Divorce after 4 years of Green Card

nalayak,
Appreciate your point here but chances of this happening are pretty slim. For one you would need a vengeful spouse to frame such charges against you. Secondly he/she should be willing to head back to india to file these charges. Thridly indian court should be ready to invalidate a US divorce ( I seriously doubt they would do this as grounds for divorce are similar and recent supreme court decisions show they are heading towards recognizing irreconsilable differences). Foruth: Indian court should be ready to uphold bigamy charges (again unlikely they will do this as bigamy is wilfully entering two marraiges, here the person is entering the second marraige due to lack of awareness of rules ) , Fifth: Ministry of external affairs/ Indian consulate should get into action to extradite( obviously they have better things to do ), Sixth: US court should grant this extradition (Very unlikely). Seventh: US police should give this priority and carry out the arrest ( actually even this is not likely if the person is untraceable in the US, they won't go hunting for him for such a minor crime).
Unless someone married his/her arch enemy your situation is unlikely!
 
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!

->Yes divorce by non-consent is certainly possible if the ground for the divorce has been proven against the non-consenting spouse.

nalayak,
Appreciate your point here but chances of this happening are pretty slim.

->Thanks. In law, there is nothing like 'chances'. It will happen , if it is right and fits into law or will not happen, if it does not fit into law. If the disgruntled spouse has good lawyer in India, this would happen beyond any doubt.

For one you would need a vengeful spouse to frame such charges against you.
->One need not be vengeful, if he feels 'dumped' he will seek justice. One seeking justice and being vengeful are completely different terminologies.

Secondly he/she should be willing to head back to india to file these charges.

->He might if he is motivated to seek justice.

Thridly indian court should be ready to invalidate a US divorce ( I seriously doubt they would do this as grounds for divorce are similar and recent supreme court decisions show they are heading towards recognizing irreconsilable differences).

->If the ground is applicable under the marriage law, CERTAINLY the divorce is valid in India.
The no-fault ground is not yet valid.They are heading towards recognizing no-fault ground, but it WON'T BE RETROACTIVE. It is not even finalized as of now. When it will be finalized, is not known since no-fault is against the public policy and very harmful to the institution of marriage. So, there will be a huge debate before it gets into matrimonial laws or becomes a supreme court rule. This would be easy way, especially for man, to use wives and dump them later.

Even in USA, there is a huge outcry against no-fault divorce.

http://www.firstthings.com/ftissues/ft9708/gallagher.html

Foruth: Indian court should be ready to uphold bigamy charges (again unlikely they will do this as bigamy is wilfully entering two marraiges, here the person is entering the second marraige due to lack of awareness of rules )
->I agree that the person would be unknowingly entering bigamy, but if he/she has to prove that first. The bigamy charge will certainly be upheld if her disgruntled spouse can prove that the divorce was from a court of non-competent jurisdiction( in definace of the rules from Supreme Court of India). That is enough to upheld the charges against the spouse who committed crime.


Fifth: Ministry of external affairs/ Indian consulate should get into action to extradite( obviously they have better things to do )
->Well, if the case is put forth, they will have to at least act on it. You are again saying that it is okay to leave in USA when you have an extradition pending against you in India.

, Sixth: US court should grant this extradition (Very unlikely).

->As per the laws and treaties, they should entertain the process at least. But an extradition means closing the door for India by yourself.

Seventh: US police should give this priority and carry out the arrest ( actually even this is not likely if the person is untraceable in the US, they won't go hunting for him for such a minor crime).

->If there is order, the police has to carry out. It is called red corner alert. It is not they who decides the magnitude of the crime. They simply have to follow the order.

Unless someone married his/her arch enemy your situation is unlikely!
->does not matter whom she gets re-married.
The poor guy will suffer if the disgruntled spouse is bent upon seeking justice.

the best thing for OP's sister would be to check if the spouse is disgruntled and convince him for a mutual divorce or try to sort out the things thru talks with elderly mediators for such silly things as posted by the OP.

