• Divorce in India

Hi, i am a student in australia. I arrived in australia in january, 2015. My mother is a single parent so she wanted me to get married asap and i got arranged married to my husband in 2016. Him and his family was really nice and i was happy with them although, i only stayed with them a month as i had to come back for my studies. So, last year in February he got his visa to come to australia as my dependant and i even went to india to bring him with me. But, after coming here of 2 days he went to sydney(btw i live in melbourne) he told me that he wanted to meet his relatives and he hasn’t met them in years and I couldn’t accompany him as I couldn’t afford miss my studies and then he did not come back for months and told me that he got a stable job there. He told me that he wanted to us financially and couldn’t leave the job in Sydney. He only called me sometimes and believe me he wasn’t the same person anymore. He came back to melbourne after 9-10 months and we stayed together but, he started fighting with me a lot and moved out again. Once, he told me that he married me to come to Australia and then said that he was joking to make it up to me. I feel like i have been cheated on.I have been really depressed and had suicidal thoughts lately. And i want to apply for one sided divorce in india. Could you please tell me the procedure.
Asked 7 months ago in Family Law from Australia
Religion: Hindu

There nothing like 'applying for a one sided divorce.' You need to apply for a regular divorce and which will go one-sided only in case your husband decides not to contest the divorce filed by you.

I will advise you to discuss the idea of divorce with your husband and go for mutual consnet divorce in case he too wants separation from you.

To file a divorce in India, you need to be present here in India.

Vibhanshu Srivastava
Advocate, New Delhi
8222 Answers
118 Consultations

5.0 on 5.0

Hi, it is advised to file for divorce proceedings in Australia , instead of India as laws relating to matrimonial dispute are more liberal there .. Filing of divorce petition in India will involve strainful litigation due to rigid laws and it may require your presence which will also hinder your studies

Hemant Chaudhary
Advocate, Gurgaon
4144 Answers
24 Consultations

4.9 on 5.0

You have to apply contested divorce under section 13 hindu marriage act on ground of cruelty further can seek maintenance from him. Either you have to be personally present to file divorce or give power of attorney to any of your relative in India to file.for divorce.

Further for cruelty and mental harassment you can file a domestic violence complaint against him and can seek maintenance.

Shubham Jhajharia
Advocate, Ahmedabad
15317 Answers
63 Consultations

5.0 on 5.0

If he doesn't reply divorCe notice court will pass ex-parte divorce order in your favour. Yes he can give his power of attorney to contest the case to his family.

Further india is only proper place to apply for divorce as australian divorce won't be valid in India.

Shubham Jhajharia
Advocate, Ahmedabad
15317 Answers
63 Consultations

5.0 on 5.0

You can file for contested divorce on Grounds of cruelty by husband under section 13 of the Hindu Marriage Act which is a valid ground for divorce.

His statement that he married you just to go to Australia as well as not cohabiting together with you constitutes cruelty on the wife the decree of divorce can be granted on such grounds.

Siddharth Jain
Advocate, New Delhi
3849 Answers
42 Consultations

5.0 on 5.0

Your Husband can give his power button into some other person to appear on his behalf in court but he would have to appear during his examinations stage himself.

Mental as well as physical cruelty inflicted by one spouse on another are valid grounds for divorce.

Also, contested decree of divorce from foreign courts is not enforceable in India and you will still be legally married even if such decree is grant from Australian Court. As your husband is not agreeing for divorce, the right Court to be a decree of divorce would be in India.

You should try to procure as much as evidence as you can, which would show that your husband has inflicted cruelty upon you.

Also, you should give a police complaint against him in Australia if he goes on to physically or mentally harass you again. Do remember to take a copy of it with can be used in Indian courts later as evidence.

Siddharth Jain
Advocate, New Delhi
3849 Answers
42 Consultations

5.0 on 5.0

You can file for divorce on grounds of mental cruelty in India

2) husband refusing to stay with wife amounts to mental cruelty

3) seek interim maintenance and alimony from husband

4) please note that contested divorce cases take 5 years to be disposed of in India

5) mutual consent divorce takes 6 months

Ajay Sethi
Advocate, Mumbai
61317 Answers
3722 Consultations

5.0 on 5.0

You have to come down to India to file petition for divorce

2) you can execute POA in favour of mother to attend court on your behalf

3) your personal presence would be necessary during trial

4) if husband does not contest divorce proceedings you would get exparte divorce

Ajay Sethi
Advocate, Mumbai
61317 Answers
3722 Consultations

5.0 on 5.0

He'll have to personally come to India and appearing through a attorney holder may not suffice. Same goes for you and you will have to personally appear before the Fam Court in India.

Let me know if I can be of any further help.

Vibhanshu Srivastava
Advocate, New Delhi
8222 Answers
118 Consultations

5.0 on 5.0

You can file a divorce petition in India even if you are not present in India provide your power of attorney to your mother to look up the case underground cheating and cruelity

Vimlesh Prasad Mishra
Advocate, Lucknow
4900 Answers
12 Consultations

4.9 on 5.0

yes,you can use a POA if you are an NRI and you want a relative to visit the court on your behalf.

