Legality of foreign divorces in India has always been clouded with conflicting opinions and judgments. However, there are a few basic things that one needs to know while filing for divorce with a foreign/NRI spouse.
A couple married in India as per Indian Law take their personal law with them. Hence, even when the couple decides to settle down outside India, their marriage, and therefore their divorce, will still be governed by Indian law.
Section 13 of the Civil Procedure Code lays down that a foreign decree is conclusive in India under normal circumstances. This general principle of law is based on the principle of res-judicata, which basically means that a dispute that has been adjudicated upon in court should not be re-agitated. The same is done in order to prevent wastage of judicial resources. Hence, under normal circumstances, a decree of divorce granted by a foreign court of law will also be valid in India.
However, certain exceptions to this condition of ‘normal circumstances’ have been carved out and the same are as follows:
This implies that the court which passed the divorce decree failed to take into account submissions of both parties. In most cases, such a problem arises when one party leaves the country and comes back to India, and the divorce is granted in the absence of that party, i.e. ex parte decree.
Exception to exception: In such a case, if it is established that the party that left the country did so only to avoid the divorce proceedings, the divorce would be valid as no party should be allowed to commit such a fraud on court.
Cruelty, Adultery, Desertion, Impotency are broadly the grounds on which Indian courts allow divorce. If a foreign court grants divorce on any ground outside of these, and the same is not a valid ground in India, the divorce would not be valid.
Since these two grounds are recognised in India, a divorce decree granted on these two grounds is not binding in India.
Any proceeding that is not just and fair, i.e. both parties have not been given and equal and fair opportunity to present their case, is said to be violative of principles of natural justice. Any divorce granted under such circumstances will not be valid.
Any decree obtained by misrepresentation of facts or fraud will not be valid in India.
If the foreign divorce decree does not fall under any of these exceptions and is valid in India, there is not mandatory requirement to validate it. However, it is advisable to do the same in consideration of future prospects and to avoid hassles.
If the decree falls within the given exceptions, the burden of proof to prove that the decree is invalid falls on the person claiming it. Such a decree can be challenged by filing a suit for declaration of marital status and invalidity of the foreign decree.
In the past few years, the trend of filing false cases and implicating men by exploiting women-oriented laws has released exponentially. Here is a list of things that one must keep in mind to steer clear of such false charges.
COLLECT PROOF REGARDING WIFE’S SOCIAL STATUS: Often repeated statement by husbands is “my wife works but I don’t have proof”. Hence, the top-most priority becomes to collect proof regarding wife’s working, income, job profile, etc.
The following are some handy tips to collect proof:
It is important to form a chain of events along with proof that has been collected by you. Follow the given steps to concretize your evidence:
EVIDENCE: Evidence will include every documents, picture, bills, etc. that will help your lawyer counter claims made by your wife.
The above mentioned steps can help you make a strong case and counter all false claims made by your wife against you.
The most traumatic part of a divorce is inevitably the custody of the child. Even though both the parents continue to be the natural guardian of the child, only one of them gets the physical custody. Below are some pointers that will give you a clear understanding regarding the custody of children after a divorce.
This list, however, is not exhaustive and depends entirely on the relationship of the estranged parents.
LEGALITY : Dowry is illegal in India under the Dowry Prohibition Act 1961.
OFENDER : Under the said Act, both taking and giving of dowry is punishable.
PUNISHMENT : The punishment for violating the law is 5 yrs imprisonment and Rs.15000 fine (or the value of dowry given, whichever is more)
HOW TO IDENTIFY A DOWRY DEMAND:
WHEN IS A GIFT NOT DOWRY :
In the following scenarios, the bride’s side will not be violating any dowry laws:
WHAT IS STREEDHAN?
False dowry and harassment cases filed by women on in laws and husbands are being heavily misused. The government is following steps to amend it to make justifiable to all. The number of false cases being filed against the husband and his family has been rising and has come in notice of the government.
Introducing penalty and punishment for the misuse of the act is an action that the government is likely to take. In order to curb the misuse of this act, a judgment passed by the Supreme Court on the IPC 498A states that the police must give reasons before arresting the accused.
There are 2 options available if your wife or in laws have filed or are threatening to file a false 498A dowry harassment complaint case against you and your family.
First, if your wife is staying with you, we would advice you to make call recordings or video recording of her making such threats. These recordings will make strong evidence if and when the case goes into trial in the court.
Second, if she has left your home then you can file a written complaint in the local police station stating that she left your house. If the case has already been filed we suggest you to hire a competent advocate to defend yourself and your family in the court.
You also may even want to file an anticipatory bail for yourself and your family if you suspect that a criminal complaint can be filed against you.
