@ Author,
First I object to consistent wrong advises given by @ Dhanesh not only to this query but to another query recently on cross boarder legal questions raised by family law forum queriest. Such frisky replies bring down standard of the Forum.
Now over to your query I have following process flow to advice which is in consonance to legal practice procedures in similar facts that we follow via Indian Courts.
1. India is signatory of The Hague convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters since 15 November 1965. Both India as well as reference country i.e. USA are signatory to The Hague Service Convention.
2. When Indian Court awards a Order and respondent party is alleged to be said to reside in outside Jurisdiction of Indian territories then The Hague Service Convention provides for a simpler procedure for the transmission of judicial and extrajudicial documents from one signatory country to the other signatory country for defendant to come and appear and to mark his say.
3. You have following procedural ways to lead which are suggested as only available option against above two opening backdrops read with your brief’s several anxieties;
(a) You have to instruct your advocate to first seek Execution of Interim Order passed under DV Act via a Execution Court.
(b) Pray in Execution petition to process service via The Ministry of Law and Justice Department of Legal Affairs, New Delhi which is designated as the Central Authority of India upon respondent Husband alleged to reside in USA. Provide his USA Address.
(c) If you use this method of service of process of Execution Court proceedings then mind it two procedural outcome may happen in related to your brief;
c1 - Under Art. 15 of the Convention, in case the defendant husband upon whom the service was made via Central Authority channels failed to appear here a decision shall not be issued by Execution Court unless it is proven that:
- The process document was served by a method prescribed by the internal law of the requested State within a reasonable time, or
- The document was actually delivered to the defendant husband or to his residence by another method provided for by this Convention within sufficient time to enable the defendant to defend.
C2 - Under Art. 16 of the Convention, the ld. judge of the Execution Court may give judgment even if no certificate of service or delivery has been received, if:
- The document was transmitted by one of the methods provided for in this Convention, and,
- A period of time of not less than six months, considered adequate by the judge in the particular case, has elapsed since the date of the transmission of the document, and,
- No certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities of the State addressed.
(d) Now if a judgment had been pronounced against defendant husband by the Execution Court the judge shall have to relieve the defendant husband from the effects of the expiration of time of Appeal if for no fault of his and/or the defendant husband did not have knowledge of the document or the judgment of Execution Court in sufficient time to defend or Appeal against and the defendant husband had disclosed a prima facie defence to the action on the merits. All these are acceptable defence by all HC’s in India and in similar cases Execution orders which a complainant wife has anyhow secured have been set-aside later on. This is just because she has in her frustration used the natural method i.e The Hague Service Convention.
(e) The Limitation to file an application for setting aside is entertained by HC in India if filed before the expiration of one year following the date of the judgment of an Execution Court.
So in a way what I mean to express here is that it will be almost an year’s journey for you to get any procedural relief if with due process of Law everything is processed with sufficient knowledge by your appointed advocate.
4. India’s Bharat Ratna DV Act has in-built (teeth less) provision in similar briefs i.e. claiming relief to declare defendant Husband as proclaimed offender (PO) after it is shown via an normal route Executive Court Order (naturally as ex party i.e.) that defendant husband still failed to meet his obligation. This is most sought after easy method which majority of advocates of a metro wife complainant suggest to her as it has advantages over disadvantages over to using The Hague Convention Service of summon / process method which naturally is said to be time consuming.
The advantages is that the NRI defendant husband is declared proclaimed offender (PO) and later via Authorities, a PO Notice is issued (this is another procedure which your advocate need to follow later on) to all Indian Ports of Entry (sea / air) to arrest a non-resident husband the moment he lines behind a Emigration channels at given port of Entry and then via a transit remand he is produced before Jurisdiction Court. Again one needs to constantly follow-it up with cross State (Indian) authorities to see – meet Husband in your Court corridor and is not that simple quick way to meet in person a defendant husband in such needs!
The disadvantages here is that in genuine cases of complainant woman she remains at mercy of defendant husband arrival one day or another at one of the port of Entry and till then no relief as were awarded under Protection Order in a DV Complaint case she can actually utilize to her much needy benefits. Advocate advising to break locks of matrimonial home via local police – social service NGO’s have shown to bite dust later on mind it so it should be best avoided in relation to facts presented in this brief.
