• Divorce in USA and property in India

I was divorce in US 
During our marriage we had bought LAND in India and in the divorce documents it was mentioned that the land is supposed to be sold and put all the money in my son's trust

My ex husband did not sell land at that time, and now after 10 years he is ready to sell the land but asking for his share of 50%

Can I show the divorce decree in India and force him to transfer the land in my son's name

The dastavej (documents of land ) are not done, but my ex husband name is on some financial paper of the land for the money we paid for the land

what are my options
Asked 1 month ago in Family Law
Religion: Hindu

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14 Answers

Issue husband legal notice to sell the land and place sale proceeds in son trust 

 

2) kindly clarify whether divorce decree was by mutual consent and validated by Indian courts 

Ajay Sethi
Advocate, Mumbai
82706 Answers
5254 Consultations

5.0 on 5.0

The terms of divorce agreement  are absolutely binding on both husband and wife. The clause in divorce that land will be sold and proceeds of sell will be put in the trust of son is valid and enforceable against husband. He cannot go back and claim any percentage in the proceeds of land. You cam compel him to transfer the land in your son’s name through Court if he is not ready. You can issue him a notice seeking performance of the terms of divorce and them file a suit for mandatory injunction against him for transfer of his share of land. Court will direct him to executed relinquishment deed in favor of son, if he refuses to do so, Court will issue direction to the Registrar to register relinquishment deed on behalf of husband.

Ravi Shinde
Advocate, Hyderabad
1011 Answers
8 Consultations

5.0 on 5.0

Hello, Dear Ms. H.

I have gone through the contents of your email posted herein. First of all your email is Complete silent in respect of the ownership of the said land, as you have not mention in which name the said land was purchased during the subsisting  of your marriage.

Secondly, you also not clarify that what was the terms of the conditions of the mutual divorce agreement, wherein the specific averment made in the mutual divorce petition file by  both you in the competent court of jurisdiction at USA. It is necessary to know for best advice,

 

Thirdly, if there is specific averment  made in the agreement in respect of the said property, as to how will go in favour of your son, if there is clearly mention like such a paras, then your husband have no right, title, interest over the property irrespective of the facts whether he has made part of whole payment of the land.

Fourthly, the title of the documents has to be clarify, as you have stated that the documents has not done, what dose it means? 

It is requested your good self kindly provide the detail as asked herein above for best advice.

Regards

G.L.Soni

Advocate

G. L. Soni
Advocate, New Delhi
77 Answers
3 Consultations

5.0 on 5.0

Hello,

  1. Yes, you can present the divorce decree obtained in the US and the terms and conditions that stipulated that the entire proceeds from the sale would in trust in favour of your son. You can either get him to transfer the property or proceeds from the sale to go to your son in its entirety.
  2. You need to also approach the court to obtain an injunction against your ex-husband from alienating the property without notice to you.
  3. It is important that you need to get more precise and accurate information about the documents that entitles your husband to the property and possibly obtain a copy of them. This will help your course of action in the court.

S J Mathew
Advocate, Mumbai
3293 Answers
147 Consultations

5.0 on 5.0

Under the Indian law there are two ways of getting a foreign judgment enforced.

  1. Firstly by filing an Execution Petition under Section 44A of the CPC (in case the conditions specified therein are fulfilled).
  2. Secondly by filing a suit upon the foreign judgment / decree.

More particularly says that;

  • Decrees from Courts in "reciprocating territories" can be enforced directly by filing before an Indian Court an Execution Decree.

Judgments from "non-reciprocating territories," such as the United States, AUSTRALIA, and GERMANY can be enforced only by filing a law suit in an Indian Court for a Judgment based on the foreign judgment. The foreign judgment is considered evidentiary.

The decree of divorce from US court can use as a document at the time filing any case  in Indian court. Normally your husband could not claim 50% share from the sale consideration of the property as he has assured to given the money to his son’s trust. So first send a legal notice to your husband. After that proceed against him .

Ajay N S
Advocate, Ernakulam
3826 Answers
82 Consultations

5.0 on 5.0

If the property is on joint names, then he is entitled to 50% share in it as per law.

Howe4ver if he had agreed to give away his share in the property to his son's name, and the same has been mentioned in the divorce decree, then you can file an execution petition in an Indian court  to execute the decree. 

Foreign decrees can only be executed in India under Section 44A of the CPC if they have been passed by a 'superior court' of any 'reciprocating territory'.

Reciprocating territories and superior courts are notified by the Central Government from time to time.