I mean, I cannot believe that the guy did not touxhx her for 5 years. Looks like she was imply waiting for green card:-). What do you feel about what the OP is saying. It is simply unbelievable and the OP is hiding something.
 
Ay!

yes, i didnt read your previous posts in detail nalayak, they go on and on with random statements which seem rather ominous but arent ever applied in reality. you are approaching this more from a technicality standpoint and i am approaching from a practical human side of it. I am sure we all do small things that are illegal, by not carrying your GC everywhere, but we do take our chances dont we from our knowledge about how many times people have been asked for GC at airports and such details. similar in divorces, we can do a few things that might be technically not legal, but in reality the norm.

the law statement that you quoted as a supreme court directive simply and merely states the jurisdiction on matters of divorce. we have already established that the courts in india have the power to revoke the foreign divorce "in India". so whats the point in quoting that. The question is whether they can revoke it in the US. They cant.

Also, you seem to assume that just because the divorce is not acceptable in India, it is invalid. That is not the case. a divorce in the US will be perfectly valid until the spouse files a case against you in India and asks to revoke the previous foreign divorce.

Yes, the best thing to do is wait until your indian divorce comes through.

the only advice I have is that, in cases of such divorces, there is no technically firm ground so to speak. you will be in legal limbo either way. but family courts are never grounds for anything serious and so live your life peacefully. So instead of letting it stop your life, go on with your life and do what you want to do. the legal process is meant only to aid you in your life and if it becomes a problem you can contest it in court. most family court judges know what you are talking about. if the vengeful spouse claims bigamy, file a counter harassment suit. Any judge can see that you are not living with two people at the same time. unless of course you did.

except for the dowry cases, i think the indian court also have very decent tolerance and will never hold on to your passports or anything. you will be free to come and go as you please. they also know that not everybody is completely evil and everybody has a reason for doing whatever they are doing. they just want to listen to your story and then pass a judgement. again each case is different.

its the number of times the family court expects you to show up thats normally a problem. typically, you need not go and finally the judge will get fed up and say you appear. at that time, you can go and present your cases. so a couple trips shd be enough. you dont have to go every 2 months. your lawyer will be able to attend in your stead and tell you what happened even though they cannot speak for you. sometime you can grant power of attorney to your parents but it may not be accepted unlike the high courts which are more reasonable and you dont really have to come. in fact, some foreigh guys just give up on the family court and simply appeal the decision in high court. thats the easiest way to do it.

again, if your spouse is not willing to get divorced, then yes, it can drag on for years. in that case, doing everything legally might be difficult. but you can always live with a person without marriage.

On a lighter note: a funny anecdote that my lawyer told me was that in NY apparently there used to not be a no fault divorce in which case, there are hookers who will take pictures with you and then u can show it in court and get a divorce. you can try that in the indian courts and say you were unfaithful. after that, the alimony might be a big sum but its one way to be divorced i suppose. again, most people in india dont seem to pay alimony anyways and that is not a extraditable offence in any place. :) so agree to whatever and get a divorce.

If you cannot resolve by dialogue and yes, if your spouse wants to play games, be ready to play the games. it gets tiring really fast for both sides. but in general the indian lawyers are not as expensive as the US ones, so feel free to play. the spouse has a few cards to pull, but so do you, each time they do something, you can file a harassment claim. thats your trump card. keep playing it. in all, dont worry, everything will turn out fine in a few years, you will look back and be glad its all over and it wasnt the end of your days as it may seem to you now.
 
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->One need not be vengeful, if he feels 'dumped' he will seek justice. One seeking justice and being vengeful are completely different terminologies.

Courts recognize cases which are framed purely to harrass a person. This would be one of those cases. In fact indian/US courts regularly throw out a majority of cases as they are filed without basis or merely to seek revenge. I still don't understand why an indian court would entertain such a frivolous case.

