Need to reapply in India for Pro-se Divorce granted in USA
I got my Pro-se divorce signed by Judge in Oregon today in my favor with full custody of child. The marriage happened in India in Dec 2004. Do I need to reapply for divorce in India based on USA divorce to ensure its accepted and valid in India?
Asked in Family Law from United States
If your divorce decree by a US court was pronounced after contest by her, then it will be considered as valid in India and you need not apply for divorce or the certificate once again in India.
As per the process, I had served notice to my husband, who is also in USA, post which court had given him 30 days to respond. As he did not respond or contest, the judgement was given and divorce was granted by the judge today. Please confirm if I need to apply in India based on this judgement for it to be acceptable in India as the marriage happened there. Thankyou.
Asked 1 year ago
1.The foreign judgment is valid in India and for this no separate application needs to be filed in India provided the other party participated in the divorce proceeding abroad and the ground on which divorce was granted is valid in India as well.
2. I am not sure the ground on which you got divorce in Oregon. Moreover the divorce appears to be ex parte.
3. In that situation the divorce does not appear to be valid India if contested by your husband in India.
4. Since both of you appear to be settled in abroad then you need not think much on this issue.
1) your husband can challenge grant of divorce in USA as he did not participate in divorce proceedings
2) had he participated in divorce proceedings divorce decree would be valid in India
3) you will have to file for divorce 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. Moreover, 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.
In most of the cases the foreign court divorce between Indian married in India according to Hindu Marriage Act,1955 has been held void by Indian courts and that happens mostly when such divorce is obtained by one of the Indian by was of one-sided decree of divorce or Ex-parte decree of divorce.
So in your case the court decree is not valid in India.You must file a case before the Indian court.
Hi, if the exparty order has been taken by you then it will not recognize by Indian courts but your wife is participate in the proceedings then you need not apply for divorce again in India.
You must file fresh divorce application in India because every divorce petition should be decreed on the ground mentioned in section 13 of HMA. according to section 13 of CPC every foreign judgment should be in accordance to Indian Law , where both the parties are Indian. In personal law it is always presumed by the law that a person always carries his personal law with him. Hence divorce should be granted on the grounds applicable in or authorized by Indian law.
1. The divorce decree granted by USA Court on the ground not acceptable by Indian Law is not valid in India,
2. The no-fault divorce decree where both the husband and wife attended the Court is treated as mutual consent divorce by Indian Courts,
3. In the instant matter you shall have to file a divorce suit in India.
1. The decree of divorce so granted by USA Court which has not been attended by your husband is not valid in India,
2. You shall have to file a Divorce Suit in India to get a divorce decree which is valid in India.
In Balasubramaniam Guhan vs T. Hemapriya ; Kedar Pandey v. Narain Bikram Sah; held by the court that every foreign decree need confirmation from Indian court and it is mandatory under execution of decree under CPC that foreign decree should be scrutinized under section 13 CPC. Thereby you should file a fresh petition for divorce.
If the ground for divorce obtained in USA is the same as recognised under section 13 of the Hindu Marriage Act, 1955, then there is no need to reapply for divorce in India and such a divorce decree is acceptable in India.
Though your husband is staying in US itself and the divorce case was decided exparte by a US court of law, he can very well file a petition to set declare the same as null and void since the exparte divorce in US for a marriage ceremonised as per Hindu laws in India cannot be considered as a valid divorce, hence if the situation warrants you may have to file a petition for divorce as per Indian laws too in India and this cannot be based on teh divorce on the US divorce decree. This should be applied afresh.
1. It is an uncontested divorce which has been granted by the court. The courts in India are loath to uphold foreign judgments which have been passed ex parte.
2. If your husband is a citizen of India he can challenge the judgment of Oregon court in an Indian court which can then set it aside as illegal. The Indian court will issue you the notice to contest his challenge.
3. You are not obligated to apply in India for validation of divorce granted by the US court. The judgment of foreign court is valid for all legal and practical reasons in India unless and until an Indian court rules it down as illegal.
4. In India the issue of child custody cannot be finally settled in divorce proceedings which are commenced unilaterally. As a corollary thereto, the Indian court may set aside the judgment in part in so far as it decides the issue of child custody.
5. You may on your own accord, instead of affording an opportunity to your husband to assail the judgment in India, apply to an Indian court to award recognition to the judgment of the Oregon court. This will bury the issue once and for all.