Divorce in US and its implications in India
Me and my wife are both Indian citizens, residing in the US currently (on H1 visa). It's been 12 years since the marriage was registered. We have a 6 year old son from this marriage, who's a US citizen. I plan to relocate to India.
I have been asking for a mutual divorce for the last 4 years, but she wants to stay in the marriage and has been dragging it by some means or the other. She has been spreading slanders about me to the society, alleging that I have raped her and I have been torturing her ever since the marriage. She persuaded me to have a child in order to keep me engaged in the marriage, which I realized later only. She has also been threatening to commit suicide if I file for divorce. Now I realize that all these actions of her are just to keep me in the marriage. I want to move on in my life and I am losing years in my life in this way. I am afraid of what she might end up doing as she doesn't appear to be a matured person at all.
So I have two options: 1. File for divorce in the US and then move back to India, or (2) Move back to India and file there. But I hear that women in India tend to misuse divorce laws in India and it can take a decade to get a divorce. BTW, the US state where we reside can grant a "no-fault" divorce which means divorce will be granted, no matter whether the other party agrees or not.
So which is the better option for me (1) or (2) ? If it is (1), how can I protect myself from any future trouble from her side when I move back to India ?
Asked 12 months ago in Family Law from United States
Taking an exparte divorce in US may not be valid in India for the marriage solemnised in India as per Indian laws.
The US no-fault divorce is called as exparte divorce.
If she is contesting or giving her consent for divorce case filed in US, then it is considered as legally valid divorce decree in Indian laws too.
If there are no chances for the above situation, then better, after relocation to India, you can file a contested divorce in India, the people may tell thousands, just do not allow your determination to deter, the contested divorce may hardly take three to four years, if she appears to be misusing the women biased laws in India, you may take precaution by first obtaining anticipatory bail and then challenge her false case in the trial court properly.
Best option is file divorce in India under the ground cruelty.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.Decree of Divorce by a foreign Court is also valid in India if there is no challenge by the other party. If both of you go for mutual consent divorce, then it is recognised and valid in India.
Foreign court decree of divorce or dissolution of marriage can be valid in India provided such decree is according to the provision of law in India as provided under section 13 of the Civil Procedure Code and Principle of law as laid down by the Indian courts. A foreign court divorce decree may be valid in India ONLY if the spouse had lived in that country and had consented to that country's jurisdiction.
Repeated threats to commit suicide is a ground for divorce,
1. You can file divorce suit in USA as well but if the court there passes the decree uncontested then the same is not enforceable in India. It is enforceable only if your wife contests the suit.
2. She can file 498A case in India which has some initial hassles. So if you do not have immediate plan to come to India then file divorce suit in USA only and wait for her actions to decide on your future course of action.
1. Filing for divorce in US would be unwise as both of you are citizens of India and you plan to relocate to India. Your wife may challenge the divorce, if granted by the US court, in India. So if she is not ready to apply for mutual divorce then you may unilaterally file for divorce in India. The court in India will take longer than a US court to decide the case but the decree will be conclusive as to the rights of the parties under the Indian legal framework.
2. It is true that the laws which were enacted to offer remedial measures to women who are victims of domestic violence are being rampantly abused and misused by them, but the courts will give you a fair opportunity to contest her cases in defence.
1) you can file for divorce in USA as both parties are residents in USA . if your wife participates in divorce proceedings decree would be valid in India
2) on the other hand if your wife does not participate in divorce proceedings she can file petition in india to challenge the divorce decree passed in USA
3) your wife in order to harass you can file 498A / DV case in India against you .
4) you would need to obtain Anticipatory bail in India in case wife files 498A case against you .
5) dont purchase any property in your name in India . wife can seek right to stay in matrimonial home and seek stay restraining you from selling the said flat
If you and your wife are residing in the US, it is better to apply for divorce there itself and complete the process there and come back to india once and for all. Custody of your child can also be decided and determined there itself.
As regards as protection from future problems in India is concerned once the divorce is granted and she is also a party to it, the same cannot be disputed anywhere in the world. so this is an automatic protection.
1. You have not mentioned what is the ground based on which you are seeking the decree of divorce,
2. You stated "she wants to stay in the marriage". That is what every married person should do legally,
3. No fault divorce decree granted by US Court wherein both the parties did not attend the court hearings to give consent is not valid in India,
4. If you file a divorce suit in India, it should be based on certain acceptable ground like cruelty and your wife will be sent summons for contesting the same,
5. Mutual Consent Divorce filed before Indian court is the quickest solution, provided both the parties agree to it, sine it is disposed of with in 6 & 1/2 months from the date of its filn,
6. If she does not agree for MCD, file a divorce suit in India on the ground of cruelty with evidence in support of your allegation.
as per your question Yes, if you get divorced in US, it is valid in India.
it is possible that she can file 498a case and Domestic violence Act D.V.C , D.P Act 3 and 4 and maintenance case and restitution of conjugal right case these are the option available in india to file cases against you and your family .
It is better you file mutual consent divorce in india and make of memorandum of understanding (MOU) in future it will help full to you ,in your mou you mention the permanent alimony and maintenance if at all you want to give.
as per section 13 of civil procedure code 1908. When foreign judgment not conclusive.- A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except,—
(a) where it has not been pronounced by a Court of competent jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable;
(d) where the proceedings in which the judgment was obtained are opposed to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law in force in India.
Advocate, New Delhi