My spouse and I have been in separation for 3 years, hardly lived under the same roof since marriage. My spouse wanted a divorce but did not want to take part in the legal proceedings. Hence I had to obtain an uncontested, no fault divorce as my spouse failed to respond back to any of the divorce proceedings or notices. But given that we have been separated for more than 2 years (proof: US divorce) , when I apply for divorce in India, does this proof with evidences of reconciliation (through marriage counselor and both families and myself) hold as a valid ground under which I am seeking divorce? Please let me know what my options for proof are to have a smooth divorce process in India.
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No fault divorce is not valid in India
2) divorce can be granted only on grounds recognised by HMA
3) you could have filed for divorce on grounds of desertion as wife has refused to stay with you for continuous period of 2 years
4) wife refusing to stay with husband amounts to mental cruelty and is ground for divorce
Hello Sir, Thank you for your response. I am writing to seek clarity on points 3 above response. What serves as concrete proof to justify point 3? Does confirmation from marriage counselor and online conversation between us serve as enough proof or should she or her Power of Attorney appear in court to testify the same in person?
1) messages exchanged by you with wife wherein you requested her to return to her matrimonial home and wife refused to do so inspite of repeated reminders can be relied upon to prove desertion
2) you can also rely upon marriage counsellor report
Sir you can file divorce on ground of desertion and the US divorce on seperation for more then 2 years can be used as proof. This will hold valid along with other proof of living seperately from each other .
The ground of no fault is not there in India under Hindu marriage act so ground available with you is desertion that is more then 2 years
The proof seperation can be divorce , the message or phone call ,notice exchange between you too,.the mediation and reconciliation proceedings which failed.
This will serve as the proof of desertion.
Further since she is respondent in the case she need to defend same if she fails to come then court pass an ex-parte order.
The proof seperation can be divorce , the message or phone call ,notice exchange between you too,.the mediation and reconciliation proceedings which failed.
This will serve as the proof of desertion.
Further since she is respondent in the case she need to defend same if she fails to come then court pass an ex-parte order.
The divorce in India bill Bailey ratification the diverse you have got from US Court of course the reconciliation process Will Go On but it will consider the separated period.
Increase both the parties agree and it will take much less time to complete the divorce proceeding and get the judgement but in case the one party is not willingly participate in that then you can get ex Parte divorce.
1. If you have obtained a divorce in US then you cannot file a petition for divorce in India as a court cannot dissolve a marriage which has ceased to subsist.
2. The US decree of divorce is absolutely valid in India. It cannot be impeached even through a suit for declaration by your ex spouse if you have evidence to prove that summons of US court was duly served on him.
If you are able to prove before court that you were living separately for more than two years, then you may get divorce on the grounds of desertion.
You can ascertain what documents you would like to produce to establish your pleadings.
You may avoid to produce US divorce decree as documentary evidence to prove that you are living separately for more than two years.
The concrete proof may be the communications regarding divorce proposal between you and her.
Even otherwise you can make a pleading that yo both were living separately for the last two years or above, let she contest and challenge the same which can be tackled accordingly at that time.
Thank you all for taking time to respond! Kalaiselvan Sir, What other document would hold valid to prove that my spouse was living separately for 3 years? Because ever since we came to the US after marriage we have been living in different states as our jobs were in different states. It is later after 6 months of avoiding to meet me did she mention that she wanted to file for divorce and that she did not want to take any part in the legal proceedings. Could you please clarify what documents would establish solid ground for my plea in India?
emails exchanged with wife wherein she expressed her inability to stay with you
2) chat messages wherein she refused to stay with you inpsite of repeated requests
3) call recordings
Living apart from each other in different cities, and her communications to dissolve the marriage by a decree of divorce, including her papers agreeing for divorce that was filed before court may serve as documentary evidences to sup[port your pleadings.
Why I had asked you to not produce the divorce decree orders before an Indian court was that if there was already divorce happened then this current divorce case would become infructuous.
So to avoid that risk, you were advised to look for some other documentary evidence, even otherwise, your pleadings that you both were living separately for more than two years would be sufficient to file the case and conduct the same effectively.
Sir the conversation about divorce you just mentioned would help email exchange if any further document notice message in which you requested her and she refused to come back same would be helpful.
1. Seperation for more than 2 years is a ground for seeking decree of divorce in Ondia.
2. It will be prudent on your part to negotiate with her and jointly file a mutual consent divorce petition in India on agreed terms which will be decided within 6 & 1/2 months from the date of its filing.
1. The decree of divorce is adequate evidence to prove that you are not staying together thereafter.
2. However, it may not conclusively prove that she has deserted you as she or the Court can claim/question that you had driven her out of your house and at that time you shall have to argue that she has not lodged any complaint for such alleged act of your.
3. In case of divorce proceedings, depositions/evidence of POA holders will not be accepted by the Court.
Dear Sir,
Indian law does not permit ex-parte decree. For the US divorce decree to be valid in India, both of partners should have either contested the divorce or should have mutually consented to divorce in the US Court.
First, when an ex-parte decree is passed by a Foreign Court, it would not be valid and conclusive in India. A decree would be considered ex-parte if summons are not served on the opposite party. ... Execution of a foreign divorce decree: A foreign judgment can be executed in two ways in India.
A foreign judgment can be executed in two ways in India. The ways are as follows:
First, by filing an execution under Section 44A of the Civil Procedure Code. Section 44A states that a decree passed by Courts in reciprocating territories can be executed in India as if the decree was passed by the Indian Courts only. The Court also see the judgments passed by foreign court as per sec.13 of Civil Procedure Code .
Secondly, by filing a civil suit upon the foreign judgment/decree. For instance, the decree does not pertain to a reciprocating territory or a superior Court of a reciprocating territory, as notified by the Central Government in the Official Gazette, the decree is not directly executable in India.
1. You already have received the decree of divorce from the USA court and hopefully conveyed the information to her.
2. As per USA law, the Court Officer also directly sends the said information and mentions in the record, copy of which you shall have to collect.
3. When she is well aware of the decree of divorce passed by the USA Court and has not challenged/objected to the samje, then it will be a good ground for you to claim that she had deserted you of her own and has not bothered to object after getting the decree of divorce for which you want the decree of divorce in India also.
Yes they are valid. Just you need to validate the same once you seek divorce in India.
