• Can we file IA praying "Foreign Divorce Decree" as null & void, while main suit is Declaration

Hi All,

My question is: 

Can we file IA Petition praying that "Foreign Divorce Decree" as Null and Void, while the main suit is for (i) Declaration of Marital Status under Section 7 of the Family Courts Act and (ii) Restitution of Conjugal Rights under Section 9 of Hindu Marriage Act

Brief: Husband and Wife are Australian Citizens of Indian Domiciled. Husband filed Divorce in India and later withdrawn due to lengthy process. Recently filed Divorce in Australia and obtained Divorce on "Irretrievable Breakdown of Marriage" or "No Fault Divorce", which is not recognized in India. 

1. Can wife file main suit for RCR & Declaration of marital status and in mean while, file interlocutory application IA praying that the foreign divorce decree is "Null and Void"

2. Or whether the "Null and Void" prayer should be in the main suit (main relief/prayer) of RCR & Declaration

3. Can we seek interim relief from Court to declare Australian Divorce Decree as Null and Void, as "Irretrievable Breakdown of Marriage" or "No Fault Divorce" is not recognized in India - Y.Narsimha Rao Judgement applies.

please email your response to [deleted] 

I am happy to pay professional fees as appropriately for correcting the draft already prepared
Asked 5 years ago in Family Law
Religion: Hindu

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10 Answers

1)wife can file petition for RCR 

 

2) she can also file petition for declaration that marriage is valid and subsisting and for declaration that divorce decree psssed by Australian courts is null and void 

 

3) reliefs should be in main suit and not in IA

 

4) you can seek these as final reliefs 

Ajay Sethi
Advocate, Mumbai
94523 Answers
7486 Consultations

5.0 on 5.0

1.The wife can file a declaration petition before family court for declaration of foreign divorce invalid and restitution along  with the prayer of for interim stay on divorce granted by the foreign court.

 

2. It can be main prayer in meantime you can seek stay on the foreign divorce decree so that other partner cannot remarry.

 

3. Yes the judgement shall be applicable. 

 

 

 

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

1. The suit for declaration is fit to be tried in Indian court wherein in alternative relied of ' null and void' declaration can be sought for and for the same no IA requires to be filed.

2. Yes, it is to be sought for in the prayer portion of the plaint.

3. This is prayer which you should must pray for in the plaint. No interim relief of this nature can be sought for or granted by court.

For getting proper drafting or getting the plaint vetted you can feel free to contact.

Devajyoti Barman
Advocate, Kolkata
22779 Answers
484 Consultations

5.0 on 5.0

1.  Wife can File for restitution of conjugal rights under section 9 of Hindu marriage act and there is no need for the wife to file a separate application to declare Australian divorce decree as null and void as the said decree is void ab initio and cannot be enforced under any circumstances if the case was not contested by both the parties. So, a prayer can be made in the main petition itself to stay the decision of the foreign court

 

2. It should be made in the main prayer of the petition itself.

 

3. Yes, but as the foreign uncontested divorce decrees are not valid in India so if your husband goes on to remarry without getting decree of divorce from India, you can file a complaint against him for the offence of bigamy under section 494 of the Indian penal code, even if he has got a uncontested divorce decree.

Siddharth Jain
Advocate, New Delhi
6303 Answers
102 Consultations

5.0 on 5.0

hello

     the divorce proceedings were obtained in Australia. both of you are Indian citizens. therefore you both were party to the divorce proceedings. the divorce can only be obtained in India under the Hindu marriage act. but the divorce can be obtained in Australia if both of you accept the jurisdiction of the foreign court. now you cannot backtrack and file for declaration of null and void.

y venkata rao v vnkata lakshmi SC has elaborated upon the process of foreign divorce and its validity in India. 

the decree obtained in Australia has to be executed in India in order to take effect.

regards

Rahul Mishra
Advocate, Lucknow
14083 Answers
65 Consultations

5.0 on 5.0

Hello Madam,

When you seek declaration to declare the divorce order passed by the Australian Court is null and void then that prayer should be a main prayer and cannot be a interim prayer.  In the main prayer of declaration you can also sought for restitution of conjugal rights.

