FREQUENTLY ASKED QUESTION BY OUR CLIENTS
I am an NRI residing in US and want to file a mutual consent divorce in my city jurisdiction I want to know if it and will be recognised by the Indian Hindu law if it falls under Section 13 of CPC.
I have read about it but couldn't understand many things involved in it. What needs to be done to satisfy Section 13 CPC Me and my wife are Indian citizens, married in India two years ago and want a divorce with mutual consent. I want to file a divorce petition in the US . We have lived in US since we got married. I will be staying back in US, but she wants to go back to India after signing the divorce response in US. So, my question is what procedure in India needs to be taken by my wife while in India to nullify our marriage under Indian Hindu law. Can she re-marry , if so what needs to be done and how soon ? Or we have to go through all the court procedures I am trying to avoid going to India twice to the courts during 1) filing and 2) court order after six months or so.
Answer
You and your wife can file divorce petition in US itself. Judgment rendered by US court would be considered as foreign judgment in India. But foreign judgments are valid in India. So you need not worry. Both of you try to apply for mutual consent divorce in US, so that there would not be any complications in future. It will also save time. If your wife applies divorce in India, and if you are not able to come to India, then court proceedings will be conducted via video conferencing ( family courts are empowered to conduct proceedings via video conferencing ) and divorce will be granted to the parties. So you need not worry. After divorce you or your wife may remarry anybody.
Myself and my wife have been married for 3.6yrs now and our lives have been rocky quiet from the start itself.Now i have decided
to move on but my wife though doesn't want to be in this marriage,she is got so much vengeance in her heart that she neither willing to divorce nor she is willing to move out of my parents place.
We both resided last together in aboard and I'm still working here.But wife is in India at my parents place since 2013 and we have living apart for like 2yrs now.Because of that i don't stay at my parents whenever i visit India and i usually stay at my Sister's place or at any of the hotels and i have got all the hotel receipts with me.
Now i want to file for divorce where i'm working currently and i know that my wife won't contest here.But i want my wife to come here and contest.
If i file a petition stating i will bare all her travel,lodging and other daily expense,will the court consider my request for her to travel aboard and contest.Now this falls inline with natural justice as far as NRI divorce laws are concerned.I'm giving ample time to file her defence and she can't complain that she is financially not capable to coming down here and contest.
Since we don't have kids and she is a housewife currently living at my parents place and she is also healthy,under what grounds she can file a petition stating she wants the divorce proceeding to happen in India.
I have been working here for well over 6yrs now and i can't make frequent trips to India to attend the court proceedings where in my wife can come here and attend the hearings since she isn't working and sitting just idle at home.
Or what points i can use in my petition on the basis of which the Indian court may consider my request or on what grounds i can enforce or execute foreign divorce decree in India.
I went through the NRI divorce laws, and i satisfy some of the prerequisite conditions like we both last lived together in aboard and the foreign court falls under the Indian jurisdiction principles and also i give her sufficient time to counter file her defence as per fair justice and also i'm willing to sponsor her travel,lodging and her other daily expenses for the duration of each hearing in aboard.
We both resided last together in aboard and I'm still working here.But wife is in India at my parents place since 2013 and we have living apart for like 2yrs now.Because of that i don't stay at my parents whenever i visit India and i usually stay at my Sister's place or at any of the hotels and i have got all the hotel receipts with me.
Now i want to file for divorce where i'm working currently and i know that my wife won't contest here.But i want my wife to come here and contest.
If i file a petition stating i will bare all her travel,lodging and other daily expense,will the court consider my request for her to travel aboard and contest.Now this falls inline with natural justice as far as NRI divorce laws are concerned.I'm giving ample time to file her defence and she can't complain that she is financially not capable to coming down here and contest.
Since we don't have kids and she is a housewife currently living at my parents place and she is also healthy,under what grounds she can file a petition stating she wants the divorce proceeding to happen in India.
I have been working here for well over 6yrs now and i can't make frequent trips to India to attend the court proceedings where in my wife can come here and attend the hearings since she isn't working and sitting just idle at home.
Or what points i can use in my petition on the basis of which the Indian court may consider my request or on what grounds i can enforce or execute foreign divorce decree in India.
I went through the NRI divorce laws, and i satisfy some of the prerequisite conditions like we both last lived together in aboard and the foreign court falls under the Indian jurisdiction principles and also i give her sufficient time to counter file her defence as per fair justice and also i'm willing to sponsor her travel,lodging and her other daily expenses for the duration of each hearing in aboard.