Further, only decrees or judgments under which a sum of money (other than taxes or other charges of a like nature or a fine or other penalty) is payable can be executed under Section 44A of the CPC.

Section 44A(1) provides that where a certified copy of a foreign decree has been filed in a District Court, the decree may be executed as if it had been passed by the District Court.

The Supreme Court has now taken the view that Section 44A only empowers the District Court to execute the foreign decree as if it had been passed by the District Court and does not deal with the period of limitation.

Accordingly, the limitation period for making an application for execution of an Indian decree, i.e. 12 (twelve) years from the date of the decree, does not apply to an application for execution of a foreign decree under Section 44A.

Instead, the applicable limitation period will be determined by the law of cause country (i.e. the reciprocating territory whose court passed the decree).

At the same time, the limitation period for making an application for execution of a foreign decree in India is 3 (three) years from the date on which the right to apply accrues.

Provided:

  • If the decree-holder does not take steps to execute the decree in the cause country, then the right to apply accrues when the decree was passed by the foreign court.

  • If the decree-holder takes steps to execute the decree in the cause country and the decree is not fully satisfied, then the right to apply accrues when the execution proceedings in the cause country are finalised.

You may contact an advocate in the local having expertise in such cases and proceed as suggested/recommended. 

T Kalaiselvan
Advocate, Vellore
72791 Answers
1111 Consultations

5.0 on 5.0

If the divorce was mutually done in the US then that divorce is valid in India and a divorce decree should be filed in the district court for execution. 

After execution the terms of the deal must be honoured otherwise file a contempt application against him.

Rahul Mishra
Advocate, Lucknow
12674 Answers
32 Consultations

5.0 on 5.0

1. If the land has been registered in both you and your husband's name, as reflected in the sale deed, which would have been registered in the jurisdictional Sub Registrar's Office, then both husband and wife are entitled to 50% share each over the land.

2.  If there's a registered document, which can prove that the husband had indeed agreed to deposit the entire money received by selling the property and depositing the proceeds to his son's trust in the divorce documents, then it has to be brought to your husband's notice. If there's no response for that, send a legal notice to resolve the issue.

Shashidhar S. Sastry
Advocate, Bangalore
3618 Answers
207 Consultations

5.0 on 5.0

Has it be mentioned in judgment that the land to be sold and deposit in son's name?

Who is the title holder?

Regards 

G.Rajaganapathy 

High Court of Madras 

Rajaganapathy Ganesan
Advocate, Chennai
1956 Answers
8 Consultations

4.9 on 5.0

1. In whose name the title deed of the land was registered? 

 

2. Was it registered in his name or in your joint names?

 

3. The decree of divorce passed by the foreign court has no validity unless it has been obtained following the steps/procedure required to be taken as per Indian law for obtaining mutual consent divorce decree.

 

4. Even in case of MCD, the decree passed by the foreign court shall have to be validated by the appropriate District Court in India.

 

5. You shall have to file an ap[plication to get your MCD decree validated by Indian Court on the terms which were agreed by both of you for giving consent for MCD

Krishna Kishore Ganguly
Advocate, Kolkata
25607 Answers
726 Consultations

5.0 on 5.0

Hi,

Divorce done in foreign land is enforceable in India. You will need to submit a certified copy of the decree in the court and get the award executed here. If the decree mentions that all the amount received it to be transferred to your son's trust then the same will be enforced by the Indian courts. Since ten years have passed you need to file an application condoning the delay as well.

You can reach out to me for detailed consultation on this matter. If you found this helpful please rate my answer. Thank you.

Anik Miu
Advocate, Bangalore
1528 Answers
18 Consultations

4.9 on 5.0

- If that divorce was mutual or contested , then only decree is valid in India. 

- However, if that condition of putting in sons trust is dully mentioned in the divorce documents , then your ex-husband is bond for the same .

- Hence, you can issue a legal notice to him for complying the said clauses of agreement. 

- If, refused then you son can file suit in India for the performance of the document . 

Mohammed Shahzad
Advocate, Delhi
7090 Answers
74 Consultations

5.0 on 5.0

Can I show the divorce decree in India and force him to transfer the land in my son's name



yes can be done
you need to approach the Family Court in India
you can also file a contempt petition in the USA Court against the husband

Yusuf Rampurawala
Advocate, Mumbai
6201 Answers
50 Consultations

5.0 on 5.0

You can show but the divorce decree will not be valid in india unless its validated in india 

you need to validate the same in india first to give it an admissibility

Prashant Nayak
Advocate, Mumbai
23442 Answers
49 Consultations

4.4 on 5.0

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