• Divorce in India or Australia

Hello All,

I have a question related to my cousin who is residing in Australia from last 6 years and is a Citizen there.

Background: My cousin got married to a girl who is also an Australian citizen and residing in Australia from last 25 years. However, they had a destination marriage in India and registered their marriage in India as per Hindu marriage act.
After, a few months there were some gross misunderstandings between the couple and my cousin decided to separate from his wife for which he dropped an email to her and also took the lawyer's recommendation as to what can be legally done in Australia.
The main requirement in Australia to get a divorce is to complete 1 year of separation, which they have already done and my cousin is in process to file a divorce in Australian Family court as a single applicant as the other party is not interested to have any form of communication.

Questions: My question is that after getting divorce in Australia as a single party (given the fact that divorce paper will be served to the other party), will that divorce be still applicable in India?

And, my another question is that in case my cousin starts the divorce proceeding in Australia which may annoy the other party, will they be legally allowed to put some false cases of dowry/DV against my Uncle and Aunty who are residing in India. My uncle and aunty have visited only once during the course of marriage (Marriage was hardly for 6 months from the date of marriage) and have been out of any communication.
Given the fact that other party have been in Australia from last 25 years and are OCIs, will they have power to exercise to put false cases against my cousin’s family, when already the matter will be starting in Australia for divorce proceedings?
Asked 6 days ago in Family Law from Australia
Religion: Hindu

Both are Australian citizens so better to file the case before court in Australia as per Australian family law. The same time the foreign court judgments are also not binding in Indian court. 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.

So they have no power to exercise to put false cases against your cousin’s family as per Indian law, if they filed the same it will not sustainable in the eye of law

Ajay N S
Advocate, Ernakulam
3002 Answers
55 Consultations

5.0 on 5.0

Since marriage registered as per hindu act though indian court have jurisdiction over it . But since both are australian citizen the divorce can be filed in Australia and further more she can see if residing in India can file false case in India but same would not be maintainable and can be quashed from high court against the family as the family has not been in a domestic relationship with her and there is no single proof of any kind cruelty from there side.

Shubham Jhajharia
Advocate, Ahmedabad
9457 Answers
31 Consultations

5.0 on 5.0

1) if wife participates in divorce proceedings divorce decree would be valid in India 

 

2) wife can file DV , dowry harassment case in India 

 

3) in event false case is filed by wife against relatives they can apply for discharge before trial court in India as they have only visited them once . 

 

4) for DV case to be maintainable there must be shared household which is missing in the present case .

Ajay Sethi
Advocate, Mumbai
54250 Answers
3257 Consultations

5.0 on 5.0

  1. As per the information mentioned in the present query, make sit clear that the marriage was registered in India, but both the parties have always been residing in Australia only.
  2. Yes, after one year, he can very well file a divorce proceeding in Australia itself, and the decree would be valid in India also as both the parties are there in Australia which is the most per-requisite.
  3. No, the credibility of complain comes down if filed after the long gap like the present one.
  4. Even if she files any such case then family will be saved as per law.

Sanjay Baniwal
Advocate, South Delhi
2563 Answers
5 Consultations

4.9 on 5.0

1) As per Indian law your brother can go for Mutual Consent Divorce in Australia and that too will be valid in India.

 


You better apply for Mutual Consent Divorce in Australia as well so it is valid in India too.

Ganesh Kadam
Advocate, Pune
4453 Answers
29 Consultations

5.0 on 5.0

Single party divorce, which is known as exparte divorce in legal parlance, will not be recognised in India.

Any case related dowry harassment or domestic violence is not maintainable in India since the couple has never lived in India post marriage and thus, it is impossible that any of the said alleged events pertaining to harassment having occurred in India. 

Vibhanshu Srivastava
Advocate, New Delhi
7474 Answers
88 Consultations

5.0 on 5.0

Uncontested decree of divorce passed by foreign count is not enforceable in India. 

