• Whether to file suit - OS or Petition FCOP? What is limitation to challenge Foreign Divorce Decree?

Hi All,

BRIEF:

Husband and Wife are Hindus and both are married as per Hindu Laws in India. Later they moved to Australia and acquired Australian Citizenship. Disputes arose between them. 
 
Husband filed Divorce in India and later withdrawn due to lengthy process. Husband recently filed Divorce in Australia and obtained Divorce on "Irretrievable Breakdown of Marriage" or "No Fault Divorce", which is not recognized in India. 

My question is:

1.	Can WIFE file “Original Suit” – OS for “Declaration of Marital Status” under Section 7 (1) (b) of the Family Courts Act, as one separate suit?

2.	Can WIFE file “Original Petition” – FCOP for Restitution of Conjugal Rights under Section 9 of Hindu Marriage Act, as one separate petition?

3.	Can WIFE seek relief of declaring "Foreign Divorce Decree" as Null and Void and whether this prayer should be in OS or FCOP? 

4.	Or can WIFE club all the above three in one single application? If so, either it is SUIT – OS or PETITION – FCOP? Which is the best way to file all the above three? 

5.	Finally, is there any limitation to seek relief of "Foreign Divorce Decree" as Null and Void? If so, how many days is the limitation and under what provision?
Asked 5 years ago in Family Law
Religion: Hindu

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13 Answers

Dear Concerned, 

 

The Divorce Decree if obtained one sided can be challenged in India.

IF obtained ex-parte - she just need to prove that day she got to know about the same, from the day of knowledge 90 day is the limitation period in India.  

 

However as you have "ACQUIRED AUSTRALIAN CITIZENSHIP" - meaningly you need not to / intend to come to India and if it is the case - you need not to worry as your Australian citizenship protects you. 

 

For purpose of remarriage in AUSTRALIA you already have the decree with you so you are good to go. 

 

Best of Luck 

 

 

 

 

 

Atulay Nehra
Advocate, Noida
1308 Answers
58 Consultations

5.0 on 5.0

1) wife can file petition for declaration that marriage is valid and subsisting 

 

2) wife can also file petition under section 9 of HMA for RCR 

 

3) wife can in petition seek orders that foreign divorce decree is null and void 

 

4) wife can club all reliefs in one petition 

 

5) petition should be filed at the earliest 

Ajay Sethi
Advocate, Mumbai
94522 Answers
7485 Consultations

5.0 on 5.0

1. Yes, she can file suit as well as filing a divorce suit also.

2. Yes, she can this suit also.

3. Yes but the same suit will have to be filed in civil court and not in the Family Court.

4. No, in a  single suit all those reliefs can not be obtained. She can obtained only one relief as stated by you in a single suit and not all three together.

5.The imitation for declaratory suit is 3 years from the date of knowledge of passing of the decree.

Devajyoti Barman
Advocate, Kolkata
22779 Answers
484 Consultations

5.0 on 5.0

1. Yes wife can file a suit.for declaration of marital status.

2. A conjugal rights petition is maintainable.

3. This prayer can be in both if seeks only declaration of divorce void then in declaration suit other wise in conjugal right she can seek both reliefs.

4. She can file restitution seeking relief to declare.the divorce decree void and further praying restitution

 

5. There is no limitation for foreign decree as such in her case though it should be filed earliest once the order comes to her knowledge.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

Dear Sir,
My answers are as follows:

1. Can WIFE file “Original Suit” – OS for “Declaration of Marital Status” under Section 7 (1) (b) of the Family Courts Act, as one separate suit?
Ans: She can file divorce as earlier divorce taken by husband is not recognized in India. Otherwise she may also fie RCR. There is no necessity filing any other suit regarding martial status it is since subsisting.

2. Can WIFE file “Original Petition” – FCOP for Restitution of Conjugal Rights under Section 9 of Hindu Marriage Act, as one separate petition?

Ans: Yes, she can file


3. Can WIFE seek relief of declaring "Foreign Divorce Decree" as Null and Void and whether this prayer should be in OS or FCOP?

Ans; It is not necessary since it is abi initio not recognized by Indian courts.

4. Or can WIFE club all the above three in one single application? If so, either it is SUIT – OS or PETITION – FCOP? Which is the best way to file all the above three?

Ans: Wife may file any one the three reliefs and she cannot club all the reliefs in one proceeding.


