The Lotus Flower... not a bad national symbol, if you ask me. Derek Ramsey via Wikimedia Commons.
The Lotus Flower… not a bad national symbol, if you ask me. Derek Ramsey via Wikimedia Commons.

The world’s largest democracy.  An ancient and intriguing land with no equal on the spectrum of diverse and exotic destinations.  Seriously– India is not a single culture.  It’s dozens of them, if not hundreds.  Serving process in India is subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter.  But brace yourself… it’s gonna take a while.

Some background is in order…

  • The roadmap to the overall process—the recipe to our Secret Sauce.
  • The structure of the Convention itself is discussed in this four-part series.
  • And an absolutely critical note: the Hague Service Convention does not pertain to subpoenas.  Repeat after me—you can’t just SERVE a subpoena in India.  You have to file a Hague Evidence Request.  Dramatically different from serving a summons or notice.

Here’s how service is effected in India:

Article 5 Service

  • Translate the documents? Logically, if service is effected in an English-speaking country– which India is, at least officially– documents must be in English.  So, game over, right?  [Yay!  Pack up and go home!]  Not so fast, counsel… make sure your defendant actually speaks English, because his U.S. Due Process rights follow him to India.  Anybody sued in a U.S. court must be served in a language they understand, so if they don’t speak English, translation is still necessary.  And there are hundreds of languages spoken in India, so be very meticulous about getting it right.
  • Fill out a USM-94. Be very careful about ensuring that it is complete and concise, and make sure that it is signed by a court official or an attorney.  If it is not, make sure that the person signing is commissioned by the court.
  • Send to the appropriate Central Authority. And know that in a country of 1.3 billion people, they’ve got one guy working in their Central Authority.  One.  So…
  • Sit tight.  It may take a while—likely a year from submission to return of proof. That is not a typo.   Patience is absolutely critical, on the part of the plaintiff and on the part of the court– always bearing in mind that specific deadlines generally don’t apply to service abroad precisely because of inefficient foreign bureaucracies.  All that said, if you have local counsel involved, the time could be trimmed considerably.*

Article 10 alternative methods

  • Forget it.  They simply aren’t available, because India objects to them all. Article 5 is the only way it can be done.

Seriously—that’s all there is to it.  The method is straightforward and simple.  India’s declarations and Central Authority information—as well as those of all the other countries in the treaty—can be found here.

Bonus practice tip… if you’re defense counsel, always question the validity of service effected on your overseas client.  The plaintiff may not have done it correctly.

 


* Not just any local counsel will do, for the record.  They must actually know how to shepherd things through the labyrinth, as it were, and it helps if they know that one guy in the Central Authority office– much of the lag time in India service comes in the form of unopened mail on one guy’s desk.  Once the wheels are turning, local counsel can monitor the request to make sure that it doesn’t spend several more months waiting to be opened on some other guy’s desk.

  • Sam

    Interesting. I am in the same boat where I am required to serve the spouse in India. So are we saying that it takes around one year to serve in India and get a return receipt? Would a certified mail with tracking not work?

    • Nope. India objects to Article 10(a), so postal channel service is prohibited. This extends to US law.

      • Sam

        Thank you. So how are couples getting divorced in US, with one spouse residing in India? What’s the alternative for one spouse who is in US and trying to serve notice to the spouse in India? Service through Hague is tedious as you mentioned. I can never get a divorce in US if my spouse is in India and unwilling to cooperate. No relief?

        • With an uncooperative spouse, Hague service is the only way– quite literally. With a cooperative spouse, service can be waived (not accepted– WAIVED ), but even then, it’s more complicated than it might seem on the surface.

          There is definitely relief with Hague channels, but it takes darn near forever by US standards.

          • Sam

            Thanks again. I was under the impression that US courts have a certain deadline before which they are required to dispose off the cases. With Hague convention taking nearly an year to even get a response back, is there an exception to such cases?
            On an unrelated note, if say the case concludes with a judgement and if alimony is involved, how does the US judge enforce alimony to a spouse who is in a foreign country?
            This is an important discussion and I appreciate your inputs.

          • US courts do have deadlines, but because the Hague Service Convention is mandatory doctrine, nearly all states (only Michigan and Wisconsin excepted) have some way to extend to the time by which service must be effected.