With women being victimized because of domestic violence, the Government of India is actively spreading awareness about the same and has thus passed the Protection of Women from Domestic Violence Act 2005. This is an Act of the Parliament of India which aims to protect women from domestic violence which came into action on October 26, 2006.
The Domestic Violence Act or D.V Act has been quite successful as a lot of women have stepped forward to file criminal cases against the perpetrators and many of them even got speedy justice.
Over the years, the scope of the Domestic Violence Act has widened up. For instance, whereas the primary aim of law was to provide protection to the wife or the female live-in partner from domestic violence at the hands of the husband or the male live-in partner or his relatives, the latest decision by the Madras High Court says that complaints under the Protection of Women from Domestic Violence Act, 2005, need not be made only against men.
The legislation does not only insulate women from being accused of offences mentioned under it but also enables the protection for a woman against another woman like sisters or mothers-in-law.
The Domestic Violence Act covers actual abuse or the threat of abuse whether physical, sexual, verbal, emotional or economic and according to the law harassment by way of unlawful dowry demands to the woman or her relatives would also be covered under this definition. This part is in addition to the Dowry Prohibition Act which is already available for women. Thus, the victims of dowry harassment have been given additional protection in the DVA.
The scope of ‘domestic violence’ has been widened to great extent in the Act as it includes actual abuse or the threat of abuse that is physical, sexual, verbal, emotional and economic. Threatening the woman by not giving her food or goods of day to day requirements too can amount to domestic violence. Also, if the man is harassing the woman for dowry or demands the same from her relatives, it would also amount to domestic violence.
The Protection from DV Act is applicable for those women who are or have been in a relationship with the abuser where both parties have lived together in a shared household. The cohabitation may be consanguinity, marriage or a relationship in the nature of marriage, or adoption.
When forced from their in-laws’ house and their inability to claim property rights at their parental property, the women faced a lot of trouble, especially before the amendment of the Hindu Succession Act, 2005. Now, not just the Hindu Succession Act ensures women a part in the ancestral property but the DVA 2005 also ensures the woman’s right to a secure housing as it provides for the woman’s right to reside in the matrimonial or shared household.
Interestingly, the right to reside in matrimonial or shared household is going to exist whether or not she has any title or rights in the household.
Punishing the abuser and also passing a relief to the victim by the way of protection orders that prevent the abuser from aiding or committing an act of domestic violence or any other specified act is what is offered to any woman falling in the ambit. The prohibition order may stop the abuser from entering a workplace or any other place frequented by the victim. The court may also pass prohibition order to stop the abuser from attempting to communicate with the abused, isolating any assets used by the parties and causing violence to the abused, her relatives and others who provide her assistance from the domestic violence.
When the court passes the prohibition order, and the abuser breaches it, then, it becomes a non-bailable offence punishable with imprisonment for a term which may extend to one year or with fine which may extend to twenty thousand rupees or with both.
Thus, the Domestic Violence Act is not just about protecting women from domestic violence but also about providing them with the right to shelter and right to live with dignity which has been ensured to them under the Article 21 of the constitution of India.
Divorce by Mutual Consent or Mutual Divorce is when both husband and wife mutually agree that they cannot live together anymore and that the best solution being Divorce, they would present a Mutual Divorce petition jointly before the honourable court, without putting forth any allegations against each other.
For instance, if the husband and wife have been living separately for a period of one year or more and are further unable to live together, and both have mutually agreed that the marriage has totally collapsed, they can be granted the divorce.
Research says that one of the fastest ways of being granted a divorce in India is through mutual consent as other options linger on for too long. The law says that all marriages which have been solemnized before or after the Marriage Laws (Amendment) Act 1976 can be annulled, provided the parties to marriage consent for the same in front of the court.
There are several steps involved to get a divorce by mutual consent. The procedure of mutual divorce in India generally begins with the filing of a petition as has been given under Section 13B of the Hindu Marriage Act. There are also two motions involved in this procedure. The following are the important steps:
Taking a mutual consent divorce removes unnecessary quarrels and saves a lot of time and monetary resources. With the ever-rising number of applications being filed for divorce, mutual consent divorce is one of the best-given options.
The parties are required to file for divorce in the family court of the city where both the partners lived together for the last time, i.e. their matrimonial home. It can even be presented in the court of the city/place where the marriage was solemnized.
The following documents would be required for a divorce by mutual consent:
Certain other documents may also be required, depending upon the facts and circumstances of the particular case.
The average timeline of the entire process, from the date of filing till getting the divorce decree can be around six months to two years. However, it can take longer, depending upon the nature of the particular case. No set time can be stated as each case is different and independent of the other. Keeping that in mind, however, mutual divorce has been seen to be the least time taking as compared to other procedures of divorce.
