Divorce after 4 years of Green Card

[ptd_19]

Hello,

My sister got married in 2001 and came to US on H-4 Visa. Her husband already cleared his labor approval and in his third stage of GC. She and her husband both applied I-485 together through husband's company. They got their green card together in 2002. She wants to take a divorce now. (reason, he did not touch her once even after five years of marriage. She is foolish to wait this long.. but for whatever reason she did. Now she wants to get out of that hell.).

1. What will happen to her green card if she gets a divorce now?
2. Can she apply for green card renewal or citizenship in the future?

Please help us!!
one more sufferer

 

[TheRealCanadian]

1. What will happen to her green card if she gets a divorce now?
2. Can she apply for green card renewal or citizenship in the future?

She'll be fine.

 

[nalayak]

she will face bigamy by laws of India if it is US no-fault divorce

If your sister's husband has agreed to the divorce, she will be fine.
If not, the she will face following situation regarding bigamy, because INS has strict laws agaisnt bigamy
by laws of any nation and it simply does not tolerate anyone breaking laws of the native country in this regard.

a. If your sister's husband has NOT agreed to the divorce AND
b. If your sister is planning divorce in US AND
c. If your sister's marriage has occurred in India under one of the matrimonial laws
of India, like Hindu Marriage Law, Christian Marriage Law etc.

then the US divorce must be in accordance with one of the grounds prescribed under the matrimonial
law under which the marriage has taken place. If not, the US divorce would be null and invalid,
even if both your sister and her husband are permanent residents of US.

If she re-marries anywhere after US divorce, her husband can file a criminal complain of bigamy
against your sister in India,which carries 7 years to 10 years in prison and huge fines.
Your sister's SECOND husband will be charged with adultery, for failing to extract the facts of your
sister's first marriage, which carries 3 years prison for him.

Your sister's FIRST husband can easily get your sister extridited for offense of bigamy.
The crime would not be by laws of US, but it would be by laws of India and that is enough
for extradition. Moreover, in the event of crime of bigamy by law of any country(even though not
by law of US), your sister's green card /citizenship will be revoked by INS, since INS has explicit laws
against bigamy

Moreover, if it is no-fault or 'irreconcilable differences' ground for divorce that would be petitioned by
your sister, then it does not matter whether he agrees to it or not, the party petitioning the divorce
always gets it.SUch divorce is not recognized in Indian Court, if he objects to it in Indian court.
His way of showing that he disagrees or objects to the divorce would simply be file a crime of bigamy
in India, in the event of your sister getting re-married.

 

[nalayak]

some additional info

Part 1

In Sarla Mudgal v U.O.I[19] the position was finally clarified by the Supreme Court.
1. "It is obvious from the various provisions of the Act that the modern Hindu Law strictly enforces monogamy. A marriage performed under the Act cannot be dissolved except on the grounds available under section 13 of the Act. "

2. "A Hindu marriage solemnised under the Act can only be dissolved on any of the grounds specified under the Act."

3. "Till the time a Hindu marriage is dissolved under the Act none of the spouses can contract second marriage."

Part 2
Domicile is the key to Matrimonial proceedings.

Bombay High Court has held that Indian DOMICILE
is essential condition for both the bride and groom
were domiciled in India at the time of their marriage
being solemnised in India.

This was held by a bench comprising Justices.B.Mhase
and Justice Dilip bhosle.

 

[TheRealCanadian]

If not, the she will face following situation regarding bigamy, because INS has strict laws agaisnt bigamy by laws of any nation and it simply does not tolerate anyone breaking laws of the native country in this regard.

This is utter nonsense. If she obtains a valid divorce in the United States, she can do as she wishes. If India does not recognize the divorce, that's their problem.

My wife used to work in a Canadian courthouse where they got this nonsense all the time because it was in an area with a heavy south Asian population. They laughed at this, and no criminal court would entertain an extradition request for bigamy once she can gotten a legal divorce.

 

[nalayak]

nope ..it is not

A person , Mr. Narasimha Rao, domiciled in USA was penalized for bigamy
by Supreme Court of India after he obtained no-fault divorce in the USA which was not agreed by his wife.That point in time Supreme Court ruled that
if the divorce ground is not valid under matrimonial law in India, Indian court will not accept that divorce, even if both the petitioner and the respondent are habitual or pemanent resident of the foreign country. If it is with mutual agreement only then it is valid.
Supreme Court of India Reported Judgement 1991(3), page 451
Y. Narasimha Rao Vs. Y. Venkata Lakshmi

She will be fine as long as she does not re-marry.
If she re-marries, her husband can file a complain of bigamy in India
just like Y. Venkata Lakshmi did.
Also, bigamy is listed as an extridatable offense in extradition treaty by US with India (or for that matter under any US and treaty with other nation)

These things are not simple as you may think.

You are RIGHT that the divorce will be CERTAINLY VALID in USA.
Therefore SECOND MARRIAGE BY HER WOULD NOT BE BIGAMOUS BY LAWS oF THE USA. But it would be by Indian laws!

My point is -She will not be doing any crime by laws of India by divorcing in USA.
The crime will be by laws of India, if she re-marries and her husband, assuming that he did not agree to the US divorce, files a complain in the India
under the jurisdiction of the marriage. Until then, nothing happens!
The proble would be due to the following criminal procedure codes
of India.

