• Australian divorce validity in India

We were married in India (Marriage is registered under India law from Kerala state), got divorced in Australia from Federal circuit court of Australia, Family court, while filing and getting court divorce from Australia i was in permanent visa (PR). I was the applicant and I have served all the documents as per family court procedure and instruction. We have 1 kid also was not mutual divorce application for these reason applicant has to present at the court, responded can attend too. I only present that time judge asked my Identification document (ID) no further question or answers. This year i got Australian citizenship and got Australian Passport too. Also i have OCI card too. I have Addhar card (India) I would like to know, Can i remarry again in India. (Can i do marriage registration via sub- registrar)
Asked 4 years ago in Family Law
Religion: Christian

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25 Answers

Dear Client,

Foreign court decree valid in India but if it`s uncontested divorce and granted ex parte, than not valid in India,

Remarriage shall be bigamy.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

divorce by mutual consent would be valid in india

2) file petition in family court under section 7 of family court act for declaration that marriage is dissolved by Australian divorce decree

3) notice would be issued to wife

4) if no objections are received court would pass orders that marriage is dissolved by Australian divorce decree

5) you can remarry in India

Ajay Sethi
Advocate, Mumbai
87893 Answers
6207 Consultations

5.0 on 5.0

Dear,

You are free to remarry in INDIA as you have been divorced with mutual consent only.

If you got ex party divorced decree then you are not eligible for remarry, after this you

have to take divorce in Indian court again.

Tarun Agarwal
Advocate, Jaipur
769 Answers
3 Consultations

4.9 on 5.0

A foreign Court like Australia, USA and etc., Judgment and decree on divorce is as valid as it granted by Indian Court. But it has some restrictions. For this i discuss the provisions of law in this regard. Section 13 and 14 of CPC provided the provisions regarding the admissibility and enforceability of foreign judgments. Under Section 14 of the Civil Procedure Code, a presumption arises that the foreign judgment produced before the Court, was pronounced by a Court of competent jurisdiction. But, it is a rebuttable presumption. Section 13 of the Code makes a foreign judgment conclusive as to any matter thereby directly adjudicated between the same parties. But, Section 13 lists out six exceptions to the general rule that a foreign judgment is conclusive. The exceptions are :

(i) where it was not pronounced by a Court of competent jurisdiction;

(ii) where it was not given on the merits of the case;

(iii) where it appears on the face of the proceedings to be founded on an incorrect view of International Law or a refusal to recognise law of India;

(iv) where the proceedings were opposed to natural justice;

(v) where it was obtained by fraud; and

(vi)where it sustains a claim founded on a breach of any law in force in India.

....... All the best.

C. V. Jadhav
Advocate, Bangalore
545 Answers
18 Consultations

4.7 on 5.0

A combined reading of Sections 13/14 of the Code of Civil Procedure makes the position of law clear that if a certified copy of a foreign judgment is produced in a court of law directly adjudicating upon any matter between the same parties, the same shall be presumed by a court to have been pronounced by a court of competent jurisdiction unless the contrary is proved.

Sections 13 and 14 of the C.P.C., which is not merely the rules of the procedure, but rules of substantive law recognises the conclusiveness of a foreign judgment as to any matter thereby directly adjudicated upon between the same parties.

Therefore, if the divorce was contested by both the parties, it shall be valid, otherwise not.

If you remarry during the subsistence of your first marriage you will be committing an offence of bigamy under section 494 IPC and you would be convicted and have to go to jail, if proven guilty.

Regards.

Siddharth Jain
Advocate, New Delhi
5925 Answers
101 Consultations

5.0 on 5.0

Under these circumstances, the divorce granted by Australian Court cannot be considered in India and you would have to obtain a decree of divorce from a court having jurisdiction to entertain such a matter in order to marry again.

