• Validity of mutual consent divorce decree in India

Respected Attorneys,
I was married in India and got divorced in US with "mutual consent". After 3 years, I am planning for a second marriage in India. 
1.) Can I marry legally in India and get a marriage certificate, without getting an Indian divorce decree?
2.) Can I produce my US divorce decree at a Marriage Registrar Office to claim a second marriage certificate?
3.) My ex-husband tried to remove my name from his passport in USA and they said US divorce decree is not valid and they want a divorce decree from India. Some local lawyers also asked me to get an Indian divorce decree.
4) Should I need to file an execution suit in India? I got divorce in November 2017. They say execution suit must be filed within 3 years. 
Problem is he is finding it difficult to come to India due to covid situation and his job which he will have to change.
Kindly advice as I am already getting late for re-marriage.
Kindly explain the process.
Asked 3 months ago in Family Law
Religion: Hindu

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27 Answers

Your divorce by mutual consent granted in USA would be valid in India 

 

2) for registration of second marriage it is advisable to file petition under section 7 of family court act for declaration that marriage is dissolved by US divorce decree 

 

3) no need to file execution suit 

Ajay Sethi
Advocate, Mumbai
78853 Answers
4742 Consultations

5.0 on 5.0

It is necessary to peruse divorce decree to advice 

 

2) since parties have separate voluntarily and entered into property settlement it would be regarded as divorce by consent of parties 

Ajay Sethi
Advocate, Mumbai
78853 Answers
4742 Consultations

5.0 on 5.0

No, divorce petition admitted and granted in Maryland USA is not valid in India.

You will have to apply for divorce by mutual consent under section 13 B of Hindu Marriage Act 1955 before Family Court in India.

You may process Divorce petition by mutual consent 13B in the absence of your husband by GPOA executed by your husband before Indian High Commissioner/ Counselor in Maryland USA appointing anyone of his blood relative particularly anyone of his parents to sign the petition on his behalf before the Court of Law.

It is possible and would be done.

Ramesh Pandey
Advocate, Mumbai
2523 Answers
8 Consultations

5.0 on 5.0

Respected mam......

Divorce decree granted to you by the US court will be considered as a valid decree in India...but for registration of second marriage you have to file petition under section 7 of family court act for declaration that marriage is dissolved by US divorce decree) no need to file execution suit itIts necessary to peruse divorce decree) since parties have separate voluntarily and entered into property settlement it would be regarded as divorce by consent of parties as per the provision of that court...

 

 

Thank you

Dinesh Sharawat
Advocate, Delhi
1244 Answers
12 Consultations

4.9 on 5.0

1. No, you have to get the US decree validated in India .or apply for mutual consent divorce again...it will take around 1.5 months. 

2. That would not be valid.

3. You need an Indian One(decree)

4. Execution suit is filed for a implementing a court's order. Where is court's order. You don't have any court orders, so what will you get executed. 

Do one thing...don't waste time here n there...

File a contested divorce case against him here in India....

He cannot appead due to travel restrictions....

So court will pass an ex-parte order of divorce in your favour. It will take around 3 months to do this....

So now you will be legally divorced in India 

Rahul Jatain
Advocate, Rohtak
5314 Answers
4 Consultations

4.8 on 5.0

1. You have to file a declaration suit before family court seeking declaration of your mutual divorce in US valid and your marital status as divorced. The court will pass an order in same and that can be used for registration if your marriage in India.

Shubham Jhajharia
Advocate, Ahmedabad
25499 Answers
111 Consultations

5.0 on 5.0

If both the parties has agreed to divorce in US and same is recorded in decree court may declare same valid in India.

Shubham Jhajharia
Advocate, Ahmedabad
25499 Answers
111 Consultations

5.0 on 5.0

1. The decree of divorce passed in India is not recognised as valid in Indian courts. 

2. However for the purpose of registration of your second marriage this decree of divorce is fine.

3. Check whether your wife has re married or not. 

4. If yes then there is nothing which can stop your marriage.  However if she is single then out if retribution she can dispute the divorce. 

5. So marry on foreign soil than in India. 

Devajyoti Barman
Advocate, Kolkata
21564 Answers
311 Consultations

5.0 on 5.0

1. If the mutual consent divorce was granted on the basis of other than no fault divorce,  then it is legally valid in India. 

2. For registration of your second marriage you may have to produce evidence of the marriage besides the divorce decree copy of divorce of previous marriage. 

3. You can file a declaration suit to declare that the divorce granted in USA is valid on the basis of the divorce decree order copy. 

Then you can produce the judgment of the declaration suit along with the US divorce decree copy,  which would solve your purpose. 

4. It's not an execution petition,  it shall be a declaration suit. 

There's no time limit for filing the declaration suit. 