CPC -182- (2) Any offence punishable under section 494 or section 495 of the Indian Penal Code(45 of 1860) may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the offender last resided with his or her spouse by the first marriage


Let us say a person robs a bank in India and flees to USA.
He has not committed any crime by laws of the USA, but has broken
criminal laws of India. If the punishment for this crime is more than one year, then the person has to be extridited by USA to India.

USA cannot say, 'hey, he/she has not broken any laws of USA'
SO, if the India's criminal laws relating to bigamy are broken, then the USA cannot say, by re-marrying, she has not broken any USA laws!


US citizens otherwise do crime in India and hide in USA and vice versa.



More OPINIONS by others, who are sufferring with this type of situation can be found at

http://www.immigrationportal.com/showthread.php?t=199464&highlight=divorce

Additional resources
===============

http://66.102.7.104/search?q=cache:...ml+NRI+bigamy+cases&hl=en&gl=us&ct=clnk&cd=49


Qustion to lawyer Giridhar (expert in International laws) from Chennai
==============================
I was married in India but divorced in the USA I intend to remarry will there be any problem, I was divorced 6yrs ago and my ex-husband has remarried. Is my divorce valid in India.

Answer

If the divorce was granted by a court having the competence to decide on marital issues and having territorial jurisdiction over the place where you and your husband last lived together or where the defendant resided, then it should be valid, though I would have to see the decree before I can decide whether the grounds on which it was granted is valid under Indian law.
Regards,
Giridhar.

Question
---------
My wife and I were divorced in the USA. I am an American citizen and she is an Indian citizen. When we married we had a Religious Wedding in India and a civil ceremony in the USA. Our marriage certificate was from the USA. We got divorced in the USA. Is this US divorce certificate good enough for her in India?

Answer
-------

From what you state it may be valid, but I cannot say for certain without studying the order and the grounds on which the decree was issued.
Regards,
Giridhar.


CLEARLY THE GROUND FOR DIVORCE IN USA MUST BE IN ACCORDANCE WITH THE ONE AVAILABLE UNDER THE MATRIMONIAL LAWS IN INDIA UNDER WHICH THE PARTIES HAVE MARRIED or else the divorce should be mutually agreed.
It sounded strange to me in the beginning but it is true. Most of the people do not know this!


My last advice---
THE BEST THING WOULD BE TO APPROACH A LAWYER IN INDIA WHO IS EXPERT IN THIS FIELD, especially international law.

The Supreme court rule in Narsimha Rao bigamy case after no-fault divorce in St. Louis, Missouri are pasted just as they are there for your reference.Under Civil Procedure Code of India, 1908, Section 13, the foreign judgments are recognized but the jurisdiction assumed by the foreign country 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 are 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 under the matrimonial law under which the parties are married.

(ii) Where the respondent voluntarily and effectively submits to the jurisdiction of the forum 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 provision of the matrimonial law of the parties.

The aforesaid rule with its stated exceptions has the merit of being just and equitable. It does no injustice to any of the parties. The parties do and ought to know their rights and obligations when they marry under a particular law. They cannot be heard to make agrievance about it later or allowed to bypass it by subterfuges as in the present case.
The rule also has an advantage of rescuing the institution of marriage from the uncertain maze of the rules of the Private International Law of the different countries with regard to jurisdiction and merits based variously on domicile, nationality, residence-permanent or temporary or ad hoc forum, proper law etc. and ensuring certainty in the most vital field of national life and conformity with public policy.

 

[TheRealCanadian]

Your posts are most intruiging, but do not appear to address the central question. Do you have a single case of a US permanent resident who divorces and remarries in the US, and then is extradited because their original country does not recognize the divorce and a bigamy complaint is made?

I would imagine that if this was the case, there would be some examples from nations like (I believe) Chile that until recently did not recognize divorce.

 

[nalayak]

there must be..just that i do not know

there must be..just that i do not know..that is why I said in the end a lawyer must be consulted.But the rules are clearly applicable to such cases, one cannot take chance simply because he/she cannot find such example as you mentioned.
======================================================
The Supreme Court Case of India mentioned above, is mentioned by Ministry of Overseas Indian Affairs which states that one should make sure that he/she does not fall into situation like


Notable judgments of Indian courts (with principles laid down therein – to be filled in):


SC in Y. Narasimha Rao & Ors. V. Y. Venkata Lakshmi & Anr.


The website also mentions that if the divorce is mutual consent, then no ground is needed, else the grounds are

Matrimonial Rights of Hindu Women

Right to seek divorce


GROUNDS FOR DIVORCE:


Husband


Enters into sexual relationship with another woman
Deserts the wife for more than two years
Inflicts physical or mental cruelty on the wife
Converts to another religion
Has leprosy which cannot be treated
Has become mentally unsound such that no treatment can help him
Has venereal disease
Has disappeared for more than seven years
Has renounced the world and become a saint
Has been convicted for committing the rape and bestiality
Repudiation of child marriage


DIVORCE BY MUTUAL CONSENT:


No grounds are required to be given if divorce by mutual consent
===================================================

In the case of permanent resident from any foreign Country, the following Supreme Court rule CERTAINLY applies

(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 under the matrimonial law under which the parties are married.

