• Married in India and getting divorce in the USA with joint property involved

Hi, 
We got married in India and now want to file a mutual consent divorce in India. I have a few questions and want to clarify those:
1) Once we finalize a mutual divorce in the US, can it ever be challenged in India?
2) How to transfer the property joint ownership to one person? What's the entire process without both of us traveling to India?
Asked 8 months ago in Family Law
Religion: Hindu

13 answers received in 1 day.

Lawyers are available now to answer your questions.

20 Answers

mutual consent divorce decree, the decree granted by a Foreign Court is considered to be legal. 

 In case the property is registered in the name of both husband and wife, it would be in their best interest to decide their share in the property based on their contribution in their purchase and divide it accordingly. Alternatively, they would sell the property and divide the proceeds. 

Mohammed Mujeeb
Advocate, Hyderabad
19003 Answers
20 Consultations

4.5 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

You can execute POA in favour of family member For filing divorce petition, execution of gift deed if you are unable to travel to India on account of pandemic 

 

2) POA should be attested before Indian consulate 

 

3) Any party can file appeal against MCD decree 

Ajay Sethi
Advocate, Mumbai
82713 Answers
5254 Consultations

5.0 on 5.0

1. Divorce granted in USA even on mutual consent is amenable to challenge in India. 

2. One requires to transfer it by way of registered gift deed in which duly constituted Attorney can represent the respective parties in India. 

Go for mutual divorce in India only. 

Devajyoti Barman
Advocate, Kolkata
22452 Answers
353 Consultations

5.0 on 5.0

 

Dear sir,

Following information answers all your questions and also clears your doubts on the subject.

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

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.

When foreign Court divorce decree is valid/recognized/ Enforceable  in India .

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.

FAQ on foreign divorce decree ?

  1. Question : My husband or wife has filed divorce petition in USA/UK/Australia  Court for dissolution of marriage on grounds of “Irretrievable Breakdown of Marriage “ is this decree is valid in India ?

Ans. This means the couple can no longer live together as husband  and wife. Both partners, and one partner, must prove to the court that the marriage broke down so badly that there is no  chances of reconciliation or possible for staying together , but this ground is not available under Hindu Marriage Act in India and thus if marriage dissolved on this grounds is not valid or enforceable in India..

 

  1. My wife or Husband has filed a divorce petition in USA/ or in abroad , he or she has received the court summons and  after receiving the same relocate in India but court has passed the decree of divorce in his or her absence , Is Ex parte divorce is valid or recognized in India ?.

Ans : when an ex-parte decree is passed by a Foreign Court, it would not be valid and conclusive in India. divorce obtained on grounds other than the grounds enumerated under the Hindu Marriage Act if the parties were married under Hindu Law, as a divorce matter is governed by the law under which one gets married and not the law of the land where the party is residing.

  1. When foreign court divorce decree will be valid or recognized or enforceable in India ?

Ans : 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.

  1. How can I validate/ Enforce or Execute my foreign divorce decree in India ?

Ans: 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.

Kishan Dutt Kalaskar
Advocate, Bangalore
5897 Answers
297 Consultations

4.8 on 5.0

Hello, 

  1. If the divorce was as per the Act that governed your marriage and both of you were participants throughout the proceedings, it cannot be challenged in India later on. 
  2. You both can appoint PoAs to represent you which have to be registered and they in turn can get the garbage transfer on your behalf. Of a gift deed is executed, you won't have to pay a stamp duty for the transfer and only the registration charges will apply. 

S J Mathew
Advocate, Mumbai
3293 Answers
147 Consultations

5.0 on 5.0

1) Yes, you can go for Mutual Consent Divorce in US.

 

2) You can transfer property by assigning POA in front of Indian Embassy who sits in US and send that same copy to person on whose name you want to transfer the property and that same person can register in SRO. 

Ganesh Kadam
Advocate, Pune
12084 Answers
136 Consultations

4.9 on 5.0

Hi, Both of you are agreed for the terms and conditions of mutual consent and both of you present in the US Court, then the mutual consent divorce entered in the US is valid and it can't be challenged in the India. 

 

[2]  For transfer of the properties situated in India, you need to present before the Jurisdictional Sub-Registrar and transfer the same either executing  gift or release deed either favor.  

