce has been sought, that ground must also be a ground of divorce in that country where the marriage was solemnised.
  4. Even, if it says as no fault divorce, but the intention of the same is almost replica of the mutual ground.

Sanjay Baniwal
Advocate, South Delhi
5464 Answers
13 Consultations

5.0 on 5.0

Dear Client,

No fault divorce is not valid in India if challenged by either party. In your case, it`s mutual consent diovrce, hence valid.

Yogendra Singh Rajawat
Advocate, Jaipur
21427 Answers
31 Consultations

4.4 on 5.0

Hi

If your marriage was solemnized in India then you need be divorced in accordance with Indian laws (HMA) 

Mutual consent in India takes around 1 month for the decree . 

If your marriage was performed in US then you have already searched the way out.

Thank You

Rahul Jatain
Advocate, Rohtak
5365 Answers
4 Consultations

4.8 on 5.0

1. The decree of divorce passed by the foreign court is not val;id in India unless it has been obtained by following Indian law. Your said planned decree of divorce is not as per Indiamn law like mutual consent divorce.

 

2. In nay case, no decree passed by the foreign court is valid in India by default.

 

3. You shall have to get the decree opassed by the foreign court validated by Indian Court against filing an application.

 

4. In your case, it will be prudent on your part to arrange to jointly file a mutual consent divorce patition in India which will be decidedf within 6 & 1/2 months from the date of its filing. 

Krishna Kishore Ganguly
Advocate, Kolkata
25165 Answers
726 Consultations

5.0 on 5.0

The marriage was solemnized as per the hindu marriage act and therefore the divorce can be granted only by the family court in India as they alone have the jurisdiction to grant divorce.

In case you both are ready to give divorce to each other in USA the divorce would be a valid one if both of you accept the jurisdiction of the foreign/USA courts. After obtaining the divorce decree you have to file an execution application for the execution of the decree.

Your divorce would be a valid one acceptable by the Indian courts.

Regards 


I just forgot and therefore must add that no fault divorce is similar to the mutual consent divorce in India and a decree obtained would be valid in India.

Regards 

Rahul Mishra
Advocate, Lucknow
11900 Answers
26 Consultations

5.0 on 5.0

Yes it's valid you need to validate the same in Indian court if required.

Prashant Nayak
Advocate, Mumbai
23089 Answers
49 Consultations

4.4 on 5.0

Factually, no fault divorce granted in a foreign country is not recognised as legally valid divorce in India for the marriage solemnised in India.

Hence you may better file a mutual consent divorce in India itself so that you can legally get separated and be free from all the hassles.

In fact you can get the mutual consent divorce disposed within ten days in India.

T Kalaiselvan
Advocate, Vellore
71133 Answers
1012 Consultations

5.0 on 5.0

Dear Sir,

No fault divorce is equivalent to mutual consent divorce.  normally the foreign courts decrees are not valid in India, since Hindu marriage Act is not recognized by foreign courts.  However when both parties surrender before the foreign court and get either no fault divorce or otherwise divorce is valid even in India.

Netravathi Kalaskar
Advocate, Bengaluru
4953 Answers
27 Consultations

4.8 on 5.0

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