You can see that the ground for divorce or any other matrimonial action is of utmost importance. So, even if there is or there isn't any case of USA permanent resident, they cannot escape bigamy, if their spouse disagrees to US based no-fault divorce. There was no case of bigamy after US based divorce, until Mr. Rao was prosecuted even while he was domiciled in the USA.

The above case would be for bigamy not because India does not recognize every matrimonial decision from US court. They DO.
The judgment must be in accordance with the jurisdictional facts, as specified in the matrimonial act under which the parties are married. If not, then it is regarded as the one by court of incompetent jurisdiction and hence
there would be bigamy if there is second marriage.

What case you are explicitly asking is something that I do not have.
However, the laws are clear about this. SO, if there is no case, there would be one.

Let us assume that there is some criminal law against some acts and there are some consequences of it as a result of breaking that law.
A person, if he/she sees that there is no example that he/she can find, who broke that criminal law and hence does not know what happened as a consequence of breaking it.
So he/she cannot go ahead and take a chance of breaking it, simply because he/she could not find such example!

Same would be the case, if a USA permanent resident breaks laws of bigamy of India, simply because he/she cannot find such case for prosecution, does not mean he/she is allowed to break the laws. Any good lawyer from India would advice him/her not to mess up with the laws, especially of the Supreme Court from the land of marriage, since when such laws are applied, they come as ratio decendenti, meaning all courts must follow those.

 

[TheRealCanadian]

But the rules are clearly applicable to such cases, one cannot take chance simply because he/she cannot find such example as you mentioned.

But you have not demonstrated that the rules are applicable to these cases at all!

It is certainly plausible to claim that Indian courts may not recognize a US divorce; that is their right. Perhaps the spouse could return to India and claim bigamy. However, it is a vast and unsupported claim that the Indian government would request extradition in such a case, and an even larger claim to say that the United States government would ever agree to such a travesty.

So again, please provide a single episode where extradition has been asked, never mind agreed to. Until then, this is mere fear-mongering.

Any good lawyer from India would advice him/her not to mess up with the laws, especially of the Supreme Court from the land of marriage, since when such laws are applied, they come as ratio decendenti, meaning all courts must follow those.

They certainly do not. According to such logic, people married in Chile, Malta and the Phillippines could never get divorced, since until recently these countries had no divorce laws (and Malta and the Phillippines still do not, IIRC) at all!

 

[nalayak]

you are missing the point

India has outlined jurisdictional rules for obtaining divorces outside of India for marriages conttacted in India under one of the matrimonial laws of India.

The point is India would not recognize it since it is a jurisidctional error.
there are rules for obtaing divorce outside of India, if the divorce is obtained in defiance of those rules, then it is invalid.
SO the logic of people of phillipines etc. does not apply since as you said, it sounds like they do not have such rules. There is/was flat non-recognition of marital disputes decrees from these countries, which is not the case with India.

India DOES RECOGNIZE the divorce from outside of India, as long as the jurisdictional rules for obtaining such divorces are followed. So, the point is India has well defined rules for obtaining divorces outside of India.
Looks like Phillipines etc. do not have the rules themselves, so the comparison cannot be made in such a case, with such countries that do not have rules at all for divorces and/or for obatining divorces outside of those countries.

Extradition will be substantiated since there are US based folks who have been charged with marriage related offenses under IPC 498-A and there names are in Interpol databases. I ama trying to find one post by one such person who is stuck in name checks for US citizenship due to his name appearing in Interpol database for marriage related offense by the laws of India. I will paste it as soon as I could find it.



India has also ruled that marriage related offenses, wherever they occur, can be tried in India if the bride and groom from the first marriage were domiciled in India at the time of the first marriage and also such marriage occurred in India.

So, any marriage related offenses, especially bigamy is certainly extriditable. The US would have to entertain this request since the criminal laws of India are broken clearly, if not those of USA. There would be no meaning to extradition. So, this is not fear-mongering, it is an attempt to tell the people that seek the divorce by properly following the jurisdictional rules of the matrimonial laws under which the parties are married. That is all what the SUpreme Court of India is saying.
Defying those rules would mean null, and invalid divorce and hence a crime of bigamy by a disgruntled spouse.
One more time, there does not have to be a case, if there isn't any, the laws are such that there would be one.

Also, when I meant that the Supreme Court of India rules are ratio decendenti, and dmust be followed by other lower courts, I mean they must be followed by lower Courts in India. They may or may not be respected by Courts outside of India.

In a nutshell, ONE SHOULD never try to defy ciminal laws of ANY PLACE! You never know since there is a saying
'WHAT GOES AROUND MUST COME AROUND'
Bottomline is clear-- if you break the criminal rules, you have to face the crime. No exceptions to this!

In the end, again, it is not fear-mongering, it is a way to tell folks make sure that you do not get into nasty situations and take the steps carefully. I think there is nothing wrong in saying this, since it does not harm anyone, in fact, it helps the concerned sufferers and that is what this forum is all about. Help folks, ask them to be careful, it does not mean scaring them in any way.

 

[TheRealCanadian]

SO the logic of people of phillipines etc. does not apply since as you said, it sounds like they do not have such rules.

