• Divorce filed in USA, is 50-50 law applicable in India?

Hi,
If both husband and wife have filed for divorce in USA, what happens to property purchased in India and its on Husband's name ? Husband is on H-1B work visa, wife is a USA Citizen. 
Is 50-50 law which is standard in divorce proceedings in USA applicable in India ?
Is the judgement given in USA valid in India as the property is in India ?
Can husband file a separate divorce case in India ?
Asked 3 years ago in Family Law
Religion: Hindu

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8 Answers

A divorced wife has no share in the property of husband in India. There is no such claim of half share in the property of husband by wife. If both subject to the jurisdiction  of U.S. can in a contested divorce, such decree of divorce  is valid in India. But divorce  on no fault ground is not valid in India. If both agree they have to file divorce  on mutual consent in India, only such divorce  will be valid and enforceable in India.

Ravi Shinde
Advocate, Hyderabad
5125 Answers
42 Consultations

Communion of assets is only applicable in Goa in India.In Goa, marriages take place through four methods, one of which is by Community Property Law, which is considered a legal method and the other three are considered conventional.Through Community Property Law, each spouse automatically acquires joint ownership of both the assets owned by them. 

If you and your spouse voluntarily submit to the jurisdiction of the foreign Court and the divorce is granted inconsonance with the ground mentioned under the Hindu Marriage Act, then it will be valid in India.

Husband can file a divorce case in India, which will be a contested divorce.

Siddharth Jain
Advocate, New Delhi
6617 Answers
102 Consultations

Wife has no share in husband  property bought by him out of his own funds 

 

no fault divorce obtained abroad is not valid in India 

 

husnand can file for divorce in India 

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

1.  The 50-50 law is not applicable in India.

2.  However the spouse can claim alimony.

3.  If the property in India is in Husband's sole name, the wife can't claim it as a matter of right while obtaining divorce.

4.  Judgement given by the US Court is not straightaway valid in India, as USA is not recognised as one of the Reciprocating Countries by Indian Government. After obtaining Divorce from USA, it has to be revalidated in the jurisdictional competent Court in India.

5.   Husband can file a separate divorce case in India, if he was not given an opportunity to defend his stand in USA Court.

Shashidhar S. Sastry
Advocate, Bangalore
5623 Answers
339 Consultations

Firstly the divorce that may be granted on 'no fault divorce' or 'default divorce' or any other grounds that is not recognised as valid grounds for divorce as per Hindu Marriage Act, then this divorce itself is not valid in the eyes of law in India, therefore any orders passed by the USA court regarding distribution of property equally between them is also not executable in India. 

Besides, there is no provision in India law for 50-50 division of property between the couple on divorce  until and unless it is a jointly owned property. 

If husband or wife decides to file a divorce case separate in India for the marriage that was solemnised in India as per Indian laws, there is no legal infirmity in it. 

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

Dear client, The divorce decree if foreign nation can be enforced in India undee Section 13 of the CPC. moreover, the prpwry distribution decree of USA can also be enforced in India.

Anik Miu
Advocate, Bangalore
11014 Answers
125 Consultations

Is 50-50 law which is standard in divorce proceedings in USA applicable in India ?

No.

Is the judgement given in USA valid in India as the property is in India ?

No.

Can husband file a separate divorce case in India ?

Yes . 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. Who wish to take benefit of Indian laws and legal system to avoid facing up to any foreign judicial system. 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.

 

Please read the detailed answer .

In India, there's no such law that gives the wife the right to claim a 50% stake. There are many laws in India which deal with settlement of spousal property.  Indian legal system follows equity distribution during property settlements at the time of divorce. The partners receive their share according to equity/contribution. The courts of equity exercise jurisdiction in personam. (A court within personam jurisdiction in a particular case has enough power over the defendant and his or her property to grant a judgment affecting the defendant in almost any way).

In the eyes of the Indian judicial system, the property belongs to the person in whose name it's registered.  If the property is in the name of the husband then the wife has no right on that property.

USA Family Courts may make orders in relation to property in an overseas jurisdiction. However, property settlement orders made by the USA Family Courts may not be automatically recognised and enforceable in the overseas jurisdiction. Consequently, problems may be experienced in enforcing the property settlement orders internationally.

USA is a Non-reciprocatory territory of India and the Indian court exercises jurisdiction in personam so the property situated in India has divided only under Indian law. When the court grants a divorce, the property will be divided equitably (not always equally) between the two spouses. This is decided under Equitable Distribution Law. During the divorce, both spouses have to tell the court about their income and any debts they owe.  If the lawsuit is to determine title to property (in rem) then the action must be filed where the property exists and is only enforceable there.

Under Hindu law, a woman gets a right on her husband’s property only after his death. Since marital bonds are considered sacrosanct and eternal in Hindu belief, there are no strong provisions in the existing law as far as property goes if a couple decides to call it quits. They are only eligible for maintenance, so to speak. 

A wife has the right to claim maintenance for her livelihood equivalent to husband’s lifestyle, till the time she enters into a second marriage. In India marital bonds are considered sacrosanct and eternal, so a married woman gets a right on her husband’s property only after his death. A woman’s husband’s ancestral property, which he is expected to inherit in the future, remains out of the settlement, and so does his self-acquired property. It is only in the case of a joint property that a woman could claim at the time of divorce.

If a property is purchased and paid for by one person and the title is held by another, the person in whose name the property is held will be deemed to be its legal owner. Before we proceed further, it is important to note that this law accepts the property on which his/her name is registered. Contributions made during the purchase of any other party, cash or in-kind, are not recognized, legally speaking, unless you have sufficient evidence to prove otherwise.

There are two different types of property for the purposes of divorce. The property that the couple purchased during marriage is called “marital property”. Property that you had before marriage or was just a gift to you from someone other than your spouse is called a “separate property”. Marital property can be divided between two spouses.

Separate property is an asset that is owned by the premarital spouses. Any inheritance a spouse receives, even during marriage, is separate property. So are personal gifts (unless they came from another spouse or partner) and payments for personal injuries.

When the court grants a divorce, the property will be divided equitably (not always equally) between the two spouses. This is decided under Equitable Distribution Law.

Ajay N S
Advocate, Ernakulam
4124 Answers
114 Consultations

It will be as per the sale agreement share. Us decree valid only if validated. 

Yes he can file

Prashant Nayak
Advocate, Mumbai
34514 Answers
249 Consultations

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