• Married in India, divorce in US

Hi
we got married in India and both of us live in the US. We are getting a divorce in US . It is an at fault divorce and both of us agreed and signed the Marriage Dissolution Agreement. We have a court date set in the next month

What are the next steps to be followed ? Should we file for anything in India ?
Asked 2 months ago in Family Law
Religion: Hindu

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15 Answers

You would have to file petition under section 7 of family court act for declaration that marriage is dissolved by US divorce decree 

Ajay Sethi
Advocate, Mumbai
80564 Answers
4945 Consultations

5.0 on 5.0

You need to engage lawyer in India for the same 

 

2) petition has to be filed in family court 

 

3) notice would be issued to spouse 

 

4) if no objections are received court would on basis of certified copy of US divorce decree pass orders that marriage is dissolved by US divorce decree 

Ajay Sethi
Advocate, Mumbai
80564 Answers
4945 Consultations

5.0 on 5.0

Generally 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 Code of Civil Procedure and also on account of comity of Nations. Such decree of divorce granted by foreign Courts need not to be validated in Indian Courts. 

Many states  in US also allow a spouse to obtain a fault-based divorce. Grounds for a fault-based divorce include adultery, abandonment, domestic violence, and drug and alcohol abuse. Spouses may choose to obtain a fault-based divorce to avoid a required waiting period, or to influence the court's decisions regarding child custody, child support, alimony, and division of assets.

Sadly this divorce is not valid in India because 'irreconcilable differences/irretrievable breakdown of marriage' is not recognised in India as a ground for divorce.

as of today such decrees are not binding in India.

Hence a word of advise instead of going in for a no fault divorce – a fault divorce (cruelty) etc should be obtained, which is somewhat difficult, but unimpeachable in India.

 

If you are not certain about the grounds of divorce that are invalid in India, better opt for filing the same mutual consent divorce in India directly instead of beating around the bush.

 

 

 

T Kalaiselvan
Advocate, Vellore
70617 Answers
986 Consultations

5.0 on 5.0

For filing a divorce in India, if you both cannot travel to India, you both can execute a power of attorney deed in favor of your close relatives in India, who will sign the papers on behalf of you both and also can engage the services of a lawyer to take up the case.

The lawyer would file the joint application seeking divorce on mutual consent grounds  and the court may post the matter for second motion to be heard after six months.

You both can conveniently travel to India after the period of six months to appear before the court on the second motion to confirm your decision to dissolve your marriage by a decree of divorce on the grounds of mutual consent, before the court concerned. 

T Kalaiselvan
Advocate, Vellore
70617 Answers
986 Consultations

5.0 on 5.0

Since mutual divorce can be disputed in India by any party alter on, it is advisable either to go for mutual divorce in India or to get a declaratory decree on divorce granted in USA from Indian civil court.

Devajyoti Barman
Advocate, Kolkata
22032 Answers
325 Consultations

5.0 on 5.0

An execution application must be filed by you in India in tye district court to make the decree enforceable.

 

Rahul Mishra
Advocate, Lucknow
11797 Answers
25 Consultations

5.0 on 5.0

It has to be filed in the district court. An attorney has to be engaged.

Rahul Mishra
Advocate, Lucknow
11797 Answers
25 Consultations

5.0 on 5.0

You can go for mutual consent divorce for that you will need MoU and terms of conditions from both the side agreed. Do let me know if you require any help on it.

Ganesh Kadam
Advocate, Pune
11854 Answers
116 Consultations

4.9 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.

The ground ,No fault divorce is not legally valid in India. Decree of Divorce by a foreign Court is also valid in India if there is no challenge by the other party. If both of you go for mutual consent divorce, then it is recognised and valid in India.

Who wish to take benefit of Indian laws and legal system to avoid facing up to any foreign judicial system.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.

 

Indian Marriage solemnized in India according to Indian Matrimonial laws then the Indian courts will have territorial jurisdiction to hear & decide matter relating to this marriage & the foreign court's decision may or may not be acceptable in India hence best course is to get this marriage dissolved according to India court's decree of divorce.

The Indian Legal System categorizes Foreign Judgments and Awards from all the quarters of the world into two groups Viz. (a) Judgments and Awards coming from the ‘Reciprocating Territories’ of India and (b) Judgments and awards coming from the ‘Non-Reciprocating Territories’ of India.

 

US is not a Reciprocating territories of India , in such a case file a declaratory suit before family court to declare that marriage is dissolved by mutual consent divorce decree passed by Germany court. You can use the decree only as a document .The Court further observed that while adjudicating the suit on a foreign judgment, the duty of the Court is “merely” to see that the foreign Court has applied its mind to the facts of the case and the law on the point.

 

The Hon’ble High Court of Delhi firmly established the above mentioned principle by citing an old Judgment delievered in the case of Dr. Kulwant  Vs. Dhan Raj Dutt . In this case it was held that if a foreign court has strictly followed ‘the procedure’ and has given full opportunity to the defendant to appear and raise a defense, then, even if that judgment is passed ex-parte it shall be considered to have been decided on merits.

Ajay N S
Advocate, Ernakulam
3713 Answers
77 Consultations

5.0 on 5.0

Hi,  both of you voluntarily participate in the proceedings in the US court. Then divorce is valid in India also

Pradeep Bharathipura
Advocate, Bangalore
4932 Answers
255 Consultations

4.5 on 5.0

Hi,  both of you voluntarily participate in the proceedings in the US court. Then divorce is valid in India also

Pradeep Bharathipura
Advocate, Bangalore
4932 Answers
255 Consultations

4.5 on 5.0

1. See you and your wife are mutually agreeing for the divorce in US you can file a declaration of divorce in India.

Shubham Jhajharia
Advocate, Ahmedabad
25521 Answers
125 Consultations

5.0 on 5.0

Yes you engage an advocate to fule same before the family court in India after divorce is granted in US.

Shubham Jhajharia
Advocate, Ahmedabad
25521 Answers
125 Consultations

5.0 on 5.0

You can divorce in American even if you were married abroad. However, you can't file for divorce until you fulfill your current state's residency requirements, meaning that you have to live within that state for a period of time prescribed by the state's divorce laws

Harsh Kumar Sachdeva
Advocate, Delhi
38 Answers
3 Consultations

4.3 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. 

- Hence , if the said divorce petition is for mutual divorce , then only it is valid in India . 

Mohammed Shahzad
Advocate, Delhi
5973 Answers
60 Consultations

5.0 on 5.0

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