The do have rules on divorce - there simply are none. As such, they treat all divorces the same way as India treats non-consensual divorces; they ignore said divroce.

so the comparison cannot be made in such a case, with such countries that do not have rules at all for divorces and/or for obatining divorces outside of those countries.

Of course the comparison can be made. You are claiming that a divorce that is not recognized by the home country (for whatever reason) opens one to extradition on the basis of bigamy. Wether the home country recognzies some but not all divorces, or none at all is really irrelevant.

Extradition will be substantiated since there are US based folks who have been charged with marriage related offenses under IPC 498-A and there names are in Interpol databases. I ama trying to find one post by one such person who is stuck in name checks for US citizenship due to his name appearing in Interpol database for marriage related offense by the laws of India. I will paste it as soon as I could find it.

I'm not asking you to provide examples of people who got a hit on the name check. Please stop avoiding the issue and provide a single issue of a successful extradition request.

So, any marriage related offenses, especially bigamy is certainly extriditable. The US would have to entertain this request since the criminal laws of India are broken clearly, if not those of USA. There would be no meaning to extradition.

Again, if you are so certain of this being true - it should not be difficult at all to provide us with lots of examples of extradition taking place. Why is it so difficult to do so?

Bottomline is clear-- if you break the criminal rules, you have to face the crime. No exceptions to this!

The beautiful thing about America is that we ignore silly rules and laws from less advanced countries. For example, I broke numerous foreign criminal laws lately. I used a TV without a license, I accessed the Internet without censorship, and I own a photocopier without government permission.

Seriously, we had Indian marriage laws quoted to us in Canada when I worked in a courthouse with a significant Indian population. They were universally ignored and we granted the divorces anyways. There is no way we would ever entertain an extradition request with a valid Canadian divorce, and the US is no different.

 

[nalayak]

Conviction of Y. Narasimha

1991 1Conviction of Y. narasihma Rao for bigamy by Supreme Court of India is a good case, after US based no-fault, non-mutually agreed divorce is a good example.
Her wife fought for 11 years for conviction!

I cannot, at this point, find an example for the same does not mean it cannot happen in future. The laws are all for extradition for such offenses by if committed by the laws of the requesting country.

The rules that the Supreme Court has come up with are in accordance with the public policy of India.
While coming up with the rules, the Supreme Court used Hague Convention on Recognition of Divorces:
"The rules of Private International Law in this

country are not codified and are scattered in different enactments such as the Civil Procedure Code, the Contract Act, the Indian Succession Act, the Indian Divorce Act, the Special Marriage Act etc. In addition, some rules have also been evolved by judicial decisions. In matters of status or legal capacity of natural persons, matrimonial disputes, custody of children, adoption, testamentary and intestate succession etc. the problem in this country is complicated by the fact that there exist different personal laws and no uniform rule can be laid down for all citizens. The distinction between matters which concern personal and family affairs and those which concern commercial relationships, civil wrongs etc. is well recognised in other countries and legal systems. The law in the former area tends to be primarily determined and influenced by social, moral and religious considerations, and public policy plays a special and important role in shaping it. Hence, in almost all the countries the jurisdicational procedural and substantive rules which are applied to disputes arising in this area are significantly different from those applied to claims in other areas. That is as it ought to be. For, no country can afford to sacrifice its internal unity, stability and tranquility for the sake of uniformity of rules and comity of nations which considerations are important and appropriate to facilitate international trade, commerce, industry, communication, transport, exchange of services, technology, manpower etc. This glaring fact of national life has been recognised both by the Hague Convention of 1968 on the Recognition of Divorce and Legal Seperations as well as by the Judgments Convention of the European Community of the same year. Article 10 of the Hague Convention expressly provides that the contracting States may refuse to recognise a divorce or legal separation if such recognition is manifestly incompatible with their public policy. The Judgments Convention of the European Community expressly excludes from its scope (a) status or legal capacity of natural persons,
(b) rights in property arising out of a matrimonial relationship, (c) wills and succession, (d) social security and (e) bankruptcy. A separate convention was contemplated for the last of the subjects. "






Bigamy is taken into account only when it is reported by ex-spouse, in most of the cases, ex-spouse simply want to move on.

I cannot give example of extradition request for bigamy since I do not know one, there may or may not be one, but the extradition certainly names bigamy as one of the extriditable offense.

If no extradition example can be cited does not mean it cannot be entertained. The US can grant divorce by ignoring this, that is not a point. The point is the US divorce, if not in accordance with the jurisdiction rules means, invalid and by a court of non-competent jurisdiction by the laws of India and hence second marriage is certain to be bigamous. There would be extradition or not is a different thing, but the laws clearly say and list that bigamy would be extriditable. If I cannot find example does not mean one should try to do bigamy.

Why would US list it as an extriditable crime with other countries otherwise? It means, if it has been KNOWINGLY committed by the laws of the requesting country, it would be extridited. The only defense could be 'I did not know it was going to be bigamous!'

It does not mean they can ignore it, even though it is not a bigamy by their laws. In that case, they would not have even listed it. The point is it will be certainly bigamy, and must not be done by the sufferer. That is why I am trying to give good advice, and trying to tell the sufferer to be cautious, because by you saying that US would not extridite or me saying that USA would extridite does not help the sufferer. What helps the sufferer is to be cautious, because BEYOND DOUBT IT WOULD BE BIGAMY by laws of India ONLY, if the divorce is not according to the jurisdictional rules, again by the laws of India.

