• USA Divorce only one person is interested

Wife and Husband got married in India under Hindu marraige act and it is registered. 

Both wife and husband are currently in US in same state , living separately in same city. Only one of them files for divorce with the reason as irreconcilable differences, and the spouse don't want a divorce. It is NOT mutual consent divorce. 

As per the residing US state law, court can grant divorce even when only one of them want divorce. 

Is this divorce decree valid in India?
Asked 21 days ago in Family Law from United States
Religion: Hindu

Hello,

No this decree is not valid in India. 

Divorce on the ground of irreconcilable differences is not recognized in India. 

 

Regards 

Anilesh Tewari
Advocate, New Delhi
17241 Answers
266 Consultations

5.0 on 5.0

Such decree by foreign court wouldn't be enforceable and legally binding in India.

Only mutual consent or contested divorce decree by foreign court can be legally enforced in India.

Siddharth Jain
Advocate, New Delhi
4949 Answers
55 Consultations

5.0 on 5.0

No . It shall not be valid in India because irretrievable break down of marriage is not a valid ground of divorce in India.

Disputes in foreign court must be adjudicated as per Indian law. Then only foreign court order shall be valid in India .

Kallol Majumdar
Advocate, Kolkata
1787 Answers
2 Consultations

5.0 on 5.0

Such divorce not valid in India and have to file execution petition in India to enforce foreign court order. Dis consenting party can also file application in India to declare foreign court order null and void. 

Yogendra Singh Rajawat
Advocate, Jaipur
14414 Answers
19 Consultations

4.6 on 5.0

Divorce decree obtained by one party in US is not valid in India.

The Decree obtained for Irreconcilable differences is not enforceable in India.

S Srinivasa Prasad
Advocate, Hyderabad
949 Answers
6 Consultations

5.0 on 5.0

The divorce shall not be valid in India the other party can challange same and can file case in courts in India.

Shubham Jhajharia
Advocate, Ahmedabad
20700 Answers
80 Consultations

5.0 on 5.0

If the other party is not present and is not willing then that divorce WILL NOT be valid in India.

The other party has to be present and willing and should accept the jurisdiction of tge US district court in order for the divorce to be valid in India.

Regards 

Rahul Mishra
Advocate, Lucknow
4941 Answers
11 Consultations

5.0 on 5.0

no fault divorce is not valid in India 

 

2) divorce should be only on grounds recognised by HMA 

Ajay Sethi
Advocate, Mumbai
68775 Answers
4139 Consultations

5.0 on 5.0

- As per law, a Mutual Consent Divorce granted by foreign Court is considered as valid, legal and binding in Indian Courts by virtue of section 13 and 14 of CPC and also on account of comity of Nations.

- Further, if the matter is contested between parties in US Court, and after due adjudication and trial, divorce is granted , then it will be valid and binding in India. 

- If,the matter is uncontested, one party comes back to India where marriage had taken place and contest proceedings in India, divorce as granted by US Court will not be applicable in India. 

- Furtner, Ex-parte decree of Divorce granted by US Court will also not be recognized by Indian Court.

- Ex-parte means , One party divorce. 

 

Good luck and dont forget to rating Positively.

Mohammed Shahzad
Advocate, Delhi
964 Answers
19 Consultations

5.0 on 5.0

Once decreed in US it has to be declared as valid by Indian court.

Regards 

G.Rajaganapathy 

High Court of Madras 

Rajaganapathy Ganesan
Advocate, Chennai
1578 Answers
8 Consultations

4.9 on 5.0

Either party to the marriage can initiate the divorce proceedings, where the said marriage was solemnized or where the parties had lived last as husband and wife or where the respondent lived. When both of you residing at USA can invoke the US court jurisdiction to the divorce proceedings. The divorce decree granted by the US court, whether contested or mutual is valid one India. The decree should have been obtained after a fair process of trial with both parties equally represented. But the decree obtained through fraud/coercion is not valid in India.

When the opponent party is not willing to give divorce on mutual consent, you can approach the court for divorce by filing the divorce petition on the ground of Cruelty , desertion or other grounds as prescribed in the US law. In your case, the decree of  the US court valid in India and its order will legally bind both of you. 

 

Selva Perumal
Advocate, Chennai
287 Answers
30 Consultations

4.9 on 5.0

Greetings!

As Per Indian law this type of divorce is not valid in the eye of law that is not a genuine reason for divorce as per the hindu marriage act once legally wedded no divorce leaving and dying with the same person in certain circumstances if required then can file for divorce petition but your reason is not  valid!!

Ayesha Sultana
Advocate, Bengaluru
152 Answers

Not rated

1. Ex-parte divorce obtained in U.S.A. is not valid in India.

2. Mutual Consent Divorce, which is equivalent to "No fault divorce in U.S.A.", can be valid in India, if both parties were given equal opportunity and both attended the divorce proceedings.

