• How should I proceed with divorce summons from India to California court?

Hello,
I have been living in India with my 2 yr old daughter (born in the USA) since June 2021. His family took my daughter's USA passport and oci card along with her birth certificate in my absence in October 2021. Husband refused to provide old passports and NOC for replacement. Then I filed for conjugal rights and child custody.

After getting notice of the cases, he files for divorce and child custody in California court and sent me the summons. I do not have visa because husband is not providing his I129 for my visa renewal.
we both are Indian citizens and marriage was held in India in 2015. we living together in usa for 5 yrs on a visa.

Please let me know the following:

1. How should I proceed with the summons?
2. Should I disagree with the proceeding and only mail the response to California court?
3. Will the California court issue sole custody of my daughter to him noting that he has not lived with her since I came to India? He filed for custody in California after I filed in India.
4. If I do not participate, will it affect my international travel to other countries?
5. I want to fight legally in India, where I live. USA case proceeding will create more difficulties for me and my daughter.

Thank you in advance.
Asked 2 months ago in Family Law
Religion: Hindu

3 answers received in 30 minutes.

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7 Answers

You should in your reply object to jurisdiction of US courts as marriage is solemnised in India and divorce can only be on grounds recognised by HMA 

 

2) in custody application file reply that custody petition is already pending in India 

 

3) also petition for RCR is pending in India 

 

 

Ajay Sethi
Advocate, Mumbai
89022 Answers
6344 Consultations

5.0 on 5.0

1. 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 or not appear before the Court in US , then the divorce 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, if you will not appear before the US Court then that court may pass ex-jparte decree in his favor, but this decree of divorce will not valid in India , and your status will continue as a legal wife. 

2. Yes

3. You can file a petition in India for custody

4. No

5. You can file multiple cases against him in India i.e. for maintenance , for claiming residential right etc. 

Mohammed Shahzad
Advocate, Delhi
10264 Answers
123 Consultations

5.0 on 5.0

Any divorce obtained from foreign Court against Indian citizen is not valid and not enforceable by Indian Courts. Such divorce decree is worthless, it will not at all affect your marital status as wife.

  1. Under the above circumstances no need to respond to summons from U.S. Court.
  2. As such divorce decree is not valid even if passed, no need to communicate anything.
  3. The law that is applicable to you is  Section 6 of Hindu Minority and Guardianship Act, as per Section 6, 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. 
  4. Matrimonial dispute will not affect your visa chances to other countries.
  5. All Indian law can be used by you against him.

 

You have many options. Law is in favor of women. They are doing this because you are tolerating it once you enforce your rights they will realize their mistakes and mend their ways. 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. A notice  will be served on husband 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. Protection order prohibiting husband from—
  4. committing any act of domestic violence;
  5. entering the place of your employment;

  • attempting to communicating with you;

  1. selling any assets, operating bank accounts or bank lockers held jointly by both or singly by husband including streedhan.
  2. Residence order. Police will force your husband to give shelter in the shared house and restrain him from dispossessing you.
  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 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. 
  8. If they are not giving your belongings, you can file case against them under Section 406 of Indian Penal Code, 1860 for criminal breach of trust for which punishment is 3 years.

This is laid down by SC in Y. Narsimha Rao Case.

Ravi Shinde
Advocate, Hyderabad
3124 Answers
42 Consultations

5.0 on 5.0

Dear Client,

You should in your reply object to jurisdiction of US courts as marriage is solemnized in India and divorce can only be on grounds recognized by HMA.

In custody application, file a reply that custody petition is already pending in India. Also, petition for RCR is pending in India.

If you will not appear before the US Court then that court may pass ex-parte decree in his favor, but this decree of divorce will not be valid in India , and your status will continue as a legal wife.

Section 6 of Hindu Minority and Guardianship Act, as per Section 6, 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.

 

Thank You.  

Anik Miu
Advocate, Bangalore
5320 Answers
57 Consultations

4.9 on 5.0

1.  If you do not receive the summons then he may try to get an exparte divorce in USA, but that divorce is not valid in India for the marriage that was solemnised in India as per Indian laws. 

2. You can refuse to receive the summons or after receiving the summons you can write to the concerned court about your inability to appear before that court owing to the valid reasons you have stated here and express your objections to the divorce case namely that the court there is not having jurisdiction to decide about this matrimonial dispute hence it may be dismissed. 

3. What verdict the California court may pass cannot be predicted, but since the child is under your care and custody, you remain silent about it even if he is getting an exparte child custody decision in USA. He has to execute the decree in India which can be challenged on the basis of exparte decree which is not maintainable in India since you were not give n a chance or opportunity to challenge the same.

4. No, it will not.

5. You can file a case in India and challenge his case also in India stating that it is invalid hence he should not be entitled to any relief that was granted by court at a foreign country

 

T Kalaiselvan
Advocate, Vellore
79182 Answers
1611 Consultations

5.0 on 5.0

Appoint a lawyer in India and ask him to contest the case. Appoint any relative of yours to be POA to attend court on your behalf

Prashant Nayak
Advocate, Mumbai
28054 Answers
93 Consultations

4.4 on 5.0

1. Even if he gets the decree of divorce passed by the US Court (which he will  surely get even if you contest it) will not be considered as valid in India unless validated by the appropriate District Judge in India for which he shall have to file an application serving copy upon you. 

 

2. & 3. You can contest the US case by sending a letter to the Court or by engaging an Advocate at USA to defend you. There might be a benefit for  you if you get the decree of divorce passed by the California Court since as per the law in vouge there, the divorced will is entitled to 50% share of the property of the husband. Please enquire about this part of USA law from an US lawyer and decide accordingly.

 

4. Your travel abroad will not be affected in any way for your not attending the divorce case.

 

5.  You can also very well files divorce, maintenance and also child custody case in India, the judgement of which will  be considered as valid in India. Engage a local lawyer having experience in family matters.

Krishna Kishore Ganguly
Advocate, Kolkata
26791 Answers
726 Consultations

5.0 on 5.0

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