I was married under the Special Marriage Act in 2016 in India. I then got my dependent visa and went to USA with my H1B-visa holder husband. Due to domestic violence, I came back to India in May 2017. In January 2018, my husband applied for divorce (not mutual consent; I was not present in USA) and because of my non-appearance at the court within 20 days of receipt of divorce notice, the USA court declared the order and dissolved the marriage. I applied for a contested divorce here in India from my end in February 2018 by submitting my petition. My husband never appeared in the court and so, an ex-partite decision has been taken in my favor, and the case status is now at "Arguments," which I have presented in front of the judge. However, the judge is now saying that since I already have an American divorce, I need not apply for a "duplicate" divorce. I fail to understand how my Indian divorce counts as a duplicate divorce. Furthermore, the judge asked me to get a copy of the American divorce order; this is not possible because the American courts provide the order to only one of the parties (and my husband has that copy) and do not provide such copies to public, unless I have an attorney representing me there. She also gave me an option to go to USA and collect the order; this is also not possible because I do not have the resources for the same. I do not want any alimony or compensation, and I only want the divorce here in India, as I am an Indian, not an American. Can you please guide me?
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No fault divorce obtained abroad is not valid in india
Divorce decree to be valid should be on grounds recognised by SMA
3) you can request your ex husband to furnish copy of divorce decree granted by US courts
4) if your divorce petition is rejected file appeal in HC against impugned order
Thank you so much for your prompt response, Sir. I really appreciate. Regarding your note about the grounds of divorce, it was "irretrievable breakdown of matrimonial home." So, is such a foreign decree valid in India under the SMA? The unfortunate thing about my relationship with my husband is that he does not reply or respond to either me or my family/relatives, more so because he is now married to an American. So, the chances of my getting a response from him if I were to ask him for a copy of the divorce decree are negligible. My petition has not been rejected yet, if it does, I shall proceed as you have suggested.
irretrievable breakdown of marriage is not ground for divorce under SMA
The decree of divorce obtained in U.S. is not worth the paper on which it is typed. Such divorce is not valid in India and not enforceable. You marriage is not dissolved by such decree of divorce. Marriage is still subsisting. You have all rights of wife and entitled to enforce them. The judge is absolutely wrong. Refer him to the guidelines issued by SC with regard to law as how to deal with foreign divorce decrees in the case of Y. Narsimha Rao. He is not aware of that judgment. The judge is totally ignorant of law and directions issued by SC. The case is Y. Narsimha Rao v. Y. Venkat Lakshimi where the SC declared such divorce decrees are invalid and illegal.What ever the grounds urged in U.S. that is not even material for consideration.
The exparte divorce obtained by your husband in USA is not valid in India.
The 'no fault divorce' decree granted by US court is not legally valid or recognised as legally valid divorce for the marriages conducted in India as per Indian laws.
A divorce decree obtained in a Foreign Country will not be recognized in India when it is not satisfied the condition that even though the opposite side may have been served but not appearing and the decision was taken in the absence of another party to the case.
Parties to the divorce must have had the opportunity to represent their case in the foreign court. To recognize a foreign divorce decree, the court in India will ensure that there was fairness, good faith, and diligence of each party.
Indian courts will not recognize a divorce decree obtained in the US if the grounds are not recognized by the Indian divorce law.
If the family court in India is not passing a divorce decree even after satisfying the grounds pleaded in the petition for divorce and arguments made in your favor, you may prefer an appeal before high court agaisnt the decision.
You can inform the court since the divorce granted by US court has no validity as per Indian laws, there is no necessity for you to produce the divorce decree copies before this court, but since you have filed the divorce case here, the court may be requested to pass orders on merits.
The irretrievable breakdown of matrimonial relationship is not a legally recognised or valid ground for divorce in India.
If the family court is dragging on your divorce petition without taking any decision you may file a petition before high court seeking direction to the family court to dispose the matter expeditiously
You can apply certified copy from court
Dear , I am sorry to hear that but you can enforce foreign decree under Section q3 of cpc. The same applies to your husband.
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.