Moreover, in the event of bigamy the sufferer being an Indian will always have her door shut for India and Indians have very close ties with families and cannot afford this kind of door shutting by India, making her life further miserable, let us assume, one of her parents passes away, she cannot visit India without her passport being impounded at the port of entry. What about her second husband, who will be charged with adultery by laws of India, though there cannot be extradition request for adultery, his travel o India would be pain. Her second marriage would be painful.

So, are you advising the sufferer to suffer more or do you want to tell them to be cautious and do more research? The call is yours.

In the end, the point is again, it does not matter if the US court grants divorce, they will, but if it is in defiance of jurisdictional rules of India, then second marriage, if reported by her disgruntled husband, would be a crime of bigamy by laws of India.

Me not finding extradition example does not make it the crime appear less serious.
If I could find one, I will give it. However, everything has 'first time' and I do not want the sufferer to be in that category. GOD forbid this happens!

 

[TheRealCanadian]

1991 1Conviction of Y. narasihma Rao for bigamy by Supreme Court of India is a good case, after US based no-fault, non-mutually agreed divorce is a good example. Her wife fought for 11 years for conviction!

I certainly would not challenge the notion that a conviction could be obtained in the Indian courts.

I cannot, at this point, find an example for the same does not mean it cannot happen in future. The laws are all for extradition for such offenses by if committed by the laws of the requesting country.

Clearly if bigamy (ie. the second marriage) occurred within India then an extradition case may get some traction. However, your inability to provide an example is very telling, because it is a world of difference if the divorce and the second marriage occured within the United States.

Any extradition request from the Indian government would be immediately responded to with the question, "Where did the second marriage occur?" Once it was replied that it took place within the United States, it would no longer be an extradition request, but the reporting of a crime. Once the US authorities discovered that prior to the marriage the individual in question had received a valid and legal US divorce, they would immediately deny the extradition request, and politely ask the Indians to never again waste their time with such things in the future.

If the alleged bigamy takes place within India, then the United States would certainly entertain an extradition request. But since the alleged "criminal act" took place within the United States (where India has no jurisidiction) and was within complete compliance with US laws, an extradition request will get exactly NOWHERE.

Again, that won't preclude a bigamy conviction from being entered in the Indian courts and the individual would face arrest within India, but there is no way that they would ever be extradited. The bottom line is that if you wish for your marriage to be governed by the laws of India, you should stay in India. Once a couple moves to another country, their marriage is governed by the laws of that nation and the views of India and its courts are a mere uninteresting triviality.

 

[eltoro]

Under the communist rule, back in 1970's Poland's law penalized citizens for posession of... US currency. Therefore every Pole in the US back then could be theoretically extradited to Poland for breaching "laws of motherland"... US does not enforce laws of other countries.

Besides the OP never said he (or his sister) was from India...

 

[nalayak]

dude you won't give up..I like that

dude you won't give up..I like that

The US - India extradition treaty explicitly says this

Extradition shall be granted for an extraditable offense regardless of where the act or acts constituting the offense were committed.

=======================================================
Criminal Procedure Code#182- (2) Any offence punishable under section 494 or section 495 of the Indian Penal Code(45 of 1860) may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the offender last resided with his or her spouse by the first marriage
=======================================================

Indian Penal Code # 3. Punishment of offences committed beyond but which by law may be tried within India

Any person liable, by any 7[Indian law] to be tried for an offence committed beyond 8[India] shall be dealt with according to the provisions of this Code for any act committed beyond 8[India] in the same manner as if such act had been committed within 5[India].

============================================

Mumbai High Court ruling in an American Citizen (Indian turned Amer. citizen)for a marriage related offenses(dowry)
========================================

Domicile is the key to Matrimonial proceedings.

Bombay High Court has held that Indian DOMICILE
is essential condition for both the bride and groom
were domiciled in India at the time of their marriage
being solemnised in India. This was held by a bench comprising Justices.B.Mhase and Justice Dilip bhosle.

This means, if marriage were solemnised in India, the groom could be tried for marriage related offenses in India.

====================================================
Several cases of dowry(marriage related offense) are tried in India, committed by Amer. Citizen's who were Indian citizens earlier at the time of marriage.
The offenses are NOT committed in India, they are still allowed to be tried in India.

NOTE: There has been a report that this law has been misused to file false cases of marriage related offenses of dowry
http://www.498a.org
=====================================================
Supreme Court ruling in one case says:

Additional supreme court case of bigamy by laws of India
(2000 (6) Supreme Court Case 224).

1. The judgment reported as Lily Thomas versus Union of India, 2000 (6) Supreme Court Case 224 unequivocally declares that if the first marriage was under any personal law where there is a prohibition on contracting a second marriage during the lifetime of the spouse, as in Hindu or Christian law, then a second marriage performed under any law (and hence anywhere) would make the person liable for prosecution for bigamy. If the first marriage subsists under Hindu Marriage Law(let us say due to an invalid divorce decree), then the extent of prosecution is 7 years and 10 years, if concealed from new spouse the facts of earlier marriage.