->I agree that the person would be unknowingly entering bigamy, but if he/she has to prove that first. The bigamy charge will certainly be upheld if her disgruntled spouse can prove that the divorce was from a court of non-competent jurisdiction( in definace of the rules from Supreme Court of India). That is enough to upheld the charges against the spouse who committed crime.

You are wrong, bigamy charge will not be upheld if US court has granted divorce. BTW the US court is perfectly competent to decide on divorce cases filed in the US. Seems ridiculous that an indian court will consider invalid an action taken by a US court on US soil involving US residents, there is a serious jurisdictional problem here.

So will you stop scaring the poor guy??
 
hipka-
why would it be a revenge, his argument would be divorce under appropriate forum and 'not dump me'
You are mixing justice with revenge. This is wrong

There would be inherent jurisdictional error.
Pls read following laws carefully.

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.

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I am not scaring anyone, asking them to be careful.

I am telling them that Mr. Narasihma Rao was convicted for bigamy after US based no-fault divorce which was not agreed by his wife.
He was domiciled in USA.

Ironically, the laws were for protection of Indian women who would get 'dumped' by their husbands in foreign countries.
 
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nalayak said:
hipka-
why would it be a revenge, his argument would be divorce under appropriate forum and 'not dump me'
You are mixing justice with revenge. This is wrong

There would be inherent jurisdictional error.
Pls read following laws carefully.

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.

--------------------------------------------------------------------------------


I am not scaring anyone, asking them to be careful.

I am telling them that Mr. Narasihma Rao was convicted for bigamy after US based no-fault divorce which was not agreed by his wife.
He was domiciled in USA.

Ironically, the laws were for protection of Indian women who would get 'dumped' by their husbands in foreign countries.
Click to expand...

why do you keep quoting that? it has no proof of the case you seem to bring up. the statement merely states that the india court reserves the right to revoke anything it wants. essentially, they cant use it to invalidate all marriages that were performed in india. so what? if some body wrongly accuses you of something in a lower court, appeal it.

there are other cases where the wife went back to india and the husband appealed it in high court and go to the indian divorce revoked since he wanted to stay married. so what? if you dont agree with a decision there is always appeal. if a person want to get out of a marriage, they will. it just takes time.

about this case, you mention, please find the case number, court, place, date, transcript of court room session. 1991 is such a long time back. only if you know whether there was a defense you will know the truth. also for all you know it might have been appealed and turned down. so bring all these and then we might actually consider that there was in fact such a case in reality. until then we can assume it doesnt. and lastly, do you know this guy narasimha rao, are you sure he didnt commit bigamy in the first place? how do you know? maybe the guy was really just a scumbag. too many variables man to really make a decision on that.
 
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now you are talking:-)

robocop-
now you are talking :-)
since you want to find out what I am saying is really the truth.
Case Y. Narasimha Rao Vs. Y. Venkata Lakshmi

Reported Judgments of Supreme Court 1991(3)
Supreme Court Cases page 451.

Decision date 9 July 1991

CPC 1908, S. 13, S. 14
Evidence Act 1872 S. 77 S.86 S.65 etc.
Indian Penal Code S. 494 (for bigamy)
Hindu Marriage Act 1955, S. 13, S. 19

Justice P. B. Sawant,
Justice Ranganath Misra

:)

This is the problem.

Ignorance is the problem.

When someone tries to clear it, he gets thrashed left and right. Well, I would still like to continue to tell the OP to be safe and do not mean to scare him/her at all.

