• Divorce and second marriage

Hi,
My husband applied for divorce in US and after a struggle, it was provided under the grounds of irretrievable breakdown of marriage. We have a 4 year old child and I’m the primary parent with custody. He transferred the property bought under his name after our marriage which had my contributions too. I’m unable to travel to India to initiate any legal proceedings due to immigration issues. This divorce is not enforced in India legally. I would like to know if there’s any chance that this US divorce be made legal in India without my presence and is it legal for my husband to do second marriage without US divorce being enforced in India?
Asked 4 years ago in Family Law
Religion: Hindu

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17 Answers

Divorce decree is valid in USA 

 

2) husband can remarry in USA 

 

3) it would not be valid in India 

 

4) you can execute POA in favour of family member to initiate proceedings in India for validation of US divorce decree 

Ajay Sethi
Advocate, Mumbai
94522 Answers
7485 Consultations

5.0 on 5.0

1. The US divorce will be recognised in India, if both husband and wife were given equal opportunity to defend themselves and both attended court proceedings and divorce is granted under one of the grounds recognised under Hindu Marriage Act and is not an exparte divorce.

2. Since irretrievable break down of marriage is no ground under Hindu Marriage Act, it is not recognised in India.

3. It's not legal for your husband to get remarried in India without recognition of US divorce enforced  in India.

4. Without your presence the US divorce can't be enforced in India.

Shashidhar S. Sastry
Advocate, Bangalore
5068 Answers
314 Consultations

5.0 on 5.0

If you don't object to the said divorce in India then he can validate the same and get married in india

Prashant Nayak
Advocate, Mumbai
31807 Answers
175 Consultations

4.1 on 5.0

Foreign court decree order is valid in India only if the court adjudicate the subject matter of the case in accordance with Indian law, otherwise not. 

Irretrievable breakdown of marriage is not a valid ground of divorce under Indian law, hence the said USA court order shall not be valid in India and accordingly it will be deemed as no divorce between the couple has been granted.

Your husband's second marriage shall be void.

Kallol Majumdar
Advocate, Kolkata
2837 Answers
14 Consultations

5.0 on 5.0

These divorce proceedings were conducted in USA and both the parties were present. Therefore it is a valid divorce. Obtain a decree from te US district court and apply for its execution in India. You shall get a decree.

He can marry as the divorce is final and you have participated in it.

Yes you may enforce the decree in India through a lawyer.

Rahul Mishra
Advocate, Lucknow
14083 Answers
65 Consultations

5.0 on 5.0

See as far as US rules your husband is divorced though in case you challenge the divorce in India then in that case the divorce may be nullified as under Hindu law irreversible breakdown is not ground for divorce. 

Further to declaration of divorce in India and your legal divorced status you can give POA to family member to file a declaration suit before the family court.  

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

Hi

Since the Decree of Divorce is obtained because of "Irretrievable Breakdown" the Decree passed is a contested decree of divorce.

The decree obtained is valid in USA and both the parties are entitled to get married of his / her choice in USA.

IN order to get the same validated in India, you need to authorize either of your parents to get it validated in India to proceed further.

Contested USA decree of divorce is not enforceable in India.

S Srinivasa Prasad
Advocate, Hyderabad
2876 Answers
9 Consultations

5.0 on 5.0

This US court order will be not valid in India, only mutual consent divorce took in foreign countries are valid divorce in India.

 

So if you sent here in India Special POA to run the court legal proceedings matters on your behalf to anyone family members.

 

Than you can file Divorce case, plus mention in the property value which you were involve in purchasing so you want your share and alimony or lumpsum amount from him.

 

Otherwise you will impound his passport not responded to your legal notice.

 

He can't perform second marriage without Indian law divorce.

Ganesh Kadam
Advocate, Pune
12910 Answers
253 Consultations

4.9 on 5.0

The divorce decree received by your husband on grounds of irretrievable breakdown of marriage by the foreign Court is not valid in India as no such ground is available under the provisions of Hindu Marriage Act.

