Hi, me and ex-wife married in India but divorced in USA. Having official certified copy of USA divorce decree. The ground of divorce in USA is “general indignities“. Wanted to know whether anything I need to do in India and if yes what are the formalities.
First answer received in 10 minutes.
Lawyers are available now to answer your questions.
Divorce should be on ground recognised by HMA
2) in USA general indignities" is a commonly cited ground for divorce, encompassing a wide range of behaviors that make life with a spouse intolerable.
3) you will have to convince family court in india that it amounts to mental cruelty and is thus valid divorce decree
4) file Petition for declaration under section 7 of family courts act, that marriage is dissolved by the US divorce decree
The said ground of divorce is not recongised in India.
If any of your have not remarried then it is better if both of you apply for mutual divorce in India.
Ajay Sethi, Thanks for detailed response. I have below questions now, 1) For filing petition for declaration under section 7, again needs any signature from my ex-wife? or is it ok only If I submit and attend court? 2) Is anyway to file petition online from USA? 3) How long it will take for judgement if I file petition under section 7? 4) Can I have to apply only in local court where my marriage happened or I can apply anywhere in India?
Dear Sir,
Out of various solutions available to you, you must be aware of the fact that as per the provisions of civil procedure code of India, the decree passed by the foreign court is also valid in India and you may not be required to file a separate case for the same purpose in India.
US divorce decree, particularly one based on "general indignities," is unlikely to be directly recognized as legally valid in India. Indian law generally recognizes foreign divorce decrees only under specific conditions, primarily when they are based on grounds aligned with Indian law and the divorce is obtained by mutual consent. "General indignities" as a ground for divorce may not be equivalent to grounds recognized under the Hindu Marriage Act.
The conditions are
The US court must have had jurisdiction over the parties at the time of the divorce.
Both parties must have been properly represented or have participated in the proceedings.
The grounds for the US divorce must be recognized under Indian law.
The decree must not violate Indian public policy or principles of natural justice.
You'll need to provide evidence of the US divorce decree, including:
Certified copy of the divorce decree.
Proof of the US court's jurisdiction.
Evidence that the divorce was obtained without fraud.
Besides you have to either be present physically or represented by a power of attorney agent to conduct your case.
Even she has to be present.
The time taken for disposal cannot be predicted owing to various factors however it may take at least two years time
You can file petition ,attend court
2) notice would be issued to wife
3) wife can submit consent affidavit
4) it should not take more than a year
5) you should apply in family court in city where marriage was solemnised or you resided together with wife
The extent to which a foreign court's decision can be relied upon and how important it is in an Indian court depends on whether foreign decisions can be used as a guide or precedent. These decisions are not automatically binding in India.
Indian courts have discussed whether foreign judgments can be accepted. Generally, a foreign court's decision is considered enforceable because when a court with proper authority makes a ruling, there is a legal duty to follow that ruling. Although each country has its own rules about private international law, countries often recognize certain common principles out of respect for justice and fairness. These shared rules help handle cases involving foreign elements and allow for the enforcement of foreign judgments, especially when international agreements support them.
It is also recognized that respecting foreign decisions is not just a matter of courtesy but is based on principles of justice and morality. While India is a sovereign nation and its courts are independent, considering foreign law does not weaken that sovereignty. A foreign decision can be useful for understanding the main point or ratio of a case based on the specific facts, but a foreign court's decision against a nonresident foreigner is generally considered invalid or null and void.
A foreign court's ruling on a compromise is a ruling on the merits and must be deemed definitive. Consent-based international judgments are enforceable. A consent order or decree prevents the court from examining the details or merits of the case, and a party who, by giving consent, invites the court to enter an order and judgment cannot raise the defense that the judgment is not based on merits and is therefore not enforceable under Section 13(b) of the Civil Procedure Code.
If the decree was obtained by mutual divorce, then it is valid, and there is no need to validate the same in India.
Generally, a mutual consent divorce granted by a foreign court is considered valid, legal, and binding in Indian Courts by virtue of sections 13 and 14 of the Code of Civil Procedure and also on account of the comity of nations. Such decrees of divorce granted by foreign courts need not be validated in Indian courts. However, as a matter of abundant precaution, one can approach the Indian court to declare that the divorce is valid and binding.
