• Divorce due to desertion

Hi,
I've been married for 6 year, after getting married we applied to australia but as we get there in couple of days my husband run away while I wasn't at home. I was on student visa. 4 years ago I came to india & applied for divorce but he & his family denied. My husband is still in australia as well (illegal) but they want to me come back to india to sign papers for divorce.
Clearly he deserted me here, left no option, never supported me, now they are trying to threaten me.
I cannot afford to go back to India at the moment as I still have debts incurred due to him not honouring his argeement to pay my study fees, this was a 3 year course.
They have offered an out of court settlement, but berfore I accept my questions are as follows:

What I'm entitled to?
How much almony can I get due to desertion? (I was told 30% to 40% his annual income)
What is the average total cost of divorce, lawyer/court fees etc?
Is he able to get divorce without me going to India?
Asked 1 year ago in Family Law from Australia
Religion: Sikh
1) your husband needs to be taught a lesson for deserting you in foreign shores . 

2) you can claim alimony depending upon your husband financial; status . what is his income please clarify 

3) if husband is filing for divorce you have to appoint a lawyer to appear on your behalf . legal fees vary 

4) you can give POA to your close family relative to appear on your behalf 

5) if you dont appear in court and dont contest court will grant your husband exparte divorce
Ajay Sethi
Advocate, Mumbai
23240 Answers
1219 Consultations
5.0 on 5.0
1. You are entitled to maintenance @ 1/3 to 1/5th of monthly income of your husband provided you do not have any source of income.

2. Alimony is also decided at the aforesaid rate. However if you are employed then you are not entitled to any alimony. Since your husband is India right now then you have to file case for maintenance in india.

3. The cost of litigation is much cheaper in india than that in Australia . however the same differs from lawyer to lawyer.

4. You have to contest the suit for divorce in india. if you do not then the court may pass decree of divorce ex parte ( one sided).
Devajyoti Barman
Advocate, Kolkata
5207 Answers
54 Consultations
4.9 on 5.0
1. You have stated that 4 years back you came to India and applied for divorce. What is the outcome of the case filed by you?

2. If you have already filed for divorce which has either been decided one way or other by the court, or the proceedings therein are still pending in the court, it puts an embargo on your right to file for divorce again. 

3. If you have not yet filed for divorce then you may do so on the ground of desertion by your husband after you landed in Australia.

4. You can reject the out of court settlement which has been offered to you in order to pursue your legal remedies in India. 

5. As regards the amount of alimony you can get, it will depend on the income of your husband. You may get 1/3rd of your husband's income in India. You incur the disqualification to get alimony if you are employed. 

6. The legal cost will be only the fees of your lawyer which varies from one lawyer to another.

7. If he files for divorce and you leave it uncontested then he will walk away getting divorce.
Ashish Davessar
Advocate, Jaipur
18102 Answers
448 Consultations
5.0 on 5.0
Hello,
1) You have not clarified what is the status of the divorce you filled in India 4 years back. Is it still being contested or had it been disclosed of?

2) If they are offering an out of court settlement for the ongoing case you can agree to it and get the divorce converted to a mutually consented divorce provided they are agreeable to your terms and conditions.

3) You are at an advantage to discuss terms as they are the defendants and are desperately seeking the decree of divorce.

4) You can get upto 1/3 income of the husband as alimony. If you are employed and can maintain yourself this will have an impact on the claim for maintenance.

5) If they have already filled a case in India you need to contest it. The legal fee depends on the lawyer you engage. You don't need to be in India to conduct the case as you can give power of attorney to someone to represent you in court. He can get divorce without you if her files for divorce, gets summons served on you and you never turn up in court. So you need to contest it.
S J Mathew
Advocate, Mumbai
1950 Answers
65 Consultations
5.0 on 5.0
Hi,
1. Give power of attorney to someone in India or entrust it with an advocate to continue the case whether to settle it or fight it  in case your husband is not agreeable to your terms of alimony and other reliefs.

2.  If you do not want a settlement you can file for your rights or else tell them what are your demands if they agree go ahead with a mutual consent divorce.

