There are very stringent conditions for acceptance of divorce obtained from a foreign Court. If you have plans for making Canada your home, you can obtain divorce there which will be valid against husband. The divorce proceeding in India will die its natural death if your do not follow up.
NRI divorce
Good evening, I was married in India in 2014 as per Christian rites and moved to Saudi Arabia with my husband in 2015. I endured physical and mental abuse for 4 years after which I moved to Canada alone to study. He did not believe violence against women is a crime and hence I announced my separation from him in July 2018. I filed for divorce in India in 2021 January after long struggles with finding a lawyer since 2019. The cases are super slow in India and since I live in Canada for more than a year which makes me eligible to use a Canadian court, I parallelly filed for divorce in Canada too on the grounds of cruelty. I sent the petition to my ex-husband, he has received it which was confirmed by his lawyer but he did not file a response. Canadian courts give 60 days time to the respondent to file the response after which a decree is passed. The 60 days end next week but I'm concerned about what the outcome looks like for me from a legal stand point. Do I withdraw the Indian case? How do I validate my foreign divorce in India. Please advice.
Asked 2 years ago in Family Law
Religion: Christian
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15 Answers
I do not plan to return to India sir. Should I withdraw my Indian case? My lawyer says I'll have to go to the supreme court to validate my divorce in India. Will I be penalized in India for proceeding to a Canadian court? I am honestly exhausted beyond comprehension at this point. After enduring abuse and battling depression and anxiety, not being able to get a clear-cut closure has been daunting.
Asked 2 years ago
I can make out if the second question is directed to me. There is no such validation of divorce in India by Supreme Court. When you no plant to return India, you divorce in Canada is good and can be enforced against him. No such procedure for validating divorce by Supreme Court. You can just forget the Indian divorce, it will be closed in your absence for good.
During pendency of divorce case in India you cannot file for divorce in Canada
your divorce decree would not be valid in India
withdraw your Canadian divorce petition
Withdraw your Canadian divorce petition as it has been filed during subsistence of divorce proceedings in India
You both are Indians but The divorce petition has been filed in Canada. If the husband defends himself and accepts the jurisdiction of the foreign court then your divorce would be valid in India but if he doesn't respond and doesn't accept the jurisdiction of the Canadian court then that divorce decree is not valid in India.
You should file a divorce case in India and obtain an exparte divorce if he doesn't come. Also file a domestic violence case against him and demand compensation from him.
Since Canada is one of the reciprocating countries recognised by Indian Government, divorce obtained from Canada need not be revalidated in India, if both husband and wife were given enough opportunity to defend themselves.
The divorce if granted by Canadian court would be an exparte divorce, hence exparte divorce granted by a court of any foreign country for the marriage solemnized in India as per Indian laws, are not recognized as legally valid divorce as per Indian laws and you would deemed to remain married to your spouse.
The invalid foreign divorce decree cannot be validated in India.
Therefore better do not withdraw the divorce petition filed in India hastily anticipating or post divorce from the Canadian court.
Whether you would return to India or not, the divorce that would be granted in Canada would not be recognized as legally valid divorce in India.
If you decide to withdraw the same and get your foreign divorce validated in India, it may not be maintainable.
Even the supreme court will entertain any application to validate the invalid divorce, besides there is no provision to approach supreme court directly.
You may have to approach the family court first and high court and then supreme court, but since this divorce granted by court of Canada is not legally valid in India, you may not be able to validate the divorce in India.
Dear client,
If you do not plan to return to India at all, then you may withdraw your case filed in India. The decree of granting divorce by a Canadian court will be enough to show you have now being divorced in Cannada. You will not be penalized in India for proceeding to a Canadian Court. However, your divorce will not be valid in India as Canada does not come under reciprocating states of Section 13 of the Civil Procedure Code.
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Thanks everyone for your valuable input. I just wanted to furnish some more details of this case to get a better clarity 1. My mother is my POA but she's gotten really sick lately and does not wish to represent me. 2. So far, the respond has not filed a response even in the Indian court and is refusing to communicate with us or co-operate with us or even agree for a mutual divorce. 3. I am a permanent resident of Canada and will apply for my citizenship soon and will never return back to India. 4. I do not want any maintenance or anything from my ex-spouse. 5. We do not have children, joint accounts, joint property, not even a cup or saucer that is co-owned. 6. The marriage was never consummated actually 7. I have sufficient proof of domestic violence and harassment. 8. I had filed a complaint with the National Women Commission but did not follow up as my lawyer advised me not to. Can you experts please advise on these details on what direction I might use to get relief. Could you give me some pointers to consider? Thank you in advance.
Asked 2 years ago
Continue with your divorce case in india
if husband does not appear or engage a lawyer you can get exparte decree
with draw divorce proceedings filed in Canada
If you want to permanently get rid of him then the divorce decree granted by an Indian court would be proper and legally valid solution.
If your mother cannot represent you in your absence before the court in India then you may look for an alternative.
You may have to appoint someone else to represent you in the Indian court.
If you are confident that you will not visit India anymore in your life then you can go ahead with the Canadian divorce and re-marry someone there itself, settle down.
If you would desire to get remarried in India then you may have to get a divorce from Indian court.
You can decide accordingly.
Validation will be only possible if both parties agree. Else it will be a difficult task. You can try to file contested validation in Indian court
- As per law , a decree of divorce granted by the foreign court is valid if that decree was passed on the mutual consent or in case of a contested divorce.
- Since after receiving the summons of the court , your husband not appear and contest the divorce case in Canada , then this decree of divorce is not valid in India.
- Hence, you should not withdraw the case filed in India , and if your husband will not appear in the Indian court after receiving the summons of the court , then court will pass an ex-parte divorce decree and even this decree is valid in INDIA.
- If your mother is unable to pursue the case on your behalf then give some other person POA for appointing an advocate .
Dear Client,
It is advisable to continue with the divorce decree as has been granted by the Indian Court.
You may need to appoint someone else as a Power of Attorney to represent your case in the Indian Court.
Thank you.