• Exparte divorce validation

I am an Australian Citizen and my wife is Indian citizen. She have filed maintenance case with allegation that I got extra marital affair. 
She didn’t want to give me divorce.

Si Few lawyers in India are suggesting me to take exparte Divorce in Australia and they will make it valid in India 

As far as I know its not true. As we got married in India and our marriage got registered in India, legally we would meed to file divorce in India.
 If we both mutually filed Divorce in Australia then it is valid. 

Please advise if it’s possible or not to validate Australian Ex-parte divorce in India?

Thank you
Asked 4 years ago in Family Law
Religion: Hindu

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19 Answers

Since your marriage was solemnised in India you ought to file for divorce in India

2) if you file for divorce in Australia wife can object to jurisdiction of Australian courts on grounds that marriage solemnised in india , divorce should be on grounds recognised under HMA

3) if she dies not participate in divorce proceedings in Australia divorce decree would not be valid in India

Ajay Sethi
Advocate, Mumbai
87938 Answers
6207 Consultations

5.0 on 5.0

The decree of divorce passed by the Australian Court would only be enforceable if it is contested by your wife, therefore ex Parte decree passed by the Australian Court would have no validity or enforceability in Indian gods as Australian Gods do not have jurisdiction to pass uncontested divorce decree for marriages registered in India under the Indian laws.

So, you should contest the maintenance case filed by wife as you be proceeded ex Parte if you fail to appear before the court and such decree can be enforced by her.

Indian courts only have jurisdiction to grant a decree of divorce uncontested divorce cases.

Regards.

Siddharth Jain
Advocate, New Delhi
5930 Answers
101 Consultations

5.0 on 5.0

Exparte divorce is only valid if it is legal and has observed principle of natural justice as below

Divorce granted outside India

Divorce from foreign countries are valid in India but you need to validate the same in India. Under Section 13 of the the Code of Civil Procedure, 1908 (Code), a foreign judgment is not conclusive as to any matter thereby “directly adjudicated upon” “between the parties” if: (a) it has not been pronounced by a Court of competent jurisdiction; or (b) it has not been given on the merits of the case; or (c) it is founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable; or (d) the proceedings are opposed to natural justice, or (e) it is obtained by fraud, or (f) it sustains a claim founded on a breach of any law in force in India. If the above conditions are fulfilled in the said foreign divorce decree the said divorce is valid in india

Prashant Nayak
Advocate, Mumbai
27267 Answers
88 Consultations

4.4 on 5.0

If she is residing in Australia and failed to appear and contest the case after receiving the summon from court then the exparte decree passed in Australia is a valid one and can enforceable in India. When the petition for maintenance filed by your wife is pending before the Indian Court, it is not advisable to file a divorce case in Australia.

Selva Perumal
Advocate, Chennai
329 Answers
36 Consultations

4.9 on 5.0

1. Decree of divorce passed by foreign court against application not filed on the grounds accepted by India law is not valid in India.

2. The ground to file MCD application jointly before the foreign court is mutual consent and the said ground is acceptable by Indian Courts. However, in that case also you shall have to file a petition before the local District Court seeking validation of the said MCD decree passed by the foreign court.

3. So, please note it very clearly that ex-parte decree of divorce passed by Australian Court is invalid in India and you two shall be treated as husband and wife as per Indian law till you obtain the decree of divorce from the Indian Court.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

If you are Australian citizen you may get the exparte divorce from Australia and file a petition for the ratification of the divorce in Indian family court. Please be aware that as your wife has not been heard on the decision of the court she have all the rights to be heard before granting the divorce and the maintenance case will also be heard simultaneously if requested.

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

This is my response to you:

1. A Hindu couple married in India must seek divorce from an Indian court only;

2. The execeptional cases are wherein there is mutual divorce or both the parties are present in Australia;

3. Therefore you must appoint your legal representative in India and seek/file for divorce;

4. Since you got married in India and registered under Hindu Marriage Act, therefore you must file for divorce only in India.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

Dear Querist

As per section 13 of CPC your ex party divorce granted by Australian court will not be valid.

Read section 13 of CPC as mentioned below:-

13. When foreign judgment not conclusive.- A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except,—

(a) where it has not been pronounced by a Court of competent jurisdiction;

(b) where it has not been given on the merits of the case;

(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable;

(d) where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) where it has been obtained by fraud;

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

Feel Free to Call

Nadeem Qureshi
Advocate, New Delhi
6220 Answers
302 Consultations

4.9 on 5.0

1. yes, the decree of divorce passed by Austrian Court will be of no use , more so, if the same is passed ex parte.

2. So in that event it is advisable if you file the same in India only.

3. Since you satay or work for gain in Australia you can give POA to your father so he can handle your case in your absence.