The case is listed by Ministry of Overseas Indians Affairs on their website.


there are other cases where the wife went back to india and the husband appealed it in high court and go to the indian divorce revoked since he wanted to stay married. so what? if you dont agree with a decision there is always appeal. if a person want to get out of a marriage, they will. it just takes time.
-->That is what exactly I am trying to tell. If one wants to get out, he/she will CERTAINLY. Let it take time to get out of the marriage, but take your own time and do it at the right forum. Do NOT use the convenience of no-fault diovrce in a foreign nation, if you are married in India. Use it only if the spouse agrees to it and is amicable. Do NOT use it to dump your spouse. Not likened by Indian courts, especially if a woman is dumped.
Then a foreign divorce would be at the right forum, else not and the disgruntled spouse may try to make your life hell by using above laws.
You finally got me.
 
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1. No, I did not get you. my point was that this case probably has no relevance to a person who gets divorced because for all we know this case was in fact a case of bigamy. do you know that he did not commit bigamy. anyway the case is 15 years old. things change in the family courts by then, society changes in 15 years. I do not find the case relevant. i still feel that it is merely a vestige of the past and is being brought out only to scare.

2. No, I do not advice that you wait 11 years to get re-married just because the indian courts have the ability to drag on. if you find someone else, then marry but marry in the US. There are a lot of work arounds. consult a family court lawyer and they will tell you your options.

3. No-fault divorce is not a "convienience". it is a sensible, decent way to keep personal issues, well, personal and not drag everything out in the courts.

4. my advice is to still get a divorce in the foreign country because it is faster and if needed, it will also help the cause in case of trying to get another divorce in India. it proves that you are not trying to let the other person in marital limbo and have clearly expressed your desire to end the marriage. In fact the fact finding and the impressions might go faster in such a case, since they are all properly documented already.
 
nalayak,
The fact that you are repeatedly quoting just one case and its interpretation without providing what the law states and how it is implemented in practice shows that you are ignorant of legal systems both in the US and in India.
So we need to know exact details of the case you are quoting i.e. Narasimha Rao case and how it proceeded in the US and India. Other than this you have to show us why no-fault divorce is not compatible with hindu/christian marraige act in india. Don't simply keep quoting the law show us cases where indian courts have 'overruled US divorces' and also give us the reasons those courts gave. Did higher courts in India uphold these verdicts? Has anyone been convicted of bigamy in India because he failed to grasp this technicality you are stating?

I agree with robocop, if a person resides permanently in a foreign land, he/she should apply for divorce in that country.
 
check this out

Go for it :)

Article:-
--------
Saturday, April 22, 2006
RECOGNITION OF FOREIGN DIVORCE DECREE: AN INDIAN PERSPECTIVE

It is contained in the url.
It does bot matter if you apply for a place where you are permananet resident. You might eventually get screwed, especially if you are "dumping"
a woman against her wishes. It does not matter what your resident status or nationality status is at the place where you are seeking divorce. If it is not mutually agreed or contested on a ground available under the matrimonial law in India, let me rephrase "YOU ARE SCREWED"

http://legalsolutionsindia.blogspot.com/2006_04_01_legalsolutionsindia_archive.html

V. Conclusion of the Article


From the aforesaid discussion the following rule can be deduced for recognising foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court 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 may be 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 in the matrimonial law under which the parties are married;

(ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above 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 provisions 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 a grievance 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. The rule further takes account of the needs of modern life and makes due allowance to accommodate them. Above all, it gives protection to women, the most vulnerable section of our society, whatever the strata to which they may belong. In particular it frees them from the bondage of the tyrannical and servile rule that wife's domicile follows that of her husband and that it is the husband's domiciliary law, which determines the jurisdiction and judges the merits of the case[14].


© Praveen Dalal. All rights reserved with the author.
 
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nalayak said:
Go for it :)
It is contained in the url.
It does bot matter if you apply for a place where you are permananet resident. You might eventually get screwed, especially if you are "dumping"
a woman against her wishes. It does not matter what your resident status or nationality status is at the place where you are seeking divorce. If it is not mutually agreed or contested on a ground available under the matrimonial law in India, let me rephrase "YOU ARE SCREWED"
Click to expand...