3. The legal fee  is different from lawyer to lawyer and depending on the place to place. Where did you initiate legal proceedings in India?
4. If your husband is agreeable to settle it amicably paying you your demands of alimony, then you both will have to file a mutual consent divorce. Fir this your presence is necessary, so decide it accordingly a time when you can be in India to finish it.
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
5.0 on 5.0
Dear Querist
as per your information both of you are in Australia, it will be better to file a divorce case in australia and also you may claim alimony from him, 1/3 -1/2 of his income may be grant as an alimony/maintenance to you if you are unable to maintain yourself.
Nadeem Qureshi
Advocate, New Delhi
3534 Answers
130 Consultations
4.9 on 5.0
Hi, you are entitled for maintenance from your husband and quantum of maintenance can be decided on the income of the husband and his social status and there is no hard and fast rule regarding quantum of maintenance.

2.  As far as cost of the divorce and fee payable to advocate depending upon advocate to advocate.

3. Your presence in the court must for getting the divorce.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
1) your husband can give POA to his family member to apply for divorce on his behalf . your husband will have to come to india at time of gving of evidence 

2)they can apply for divorce without marriage certificates too . they must enclose wedding invitation cards , photographs of both husband and wife for filing of divorce 

3) well engage a detective agency to gather evidences of husband income . 

4) alimony would depend upon husband financial status , years of marriage etc 

5) if you are unemployed court will award you alimony
Ajay Sethi
Advocate, Mumbai
23240 Answers
1219 Consultations
5.0 on 5.0
the Supreme court has held that no fixed formula can be laid for fixing the amount of maintenance. It has to be in the nature of things which depend on various facts and circumstances of each case. The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay, having regard to reasonable expenses for his own maintenance and others whom he is obliged to maintain under the law and statute.

The courts also have to take note of the fact that the amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and mode of life she was used to live when she lived with her husband. At the same time, the amount so fixed cannot be excessive or  affect the living condition of the other party. These are all the broad principles courts have to be kept in mind while determining maintenance or permanent alimony
Ajay Sethi
Advocate, Mumbai
23240 Answers
1219 Consultations
5.0 on 5.0
1. Even if your husband's family file divorce suit, he will have to come to india when the suit would be fixed for evidence. So if he fails then it would be dismissed. Marriage certificate is not sina qua non for dissolution of marriage.

2. You can mention then an imaginary figure and let him come forward to put it correctly.

3. As long as you remain unmarried or not employed you would be entitled to maintenance.
Devajyoti Barman
Advocate, Kolkata
5207 Answers
54 Consultations
4.9 on 5.0
Hi, without the personal presence of the party the court will not entertain divorce petition  so he may come to india and filed a divorce petition and it is better once you check the status of the divorce petition through the advocate.

Secondly, you are entitled for maintenance till you are remarriage or through out your life.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
1. You are entitle to maintenance if you were in India. You can claim alimony/compensation in your divorce petition or seperately,

2. If they propose mutual consent divorce, ask payment of amount towards compensation/alimony which will be sufficient to maintain you as per the standard of your husband depending on his income,

3. You have not specified his income,

4. Filing joint MCD petition may be Rs.30/40 K to be borne by both of you jointly. Other charges are negligible,

5.  In case of MCD, you shall have to personally  appear before the Court on the 2nd motion i.e. after 6 months of its filing.
Krishna Kishore Ganguly
Advocate, Kolkata
12113 Answers
231 Consultations
5.0 on 5.0
1. No. His family can not apply for divorce. He can apply for it through a POA holder or by getting the divorce petition attested by Indian Consulate of Australia. In any case he shall have to appear before the Court while giving evidence,

2. You shall have to submit evidence of his income to claim alimony/compensation. Take the services of a detective agency,

3. You will get alimony as one time payment. Maintenance is paid monthly which the divorced wife will get till he is employed or gets married.
Krishna Kishore Ganguly
Advocate, Kolkata
12113 Answers
231 Consultations
5.0 on 5.0
1. The answers have already been provide in my earlier posts,

2. His family can not apply for divorce. He can apply for it through a POA holder or by getting the divorce petition attested by Indian Consulate of Australia. In any case he shall have to appear before the Court while giving evidence.However, he or his family can get a copy of the marriage certificate from the marriage registrar. This is not a big issue,

3. You shall have to submit evidence of his income to claim alimony/compensation. Take the services of a detective agency,

4. You will get alimony as one time payment. Maintenance is paid monthly which the divorced wife will get till he is employed or gets married.
Krishna Kishore Ganguly
Advocate, Kolkata
12113 Answers
231 Consultations
5.0 on 5.0
Dear Querist
my opinion on your queries are as under:

1. My husband & I both live in Australia separately,  he is living here illegally without a visa, he has never left Australia.  
Opinion: you may file a divorce petition at Australia.

Is his family (in India) able to apply for divorce without him or myself. As I have our marriage certificates, will his family be able to apply without marriage certi. 
Opinion: No, they are not authorized to file the divorce case without any power of attorney executed by the parties and noterized and verified from High Commissioner of India.

2. I don't know what work he does or where he lives, so how will I find out what his annual income is?
Opinion: The last residence will be the residence at the time of filing the case.

3. As for the alimony how many years would I be entitled to, have been married since 2008 & I'm still unemployed,  we have no child from the relationship?
Opinion: you may get 1/3-1/2 of his income as alimony/maintenance.
Nadeem Qureshi
Advocate, New Delhi
3534 Answers
130 Consultations
4.9 on 5.0
1. Your query is still silent on what was the judgment of the court in the divorce proceedings initiated by you in India.

2. If you have previously filed for divorce in India then you cannot file it again. What you can do is challenge in a higher court the judgment of the lower court if it did not grant divorce to you.

3. One does not need marriage certificates to apply for divorce as wedding photographs also suffice.
Ashish Davessar
Advocate, Jaipur
18102 Answers
448 Consultations
5.0 on 5.0
1. I cannot comprehend what you mean by ''it has been disclosed due to they denied,''. The court can grant divorce even if the opposite spouse objects to it. 

2. You may not be able to apply for divorce even in Australia if you had previously filed it in India.

3. You should firstly find out the status of the divorce case which you had filed in India. If the judgment is disfavourable to you then you may take the corrective action.

4. Divorce may or may not be contested in India or Australia.

5. When the divorce papers are filed in the court the court whether in India or Australia would issue a notice to the other spouse. If the latter does not turn up in the court the court will grant one sided divorce.

6. You are entitled to continuous financial support unless you remarry.
Ashish Davessar
Advocate, Jaipur
18102 Answers
448 Consultations
5.0 on 5.0
1. if Australian law allows you to apply for divorce then it can be filed in consent form or in mutual.
2. No, both form of divorce can be filed.
3. No, notice will be issued against you unless he manages to suppress it,
4. Yes.
5. Proof of contact is much easier in abroad than in india as formalities are mostly done away with in Australia than in India.

However do bear in mind that if ex parte divorce is passed in Australia the same has no force on you and you can file a fresh one in india.
Devajyoti Barman
Advocate, Kolkata
5207 Answers
54 Consultations
4.9 on 5.0
1) you can file either mutual consent divorce or contested divorce in Australia 

2)it only has to be on grounds recognised under hindu marriage act . it can be filed in Australia if both are residing in Australia 

3) divorce lawyer in Australia would be better person to guide you for filing petition in Australia 

4) if your husband applies for divorce you would be served notice . husband cannot obtain divorce without serving you . 

5)your husband will seek to serve you at your last known address . court may also direct your husband to apply for substituted service ie paper publication
Ajay Sethi
Advocate, Mumbai
23240 Answers
1219 Consultations
5.0 on 5.0
1. & 2.You can file a contested divorce suit in Australia also but you shall have to serve him thenotice for which knowing his address is a must. In case the person is absconding from his last knwon adress, whether australian court accepts publication of notice for divorce suit in local News papers, as good service or not to be ascertained by loacal lawyer. If such publications are accepted as good service of the notice then you can file the divorce suit in Australia,

3. He will not get the decree of divorce without your getting the notice from the Court at your address.

4. He may file a divorce suit in Australia for which you shall be notified by the Australian Court by sending notice at your last known address. Intimate your Autralian post office about your temporary moving out to India,

5. In India the summon is published in Newspapers, Check the rule in Australia in such cases.
Krishna Kishore Ganguly
Advocate, Kolkata
12113 Answers
231 Consultations
5.0 on 5.0

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