4. So validating the decree of Australian court is not a good option than seeking similar relief in India.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

No it wont be possible to validate uncontested divorce in India in preview of the decisions of the Supreme Court and the high courts either it has to be mutual divorce or if contested it has to be on grounds as mentioned under the hindu marriage act.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1. Ex parte decree of divorce passed by a foreign court cannot be validated in India. Indian courts will be loath to validate a decree which is passed ex parte by a foreign court.

2. Nothing stops you from filing a petition for divorce in Australia and nothing stops the Australian courts from dissolving your marriage but if you manage to get a decree there which is passed without her accepting the jurisdiction of the Australian court or adherence to principles of natural justice then it can be declared non binding on your wife by the competent court in India if she files a petition to this end.

3. If the Australian court passes a decree after following principles of natural justice then it will be valid in India.

Ashish Davessar
Advocate, Jaipur
30761 Answers
971 Consultations

5.0 on 5.0

hello,

a marriage performed as per the Hindu rites and rituals in India is subject to the jurisdiction of the Indian courts and divorce or other proceedings can be started only in India. in case both the spouses accept the jurisdiction of the foreign court, a divorce can be obtained. but you have stated that your wife does not want to divorce you, she only wants to take maintenance amount from you and stay in India. there is also a landmark judgment of the Apex court in this matter.

therefore you cannot obtain a decree in Australia as it would be contested by your wife in India and hence the court would pronounce the same as void and unenforceable.

It should be borne in mind that the Hindu Marriage Act has extraterritorial jurisdiction to all Hindus, even if they reside outside the territories of India. The Hindu Marriage Act, in particular, Section 2, does not stipulate any condition that both the parties should be domiciled in India at the time of presentation of the petition before the Family Court or any other Court of competent jurisdiction.

In a given case, where marriage is solemnised between Hindus and the wife returns to India, for such women, the Court cannot dismiss the complaint/petition on the ground that the husband has acquired domicile in foreign country of his choice and therefore, no proceedings can be initiated against him under the Hindu Marriage Act for appropriate relief, which could be for judicial separation or divorce or for even alimony.

The domicile of origin continues to operate throughout a person's life and the Hindu Marriage Act merely states that it would be applicable to all Hindus domiciled in the territories to which the Act extends, even if they are outside the territory.

the marriage was solemnised by Hindu Vedic Rites and registered under H.M. Act. It may be noticed that none of the provisions of H M. Act lay down the time and condition under which it will cease to apply. In other words, once the provisions of H.M. Act apply, it would continue to apply as long as the marriage exists and even for dissolution of the marriage. The Hindu marriage gives rise to a bundle of rights and obligations between the parties to the marriage and their progeny. Therefore, the system of law which should govern a marriage, should remain constant and cannot change with vagaries/whims of the parties to the marriage.

regards

Rahul Mishra
Advocate, Lucknow
13759 Answers
65 Consultations

5.0 on 5.0

You are right that you have been misinformed about this by some Indian lawyers.

Not only exparte divorce but also the contested divorce decree obtained from a foreign country cannot be validated in India

There's no provision for that.

You can file a regular divorce in India to avoid complications.

T Kalaiselvan
Advocate, Vellore
78097 Answers
1543 Consultations

5.0 on 5.0

your australian passport would not be seized

2) court may impose conditions on you travelling abroad

Ajay Sethi
Advocate, Mumbai
87938 Answers
6207 Consultations

5.0 on 5.0

hello

they cannot cease your Australian passport arbitrarily as there is a due process of law that has to be followed by the authorities. you have come to visit your parents, they live in India. you must be having property in India, you are attending court proceedings and cooperating with the authorities. these all factors should and would weigh in with the authorities.

regards

Rahul Mishra
Advocate, Lucknow
13759 Answers
65 Consultations

5.0 on 5.0

No they won't ans cannot cease your australian passport.

Job depends on the policy of place you work sir but people for such materminonial cases donor loose job.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Passport is not seized so easily. It requires a serious ground to do the same. Don't worry and obtain ABA

Prashant Nayak
Advocate, Mumbai
27267 Answers
88 Consultations

4.4 on 5.0

1. Indian law can not seize your Australian Passport.

2. Rest assured that your Australian passport will not be seized by any Indian court and you shall not be arrested unless there is a criminal; charge leveled against you.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

The Australian passport cannot be seized, however as a precaution or a condition the court may direct to deposit the passport to remain in court custody till the disposal of the pending criminal case.

If you apprehend such a situation then better do not visit India for this purpose.

T Kalaiselvan
Advocate, Vellore
78097 Answers
1543 Consultations

5.0 on 5.0

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