The declaration prayer  should  be a main prayer and a prayer  of restitution of conjugal rights can be a substitute prayer. Both the above prayer cannot be sought in an interim application. But in the said proceeding you can seek interim stay of to stay all further proceedings  of the divorce  order passed by the Australian  Court until disposal  of the declaration petition filed by you. 

 

In case,  if you appeared before the Australian Court and contested the divorce petition filed by your husband on the ground of irretrievable breakdown of marriage or no fault divorce,  you cannot simplicity file an application here in India to seek declaration to declare the degree passed by the Australian Court is Null and void.  If you contested the proceedings and decree passed on merits then you should prefer an appeal against the divorce order in Australian Court. 

 In case,1.  If the decree passed by the Australian  court is not a competent court to pass such an order.  2. When it has not been given on the merits of the case.  3. Such law is not recognized and not applicable in India 4. If the order passed by the Australian  Court  is without given opportunity  to you.  5. If the decree or order obtained  by fraud then you may approach the Indian Court to declare  the divorce decree passed by the Australian  Court is null and void. 

Selva Perumal
Advocate, Chennai
339 Answers
36 Consultations

4.9 on 5.0

1. The question is where did you get married? Both of them are Australian Citizen for which the decree passed by Australian Court is not a foreign decree for them. If they had married in Australia then the said decree of divorce passed by the Australian Court is perfectly valid. If they had married in India as per Indian Law like Hindu Marriage act or Special Marriage Act, then the said foreign decree is not valid in India. The wife can file RCR in India but no order will be enforceable upon the husband since both of them are Australian Citizen. Any attachment or such oprder passed by the Indian court will be enforceable on the properties of the husband in India only.

 

2. Since both are Australian Citizen, it will be prudent on the part of the wife to file the IA first to get it declared that the said decree of divorce passed by the Australian Court on the said two Australian Citizens are in valid.

 

3. The wife can seek the said interim relief but the Court shall have to decide whether it can pass such declaratory order in connection with the order passed by the Australian court on its own citizen. 

Krishna Kishore Ganguly
Advocate, Kolkata
27191 Answers
726 Consultations

5.0 on 5.0

Dear client,

No need of declaration, marriage still subsist, provide all facts in your petition and sought prayer accordingly,  RCR and alimony.

No need to seek null and void relief , only mentioning in RCR petition is enough. Husband have to seek execution of foreigh decree in india which will denied as above grounds are alien to indian marriage laws.

Yogendra Singh Rajawat
Advocate, Jaipur
22596 Answers
31 Consultations

4.4 on 5.0

1. It is not necessary to file an additional IA seeking to declare the foreign divorce decree as Null and void when you have already filed a declaratory suit to declare your marital status. Let him file a petition seeking to validate his divorce decree which can be challenged as per law of the land.

 

2. Don't alter your current case in any manner which may prove fatal to your case.

 

3. He only has to file a case to prove his cause, since it is not recognized to be valid in India, you may remain silent on that aspect.

T Kalaiselvan
Advocate, Vellore
84722 Answers
2172 Consultations

5.0 on 5.0

Hi 

 

1) You should file a I.A under Order 6 Rule 17 CPC seeking to amend the main prayer in RCR Suit and once the I.A is allowed, you will make amendments in your RCR Petition by incorporating the new prayer to declare Australian Divorce decree as Null and Void.

2) Once the I.A is allowed by the court, you should amend the main prayer in RCR petition under Order 6 Rule 17 CPC seeking to declare the divorce decree in australia obtained on the grounds of  "Irretrievable Breakdown of Marriage" or "No Fault Divorce",

3) It should be borne in mind that Y.Narasimha Rao judgment applies only in cases where the wife was NOT 

a) A party to Divorce Proceedings in Australia OR 

b) The Wife was Illiterate and was not aware of legal procedure adopted in grant of overseas decree  

 

Hope this information is useful. 

 

 

Rajgopalan Sripathi
Advocate, Hyderabad
2173 Answers
394 Consultations

5.0 on 5.0

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