Can NRI file for divorce in the U.S.?
The principle question is private international law i.e. whether a marriage which was solemnized in India can be dissolved by the court in the US. Seeing the various cases settled by the high courts and the Supreme Court of India, it looks the judges decided each case on its merit and special set of circumstances and requirements.
For instance, if you got married in India but got divorce in the US through mutual consent, it will be valid, legal and binding in Indian Courts by virtue of section 13 and 14 of Code of Civil Procedure and also on account of comity of Nations. The law for such a divorce is settled and does not even need validation in Indian Courts.
However, the trouble for divorces that have been given on the grounds that are not available in India under the law i.e. Hindu Marriage Act or Special Marriage Act, they can be challenged. Contested Divorce is not valid and binding; there are certain equations that must be correct in order to get enforced.
What Happens When Divorce is contested in India?
In case you did not contest the divorce in the US, you can contest it in India where the marriage took place as divorce granted by foreign Court will not be applicable. At the same time if you want your spouse not to file a divorce case in the US, you can file a case in India and prevent him from proceeding in the US Court.
Moreover, as Indian Courts have jurisdiction over its citizen, ex-parte decree of divorce granted by the court in the US won’t be valid. The Section 13 of Code of Civil Procedure talks about recognition of Foreign Judgments in India and reading this and various judgments from the Supreme Court it’s clear that any foreign judgment if opposed to natural justice, founded on breach of Indian law or obtained by fraud, would not be recognized in India.
Therefore, an ex-parte divorce won’t get recognition, particularly when the party was not contesting it. Thus, except for the divorce obtained through mutual consent and where the both parties contested for the divorce, there are no other options for you to get divorce in the US.
The simple law in India is that if you obtain a divorce decree in the US which is not recognized in the Indian Courts on the ground that the US court had no jurisdiction over the matter, the marriage is recognized in India but annulled in the US.