 

[3]  Either you must be present or else you can give Power of Attorney to your brother, mother or father to transfer the property.

Pradeep Bharathipura
Advocate, Bangalore
5020 Answers
269 Consultations

4.5 on 5.0

1. Only one of you can challenge it if not validated in india

2. You can do gift deed or one person can relinquish his/her right

Prashant Nayak
Advocate, Mumbai
23442 Answers
49 Consultations

4.4 on 5.0

Reply to 1 - Yes it can be challenged in India.

Reply to 2 - Yes it can be done executing General or Specific power of attorney appointing attorney authoring him to execute transfer deed.

Arihant Nahar
Advocate, Indore
125 Answers

4.8 on 5.0

1. if a mutual divorce is obtained in the USA, then based on that a petition can be filed in the Family Court in India to grant divorce by mutual consent on the same terms as agreed in the USA mutual divorce petition

2. obviously for filing the aforesaid petition, either both parties will have to personally visit India or grant a POA to some person in India who can do the needful on behalf of the parties

3. as there is a jointly owned property in India, you can first register a gift deed by one spouse to another and thereafter file the petition for grant of mutual divorce in India. Because a gift between husband and wife attracts stamp duty of only Rs. 200/- for a residential or agricultural property. 

4. the gift deed formalities can also be done through a POA holder

5. it is better to have two separate POAs - one for registration of gift deed and another for filing of petition in India - for obvious reasons

Yusuf Rampurawala
Advocate, Mumbai
6202 Answers
50 Consultations

5.0 on 5.0

1. If your marriage is dissolved in US by a decree of divorce on the grounds of mutual consent decreed by a court in US and the reasons stated there is is due to incompatibility, then that divorce is recognized legally valid in Inia.

However generally the US courts grant divorce with reasons ' no fault divorce' even in mutual consent cases, which is not recognised as legally valid in India.

In that case it can be challenged b y either of the party in India.

2. If either of the party would like to transfer their respective share in the property to the other spouse, then he or she can execute a registered gift deed in favor of the other party.

If both are not able to visit India for this purpose, then both of you can execute a power of attorney deed in favor of your close relatives to execute the said registered transfer of property on behalf of you and acceptance on behalf of the other party.

 

T Kalaiselvan
Advocate, Vellore
72799 Answers
1111 Consultations

5.0 on 5.0

These cases are very common in various Courts of India and Supreme Court of India. I can understand your concern in this regard. At times, despite our best efforts, life takes a turn for the worst. We may have wanted different things from life, but life’s got its own plan as well. A bad marriage is something which nobody hopes for, but at times, that’s exactly what we are given and forced to face head on. Marriages are hard. Divorces…even harder. Nobody enters marriage thinking about a divorce in the end. If some are unable to cope with the harsh realities of marriage, the only viable option in front of them is to approach the Court and seek legal separation by way of mutual consent divorce.

When a couple decides to file a divorce petition in a foreign country, they do so on the basis of the power given to them under the Indian law. The petition for mutual consent divorce will have to be made in accordance with the laws of the country in which the couple resides. The Indian laws will not apply to the foreign courts. The foreign court will then pass a decree recognizing the divorce in accordance with their procedure.

As an Advocate on Record in Supreme Court, day in day out I’ve been getting queries on the validity of a Foreign Divorces in India. This is an area fraught with many conflicting opinions and judgments full of legalese.

The Indian courts do not recognize the decree passed by the foreign courts if the decree so made is inconclusive under Section 13 of the Civil Procedure Code, 1908.

This means that the decree:

  1. Is not pronounced by a Court of competent jurisdiction.
  2. Has not been given on the merits of the case.
  3. Appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable.
  4. Was obtained opposed to the principles of natural justice.
  5. Has been obtained by fraud.
  6. Sustains a claim founded on a breach of any law in force in India.

A decree passed by a foreign court may be challenged and declared null and void in an Indian court on the basis of the above conditions.

In case of Y. Narasimha Rao And Ors vs Y. Venkata Lakshmi And Anr, the Supreme Court held that the divorce obtained from a foreign court was invalid if the provisions of the Indian divorce laws are not followed.

The Indian courts can refuse to validate a decree given by the foreign courts if the Indian law does not provide for such foreign court to have jurisdiction.

