• After divorce happen in USA, how to claim the property shares for wife and kids in India

Hello Sir/Madam,
We got married in india and moved to usa, since then we bought the property in india even contribute from salary, we got divorced based on the domestic violence, my husband moved back to india got married again, now my question is how i can get my property shares in india? how can my kids get ancestral property n my husband property? even they scared me n signed the bank check when i went india they taken that amount when i was in usa. i donot have final judgement decree from USA court. they donot give final degree here. i have legal separation agreement which happen in USA between me n my husband. how can i claim the shares before the legal separation happen when i donot have the final judgement from USA court? I checked with my USA lawer they said they donot give final judgement decree, only legal separation document we provide, But my indian lawyer wants final judgement decree form USA court. i want to know how to get me shares in this situation. i have USA bank details which we transferred amount to india banks. Please help me here

Thanks
Asked 3 years ago in Property Law
Religion: Hindu

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13 Answers

The divorce granted by US court  may not be recognized as legally valid in India. 

You can challenge the validity and get it nullified as per Indian laws if your marriage was solemnized in India as per Indian laws. 

If the property was bought in the joint names you may file a suit for partition and seek separate possession of your legitimate share in the property. 

If your ex husband inherited ancestral property then you can file a suit for partition and separate possession of your children's share out of the share of property get inherited provided they are really ancestral property. 

T Kalaiselvan
Advocate, Vellore
88065 Answers
2377 Consultations

If the property share is based on divorce decree you need to validate the same in Indian court to make it admissible in India

Otherwise you can directly apply understand Indian law for the property rights under relevant laws

 

Prashant Nayak
Advocate, Mumbai
33129 Answers
215 Consultations

File suit for partition for division of property by metes and bounds 

 

2) enclose documentary evidence that you have contributed funds for purchase of property 

 

3) seek injunction restraining sale of property by your husband 

Ajay Sethi
Advocate, Mumbai
97863 Answers
7939 Consultations

Your lawyer's view is correct. A final decree of divorce from the US court is absolutely necessary for the purpose of filing any suit for claiming the shares of your children in your husband's ancestral property. As you would have engaged a lawyer there in the divorce proceedings, please ask him to get a copy of the court decree.

Swaminathan Neelakantan
Advocate, Coimbatore
2976 Answers
20 Consultations

Dear client, 

Your children will be considered as successors for the ancestral property. They will have an equal share in said property. As for the property shares that you want, you can file for divorce in India since the legal separation is not holding up in Indian courts. You can demand the property shares then.

Thank you. 

Anik Miu
Advocate, Bangalore
10493 Answers
121 Consultations

- Firstly you should know that a foreign divorce decree valid if only it granted on the ground of mutual consent divorce or a contested divorce decree. 

- Hence, if the said divorce decree granted by the US decree is based on mutual ground then it is valid in India. 

-Further, during the life time of your husband , you have no share in his property whether that property is his self acquired or an ancestral property. 

- However, your kids can claim his right over the ancestral property. 

- Further , if the property is in joint name , then legally you can claim you half share in the property . 

- You can file a suit for getting the share in the property . 

Mohammed Shahzad
Advocate, Delhi
14908 Answers
226 Consultations

1. USA Court certainly issue decree of divorce which you can collect from the Court by paying the required fees.

 

2. If any property stands in your name in USA or India, you can claim your share of the same by filing partition suit.

 

3. Your kids can get their shares of their father's properties after the death of your Ex-Husband, intestate for which they shall have to file Partition Suit at that time.

Krishna Kishore Ganguly
Advocate, Kolkata
27538 Answers
726 Consultations

File suit for partition for division of property by metes and bounds 

 

seek injunction restraining sale of property by your spouse 

Ajay Sethi
Advocate, Mumbai
97863 Answers
7939 Consultations

No. You neee to file custody petition in India if it's a contested custody. You will not get the same on the USA judgement

Prashant Nayak
Advocate, Mumbai
33129 Answers
215 Consultations

In that case, the divorce certificate should be good enough. Please ask your lawyer in India to peruse the certificate and initiate execution proceedings on the basis of it.

Swaminathan Neelakantan
Advocate, Coimbatore
2976 Answers
20 Consultations

As per Indian laws, the properties situated in India on the names of the individuals shall remain the property of the said individual till his or her lifetime.

Neither the spouse nor the children can claim any share in such  properties as a right, at least not till the lifetime of the property owner. 

The divorce between the couples will not automatically entitle the wife to claim any share in her husband's properties if she is not a joint owner of the said property.

The laws in USA are different to that of India hence the agreement made between you both in USA for the properties in USA will not be binding or enforceable i India until and unless you get the properties mentioned in the USA judgment and file an execution petition in India to execute the USA court judgment in India under section 13 of CPC, 1908. 

T Kalaiselvan
Advocate, Vellore
88065 Answers
2377 Consultations

Dear client, 

In the situation where the separation agreement is not valid in India, you may file for a divorce within India. You do not require the final judgement letter in order to begin a fresh divorce petition in India. It may be hard to receive the property shares with only the separation agreement, considering it won't be seen as valid in India. 

Thank you. 

Anik Miu
Advocate, Bangalore
10493 Answers
121 Consultations

- If you will file a petition before the US court then that court is bound to pass decree of the divorce case , however as i mentioned that a mutual consent divorce decree and contested decree is only valid in India. 

- However, you can file the divorce petition in India , and can claim the property share and child support as well. 

Mohammed Shahzad
Advocate, Delhi
14908 Answers
226 Consultations

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