Thanks for quoting the same thing again and again. Looks like you are confusing no-fault divorce and abandoning a spouse to marry someone else. By no means can a no-fault divorce be considered equal to illegally walking out of a marragie. The fact that you are formally fighting for your case in a court and waiting for a decision shows you don't intend to simply run away. I still cannot see why this should be considered invalid in india because I see no difference between this and a mutually agreed divorce.
 
In the first place..

In the first place my discussion is limited to
marriage coocurred in India, under Hindu Marriage Act, and both the spouses, at the time of the marriage were citizens of India.
Secondly, the US no-fault ground for divorce is NOT available under Hindu Marriage Act, and the Supreme Court of India has clearly said, 'A Hindu Marriage can only be ended by one of the grounds available under Hindu marriage Act, if such divorce is not mutually agreed'.

See what expert, Mr. Siddharth Shah, from Mumbai High Court has to say.
(Legal experts for India's premier matrimonial site
http://www.shaadi.com)
You will realize that NOT ALL foreign divorces are not enforceable.
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Post #1
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http://www.shaaditimes.com/ch/legal/legal_issues/060913-marriage-legal/1



Invalid divorce

Radha asks,
I got married in India and came to USA with my husband 6 yrs back. Later I got my divorce in US which was contested last year and I am a green card holder for past 3 years. Is the divorce obtained by a green card holder valid in India? This is because now my ex-husband is threatening that he will file divorce in India and claim certain amount in Indian court from me, is this possible?
Dear Radha,
The decree or order obtained from a foreign Court cannot be a valid divorce in India. There are various issues which will have to be tested before the Indian Court for its applicability in India. With regards your query since you have got married in India you will need to file the papers in the appropriate jurisdiction at the place of marriage and to the matrimonial forum only in India under the governance of Indian laws. You will have to seek appropriate order of divorce from the Indian Court at the place where he got married or at the place where he last resided in India at the time of his marriage. Recognition of the foreign decree in India would depend on certain conditions as governed in India by section 13 of Civil Procedure Code. The Supreme Court, in Y.Narsima Rao V/s Y. Vengatalaxmi have explained and interpreted the provisions of section 13 of C.P.C. in conformity with public policy, justice, equity and good conscience on the issues arising out of divorces in foreign land and its applicability and validity in India. In brief some of the conditions are 1. The foreign judgment must be pronounced by a competent jurisdiction. It is that court under which the parties married recognizes as a court competent to entertain matrimonial disputes. 2. When both the parties submits before the court voluntarily and unconditionally. 3. The foreign judgment must not be based on the refusal to recognize the Indian laws. 4. The foreign judgment must not be obtained by fraud or ex-parte.

In brief only after testing every fact and situation by the appropriate forum in India foreign court order can be recognized.
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Post # 2
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http://www.shaadi.com/wedding/legal/legal/040712-qa-divorce-dilemmas.php

Divorce dilemma

Sampath asks,
My wife and I were married in India 2 years back based on the Hindu Marriage Act, and we are residing in the United States. We are in the final stage of our permanent residency here. Due to several differences, I would like to seek a divorce. If I seek a divorce in a US court,
1. Will a divorce granted by a US court be recognised in India, or will I be required to file for a separate divorce in India also?
2. Can she choose to not submit herself to the US judicial system and simply return to India, in which case will I be required to file for divorce in India as well?
3. Even if she submits herself to the US court's decision, can she still claim to be married in India? Please advice.
Dear Sampath,
You will have to make a separate application as and by way of Petition to the appropriate family forum in India. The said application could be made on the basis of the orders passed by the US Court. It is mandatory to file the appropriate Petition herein in India for its recognition. It is then the court's discretion here in India whether to recognise a foreign decree or a judgment and on the basis of that pass appropriate mirror orders.

With regards your 2nd question raised, yes she can choose not to submit herself to the US judicial system and can return to India. And even if she submits herself to the US courts order appropriate applications as stated earlier needs to be made in the Indian Matrimonial Forum.
 
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