No, mutual divorce cannot be granted through notary in India. A valid decree of divorce can only be granted by the family court of appropriate jurisdiction.
During the six month period or time gap between first motion and the second motion, either of the parties can withdraw by filing an application before the court, stating that they do not intend to get a divorce through mutual consent. In such a circumstance the other party would only have one option -to file for contested divorce. A contested divorce can be filed on any of the following grounds like cruelty, desertion, voluntary sexual inter-course with another person, unsound mind, conversion of religion by other spouse, leprosy, venereal disease, a spouse having renounced the world or being missing for a period of more than 7 months.
To remarry, getting a divorce is a pre-condition. If you remarry without getting a divorce then it is a punishable offence with 7 years imprisonment.
In most cases, parties are required to be present before the court during first and second motion. Only in rare cases, camera proceedings may be allowed where the courts are convinced that the attendance of the party in question cannot be arranged by all possible means and it is totally on the discretion of the court to allow it.
In case of divorce of an NRI couple, they can file a divorce petition in a foreign country under the laws where the party currently resides. It is imperative that the decree by foreign courts should not be inconclusive of section 13 of the Civil Procedure Code, 1908. Infact, if the divorce petition is filed in India where one of the parties is staying abroad then the court may permit for camera proceedings.
It is the duty of the court to examine that the consent is not viciously obtained. If the court fails to determine whether the consent was given freely or not, then such a divorce decree cannot be regarded as a decree by mutual consent. In case the consent for mutual divorce is obtained through force or coercion, the aggrieved party can file an appeal to strike down such a decree.
No, the statutory cooling off period for six months is not mandatory. If the court deems fit, then it can waive off this cooling period. This implies that if the couple has mutually decided to dissolve their marriage, they can request the court to expedite the process and not wait for another six months.
Alimony is an important aspect in matters of divorce proceedings. In cases of mutual divorce, the divorcing husband and the wife are required to agree on the sum of alimony or maintenance which will be given either by the husband to wife or wife to the husband as the case may be.
While deciding the amount of alimony, factors such as the duration of the marriage, age of the recipient, health of spouse, child custody, financial position of either spouse, etc. are taken into consideration.
In case the parties mutually agree that there is no requirement to pay any alimony, it is not compulsory for the parties to decide the quantum to be paid. No maximum or minimum amount of alimony has been set by law, hence, it is upon the parties to agree upon a particular sum. It is generally decided as a gross sum, or a monthly amount, not exceeding the life of the receiver, giving regard to the payer’s own property and income.
While obtaining a divorce through mutual consent, the parties are required to settle the issue of child custody. Custody of the child implies as to who the child will physically reside with. The custodial parent would be the primary caretaker and would thereby be responsible for the medical, educational and emotional needs of the child.
Both the parents are equally competent to take the custody of the children. However, in this kind of divorce, the parties need to mutually agree upon matters such as – who would have the physical custody of the child, the duration of visitation rights, the interim custody, how the child’s living and educational costs will be met, etc. The spouse can even opt for joint custody. Under this arrangement, one of the parents would be the primary caretaker and thus have the physical custody of the child, and both of them would have the legal custody of the child.
The court regards the interest and welfare of the child as paramount considerations in matters of child custody. The court is the parens patriae i.e. the ultimate guardian of the child and hence the minor child’s property/income is protected by law. Moreover, the terms of custody, access and child support can be changed in case the circumstances are altered, or in the best interest of the child.
Yes, like marriage laws, divorce laws are also different for different religions. Divorce for Hindus is covered by Hindu Marriage Act, 1955. This includes Sikhs, Jains and Buddhists. Christians are governed by Indian Divorce Act, 1869. Muslims are governed by Personal laws of divorce and Dissolution of Marriage Act, 1939 and the Muslim Women ( Protection of Rights on Divorce) Act, 1986. For inter-religion marriages, there is a secular law, Special Marriage Act, 1954. The following list explains mutual divorce in different religions:
The Hindu Marriage Act, 1955 provides a remedy under Section 9 in the form of restitution of conjugal rights if someone’s spouse has left without giving any reasonable grounds. Section 9 of the HMA reads that when either the husband or the wife has, without a reasonable excuse, withdrawn from the society of the other, the distressed party may apply for restitution of conjugal rights.
The party in distress can file a petition to the respective district court after which the court records the statements of both parties made in the petitions and if the court finds no legal ground as to why the application should not be granted, the judge may decree restitution of conjugal rights in the aggrieved’s favor.
Firstly, one party must have withdrawn from the society of the other; secondly, the withdrawal must be without any reasonable reason, and thirdly, the aggrieved party applies for the restitution of conjugal rights.
Once these conditions are fulfilled, the district court may decree of restitution of conjugal rights to bring about cohabitation between the estranged parties.