It cannot be enforced under any circumstances. If he does a second marriage during the subsistence of the first, he would be liable for an offence of bigamy under section 494 of the Indian Penal Code.

Siddharth Jain
Advocate, New Delhi
6303 Answers
102 Consultations

5.0 on 5.0

Did you participate in these proceedings at US and defended the divorce proceedings at US? In case yes, the verdict which was passed by the US Court after hearing both you and you husband would be recognized in India.

Hence, it is not mandatory for your husband to get this US Court order validated in India by way of filing any declaratory suit. In case you wish to continue to be in the legal battle, take appropriate recourse of filing appeal against this US Court order. 

Vibhanshu Srivastava
Advocate, Lucknow
9588 Answers
303 Consultations

5.0 on 5.0

- When the Foreign court has granted divorce based on ” ‘irreconcilable difference or irretrievable breakdown of marriage or similar no fault ground’ then court in India will not recognize that Foreign divorce , because this is not a ground for divorce under Indian divorce law. 

- Since, the said Divorce was granted on the ground of Irretrievable breakdown of marrige , hence this Divorce Judgement granted by the US court is not valid in India.

- As per Hindu Marriage , your husband cannot do second marriage, because Bigamy law will be appled against him , and he may go behind the bar. 

- You can file your cases in India through your Attorney, but on some specific occassions , your presence is mandatory as per law.

Mohammed Shahzad
Advocate, Delhi
13105 Answers
195 Consultations

5.0 on 5.0

Divorce not valid in India but have to challenge it in India within 3 years. Can give POA to any of your relative to assail divorce granted by foreign court.

If he will ile application In indian court to validate divorce, court will dismiss it because divorce granted on wrong ground which Indian law dose not consider.

Still some one should represent you court.

 

Yogendra Singh Rajawat
Advocate, Jaipur
22596 Answers
31 Consultations

4.4 on 5.0

1. The decree of divorce granted by the USA Court on the ground of "irretrievable breakdown of marriage"  is not accepted by Indian law.

 

2. So, the said decree of divorce granted by the USA court is not valid in India and both of you will still be considered as married couple unless the said foreign decree is adjudicated by Indian court (which will not be posible since the ground of  "irretrievable breakdown of marriage" doe3s not come under the list of grounds based on which one can seek decree of divorce in India).

 

3. He can not remarry in India with out getting tyhe decree of divorce in India.

 

4.If he remarries in India, he will be booked u/s 494 for bigamy of IPC punishable for jail term for a maximum period of 7 years with or without fine. 

Krishna Kishore Ganguly
Advocate, Kolkata
27191 Answers
726 Consultations

5.0 on 5.0

the decree awarded by the US courts are valid in india. However indian law does not permit ex-parte decree's. In order for the US divorce decree to be valid in india, both of you should have either contested the divorce or should have mutually consented to divorce in the US Court.

 

Mohammed Mujeeb
Advocate, Hyderabad
19299 Answers
32 Consultations

4.7 on 5.0

You don't have to enforce the order of US court in India If you both are legally divorced through contested case. 

If still you want to make the order valid in India then you can give POA to some of your close relative to contest on your behalf in India hire advocate in India file a petition for making the US divorce enforced in India. Court will grand a decree of divorce.

yes your ex husband can marry again without getting US divorve enforced in India.

Mohit Kapoor
Advocate, Rohtak
10687 Answers
7 Consultations

5.0 on 5.0

There is no such thing called enforcement of US divorce in India.

If the grounds for divorce granted in US is not legally valid grounds as per Indian laws for the marriage solemnised in India, then this divorce is not legally valid in India.

You can file a restitution of conjugal rights in India stating that he deserted you and obtained a divorce in US which is not valid as per Indian laws since the marriage was solemnised in India as per Indian laws.

