• How to respond to a divorce case filed by husband in USA

Due to family problem my husband ask me to quit my Job in USA and asked me to go back to India on Nov 2021 along with my Toddler son who was 2 years old. He did not talk properly after we came back to India and stopped picking up calls by march 2022 and did not inform where he moved. Then he just msg every Friday to talk only to my son for sometime .Both me and my husband are hindu and Indians and my Son is US citizen.
 Suddenly in the month of August end got a Summons from USA that he filed "Divorse and ex-parte child custody" it came on 27th and hearing was on 31st at USA. My Visa got expired at Mar 2022 and he did not provide any details to renew and book drop box appt in India to renew my expired Visa. He was well aware i wont be able to make it on 31st. So one of the lawyer recommended to email to court that he has hidden the fact that i don't have valid Visa to travel and don't have time or defend that all his allegation are false. 
On 31st hearing i got a email back telling that the hearing is on 19th Sep and can appear in Zoom call. In between this time filed a "Guardianship" in India in the Judi striction i am currently in. And lawyer recommended to put "Restriction of Conjugal Rights" so planning to do that next.
But my doubt here is he is asking me to ignore the "exparte and divorse case" in USA but i am just thinking is there any way to let US judge know atleast i deny and cant contest because i wont be able to hire lawyer in US and fight and have no resources to do anything there. Or shall i just ignore as my lawyer says and let them pass it and he has to come to India and attend and win the current case i am filling in India for child custody and Restriction of conjugal rights. Somebody can pls give me suggestions .
Asked 3 months ago in Family Law
Religion: Hindu

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14 Answers

You can file petition for RCR ie restitution of conjugal rights under section 9 of Hindu marriage act 

 

2) seek stay of divorce proceedings in USA as marriage has been solemnised in India and divorce should be on grounds recognised by HMA 

 

3) seek sole custody of your child 

 

4) also seek maintenance for yourself and child 

 

5) no fault divorce decree obtained in USA is not valid in India as it is not ground recognised by HMA 

 

6) you can in your reply object to jurisdiction of US courts as marriage has been solemnised in India and divorce should be on grounds recognised by HMA 

Ajay Sethi
Advocate, Mumbai
89092 Answers
6362 Consultations

5.0 on 5.0

There is no need to bother about any divorce proceedings in U.S.  as any divorce obtain against Indian citizen from Court in foreign country is absolutely not valid in India and cannot be enforced. It is not even worth the paper on which it is typed. He cannot claim custody of child till child reached five years, even if he is u.s. citizen. Your marriage is governed under Hindu Marriage Court. You can file all sort of cases against him from India, get a LOC and Red Corner Notice issued  against him. You can seek his extradition to India through Federal Government of U.S.

 

I am forwarding rights  she have under law, make use of it against him from India.

You have many options. Law is in favor of women. Following  remedies are available to you…

  1. Under Domestic Violence Act, 2005—
  2. You, any relative or friend on your behalf or an Advocate engaged by you can submit an application to the Magistrate or police at the  place of your residence. A notice  will be served on husband U.S. and he will be asked to attend the court on a particular date. If he fails to attend court, he will be arrested by police and brought to court. You can obtain any or all of the following  orders…
  3. Monetary reliefs:
  4. To meet the expensed incurred and losses suffered as a result of domestic violence;
  5. Loss of earnings;

  • Medical expenses;

  1. Maintenance for wife and children;
  2. Lump sum payment.
  3. Compensation: compensation and damages for injuries, including mental torture and emotional distress.
  4. You can file a case under Section 19 (b) or (d) Domestic Violence Act, 2005, under which  Court will order police to take to the matrimonial house in India  and keep you there. Court can also order husband not to enter within 200 meters of house. If he obstructs you, police will arrest him.

  5. Code of Criminal Procedure, 1973, Section 125: you can obtain monthly maintenance for yourself and child. Employed or not, earning or not he is bound to pay you and your child maintenance.

  6. Indian Penal Code, 1860: You can file criminal case under Section 498A if there is cruelty or demands of dowry for which punishment is imprisonment upto three years.
  7. As per Section 6 of Hindu Minority and Guardianship Act, 1956, custody of child below five years will be with mother with visiting rights to father and custody after five years of age will be father with visiting rights to mother. Though this is general rule, this is not fixed law, in special circumstances child above 5 years especially when the child is girl, custody is given to mother with visiting rights to father. 

 

Ravi Shinde
Advocate, Hyderabad
3153 Answers
42 Consultations

5.0 on 5.0

The divorce will not b3 valid in India as you both are Hindus and married according to the Hindu marriage act. Now he can only get divorce in India. The divorce granted by the US district court is not valid in India. You should not accept the jurisdiction of the US district court and say so in the email.

Moreover, file a police complaint against him under sections 498A [deleted] and other sections ie 406 and 420.

File for custody. Even if he gets the divorce jt is not valid.

Rahul Mishra
Advocate, Lucknow
13846 Answers
65 Consultations

5.0 on 5.0

Don’t be panic. As per the latest Supreme Court judgment which had held that a decree of divorce granted by a foreign court is not valid in India if the ground is not recognized by Indian law.

 Ex party divorce decree and custody of child from US courts are not valid in India. Object the jurisdiction of US Court. Who wish to take benefit of Indian laws and legal system to avoid facing up to any foreign judicial system.

 It was ultimately decided by the Hon’ble Supreme Court of India that once the defendant has submitted to the jurisdiction of a foreign Court, a decree passed by that court, even if ex-parte, is a valid foreign decree.

. 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.

