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Mayank (Sr Manager)     26 September 2014

Foreign ex parte divorce

Dear Experts

Warm regards to all

I am posting for the first time on this site and need some urgent advice.

Case history is as below :

Boy and girl were married in Delhi in Jul 2007 as per hindu customs and rituals. Marriage was registered in Delhi.

The couple lived in USA where the boy was employed with an MNC till Aug 2008

Girl finally came back to India in Aug 2008 and never returned to USA

Boy applied for divorce in USA in Oct 2009.

The boy was successful in getting an exparte divorce even though the summons were not served on the correct address in India and the girl had not received the summons.Also, the grounds of divorce was irretrievable breakdown which again is not valid.

In any case, the girl didn't challenge the judgement and moved on with her life. She just got the certified copy of USA decree by sending a demand draft to USA court.

The guy also moved on and remarried in last year.

Now the girl also wants to re-marry. I am the guy whom she wants to re-marry with.

I am a divorcee as well. My divorce was mutual consent, no issue divorce.

I want to go for court marriage now.

Request the experts to validate my understanding of the case as it stands now :

1) Her USA divorce decree is not valid in India which means that they are still married as per Indian law

2) In order to get re-married, she needs to file a fresh divorce application in India.

3) If the other guy has re-married in India, then there is a case of bigamy against him.

4) Since the guy is re-married and settled in USA with his second wife, he will not be coming to India to settle his first marriage case.

5) Even if we get married as per hindu rituals, marriage registration will not be possible without concealment of facts that she was married before.

Further, request the experts to answer my below queries :

1) Is there a way to get the USA divorce decree enforced in India? Any affidavit stating that the USA decree is acceptable? Any endorsement?

2) Is there any way via which we can marry legally in court without concealment of facts?

3) In case a fresh divorce application is to be filed, on what grounds it should be filed to get the judgement quickly?

I would really appreciate guidance, advice on the matter.

Thanks to all in anticipation.

Warm Regards



Learning

 10 Replies

Hardeep (Business)     26 September 2014

Convoluted case. To me the easiest solution seems to be for the couple to file now for divorce in India by mutual consent . Should take 6- 8 months.The boy should be amenable to it as he has nothing to loose and the girl is also anyways reconciled to it.

Much better to take precautions now rather than have unnecessarily tensions later. just my opinion.

 

DISCLAIMER : General information and advice provided is without any warranties as to suitability for any use, correctness and application to any specific case. Please always take proper legal counsel . However, if it helped anyone even a little a " thanks" would be appreciated and would encourage me to keep on making efforts :-) . I am also always open to corrections and further learnings from more experienced Seniors here.

1 Like

Tajobsindia (Senior Partner )     26 September 2014

@ Author,

 

1. Her USA divorce decree is not valid in India which means that they are still married as per Indian law
Take: Yes.



2. In order to get re-married, she needs to file a fresh divorce application in India.
Take: Yes.

 

3. If the other guy has re-married in India, then there is a case of bigamy against him.
Take: Yes, only his wife and her father can file such case.

 

4. Since the guy is re-married and settled in USA with his second wife, he will not be coming to India to settle his first marriage case.
Take: Cannot reply as this que. can be best answered by that guy (her husband) only. However, option such a s PoA and/or Video conference are available to dissolve such long distance marriages and now-a-days video conference are available in many Indian courts.

 

5. Even if we get married as per hindu rituals, marriage registration will not be possible without concealment of facts that she was married before.
Take: The marriage will not be a valid marriage even if its further registration.

 

Further, request the experts to answer my below queries :

 

1. Is there a way to get the USA divorce decree enforced in India? Any affidavit stating that the USA decree is acceptable? Any endorsement?
Take: No.

