I and my husband are indian citizen and daughter is minor US citizen. I have filed child custody, hmp, dmv and child maintenance cases in India, and after getting notice husband filed for divorce and emergency custody orders in California court. India court has not denied the jurisdiction for my daughter and cases are in preceding. I have filed a motion to dismiss the cases in California court and the final order is yet to arrive. I have filed all vases before my husband filed in US. Please answer to below questions will be great help for me. 1. My lawyer in California filed motion to dismiss the cases filed by my husband in Dec2022, but the US court decision on jurisdiction is yet to arrive, I have attended 2 hearings but all regarding jurisdiction. In the meanwhile, I received judgement from India court on child custody that I have right guardianship to renew her US passport without my husband's consent. (My husband and his family stole my daughter's US passport and wasn't giving his consent for renwal, US embassy required court permission and I got this April,2023) The India order says ,mother has the custody for the availing of the passport purposes only. Will the Order is enough to dismiss the cases in US? I still have 3 pending cases in India. 2. I do not want to go on trial in US court, if the US court does not dismiss the cases, can I step back and keep fighting the cases in India only? He will get the order if I do not participate in the trial, but I have only filed a response to dismiss the cases. 3. If he gets the order of divorce and child custody, can he enforce it on me in India? Me and my daughter are living in India since june, 2021. Should I worry about the cases in USA? There is hearing coming up on in 2 days, I can not afford US lawyer, I don't know if he is going to represent me in the court this week. This is not fair to me and my daughter that I filed cases (after satying in India over 15months), before husband did and he gets jurisdiction over cases. We both married in India and I came back with 2yr old daughter, who is 4 now. Can I challenge the US court jurisdiction in india? Will the India court accept the US order? 4.my husband offered settlement to divorce in US and is asking is asking for visits in summer and winter vacation, I did not agreed to settle the case in US because if i divorce him in US then US will have jurisdiction over all cases and what if he takes my child out of country without telling me and file for physical custody again in US, I only want to settle the cases in India for our safety. Should I stop all the case issues in US and focus only in Inida? My lawyer asked him for settlement in India but he said and lied that he is not aware of US offer that has been given to me. Thank you.
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it is not sufficient to dismiss cases in USA
2) You can continue to fight cases in India . since marriage has been solemnized in India US courts do not have jurisdiction . Further divorce should be on grounds recognised by HMA
3) You can file application in family court seeking stay of divorce proceedings in USA
4)you can if husband agrees convert existing petition of divorce in India to divorce by mutual consent
1. The relief given by Indian court regarding child custody is limited to the purpose of renewing her passport alone, hence it may not be a substantial decision of Indian court to create an impact to the ongoing US court cases.
2. If the US court decision is on the basis of exparte, i.e., without your participation then it may not be valid in India.
Your participation in the divorce case is essential condition to make that divorce valid in India.
3. The divorce decision whether on the grounds of fault or no fault or an exparte divorce in US is not considered as valid in India.
However since the child is US citizen, the Indian government cannot interfere in the child custody decision given by US court.
4. You can decide about it.
You can decline the offers made by him and ask him to come down to India, enter into a memorandum of understanding iun India and decide the matrimonial disputes on a compromise note.
Dear Client,
The Indian court's decision on child custody is limited to the purpose of renewing the child's passport. This decision may not have a significant impact on the ongoing US court cases.
If the US court's decision is ex parte, meaning that you did not participate in the case, it may not be valid in India. Your participation is essential for the divorce to be valid in India.
A divorce decision in the US, whether it is based on fault, no fault, or is an ex parte divorce, is not considered valid in India. However, since the child is a US citizen, the Indian government cannot interfere with the child custody decision made by the US court.
You can decide what to do about this situation. You can decline the offers made by him and ask him to come to India to enter into a memorandum of understanding and resolve the matrimonial disputes through a compromise.
Decree passed by US court is not valid in India however consent decree is valid.
1. No. Order passed by Indian court is not enough to dismiss case in US. Press for your Indian cases. Indian court is also for limited purpose.
2. You You have faulted by filing your response which will effect you adversely. Since US court decree is not valid in India so there is no reason to pursue US case. Both Indian and US case in particular requires to be handled strategically.
