• My divorce is about to conclude in USA, My wife is planning to open new case in India.

Me and my wife reside in US and she was summoned for legal proceedings and followed all the legal paths to get to conclusion. I am ready to give whatever she needs, her only intention is to stop me from remarrying. I am assuming she is planning to open one more petition in India before final trail in US to make it complicated. Is it valid to open new case when case is already pending in US? If yes, which petition is considered final? Can I stop second petition filed in India?
Asked 8 months ago in Family Law
Religion: Hindu

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17 Answers

If she willingly participated in the US case you can raise that a ground to seek an order to stop her proceed with the case in India. But the facts of yye indian case needs to be studied before it. You can object the same in India on this ground. For any further assistance contact me on . Consultation applicable. 

Prashant Nayak
Advocate, Mumbai
23442 Answers
49 Consultations

4.4 on 5.0

When it comes to matrimonial matters, the Indian Diaspora across the globe often gets fuddled up in conflict of Family laws. And especially when it comes to divorce, things are assumed to get all the more hay wired.

However little is it known that the position with respect to the matter pertinent is very much clear.

Indeed, the divorce petition can be filed as well as settled outside India even if the marriage has taken place in India.

As a general rule under Section 13 of the CPC, any foreign judgement is valid and conclusive in India if it does not falls under certain exceptions.

The Apex Court of India lay down and clarified the law for foreign matrimonial judgements in the country in the case of Y. Narsimha Rao and ors. vs. Y. Venkata Laxmi and anr.

Brief Facts of the case

Y. Narsimha Rao and Y. Venkata Laxmi were married in Tirupati, India as per Hindu Customs in 1975.

They separated in July 1978 and Mr. Rao filed a petition for dissolution of marriage in the Circuit Court of St. Louis County Missouri, USA.

The Circuit Court passed the decree for dissolution of marriage on February 19, 1980

On 2 November 1981 Mr. Rao married another woman.

Mrs. Laxmi filed a criminal complaint against Mr. Rao for the offence of bigamy.

Judgement

Although the Court did not recognize the decree passed by the US court but it did lay down the clear law with respect to divorce decree in such matters. The Court carved out the exceptions as to in which conditions the divorce decree would NOT be recognized in India.

Such exceptions are as follows:-

When the decree is granted by court which is not authorized by Indian courts to grant the same

When one side is not heard or his/her submission is not taken on record

When the divorce is granted on the ground which is not recognized under Indian matrimonial laws

When the proceedings are against principles of natural justice

When the decree is obtained by fraud

Thus if the divorce matter does not falls within the ambit of any of the exceptions mentioned here in above then it can be proceeded unhindered in any foreign court even if the marriage takes place in India.

 

Aveek Bose
Advocate, Kolkata
1222 Answers
9 Consultations

4.7 on 5.0

I presume marriage was solemnised in India 

 

divorce in USA can only be on grounds recognised by HMA

 

3) your wife can object to jurisdiction of US courts and file legal proceedings in India for stay of divorce proceedings in USA 

Ajay Sethi
Advocate, Mumbai
82713 Answers
5254 Consultations

5.0 on 5.0

Yes why not, the divorce held there and orders passed will not be accepted in india and you can face maintenance case as well as 498a and many more cases here in india and i have done many of them and all are successful

Aveek Bose
Advocate, Kolkata
1222 Answers
9 Consultations

4.7 on 5.0

1) she can file petition in India for RCR 

 

2) she can seek stay of proceedings in USA 

 

3) you can object to grant of stay  as she has participated in divorce proceedings in USA

Ajay Sethi
Advocate, Mumbai
82713 Answers
5254 Consultations

5.0 on 5.0

For this reason I always advise to dissolve the marriage in India only. 

Since foreign divorce is not recognised in India she can initiate slew of measures against you even if you get decree of divorce from USA.

There is no way to stop her from doing this as well. 

Therefore settle with her amicably as per provision of law in India. 