====================================================

Therefore, the bottomline is second marriage anywhere can be tried as a criminal offense of bigamy by the laws of India, if the divorce is not in accordance with the matrimonial laws under which the parties have married in India. There is no escape from this, an offense of bigamy committed outside of India, by laws of India, would be an offense of bigamy, as if committed in India(IPC#3).

If you are not originally from India, you would not understand the family values in India, and the laws of marriage/divorce have been formulated to
protect the institution of marriage.

I had guests from America at my sister's wedding in India. They were so amazed by our close-knit families that most of them cried when they were living India, they said they had never lived such life. No Indian would like to have a criminal warrant agaisnt him/her in India, since they cannot emotionally stop from visiting their families.

Please read the above laws and then make comments.

One more time- I am trying to help the sufferers and telling them to be careful and do not rely on ME or YOU and should prevent themselves from getting into the list of 'first extridited person'.

Article 2. The crimes for which extradition is to be granted are the following: 1o) Murder (Assassination, parricide, child-murder, poisoning, and voluntary homicide); 2o) ......9o) Rape 10o) Bigamy 11o) Kidnapping 12o) Piracy such as defined by law or by international law.

Article 3. Extradition must also be granted for any attempt by an individual to commit any of the crimes mentioned above or any abettor to these crimes or any attempt to commit such crimes when the abetment along with the attempt are punishable by the laws of the party demanding extradition.

Bigamy, even if happened in the territory of USA, is punishable by laws of India and that is good enough for extradition. As long as the crime is punishable by the requestinbg country, it is extriditable. No exception.

Moreover, for an offense of bigamy, the cops generally take the entire family behind bars for abetment without bail so as to get the offender to visit the jurisdiction and to report at the police station where the crime has been reported.
You are telling the sufferer to act and make your family suffer.

News:




Ironically, the laws have been made for protection of women so that they would not get 'dumped' in US or other countries where divorce is a piece of cake.

At least, you agreed that there would be a court conviction.
Let us assume extradition is not granted by the USA.
"She did not break any of our laws, she broke your laws..we do not care"
Then, are you advising the 'sufferer' to go for it!
If yes, I would say that would be completely wrong to give such advice!
And this is exactly what I am trying to tell you! Give advice which would not cause additional sufferrings to the sufferer.

News:
======================================================
ound at
http://www.polygamyinfo.com/intnalmedia plyg 41 en.htm

HC notice to six of family in bigamy abetment case

by Jason Burke


NAGPUR, July 17: Six members of a family including a
constable attached to the State Criminal Investigation Department
(CID), have been issued show cause notices by the High Court
Bench here wherein, they have been asked to give reasons why the
anticipatory bail granted to them by the Sessions Court of
Wardha in a case of abetting bigamy and cheating should not be
cancelled.

Returnable by July 23, the notices direct the six applicants to
explain why it was not disclosed to the High Court that their
plea for anticipatory bail was pending consideration before the
lower court at Wardha.

The applicants are - constable Ashok Pundalik Fule (40), his
wife, Kanta (30), brother, Ravi Pundalik Fule (33), his wife,
Pallavi (25), mother, Geeta Pundalik Fule (65), and brother-in-law,
Balraj Sukhdeo Kamble (52).They were booked by the Arvi
police on June 20 for aiding and abetting Ashok's younger
brother, Hemant Fule, to commit bigamy.

While Hemant was held by the police on the same day, the
six others were apprehending arrest and hence applied for an
anticipatory bail before the sessions court at Wardha on June 24.

=======================================================

You are admitting that the crime of bigamy would be done and plainly telling the 'sufferers' not to visit your country even if your parents or loved ones passes away! For any one to follow your advice, the person has to be extremely selfish and materialistic, generally Indians are not

I believe no Indian would like to do they since in India parents are revered as GOD, also no one would like to knowingly take a chance of being the
'first extradited for bigamy'.


So, a foreign divorce with the ground that is not available under the matrimonial laws of India, is invalid and unenforceable in India, if it is not mutually agreed. The first marriage would continue to subsist under the matrimonial laws of India. The second marriage anywhere would therefore be bigamous, by the laws of India, ONLY if reported by the first spouse, and would land the criminal behind the bars in India.

I like your style of arguments though and that is highly appreciative, but be an adviser that would help people and not put them in distress.

You admit there would be conviction of bigamy, you admit there would be extradition request made, and

You are saying in the end

It is okay for anyone-

1) to face 7 years conviction of bigamy and hide in USA
2) to face extradition request from your native country
3) to have your family get arrested in India for your crime and you continue
to hide in USA
4) to not visit your family even while someone near and dear passes away.
5) and get your second spouse on a joyride for adultrey charges(though not extriditable) and face 3 years conviction for the same from native Country.
If that poor person is also from India, he is stuck in the USA indefinitely to avoid arrest in India and cannot visit India for no fault of his own!!

ALL you are telling the sufferer that it is fine, you should face all of the above

 

[TheRealCanadian]

You are admitting that the crime of bigamy would be done and plainly telling the 'sufferers' not to visit your country even if your parents or loved ones passes away! For any one to follow your advice, the person has to be extremely selfish and materialistic, generally Indians are not

Actually, the logical suggestion out of this thread is to NOT get married in India to an Indian citizen. I'm not suggesting that a crime would be committed, only that the Indian courts may consider one to have occurred. I leave it up to the readers to determine how reasonable an assumption that is.