Shashidhar S. Sastry
Advocate, Bangalore
2231 Answers
150 Consultations

5.0 on 5.0

No the diverse issued by the US court is not valid in India until and unless it is rectified by the family court in India as soon as you get the diverse from the US court you have to file a divorce petition in India in this regard to get the divorce decree issued by the u.s. court ratified by the family court in India as soon as you get the divorce decree from the Indian Court your divorce is valid and after a period of 3 months  if there is no appeal against the order  you can get married again

Vimlesh Prasad Mishra
Advocate, Lucknow
5639 Answers
19 Consultations

4.9 on 5.0

No, USA court Divorce decree is not valid in India. Only Mutual consent Divorce took on foreign land are valid in India.

Ganesh Kadam
Advocate, Pune
8142 Answers
68 Consultations

4.9 on 5.0

The order of divorce granted by USA court is not valid in India , more so, if the same is not consensual.

So you better file a contested divorce in India even though the same may take longer time.

Devajyoti Barman
Advocate, Kolkata
18099 Answers
260 Consultations

5.0 on 5.0

Such decree of divorce granted by foreign Courts need not to be validated in Indian Courts. However, as a matter of abundant precaution, one can approach to the Indian Court for declaring that divorce is valid and binding.

Mohammed Mujeeb
Advocate, Hyderabad
11519 Answers
4 Consultations

4.5 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.

It is a general rule that if one of the partners/ couple/party  contests divorce filed in Foreign Court  it would be said that he/she consented/ accepted  to the jurisdiction of that Court, in such a case the decree would be considered to be a conclusive or valid  one.

Where the wife consents to the grant of the relief by the foreign Court although the jurisdiction of the foreign Court is not in accordance with the provisions of the Matrimonial Law/ Private and Personal or International Laws  of the parties, to be valid and the judgment of such foreign Court to be conclusive.

A foreign judgment can be executed in two ways in India. The ways are as follows:

First, by filing an execution under Section 44A of the Civil Procedure Code. Section  44A states that a decree passed by Courts in reciprocating territories can be executed in India as if the decree was passed by the Indian Courts only. The Court also see the judgments  passed by foreign court as per sec.13 of Civil Procedure Code .

Secondly, by filing a civil  suit upon the foreign judgment/decree. For instance, the decree does not pertain to a reciprocating territory or a superior Court of a reciprocating territory, as notified by the Central Government in the Official Gazette, the decree is not directly executable in India.

 

Enforcement of foreign divorce decree in India

The substantial questions of law which arise for consideration in this appeal are as to whether the foreign judgment passed by the Supreme Court in the State of New York is valid and binding on the parties and whether the said judgment dissolved the relationship of marriage between the parties.

 

The case made out by the plaintiff in the plaint that no other forum save and except the forum in India having jurisdiction to entertain proceedings under the Hindu Marriage Act 1955 is competent to pass a decree of divorce is not acceptable in law. That the relationship of marriage governed by the Hindu Marriage Act, 1955 can be dissloved by foreign decree of divorce has been long recognised by the Courts in India.The decision reported in AIR 1975 SC 105 (Smt. Satya v. Teja Singh) is a complete answer to the aforesaid question. Their Lordships have held that foreign decrees of divorce including decrees of Sister States are to be either accorded recognition or to be treated as invalid depending upon the circumstances of each case. Section 13 of the Code of Civil Procedure makes a foreign judgment conclusive as to any matter thereby directly adjudicated upon between the same parties except-

 

 Section 14, C.P.C. creates a presumption that a foreign judgment, certified copy of which has been produced was a judgment pronounced by a court of competent jurisdiction unless the contrary appears on the record, but such presumption may be displaced by proving want of jurisdiction. Thus a combined reading of Sections 13 and 14 of the Code of Civil Procedure makes the position of law clear that if a certified copy of a foreign judgment is produced in a court of law directly adjudicating upon any matter between the same parties, the same shall be presumed by a court to have been pronounced by a court of competent jurisdiction unless the contrary is proved

 

Netravathi Kalaskar
Advocate, Bengaluru
3667 Answers
18 Consultations

5.0 on 5.0

It is called as exparte divorce.

If the same decree of divorce is passed in India by an Indian court then it is valid because the marriage was solemnised as per Indian laws, whereas the exparte divorce granted by a court of a foreign country for the marriage solemnised in India, is not legally valid, if the other person contests then it can be held invalid and illegal.

T Kalaiselvan
Advocate, Vellore
58597 Answers
742 Consultations

5.0 on 5.0

It will only be valid in India if not challenged by spouse. Otherwise it will not be valid

Prashant Nayak
Advocate, Mumbai
14277 Answers
24 Consultations

4.6 on 5.0

Divorve decree of foriegn court will be considered valid if either the divorce mutual or contested by both parties.

So only if the spouse who doesn't want divorce don't attend court for divorce proceedings that is Ex-parte divorce will not be considered valid in India.

Mohit Kapoor
Advocate, Rohtak
4623 Answers
1 Consultation

5.0 on 5.0

Ask a Lawyer

Get legal answers from top-rated lawyers in 1 hour. It's quick, easy, and anonymous!
  Ask a lawyer