VALIDITY OF THE DIVORCE DECREE IN THE FOREIGN COUNTRIES
Most couples married in India often wonder if it is possible to apply for a divorce in the US and if the divorce decree so obtained in the US is valid in India. It is, of course, possible.
However, the rules will not be the same when foreign laws and processes are involved in the divorce. Whether you’re divorcing in US and trying to get the Indian tribunal to uphold and put into effect your US divorce decree, there are some rules and principles that will be considered.
This article traces out these issues in detail to throw a clear picture.
Before proceeding, let us understand the concept of ‘comity of courts’. This means that tribunals in various countries grant probity to decrees of foreign courts. The understanding being, the tribunals all over the world adjudicate the rights of the parties and therefore, show mutual respect. This principle was first laid by the Court of England and subsequently approved by the Supreme Court of India in Elizabeth Dinshaw v. Arvand M. Dinshaw. The Court recorded the observation that:
“ … it is the duty of all courts in all countries to do all they can to ensure that the wrongdoer does not gain an advantage by his wrongdoing.”
The Supreme Court of India in another case Alcon Electronics (P) Ltd. v. Celem SA of FOS 34320 Roujan, recorded the following:
The principles of comity of the nation demand us to respect the order of the English Court. Even in regard to an interlocutory order, Indian courts have to give due weight to such order unless it falls under any of the exceptions under Section 13 CPC.…
These are the competing considerations before the Indian tribunals. That is the codified laws and the concept of “comity of courts”. These have to be reconciled by the Indian Courts.
In a different context, namely, custody of the child, in an inter-country dispute, the Supreme Court of India had occasioned to opine in Ruchi Majoo v. Sanjeev Majoo. It may be clarified that custody of child matter is to be viewed completely differently as against the dissolution of marriage. This is for the reason that in custody of child matters, the welfare of the child is of paramount consideration by the Court.
The Supreme Court of India’s view on comity of courts:
Since no system of private international law exists that can claim universal recognition on this issue, Indian courts have to decide the issue regarding the validity of the decree in accordance with the Indian law.
Is it necessary to have a US attorney?
The answer is, Yes! The divorce process in the US is confusing and cannot be worked out on your own. Hiring an US attorney can help protect your interests and assist you in making sure you follow all the rules applicable to divorce proceedings in the US.
A couple married in India can apply for divorce in the US for various reasons but the important reasons can be listed as follows.
- Domestic violence.
- Issues relating to in-laws.
- Financial problems when one spouse keeps the other in the dark about the finances.
Is it difficult to get a divorce in the US?
Well, it could be so when there are issues related to property in the US and India, child custody, or when one of the spouses takes the child back to India without the consent of the other, etc.
When a couple married in India are seeking a divorce in the US, it will not be a simple process as the US lawyer needs to understand the basis of the Indian family system, which in itself is unique. Also, the US lawyer needs to know the various marriage laws in India as it is community-based. The Hindu Marriage Act, Muslim Marriage Act, Dowry Act, etc., are a few Acts that need a clear understanding before handling a case.
Being a resident of the state is important.
Indian couples can, no doubt, obtain a divorce in the US, but they need to fulfill the residency requirements.
If one spouse lives in the US and the other in India, it is still possible to file for divorce in the US but according to the latest Supreme Court of India ruling the grounds for divorce should be recognized by the Indian law.
Requirement For Filing A Case In US:
At least one spouse must have lived in the US (Virginia, Maryland or DC) for six months before either spouse can file for divorce in the state. Being a resident of the state of Virginia, Maryland or DC is important. An Indian couple can, no doubt, obtain a divorce in the US, but they need to fulfill the residency requirements.
In Harmeeta Singh v. RajatTaneja, 2003 SCC On Line Del 60, the husband had filed proceedings in the foreign court. The wife has approached the Delhi High Court by way of a civil suit. The High Tribunal restrained the husband for continuing with the proceedings in the foreign court, as the wife had no spouse visa, thus she possibly could not defend the proceeding in the foreign court. Of course, there was no occasion for the wife to submit to the jurisdiction of the foreign court.
How legal separation works in the US?
Indian couples married in India can initially get a limited dissolution and then the final dissolution in the US. To get a final dissolution, the grounds should be cruelty, desertion, adultery or divorce based on one year separate and apart.
The benefits of limited dissolution are that the couple can make use of the health insurance of the other or get spousal support benefits until the final divorce in the US (Virginia, Maryland or DC).
Contested and Uncontested divorce in the US (Virginia, Maryland or DC)
In a contested divorce, the parties want a divorce in the US, but cannot come to an agreement regarding property, child custody, etc. In such cases, the matter will need to be settled by the court after a separation agreement is signed.
An uncontested divorce in the US means both the parties agree to the terms of the divorce without raising an objection.
For an uncontested divorcein the US, the divorce can be obtained in 2 to 3 months while for a contested divorce in the US, it will be around 15 months to 2 years depending on the case.
Points to note when married in India and applying for divorce in the US.
- Couples need to understand all the legal issues involved.
- The couple needs to realize that they will have access to the courts in the US just as the US citizens.
- Divorce can change the VISA status considering the immigration laws.
- The divorce laws of the state that the couple is residing, will apply even though the marriage was solemnized in India.
