@ Author
There are two parts and a take as reply to your brief;
First part:
1. The code (S. 125 CrPC) has dangerous implications in presented briefs scenarios is what I mean – any wife (that includes divorced women) may file a petition for maintenance under CrPC S. 125. In the event that she doesn’t marry anyone, you are liable for her maintenance for the remainder of her life. You are liable no matter what, whether you pay or you don’t that’s your choice. If you don’t pay maintenance, the Order can go to Execution resulting in a warrant against you and potentially Passport cancellation (Passport Act, 1967 S. 10) – I repeat, passport cancellation – that DOES NOT mean you will be extradited (that is too remote a chance) – but it’s a concern nevertheless.
2. Divorced wife means – whether she lives in adultery doesnt affect her rights to maintenance (believe me for a wife to live in adultery is virtually allowed in India vis-à-vis bigamy by her husband and next day you incarcerated for 7 years in Jail if found out J – ONLY if she is capable of earning on her own (has a job which means I think you were searching sometime back if she is working ! what happened to that search?) OR gets re-married – then you are off the hook. Or, you may get US or Canadian citizenship in which case the Indian law doesn’t affect you unless you land in India. Unpaid maintenance resulting in a warrant still remains valid within Indian jurisdiction and it cannot be executed overseas it is next to impossible.
3. Most importantly, US divorce – contested, uncontested, ex-parte, mutual consent, whatever… don’t matter in the case of CrPC S. 125 ……the Magistrate at the lower court, may upon his / her discretion, ignore the US court’s verdict. His call on “change of circumstances” is final… say if the girl had a job in the US (legal or illegal) and she returns to India just for fun or to meet her ex flame left behind here whatever… that’s a change in fiscal circumstance and she may be entitled for maintenance u/s CrPC S. 125. PERIOD no further questioning you are allowed here J
Even if you pay / settle in the U.S. or India – she may still claim and get more maintenance, if she has reasons – such as a medical need or any other life events that have changed her fiscal condition (she has blown all the money you had paid in permanent maintenance upon her b/f it does not matter to Indian Law so why bother asking where she spent the hard earned green bucks given to her as one time alimony PERIOD).
No matter how fool proof your marital termination agreement here is, she can claim and get maintenance u/s CrPC S. 125. Monetary sanctions against a wife levied in the US has no impact in India as Indian law and judgments will be based on Indian public policy and socio-economic context.
4. The only silver lining is – if you can smoke her out in the U.S. to participate in a contested divorce, at least those divorce decrees are valid in India.
5. Finally, marital misconduct in the U.S. such as restraining orders on Indian wife’s or she was caught shoplifting 9many Indian wives has those past histories especially those in UK / OZ so why you are sounding surprised J) arrests of abusive wives may have some feeble impact here, if any, on the “FINAL” maintenance order. As far as the interim i.e. “maintenance pendente lite” – court awards temporary maintenance based on prima facie assumption of truth on the girl’s petition / simple affidavit from her side will also do and cursory review of preliminary facts (masala mentioned therein).
Bad news huh? Well, lots of PIO / NRI's learned it / learning it the hard way.
This doesn’t mean however, that we shouldn’t fight – if your case has merits (or so you think) – keep fighting… the ONLY two prongs we have -
I. Lengthier procedure may frustrate the girl’s party (depends if she is young and good looking as it increases her prospects for re-marriage without disclosing past cases as she is called “innocent divorcee” I mean there is nothing called so atleast going over various Judgment I couldnot find any Judge mentioning “innocent divorce decree” J whatever)
II. She may get married…Hope and pray that she gets married (but for that prayer to succeed you need to send all your hard earned green bucks to one of her eligible neighborhood boy to come forward and ask her hand – POSSIBLE in India think aloud now)
In this gloom and doom times, only one possible ray of hope that I see emerging is:
A. File S. 211 and 500 IPC case against her in s. 125 CrPC proceedings. Reason being you say it is false in your above brief and forget rest of her moves you will succeed at finality of S. 125 CrPC order time believe me!
Second Part:
Is on your question of divorce taken outside India;
This all depends on the wife if she challenges in Indian court, the decree of divorce taken by you in USA on the basis of S. 13 of the CPC & well laid down principle of the Apex & other High Courts of India with regard to foreign court jurisdiction vis-a-vis judgements / order / decrees thus obtained.
If your wife surrendered herself to the US court jurisdiction, never objected to the US court jurisdiction to adjudicate the matrimonial dispute between both of you as you both were Indian citizens, married according to Hindu form of Marriage under the Hindu Marriage Act,1955, according to which only the Indian courts have jurisdiction to adjudicate any matter under this Act, in such case on the basis of her agreeing to the jurisdiction of US court you get benefit in Indian court later (but is that the case in hand:-), however if the US case was heard ex-parte in her absence, this will not be considered as her surrendering to US court jurisdiction, she should have been participating in US court proceedings, at all stages, not objecting is to why US court is adjudicating this matter, only in such case you can state that she never objected to US court jurisdiction.
Second important issue is merits of the case or the grounds on the basis of which the decree of divorce passed there. In most of US court divorces the most popular ground is "irretrievably broken matrimonial home doctrine based". Right ?
Unfortunately this ground is not available for divorce under the Hindu Marriage Act,1955. What the law say that the ground under which divorce was granted by a foreign court should be one which is available under the Hindu Marriage Act,1955. The Supreme Court of India has held in its landmark judgement in re. Y. Narasimha Rao case (link is here) https://www.indiankanoon.org/doc/989920/, concerning US court divorce that was granted on the ground of "irretrievably broken matrimonial home" is not available under the Hindu Marriage Act,1955 & hence such divorce will not be valid according to the Indian Law hence it shall be considered void divorce in India.
So this is legal situation where you stand & most of Indian presently residing in USA who are moving to the local US court for getting their Indian Marriage dissolved there are simply surviving on temporary marriage legal (per se) visa and not on effective riddance (per se) visa stamped by their Indian wives respectively and shocker you see once you land at any of the Indian international Airport.
Last take on your main que. before us
1. It is called and penalized under bigamy laws only and there is no other interpretation one may place before you to satisfy and say go ahead marry second time when first one is progressing her legal remedies slow but steadily here in India.
2. Indian Girls moral cannot be broken when 41 laws in India she can use against you and 90% of these 41 women favoring Laws operate 'prime facie" in marriage - divorce then re-marriage in India are all never been an easy social affair and can never be because we believe in encouraging investing time in "temporary jugad'.
BTW, I noticed you were going all right all these days looking at some of our past interaction here - what happened bro. that you want yourself to be attracted to provisions of bigamy sitting there !
Take calm breadth and relax no short cut appearing at the other side of Atlantic tunnel for PIO’s / NRI’s under Indian Laws in present form and substance.
Leaving space for rest authors who may give their wisdom if any.
