• Overseas divorce validity in India under the DV circumstances and remarriage overseas

I have obtained divorce (based on severe domestic violence) overseas in Australia from my ex-husband. I had filled DV case here and he was jailed and i have also get AVO order against him. I also obtained 100% custody of my child, now I am remarried here legally after 1 year of my divorce, we are all Indian passport holders on temporary visas, my ex-husband was served the notice of the divorce proceedings but he fled to India and did not attend the court, I found it later that the divorce I have obtained here has no standing in India and I have commited an offence under the Hindu Marraige Act Section 13 or something, can you please advise if there is a way out of this, my husband can go to jail too because of this, this seems unfair as I followed the law and did everything legally.
Asked 15 days ago in Family Law
Religion: Hindu

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11 Answers

Hi, The Decree of divorce obtained by you is not valid one and if it is valid only when both  the parties are  participating the proceedings in Australia.  It is better you can tried to settle the matter.

Pradeep Bharathipura
Advocate, Bangalore
4936 Answers
255 Consultations

4.5 on 5.0

1. Divorce obtained from Australian Court will not be recognised in India, as Australia is not recognised as a reciprocating country by Indian Government.

2. It's better to apply for Mutual Consent Divorce in India, to avoid complications in future.

3. A Hindu couple married in India under Hindu Marriage Act can only obtain divorce under the grounds recognised by HMA, which includes Mutual Consent Divorce.

4.  Based on Australian Divorce since you have remarried, it will be considered as bigamy and your new husband may land in trouble.

5.  To correct the wrong done, get the mutual consent divorce proceedings initiated from the Indian Court for your first marriage.

Shashidhar S. Sastry
Advocate, Bangalore
3348 Answers
190 Consultations

5.0 on 5.0

Divorce obtained abroad would be valid in India provided it is obtained on grounds recognised by HMA 

 

2) if your husband did not participate in divorce proceedings it would not be valid in India 

 

3) you can file petition in India under section 7 of family court act for validation of divorce decree obtained abroad 

Ajay Sethi
Advocate, Mumbai
80588 Answers
4946 Consultations

5.0 on 5.0

Hey,

If you got married to your ex-husband in India, then you should take divorce from him in India itself then only it will be considered valid and legal. If your divorce in Australia is legal, documents of divorce can be shown in Indian courts and there are chances that it won't be considered as bigamy based on the facts and honest mistakes of law.

If you found this helpful, pay a visit at-

Anik Miu
Advocate, Bangalore
188 Answers
1 Consultation

5.0 on 5.0

No doubt the exparte divorce decree obtained in a foreign country for the marriage solemnised in India as per Indian laws is not valid in India.

Therefore the subsequent marriage after one year of  obtaining divorce in Australia can at the maximum be declared as null and void, however this second marriage may not fall under the bigamy offence.

You can file a declaratory suit in India to declare the divorce granted b y an Australian court as legally valid explaining the circumstances under which it was obtained, it will be left to  the discretion of Indian court to declare it as legally valid or to dismiss your suit.

If your current husband is an Australian citizen, then he would not be falling under the Indian laws for this  offence under bigamy.

 

 

T Kalaiselvan
Advocate, Vellore
70624 Answers
987 Consultations

5.0 on 5.0

1. If he was served the summons but did not attend the case then Indian courts will not upset the decree of foreign court.

2. You are misconceived in your opinion that your divorce decree is not valid in India. It is valid for all legal and practical reasons unless your husband files a petition to assail the decree and the competent court in India declares the decree not binding and non est.

3. Section 13 of HMA does not create any offence in the first place.

Ashish Davessar
Advocate, Jaipur
30295 Answers
880 Consultations

5.0 on 5.0

Divorce petition cannot be filed in another country unless both the parties agree to it. 

Therefore your divorce petition and divorce decree is void in India and you may be prosecuted under bigamy.

You husband may file cases against you.

He can be convicted but you have to be present in India.

Rahul Mishra
Advocate, Lucknow
11801 Answers
25 Consultations

5.0 on 5.0

Dear Querist

there is no offence committed by you as the Australian Court is also competent Court to pronounce Divorce and dissolve the marriage if both the parties reside in Australia at the time of filing the divorce case based on cruelty and domestic violence. As you are already married again based on the divorce decree passed by the Australian Court hence there is no offence because the offence of Bigamy is not made out against you. as during the existence of that marriage you did not perform the second marriage.

Even he received the notice of your divorce proceedings and had not filed any reply or objection to the same hence your divorce is valid.

 

Feel Free to Call

Nadeem Qureshi
Advocate, New Delhi
5888 Answers
279 Consultations

4.9 on 5.0

- As per law, a Mutual Consent Divorce granted by foreign Court is considered as valid, legal and binding in Indian Courts by virtue of section 13 and 14 of CPC and also on account of comity of Nations.

- Further, if the matter is contested between parties in US Court, and after due adjudication and trial, divorce is granted, then it will be valid and binding in India. 

- If,the matter is uncontested, one party comes back to India where marriage had taken place and contest proceedings in India, divorce as granted by Australian Court will not be applicable in India. 

- Further, Ex-parte decree of Divorce granted by Australian Court will also not be recognised by Indian Court. Ex-parte means , One party divorce. 

- Since, the said decree of divorce was granted in the absence of him , then this decree is not valid in India. 

- Hence, you will have to file a divorce petition in Indian Court for getting legal divorce. 


You can connect me via kaanoon.com , if further advice needed. 

Mohammed Shahzad
Advocate, Delhi
5982 Answers
60 Consultations

5.0 on 5.0

Hello there is nothing to worry about. Your current husband is safe in both countries. Marrying without divorce is not an offence in both the countries. Only problem is that your second marriage will not have legal sanctity in india as in india your first marriage hasn't ended legally. 

The decree of Australia's court will be valid in india also unless your ex opposes it. You can get it validated in india and then all issues will be resolved, whatsoever.

I hope I have clarified things to you. Please consult if you need further advice. 

Good luck. 

 

 

 

Gopender
Advocate, New Delhi
308 Answers

4.9 on 5.0

If you file a case india for DV and prove the same in Indian court then he can be prosecuted in india

Prashant Nayak
Advocate, Mumbai
23026 Answers
49 Consultations

4.4 on 5.0

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