Answer
The key rule laid by the Supreme Court is as follows: If a couple is married under Hindu law,
(a) the foreign court that grants divorce must be acceptable under Hindu law; and (b) the foreign court should grant divorce only on the grounds which are permissible under Hindu Law. The two conditions make it almost impossible for a Hindu couple married in India to get a legally valid divorce from a foreign court since no foreign court is an acceptable one under Hindu Marriage Act and also because no foreign court is likely to consider the provisions of Hindu Marriage Act before granting divorce.
In a recent case (March 2012), Sunder and Shyamala tied the knot in Vellore district in 1999, Sunder went to the USA within a year and did not communicate with Shyamala after that. In 2000, she received summons from Superior Court of California, which subsequently granted divorce despite the wife’s defence statement. Madras High Court held that the Superior Court of California was not a court of competent jurisdiction to decide the matrimonial dispute in this case.
The exceptions that Supreme Court has permitted to the above rule laid by it are as follows in a case where husband has filed for divorce in a foreign land:
A) The wife must be domiciled and permanently resident of that foreign land AND the foreign court should decide the case based on Hindu Marriage Act.
B) The wife voluntarily and effectively attends the court proceedings and contests the claim on grounds of divorce as permitted under Hindu Marriage Act.
C) The wife consents to grant of divorce Exception A seems almost impossible. Exception B is examined in the next section.
Exception C means that the divorce is obtained by mutual consent and therefore the courts of India do not want to interfere with it.
In general, it can be said that if the partner contesting the divorce actively attends the divorce proceedings in the foreign court, the chances of his or her being able to later successfully approach Indian courts against an unfavorable judgment of the foreign court are very low. Indian courts, or for that matters courts anywhere in the world, do not wish to encourage court-shopping.
The well-accepted universal principle of law can be stated as – If someone has accepted the authority of a court, it cannot be open to the person to later question the authority of the court.
Thus you may petition the court at Singapore for dissolving your marriage with her by a decree of divorce and giving an undertaking to bear the expenses for her travel to Singapore and back may if accepted by the court at Singapore, shall solve the purpose, but such of provision of law is not heard of as per Indian laws.
On further issues you may consult an attorney at Singapore because you want to involve local law of Singapore in this
(a) the foreign court that grants divorce must be acceptable under Hindu law; and (b) the foreign court should grant divorce only on the grounds which are permissible under Hindu Law. The two conditions make it almost impossible for a Hindu couple married in India to get a legally valid divorce from a foreign court since no foreign court is an acceptable one under Hindu Marriage Act and also because no foreign court is likely to consider the provisions of Hindu Marriage Act before granting divorce.
In a recent case (March 2012), Sunder and Shyamala tied the knot in Vellore district in 1999, Sunder went to the USA within a year and did not communicate with Shyamala after that. In 2000, she received summons from Superior Court of California, which subsequently granted divorce despite the wife’s defence statement. Madras High Court held that the Superior Court of California was not a court of competent jurisdiction to decide the matrimonial dispute in this case.
The exceptions that Supreme Court has permitted to the above rule laid by it are as follows in a case where husband has filed for divorce in a foreign land:
A) The wife must be domiciled and permanently resident of that foreign land AND the foreign court should decide the case based on Hindu Marriage Act.
B) The wife voluntarily and effectively attends the court proceedings and contests the claim on grounds of divorce as permitted under Hindu Marriage Act.
C) The wife consents to grant of divorce Exception A seems almost impossible. Exception B is examined in the next section.
Exception C means that the divorce is obtained by mutual consent and therefore the courts of India do not want to interfere with it.
In general, it can be said that if the partner contesting the divorce actively attends the divorce proceedings in the foreign court, the chances of his or her being able to later successfully approach Indian courts against an unfavorable judgment of the foreign court are very low. Indian courts, or for that matters courts anywhere in the world, do not wish to encourage court-shopping.
The well-accepted universal principle of law can be stated as – If someone has accepted the authority of a court, it cannot be open to the person to later question the authority of the court.
Thus you may petition the court at Singapore for dissolving your marriage with her by a decree of divorce and giving an undertaking to bear the expenses for her travel to Singapore and back may if accepted by the court at Singapore, shall solve the purpose, but such of provision of law is not heard of as per Indian laws.
On further issues you may consult an attorney at Singapore because you want to involve local law of Singapore in this
Neither I nor any of my relatives demanded or have taken any dowry. Can she still file 498a?
Yes. Any Indian wife and her relative can file 498a on her husband, his parents, sisters, brothers, grandparents, uncles, aunts, cousins, wives of brothers, and other relatives. 498a (dowry harassment case) leads to arrest without any verification or investigation.
I have given a huge amount, say Rs. 5 lacs, to my wife or her parents by cheque. Can she still file 498a?
Yes. No investigation is done before 498a is filed and arrest warrants are issued without investigation.
My parents never stayed with us. Can she still file 498a against them?
Yes.
My wife or her family is threatening to file 498a and they are very abusive. What should I do?
