• On what grounds should I apply for divorce yet again in India, though I already got UK court Order

This is my follow up question for my previous question -- "Can I marry in UK after UK court passed Decree Final order for my first marriage in India" for which I got several answers -- my heartful thanks for them.

1) Currently as I received UK divorce court order -- D37 Decree Absolute based upon the grounds -- "Irretrievable Breakdown" in Dec 2020, and this has not been declared non established and void by any Indian court yet, Is it still invalid in India?
As the grounds of UK divorce is as same as India, why is it not a legal and valid in India? 
 The UK court before passing the order, court contacted my wife to contest the case and ready to support in any manner (via Email or whatsapp call or skype call or international phone call or UK representative lawyer), but my wife intentionally ignored court's support. Therefore considering all this the UK court orders Final Decree order. In the order there is no mention of ex-parte order (Unlike in India's ex-parte order, there will be a mention of party did not contest and hence passing order etc), but it only mentions the ground (Irretrievable breakdown) and passed the final order. 

2) If I want to apply for divorce yet again in India, which grounds should I consider to apply? 
She filed 498A and other bunch of cases against me and my family, can I consider 1) "Cruelty" 2) "Irretrievable breakdown" as we are living separately for past 8.5yrs ? I know Mutual consent doesn't work out though.
Since I am now a UK citizen and living in UK, is the divorce process be different? 
How long does it take to complete the divorce case if I start now? Should I apply the case in town where my wife lives or in High-court of that state?

I know my case seems complex, but I appreciate your comments and advises please. Many thanks
Asked 3 years ago in Family Law
Religion: Hindu

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6 Answers

Irrrevitable breakdown of marriage is not recognised by HMA 

 

2)file for di once on grounds of mental cruelty or desertion 

 

3) contested divorce takes 5 years or so to be disposed of 

Ajay Sethi
Advocate, Mumbai
94523 Answers
7485 Consultations

5.0 on 5.0

1. irretrievable breakdown of marriage is not a ground for divorce under Hindu Marriage Act, 1955.

As per the General Principle of Law (Section 13 of Code of Civil Procedure), a foreign decree is conclusive in India on the basis of Res Judicata- that is when a matter has been adjudicated by the court, it should not be agitated again and again- to save judicial time and expense. Therefore, a foreign divorce should be valid in India.

But in exceptional circumstances, such a decree would be invalid in India and some of these circumstances are as follows:

When one party’s submissions are not taken into account, and an ex-parte decision is given, if the petitioner can prove that the other party deliberately evaded proceedings, such a decision will be valid and binding on Indian courts. 

When the foreign court grants a divorce on a ground that is not recognized in India such as ‘irreconcilable differences/irretrievable breakdown of marriage’, it is not a valid divorce in India.

 

2. You may have to file a divorce case against her afresh on the grounds of cruelty and desertion, if she is not agreeing for mutual consent divorce.

The time taken for disposal of the divorce proceedings cannot be predicted owing to various factors involved in it, however in general, i t may take at least two to three years.

If you are not able to be present in India to conduct the proceedings, you may give a power of attorney to anyone in India to represent the case on your behalf.

You may have to file the divorce case in the place where the marriage took place or the place where you both lived together in India lastly or the place where she currently resides. 

High court will not entertain the divorce case directly

T Kalaiselvan
Advocate, Vellore
84722 Answers
2172 Consultations

5.0 on 5.0

1. The  decree passed by the foreign court is not valid in India unless got validated by filing an application before the appropriate Indian District Court. The Indian Court will not of its own validate or invalidate the said foreign decree. You shall have to get it validated by filing an application to that effect. Till then it is invalid in India.

 

2. You can file the divorce suit in India on the ground of cruelty and also desertion. The case might take around 2 to 4 years ordinarily..                  

Krishna Kishore Ganguly
Advocate, Kolkata
27191 Answers
726 Consultations

5.0 on 5.0

Dear Sir,

1. It is valid in India

2. Please keep these proofs with you, in case a suit is filed against you

3. You may apply for divorce on the ground of cruelty, desertion as well as irretrievable breakdown of marriage

4. No, the divorce process will not be different 

5. Since, India is still not out of the pandemic, it may take 1/2+ years as Court is only considering matters of urgent nature 

6. Apply it in the town where your wife lives

Thank you,


  • If you like my answer, please give a good rating and leave a review 

Anik Miu
Advocate, Bangalore
8742 Answers
109 Consultations

4.7 on 5.0

The Indian courts and law does not recognize a foreign divorce decree unless both the parties agree to it because it would be very convenient for a person to marry in India and get divorced abroad and the other party may not be able to contest it due to lack of resources etc.

It is basically a safeguard mechanism.

Now if both parties agree to it then there is no problem.

Even if the courts haven't declared upon it it is still null and void.

Engage a lawyer first.

Irretrievable breakdown is a ground available for divorce in India.

Cruelty and desertion as you have been living apart from more than 3 years.

File a divorce petition in the family court/ district court.

You may file it where she lives/where you married.


P.S. irretrievable breakdown of marriage is a ground NOT AVAILABLE in India. What i wrote was a typo. Sorry for the inconvenience.

Rahul Mishra
Advocate, Lucknow
14083 Answers
65 Consultations

5.0 on 5.0

- Any decree of divorce passed by the foreign court  in the absence of other party is not having any legal value in the eye of India Law. 

- If , that decree of divorce was passed on mutual ground or she has contested the case field by you , and then the decree was passed , then that decree is valid in India. 

- If the decree is passed against my narration , then legally there is not divorce taken place and she is your wife , and without getting a divorce order you cannot marry with another . 

2. You can file a divorce petition on the ground of cruelty and settle the matter with her during the proceeding as well. 

- You can file the divorce petition from the place where you are residing or where the marriage was taken place .

- There may be other grounds as well , if you will discuss your matter with a lawyer in details . 

Mohammed Shahzad
Advocate, Delhi
13105 Answers
195 Consultations

5.0 on 5.0

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