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bobby (Consultant)     01 October 2010

enforcing foregn judgement in India

Friends:

Me and my ex-wife are Indian citizens. I am on H1B visa in USA. My wife went for 2 months vacation to India and refused to come back citing so many allegations, after waiting for 8 months I filed a divorce petition in USA court.

I was granted a default judgment of divorce as my ex-wife filed the answer (she was served properly by a process service based out of delhi) to the petition for divorce and child custody and didn't appear for hearing. The US court has granted me the child custody and ordered my ex-wife to pay me the cash which she has taken from me and some jewelry and also indicated that she is not eligible for alimony as per the state law. The final decree of divorce was sent to my ex-wife in India by US court.

In the response she filed an answer saying that the US court dosent have teh juridiction and asked the court to dismiss the petetion.

Now my ex-wife and her father are instead planning to file a petition in India court asking for maintenance (they are demanding around 30 lakhs), and child custody. Can she file the petition in India asking the court for the said points? can Indian court give a judgment on this as US court has already given the divorce, custody of child etc. and clearly stated that the child is a US citizen and he has the jurisdiction only in USA? I am in USA and my ex-wife family is troubling my old parents in India.

Q1: Is USA divorce valid in India (proper service was done, she filed an answer, she didn't attend the hearing citing the reason of visa, actually she never applied for visa extension tough she has all the papers for attending the visa)
Q2: Can I go for re-marriage in India, will my ex-wife create any problems that might say that I was not divorced in India.
Q3: As I was granted the child custody, can I get my son back (he is a us citizen)
Q4: Do I need to pay the alimony in India (US court has already ruled out saying that she is not eligible for alimony) if yes, how much will the Indian courts normally order?
Q5: Can I recover the gold and cash my wife is holding?
Q6: In my case, what are the chances of enforcing the judgment in India



Learning

 11 Replies

Saratchandra Sivalenka (Lawyer)     01 October 2010

Bobby,

The Indian legal system recognizes foreign divorces only under certain circumstances. An ex-parte divorce is a divorce that is not considered to be judged based on the merits of the case -- meaning not all parties' views were taken into consideration. Thus, it is not consistent with Indian divorce laws. So, while it is valid in US, it is not valid in India. On the other hand, a mutual consent divorce from abroad is valid in India. You need to petition an Indian Family Court and get the foreign divorce ratified so the wife cannot meritoriously litigate the divorce later. Unless ratified, you are still considered married in India and cannot remarry in India. Your wife can petition an Indian Family Court anytime. Your wife is considered to have kidnapped your son in the eyes of US law but it is not practically that easy for you to obtain child custody from her in India without approaching Indian Courts. When she petitions for alimony in Indian Family Court, she may be entitled to alimony based on length of marriage, standard of living during marriage, her earnings, your earnings, etc. Recovering gold and cash, marriage expenses, daily expenses during marriage, etc. is almost practically impossible. US judgment is not enforceable in India.

Please contact a qualified divorce lawyer to get this resolved.

Thanks,

Sivalenka SP Saratchandra Kumar, MA, BL
Hyderabad Lawyer for NRIs
Door No 1-8-540/2, First Floor
Next Lane to Odeon Theatre, Chikkadpally
Hyderabad, AP 500020
India
Tel: +91-9490119818
https://www.hyderabadlawyer4nris.com

1 Like

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     01 October 2010

The problems of the Indian legal system has been explained above in detail.

Yes you can remarry again in India or USA no problem.

1 Like

bobby (Consultant)     01 October 2010

Thank you Sarath Chandra garu and Shashikumar garu:

you mentioned that I can remarry, how can I with out the forign drcree being enforced. Could you please through more light on this.


Is there a remidy to my problem other than paying 30 lakhs to my ex-wife?

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     01 October 2010

Laws are made by humans so it is humans who find ways out of it.


(Guest)

A Big no. I can assure you that in case they do file a case in India after the US judgment, simply write to the judge who will not only write a personal letter but also take to task your ex wife under the 5th Amendment of Bill of Rights and the matrimonial/Divorce laws of the State where the US court delivered the judgments. US judges are not LORDSHIPS/FEUDAL lords and brook no no nonsense. You'll be suprised when you get a personal letter.. YES YOU CAN REMARRY. A default judment in USA will go against your ex wife.

 

 

Good luck.

1 Like

(Guest)

She cannot get the Child custody or Rs 30 Lakhs,provided you write to the US judge.

bobby (Consultant)     01 October 2010

could you please let me know how shall I get the personal letter and how should I address this issue. I do not have an attorney in US anymore.