Siddharth Jain
Advocate, New Delhi
5925 Answers
101 Consultations

5.0 on 5.0

your wife did not participate in divorce proceedings in Australia

2) your divorce decree would not be valid in India

3) you cannot remarry in india

Ajay Sethi
Advocate, Mumbai
87893 Answers
6207 Consultations

5.0 on 5.0

As i said earlier that you are not mutually divorced, so this divorced is not valid in India.

You have to apply again for divorce in India. You can't remarry.

Tarun Agarwal
Advocate, Jaipur
769 Answers
3 Consultations

4.9 on 5.0

Your divorce decree will be valid If the decree of divorce is granted on contest of both parties then the decree is valid and effective provided the ground of divorce is also valid India.

Ruchit Dugar
Advocate, New Delhi
190 Answers

4.9 on 5.0

q. The foreign decree is passed on the a law point which is not recognised in India is not valid. It is further compounded if the decree is passed ex parte. So your wife can challenge this decree in India.

2. Now if she does not know this and you remarries then criminal case of bigamy can be filed against you.

3. So unless and until your wife remarries do not take the risk of getting prosecuted for bigamy or dowry harassment charges.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

As per your follow up- Your divorce decree isn’t valid in India as it’s not granted as per the Indian Law and stands Void. You have to apply for divorce in India as per Indian Law(mutual or contested). You cannot remarry and if you do so your wife can sue you for bigamy which is a imprisonable Office Inder Indian Law.

Ruchit Dugar
Advocate, New Delhi
190 Answers

4.9 on 5.0

No in my opinion you cannot remarry in India unless and until the Divorce obtained by you is executed in India. As Australia is not a reciprocating territory to India, you will have to file a Suit in India for a judgement based on the Foreign Decree where the Decree obtained by you shall have mere paper value and contest the suit on merits. If you are in a hurry, it is advisable for you to get married in Australia itself.

Radhika Mehta
Advocate, Mumbai
484 Answers
4 Consultations

5.0 on 5.0

1) Your Divorce is not accepted in Indian court. As it's decree passed by foreign court.

2) If it were only Mutual Consent Divorce than it may have accepted as per law.

3) After coming to India you still have to file for Divorce.

4) You could not do second marriage in India till you get divorce from first wife in India.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

Sir if it was not mutaul divorce and was not contested then it wont be valid in India if you remarry your wife can file criminal case of bigamy against you and second marriage wont be valid.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Sir see you are married under India laws so India court will be of proper jurisdiction to grant divorce further divorce is not valid in India as principle laid by Supreme Court of India so if you want to remarry take divorce from Indian court in case you marry without valid decree wife can file charges against you

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1. Your said decree of divorce passed by the foreign court is not valid in India in India.

2. You shall have to file a divorce suit in India and only after availing the decree of divorce from the Indian court, you can remarry in India.

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

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

1. Your said decree of divorce passed by the Australian Court is not valid in India.

2. You can not remarry in India till you avail the decree of divorce from Indian court be it contested or mutual consent divorce, as explained in my earlier post.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

Any marriage which is solemnized in India cannot be wind up in any other country you have to take the divorce from Indian Court on the basis of divorce allowed in Australian federal court before you get marry again

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

Firslty, sir, yes you can get remarry to anyone you like to.

Secondly, as no provision in law is there to say that the divorce must onu be on the ground of the mutual kne only then you may get married again otherwise not possible.

Thirdly, the main thing is to have the divorce decree with you.

Sanjay Baniwal
Advocate, South Delhi
5464 Answers
13 Consultations

5.0 on 5.0

1. The summons was served on her according to the Australian law, so she cannot state that she did not get an opportunity to contest. She is free to file a petition in the Indian court to declare the decree of Australian court not binding on her, but the scope of it is very narrow as the onus to prove that she did not receive summons or the divorce was not compliant with the Indian laws will be on her. However, you should ensure that she does not walk away with an interim stay on the operation of the decree.