If someone has accepted the authority of a court, it cannot be open to the person to later question the authority of the court. In general, it can be said that if the partner contesting the divorce actively attends the divorce proceedings in the foreign court, the chances of his or her being able to later successfully approach Indian courts against an unfavorable judgment of the foreign court are very low. Indian courts, or for that matters courts anywhere in the world, do not wish to encourage court-shopping. The well-accepted universal principle of law can be stated as – If someone has accepted the authority of a court, it cannot be open to the person to later question the authority of the court.

There is no need to file a custody application if you have physical custody of the child now. You must file a petition for maintenance, protection and alternate accommodation under DV in India.

If you send an email to the court, you should object to the court's jurisdiction because marriage was solemnised in India and divorce should be on grounds recognised by the Hindu Marriage Act.

Ajay N S
Advocate, Ernakulam
4010 Answers
96 Consultations

5.0 on 5.0

You deny that you can't afford lawyer in US and he should incur your travelling and lawyer expenses

Prashant Nayak
Advocate, Mumbai
28106 Answers
93 Consultations

4.4 on 5.0

The divorce case he has filed in USA against you, even if decreed in his favor, is not recognised as legally valid divorce in India for the marriage that was slmeninsed in India as per Indian laws. An exparte decree of divorce decree passed by a foreign court is not valid in India. 

You may continue with your cae for restitution for conjugal rights. 

The child is here with you under your care and custody and the also as the child has not completed 5 years of age, it shall remain in your custody until then.

 Even if he is getting a child custody case in his favor he has to execute the same in the indian courts to take the child hence you can challenge his exparte custody case in India properly. 

T Kalaiselvan
Advocate, Vellore
79250 Answers
1618 Consultations

5.0 on 5.0

Dear Client,

If a partner has been deserted by the other, he/she can use restitution of conjugal rights against the other partner. The guilty partner, through an official order, can be asked to live together with the aggrieved partner. Restitution of Conjugal Rights is a process through which either party can gain certain specific legal rights against the other party. The main right is the right to live with the guilty party. As a remedy, the husband or the wife can file a petition and involve the court for restraining the conjugal rights between the spouses.

A decree for Restitution of conjugal Rights can be passed only in the case of a valid marriage.

The Court must be satisfied that the Petitioner has a bona fide desire to bring his/her partner back to him/her. If the Court finds out that the Petitioner’s conduct debars him/her from seeking relief of resuming life with his/her spouse, or if any fact or action shows that the Petitioner is taking advantage of his/her wrong, the Court will dismiss the Petition.

Similarly, if the Court is satisfied that the Petitioner has good ground and the facts and circumstances stated in the petition are true and in favor of the Petitioner, the other party (Second party) will have to prove that the spouse withdrew from the Petitioner’s life for a reasonable excuse.

A parent does not have to share custody of their children, and it can either be shared or not. In the event that the parents cannot agree on a joint or non-joint guardianship, the court will decide who will have full custody of their child. In most cases, the court will ask both parents what they want if they cannot agree.

Guardianship of a minor child is the most common type of custody that India recognises. This type of custody is when one parent holds the title to their child’s care, maintenance, and education. The other parent has visitation rights, but they are not in charge of day-to-day care and education.

 

Thank You.

Anik Miu
Advocate, Bangalore
5374 Answers
58 Consultations

4.9 on 5.0

 As per law, 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. 

- Further, if the matter is uncontested, one party comes back to India where marriage had taken place and contest proceedings in India, divorce as granted by US Court will not be applicable in India. 

- Further, Ex-parte decree of Divorce granted by US Court will also not be recognized by Indian Court.

- Hence, the decree of divorce granted by the US court in your absence having no legal value in the eye of law, and till date you are his legal wife , and having all the rights to claim from him. 

- You can file cases against him under the provision of DV Act and 125 CrPc for claiming the maintenance and residential right from him . 

- Further, you can also file the petition in India for claiming the sole custody of the child. 

Mohammed Shahzad
Advocate, Delhi
10324 Answers
124 Consultations

5.0 on 5.0

You don't allow him to come back to you if you apprehend any such danger as anticipated from his side after obtaining divorce and child custody in your absence.

You can ask him to withdraw the casee if they are still pending and allow him inside or better do not have any contact with him neither you allow him to be with you or with yor child.

Let him file the case for rejoining you and also to have visitation rights to visit the child in India afresh.

 

T Kalaiselvan
Advocate, Vellore
79250 Answers
1618 Consultations

5.0 on 5.0

If you are again together you can apply to set aside the exparte decree in US

Prashant Nayak
Advocate, Mumbai
28106 Answers
93 Consultations

4.4 on 5.0

Husband cannot with draw divorce decree once it is granted by court 

Ajay Sethi
Advocate, Mumbai
89092 Answers
6362 Consultations

5.0 on 5.0

- The said decree of divorce granted by the US Court in your absence will not valid in India , and you can file cases against her. 

- Further, if you are planning to live with him , then you can challenge that divorce decree which granted in your absence. 

Mohammed Shahzad
Advocate, Delhi
10324 Answers
124 Consultations

5.0 on 5.0

Dear Client,

The interests of the child were of paramount consideration. The court also laid down the safeguards for ensuring the parental rights were not totally compromised in the process by passing a series of directions to balance the conflicting interest, when the children are brought to India at the end of 3 years the whole question of custody may be reviewed suo motu by the Court or at the instance of the father or mother and the present order maintained, modified, altered or cancelled."

 

Thank You.

Anik Miu
Advocate, Bangalore
5374 Answers
58 Consultations

4.9 on 5.0

US laws and Indian laws are different. If you again goes to US and stay there, then you should obey the US laws. In such a situation the order and situations are favour of him. So keep it in mind and be careful .

Ajay N S
Advocate, Ernakulam
4010 Answers
96 Consultations

5.0 on 5.0

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