Safeguard yourself, your parents and your relatives.
1) Be very polite in all circumstances. Record all conversations (voice, chat, email, letters, etc.) with those threatening and keep the originals in a safe place. Never produce the originals before anyone, not even before your lawyer. You can buy Olympus W-10 voice recorder, which costs about Rs.4500. You can also buy a telephone recorder.
2) Write a complaint to your nearest police station, detailing about blackmailing, her false allegations and her unscrupulous behavior. And request in your complaint to make her stop the threats and abuses immediately.
3) File RCR (Restitution of Conjugal Rights). Remember to include conditions that she should agree on before she starts living with you again.
4) Collect evidence to prove that you have neither demanded dowry or have taken it anytime.
5) Collect evidence to prove that she moved out of the bond of marriage for no apparent reason.
6) If she does not already know, make sure that she does not come to know that any of your family members is an NRI.
7) Don't remain home during weekends and holidays. Have proofs of where you were. For instance, if you were in a mall, have a credit card transaction in that mall and keep the copy of that transaction.
1) Be very polite in all circumstances. Record all conversations (voice, chat, email, letters, etc.) with those threatening and keep the originals in a safe place. Never produce the originals before anyone, not even before your lawyer. You can buy Olympus W-10 voice recorder, which costs about Rs.4500. You can also buy a telephone recorder.
2) Write a complaint to your nearest police station, detailing about blackmailing, her false allegations and her unscrupulous behavior. And request in your complaint to make her stop the threats and abuses immediately.
3) File RCR (Restitution of Conjugal Rights). Remember to include conditions that she should agree on before she starts living with you again.
4) Collect evidence to prove that you have neither demanded dowry or have taken it anytime.
5) Collect evidence to prove that she moved out of the bond of marriage for no apparent reason.
6) If she does not already know, make sure that she does not come to know that any of your family members is an NRI.
7) Don't remain home during weekends and holidays. Have proofs of where you were. For instance, if you were in a mall, have a credit card transaction in that mall and keep the copy of that transaction.
I think that I should go for divorce instead. Is it a good idea?
Don't make the mistake of filing for divorce. You will land up in a lot of legal problems. Apply for divorce only after you get RCR in your favor or after you get an ex parte decree on your RCR or mental cruelty is as extreme as mentioned in http://judis.nic.in/supremecourt/qrydisp.asp?tfnm=28609
I'm very worried about my parents. What should I do to protect them?
Disown them legally: ask your family members to give legal notice by way of affidavit in two newspapers. Ask them to produce the newspapers before the Circle Inspector and Investigating Officer before and when they come to arrest them. If your family members are still arrested, produce the newspapers at the time of applying for anticipatory/ regular bail.
Show up a smiling face to them. Your happy face will provide them the strength.
Show up a smiling face to them. Your happy face will provide them the strength.
My wife or her family are demanding money, joint property, joint account, separate accommodation, jewels, etc. and threaten, directly or indirectly, that they will file 498a if their demands are not met. What should I do?
Don't meet their unreasonable demands. It usually doesn't help. It will rob you of your hard-earned money that you need to spend on lawyers later. If you lose it now, you will not have anything to fight your case later in court and you'll become almost a bonded labor. If you still need to pay them money, pay it as an explicit loan and only by cheque so that you have a record of the transaction.
We went to the police, but they didn't write down what I stated verbally. What is the solution?
Simple. Write a complain letter yourself and submit the same in police station and get "received stamp" on xerox copy. If the police refuse to give a stamped copy, address your complaint letter to the "police officer in-charge, local area" and mention at the end of the letter that it is CC'ed to the SP. Then submit it to police. They are bound to take that and act on it. If they still do not give you a stamped copy, send it to the police by registered post and retain the acknowledgement.
I fear that if the police take any action on my complaint, my wife will lodge 498a immediately? Should I still submit the complaint?
Yes. Simply tell the police not to act on it. Even if they say they will act on it, they will not (99.99%).
When station in-charge of police station does not register the case, what can I do?
A. You have the below options.
1) Try to get the reason for not registering the complaint in written.
2) Approach SP of district.
3) Approach media.
4) Approach local heavyweights, NGOs, human rights activists, etc.
5) If any of the above does not work or you do not want to take these approaches, then the last and final solution will be to approach the court. Please read the judgment below which clearly states what you can do if police does not register your FIR.
1) Try to get the reason for not registering the complaint in written.
2) Approach SP of district.
3) Approach media.
4) Approach local heavyweights, NGOs, human rights activists, etc.
5) If any of the above does not work or you do not want to take these approaches, then the last and final solution will be to approach the court. Please read the judgment below which clearly states what you can do if police does not register your FIR.
I want to discuss my case with someone. What are the helpline numbers?
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