• Divorce from USA as wife living in India without consent

Me and my wife married in Feb 2014 (registered as per Hindu marriage act) in India and separated since early Jan 2015 when she moved to India to live with her parents.

My wife and her parents initially were willing to give mutual consent for quick divorce.

Now they are not responding or co-operating to give mutual consent with an intention to extract huge amount of money as out of court settlement to give consent. They are changing the tone now to - "if you would like to take the girl you are welcome to". Though their intention is to send the girl to me and make her put a false case on me by provoking me etc... They have made that explicit few times with my parents but unfortunately my parents didnt record any evidence.

If I apply in USA for divorce without her consent, I am afraid they will create ruckus on my family and me, through police cases and media in India etc...

Please suggest if there is a way I can take divorce in USA without her consent and not face serious issues in India. I know such divorce is not valid in India, but at least I can start my life fresh from this hell, atleast in USA.
Asked 1 year ago in Family Law from United States
Religion: Hindu
1) you can file for divorce in USA  on grounds recognised by Hindu Marriage act 

2) if your wife participates in divorce proceedings it would be valid in INDIA 

3)your wife can move courts in  India and seek stay of divorce proceedings in USA 

4) she can also file 498A / domestic violence case in India against you 

5)in the USA even if one of the parties does not want divorce court grants no fault divorce 

6) your divorce decree may be valid in USA but would not be valid in INDIA wherein you would continue to remain married 
Ajay Sethi
Advocate, Mumbai
23195 Answers
1218 Consultations
5.0 on 5.0
Hello,
1) As you have been married under Hindu rites and ceremonies you can file for divorce on any one of the grounds applicable for divorce under the Hindu Marriage Act in the USA.The difficulty is that she will have to be served notice of the petition that you are moving and this will invite all the troubles you are anticipating including initiating dowry harassment case, case of Domestic violence and may even get a stay on the divorce proceedings in  the US.

2) The only possible alternative you have is to try and obtain a No Fault divorce in the US based on irretrievable break down of marriage or irreconcilable differences.A no fault divorce refers to a type of divorce in which the spouse that is filing for divorce does not have to prove any fault on the part of the other spouse. All a spouse has to do is give any reason that the state honors for the divorce. The most commonly given reason is "irreconcilable differences" or an "irreparable breakdown of the marriage." 
A spouse cannot object to another's petition for no fault divorce, as that objection itself is viewed by the court as an irreconcilable difference.

3) You need to be aware however that the divorce that you obtain thus is valid only in the US as your wife is not participating in the divorce proceedings. You will be divorced while in the US and your status will be 'married' when you are in India.
S J Mathew
Advocate, Mumbai
1950 Answers
65 Consultations
5.0 on 5.0
Do file case for divorce in USA which would be valid in India if contests the proceedings in USA. Do remember whether you file suit for divorce or not your wife can file case in India and cause trouble to you and your family.
Devajyoti Barman
Advocate, Kolkata
5189 Answers
54 Consultations
4.9 on 5.0
Whether you initiate the matrimonial dispute case in India or in US,the reactions from her may be the same thing i.e., she can be expected to contemplate criminal complaints against you and  your family members in India because their intention is to extract (extort)money from  you by any means,so this can be a golden  opportunity for them to achieve their greedy goals. 
So if you feel comfortable to file divorce case in US you may proceed with it, if at all she resorts to criminal complaint as apprehended, you may arrange to take anticipatory bail  and challenge her false cases accordingly in Indian  courts. You cannot stop her from initiating criminal complaints against you or your family. 
T Kalaiselvan
Advocate, Vellore
13985 Answers
127 Consultations
5.0 on 5.0
1. If you apply for divorce in US and succeed to obtain it the same may be challenged by your wife in an Indian court if she is still a citizen of India, whereupon the court may refuse to award recognition to it. Getting divorce in US will be a short term solution but an invitation to a long drawn legal battle in India.

2. You are entitled to file foe divorce in India on the ground of cruelty. The court in India would take longer than the US court to decide the case, but the judgment of an Indian court will be conclusive which cannot be reopened in US.

3. If she files any case in India you will be given sufficient opportunity to enter defence to contest it.
Ashish Davessar
Advocate, Jaipur
18088 Answers
448 Consultations
5.0 on 5.0
Under Section 13(e), Civil Procedure Code, the foreign judgment is open to challenge "where it has been obtained by fraud".while the spouse did not attend the proceedings either due to notice not being served or due to some other reason the divorce decree from US court could not accept Indian court.The jurisdiction assumed by the foreign court as well as the ground on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may be as follows: 
(i) where the matrimonial action is filed in the forum where the respondent is domiciled habitually
and permanently resides and the relief is granted on a ground available in the
matrimonial law under which the parties are married; 
(ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; 
(iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.

