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Will my US divorce be valid in India?

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  • Will my US divorce be valid in India?

    I am an Indian that got married in India. My wife then came to the USA about a year ago and things have not gone well. I want to divorce her.

    If I get a divorce in US, will it be valid in India?

  • #2
    Re: Will my US divorce be valid in India?

    Normally yes it will be valid but see the basic outline below. It can get a bit messy if one party starts to contest it heavily...see other related discussions in this forum as well.



    Applicable law: In this case Section 13 and Section 14 of Civil Procedure Code 1908 and Section 13 of Hindu Marriage Act 1955 are mainly enforceable.

    Validity of Foreign Judgment: I wish to inform you that in case of divorce granted by US Court is a foreign judgment in India. In this Hindu Marriage Act, 1955 provides about divorce but it does not contain about divorce declared by foreign court. Accordingly, in this case Section 13 of the Civil Procedure Code applies. Section 13 deals with the conclusiveness of foreign judgment. It states as follows

    "Section 13
    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 recognise 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."

    Under Section 13 of CPC a judgment on divorce by US Court will be valid in India. However, this divorce should be given on any of the grounds provided under Indian law. In this Section 13 of Hindu Marriage Act provides for divorce.

    Presumption as to foreign judgment: Under Section 14 of Civil Procedure Code it is presumed on the production of any document that is supposed to be a certified copy of foreign document that such judgment was pronounced by courts of competent jurisdiction unless it appears otherwise on the record or is proved.

    Grounds of Divorce under Hindu Marriage Act: Section 13 of Hindu Marriage Act provides following grounds of divorce if one of the spouse:
    (i) is living in adultery; or
    (ii) by conversion to another religion one of the spouse has ceased to be a Hindu ; or
    (iii) has been incurably of unsound mind for a continuous period of not less than three years immediately preceding the presentation of the petition; or
    (iv) has, for a period of not less than three years immediately preceding the presentation of the petition, been suffering from a virulent and incurable form of leprosy; or
    (v) had, for a period of not less than three years immediately preceding the presentation of the petition, been suffering from venereal disease in a communicable form; or
    (vi) has renounced the world by entering any religious order; or
    (vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; or
    (viii) has not resumed cohabitation for a space of two years or upwards after the passing of a decree for judicial separation against that party; or
    (ix) has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of the decree.
    A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,
    (i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner:
    Provided that in either case the other wife is alive at the time of the presentation of the petition; or
    (ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality.
    Note: In case the person is not a Sikh, Hindu, Buddhist or Jain then their personal laws will govern the grounds of divorce and not Hindu Marriage Act. Such a person could be from Muslim, Christian, Parsi, Jew community, etc.

    A divorce by US Court should be on the grounds specified above in Section 13 of Hindu Marriage Act.

    Analysis:
    In this regard divorce will be valid in India in case divorce is performed by a court of competent jurisdiction in USA. Further, the divorce judgment should not have been obtained by fraud and should be decided on merits of the case. Here if the decision of divorce is ex party then it may not be enforced because the decision is not on merits. Also, the decision of divorce should not be against Indian law and should not be obtained fraudently. In this regard the leading case is of Satya v. Teja Singh, AIR 1975 SC 105, where husband has obtained divorce decree by showing that he is a resident or domiciled in USA. However, husband was not a bona fide resident of USA. Thereafter, Supreme Court of India declared divorce as void as it is based upon false facts and the court lacked jurisdiction.

    Conclusion:
    The divorce by US Court is valid in India provided it fulfills all conditions of Section 13 of Civil Procedure Code.

    Comment


    • #3
      Re: Will my US divorce be valid in India?

      I got my marriage annuled or voided in USA. And my wife was served papers by the attorney with witness in USA. still she wan not interested in contesting the case. So the judgement was given as default judgement in USA court. since this is annulment and not Divorce, if she go to India and say she dont want to be divorced will the Judgement in USA will be voided in INDIA. Please advise.

      Comment

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