Nu.Delhi.Law.Fora. (Advocate-on-Record Supreme Court of India)     01 October 2010

Dear Querist,

 

Please be advised that Conclusiveness of US Judgment in your case would depend largely on whether the said judgment is given on merit by a US Court of competent jurisdiction, taking into consideration, Indian law, covering same ground as covered by the English Law under which the decree was granted and that defense filed by your ex-Wife was duly taken on record and considered, the conclusiveness of the decree, will not be open to challenge [per Anoop Beniwal vs. Dr. Jagbir Singh Beniwal: AIR 1990 Del.305]. Hence, it appears that the decree passed by the US Court will be binding on your ex-Wife – The law contained in Sections 13 and 14 C.P.C. which is not merely rules of procedure but rules of substantive law recognizing conclusiveness of a foreign judgment. [AIR 1991 Ori 263 : Dr. Padmini Mishra vs Dr. Ramesh Chandra Mishra].

As regards Custody of your minor Son, since by judgment of a US court, custody of child was given to you, in the absence of any exceptions under Section 14, the judgment of foreign court, will be binding on your ex-Wife as well.  In view of the said order of the foreign judgment, the you will be entitled to custody of the your son. [AIR 1994 P & H 309 Mrs. Jacquiline Kapoor vs. Surinder Pal Kapoor].

Trust this would suffice.

 

Rabin Majumder

Advocate & Attorney

For Nu.Delhi.LAw.Fora.

1 Like

(Guest)

Hon. Sir/Madam,

 

 

[State all facts very cryptically and parawise as judges don't have the time to read novels]

 

Yours most respectfully

 

 

[Your signature].

bobby (Consultant)     05 October 2010

Thank you all for your valuable sugestions, i am filing a Heabus Corpus for the clild in teh high court and another petetion in the district court for teh validation of divorce under section 13 A and 14 CPC.

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com))     06 December 2012

Read This 

Validity of Foreign Divorce Decree in India ? Does your UK/US divorce stand ?

This article attempts to bring some clarity on the law relating to recognition of foreign divorce decrees in India, in what circumstances they are valid, and when not ? I’ve also tried throwing light on the process and procedure of challenging or upholding the same in India ….read on 

DIVORCE

 A Happy marriage is a harbour in the tempest of life – an unhappy one a tempest in the harbour of life…..A Marriage that is devoid love, care and affection deserves, in my firm view to be done away with, whether or not either party wants to stick with it. It is sad that Indian Law is still pretty rigid in that regard primarily because of the notion of marriage being a sacrament. Obtaining a Divorce in India is an ordeal unless both parties consent to it. To get a contested divorce one needs to prove grounds such as cruelty/adultery/desertion etc, which is extremely difficult and time consuming. (The process & procedure of getting a contested divorce in India is explained in my article https://bharatchugh.wordpress.com/2012/10/23/divorce-in-india-all-you-need-to-know-about-contested-and-mutual-divorce/).  Indian Law does not recognise ’Irretrievable breakdown/Irreconcilable differences’ as ground for divorce.

 FOREIGN DIVORCE

As a Divorce Lawyer, day in day out I’ve been getting queries on the validity of a Foreign Divorces in India. This is an area fraught with many conflicting opinions and judgments full of legalease, let me articulate the basics of foreign divorces in India.

We take the example of a couple married in India as per the Indian Law (Special Marriage Act or Hindu Marriage Act). Now since the couple married in India, wherever they go – they take their personal law with them. Hence even if they subsequently settle in some other part of the world – their marriage and consequently their divorce would still be governed by Indian Law.

 

GENERAL PRINCIPLE – FOREIGN DIVORCE HOLDS GOOD IN INDIA

Contrary to a lot of misconceptions, as per the General Principle of Law (Section 13 CPC) A foreign decree is conclusive in India in normal circumstances. This is based on principle of res judicata – meaning that when a dispute has been adjudicated by a court it should not be re-agitated again & again – to prevent wastage of judicial time & expense and more importantly to ensure finality and certainty in human relations. Hence we start with the presumption that a foreign divorce is valid in India.