Recognition of a U.S. divorce decree in India:
A foreign judgment can be executed in two ways in India. The ways are as follows:
- First, by filing an execution under Section 44A of the Indian Civil Procedure Code. Section 44A states that a decree passed by Indian Courts in reciprocating territories can be executed in India as if the decree was passed by the Indian Courts only.
- Secondly, by filing a suit upon the foreign judgment/decree. For instance, the decree does not pertain to a reciprocating territory or a superior court of a reciprocating territory, as notified by the Central Government in the Official Gazette, the decree is not directly executable in India. Here the decree passed by the foreign court shall be considered as another piece of evidence.
Note that, the US is not declared as a “reciprocating territory” by the Government of India, therefore it is mandatory to file a suit upon the U.S Divorce Decree.
Judgments from the U.S (non-reciprocating territories) can be enforced only by filing a lawsuit in an Indian Court for a Judgment based on the U.S judgment. The foreign judgment is considered evidentiary.
The limitation period for filing enforcement of the U.S Divorce Decree:
The time limit to file such a lawsuit in India is within three years of the U.S judgment.
A foreign judgment is considered conclusive by an Indian Court if such judgment:
- has been pronounced by a court of competent jurisdiction;
- has been given on the merits of the case;
- is founded on a correct view of international law;
- is contained in proceedings that followed principles of natural justice;
- has not been obtained by fraud; and
- does not sustain a claim on a breach of any law in force in India.
When a foreign divorce decree will not be recognized in India?
A divorce decree obtained in a Foreign Country will not be recognized in India when it is not satisfied with any of the above conditions.
For example, when the court does not have jurisdiction to grant a divorce. The Courts having jurisdiction are: The court of the place where marriage is solemnized or where the parties last resided together as husband and wife, and where the opposite party resides.
In Satya v. Teja Singh, (1975) 1 SCC 120 when the respondent had instituted a foreign court divorce proceeding, in a court in whose jurisdiction the applicant has never lived, the respondent had made a false representation that respondent was a bona fide resident of that State. It was held that the respondent had practiced a fraud on the foreign court by concealing this fact. Therefore, that foreign court had no territorial jurisdiction. That foreign court divorce decree was declared invalid by the Supreme Court of India.
Law on this has hardly undergone any development in the last 27 years. Y. Narasimha Rao case stands alone, so to say.
Briefly, the expression “where it has not been given on merits of the case” was commented upon by the Supreme Court of India in International Woollen Mills v. Standard Wool (UK) Ltd., ((2001) 5 SCC 265). The view taken was when evidence was led by the plaintiff applicant in the foreign court, even though the opposite side may have been served but not appearing, the decision would be “on merits”. This Court concurred with the law laid down in another case which stated that:
A decision on the merits involves the application of the mind of the Court to the truth or falsity of the plaintiff’s case and therefore though a judgment passed after a judicial consideration of the matter by taking evidence may be a decision on the merits even though passed ex parte, a decision passed without evidence of any kind but passed only on his pleadings cannot be held to be a decision on the merits.
- Parties to the divorce must have had the opportunity to represent their case in the foreign court. To recognize a foreign divorce decree, the court in India will ensure that there was fairness, good faith, and diligence of each party.
- Indian courts will not recognize a divorce decree obtained in the US if the grounds are not recognized by the Indian divorce law.
- When the divorce decree is against principles of Natural Justice.
- If the divorce decree was obtained by fraud.
In the event of the foreign divorce decree being held invalid by the Indian court, the consequence would be, as held in Y. Narasimha Rao v. Y. Venkata Lakshmi ((1991) 3 SCC 451).
- The respondent remarries, he may be prosecuted for bigamy. Case in point is
- Opposite party may file for maintenance.
- The issue of custody of children can be raised.
- Opposite parties may claim a share in the property of the respondent.
How to enforce the US divorce decree in India? Things to know.
According to the State Department, the US divorce decree will be recognized in India as it has a secular justice system.
An experienced Indian divorce lawyer licensed to practice in the US such as Mr. Sris who is licensed to practice in Virginia, Maryland & DC and having extensive knowledge of the Indian legal system, should be able to advise you whether your US divorce will be recognized in Indian courts.
Mr. Sris is a highly experienced US divorce lawyer who is licensed to practice in Virginia, Maryland & DC. He assists numerous Indian clients with dissolution of marriage cases in Virginia & Maryland. He is also frequently contacted by Indian clients in other states such as New York, New Jersey, Massachusetts, North Carolina and California regarding obtaining a dissolution of their marriage in their US state and how that would impact them in India.
Mr. Sris has also worked with other US attorneys to assist their Indian clients dealing with divorce in states such as New York, New Jersey, Massachusetts, North Carolina and California.
Indian clients in states such as New York, New Jersey, Massachusetts, North Carolina and California frequently want the help of experienced Indian lawyer licensed in the US to help them with their divorce in the US. As such, they reach out to Mr. Sris for guidance and in some cases hire him to be their trial counsel in states such as New York, New Jersey, Massachusetts, North Carolina and California through a process called Pro Hac Vice. This process enables Indian divorce clients to have Mr. Sris to represent them with the litigation in US states such as New York, New Jersey, Massachusetts, North Carolina and California.
This article is only to discuss the issue of whether a US divorce is valid in India. If you want to obtain a US decree and make it valid in India, contact the Law Offices of SRIS, P.C. for help.
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