• How to get divorce without physical presence in India

Hi,
I have been married in 2015 in Hyderabad, India in a Christian wedding. Later I found that the guy i married is a fraud who lied to us about his education and work experience. This has been proved by police and we filed a 420 criminal case against him along with divorce petition. He also physically abused me when he was living with me. I am currently working in US he is in India. I gave power of attorney to my parents to file the case and attend the court hearings. Its been 3 years since we have not been living together nor talked to each other but the guy doesn't want to sign the divorce papers. I cannot travel to India due to recent immigration changes happening in US and also I am worried that if I come to India that he will somehow get my passport blocked and harass me.
Is there any way that I can go to supreme court to expedite the process and get the hearing done over skype or any other video conference as this is one sided divorce.

Thanks in advance for the advice.
PT
Asked 12 months ago in Family Law from United States
Religion: Christian

Supreme court is not the solution for every problem you have to approach High Court first and you may get relief from there in case there is any urgency then only you can approach to the supreme court and I was without your presence is a possibility in India on the basis of power attorney to attend the cases and take decision in this regard.

Vimlesh Prasad Mishra
Advocate, Lucknow
5507 Answers
18 Consultations

4.9 on 5.0

You can definitely file a special leave petition in Supreme Court asking the relief of expediting your case and deciding it in a time bound manner.

But, high court needs to be approached first. For that you'll have to file a writ petition seeking the same reliefs in high court.And if you do not get any relief, you can file a special leave petition in Supreme Court.

Also, your physical presence is not required and your examination can be done by way of videoconferencing as has been held by the Supreme Court of India.

Siddharth Jain
Advocate, New Delhi
4773 Answers
52 Consultations

5.0 on 5.0

Your husband cannot have your passport blocked

2) your personal presence would be necessary to give evidence in divorce case

3) contested divorce cases take 5 years to be disposed of

4) you can apply to trial court that you may be permitted to give evidence through Skype or video conferencing

Ajay Sethi
Advocate, Mumbai
66944 Answers
4041 Consultations

5.0 on 5.0

Dear Madam,

You make use of following settled law of the land as pronounced by Hon’ble Supreme Court of India, various High Courts and circulars of the State govt

Supreme Court orders use of video conferencing to reduce divorce case pileup

Supreme Court has ordered lower courts to use modern technology such as video conferencing in divorce cases where both parties are residing in different cities. This order will help the litigants and one partner will not have to spend more on litigation.

In a major step aimed at speedy disposal of matrimonial disputes, reducing pileup of such cases and easing things for estranged couples, the Supreme Court has ordered lower courts to use modern technology such as video conferencing in cases where both parties are residing in different cities.

Generally, the wife's convenience is given priority, and hearing for divorce and maintenance or custody of the child is transferred to the jurisdiction of the court where she resides.

But the apex court said that even then, one of the parties needs to first move a transfer petition before it and the husband has to spend a lot on litigation.

The directions from justices AK Goel and UU Lalit came on a transfer plea filed by a woman in a matrimonial dispute on the ground that she lives in Hyderabad with her minor daughter and has to travel to Jabalpur where her estranged husband has filed a divorce case.

The bench allowed the petition and transferred the divorce matter from Jabalpur to a family court in Hyderabad, noting that the plea was pending before it for three years.

"This court is flooded with petitions of this nature and considering the convenience of the wife, a transfer is normally allowed. However, in the process, the litigants have to travel to this court and spend on litigation. Question is whether this can be avoided," the court said.

The Bench observed that one cannot ignore the problem faced by a husband if proceedings are transferred on account of genuine difficulties faced by the wife. The husband may find it difficult to contest proceedings at a place which is convenient to the wife.

Delhi has 11,862 pending matrimonial cases. Its courts disposed of more than 24,000 cases in the last two years. Kerala tops the list with 52,000 cases awaiting adjudication till November 2016. On the contrary, Uttar Pradesh has just 5,466 cases pending in its 76 family courts.

Such less pendency in UP is attributed to its rate of disposal in the last three years. The state has disposed of more than 2 lakh cases from 2013-15, with family courts there disposing of more than 1.19 lakh cases in 2015 alone.

"We understand that in every district in the country, video conferencing is not available. In any case, wherever such facility is available, it ought to be fully utilised and all high courts ought to issue appropriate administrative instructions to regulate the use of video conferencing for certain category of cases," the SC said.

The apex court also said that in cases where one or both parties request for video conference, proceedings may be conducted through it. "Technology ought to be utilised for receiving communication from parties. We are thus of the view that it is necessary to issue certain directions which may provide alternatives to seeking transfer of proceedings on account of inability of a party to contest proceedings at a place away from their ordinary residence on the ground that if proceedings are not transferred, it will result in denial of justice," it said.

The court identified ignorance about availability of suitable legal services as another problem faced by litigants and asked legal aid committees in every district to make available on their website details of panel advocates for enhancing access to justice.

"These steps may, to some extent, take care of the problems of litigants. These suggestions may need attention of the high courts," it said.

The Supreme Court has asked lower courts to use video-conferencing facility in divorce, custody and other matrimonial cases when the estranged couple live in different cities, an order aimed at speedy disposal of such disputes.

Disagreement between a husband and a wife over the place of hearing is one of the biggest reasons for delays in matrimonial cases.

Typically, the woman’s choice is given a priority and the case moved to the place where she lives.

But transfers can only be ordered by the Supreme Court, which is flooded with such petitions that can take years to be resolved.

“... the litigants have to travel to this court and spend on litigation. Question is whether this can be avoided,” said a bench of justice AK Goel and justice UU Lalit in the order issued last week, adding technology ought to be utilised to avoid delays in such cases.