5. Finally, is there any limitation to seek relief of "Foreign Divorce Decree" as Null and Void? If so, how many days is the limitation and under what provision?
Ans: The wife need not seek any such relief since you cannot execute such decree. Indian marriages under Hindu Marriage Act cannot be set aside by the foreign court since HMA Act not recognised by foreign courts.

Netravathi Kalaskar
Advocate, Bengaluru
4952 Answers
27 Consultations

4.8 on 5.0

1. It is not necessary.

2. Yes, she can file a RCR petition before family court.

3. Since the divorce granted by foreign country is not valid, she need not strain about it.

4. Only RCR is maintainable and not the other two.

5. Since foreign divorce decree on the stated grounds is not valid in India you need not file any suit to declare it as null and void and no such case is maintainable.

 

T Kalaiselvan
Advocate, Vellore
84716 Answers
2172 Consultations

5.0 on 5.0

Foreign court decree of divorce or dissolution of marriage can be valid in India provided such decree is according to the provision of law in India as provided under section 13 of the Civil Procedure Code and Principle of law as laid down by the Indian courts. A foreign court divorce decree may be valid in India ONLY if the spouse had lived in that country and had consented to that country's jurisdiction.

A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-

(a) where it has not been pronounced by a Court of competent jurisdiction;

(b) where it has not been given on the merits of the case;

(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;

(d) where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a breach of any law in force in India.

So these six conditions are fulfilled by such foreign judgment/decree of divorce then it will be valid for dissolving such Indian marriage as has been held by the Supreme Court of India in several of its judgments.

 

 

Wife can file petition under section 9 of HMA for RCR  and can seek orders that foreign divorce decree is null and void in the same petition. The petition should file before family court . 

Ajay N S
Advocate, Ernakulam
4072 Answers
110 Consultations

5.0 on 5.0

Dear Cleint,

Divorce on above ground not valid in India and will set aside by Indian Court if assailed in India.

Application will in session court under code of civil procedure.

RCR will file in family court simultaneously.

Yes, under CPC.

Separate petitions will file.

No limitation still it should be file as soon as, further such decree is ab initio void in Indian point of view.

Yogendra Singh Rajawat
Advocate, Jaipur
22596 Answers
31 Consultations

4.4 on 5.0

Yes wife can do so in single Petition with prayers to that effect. But if Court objection arises she needs to take care. Foreign decree is valid in indian court unless it declared invalid and acquired fraudulently. You can challenge the same when u had knowledge of the same

Prashant Nayak
Advocate, Mumbai
31807 Answers
176 Consultations

4.1 on 5.0

1. Wife can file the said declaratory suit though it is no required since she is already considered as his wife due the registration of her marriage in India.

 

2. The wife can file RCR petition in India as a fresh suit.

 

3. The wife need not seek any decration about invalidity of the foreign decree of her divorce since otherwise also is it not valid.

 

4. She can file a RCR case before the Indian Court.

 

5.  The decree passed by the foreign court is invalid in India as per Indian law unless it is arranged to be validated by filing an application before the Indian District Judge.. You need not get it invalidated.     

Krishna Kishore Ganguly
Advocate, Kolkata
27191 Answers
726 Consultations

5.0 on 5.0

1. Yes she can

2. Yes she can as the divorce obtained is not valid in India.

3. She will not even have to make this prayer the the same is void ab initio, she will just have to mention the same.

Regards 

Anilesh Tewari
Advocate, New Delhi
18077 Answers
377 Consultations

5.0 on 5.0

Hi,

The foreign decree is valid in India as per the provisions of civil procedure code and you may file the case for setting aside of that order in Australia only. 

Ganesh Singh
Advocate, New Delhi
6757 Answers
16 Consultations

4.5 on 5.0

  1. As per the information mentioned in the present query, makes it clear that though there is a decree as per your wish, but now you are confused about it’s status in India.
  2. Irrespective of the fact as to where you have been married, if you want to seek divorce in another country then the ground in that very country should also be there in the country where you got married.
  3. Even if it is on single ground out of many, which has been there in India then also she can’t challenge it for sure, in fact either of the spouse can’t challenge it.
  4. Though it may little trouble you despite the fact that your decre holds the legality, if she files any of the above civil proceedings here in India, as you may be asked to answer those alleged grounds.

Sanjay Baniwal
Advocate, South Delhi
5473 Answers
13 Consultations

5.0 on 5.0

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