Mohammed Mujeeb
Advocate, Hyderabad
7067 Answers
3 Consultations

4.5 on 5.0

1. It appears that he has married you for coming to Auastralia legally based on your dependent Visa.

2.Decide whether yiu want to continue this matrimonial relationship with him or want t0 terminate it.

3. If you decide to terminate it then negotiate with him for jointly filing the mutual consent divorceapplication in India on agred terms which will be decided within 6 & 1/2 months from the date of its filing.

4. If he does not agree for the MCD (to avoid being deported after you withdraw to be his supporting spouce), file a divorce suit on teh ground of cruelty before the Indian Court.

5. Write to the Australian Authority that you want to withdraw to be his supporting spouce in Australia for his renewal of Visa in Australia.

Krishna Kishore Ganguly
Advocate, Kolkata
21771 Answers
564 Consultations

5.0 on 5.0

1. File the divorce suit in India as suggested in my ewarlier post.

2. You can also file the Divorce Suit from Australia and in that case you shall have to get the plaint sent to you by your lawyer which shall have to be signed by you before the appropriate officer of the Indian Consulate along with the Vakalatnama to be notarised by him for returning to your lawyer in India for filing the same before the Courrt. However, you shall have to appear before the Court for the compulsory mediation and also for submitting your evidence.

3. You can execute the POA in favour of your mother for attending the Court on all other days for and on your behalf and to file the interim petitions, if required.

Krishna Kishore Ganguly
Advocate, Kolkata
21771 Answers
564 Consultations

5.0 on 5.0

Hello,

Yes you can file a case of divorce in India, since you got married in India.

You can either file the case at the place where you resided or you may file a case where the marriage took place.

The same will be filed on the ground of mental cruelty under section 13 of the hindu marriage act.

Regards

Anilesh Tewari
Advocate, New Delhi
15496 Answers
228 Consultations

5.0 on 5.0

You will also have to appear personally before the court in Indian and as soon as he receives the summons he will also have to appear before the court.

Regards

Anilesh Tewari
Advocate, New Delhi
15496 Answers
228 Consultations

5.0 on 5.0

Hi,

As decided by you, you may move for contested divorce.

Ganesh Singh
Advocate, Delhi
2721 Answers
6 Consultations

4.5 on 5.0

Hi Ms Querist,

Thank you for your query and I can understand the ordeal you must have been in.

I have conducted matrimonial litigation against 'husbands' who have abandoned their wives overseas (mostly the UK and Australia). Clearly you have very valid grounds to seek a divorce. However, due to paucity of facts, I would not be in a position to clearly tell you the success rate of initiating divorce proceedings in India where in both the parties are living overseas.

Certainly there are provisions of Video Link via which proceedings are conducted and I have personally been a part in two such proceedings. Kindly contact me so that we could discuss this further as I would need more information viz. your husband and his family's whereabouts.

I hope this assists.

Tanmeet Singh
Advocate, New Delhi
10 Answers

Not rated

1. There is nothing such as one sided divorce. If you file a petition for divorce the court wil issue summons to him which has to be served in Australia. Serving summons outside India is always an uphill task, which will take months or even a year. If you are willing to invest time and patience in the Indian courts then file it in India, else file it in Australia.

2. If the summons of Indian court is served on him then court can proceed ex parte against him, but unless the summons is served ex parte proceedings cannot be brought in inception.

3. Divorce petition can be filed on the basis of power of attorney, but the POA holder (agent) cannot testify in evidence on facts of which he does not have personal knowledge. So better file it personally and appear in the court for your evidence.

Ashish Davessar
Advocate, Jaipur
25875 Answers
742 Consultations

5.0 on 5.0

1) You can apply for Divorce in the India court and send him notice in Australia. Plus you and he can give POA to attend court on your and on his behalf.

Ganesh Kadam
Advocate, Pune
6426 Answers
47 Consultations

4.9 on 5.0

There is no such thing called one sided divorce in India.

You can file a divorce in India, if he is not turning up to court even after receiving summons, then you can get exparte divorce.

You can even try to get divorce in Australia by filing a contested divorce in Australia since he is also living there.

T Kalaiselvan
Advocate, Vellore
51445 Answers
612 Consultations

5.0 on 5.0

You can file a divorce case in India through your power of attorney agent in India.

Similarly he can also contest the same through his power of attorney agent.

Suppose he is not responding or not appearing before court wither in person or through his agent even after receiving summons, then the court may set him exparte and you can get an exparte divorce.

T Kalaiselvan
Advocate, Vellore
51445 Answers
612 Consultations

5.0 on 5.0

Dear Querist

Divorce petition can be filed through Power of Attorney Holder of the parties, it will be better for you to check that there is any law in Australia like India for Free legal aid and if yes, then apply for that and get the free legal aid from the govt. and fight the divorce case in Australia because in India you have to fight the divorce case for years which will create mental, physical and monetary tension to you.

Feel Free to Call

Nadeem Qureshi
Advocate, New Delhi
5245 Answers
251 Consultations

4.9 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

Lower courts to use video conferencing to hear divorce, custody cases

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, Bangalore
2447 Answers
6 Consultations

5.0 on 5.0

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