Foreign decree absolute, foreign divorce settlement and stridhan in india
SanilS
(Querist) 27 October 2012
This query is : Resolved
If a foreign court with jurisdiction dissolved the marriage and approves a mutual agreement to the all aspect to the marriage related to the Petition’s, being the wife, application. During proceedings in the foreign court full and final disclosure was made by the parties including the Stridhan. The foreign court dissolved the marriage and ordered that the parties are NOT allowed to any application for order relating to the dissolved marriage, which I had taken place previously under Hindu Marriage Act.
Question(s):
• Is the foreign orders legally binding of the parties?
• Is there any time frame after a foreign divorce decree by which the Applicant can submitted submit an application for further order to Family Court in India?
• Can the Applicant, being the ex-wife, by means of Power of Attorney file before the Family Court in India further application before an order relating to the alleged stridhan? If so, on what ground(s)? My understand once a court with the correct jurisdiction makes a decision (ie final and absolute) any further application on the same related matter will be barred under Res Judicata under Section 11 CPC.
• If the Applicant does submitted such claims, will be Indian Court will entertain the application? If so, under what section(s)? What is cause proceeding with the case? Would the submission of foreign decree absolute and Consent Order conclude matter? If not, what’s the procedure to get matters concluded?
• Any the chance going to either High Court or Supreme Court to get an award to get the Family Court case concluded ASAP? If so, under what section of the law?
Kindly look forward to your reply.
Thanks
ajay sethi
(Expert) 27 October 2012
foreign decree would be legally binding on all the parties . it has conclusively determined all the issues with mutual consent of the parties . wife cnanot make further application in india
Devajyoti Barman
(Expert) 27 October 2012
1. It is very much valid if it did not violate the basic principle of law which is in force in India.
2. No need for further order in India.
3.No it is not possible nor necessary at all.
4&5. Not applicable in India.
SanilS
(Querist) 27 October 2012
Thanks your valuable inputs and that was my understanding (ie the foreign court is legally binding on the parties and therefore, the Indian Court won't entertain such a petition)
However, the issue is that Family Court in India has formally registered proceeding in Dec 2009 and it still pending despite the divorce and consent order have been submitted.
Had the case of 498A and 34 IPC registered. After long battle with the Complainant and Judiciary spanning over more than 6 years; the family was fully and unreservedly exonerated of "all criminal offence".
Question:
1) How to get conclusion on the proceeding before the Family Court regarding alleged Strihan?
2) Any the chance going to either High Court or Supreme Court to get an order so the Family Court case concluded ASAP? If so, under what section of the law?
Thanks
Devajyoti Barman
(Expert) 27 October 2012
bRING OUT ALL THE CATS OUT OF THE BAG THAN POSTING ONE QUERY AFTER ANOTHER.
SanilS
(Querist) 27 October 2012
The cat was already out of the bag with original message ie indication of the possibility outcome.
Most (if not all) say that the foreign divorce decree and mutual agreement is valid. Therefore, no further application can be applied. I, thus, don't understand this period!
Understand the case before Family Court was registered under The Family Act. Further, the divorce decree and consent order should equal the conclusion of the case period but the case has pending before the court coming upto 3 years but no procedure in the matter (ie adjournments).
Any suggests?
ajay sethi
(Expert) 27 October 2012
have you in your reply pointed out the aforesaid facts ? have you filed certifed copy of foreigh divorce decree passed with consent of boith the parties ?
SanilS
(Querist) 27 October 2012
Following the petition before the Family Court India on 9th December 2009 and the Court issuing the Summon regarding the registered case, reply petition was submitted. The reply petition stated the following:
1. foreign Consent Order of 3rd January 2006 stating that either party is not allowed to make an application for an order relating to the marriage and divorce decree of 24th May 2006 were submitted.
2. The petition is barred under Section 11 CPC as the matter had been already decided and finalised by the foreign court.
3. The alleged stridhan is the question of the criminal prosecution. Thus, Section 10 CPC apply.
4. The petitioner has a problem she has resource to foreign court.
Point 1 - a certified a copy including authorisated by the foreign governent too
Within 1 & 2 several advocate informed that the matter will be concluded simply 'Cos the petitioner was the wife in the foreign proceeding. However, the case is still pending coming upto 3 years now.
Dr V. Nageswara Rao
(Expert) 28 October 2012
1. A foreign decree can be enforced in India, unless the decree was made by a Court without jurisdiction, or was obtained by fraud or collusion.
2. If there was a criminal proceeding under S. 498A was pending in India, as the offence is a non-compoundable offence under CrPC except in AP and Delhi, the foreign consent decree will have no effect on the criminal proceeding in India.
3. S. 11 of CPC does not operate with regard to criminal proceeding and a civil decree does not operate as res judicata against criminal proceeding.
4 Double jeopardy will not apply as the foreign decree is a civil one.
SanilS
(Querist) 28 October 2012
1. The foreign divorce decree and consent order is VALID as the court has jurisdiction as both parties co-habit the foreign county. The orders were not obtained fraud and/or collusion as parties attended the court and was legal represented.
2. Criminal case precedent over the civil action. ie Family Court can deal with the matter ONLY when the criminal case is finished.
3. Was reference to civil matter. Know that criminal and civil are independent.
4. Agree. Was refer to Family Court of India case regarding the alleged stridhan.
So no one know how to get the Family Court case concluded ASAP?
SanilS
(Querist) 04 November 2012
Anyone one know how to get the Family Court case concluded ASAP?
Dr V. Nageswara Rao
(Expert) 04 November 2012
1. You seem to be assuming many things.Which Court gave the decree in US and where were you both living at that time? Hope it is not a Nevada Court.Whether the foreign Court had jurisdiction will be decided by the Indian Court when you seek to enforce it in India.
2. Consent of parties cannot confer jurisdiction on a Court, particularly a civil Court to dispose of criminal matters.
3. There is nothing like a criminal case getting precedence over civil case.Cos they are dealt with in different jurisdictions.
4. Who "exonerated" re S. 498A, by a criminal Court in India?
SanilS
(Querist) 04 November 2012
1. Divorce decree was not from US. It was in the UK. I was the Respondent in the proceeding. Both parties attend the proceedings and was legally presented. Therefore, the divorce decree and mutual agreement are valid in India that's what I have been informed. Only way that the foreign orders are not valid in India is u/s 13 CPC (ie one of point in a-f is valid. It would not as the applicant was the woman).
2. We didn't use the divorce decree to get the exoneration of the criminal prosecution u/s 498A IPC.
3. What the precedence in a civil matter?
4. We (ie I and my family) was "freed of all criminal offence" by the learned Magistrate. Over the years, the ex also initiated private u/s 190 Cr.PC with read 200 Cr.PC to trial us and to get the punishment u/s 498A & 34 IPC. The case is over finally!
Only matter left to deal with is pending Family Court case. Just simply need some idea how to deal with this?
SanilS
(Querist) 11 November 2012
Any suggest by anyone?