If the court is not convinced and finds the petitioner guilty then the decree of restitution of conjugal rights is not granted.
If the parties are not following the decree for cohabitation after the passing of the decree, continuously for about a year, it becomes a ground for divorce under Section 13.
First, if the respondent has a ground on which he or she can claim any matrimonial relief;
Second, if the petitioner is guilty of any matrimonial misconduct;
Third, if the petitioner is guilty of such act, omission or conduct which makes it impossible for the respondent to live with him; for instance, husband’s neglect of his wife or the constant demand for dowry, etc. are some reasonable ground for the wife not to join the company of her husband.
The burden of proof is on the aggrieved/petitioner who needs to prove that the respondent has withdrawn from his society. Once that burden is discharged by the petitioner, it falls on the respondent to prove that there exists a reasonable excuse for the withdrawal.
Filing for divorce can be an overwhelming process, especially since it involves the future of many lives. It’s important to conduct research to make sure the procedure happens smoothly and you’re satisfied with the outcome.
The article has been written for Hindu marriages covered by Hindu Marriage Act 1955.
In case things are not too good between you and your spouse, and you or both of you have decided to part ways legally, we list down the options you have to file for a Divorce under the Hindu Marriage Act 1955.
Mutual Consent Divorce between Hindu Couple is governed by TheHindu Marriage Act, 1955, under Section 13B.
Which states that.- A petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both the parties to a marriage together, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
Secondly, on the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than 18 months after the said date, if the petition is not withdrawn in the meantime, the court shall on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of decree.
If you are married under the Hindu Marriage Act, 1955, you have several grounds for divorce provided by the law itself. Here we are discussing all the grounds mentioned in Section 13 of the Act that you can base your case for divorcing your partner.
a) If he/she has not been heard of as being alive for a period of seven years or more by persons who would have naturally heard of it, had that party been alive;
b) If he/she has after the marriage had voluntary sexual intercourse with any other person;
c) If he/she is treating you cruelly;
d) If he/she has deserted you for a continuous period of not less than two years immediately preceding the presentation of the petition;
e) If he/she has ceased to be a Hindu by conversion to another religion;
f) If he/she is suffering from incurably of unsound mind or has been continuously or intermittently from a mental disorder that you cannot reasonably be expected to live with such a person;
g) If your husband/wife is suffering from a virulent and incurable form of leprosy;
h) If he/she is suffering from venereal disease in a communicable form;
i) If your husband/wife has renounced the world by entering any religious order;
The above-mentioned grounds are available for both husband and wife; however, there are some additional grounds that are available only for wife; For instance, if your husband has been found guilty of rape, sodomy or bestiality, you can ask for a divorce. Similarly, if your marriage whether consummated or not was solemnized before you attained the age of 15 years, and you want to divorce, you can do so.
The divorce petition may be filed at the family court which has jurisdiction over your matrimonial home, i.e. the home where you stay / last stayed as husband and wife after your wedding or at the family court at the place where the marriage had taken place. Women can file the petition either in the family court that has jurisdiction over the place the matrimonial home is located or the family court of the locality where she is residing at the time of filing of the petition.
Divorce can take many forms. In some cases, it is amicable and relatively easy to bring about, but it can also get very complicated. What kind of divorce will bring about the results you want? Consider the following variables:
– Do you own property or other assets with your spouse that you plan to divide?
– Do you have children with your spouse, and will you be seeking custody?
– If you are seeking custody, will you also seek child support from your spouse?
– Consider creating a divorce mission statement so that you can clearly outline your goals and desires.
Irrespective of the kind of divorce you wish to proceed with (Mutual or Contested), it’s important to have a competent lawyer represent/guide you with the nuances of the divorce procedure.
Schedule a consultation with an experienced divorce lawyer. Even seemingly straightforward divorces can end up getting complicated, and a divorce lawyer can answer specific questions about your circumstances. Even if you end up representing yourself, a one-hour consultation with a lawyer will help you prepare better.
– Be prepared to talk about your goals and desired outcome.
– Bring the documentation you gathered on your assets and debts.
– Have a list of questions that are specific to your situation ready to ask the lawyer.
If one of the spouse is not wiling to give a divorce to the other spouse, then it is known as contested divorce.
For filing of the contested divorce a divorce petition is to be drafted and presented in court. The contested divorce is only granted on certain grounds which are mentioned under Section 13 of the Hindu Marriage Act.
Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party
(i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
(a) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or
(b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition;
(ii) has ceased to be a Hindu by conversion to another religion; or
(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
(iv) has been suffering from a virulent and incurable form of leprosy; or
(v) has been suffering from venereal disease in a communicable form; or
(vi) has renounced the world by entering any religious order; or
(vi) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive