• Swiss Citizen married to Indian - how to file for divorce

Hi,
I am a Swiss Citizen (born and brought up in Switzerland). My parents are of Indian origin. I got married in India almost two years back and my marriage was registered there. My wife shifted with me to Switzerland after few months of marriage. But she has left after few months back to India without any communication. I am being regularly threatened and abused by her family. But I am unable to approach my wife through phone, emails, etc. We have no child.
1. Can she file for divorce in India without my consent? And request maintenance?
2. Can I also initiate divorce in India? What challenges I must be prepared for?
Thanks a lot in advance,
Regards, AD
Asked 7 years ago in Family Law
Religion: Hindu

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10 Answers

1)since your marriage is solemnised in India wife can file for divorce in India and seek maintenance

2) you can also file for divorce in India

3) contested divorce proceedings take 5 years in india

4) mutual consent divorce takes 6 months

5)if wife files false dowry harassment case against you obtain anticipatory bail from sessions court

Ajay Sethi
Advocate, Mumbai
95205 Answers
7607 Consultations

5.0 on 5.0

1. Do note that only mutual divorce is filed with mutual consent. For filing a contested divorce one party unilaterally raising allegations can always file divorce suit.

2. If your wife is unemployed then she can claim maintenance in the same divorce suit and additionally by fling case under PWDV Act.

3. Yes, you can also file divorce suit .

4. However you may remain prepared for 498A case which is criminal charge for which you would require to take bail to avert arrest.

Devajyoti Barman
Advocate, Kolkata
22920 Answers
498 Consultations

5.0 on 5.0

Dear concerned

As you are a Swiss national and matrimonial home for your wife was overseas - she can still file a divorce in India and claim maintenance. However if you do not have any plans to come to India . Please don't come and file a divorce in your country. Even if the divorce filed their is obtained exparte you will be free. Also you need not to contest the cases here.

You can file divorce on India but as you are overseas it is strongly suggested not to come to India for any judicial proceedings- don't put yourself in a situation where a false criminal case is registered against you and you are not let out to go back once here.

Best of luck .

Atulay Nehra
Advocate, Noida
1309 Answers
58 Consultations

5.0 on 5.0

1. If your wife is a citizen of India or your marriage was solemnized in India then she is free to apply for dissolution of marriage in India without your consent. However, under Hindu Marriage Act a petition for divorce cannot be filed earlier than a year from the date of marriage.

2. She is free to file for maintenance under 125 CrPC, which you can contest on the ground that she left the matrimonial home without any sufficient cause.

3. You are also free to file a petition for divorce in India but only after a year from marriage. Filing of divorce petition before a year is permitted only if there is exceptional hardship faced by spouse(s).

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

if marriage is solemnized under the Hindu marriage act then she can file divorce. if it is solemnized under special marriage act then she cannot file such suit without your consent. According to indian divorce act, if husband is living in abroad a notice shall be served upon him thereafter and upon receiving his reply such suit shall be filed.

Shivendra Pratap Singh
Advocate, Lucknow
5127 Answers
78 Consultations

4.9 on 5.0

1. Yes, she can file a divorce suit on grounds acceptable by India law like cruelty since you had married in India following Hindu rites and customs and also as per Hindu Marriage Act. You shall get Notice from the Court asking you to appear before the Court on the next dates of hearing when you can contest the petition fittingly. She can also pray for maintenance if she is not adequately employed to maintain herself as per your standard. You shall have to contest her all such petitions.

2. You can also file a divorce petition against her on the ground of cruelty and desertion.

3. She can file a police complaint against you u/s498A alleging dowry harassment against you and your family members and also cab file a DV case against you and your family members which you shall have to contest. In case FIR u/s498A is registered by police, all the accused shall have to apply for and avail anticipatory bail from the Court first.

4. It will be prudent on your part to negotiate with her to settle agreed terms for jointly filing mutual consent divorce petition which will be decided within 6 & 1/2 months from the date of its filing.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

1. Yes, she can very well file divorce in India, for this she need not take your consent or permission.

2. Yes, you also have rights to file divorce in India. You should prepare yourself to defend from legal terrorism namely dowry demand offence and complaint, domestic violence case etc.

T Kalaiselvan
Advocate, Vellore
85404 Answers
2236 Consultations

5.0 on 5.0

1) your parents will have to make application to court that they may be permitted to travel abroad as they are citizens of switzerland

2) court would permit them to travel abroad subject to certian conditions that they undertake to come down to india during trial

3) your parents can file petition in HC for quashing FIR

4) it is better you come down to india , apply for AB .

5) you ahve to coperate with the inevstigations

6) with court permission you cna travel abroad

Ajay Sethi
Advocate, Mumbai
95205 Answers
7607 Consultations

5.0 on 5.0

1. Since section 498A of Indian penal Code is a non bailable section, hope your parents have availed anticipatory bail from the court.

2. Once AB is granted, the said case shall have to be contested fittingly.

3. You shall have to ask your lawyer to file a petition praying for return of passport of your parents also praying for leave for their returning home at Switzerland.

4. If lower court refuses to grant the said leave, they shall have to appeal before the higher court with the same prayer duly challenging the order passed by the lower court rejecting the said prayer.

5. Negotiate with your wife for mutual consent divorce on agreed terms after giving an affidavit that she had filed the said complaint out of domestic rage based on which you can file an application before the high court for quashing the said FIR.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

There are various settled cases condemning the implication of the relatives of husband in the false 498a cases and since they have been filed only to wreak vengeance agaisnt the husband and his family members.

You can apply for FIR quash on the same basis. However since you also are an accused in this case, without your appearance before trial court, the high court may not entertain quash of FIR on other accused.

You may be in touch with your advocate on this and get clarified on this point too.

Actually the police have o right to impound the passport but they can deposit the passport with the trial court stating that if this is given the accused may flee the country and will never return to the country for prosecution of the case.

The court can hold this in their custody till disposal of the case but cannot impound the passport

T Kalaiselvan
Advocate, Vellore
85404 Answers
2236 Consultations

5.0 on 5.0

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