2. You are free to remarry in India or Australia as the decree of the foreign court is valid in India for all legal and practical purposes.

Ashish Davessar
Advocate, Jaipur
30761 Answers
971 Consultations

5.0 on 5.0

You can remarry again in India. the detail answer depends upon going into the matter some deep.

Jugal Kishore Agrawal
Advocate, Jaipur
81 Answers

Not rated

hello,

you were an Indian citizen when you married in India. your wife must also have been an Indian citizen. the divorce can only be granted by an Indian court as per the Christian marriage act. there are certain exceptions to the rule but I don't know the whole facts. a foreign decree of divorce is valid in India only under certain conditions.

therefore, engage a lawyer who can tell you the exact legal position after going through all the facts.

if the divorce decree is valid then you can remarry in India and register the marriage before a sub-registrar.

regards

Rahul Mishra
Advocate, Lucknow
13754 Answers
65 Consultations

5.0 on 5.0

First you have to check your divorce decree from Australian court is valid or not?

Who wish to take benefit of Indian laws and legal system to avoid facing up to any foreign judicial system.Indian Marriage solemnized in India according to Indian Matrimonial laws then the Indian courts will have territorial jurisdiction to hear & decide matter relating to this marriage & the foreign court's decision may or may not be acceptable in India hence best course is to get this marriage dissolved according to India court's decree of divorce.As per the latest Supreme Court judgment which had held that a decree of divorce granted by a foreign court is not valid in India if the ground is not recognized by Indian law. Ex-parte decree of Divorce granted by foreign Court will not be recognized by Indian Court.

A contested divorce on the grounds of Cruelty /Adultery / Desertion / Impotency (are grounds that Indian Law recognises, so if) the divorce is granted on these grounds – The decree is valid in India. Please note that in such a case it need not be validated in India by filing a suit or anything. It is the burden of person challenging the decree to discredit it.The foreign judgment is open to challenge where it has been obtained by fraud.

Without divorce second marriage is an offence under section 494 of ipc. Live in relationship also will be treated as an act of adultery punishable with jail term, should your wife lodges complaint against you in this regard.second marriage during subsistence of earlier marriage is null and void .

However, as a matter of abundant precaution, one can approach to the Indian Court for declaring that divorce is valid and binding. Contested Divorce in foreign Court can be valid and binding depending upon on Matter is contested by both spouses in foreign Court. And Matter is uncontested in foreign Court and one spouse comes back to India

Ajay N S
Advocate, Ernakulam
3990 Answers
93 Consultations

5.0 on 5.0

From your narration it can be understood that the decree of divorce granted by an Australian court was neither on the grounds of mutual consent nor it was a contested divorce. Hence the divorce whether no fault or exparte divorce, is not recognised as per Indian laws.

If you would like to marry again in India, being an Australian citizen you may have to register your marriage under special marriage act only, for that there should not be marriage subsisting. You have to declare your marital status, since this divorce by an Australian court is not valid, you may have to file a divorce case once again in India.

You may consult a local advocate and proceed.

T Kalaiselvan
Advocate, Vellore
78048 Answers
1543 Consultations

5.0 on 5.0

Please note my divorce application was not mutual consent, I was the applicant, I have served the following documents to my Ex wife as per Australian federal court:- application for Divorce, marriage family & separation brochure, sealed copy of the Affidavit for e-filling application (divorce) also get the acknowledgement of service (divorce) signature. And finally federal circuit court of Australia graded divorce and send the originals to both parties. Presently I am holding Australian Passport. Also i have OCI card too. I have Addhar card (India) I would like to know, Can i remarry again in India. (Can i do marriage registration via sub- registrar

You have repeated the same question in a different form.

The divorce decree obtained from an Australian court is not valid in India, you may have to file a divorce case in India once again if you want to re-marry in India as per Indian laws.

T Kalaiselvan
Advocate, Vellore
78048 Answers
1543 Consultations

5.0 on 5.0

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