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Geeta   17 November 2017

How to object jurisdiction of USA if married done in india

My husband send me Divorce summon from USA , California. I could not receive that bcoz i was out of city. Bcoz he is not a green card holder there and we got married in under Hindu rituals. I do not have money to hire a USA lawyer. From india how can i fight a case ? What are my best options. Should i recieve this summon or not? Indian lawyer how can object jurisdiction of USA law? I have no idea about USA California law. Plz give me advise. How could i convey USA court ,i married in HMA and want to fight my case here in india. I do not have that's also i can't travel there on H4 visa. Plz help me


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 7 Replies

Vijay Raj Mahajan (Advocate)     17 November 2017

File RCR petition u/s9 HMA, in Indian family court thus challenging his divorce petition from India. Also move application for injunction against him for proceeding in US court for divorce which doesn't have jurisdiction under the Hindu Marriage Act, 1955. Also seek maintenance pendentilite and proceeding charges against your husband under section 24 HMA. If you are based in Delhi/Gurgaon contact me for further help in the case. My details mentioned in my profile here. vijaymahajan5758@gmail.com

Samir N (General Queries) (Business)     17 November 2017

Nothing to worry. Even if he gets a divorce decree in USA it will not be valid in India if you were not given full rights to oppose it and have not consented to the jurisdiction of that Court. Sometimes inaction is the best action. This is one of those situations. Relax and do nothing! 

There is a Supreme Court judgment Y. Narasimha Rao And Ors vs Y. Venkata Lakshmi And Anr on 9 July, 1991
Equivalent citations: 1991 SCR (2) 821, 1991 SCC (3) 451
on this issue and it is very important that you read it to get confidence on this issue. It is available on the net on Indiankanoon.org and other sites.

The crux of that Judgment is in this paragraph:

13. From the aforesaid discussion the following rule can be deduced for recognising foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may be as follows: (i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.

There are many other Supreme Court judgments on this issue but I think that this says it all...

 

Kumar Doab (FIN)     17 November 2017

Agreeing with essence of suggesstions of  Mr. Vijay Raj Mahajan, Mr. Samir N ( 2HelpU):

 

Other threads;

 

https://www.lawyersclubindia.com/forum/USA-Divorce-SUMMON-156180.asp

Husband lives in USA.

Kumar Doab (FIN)     17 November 2017

Othr thread;

https://www.lawyersclubindia.com/forum/Maintenance-case-155583.asp

Husband is in Japan.

IN any case you have been given inputs.

It is your choice how you would like to proceed further.

If all efforts to save the marriage have failed, then;

Check if recourse thru MCD is acceptable and suitable to both of you. And win-win situation can liberate you both and allow to settle down I life as per individual vision and tastes.

Or contest the matter the courts shall decide the matter based on facts and merits.

Samir N (General Queries) (Business)     17 November 2017

One more thing...California law will NOT and cannot grant divorce on Hindu Marriage Act. Matrimonial laws in USA vary but I am sure that California Courts will not grant divorce on HMA.  There are many other Supreme Court Judgments where even if it had granted divorce based upon Hindu Marriage Act and the grounds under which it provides for divorce, your not getting a fair opportunity to oppose is sufficient to render the decree null and void.

There is also the issue of domicile of your husband. Without a U.S. citizenship, it will be difficult for him to say that he has a domicile in USA to seek divorce there...

ALINAWAZ VAKIL   17 November 2017

dinesh bhagwan darirani vs state of gujarat plz go through this judgment. it might help u

test123   17 November 2017

under HMA, if you stayed seprate for 2 years, indian court will grant divorce.

in usa, its 1 year seperation period.

seperation claused applied on both country.

you should visit courts and talk with all girls who married with NRI. [ none of them achived anything yet.] they are payng lawyers fees so far.

 


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