 

EXCEPTIONS – WHEN FOREIGN DIVORCE WON’T BE RECOGNISED IN INDIA

The Indian Law would refuse to recognise it – when any of the following conditions are present :-

a) When Granted by Court not authorised by Indian Law to grant the same - When the decree is passed by a court having no jurisdiction (meaning authority to decide) as per the Indian Law; which leads us to the question which courts have jurisdiction as per the Indian Law, normally the court of place where marriage is solemnised (normally India) or where the parties last resided together as husband and wife, and where the opposite party resides (non applicant). Courts of all these places shall have jurisdiction.

b) When one side is not heard or his/her submissions not taken on record : That the decree is not passed on merits – ‘on merits’ in layman terms means the court took both side’s submissions into consideration before deciding the case – if it is not done – then decree does not hold good in India. The problem arises when one spouse serves a divorce summon on the other and the other spouse leaves the country and comes back to India, and a decree is passed ex parte (in absence of that party). In these cases if it is established that party left jurisdiction just to avoid the divorce proceedings and was otherwise there, the decree should be valid in India, for no court should allow such fraud to take place ;

c) On a ground not recognised by Indian Law -  When the Divorce is granted on grounds not recognised in India – for those who arrived late – Cruelty/Adultery/Desertion/Impotency are grounds that Indian Law recognises, so if the divorce is granted on these grounds – The decree is valid in India. Please note that in such a case it need not be validated in India by filing a suit or anything.  It is the burden of person challenging the decree to discredit it.

Now the basic problem is encountered here – Indian Diaspora is increasingly getting divorces on the ground of ‘irreconcilliable differences/irretrievable breakdown of marriage’  which is also known as no fault divorce. In this species of divorce – cruelty/adultery need not be established. If the court feels without going to faults/allegations etc – that the couple cannot be expected to live together now and their bond seems to be broken irreparably – Court grants divorce. Normally in such cases the court would grant a decree nisi (temporary) that is turned into absolute (permanent divorce) after 6 months or so (depending on state law). Within these six months the opposite party gets a right to oppose or consent to divorce, in either case it is normally granted.

Sadly this divorce is not valid in India because ‘irreconcilliable differences/irretrievable breakdown of marriage’  is not recognised in India as a ground for divorce, though a bill to that effect is pending in Indian Parliament and may be passed in the future. But as of today such decrees are not binding in India.

Hence a word of advise instead of going in for a no fault divorce – a fault divorce (cruelty) etc should be obtained, which is somewhat difficult, but unimpeachable in India.

d) When the proceedings are against principles of Natural Justice ?  Now in simple terms principles of natural justice are certain principles which broadly make the judicial proceedings fair and just. For eg : both parties should know allegations levelled and be given a fair opportunity to be put forth their case, judge being impartial is also a facet of natural justice.

Again the question comes –  if on filing a divorce the other party leaves jurisdiction and runs back to India (normally wives tend to do that) in such a case, it would again be a question of intention and the decree cannot be said to be against natural justice if party herself evades the court when otherwise a permanent resident was established there. In a matter which I am consulting currently the woman is fighting child custody/property matters in US and is a permanent resident, but we know it for sure when the man files the divorce –  in order to prevent that she would run back to India – in such a case I feel the divorce decree granted even in her absence should be valid. Though this is a grey area but when she had adequate opportunity to defend – any attempt to frustrate judicial process by running away should be dealt with stern hands.

There may be another situation where the spouse is in India and the other spouse files for divorce outside India, in such situation even after the spouse in India is served (notice is sent and received) any decree passed in absence won’t be valid in India, unless the court feels that the other party had ample opportunity to go, engage counsel and defend in that country. Normally in decrees passed against women in India, Indian Courts have refused to recognise them.

 

e) If it is obtained by fraud – if a decree is obtained by misrepresentation of facts or fraud – then the same is not valid in India.

The above are the cases where a foreign divorce won’t be recognised in India, and may lead to a situation where a person may be divorced(and single) in one country yet married in Indian law, and this can spell disaster in case of subsequent marriage as bigamy proceedings may be initiated against such person.

If your divorce is valid in India as per the above test – it is not a requirement of law for you to validate it, however you may still do so in order to start from a clean slate and avoid belated disputes.

If your divorce is not valid in India – it has to be challenged by filing a suit for declaration as to your marital status and invalidity of such a foreign decree, burden of proof being on the person who challenges.

I hope I’ve been able to clear some airs on the question of foreign divorce decrees and their validity in India.

My next article would be on validity of child custody decrees passed in foreign courts.

*The Author Bharat Chugh is a Supreme Court advocate specializing in Divorce Laws in India, particularly jurisprudence relating to foreign divorces, and can be reached at bharat.law06@gmail.com


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