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Can Indian court be moved after divorce decree in US?

NEW DELHI: Two years after a US district court refused to honour an order of the Supreme Court of India in a child custody litigation arising from a soured marriage, the latter has taken up for adjudication an exactly reverse case.

The question before the apex court is - can a woman, after consenting to a divorce decreed by a US court, be allowed to come back to India and move the courts for fresh adjudication of the marital dispute alleging that she was forced to sign the papers and that her husband ill-treated her? By accepting for hearing a petition filed by a US citizen against his India-based ex-wife, the apex court has not only embarked on clearing the grey legal issues in soured NRI marriages increasingly tossed into courts, but also landed in a situation exactly opposite to the one it faced in 2005.

In October 2005, a New York family court had virtually nullified an order of the apex court in a custody battle relating to the two great-grandchildren of former Andhra Pradesh CM N T Rama Rao. The apex court had wanted the presence of the two children to ascertain their view whether they wanted to stay with their grandparents after the death of their mother or with their US-based father. But the NY court had refused to allow the children to be taken to India.

In the case at present before the SC, US citizen Vijaya Vajja has filed a petition saying his ex-wife Roopa had consented to divorce before a Fairfax County Court in the US on January 14, 2004.

He alleged that on May 12, 2004, she flew to India with their son to deprive him of the joint custodial rights granted by the County Court, under which the child was to stay with him on all working days from 4.30 pm to 9 pm and from 8.30 am to 9 pm on all holidays.

On being intimated about the unilateral withdrawal of the child from its jurisdiction, the US court on June 18 ordered Roopa to return the child to the father.

After coming to India, Roopa filed a petition before a Hyderabad family court seeking sole custody of the child. She alleged that she was forced to sign the divorce papers and that Vijaya had caused her severe mental agony by going around with another woman, whom he married after divorce.

Whatever be the allegations and counter-allegations, the petition moved before the apex court by Vijaya through counsel Sridhar Chitale also raises another important issue - can a woman after participating and accepting a decision of a foreign court be permitted to come back to India and lodge FIRs accusing the husband of harassment at her matrimonial home?

Vijaya alleged that the FIRs were filed with the intention of preventing him from coming to India and meeting his son as the fear of arrest under Section 498A always hung on his head. On the appeal, the AP HC initially granted restricted rights to the father to meet the child, but in the final order passed last year, it dismissed his appeal saying there was no ground to interfere with the family court's order.

While the SC appears to have arrived at an interim arrangement over custodial and visitation rights concerning the child, the main issue relating to finality of the foreign court divorce decree is to be thrashed out.

dhananjay.mahapatra@timesgroup.com [23 Sep 2007,Dhananjay Mahapatra,TNN]

NRI DivorceŽ 2006-2010