• Divorce process

After 1 year of marriage I have decided that I cannot live with my husband. We were married according to the Hindu Marriage Act and now I need to know how to acquire a divorce.

I left my career to live with him in the United States, but now I wish to return home to Kolkata.

1. If I divorce in the U.S for "irreconcilable differences" will that decree be honored in India?
2. We have yelling arguments sometimes. Does that qualify for "cruelty" under Hindu Law?
3. Will he need to travel home to India for the divorce? How many times and for how long?
4. How much will the divorce cost in India and will he pay all of the costs?
5. If I begin working again after he is ordered to pay me maintenance will the maintenance payments stop?
Asked 1 year ago in Family Law from Kolkata, West Bengal
Religion: Hindu
1) you can file for divorce in USA on grounds recognised under HMA 

2) irreconcilable differences is not recognised under HMA 

3) husband using abusive language against wife amounts to mental cruelty 

4) if you file for mutual consent divorce it takes around 6 months in India . Contested divorce takes around 5 years 

5) husband will have to come to India for filing purposes and remain present at time of first and second motion in case of divorce by mutual consent 

6) husband can give POA to his family member and depose through video conferencing facilities if he is unable to attend at time of second motion after 6 months in mutual consent divorce 

7) legal fees vary . You can seek litigation costs in contested divorce 

8) husband will apply for modification of order of maintenance if you start working 

Ajay Sethi
Advocate, Mumbai
23184 Answers
1218 Consultations
5.0 on 5.0
1. Yes, if the mutual decree of divorce is granted in USA the same is valid in India as well.
2. Yes if the yelling are amounting to cause mental pressure. stress and agony in the mind  the other. However I may inform that in mutual divorce no allegation is to be raised against each other.
3. If both of you go for mutual divorce in India then his presence is required only once whereas in contested divorce his presence is to be made in many occasions.
4. The costs differs with lawyers. We charge for mutual divorce in Kolkata around Rs.40,000/-.
5.Yes
Devajyoti Barman
Advocate, Kolkata
5189 Answers
54 Consultations
4.9 on 5.0
Divorce is not favored or encouraged, and is permitted only for grave reasons. The first year of marriage is when the haze of romance and lust lifts, and reality begins to set in. Instead of spending time together doing fun things, couples start facing the reality of life. Newly weds are often confronted with differences that seemed unimportant or non-existent .Getting married means redefining boundaries and being a life partner with someone new involves cutting the umbilical cord.  Parents often have a more difficult time with this than the children they are marrying off, and want to stay connected in ways that can disrupt the marriage.One of the most important aspects of a healthy marriage is mutual respect. Lack of respect in the relationship leads to Divorce. No problem in a marriage can be solved without open, honest communication.

The following are the Grounds for Divorce under the Hindu Marriage Act, 1955

1.	Adultery 
2.	Cruelty 
3.	Desertion - continuous period of  2 or more years
4.	Conversion - to a religion other than Hindu
5.	Mental Disorder - abnormality
6.	Leprosy 
7.	Venereal Disease
8.	Not Heard 
9.	No Resumption of Co-habitation 

It is not advisable for getting a divorce from US court.Mere argument not amount to cruelty. Try for mutual divorce. IN YOUR CASE  getting divorce and maintenance is difficult if you have a valid ground for divorce.Acts of cruelty are behavioral manifestations stimulated by different factors in the life of spouses, and their surroundings and therefore, each case has to be decided on the basis of its own set of facts. Mental cruelty can consist of unusually callous, neglectful and deliberately harassful conduct, false accusation of adultery or unchastity, false charge of impotency, undue familiarity with third person, deprivation of property, drunkenness, false criminal charge by one spouse against the other, reprehensible conduct, refusal to have marital intercourse, refusal to consummate marriage, communication of disease, demand for dowry etc
Ajay N S
Advocate, Ernakulam
1911 Answers
19 Consultations
5.0 on 5.0
1.Foreign Decree of Divorce is valid in India, if there is no challenge at all in Indian Court.

2.Cruelty have to be proved.

3.Personal appearance is needed to get a decree, one time for mutual divorce and several times in contesting divorce.

4.Cost may be varied from lawyer to lawyer and also length  of process.

5.Working wife will not get maintenance, if husband would furnished valid proof.
Minansu Bhadra
Advocate, Kolkata
266 Answers
23 Consultations
4.8 on 5.0
Indian laws are different to that of US laws especially with regard to the matrimonial disputes.
If you would like to file a divorce suit in US and he contests the same in the same court inUS after which if you get your marriage dissolved by a decree f divorce by the judgement of US court, it is considered as valid divorce in India too though the marriage had taken place in India as per Hindu law and Hindu Marriage act. 
If you want to file a divorce case in India, the grounds what you have stated would not attract substantial reason for divorce on the grounds of cruelty. However, if would challenge the case he has to be here in India throughout for the entire proceedings, there is no time limit for a contested divorce, it may prolong up to 5 years also. The court will decide about costs of the proceedings at the time of pronouncing the judgement. 
As far as maintenance is concerned, you may be eligible for claiming it all the while during unemployed status, if you are employed subsequently, on an application he may seek dismissal of your claim.
T Kalaiselvan
Advocate, Vellore
13970 Answers
127 Consultations
5.0 on 5.0
1. No. No-Fault divorce etc is decreed in the USA which is not acceptable by Indian courts. The decree of divorce granted by USA Court on the grounds acceptable as per India Law, is acceptable by Indian Courts. Mutual Consent Divorce granted in USA is acceptable by Indian Courts,

2. Arguments are expressions of thoughts and feelings in difference to that of other which can not be called as 'Cruelty". There are different acts which can be called as mental cruelty,

3. He won't have to come to India to attend the divorce suit filed here. He can engage his lawyers in India,

4. Filing of divorce suit in India will take around Rs.30 K for a reasonably placed lawyer and appearance fees per day for attending the cases will be around Rs.2K. He shall have to pay the cost if the Court orders him to pay cost and the amount to be paid as cost will also be as directed by the Court,

5. Yes, if you start working and earning, you will not remain entitled to maintenance from your husband for which he may stop payment of maintenance to you any further.
Krishna Kishore Ganguly
Advocate, Kolkata
12092 Answers
229 Consultations
5.0 on 5.0
1. If you were married in India and both of you continue to be citizens of India it will be better for you to file for divorce in India instead of US as the US decree can be challenged in an Indian court by your husband which can quash it.

2. 'Yelling arguments' alone do not qualify as cruelty. 

3. If both of you are willing to end the marriage then mutual divorce may be filed in India which will come sooner than no fault divorce in US. Both of you will have to turn up in the court on 2 occasions. If either or both of you cannot come then a POA can be executed in favour of a blood relative to authorize him to appear on your behalf along with your lawyer.

4. Divorce costs nothing except the fee of the lawyer.

5. If he does not agree to mutual divorce then you may unilaterally apply for divorce on the grounds available under the law.

6. The maintenance will stop if you begin working after getting it.
Ashish Davessar
Advocate, Jaipur
18088 Answers
447 Consultations
5.0 on 5.0

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