• US divorce and 498a

I got divorced in early 2000. She participated in the proceedings remotely but did not consent to the divorce. US Court awarded divorce "irretrivable breakdown" claiming jurisdiction as we both were US residents at that time. She relocated to INDIA.I am US Citizen now.

After 2+ year of US divorce, she filed 498A against me & family and got award for maintenance under Sec 125 as well. litigation and harassment continued.Now she wants to settle and I am okay to pay and settle.

Now the question is how to ensure there are no future litigations ... specifically arising out from status of Marriage? Should I get mutual consent divorce in INDIA again? or a Lokadalat agreement where in she accepts US Divorce is sufficient? or should I ask her to get exparte divorce in INDIA? what is the best approach.
Asked 1 year ago in Family Law from United States
Religion: Hindu
1. Well, if it is found that she participated in divorce proceeding in USA then the decree of divorce is binding on her. Moreover the ground of ' irretrievable breaking down of marriage' is also a ground for divorce is India. Hence the decree of divorce granted in USA can not be disputed in India.
2. Now since some criminal cases has been filed against you, you can challenge its legality by way of filing of quashing petition in high court on the ground of non existence of marriage at the time of 498A case.
3. However the DV case can not be quashed on the ground of divorce since it can be filed even after divorce is granted.
4. So engage an advocate fight the cases on the line if advice as sated above.
Devajyoti Barman
Advocate, Kolkata
5196 Answers
54 Consultations
4.9 on 5.0
T) if your wife had participated in divorce proceedings it would be valid in India 

2) you have stated she participated in divorce proceedings remotely . What do you mean b said statement ? 

3) what had been the stand taken by your wife in 498A and section 125 CrPc proceedings ? Has she admitted to t he divorce ? 

4) file for divorce by mutual consent in India from she has not participated in divorce proceedings . 

5) irrevitable breakdown of marriage is not one of the grounds recognised by HMA 
Ajay Sethi
Advocate, Mumbai
23234 Answers
1219 Consultations
5.0 on 5.0
1. It was unwise in the first place to file for divorce in US. Had the decree been passed by an Indian court it would have placed an embargo on her right to file criminal proceedings subsequently in India. Be that as it may, if she is willing to settle the differences in an out of court settlement then the terms of settlement should be reduced to writing in a MOU, whereupon you may move the HC for quashing of the case. Be careful as there have been cases in India where even after the MOU being recorded the wives have either not withdrawn the case or filed it afresh after the withdrawal. So if you want to settle out of court then get a flawless MOU drafted by your lawyer. The better option would be to contest the case to prove your innocence.

2. You should also file a petition in the Indian court to seek validation of the decree awarded by the US court to preempt any future challenge by her to the US decree.
Ashish Davessar
Advocate, Jaipur
18102 Answers
448 Consultations
5.0 on 5.0
You have stated to have got the marriage dissolved by a decree of divorce through a US court and that was a contested divorce.  This divorce decree is held legally valid divorce in India as per law. You dont have to be worried on that aspect.  She cannot say that the divorce did not happen or that she did not contest it hence it is exparte. Her statement cannot be admissible in the court in India because the evidences the you both were US citizens then and  she participated in the divorce proceedings will go against her. (The question about remote participation or live participation does not arise once she admits to have participated or her participation is proved)
Well, the criminal cases she filed under section 125 cr.p.c. can be maintainable even after a divorce decree in India as per Indian laws.  So this may emerge any time hence it is not a surprise when she filed this after taking divorce at US. 
To avoid future litigation, a MOU can be drawn about the settlement terms and conditions in which you may include all those items you would like to incorporate to safeguard your future interests also. This can be done through Lok Adalat Settlement also. This will be a valid move but beware that the greedy wife may emerge again by listening  to the words of some criminal people around her to claim more benefits in the name of legal 
terrorism.  No doubt she cannot achieve anything by that act, but she may pose a thorn in the seat by such activities. 
T Kalaiselvan
Advocate, Vellore
14008 Answers
127 Consultations
5.0 on 5.0
1. Irretrievable break down of marriage is not yet recognised as one of the grounds for divorce in India.  However it is one of the grounds for taking divorce in USA.
2.In your case even though you obtained divorce, it is not recognised in India and hence you are facing the trouble.
3.If you had obtained divorce in USA on the ground of 'No fault divorce' then it would have been recognised in India, as 'No fault divorce' and 'Mutual consent divorce' are almost same.
4.Now you get MCD and settle the issue once and for all.
Shashidhar S. Sastry
Advocate, Bangalore
1238 Answers
59 Consultations
5.0 on 5.0
Hi, US Divorce is valid in india also as she is participating in the proceedings so you can't file a petition for divorce again in India.