 

Your cousin would have to file contested divorce in Indian court having jurisdiction to entertain such a case.

Siddharth Jain
Advocate, New Delhi
2520 Answers
28 Consultations

5.0 on 5.0

A divorce which is allowed in Australia is valid in India only when the both the party apply for the divorce as per the Hindu Marriage Act and it is allowed by the court as this is ex Parte divorce in Australia and other party has not been heard for giving the divorce decree so they have to be present in the court and record their statements in India.

If any crime is done by Indian citizen in any part of the world it can be reported to the police under IPC so it is a possibility in case report can be filed against the parents those who are living in India and Indian citizen

Vimlesh Prasad Mishra
Advocate, Lucknow
3780 Answers
7 Consultations

4.9 on 5.0

1. The decree of divordce passed by the foreign court will not be considered as valid in India unless it is obtained on the grounds acceptable by Indian law like mutual consent divorce. Your cousin shall have to file a divorce suit in India as per the Indian Act (like Hindu Marriage Act or Special Marriage ) based on which he had registered  his marriage in India.

 

2. She can lodge/file the false complaint/case alleging DV, 498A of IPC etc. creating story that she was harassed in India when she had come to India for marrying your cousin. Whether5 the allegetion is false or not shall be djudged by the Court who will hear both the sides of the instant case. 

Krishna Kishore Ganguly
Advocate, Kolkata
20521 Answers
514 Consultations

5.0 on 5.0

As the marriage solemnised in India they can put false cases on you. But it will not stand in Court. You can get it quashed in high court. You need the validate that divorce in India to get it a valid status.

Prashant Nayak
Advocate, MUMBAI
3404 Answers
2 Consultations

4.8 on 5.0

The single party divorce is called an exparte divorce in India.

Such dissolution of marriage is not recognized or valid in India.

 

 

What they can do to wreak vengeance cannot be predicted.

They too would be consulting some advocates in India and if they them accordingly then there chances.

 

 

 

T Kalaiselvan
Advocate, Vellore
44215 Answers
504 Consultations

5.0 on 5.0

1) divorce decree would not be valid in India as wife ha snot participated in divorce proceedings in Australia 

 

 

2) for filing contested divorce your cousin needs to present in India .

 

3) Wife can appoint lawyer to appear on her behalf . If she does not appear personally nor engages any lawyer you  can obtain exparte divorce  decree 

Ajay Sethi
Advocate, Mumbai
54250 Answers
3257 Consultations

5.0 on 5.0

1. If the other party contest in Australia then it can be validated in India mere serving application doesn't make it valid in India.

2. He can file divorce in India his wife family presence in India is not required. File divorce in Australia on ground of cruelty and desertion get divorce then he need to file again in India for declaration of same.

Shubham Jhajharia
Advocate, Ahmedabad
9457 Answers
31 Consultations

5.0 on 5.0

1. No it will not be recognized as valid divorce in India.

 

2. For filing a contested divorce in India it is not essential that the respondent has to present in India.

He can get an exparte divorce against her in her absence however exparte decree by a foreign country court is not valid in India.

T Kalaiselvan
Advocate, Vellore
44215 Answers
504 Consultations

5.0 on 5.0

1. Your cousin shall have to file a  divorce suit in India and serve copy on his wife at her known address including her Australian address.

 

2. She is still the wife of your cousin as per  Indan law. Your cousin can file the suit after coming to India and then leave for Australia and shall have to come again while giving evidence. His wife shall have to attend the hearing through her Advocate and sjhall have to appear personally to be exemined or cross examined, if she wishes to contest the case. If she fails or refuses to appear before the Court, the matter will be dicided ex-parte by the Court. There is no wqay you can get the single party divorce decree passed  by the Australian court validated by Indian court in the instabnt matter. You shall have to file the divorce suit in India.     

Krishna Kishore Ganguly
Advocate, Kolkata
20521 Answers
514 Consultations

5.0 on 5.0

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