If a foreign court has the jurisdiction and the decree has complied with the conditions, then the foreign decree is held valid and conclusive by the Indian courts. Such a decree must also adjudicate on matters with regard to the property of both the individuals in the foreign country as well as in India, keeping in forefront the law applicable to the NRIs.

 

To my mind filing a divorce petition in India is a much smoother and safer route. The courts will receive a petition from an NRI for mutual consent divorce and the statements of both individuals will be recorded.

For purposes of appearance in court proceedings, if one party is unable to come, a power of attorney can be accorded to any person. This person should preferably be a family member. Once the statements of the individuals filing for divorce are recorded, the first motion is granted.

After the first motion has been granted, a period of 6 months is allotted as an interim period for the individuals to rethink their consent for the divorce. In this intervening time, either party can withdraw their consent. If neither party withdraws consent, then comes the second motion stage where the individuals have to be present to confirm their consent. The divorce is granted after this.

In the stage of second motion, both parties have to be present to confirm their consent by recording their statements in the court. Here, the physical presence of the parties is compulsory unlike in the first motion stage where a power of attorney could be granted.

The period of 6 months can be extended to 18 months from the date of first motion being granted. The courts have allowed for some amount of flexibility to be granted in this regard. Thus, an NRI can assign his consent and his presence between a period of 6 months to 18 months to acquire the final decree for mutual consent divorce by the courts.

Please understand that divorce decrees passed by Indian courts are valid in other countries just like marriages that are registered in India are valid in foreign countries. Basically, no foreign court is going to question if the decree passed by an Indian court on a matter of divorce of a couple married in India is invalid.

The divorce decree needs to be recognized in the foreign country if the couple jointly owns property in that country. Such recognition is gained by filing a petition for recognition in such country in accordance with their laws. This is the last legal requirement for finalizing a divorce in case the divorcing individuals are non-resident Indians.

At last I just want to say that, after analyzing how an NRI couple can acquire a mutual consent divorce in a foreign country and in India, it can be seen that both sides have their advantages and disadvantages. Therefore, the decision of where to file a mutual consent divorce petition must be carefully perused by both parties beforehand. It should also be agreed upon mutually to ensure that the process is completed quickly and is not dragged around.

Detailed discussion is required in such cases with complete facts. 

You may contact my secretary to connect with me for clarification. 

 

Gopal Verma, 

Advocate on Record & Amicus Curiae, 

Supreme Court of India 

Shri Gopal Verma
Advocate, New Delhi
304 Answers
5 Consultations

4.0 on 5.0

Yes that divorce would be final. 

For property you ma ugh give a PoA to anyone who is trustworthy and he will do the needful in your name.

Rahul Mishra
Advocate, Lucknow
12675 Answers
32 Consultations

5.0 on 5.0

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 it cannot be challenged in India. 

2. If the said joint person is relative , then either of the two can release his respective share in favour of other after executing a release deed.

- This can be done after giving POA in favour of any relative or nearest one in India. 

Mohammed Shahzad
Advocate, Delhi
7091 Answers
74 Consultations

5.0 on 5.0

File for divorce on grounds of mental cruelty in India 

 

in alternative wait for wife to file for divorce in India 

Ajay Sethi
Advocate, Mumbai
82713 Answers
5254 Consultations

5.0 on 5.0

You are aware that the no fault divorce granted in USA is not recognized as legally valid in India.

In that case there is use of filing divorce case in US.

You may allow her to file divorce case in India in which you can file a memo submitting to the decree prayed for by her in her divorce petition.

 

T Kalaiselvan
Advocate, Vellore
72799 Answers
1111 Consultations

5.0 on 5.0

you validate that us decree in India once you get the same. She needs to explain why she didn't participate in that proceedings in US

Prashant Nayak
Advocate, Mumbai
23442 Answers
49 Consultations

4.4 on 5.0

You shouldn't go ahead with the divorce in the US inthat case as it would not be valid in India. Wait for her to file it there.

Rahul Mishra
Advocate, Lucknow
12675 Answers
32 Consultations

5.0 on 5.0

- You can wait for her steps in India. 

Mohammed Shahzad
Advocate, Delhi
7091 Answers
74 Consultations

5.0 on 5.0

Ask a Lawyer

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