• Common grounds for divorce in USA and India

Dear Attorney,

 My situation is very bad here in Texas, USA as my wife harassing with her adulatory actions (sharing naked pictures to her boyfriends) and words where as her father is threating me from India though he knew all these actions that his daughter is doing. Marriage held in India (February 2022) but currently residing in USA on a work permit. I am decided to give her divorce here and send back to India but would like to know how it will be valid in India too. What are the common ground to make divorce valid in India too.

 I have the evidences for adulatory actions she made, written letter in a note book that she has confessed her mistakes and a few other audio recordings among my self, her and her parents were argued about these things. I do not have evidence of her mental illness that how she is provoking and the self harm things.

1) How can i make my divorce valid in USA and India too.
2) Would like to know what are the common grounds as per Hindu marriage act that suites USA divorce law. 
3) Does this adulatory actions comes under Hindu marriage act to make it valid in India
4) What if she leaves the country while the proceedings are going on here in USA courts
5) Once she goes back to India, does she have any powers to forcefully bring me back to India in any way
6) If she files a new divorce case in India for money, approximately how long the process takes to complete as i have evidences 
7) How it impacts my immigration status and next time stamping

 Please answer my questions as am already mentally weakening day by day.
Asked 3 months ago in Family Law
Religion: Hindu

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8 Answers

1. By validating us divorce in India

2. Cruelty and irreconcilable difference not to be resolved

3. Yes

4. Exparte divorce

5. No until you comply court order

6. 2 to 3 yrs

7. Nothing if compliance of court order is followed

 

Prashant Nayak
Advocate, Mumbai
28106 Answers
93 Consultations

4.4 on 5.0

File for divorce on grounds of mental cruelty and or adultery in USA or india 

 

2) wife sharing her naked pictures amount to mental cruelty 

 

3) if wife has been served and court grants divorce after considering the evidence on record divorce decree would be valid in india 

 

4) wife can file false dowry harassment case against you in india under section 498A of IPC 

 

5) if wife files divorce case in india and you contest it then it may take more than 5 years to be disposed of 

 

4) it does not affect your immigration status 

Ajay Sethi
Advocate, Mumbai
89092 Answers
6362 Consultations

5.0 on 5.0

1. The grounds for divorce in US is not valid in India.

Besides you cannot file a divorce case in India before completion of one year from the date of marriage.

The mutual consent for the reasons of incompatibility especially after living separately for one year or more would be the common grounds.

2. The US laws for divorce that is the reason namely no fault or default divorce are not recognised as legally valid grounds as per Hindu Marriage Act.

3. The acts of sharing nude pictures or exchange of messages with her boyfriend or the audio recordings between them do not make grounds for adultery.

4. You may get an exparte divorce decree but that will not be valid in India for the marriage solemnised in India as per Indian laws.

5. It depends on what action she may intend to initiate as per law.

6. It may take around two years or more if contested.

7. Your divorce case will not have any impact to your immigration issues.

T Kalaiselvan
Advocate, Vellore
79250 Answers
1618 Consultations

5.0 on 5.0

For all of your questions answer is one 

 

You both can go for Mutual Consent Divorce in the USA and the Mutual Consent Divorce is valid in India and USA as well.

 

All you queries if is accepted to both of you then you can mention in MCD's Terms and Conditions.

Ganesh Kadam
Advocate, Pune
12423 Answers
193 Consultations

4.9 on 5.0

1. 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 she is residing with you there then you can file a mutual consent divorce case there after separation of one year , and if she refused then you can file a contested divorce case there , and both decree of divorce granted by the US Court will be valid in India , however her presence in the said matter before the court is mandatory .

2. Reply as No.1

- Extra marital affairs is a ground for divorce , hence you can file a contested divorce petition there on this ground for getting divorce. 

3. Yes, if she will participated in the proceeding of your divorce case there. 

4. Then the decree of divorce will not valid in India , hence she must contest case there 

5. She can file cases against you in India , if the divorce will not passed as per reply no.1

6.Depends upon the burden of the court 

7. No effect 

Mohammed Shahzad
Advocate, Delhi
10324 Answers
124 Consultations

5.0 on 5.0

Dear Client,

The Hindu couple residing/working in a foreign land ought to be governed by the matrimonial laws in force at that place. As a corollary, the decree of divorce granted by the foreign court should be valid.

Indian courts were confronted with situations wherein Hindu couples married in India as per Hindu Law, settled in a foreign land, develop matrimonial disputes and approach a foreign court. This situation demanded the Indian courts to determine whether the decrees passed by the foreign court as a consequence of the matrimonial disputes between the Hindu couples settled abroad, had any efficacy in India.