It was not possible to ignore the problems a husband faced in contesting a case at a place convenient to the wife, the court said.

“We are thus of the view that it is necessary to issue certain directions which may provide alternatives to seeking transfer of proceedings on account of inability of a party to contest proceedings at a place away from their ordinary residence on the ground that if proceedings are not transferred, it will result in denial of justice,” it said.

Trial courts should use video-conference calls for recording evidence instead of insisting on personal appearances during hearings.

The direction came on a three-year-old transfer plea by a woman who wanted her divorce case to be moved from Jabalpur in Madhya Pradesh to a court in Hyderabad, where she lived with her minor daughter. The two cities are at least 700km apart.

The case was filed in Jabalpur where her estranged husband resided.

The bench directed high courts to issue orders to regulate the use of video conferencing for trial courts.

If any or both sides ask for the facility, proceeding should be conducted through video conferencing, the court said.

Judicial process in India is painfully slow as courts are saddled with a huge backlog. At the last count, around 28 million cases were pending in various court of the country.

Netravathi Kalaskar
Advocate, Bengaluru
3107 Answers
14 Consultations

5.0 on 5.0

A writ petition in high court has to be filed but before that an application can be filed before the family.court to use Skype or vedio conferencing if it denied then in that case high court can be approached for permission to use vedio conferencing and further to expedite the matter.

Shubham Jhajharia
Advocate, Ahmedabad
19332 Answers
75 Consultations

5.0 on 5.0

1. You can file the divorce suit by signing the plaint and vakalatnama send to you by your Indian lawyer, before the appropriate officer of the local Indian Consulate who shall notarise/endorse your signature put on the plaint/affidavit and also Vakalatnama.

2. Thereafter you can return the above plaint etc to your lawyer in India to get the same filed.

3. You can apply for submitting evidence and to be examined and cross examines through video conference if the said court has the said facility.

4. Otherwise you shall have to come to India to submit evidence and be examined and cross examined by lawyers of both the sides.

Krishna Kishore Ganguly
Advocate, Kolkata
22518 Answers
594 Consultations

5.0 on 5.0

In my opinion

Your statements are mandatory in divorce petition but no need to worry as your advocate may seek for videoconferencing or can request concerned court to appoint commission so that he may travel USA and record your statement in person...but for that you have to provide expenses of his whole visit.

Thankyou

Vasu Vibhav Purohit
Advocate, Narnaul
23 Answers
1 Consultation

Not rated

hello

you have already filed the divorce petition. the matter is pending. you have aslo lodged an FIR. the divorce must have been filed under the Indian Divorce Act, 1869. you should file a petition before the HC for the expeditious disposal of the case as he had married you by committing fraud upon you. therefore, a petition under s 482 should be filed in the HC

regards

Rahul Mishra
Advocate, Lucknow
4322 Answers
11 Consultations

5.0 on 5.0

Hi,

The case of divorce is civil in nature and for this, the passport may not be blocked. The proceedings in some cases happen via video conferencing and you are advised to check, if the same facility is available at court where your filed the case.

Ganesh Singh
Advocate, Delhi
3115 Answers
9 Consultations

4.5 on 5.0

Hello,

If the video facility is available in the court then the divorce can take place virtually also.

Please get in touch with some local lawyer who may tell you about the same.

Going to the SC will be of no avail at this juncture.

Regards

Anilesh Tewari
Advocate, New Delhi
16918 Answers
259 Consultations

5.0 on 5.0

1. Since you are presently ordinary resident of USA , you can apply for divorce in USA only as in India though you an file divorce suit through your constituted attorney but your physical presence in court would be required at the evidence stage.

2. Divorce proceeding through video conferencing is though permissible under law but it is not followed in most courts of India and hence should not be relied upon this.

3. For expeditious rial of the suit you will have to apply on the high court and not in supreme court.

Devajyoti Barman
Advocate, Kolkata
17808 Answers
252 Consultations

5.0 on 5.0

Dear Querist

you may file a writ petition before High Court under Article 226/227 of Constitution of India. speedy trial is your fundamental rights. the High Court may direct to the trial court for decide the petition within a time frame.

Feel Free to Call

Nadeem Qureshi
Advocate, New Delhi
5332 Answers
257 Consultations

4.9 on 5.0

If there's a divorce petition pending already, you can approach the High Court and get it expedited. Also, petition pending in your case a mutual consent divorce petition or a contested divorce petition?

Vibhanshu Srivastava
Advocate, New Delhi
8566 Answers
134 Consultations

5.0 on 5.0

Hello,

Ask your lawyer to 0resent your case to the HC and seek necessary orders and relaxation.

Regards

Swarupananda Neogi
Advocate, Kolkata
1057 Answers
2 Consultations

4.8 on 5.0

1) Yes, you can get divorce by attending Skype or video conferencing with court

Ganesh Kadam
Advocate, Pune
7477 Answers
65 Consultations

4.9 on 5.0

Approach Supreme Court for directions. Hearing is permitted through video conferencing.

Yogendra Singh Rajawat
Advocate, Jaipur
13207 Answers
17 Consultations

4.6 on 5.0

You cannot approach supreme court or high couirt for divorce.

You can approach family court only for the relief.

Since you have given power of attorney deed to your father/mother, you need not come to India for conducting the case.

You can visit India during the time of letting in your evidence and for cross examination.

If possible that also can be managed by video conferencing.

You can take the advise of your advocate in this regard on all such further issues.

T Kalaiselvan
Advocate, Vellore
56705 Answers
701 Consultations

5.0 on 5.0

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