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

Dear Madam,

The following information may kindly be read:

Married in India but Divorced in US

Everyone celebrated their wedding. The groom was an NRI engineer settled in Boston who came to Punjab to marry Manjeet, a beautiful village girl. No one had ever anticipated that this fairy tale would turn into a nightmare until the groom decided to abandon Manjeet and marry again.

He obtained a divorce decree in US. Subsequently, Manjeet filled a petition in an Indian Court. The court declared the divorce null and void although it hardly had jurisdiction over the foreign decree. Now, her husband is divorced in States but married in India.

According to NCW more than 50 women are facing the issue in Gujarat, Punjab and other parts of the country.

Problem

In such divorce cases the conflict of Private International Law becomes evident. Usually, one party obtains a divorce decree aboard which is not recognized in the Indian Courts on the ground that the foreign court had no jurisdiction over the matter. As a result the marriage is recognized in one country but annulled in the other. Such a person may be tried for Bigamy in India but in the other country he would not be considered guilty.

EX-PARTE JUDGEMENT:

An ex-parte divorce happens when only one spouse participates in the court proceedings.  In US, a state has the authority to determine the marital status of that person (who lives in that state) even if it does not have jurisdiction over the other spouse. Usually,the spouse who doesn’t live in the county where the divorce was filed would not be subject to its jurisdiction unless a status exception is present.

Many a times foreign courts grant ex-parte divorce decrees, with one party being unrepresented and thus unheard. Often the parties are unaware about these proceeding too. Due to various practical and financial difficulties; a party may not be able to contest the case. Generally, the wives deprived of maintenance and matrimonial property in these cases.

Recognition of foreign Judgments in India:

The Section 13 of Code of Civil Procedure deals with recognition of Foreign Judgments in India. SC in various decisions noted that a court would have competent jurisdiction if it recognizes the Act or law under which the parties are married. Further, If any foreign judgment is opposed to natural justice, founded on breach of Indian law or obtained by fraud; it would not be recognized in India.

For a court to have competent jurisdiction both the parties must voluntarily and unconditionally submit themselves to the jurisdiction of the said court.

In a leading judgment SC of India ruled :-

1. No marriage between an NRI and an Indian Women which has taken place in India may be annulled by foreign court.

2. Provision may be made for adequate alimony for wife in the property of husband in India and abroad.

Legislations In Other Countries

The (English) Foreign Marriage Act, 1892 and  Marriage (Overseas) Act, 1955 in Australia provide for a form  of marriage which may be availed by the parties marrying abroad where on of the citizens where at least one of the person to the marriage is a citizen. However, the acts do not affect the validity of these marriages.

Law Commission in its report proposed a legislation similar to the two for addressing the issue of foreign marriages. It suggested that the parties at the time of marriage must be free to choose the law by which they would be governed. Moreover, Indian citizenship should be a prerequisite for the parties to avail the benefits of the proposed legislation.

Recommendations

Precautions by the family:-

1. The family must verify credentials of the groom and his family. They must check his address proof, passport details, his place of work etc.

2. The girl must be made aware of her rights in the foreign country.

3. She must have a separate bank account near her place of residence in case of any emergency.

4. Marriage must be registered.

5. A photocopy of the groom’s passport and other credentials must be kept with the family.

Steps to be taken by the government

1. Registration of the marriages must be made compulsary.

2. Bilateral Agreement must be signed with other countries.

3. Spreading awareness and releasing information booklets to prevent fraudulent marriages.

4. Setting up of special cells for counseling and free legal advice in various states.

5. Collaboration with Ministry of Overseas Indian Affairs to deal with the issue.

6. There should be a uniform law for recognition and enforcement of foreign judgments in relation to matrimonial disputes.

7. Assistance must be provided to NRI wives.

Netravathi Kalaskar
Advocate, Bengaluru
4952 Answers
27 Consultations

4.8 on 5.0

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