 

2. Is there any way via which we can marry legally in court without concealment of facts?
Take: No.


3. In case a fresh divorce application is to be filed, on what grounds it should be filed to get the judgement quickly?
Take: Best is to tell her to first seek Certified copy of foreign Divorce and challenge it in her jurisdiction Indian Court and the moment parties are referred to counseling they opts for PoA and or Video conference route Mutual Consent Divorce which can be over with quickly in under 8-9 months to the maximum keeping backlog of current Court cases in India.

1 Like

Mayank (Sr Manager)     26 September 2014

Thanks for the replies.

My concern is that the guy will not respond to any summons (either mutual consent or any other) from India as he will have the fear of getting entrapped in bigamy case.

Can experts give advice on how the girl can get exparte divorce?

Tajobsindia (Senior Partner )     26 September 2014

@ Author,

 

1. First assist her in finding a local advocate via reference and with proper due diligence. 

2. On grounds of 'desertion' (since 2008) under Hindu personal Laws she can proceed for relief in a court of Law. 

3. Court Notice (process service) served upon his last known local address in India. Later based on showing respondent (her husband) non-appearance in court proceedings here in her jurisdiction ask her advocate to pray before ld. Court to proceed on ex parte stage as per Rules. 

4. Here, at such stage of court proceedings, she replicates her prayer 'grounds' and upon satisfaction of Court she is granted an ex parte divorce under grounds of her husband's desertion which she should then Execute on his last known address in India and after waiting for Appeal period (which is 90 days) she can re-marry with you/any other person of her choice. 

 

However, compared to convincing him to opt for PoA and or Video conference route MCD (mutual consent divorce) vis-a-vis ex parte divorce the former is much easier provided the girl in question personally speaks to him assuring no bigamy case will be filed. Moreover, strict proof of his second marriage needs to be shown to Court to align charges of bigamy and simply alleging he has re-married in a subsisting earlier marriage will not bring in conviction under stricter criminal Laws of the land. This large sentence she can speak to him to convince him to opt for PoA and or video conference mutual consent divorce. 

 

In whichever way the facts lead now on this brief is a innocent washed out brief for this lady's future until she takes pro-active action herself by cherry picking one option out of the two mentioned in two replies of mine. If she cannot muster enough courage then I would suggest you to move on in life and may then just remain good friends with her. 

 

PS:
In matters under Family Law there is common saying; never speak on behalf of other guy (her husband) as you may never know how and when and why he one fine day turns back in real in front of her !

 

[Last reply]

Adv. Chandrasekhar (Advocate)     26 September 2014

If she got (or otherwise she has to get) the certified copy of the divorce and register your marriage under Special marriage Act, after attaching your and her divorce certificates along with marriage application.  As the husband filed  the divorce petition and wife acquiesced the divorce decree, even it is a foreign decree, there should be no qualms about dissolution of marriage.  It is that flight of wild imagination  that ex-husband would come to harass you couple.   Only she has to worry, if your intentions are not bonafide and if you want to get advantage of her foreign divorce decree.  If no such malafide intention is there, then go ahead, marry and enjoy the life.  Do not fall into the trap of filing any divorce petition under any sub-sections of Section 13 (1) or Section 13-B.  If the marriage registrar refuses to register your marriage, approach the High Court under writ jurisdiction against the marriage registrar and the High Court will take care to exercise its extraordinary jurisdiction to recognize her divorce decree and see to it  that your marriage is registered. Advance marriage greetings to both of you.

Tajobsindia (Senior Partner )     27 September 2014

Originally posted by : Adv. Chandrasekhar
  If she got (or otherwise she has to get) the certified copy of the divorce and register your marriage under Special marriage Act, after attaching your and her divorce certificates along with marriage application.  As the husband filed  the divorce petition and wife acquiesced the divorce decree, even it is a foreign decree, there should be no qualms about dissolution of marriage.  It is that flight of wild imagination  that ex-husband would come to harass you couple.   Only she has to worry, if your intentions are not bonafide and if you want to get advantage of her foreign divorce decree.  If no such malafide intention is there, then go ahead, marry and enjoy the life.  Do not fall into the trap of filing any divorce petition under any sub-sections of Section 13 (1) or Section 13-B.  If the marriage registrar refuses to register your marriage, approach the High Court under writ jurisdiction against the marriage registrar and the High Court will take care to exercise its extraordinary jurisdiction to recognize her divorce decree and see to it  that your marriage is registered. Advance marriage greetings to both of you.