T Kalaiselvan
Advocate, Vellore
68881 Answers
929 Consultations

5.0 on 5.0

This kind of reason is not considered as legally recognized divorce as per Indian law for the marriage that was solemnized in India as per Indian law. 

However you can file a declaration suit as suggested to validate the US decree of divorce. 

If that's not possible you can file a fresh divorce case in India and try to get an exparte orders which will be possible with the cooperation of ex husband. 

 

T Kalaiselvan
Advocate, Vellore
68881 Answers
929 Consultations

5.0 on 5.0

Dear Madam,

My answers are as follows:

  • Can I marry legally in India and get a marriage certificate, without getting an Indian divorce decree?

Ans: Yes, you can marry and get marriage certificate.

  • Can I produce my US divorce decree at a Marriage Registrar Office to claim a second marriage certificate?

Ans: Yes, certainly along with second marriage proofs.

  • My ex-husband tried to remove my name from his passport in USA and they said US divorce decree is not valid and they want a divorce decree from India. Some local lawyers also asked me to get an Indian divorce decree.

Ans: Yes, since you are married in India as per Hindu Marriage Act as such for more security purpose they put that condition. But Indian Courts recognize mutual divorce decrees but not ex parte divorce decrees.

4) Should I need to file an execution suit in India? I got divorce in November 2017. They say execution suit must be filed within 3 years.

Ans: You can file such execution or simply for another divorce case for getting divorce decree on the basis of mutual divorce decree of abroad court.

Problem is he is finding it difficult to come to India due to covid situation and his job which he will have to change.

Ans: you will get ex parte decree.

Kindly advice as I am already getting late for re-marriage.

Kindly explain the process.

My divorce decree was obtained from US Maryland court. There is no word in the decree that states divorce by "mutual consent". It states a voluntary seperation and property settlement agreement is incorporated but not merged. Is this considered a valid divorce by mutual consent decree in India?

Ans: If your presence was recorded in such proceedings then it is okay.

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

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.

 

A foreign Court Judgment and decree on divorce is as valid as it granted by Indian Court. But it has some restrictions. For this i discuss the provisions of law in this regard. Section 13 and 14 of CPC provided the provisions regarding the admissibility and enforceability of foreign judgments. Under Section 14 of the Civil Procedure Code, a presumption arises that the foreign judgment produced before the Court, was pronounced by a Court of competent jurisdiction. But, it is a rebuttable presumption. Section 13 of the Code makes a foreign judgment conclusive as to any matter thereby directly adjudicated between the same parties. But, Section 13 lists out six exceptions to the general rule that a foreign judgment is conclusive. The exceptions are :
(i) where it was not pronounced by a Court of competent jurisdiction;
(ii) where it was not given on the merits of the case;
(iii) where it appears on the face of the proceedings to be founded on an incorrect view of International Law or a refusal to recognise law of India;
(iv) where the proceedings were opposed to natural justice;
(v) where it was obtained by fraud; and
(vi)where it sustains a claim founded on a breach of any law in force in India.

Kishan Dutt Kalaskar
Advocate, Bangalore
5583 Answers
218 Consultations

4.8 on 5.0

Yes you can. You may file for execution of the decree first. You don't have to produce it unless asked for. File for its execution and then marry.

A suit for execution has to be filed. He may be represented through a power of attorney.

Rahul Mishra
Advocate, Lucknow
11500 Answers
20 Consultations

5.0 on 5.0

Yes that is a valid divorce decree as you had accepted the jurisdiction of US district court.

Rahul Mishra
Advocate, Lucknow
11500 Answers
20 Consultations

5.0 on 5.0

1. yes you can. 

2. Not required 

3. The decree of mutual divorce obtained from US court is valid in India. If however, some authorities are requiring verification of the same then a suit will have to be filed in Family Court. 

 

Anilesh Tewari
Advocate, New Delhi
17841 Answers
312 Consultations

5.0 on 5.0

I doubt that your's will be considered as a divorce by mutual consent

 

Regards 

Anilesh Tewari
Advocate, New Delhi
17841 Answers
312 Consultations

5.0 on 5.0

Actually you need to get the decree validated in India before such marriage. 

You can produce if they accept it's good otherwise you need to validate the same in Indian Court

Only validation is enough from India for the said US decree

Not execution suit validation proceedings

 

Prashant Nayak
Advocate, Mumbai
22089 Answers
49 Consultations

4.4 on 5.0

1. Mutual consent decree of divorce passed by a foreign court is valid in India for all legal and practical reasons.

2. Either party is free to remarry after 90 days from the date of decree.

3. You are free to register your second marriage in India on the basis of decree passed by foreign court.

4. If passport authorities have not removed your name from his passport despite the production of original decree then this is illegal on their part. They are bound to remove your name from his passport. He is free to file a writ petition in the High Court to direct RPO to remove your name.