3. No. Indian court will not accept US decree. Indian court do not have power to decide jurisdiction of US court.
4. Yes, you can settle cases in India. If child would be removed from jurisdiction of Indian court then Indian court will cease its jurisdiction to decide custody of child.
Yes but you should question jurisdiction of US court.
US decree is valid in india if validated in india. You can continue with Indian divorce also if you desire to
1. Since, the India court has passed its order that you have right guardianship to renew her US passport without my husband's consent, hence this order is sufficient for the renewal of her passport even she having US passport.
- However, this order is not sufficient for the dismissal of the custody case filed in US by your husband.
2. You should know that , 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.
- 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.
- Hence, if you will not participated in the trial of US , then the decree passed by the US court will not valid in India.
3. 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.
- Hence, only a mutual divorce decree & a contested divorce decree will be valid in India. If you will not face the trail there then the decree of US court will not valid in India.
4. Yes.
Thank you for responses. I want to ask few more questions that My USA lawyer told me before, if husband gets custody orders he can not impose on me because child is living in India with her mother. And there is cases pending in India as well. I am not financially strong as my husband, How is it fair to me if he gets jurisdiction over child custody because he is in USA. He has not cared for child for the last 2 years neither emotionally nor financially. I read online, India court has the jurisdiction if the child is ordinary resident of India, my daughter is living in India since June 2021 and has been studying in school from the last year. 1. How is it possible to not interfere with US citizen custody, when india court has jurisdiction over our divorce case as indian citizens? How the divorce and custody case be continued in two countries? 2. Because my india lawyer didn't have enough knowledge about appearing in USA court, I ended up submitting my response in US court which will affect me in India. However, I can not spend dollars like my husband,who earns in USA. India court is taking more time to order my spousal support. If the US court gives order that USA court have jurisdiction, what can I file in india, district court, high court or Supreme court to deny or stay that order? I do not want to carry on with USA case. I can not fight in two countries. Please help me with the these queries. Thank you.
US divorce decree is not valid in India if it is on grounds not recognised by HMA . you can object to jurisdiction of US courts
2) you can file petition in family court for restitution of conjugal rights under section 9 of HMA seek stay of US divorce proceedings in India
You are not required to worry about US proceeding and divorce and custody case as both are not valid in India.
1. US court has no jurisdiction. It is only Indian court who has jurisdiction in the matter.
2. By submitting your response in US case you would admit the jurisdiction of US court and it would raise complications. However, you can lodge your protest. Consult a competent lawyer only.
Dear Client,
A US divorce decree may not be valid in India if it is on grounds not recognized by the Hindu Marriage Act (HMA). In such a case, you can object to the jurisdiction of the US courts and file a petition in the family court for restitution of conjugal rights under Section 9 of the HMA. You can also seek a stay of the US divorce proceedings in India.
1. The child is a US citizen, hence if he obtains a custody order, he can very well execute the same in India.
The Indian Courts have the power to entertain the case of custody of a child of foreign nationality.
The Court although has to comply with the doctrine of judicial comity and legal statutes such as the Code of Civil Procedure, 1908 and the Guardians and Wards Act, 1890.
2. The procedures in each country differs with each other in respect of the matrimonial disputes, hence you have to endure the same accordinlgy.
3. Section 13 of the Code of Civil Procedure, 1908 is essential to the whole assimilation of all the codified laws to deal with these cases. The Section says that the decree or order made by a foreign court shall be enforceable if it is conclusive. Conclusiveness of a decree or order where the parties and claims made by them in such case can be figured if it is not made of such factors-
Similarly, if the custody of a child decree must be made while keeping all these factors into account then only it could be enforced in India. In the case of custody of a child, if the parties are governed under some specific personal religion then the laws and provisions.
- Under the Guardian and Ward Act, , the welfare of the child as the paramount importance, like ethical upbringing of the child, Safe-keeping of the child, Good education , and economic well-being of the guardian.
- Further, under Hindu law, A mother usually gets custody of the minor child, under the age of 5 and fathers get custody of older boys, but it is not a strict rule and is primarily decided based on the child’s interests.
- The choice of a child above the age of nine is considered, and further a mother who is proven to neglect or ill-treat the child is not given custody.
1. Indian court having jurisdiction of the same, and any order /decree passed in your absence from the foreign court will not valid in India.
2. No
The order is not admissible until validated in india so no need to apply separate stay