 

@ Adv. Chandrasekhar,


I totally disagree to your advice and I quote you "only she has to worry'  from your above reply 


If your rest of the advice is to be believed then all 'foreign decrees of divorce" given "ex parte" read with "IrBM as ground" would be valid in India. It would make all NRI's life easier seeking those divorce decree on "ex parte" basis as well as on "such grounds which are not recognised under Indian matrimonial Laws". This is not the case in hand as per this brief  ('she neither attended foreign Court nor this foreign divorce is on valid Indian grounds' hence the ex parte divorce decree is not correct legal document whose certified copy she is now seeking (brief says she has already applied for the certified copy) nor Apex Court has ever said so to best of my knowledge.


I am aware more often you quote D HC so here is one from our own D HC

Link:-

https://timesofindia.indiatimes.com/city/delhi/Ex-parte-divorce-decree-by-foreign-court-invalid-HC/articleshow/19717428.cms 


And here is THE decision of Apex Court on validity of foreign divorce in case you want to visit the citation again and change your earlier taken stated / position;

 Ref.: Y. Narasimha Rao and Ors. Vs. Y. Venkata Lakshmi and Anr. [II (1991) DMC 366 SC]


Thus you have advised wrongly here in this brief is my view unless you have most recent ruling of Apex Court which categorically says (1) ex parte and (2) Irretrievable Breakdown of Marriage (IrBM) are valid Ground. 


Update generic readers of the forum as well as me if I may not have noticed most recent Apex Court (late 2013 - 2014) judgment if any?


PS:

(A) I am fully aware of the universal principle of law "if someone has accepted the authority of a court, it cannot be open to the person to later question the authority of the court" as was the case in Ref.: Mrs. Anoop Beniwal vs. Dr. Jagbir Singh Beniwal [I (1990) DMC 239] and based on this ref. Apex Court judgment if you are trying to use verb "acquiesced" as in your reply then I am sorry it is not a right advice at all, hence point of disagreement. 

(B) I am also aware Registrar of Marriage does not check grounds of divorce or from which jurisdiction it is sought as it is above his pay grade. BUT, HC's do check the ground and foreign divorce decree and its validity, if Registrar of Marriage has some unfound objection as advised by you to this queriest to then go to HC under Writ relief. Also what if the lady is not telling the truth that he has re-married? Consistent review the whole brief then reply in accordance with present Law which should be the norm by Adv. like you is my view; even if you are women centric advocate.

Adv. Chandrasekhar (Advocate)     27 September 2014

@Sh.Tajobsindia,  The ratio laid down in "Y. Narasimha Rao and Ors. Vs. Y. Venkata Lakshmi and Anr.
is unchallengable authority so far as validity of foreign divorce decrees are concerned.  Certainly the divorce decree under consideration is ex-partee one in addition to that it was obtained on the ground of IRBM ground plus with additional string that the notice was not served on the respondent at proper address.  All these are very effective grounds to challenge such foreign divorce decree.  But who would challenge it?  His wife is not interested and is happy with the divorce decree.  Her ex-husband is happy by getting the decree without hassles. He may have remarried after divorce or it may be white lie invented either by the husband or wife for his/her vested interest, will also not affect any future events.  Mr. Mayank is happy with this situation.  I cannot predict any problem from any quarters.  Mr. Mayank's fiancee cannot create any problem in future on the ground that the divorce decree is not valid in the light of above said supreme court verdict, as she herself by way of affidavit is saying that she is a divorcee while registering her marriage.  She cannot get advantage by taking the plea of her own mistake or ignorance.  No doubt, her ex-husband is barred to raise the question of validity of the divorce decree as he was the petitioner and there was no need for him to do so.  So, by stretching my imagination in all directions, I couldnot anticipate any problem if both go for special marriage on the strength of foreign divorce decree.  Only Mr. Mayank has got a faint chance to challenge the validity of this foreign decree in future on some grounds but as he has got no such ill intentions is evident as he came to this forum to seek advice.  As you know very well that the trend in India is not to disturb the matrimonial life on technical points, if any problem crops up in future, courts will not allow any one to disturb this couple's marital status on the ground that the foreign divorce decree is not ratified in India.  So let them get married and go to honeymoon.

