• Court of competent jurisdiction

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MY question:-
1) My wife and I last lived together in the USA about a year and 3 months back. She has been in India since the last year and three months. I am in the USA and have been the resident of the state of the last 2.5 years. I am going to file a mutual divorce in the USA. Section 13 of CPC wants the court of competent jurisdiction to adjudicate the divorce. Can you please tell me if the court in the USA would count as the competent court in my case?  Also, what does the term competent court really mean?
Thanks and Regards
Asked 8 months ago in Family Law from United States
Religion: Christian
1. Not a single court in USA is competent to grant divorce to an Indian.
2. In other words the decree granted by USA is not valid in India.
3. It would be valid in India only if both husband and wife on consent get s decree of divorce granted by USA court.
4. otherwise file case in India where both of you last resided together or where marriage was performed or where your wife is presently residing/
Devajyoti Barman
Advocate, Kolkata
5153 Answers
54 Consultations
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1) since your wife is agreeable for divorce and decree would be passed with mutual consent decree would be valid in india 

2) since you have been residing in USA for last 2.5 years court in USA would be competent to pass the divorce decree 

3) A court is competent if it has been given jurisdiction, by statute or constitution, to hear particular types of lawsuits.
Ajay Sethi
Advocate, Mumbai
23116 Answers
1214 Consultations
5.0 on 5.0
wife is not required to be personally present in USA . 

she has to give her consent in writing that she  has no objection to divorce being granted 
Ajay Sethi
Advocate, Mumbai
23116 Answers
1214 Consultations
5.0 on 5.0
The competency may be concurrent between two courts, in which event the competence of one court does not oust the competency of the other. The court in US may be competent as you are residing in US, whereas the Indian court may be equally competent if your spouse is a citizen of India and/or your marriage took place in India. Your spouse is free to adopt her legal remedies under the Indian legal framework which will include challenging the judgment of US court. So consult an Indian lawyer before going ahead.
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
5.0 on 5.0
My wife and I last lived together in the USA about a year and 3 months back. She has been in India since the last year and three months. I am in the USA and have been the resident of the state of the last 2.5 years. I am going to file a mutual divorce in the USA. Section 13 of CPC wants the court of competent jurisdiction to adjudicate the divorce. Can you please tell me if the court in the USA would count as the competent court in my case?  Also, what does the term competent court really mean?

If you have decided to file divorce under mutual consent and she has agreed to your proposal then it wont make any difference if you file it in India or US. 
It is the convenience of both and as per the terms of mutual consent divorce. 
The problem in US is that you may have to sign a post nuptial agreement by which you agree to settle the properties or wealth etc as per the agreed terms.  In India there is no such system. 
You can discuss about this in detail with your spouse and decide the further course,
T Kalaiselvan
Advocate, Vellore
13919 Answers
127 Consultations
5.0 on 5.0
Also, do you see a problem with the divorce not being acceptable in India since one party (respondent) is physically in India during the entire time of initiating and the granting of divorce in USA? Does she require to be present in the USA at all during this ?

If the divorce is granted under the mutual consent grounds, i.e., well within the knowledge of the spouses party to the divorce suit, the Indian laws recognise such divorce and consider it to be a legally valid dissolution of marriage by a decree of divorce. The presence of her to grant divorce in US will depend on USA laws in this regard, the Indian laws will not bother about the procedures being followed elsewhere for this. 
T Kalaiselvan
Advocate, Vellore
13919 Answers
127 Consultations
5.0 on 5.0
1. No. USA Court is not a Court of competent jurisdiction as per CPC,

2. The Courts having jurisdiction on the area where the the marriage took place, both of you last lived together in India or where she is living in India are the Courts of competent jurisdiction for filing a divorce suit against her,

3. Moreover, if you take divorce decree in USA Court, the said decree is not valid in India.
Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
5.0 on 5.0
1. If both of you file a mutual consent divorce suit in USA and appear before the USA Court, then the decree of divorce passed by USA Couurt in the avove case will be valid in India since it satisfies the required ground for granting MCD in India,

2. The above decree of divorce passed by USA Court shall have to be validated by Indian District Court to valid in India.
Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
5.0 on 5.0

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