            Enforcement, unfortunately, is a far tougher question. US courts have no power to enforce alimony orders unless the overseas spouse has assets in the US (that is, that couldn’t order an employer in India to garnish wages). Any enforcement in India must be undertaken by Indian courts– and that entails a highly complicated and costly procedure that often makes pursuit untenable.

            Long story short– you’ve got to explore options with your attorney.

          • Sam

            Wow! Here’s my challenge – uncooperative spouse in India. I don’t know her whereabouts there. So can’t really use Hague. Is local newspaper notice an option in this case? I contacted 9 local lawyers in my state and all have no idea how to proceed with serving. I pointed them to your blog, but said it’s a tough case to handle. So I am looking for options myself. I am looking for examples of someone who has done this before.
            Working with spouse and sorting issues under Indian jurisdiction is ideal. But real world never works that way 🙁

          • Publication may be an option, but that will depend on the court where you file. You might ask the court clerk if they have a program for pro se litigants to get basic assistance.

          • Sam

            Hi Aaron – I consulted some 10 lawyers locally in the last few days about serving overseas. 9 of them said no idea to serve overseas or go by Hague which is their first time. One attorney who claims to have experience serving overseas and does this all the time, told me to use plain registered mail plus do notice of publication. I was pressing if that’s really doable without Hague. The attorney was confident. Would you buy that?

          • Any form of mail to India violates the Hague Service Convention– specifically, Article 10 and India’s declarations thereto– and anybody who tells you that you can go around the Convention to serve in India should read the Schlunk case. It’s very simple– mail service is only acceptable if (1) the court hearing the case allows it AND (2) the destination country does not object. India objects, so it is not an acceptable option.

            Publication is another matter entirely, but I don’t know whether that would be appropriate or not under your court’s rules.

            Bottom line, you have to have a lawyer help you with this– and they can retain me for help (ALL of my clients are litigators).

          • Sam

            Thanks! I will try to nudge the lawyer. I am gathering there are 2 ways to serve, (1) the Hague way, (2) personal service way. People are doing both.

            I found this link https://processserviceinindia.com/personal-process-service-in-india/ where once the petition is filed in US, agencies like this one will need a soft copy and they will deliver the papers in person. Is this something I can use?

          • NO! ABSOLUTELY NOT.

            There is ONE way to properly serve U.S. process in India, and that is pursuant to a Hague Service Request filed with the Ministry of Law and Justice in New Delhi. Period. End of list. Full stop.

            If publication is allowable (and that’s a HUGE “if”), then the documents aren’t being served in India. They’re being served here in the U.S. (although, a plausible argument can be made as to its validity when the defendant can be located).

          • The bottom line is that you must seek representation for your case, and your lawyer is welcome to contact me.

          • Sam

            That’s good to know. Thank you.

            Then why do these local process servers exist to send divorce papers? Are they not legit?

          • “Legit” is a pretty subjective term.

            Put it this way– anybody who tells you that you can just hire a guy in India to serve U.S. process is either (1) lying to you or (2) clueless about the rules. Either way, they’re wrong.

  • Natali B.

    What about providing a return self-addressed stamped envelope so it makes it easier for India to return the certificate showing service? Have you found this can help?

    • Highly doubtful. A U.S.-stamped SASE would be ineffective, and a FedEx or UPS return airbill would be far out of date by the time the Authority sends the Certificate back. That’s assuming it doesn’t get lost in the shuffle.

  • Aar Kay

    Hi, i have sent divorce notice to my wife but she and her family are dodging the process server and not accepting the divorce notice. I live in NY state and my wife in Virginia. Process server had tried 4 times . My questions:-
    1. My wife family is telling process server that she don’t live there and might have gone back to India which i guess they are lying. Can i go for notice for publication.
    2. What if my wife might have gone back to India in order to harass me and make things complicated. Still i can go for notice for publication since she was here in USA at the time she has been issued divorce notice form court or i have to follow the HAGUE process which sound very scary and time consuming?

    Please reply. THANX

    • This is a question (at least, initially) of New York law. You’ll have to seek advice from a New York attorney as to what your options are.

      If the situation does reach the level where you MUST serve at a particular address in India, there is no way around Hague requirements. (Have your attorney call me.)