Better to file a divorce case in India other wise you can loose your money and time. My you can get a satisfaction that my life fresh from this hell but you run to ocean of hell
Ajay N S
Advocate, Ernakulam
1912 Answers
19 Consultations
5.0 on 5.0
first of try to settle the matter amicably with them if not possible then file a divorce case in India through POA or file a divorce case in USA and live your life in USA but in India this Divorce can be challenge.
Nadeem Qureshi
Advocate, New Delhi
3523 Answers
130 Consultations
4.9 on 5.0
Hi sir/madam, it will affect on you and your family members (parents, sisters and brothers of yours), your marriage was solemnized under Hindu Marriage Act,1955 you can take divorce only under this Act and the decree of divorce from the Indian family courts only. If it is possible in USA for the same, you can try with safe mode with smooth way.
C. V. Jadhav
Advocate, Bangalore
262 Answers
3 Consultations
3.8 on 5.0
1. You can file a divorce suit against her in USA on appropriate ground as per USA law,

2. She will be sent notice and if she does not appear, the suit will be decided ex-parte,

3. Please note that in certain states of USA, the divorced wife gets 50% share of husband's property after divorce which is not so in India,

4. Even if you get the ex-parte decree of divorce from USA Court, it will not be valid in India,

5. You shall have to file a divorce suit in India after completition of one year of marriage on  grounds acceptable by Indian law.
Krishna Kishore Ganguly
Advocate, Kolkata
12104 Answers
229 Consultations
5.0 on 5.0
1) DV is a continuing offence . your liability provide your wife maintenance, right to stay in matrimonial home continues . hence your wife can file Dv case 

2) your best option is divorce by mutual consent 

3) if wife is not agreeable then file for divorce in india on grounds of mental cruelty 

4) i case 498 A case is filed you can seek AB from sessions court .

5) your family members would receive a call from police station if FIR is filed 
Ajay Sethi
Advocate, Mumbai
23195 Answers
1218 Consultations
5.0 on 5.0
1. Can she file DV case(false) after one year of separation in India? I last met her in India about an year ago and then I went abroad and she decided to stay with her parents.
She can very well file a DV case after one year of separation too because it is a continuous offence. 



2. If I file divorce in USA on irreconcilable differences, what kind of risks I may have with my wife who may seek 498a, nri women's cell help, passport impounding, extradition, Red corner notice, Look out circulars etc.. and how to face them?
Filing a divorce case in US will not have an impact to your marriage solemnised in India as per prevailing laws in India, especially when you attempt to get an exparte divorce in US.  This will not be considered as valid divorce in India. 
If she lodges complaint against yo for the offences of cruelty and dowry demand harassments etc., the police shall on receipt of complaint, try to locate you, if that is not possible, they will register the case and keep it pending, or in case of pressure from higher officer or in return of the graft received, they may move this file to Court and seek court's permission for issuing look out circular. Neither Court nor Police  has  power to impound passport.  The procedure for impounding passport is clearly given in section 10 of the Passport Act, under which this reason is not included. Red corner notice cannot be issue under this circumstance. 


  
3. she lived with our family for hardly a week in India, do they still need to be worried about the false 498a case with the new supreme court guidelines?
If she has decided to include your parents in the case, there is nothing that will stop the police to conduct inquiry against them too.  The police if on inquiry found that they are innocent and no cases found against them, they shall not be impleaded in the case and their names shall be deleted from the charge sheet. The supreme court guidelines is actually instructions to police/investigating agency to conduct proper inquiry/investigation before filing charge sheet or making an arrest into the alleged offences.



4. How do I know from USA if my wife has made any complaints or FIRs with police in India? I am afraid when I come to India, the police arrest me at the airport.
The police will not arrest you at the airport, they have some other job to do instead of waiting for your arrival and arrest you.  In the event of she lodging a complaint with the police, the police will certainly call you over mobile, if there is no response then they may contact your parents, by which you can come to know that there has been complaint lodged against you in the police. 
T Kalaiselvan
Advocate, Vellore
13985 Answers
127 Consultations
5.0 on 5.0
1. She can file DV case anytime but her delay in filing the same will make it less effective,

2. There will be no LOC or Red Corner Alert or any such thing to be issued against you. As per the Supreme Court order, police will not make any arrest against 498A complaint without conducting an investigation,

3. No. 498A complaint has lost its teeth after the above order passed by the Apex Court,

4. I repeat that Police will not make any arrest without conducting an investigation in connection with her 498A complaint. You will get notice from the Police to appear before them for the purpose of investigation.

Krishna Kishore Ganguly
Advocate, Kolkata
12104 Answers
229 Consultations
5.0 on 5.0
Hi, If you applied for divorce in USA and you got the divorce in USA and it is not valid in India as your wife is not participating the proceedings.

2, She can file a DV case against you but the court notice has to be sent to you once you received the notice you can engage the advocate and contest the case on merits.

3. She can also lodge a police complaint for the offence punishable under section 498/A IPC, for this you can verify the same either in police station or court that any FIR was registered against you or not, Suppose she lodge the police complaint then you have to apply for anticipatory bail.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
1. DV case can be filed at anytime. 

2. Filing for divorce in US would be ill conceived unless you are sure she would participate in divorce proceedings and then not lay a challenge in India to the US decree. Apply for divorce in India. The judgment of Indian court would be conclusive even though divorce in India would take more time to come by as compared to US.

3. You will be given an opportunity by the court to contest all her cases in defence. Apply for pre-arrest bail if she files criminal charges against you in India. Nobody can lay hands on you if the court has granted you anticipatory bail.

4. Engage a lawyer in India now as lawyers have abundant sources in the police to find out the information which you desire to know. 
Ashish Davessar
Advocate, Jaipur
18088 Answers
448 Consultations
5.0 on 5.0

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