However, you do raise a valid point. Certain countries may have onerous and unreasonable laws, and by returning back your home country you subject yourself to them.

also no one would like to knowingly take a chance of being the
'first extradited for bigamy'.

I am sure that no one would enjoy being the first person killed by mutant insects from the Planet Zorg, and that is equally likely to occur. The US does not enforce silly laws on behalf of silly legal systems.

The second marriage anywhere would therefore be bigamous, by the laws of India, ONLY if reported by the first spouse, and would land the criminal behind the bars in India.

I cannot argue with that. But your suggestion that the United States would asisst India in enforcing their marriage laws is silly and ridiculous. The fact that not a single example of extradition can be quoted is proof how silly and unreasonable it is.

I like your style of arguments though and that is highly appreciative, but be an adviser that would help people and not put them in distress.

I think the biggest distress would be caused by frightening someone into staying in an unworkable marriage through non-existent fears of extradition for bigamy. 11 years' of effort seeking a bigamy conviction in the Indian courts???!!!! Imagine what would have happened if those energies were channelled into making the marriage work, or being more careful when seeking a spouse?

 

[nalayak]

I cannot argue with that. But your suggestion that the United States would asisst India in enforcing their marriage laws is silly and ridiculous. The fact that not a single example of extradition can be quoted is proof how silly and unreasonable it is.


->It is NOT enforcing marriage laws of India by USA. It is enforcing criminal laws between the extriditing countries for marriage related criminal offenses by covered under penal codes of India, for which punishment also exists in America, under the same category of offenses or under a different category.

As long as the offense is extriditable under India-US treaty, the extradition has to occur, no matter where the act or acts constituting the offense have been committed.

Moreover, you have said that it would be assumption by Indian courts that it would be bigamy. It would not be assumption. It would be a criminal case of bigamy.

You have not addressed the fact that the cops in India take the entire family to jail for abetment of bigamy!

How about someone visiting their motherland only to find themselves behind bars? You have not addressed this fact.

How about the poor second spouse?


11 years' of effort seeking a bigamy conviction in the Indian courts???!!!! Imagine what would have happened if those energies were channelled into making the marriage work, or being more careful when seeking a spouse?

->This is called motivation for justice, which not everyone would understand.
You have to be in the shoe of the person to understand this.
Moreover, even if you know your spouse 5 years or so before the marriage, it does not mean your marriage will survive. It does not mean that you can try for 11 years for your marriage to survive and it will survive. It does not mean you , if very careful in chosing spouse, your marriage will survive.
Why is the divorce rate in USA is over 50% and increasing, even though people here generally marry only after knowing the spouse very well.

There are several cases, if you know a person for a day only, still that marriage can survive with both spouse very happy in the marriage.
SO, your argument has no substance.

 

[robocop104]

some clarifications.

I've done a little research on this and US has never extradited a person because the divorce is not valid in India. its not worth their resources to do such a thing.

However, everytime you do go back to india, if your spouse is very angry with you she can very well, drag you into jail along with your entire family claiming a dowry harassment case. this is whether or not you are still married, divorced, remarried. this fear is valid for any married, previously married person returning to india for a vacation really.

According to my lawyer, similar situations exists in various other countries for various other reasons. legal systems are not the best "bug free" systems. there are big holes everywhere in every country. he said something about israel and the US.

There are entire law work arounds for such cases where a person does not want to return to such a country. so if your parents want to leave wealth to you, then then can leave it to you in such a way that the money is liquidated and then sent to the US, and then given to you. by such ways, you can avoid claims by ex-spouses in coutries with questionable laws.

just to clarify,
1. when divorce is mutually consented, it is accepted in India. in this case, the divorce notice can be taken to india and registered, if you want to get remarried in india. otherwise dont bother.
2. when divorce is contested, then they see if the grounds for divorce is a valid grounds for divorce in india. for example, if mental cruelty was alleged in london, then it is valid in india too. but if irreconciliable differences was stated it probably wont be valid directly and can be used as a reason by the indian judge to throw out the previous divorce. but recently the supreme court has issued a notice that this shd be a valid reason but i dont know if the high courts follow that direction yet.
3. once the US divorce is throw out in india(india is known for repealing their own divorces, where a family court says you are divorced and the high court throws it out on appeal, which apparently is normal procedure since peoepl in the US cannot attend family courts sessions but high court accepts power of attorney and you dont have to be there), now there is a reasonable legal limbo here. in this case, i still feel that the circuit courts in the US are very reasonable and wont throw you in jail for bigamy because you are technically still married in india. once they see that you have a valid divorce in the US, the US still states that it has jurisdiction over all the marriages if one has lived for 6 months in that county. so as far as the US is concerned, the divorce is valid whatever the indian judge says. so the Us judge wont consider you for bigamy. they are sorta reasonable that way. they always see a human side in the US i think as opposed to technicalities in the indian courts.

 

[nalayak]

I've done a little research on this and US has never extradited a person because the divorce is not valid in India. its not worth their resources to do such a thing.