Devajyoti Barman
Advocate, Kolkata
22452 Answers
353 Consultations

5.0 on 5.0

No, it's not possible to file another complaint when one is ongoing. 

 

Sanjna Vaishnav
Advocate, Gandhinagar
57 Answers

Not rated

Yes, she can open new petition in India, if it's normal US court divorce order. Because US court order is not valid in India.

If you go for Mutual Consent Divorce then it will be valid in India. For Mutual Consent Divorce you both have to sign MoU and submit in the US court get order passed on it and later on submit in Indian court. In this way you can put barriers on whatsoever appeal she will be applying in India.

Ganesh Kadam
Advocate, Pune
12084 Answers
136 Consultations

4.9 on 5.0

Ideally not

Prashant Nayak
Advocate, Mumbai
23442 Answers
49 Consultations

4.4 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. 

- Since she agreed for divorce through mediation , it means you both were going to take divorce on mutual ground, If decree will be passed there , then it will be valid in India. 

- But , she can refuse for final legally , and also can file petition in India as well. 

Mohammed Shahzad
Advocate, Delhi
7091 Answers
74 Consultations

5.0 on 5.0

If your marriage was solemnized in India as per Indian laws,  then she can very well file a matrimonial dispute in India ignoring the proceedings going on in US.

Instead of wasting your energy to prevent or stop her from taking any legal action against you in India in this regard. 

She has full ghts to get her grievances redressed through the provisions of Indian law against injustice meted out to her. 

Therefore it's better you become little flexible and get into a compromise settlement with her so that she do not resort to legal action against you again in India. 

T Kalaiselvan
Advocate, Vellore
72799 Answers
1111 Consultations

5.0 on 5.0

She can file a criminal case,  domestic violence case,  maintenance case in India and the proceedings going on in US will not restrict or bar her from moving on with her proposed case, if any. 

 

T Kalaiselvan
Advocate, Vellore
72799 Answers
1111 Consultations

5.0 on 5.0

1. If you two were married in India, then the contested divorce decree passed by the USA Court will not be considered as valid in India.

 

2. She has no restriction to file the divorce suit in India which you shall have tom contest.

 

3. If you do not get the decree of divorce from the Court of India, then both of you shall be considered as husband and wife in India as per law.

Krishna Kishore Ganguly
Advocate, Kolkata
25607 Answers
726 Consultations

5.0 on 5.0

Yes, she can file a divorce suit in India also afresh.

Krishna Kishore Ganguly
Advocate, Kolkata
25607 Answers
726 Consultations

5.0 on 5.0

As per the latest Supreme Court judgment which had held that a decree of divorce granted by a foreign court is not valid in India if the ground is not recognized by Indian law.

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 his wife has accepted the authority of US court, it cannot be open to her to later question the authority of the US court.In general, it can be said that if the partner contesting the divorce actively attends the divorce proceedings in the foreign court, the chances of his or her being able to later successfully approach Indian courts against an unfavorable judgment of the foreign court are very low. Indian courts, or for that matters courts anywhere in the world, do not wish to encourage court-shopping

She can file a case in India any times lease do understand that ,

When both the parties were India & married in India according to any of the India form of marriage then the dissolution of such marriage should be done through the Indian Family Court of the competent jurisdiction where the marriage took place or where either of the parties usually reside or where both the parties last resided together.Who wish to take benefit of Indian laws and legal system to avoid facing up to any foreign judicial system

Ajay N S
Advocate, Ernakulam
3826 Answers
82 Consultations

5.0 on 5.0

 

- Yes, she can very well file new case in India but provided decree of divorce from other friends nation, you can obtain decree of divorce in your favour.

- If needed any further assistance please feel free to connect anytime.

 

Regards

 

Vivek Arya

Vivek Arya
Advocate, Gurgaon
738 Answers
6 Consultations

5.0 on 5.0

Once you obtain a decree of divorce from USA, the same shall be binding on all the courts and would be placed as an evidence in the case filed in India. On such grounds, you may get the indian case dismissed. 

Sumit Rana
Advocate, New Delhi
19 Answers

Not rated

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