Thank you for all the helpful advices. I really appreciate. Regarding the suggestion provided by Advocate Shashidhar. S. Sastry above, I have the following question: As attorney fees are high in the US and I do not have the resources to take care of the professional fees of any American attorney, can I request the Family Court to make all necessary provisions for me to obtain a copy of the foreign divorce decree, including the attorney fees? Further, the foreign decree was obtained on the grounds of "irretrievable breakdown of marital home," which is not a ground for divorce under the SMA, 1954. Additionally, according to Section 13(C), (which states that: when, therefore, a foreign judgment is founded on a jurisdiction or on ground not recognized by such law, it is a judgment which is in defiance of the Law. Hence, it is not conclusive of the matters adjudicated therein and therefore, unenforceable in this country) this foreign decree is not enforceable in our country, India. Then, what will be the benefit of obtaining such a void and null foreign decree?
No petition will be entertained by Indian court to accede to your request.
You have to make your own arrangements to obtain the copies if you are desirous of obtaining one.
You were advised to inform the court about your inability to obtain the copies and ask the court to pass orders based on its decision so that you can approach high court for justice through an appeal.
The trial court cannot insist you to produce the judgment copies of the foreign court, you can express your inability to do so.
You have not filed a divorce case in foreign country hence what is your botheration if the foreign decree is not recognized as legally valid in India for the marriage that was solemnized as per Indian laws.
No you can opt for pro bono legal services or legal aid if available
Family court will not pass any order for making payment of legal fees to American attorney , expenses incurred for obtaining copy of foreign decree
2) benefits are for your ex husband in obtaining divorce decree from USA . He can remarry in USA as your marriage is dissolved in USA
3) however you continue to remain married in india as marriage was solemnised in india and for dissolution of marriage it has to be on grounds recognised by SMA
I had answered to revalidate the Divorce decree in India, assuming that it was similar to Mutual Consent Divorce . Later you clarified that it was under "Irretrievable breakdown of marital life" and hence there's no need for revalidation of the foreign decree and the same may be brought to the notice of the Hon'ble Judge.
- 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.
- 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.
- Since, that divorce by the US Court was granted in your absence , then that decree of divorce is fully invalid in India , and the said Indian court cannot consider that order as valid, and for passing decree of divorce.
- Further, the said Indian court is bound to pass its ex-parte decree of divorce without considering that invalid decree of US Court.
- Hence, no need to arrange that US decree of divorce for obtaining divorce from Indian Court.
- Further, the decree of divorce granted by the India Court in the absence of your husband will be valid legally.
Hello everyone! Following the suggestions given by Advocates Ravi Shinde, T Kalaiselvan, Shashidhar S. Sastry, and Mohammed Shahzad, I prepared my arguments and presented it at the family court and my divorce order has been passed. I will forever be indebted to you for all your guidance. I just have one last question: The court has given me an order copy on the day when the order for ex-parte divorce was passed. What is the next step now? My advocate has turned out to be quite unhelpful in the sense that he is now demanding huge sums of money for applying for the divorce decree - which the court has to prepare. He also mentions that if I don't apply for the divorce decree within one month of when the order was passed, I may never be able to apply or obtain the decree. Can you please educate me on the next steps? Do I really need a lawyer's help at this point?
you can make application for certified copy of divorce decree on your own
2) just fill in the form pay court fees which is a nominal amount
3) you should get certified copy of divorce decree in 3 months or so if there is no urgency made
4) no need to pay lawyer exorbitant amounts
Dear client, I am sorry to hear taht but now you can enforce that degree in the court though another lawyer.
The court will supply the certified copy of the divorce decree when you apply for the same after 15 days of its pronouncement.
In your case the court has already passed an order hence you may apply for it now and you would be able to get it once it is ready.
For obtaining the certified copy of the divorce decree, you need not depend on your advocate, since you are the party to the case, you can file a copy application directly before the concerned court and obtain the copies by yourself.
You may have to affix the requisite court fee, you can get the guidance from any local lawyer so that you do not have to go back to your old lawyer.
Since the case is completed and there is no mode to collect the fee, the lawyer may insist ion fee, hence it is your decision to act accordingly.
You or someone authorised by you can apply for divorce decree and the Lawyer 's assistance would make it easy.
Publish a Public Notice in the vernacular as well as in English language newspapers, the information that you have obtained divorce from your husband from family court and
You or someone authorised by you can apply for divorce decree and the Lawyer 's assistance would make it easy.
Publish a Public Notice in the vernacular as well as in English language newspapers, the information that you have obtained divorce from your husband from family court and
- Since, you are petitioner in the case, then you have right to obtain the decree of divorce individually
- However, you are advised to pay the fees of the advocate which was fixed for the said case.
Yes you may need lawyers help if you can't get involved yourself