-->The extradition won't be for invalid divorce. the exradition cannot be for civil or family laws. the extradition will be , if a crime of bigamy is committed by laws of India(and though not by laws of USA)
Have you seen any extradition request for this?
One thing is sure though, the laws and treaties say that bigamy is extraditable. Why would one want to get to get into this mess.
Pls read all my previous posts to understand my point better.Thanks

However, everytime you do go back to india, if your spouse is very angry with you she can very well, drag you into jail along with your entire family claiming a dowry harassment case. this is whether or not you are still married, divorced, remarried. this fear is valid for any married, previously married person returning to india for a vacation really.

->agree. The disgruntled ex-spouse can drag you and your family to jail. That is exactly what I have been advising to the sufferer to be careful about all these things.



According to my lawyer, similar situations exists in various other countries for various other reasons. legal systems are not the best "bug free" systems. there are big holes everywhere in every country. he said something about israel and the US.
->agree. SO what is your point about this argument.
Every country makes there own legal system, that best fits their public policy.

There are entire law work arounds for such cases where a person does not want to return to such a country. so if your parents want to leave wealth to you, then then can leave it to you in such a way that the money is liquidated and then sent to the US, and then given to you. by such ways, you can avoid claims by ex-spouses in coutries with questionable laws.
->what if a person wants to see his parents back home when they are counting there last days and he/she has an imminent arrest pending against him/her?
That is what is my point. No one would to have the doors shut from the home country forever.

just to clarify,
1. when divorce is mutually consented, it is accepted in India. in this case, the divorce notice can be taken to india and registered, if you want to get remarried in india. otherwise dont bother.

->agree. That is what the Jurisidction rules from the SUpreme Court of India say.

2. when divorce is contested, then they see if the grounds for divorce is a valid grounds for divorce in india. for example, if mental cruelty was alleged in london, then it is valid in india too.

-> agree ..that is what the rules from Supreme Court of India says.

but if irreconciliable differences was stated it probably wont be valid directly and can be used as a reason by the indian judge to throw out the previous divorce.

-->agree. It would CERTAINLY not be valid as per supreme court of India rules, if the ground is not covered under one of the several matrimonial laws of India, under which the parties have married.

but recently the supreme court has issued a notice that this shd be a valid reason but i dont know if the high courts follow that direction yet.
-> Disagree. The Supreme Court is contemplating to introduce this as a valid reason, however, it would NOT be retroactive, it would be active from the date it gets introduced under the particular matrimonial laws, for example, Muslims may not allow this to be included in their matrimonial laws and so on. Until that is sorted out, the irreconcilable differences won't be accepted as a valid ground. So, if someone has married in India as of today under Hindu Marriage Law, then if he/she divorces outside of India under the 'irreconcilable ground', the divorce won't be valid by the Supreme Court of India yet.

3. once the US divorce is throw out in india(india is known for repealing their own divorces, where a family court says you are divorced and the high court throws it out on appeal, which apparently is normal procedure since peoepl in the US cannot attend family courts sessions but high court accepts power of attorney and you dont have to be there), now there is a reasonable legal limbo here. in this case, i still feel that the circuit courts in the US are very reasonable and wont throw you in jail for bigamy because you are technically still married in india. once they see that you have a valid divorce in the US, the US still states that it has jurisdiction over all the marriages if one has lived for 6 months in that county. so as far as the US is concerned, the divorce is valid whatever the indian judge says. so the Us judge wont consider you for bigamy. they are sorta reasonable that way. they always see a human side in the US i think as opposed to technicalities in the indian courts.

->pls read my posts from the beginning, I have already stated that it will not be bigamy by the laws of USA, but bigamy by the laws of India.
Also, you are trying to make the same points as I have made. It is necessary for you to go thru the entire post from the beginning so that you do not have to tell me again what I have already wrote. No offense

For your reference: from 1991 ruling of bigamy after US based divorce

The Supreme court rule in Narsimha Rao bigamy case after no-fault divorce in St. Louis, Missouri are pasted just as they are there for your reference.Under Civil Procedure Code of India, 1908, Section 13, the foreign judgments are recognized but the jurisdiction assumed by the foreign country 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 are 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 under the matrimonial law under which the parties are married.

(ii) Where the respondent voluntarily and effectively submits to the jurisdiction of the forum 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 provision of the matrimonial law of the parties.

The aforesaid rule with its stated exceptions has the merit of being just and equitable. It does no injustice to any of the parties. The parties do and ought to know their rights and obligations when they marry under a particular law. They cannot be heard to make agrievance about it later or allowed to bypass it by subterfuges as in the present case.
The rule also has an advantage of rescuing the institution of marriage from the uncertain maze of the rules of the Private International Law of the different countries with regard to jurisdiction and merits based variously on domicile, nationality, residence-permanent or temporary or ad hoc forum, proper law etc. and ensuring certainty in the most vital field of national life and conformity with public policy.

 

[hipka]

nalayak,
Your argument is pretty much invalid these days. Recent supreme court judgments in India have made it clear that divorce by non-consent is possible in a hindu/christian marraige if one spouse is intent on getting out of marraige. Therefore chances of bigamy law being applied are quite slim. Muslims in india always had it easy, they just say divorce thrice and the marraige is over!