Legal Question in Family Law in India

divorce & child custody for American citizen of Indian origin

Q1) a) Being a US citizen of indian origin can i file for divorce in India as I was married under Hindu marriage act in India?

b) if my husband files for a divorce in Chicago and i decide to file from India how the proceedings will follow?

c) Can a decision of US court be enforced in India? If my husband brings an action in US court can we claim that an action is already pending in India?

Q2) How much alimony and child support I will get in India? Do u think Indian court will take into consideration my husband's property in US and India?

Asked on 6/19/07, 8:25 am

7 Answers from Attorneys

kavitha balakrishnan kpp associates

Re: divorce & child custody for American citizen of Indian origin

being an american citizen you have file a divorce in USA - the courts there will consider all the properties togather.

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Answered on 7/01/07, 12:52 pm

Prabhat Shroff Shroff & Company

Re: divorce & child custody for American citizen of Indian origin

Simply stated, the answers to your queries are-

1.Yes, you can. Rather, it is preferable and more effective to file for divorce in India since you were married as per Indian Laws.

2.If you file in india and your husband does so in USA, then whoever has filed first will take precedence over the latter. The party who has filed first, can take a stand in the latter case of such precedence.

3.Marriage and divorce being personal laws, Indian Courts take quite a dim view of US Divorce decrees, even thpough a US Decree, under Indian Laws, is enforceable, it may not be effective enforcement, especially a US Diovorce decree.

4. Yes, the Indian Courts will take substantive notice of all the husband's properties while deciding teh alimony and maintenance issues.

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Answered on 6/20/07, 1:13 am
rajeshwar sharma rajeshwarnathsharma

Re: divorce & child custody for American citizen of Indian origin

Answer to query:

a). Yes,you can file diorce case in India as the marriage was solemnized in India under the Hindu Marriage Act and at pesent you residing in India.

b). No one can deprive anybody from availing the legal remedy. Your husband can file divorce against you in Chicago and you may also file the divorce case in India but generally the court will act upon the case which is filed earilier. In case if you brings the action earily i.e. before filing the case prior to your husband than you by yourself or through attorney defend youself by informing the Chicago court about the filing of divorce case against your husband with the prayer to stay the proceeding of the case till the disposal your case filed in India.

2. Alimony and chid support always depand upon the income and status of the husband.

While granting alimony and child support, the Indian Court will considered the properties of the husband situated in India and US. For furhter query contect me

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Answered on 6/20/07, 7:48 am
RAJIV GUPTA (Cell: +91 9811284735) [email protected]

Re: divorce & child custody for American citizen of Indian origin

the major difference between the u.s. and indian laws is that while granting divorce, the assets of both the parties are equally divided in u.s. but that is not so in india. here you can claim maintenance as an ancillary relief while your petition for divorce is pending. the maintenacne of course depends upon the status of the husband and in india, you may even get more than 50% of net income of your husband as maintenance pendente lite. it is advisable if you elaborate more by sending an email or contacting over the phone.


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Answered on 6/20/07, 9:12 am
G. M. Gupta gmguptaandassociates

Re: divorce & child custody for American citizen of Indian origin

1)yes you can file case in india

2)your husband also can file the case in chicago but the case which would be filed second can be stayed by moving an application by the opposite party mentioning that similar case is pending in other country.

3)as US and india have legal treaties and honour laws of each other so judgements and orders of both countries are applicable in both countries.

4)indian courts will take into consideration all his properties and his status. but you may face some technical problems in getting the compensation you are entitled.


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Answered on 6/20/07, 10:09 am
Vivek Mapara Mapara Law Firm

Re: divorce & child custody for American citizen of Indian origin

A) Yes you can file divorce petition in india

B) If your husband files petition inn Chicago, then you can certainly move application in that court, regarding pending of proceedings in Indian Court, and the fact that both are hindus and Hindu Marraige Act is applicable, because of the principle that it is a law lex-loci (Law Runs with the Person). So your divorce petition here would be maintainable

C) Yes a decision of US court would be applicable in india

D) Alimony etc depends on the life style and financial condition of your husband, which also include all assets of Husbands property in US and India

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Answered on 6/19/07, 9:44 am
Sudershan Goel Sudershan Goel - Advocate, International Visiting Scholar, USA [2008-10]

Re: divorce & child custody for American citizen of Indian origin

first of all, no decree passed by an Indian court about property of your husband in USA shall be enforceable in USA.

2ndly, being US Citizens, your husband enjoys complete protection of US Laws. Therefore, any law contrary to US law will not bind him.

therefore, it is better to seek divorce and alimony from courts in USA.

Sudershan Goel

camp Harrisburg, PA, USA.

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Answered on 6/20/07, 11:01 pm

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