The non-applicant always has an option not to attend nor actively participate in the foreign court proceedings. This would be taken as, the non-applicant did not submit to the jurisdiction of the foreign court. This, however, does not mean that the non-applicant is not even required to be served in the foreign court proceedings. Non-service would amount to denial of opportunity to be heard.

The non-applicant must be served with notice of the foreign court proceedings. Or else, the proceedings would be taken in law to be a nullity i.e. of no value in law. If this is a situation, Indian courts are likely to declare the entire foreign court proceedings as void.

Adultery, as a rule, is proved by, based upon any one or more proofs as below –

Circumstantial evidence

Evidence of non-access and birth of children

Contracting of venereal diseases

Evidence of visits to houses of ill repute

Decrees and admissions of parties which should generally be corroborated

 

Thank You.

Anik Miu
Advocate, Bangalore
5374 Answers
58 Consultations

4.9 on 5.0

Hello,

As for common grounds of divorce, you have cruelty, adultery, desertion/abandonment (two years in India; three in Texas) and unsoundness of mind. This is based on a comparison of section 13 of the Hindu Marriage Act and chapter 6, subtitle C, title 1 of the Texas Family Code. As for my advice to you, please read on.

 

First things first, you should strongly consider initiating divorce proceedings in India as opposed to Texas. This is based on the fact that you were married in India which continues to be your country of domicile and the jurisdiction with the closest contact with the dispute. The Hindu Marriage Act obviously governs you. More importantly, it is the jurisdiction that is likely to give you the most amount of grief if your wife sets her mind to it.

 

 You see, enforcing a Texan decree – even in case of a contested, “fault” divorce – could be very time consuming and difficult in India for you. On the other hand, it would be relatively easy to resist any attempt by your wife to bring fresh divorce proceedings in Texas before or after an Indian decree in your favour (and she may never do that to begin with for myriad reasons). This opinion is based on a survey of Indian and Texan cases including Ashfaq v. Ashfaq, 467 S.W.3d 539 (Tex. App. 2015).

 

Any attempt to initiate fresh proceedings in Texas after an Indian court has ordered the marriage dissolved should come unstuck. The wife will have to show either of two things: (1) Indian court did not have jurisdiction or (2) the divorce proceedings in India were attended by lack of due process. This is a very tall ask that your wife should have a very hard time with. The matter will in all likelihood be dismissed for want of jurisdiction. You will have to get an expert to depose in the Texan court as to the relevant contents of Indian law (as per Tex.R. Evid. 203).  



This is how the whole thing will play out:

 

  1. You will file a divorce petition in India under the Hindu Marriage Act on the ground of mental cruelty among other things. If you have proof of actual adultery then that could be a ground in and of itself.
  2. You may or may not be able to convince your wife to part amicably during the pendency of said proceeding. If she comes around to your position, the matter will end there amicably.
  3. Otherwise you will eventually get your divorce (presuming you have enough evidence to sustain your petition).
  4. After the matter concludes in your favour she may not pursue the matter further – or at least not in Texas (on account of legal expenses, familiarity, etc.)
  5. If she initiates something in Texas you can have it thrown out on the ground of want of jurisdiction as described above.

 

I will need to know more to give you more specific advice, including info relating to your current living arrangement and properties in Texas. Hope that answers your question. Follow-up questions welcome.

Pulkit Chandna
Advocate, New Delhi
205 Answers
5 Consultations

4.9 on 5.0

1. Since it will be a contested  divorce and not a mutual consent divorce, the decree of divorce to be passed by the USA Court will not be valid in India. You shall have to file a divorce suit in India also on the ground of cruelty submitting evidence in support of your allegation.

 

2 to 4.  Even in case of Mutual Consent Divorce which has common ground to obtain the decree, you shall have to get the decree of divorce passed buy the Foreign Court validated by the concerned District Judge in India, So, no foreign decree will be considered as valid in India unless validated by the District Judge of your area in India for which you shall have to file an application before the said Judge.

 

5. She will not have any power to force you to return to India. However, she can file a 498a case and for attending the criminal case your court presence will be required till it is waived by the Court against your application for the said waiver.

 

6.  The time can not be foretold since  it might depend on how your wife's lawyer will play his part of the game. Ordinarily it might take around 2/3 years.

 

7. When Criminal Case like FIR u/s498a will be pending, it might impact your immigration. You should lodge police complaint in USa and also India (through email) alleging her cruel act on you detailing the acts with evidence to keep the same on record which will be helpful for you in the long run for getting the FIR quashed by you from the appropriate High Court in India.

Krishna Kishore Ganguly
Advocate, Kolkata
26800 Answers
726 Consultations

5.0 on 5.0

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