5. There is no provision in law to execute a decree of divorce, let alone a decree of divorce passed by a foreign court.

Ashish Davessar
Advocate, Jaipur
29939 Answers
864 Consultations

5.0 on 5.0

1. Divorce obtained from US Court will not be recognised in India, as USA is not recognised as a reciprocating country by India.

2. It's better to apply for Mutual Consent Divorce in India, to avoid complications in future.

3.  A Hindu couple married in India under Hindu Marriage Act can only obtain divorce under the grounds recognised by HMA, which includes Mutual Consent Divorce.

4.  If your ex- husband cannot come to India due to Covid19, he can authorise his father or brother to represent him in court by providing a valid POA. However he will have to attend the Court personally, for one or two days or through video conferencing.

Shashidhar S. Sastry
Advocate, Bangalore
3203 Answers
175 Consultations

5.0 on 5.0

Madam,
You can very well marry legally in India and get a marriage certificate, without getting an Indian divorce decree because the decree granted by US Court is fully valid in India. You need to produce the said Divorce Decree to the Registrar Office for claiming the to certificate of Second marriage. Your ex-husband might not be aware of the law that there is no need to separate decree in India. You are also not required to file the execution case as well. The said decree is as good as decree by way of mutual consent.

Ganesh Singh
Advocate, New Delhi
6450 Answers
13 Consultations

4.5 on 5.0

- As per law, Divorce by mutual consent is final and binding, and thus cannot be challenged in any Court by either of the parties.

- The basis of such divorce is mutual consent and since both parties consented to the divorce, they cannot breach the agreement and decisions.

- Hence, the Decree granted under the mutual consent, and based agreement is final & unchallengeable by either of the parites. 

- Even, if he will try to breach the agreement and decision of the case, then it will be considered as Contempt of the court.

1. 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.

- Hence, you can marry legally in India without getting an Indian divorce decree .

2. Yes, very much admissible before the registrar OF marriage for claiming second marriage certificate.

3. Wrongly guided by the people and lawyer , as i mentioned above , the reasons of validity in India, i.e. a decree of mutual divorce is valid in India , and acceptable, and not need to validate in India. 

4. Why an execution petition ? to claim alimony mentioned in the said mutual divorce. 

Mohammed Shahzad
Advocate, Delhi
5310 Answers
51 Consultations

5.0 on 5.0

The phrase 'voluntary separation' in the US court order should be construed to mean and imply divorce by mutual consent in the context of Indian law.

Swaminathan Neelakantan
Advocate, Coimbatore
775 Answers
8 Consultations

4.9 on 5.0

If the divorce is settled by mutual consent between both and is granted by the foreign court then it is legally binding as well as valid. 

you have to file declaration petition in india and submit certified copies of mutual divorce decree. 

 

 

Mohammed Mujeeb
Advocate, Hyderabad
18689 Answers
11 Consultations

4.5 on 5.0

please share divorce decree copy, Without studying those documents it would be improper on my part to offer any opinion in the matter. 

Mohammed Mujeeb
Advocate, Hyderabad
18689 Answers
11 Consultations

4.5 on 5.0

1) Yes, Mutual Consent Divorce Decree / Order obtained in USA is valid in India.

2) Yes, you need to produce Decree obtained in USA, If the Registrar wants clarification, you may have to file an application under Sec.7 of Family Court's Act and get order from concerned Family Court based on US Decree.

3) As stated above, Sec.7 application will solve your issue.

4) No need to file execution suit in India.  No, it is not applicable to your case, since you separated by MCD.

 

S Srinivasa Prasad
Advocate, Hyderabad
2818 Answers
9 Consultations

5.0 on 5.0

Yes it would be considered as MCD, for the simple reason that, voluntarily separated and property settement agreement incorporated.

It can be considered by Indian Courts.

S Srinivasa Prasad
Advocate, Hyderabad
2818 Answers
9 Consultations

5.0 on 5.0

1. Get it declared in india.

2. No. You have to undergo the ritual as per Hindu customs.

3. Correct

4. No. Get it declared.

He need not be here. 

Regards 

G.Rajaganapathy 

High Court of Madras 

Rajaganapathy Ganesan
Advocate, Chennai
1804 Answers
8 Consultations

4.9 on 5.0

1. Yes the decree of US court stating voluntary separation will be valid in India as mutual consent divorce

2. You can register your marriage in India by providing divirce decree from US court.

3. If marriage registrar insist you for providing Indian divorce decree then you can ask your ex husband to go for mutual consent divorce in India and if he is not present in India then you can file a petition for declaration of divorce in India on basis of foriegn divorce decree. 

 

Mohit Kapoor
Advocate, Rohtak
10582 Answers
7 Consultations

5.0 on 5.0

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