5. If the property are in registered name of FIL / MIL then binding Judgments of Hon’ble SC comes into play wherein you cannot actually just go with an Court Order and break open the locks and claim to reside their as your matrimonial home and by this long sentence I advice that you cannot actually get to enjoy this relief for long for a reason the property in question is said to belong to your FIL who is R2 or R3 probably in your Complaint case and any such Court Order are bound to get set-aside Rule easily and in some cases Hon’ble SC and many HC’s of Indian States have even awarded compensation to FIL / MIL from DIL (complainant wife) as the case were towards punitive demurrages / rent etc.
6. Family (i.e. MIL / FIL / SIL / BIL as the facts may have been) of husband are liable to support you only in following two broad situations against backdrop of mentioned facts;
- You become a widow in pendency,
- Such property have been shown to have been built by contribution of husband money and a money trail is in possession of you.
7. I'm not aware of set of interim order you have pressed in complaint case as per your short brief and so far as rent in lieu of residence order matter is concerned it can actually happen only if defendant husband is made to appear in Jurisdiction Court i.e. only if he choose to respond. And he responds only if either or both above methods are effected upon him in time. In nutshell seeking actually the interim Order that you say you have was easy but Executing it is mentioned in above paras re-read them and see how time consuming r/w frustrating they are.
8. Mind it now you will hear another legal term in case non-resident defendant husband still does not file an appearance in Jurisdiction Court; Extradition or go and extradite your NRI husband, what are you waiting for!
Well, that is another set of International Convention procedure which gets routed from New Delhi only and sufficient knowledge of International Extradition (procedural) Laws your advocate should have to attempt on such journeys is my short hint.
However, under Family Law till date Extradition of defendant Husband has not been possible due to variety of reasons which I may not explain here for the sake of brevity as enough process flow I already wrote about such Laws in several of mine previous postings in this very Forum.
You are encouraged by me to read them down one by one to gain knowledge and become empowered to use them as per your capacity or simply follow concluding sentence of this reply
9. If all above are too much to take, then wait a ld. brother here is bound to advice you to send Court process to his Indian Company. Well to such advice I say just wait and watch where it goes from his alleged Company !
10. Lastly a ld. brother here will advice you to seek “revocation” of his Passport. I am not privy as to which Passport your husband has currently. If your husband has Indian national passport then yes it can be revoked subject to following provisions of S. 10 sub-section(s) of Indian Passport Act, 1967.
It is procedural way out and sufficient knowledge of Passport Act, 1967 your advocate should posses to effectuate it via jurisdiction Indian Court.
Well, if your husband has US National passport then request for revocation from Indian Court is forwarded to Ministry of External Affairs via following opening first and second advices but the catch here is that Federal laws (US Laws i.e.) requires that US citizens be granted a hearing before their US passports are revoked. Hence it is ought to follow a long wait and have not heard in a Family Law pendency matter in India a Indian husband having US Passport has got revocation order in US soils and left with 2 days temporary fly out document that also simultaneously stripping off his US nationality and US authorities have ever requested local Indian Mission (Indian Consulate Generals office) to deport their subject husband(s) back to India to face trial.
Lastly on same subject line if he has Indian passport and is subject to renewal soon then it is ought to visualize he presenting his passport to nearest Indian Consulate Generals office soon so an LR from Indian Court via following opening two advices ought to press in motion soon enough from Ministry of External Affairs and thus fish him out back to Indian soil which is available way out whose sufficient procedural knowledge your advocate should have.
In short, evaluate which procedural method suits you well from first two and then give instruction to your advocate to act accordingly. In my opinion a complaint wife under Comlplaint cases should ought to follow both first mentioned legal procedures to safeguard her best legal interests as first procedure compliments the next one and meantime prepare yourself and file papers for Divorce.
It is noticeable (social irony) in such briefs that she gets ex-part Divorce easily as husband is stated to be living overseas and if she is young and can rebound in her productive years, she should get herself re-married and let Law of land take its own course for a proclaimed offender (PO) person (who in a way remains struck; first trying to sort ex part DV Order / may be also sort breaking of his father's residence locks / several Appeals and meanwhile meet part of Interim order on Protection Order etc. which are all time consuming now for him) and meanwhile may be you make yourself re-settled in life leaving behind a pending complaint case which on your behalf STATE contests / pleads NOW.
Short question:-
May I know if alleged acts of domestic violence in your complaint case took place in USA or India as per mention in your Complaint pleadings based on which trial Court awarded Interim Order?
Can you quench my short (inquisitive) question if you may like to answer to this question!
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