 @Raj 123, In our country, even the respondent does not appear, it is very difficult to get divorce decree, as the petitioner is burdened to prove to the hilt about the grounds for divorce. So, if her husband does not appear then also it will be difficult to the wife to get divorce.  That next line in your statement does not give any sense to me in the light of the facts of the case.  Her husband, who obtained foreign divorce decree will not come here to challenge the expartee decree, if wife obtains it here.  So, such situation does not arise.

1 Like

Tajobsindia (Senior Partner )     28 September 2014

@ Adv. Chandrasekhar,


You are one smart espressive ld. brother that the Forum has.


You extrapolated the hint I left behind in my last message to you  "if someone has accepted the authority of a court, it cannot be open to the person to later question the authority of the court"


Yes, you have a point there. I agree with you about 'current trend':-)  I also acknowledge your "inside the box thinking".


Thus I convey back my 'Thank' and close my discussion, I am satisfied by you clarifying the air.


[Last reply]

Mayank (Sr Manager)     30 September 2014

Dear All

Thank you all for your replies...
 
Please allow me to elaborate a little further :
 
The girl has not challenged the decree and neither have I any intentions of creating issues in the future. I am getting a second chance in life and have no intention of screwing this up on technical grounds. 
To clarify about the guy, the guy has re-married as is evident from the social media sites. I am trying to get further substantial proof of the same (photos, marriage card, certificate etc.)
 
However, the fact, as established from all the discussion above and after going through the links posted, is that the decree in itself is invalid in India (foreign, exparte and on grounds of irretrievable breakdown). 
 
It was mentioned in one of the replies by Sh.Tajobsindia above that the registrar of marriage doesn't normally check the grounds of divorce or the jurisdiction from which the decree is sought. 
For initiating the process of court marriage, (as mentioned in my original brief, I want to go for court marriage now) I got the documents checked from the office of registrar of marriages. They have clarified that the documents will not be accepted unless adjudicated by the district court, which I understand is the route of filing a fresh divorce petition. (Please correct me if I am wrong here)
 
Furthermore, he stated that registration of marriage will also not be possible as the documents showing current marital status have to be submitted during marriage registration.
 
Now there are following options in front of us :
 
1) Get married first and apply for marriage registration by attaching the foreign divorce decree. In case the registrar of marriages refuses, we move HC to get the marriage registered as advised by Sh. Adv. Chandrasekhar
In this scenario, can the HC declare the marriage void as HC will check the validity of documents as mentioned by Sh.Tajobsindia
 
2) File for a fresh petition (grounds can be desertion or MCD) as advised by Sh.Tajobsindia
In this scenario, the time period we are looking at is between 9 months to a year minimum.
 
3) Conceal the fact that she is a divorcee and get married.
 
4) Get married and get the registration done from a different office in a different state
 
We are getting conflicting views from all the people we are taking advice from and are really confused.
 
I am turning to experts again for your thoughts and guidance on the matter.
 
Thanks and Best Regards

Divesh Shah (job)     22 January 2016

Hi Mayank,

I am in similar situation. Did your fiance managed to get divorce? Please help me. 

Thanks.


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