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Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 100986
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I'm getting mutual divorce in California USA. We got married

Customer Question

I'm getting mutual divorce in California USA. We got married in Bellary KA India. What is the process to nullify the marriage in India for me to get remarried again?
Submitted: 1 year ago.
Category: Legal
Expert:  Ely replied 1 year ago.
Hello and welcome to JustAnswer. Please note:
(A) This is general information and is not legal advice. No specific course of action is proposed herein. No attorney-client relationship or privilege is formed by speaking to an expert on this site. This is repeated in numerous disclaimers throughout the site. By continuing, you confirm that you understand and agree to these terms; and (B) there may be a slight delay between your follow ups and my reply while I am typing out my answer.
1) Where is the female a permanent resident of USA or India?
2) Are both parties Hindu, or not?
This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 1 year ago.
Female is a permanent resident of India currently staying in USA.
Yes both the parties are Hindu and married as per the Hindu act. Marriage registered in Karnataka India.
Expert:  Ely replied 1 year ago.
V,
Thank you. You state "Female is a permanent resident of India currently staying in USA."
So the female LIVES in USA now? Or, is only in USA temporarily? Please clarify. Thank you in advance.
Customer: replied 1 year ago.
She is in USA on a student visa and doing her masters education. She came here on my dependent visa and later converted to student visa. We mutually fil d for divorce last month and expecting it in 3 more weeks.
What is the process to cancel my marriage back in India for me to remarry again?
Customer: replied 1 year ago.

Sorry for the confusion. Both of us are citizens of India and are on Visas here. I am on Work visa and the other on Student visa.

Expert:  Ely replied 1 year ago.
Thank you. According to the Indian Supreme Court opinion in Y. Narasimha Rao and Ors. Vs. Y. Venkata Lakshmi and Anr.; Decided on 9 July 1991; MANU/SC/0603/1991, 1991(2)Crimes855(SC), II(1991)DMC366SC, JT1991(1)SC33, 1991-2-LW646, (1991)3SCC451, [1991]2SCR821, the a foreign divorce will be accepted in India only on the following grounds:
(a) the foreign court that grants divorce must be acceptable under Hindu law, i.e. the Hindu Marriage Act; and
(b) the foreign court should grant divorce only on the grounds which are permissible under Hindu Law, again meaning, the Hindu Marriage Act.
This makes it almost impossible to have a divorce abroad recognized in India, since few courts abroad (especially in USA) consider the provisions of the Hindu Marriage Act prior to finalizing the divorce.
There IS an exception to this case. The divorce may be recognized in India even if done abroad and WITHOUT considering provisions of Hindu law WHEN: The wife is domiciled and permanently resident of that foreign land, the foreign court decides the case based on Hindu Marriage Act, the wife voluntarily and effectively attends the court proceedings and contests the claim on grounds of divorce as permitted under Hindu Marriage Act, and, the wife consents to grant of divorce.
The reality is that these are very stringent requirements and all must be satisfied for the foreign divorce to count in India.
CONCLUSION:
It may be simply easier to get divorced in India (again) after being divorced in USA. OR, the parties can divorce in India only - unlike India, USA will recognize an Indian divorce, especially if not contested.
Please note: If I tell you simply what you wish to hear, this would be unfair to you. I want to be honest with you and sometimes this means providing information that is not optimal. Negative ratings are reserved for experts who are rude or for erroneous information. Please rate me on the quality of my information; do not punish me for my honesty.
I hope this helps and clarifies. Gentle Reminder: Use the SEND or REPLY button to keep chatting, or please rate when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of the top three faces/stars and then SUBMIT, as this is how I get credit for my time with you. Rating my answer the bottom two faces/stars or failing to submit the rating does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith.
Customer: replied 1 year ago.

India has signed the international law and the divorce granted in USA is acceptable in India.

Foreign judgment:

Foreign judgment has been defined earlier as meaning the judgment of a Court situate outside India and not established or continued by the authority of the Central Government.

When foreign judgment not conclusive:

A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except.

(a) Where it has not been pronounced by a court of competent jurisdiction;

(b) Where it has not been given on the merits of the case;

(c) Where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;

(d) Where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) Where it has been obtained by fraud;

(f) Where it sustains a claim founded on a breach of any law in force in India.

Expert:  Ely replied 1 year ago.
Venu,
There is no international law on divorce. There is no USA/India treaty on family law.
I am not sure where you are copying this information from, but it is arguably not accurate. If you provide me with the link, I can comment further on it.
Of course, you can do whatever you like. You asked for an expert opinion, and I provided one. The decision is yours, in the end.
Gentle Reminder: Please, use the REPLY or SEND button to keep chatting, or rate positively and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.
Expert:  Ely replied 1 year ago.
Ah, I see.
You are quoting Legal Provisions of Section 13 of Code of Civil Procedure 1908, (C.P.C.)
This law has to do with CIVIL judgments and not family decrees/orders.
It does not apply.
Gentle Reminder: Please, use the REPLY or SEND button to keep chatting, or rate positively and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.
Customer: replied 1 year ago.

http://www.shareyouressays.com/114416/legal-provisions-of-section-13-of-code-of-civil-procedure-1908-c-p-c-india-foreign-judgment

Expert:  Ely replied 1 year ago.
Venu,
I had already supplemented my reply after I tracked down that text, but perhaps you may not have seen it. I will reply again below:
Ah, I see.
You are quoting Legal Provisions of Section 13 of Code of Civil Procedure 1908, (C.P.C.)
This law has to do with CIVIL judgments and not family decrees/orders.
It does not apply.

Gentle Reminder: Please, use the REPLY or SEND button to keep chatting, or rate positively and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.
Customer: replied 1 year ago.

Ely,

Thank you for your prompt answers.

I need an answer from a law expert in India Bangalore Karnataka. Not sure your are an expert lawyer from that location?

Thanks,

Expert:  Ely replied 1 year ago.
Venu,
I am sorry to say that JustAnswer currently has no legal experts from India on the site.
I do have extensive knowledge of international law, and I stand by my answer. If you want verification, you can see a good chapter about this here, which should echo my answer.
Gentle Reminder: Please, use the REPLY or SEND button to keep chatting, or rate positively and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.
Customer: replied 1 year ago.

I have submitted the question expecting an answer from a lawyer from that location. Sorry. I want a refund.

Thanks,

Expert:  Ely replied 1 year ago.
Venu,
Ah, okay. You can go to www.justanswer.com/help for a refund.
Take care.

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