2. It is better you can file a petition under section 482 before the Hon'ble High Court and quash the petition filed under section 498/a IPC.
 
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
The Us decree is not valid in india ,if your wife challange the same ,if so file a divorce petition under Section 13B of the HMA Act 1955.
She accepted the US divorce and come to settle the other  matter in mutual way there is no need to file a new divorce petition in India.When a matter settled do it with an agreement basis and file the same before the court for consideration of the same as a part of the decree.So settle the case of maintenance as per new agreement.  
Ajay N S
Advocate, Ernakulam
1915 Answers
19 Consultations
5.0 on 5.0
Dear Querist
when there is no case filed against you for challenging the divorce decree passed by US court then there is no need for any divorce in India, but if she is ready for Mutual divorce then it will be better to get a MCD decree in India Too for the safeguard of future consequences.

Feel Free to Call
Nadeem Qureshi
Advocate, New Delhi
3533 Answers
130 Consultations
4.9 on 5.0
1. Your decree of divorce availed in USA is not acceptable in India if you had married in India as per HMA,

2. You should now file a MCD petition before the Indian Court now after properly drafting the MCD,

3. It should be clearly mentioned in the MCD petition that there is no complaint and/oe demand from each other,

4. Before filing the MCD, she should withdraw all the cases filed by her,

5. Do not pay her all the settled amount before the 2nd motion as she may refuse to arrive on the day of the 2nd motion after collecting all the amount,

6.Pay her 25% while filing the MCD and balance on the day of the 2nd motion if she arrives on hat day and does not back out and withdraw her consent for MCD.
Krishna Kishore Ganguly
Advocate, Kolkata
12104 Answers
230 Consultations
5.0 on 5.0
1) your wife can file for divorce in india 

2) said petition can be converted into divorce by mutual consent 

3) in the consent terms it can be mentioned that wife shall be paid X amount as full and final settlement 


4) all pending cases filed by wife shall be with drawn . 

5) wife and husband shall jointly file petition for quashing of 498A case filed against husband in view of settlment arrived at between the parties 
Ajay Sethi
Advocate, Mumbai
23234 Answers
1219 Consultations
5.0 on 5.0
1. Yes
2. Yes
3.Yes
Devajyoti Barman
Advocate, Kolkata
5196 Answers
54 Consultations
4.9 on 5.0
If she agrees for the negotiated amount as one time quit settlement, then before payment of the agreed amount, she may be asked to give her consent for divorce either in the proceedings pending in US or here in India. further, you may apply for quash of the proceedings in criminal case under section 498a and dowry prohibition acts and she may be asked to give  no-objection to the prayer sought after receiving summons from court. 
All the while, you may not settle entire amount immediately, the balance amount may be paid after all the pending cases are finally disposed.
T Kalaiselvan
Advocate, Vellore
14008 Answers
127 Consultations
5.0 on 5.0
1. File MCD petition duly signed by both of you clearly mentioning the amount of compensation to be paid by you and the payment schedule,

2. get an affidavit from her duly affirming that she has lodged the said FIR under the influence of misunderstanding resulting to rage which she is now withdrawing,

3. File a Quash Petition before the High Court based on the said affidavit when she also should be present and depose in your favour if asked by the Court.
Krishna Kishore Ganguly
Advocate, Kolkata
12104 Answers
230 Consultations
5.0 on 5.0
1. If you are the one who applied for divorce in US then she cannot apply for validation thereof in India. You alone can do it.

2. The hassle free remedy is to enter into an out of court settlement reduced to writing as a compromise deed and on the basis thereof apply to the HC to quash the case. 
Ashish Davessar
Advocate, Jaipur
18102 Answers
448 Consultations
5.0 on 5.0

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