If it is not a mutually agreed divorce, then it will not be considered a valid decree. File a fresh divorce petition in Indian court .You can use the Us decree as a document .
In the Indian judiciary, judgments from a 'Non-Reciprocating Territory' (US ) have only evidentiary and persuasive value, and they must be filed for enforcement within three years from when they were passed. Us comes under non-respiratory territory.
Divorce granted by American court not valid in India.
- You should know that , if the divorce is granted on the ground of mutual consent of both the parties or if the decree has been granted on a contested divorce , then the said decree of divorce granted by the foreign Court is valid in India and no further validation is required from Indian Court.
- Further, if the said decree is granted on mutual consent of both the parties, then you can validate in India from the family Court under section 7 of the family Court Act.
1. On filing the petition under section 7 , the Court can summon the other party but it is not mandatory , if the said decree of divorce is showing that it was granted in the presence of both the parties.
2. 2-3 dates only
3. Where you are residing or where the marriage was solemnized.
If petition has her signature category then will require the same. If you are the sole filing party then not required
it may take time in Indian courts
Dear Client,
While you have a valid divorce decree from the USA, its automatic recognition and implications in India are not always straightforward. The decree obtained from a foreign court is not automatically valid in India.
Does Anything Need to Be Done in India?
Yes, it is highly advisable to take steps in India to ensure the recognition of your USA divorce decree, under Section 44A of the CPC, 1908 which talks about the ‘Execution of decrees passed by Courts in reciprocating territory’.
The recognition of a foreign divorce decree valid in India relies on the CPC, 1908, and the Hindu Marriage Act, 1955.
Key judgments such as Y. Narasimha Rao & Ors. v. Y. Venkata Lakshmi & Anr. (1991) and Smt. Satya v. Teja Singh (1975) have established crucial criteria for recognition, ensuring foreign decrees align with Indian legal standards.
Section 13 of the Code of Civil Procedure specifies the conditions for recognising a foreign judgment. Generally, a foreign divorce decree is recognised unless it falls under specific exceptions, such as:
In addition, if the foreign court had proper jurisdiction over the marriage, Indian courts are more likely to recognise the divorce decree.
The legal framework governing the recognition and enforcement of foreign court divorce decrees in India is primarily encapsulated within the Code of Civil Procedure, 1908 (CPC), and is further influenced by the Hindu Marriage Act, 1955.
Divorce decree granted by Foreign Courts can be divided into two categories:
In the case of mutual consent divorce decree, the decree granted by a Foreign Court is considered to be legal, valid and binding in the Indian Courts by the virtue of Section 13 and Section 14 of the Civil Procedure Code, wherein Section 13 enumerates the condition when a foreign judgment would not be considered valid in India and Section 14 states that when the Indian Courts would consider the foreign judgment to be conclusive.
A decree which is not affected by section 13 does not need to be validated in India and will be considered conclusive under Section 14 of the Civil Procedure Act. Though in the case of mutually consented divorce decrees, the complexities are much less compared to contested divorces. However, in a case where a divorce decree is granted by a Foreign Court in a contested divorce, generally the question of validity of the divorce decree arises.
Rupak Rakhi Vs Anita Chaudhary 2014 (3) PLR 407 in this case it was held that:
To conclude we can say that a decree passed by a Foreign Court has either to be executed under Section 44A or a fresh suit has to be filed for its enforcement. A foreign divorce decree is considered to be conclusive under Section 14 of the Civil Procedure Code if it passes the test under Section 13 of the said Code.
I hope this answer helps. In case of future queries, please feel free to contact us. Thank you.
1. If the grounds for seeking divorce are not in consonance with the approved grounds for availing decree of divorce in India including Mutual Consent divorce, the said decree passed by the foreign court will not be considered as valid in India.
2. If the grounds are same as prescribed in Indian Law, then also the said decree is required to be approved by local District Court in India by filing a declaratory suit.
If the USA Decree is mutually agreed by both the parties, then the petition to be filed in India requires signature of both the parties.