• Mutual divorce from USA

Let me give you a brief introduction
I am an Indian citizen in the US on an Indian passport and work Visa. My wife deserted me after coming to US and went to her matrimonial home. From there she filled DV and 498a on my family. Since all her allegations were baseless, soon they realized and agreed for mutual divorce in lieu of hefty alimony.
Since relatives and sister's in-laws don't want any hassle, they coerced me as well for mutual divorce on a settled amount. I am not against mutual divorce but alimony is too much for me and I never get a chance to negotiate or put my point. I will be visiting India in Nov 2022 and after seeing for my myself the ground situation, I might decide the next course of action.

But the wife's side is pressing hard for mutual divorce from the USA. My question is

Q1. Technically is it possible to give a mutual divorce from the USA without visiting India even if we consider video conferencing is possible? (Jurisdiction Himachal)

Q2. I have not given any power of attorney, only vakaltnama is signed that too online (though fees paid and lawyer is a family friend). I was planning to file other civil cases against her but another lawyer said that unless I come to India, I can not file any civil case as I will not present before the oath commissioner. Can any civil case be filed against somebody in India from US?
Asked 2 years ago in Family Law
Religion: Hindu

10 answers received in 1 day.

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11 Answers

Mutual consent divorce is possible 

 

you can execute POA in favour of family member 

 

3) it should be attested before Indian consulate if executed abroad 

 

4) if executed in india it should be notarised 

 

5) your virtual presence through Skype is sufficient 

 

6) your POA can file civil case on your behalf in india 

Ajay Sethi
Advocate, Mumbai
94511 Answers
7484 Consultations

5.0 on 5.0

Your family member need not be in USA 

 

2) you can execute POA in favour of family member in India 

 

3) you cannot give POA to lawyer appearing in your case 

Ajay Sethi
Advocate, Mumbai
94511 Answers
7484 Consultations

5.0 on 5.0

1. Yes it's possible with POA

2. Through POA you can but you need to come to india for evidence stage if your evidence is necessary

Any person can be POA attestation is required through embassy or consulate

Prashant Nayak
Advocate, Mumbai
31795 Answers
175 Consultations

4.1 on 5.0

You can file any civil case in India, only through your POA holder. 

 

You don't need your attorney to be physically present in India for the purpose of attestation at the Indian Embassy. You alone can do this.

2. Give the POA to any of your friends in India, you are well versed with your marital story, if you do not have any relatives

Vibhanshu Srivastava
Advocate, Lucknow
9582 Answers
303 Consultations

5.0 on 5.0

Dear Client,

  1. This can be done through skype, only if such facility is there in the court in which you will be filing the case. If both of you are living in the US then you may take divorce by mutual consent in the US also and the same will be a valid order in India.

     

  2. A person from the USA may file a case against someone based in India if it can be shown that part of the cause of action arose in the USA.

Thankyou.

Anik Miu
Advocate, Bangalore
8742 Answers
109 Consultations

4.7 on 5.0

- If she is living in India, then she can file a joint petition in the family court for getting divorce , and your appearance is mandatory at the time of second motion statement before the court. 

- However, these days due to covid-19 there is facility of video conferencing and hence you may appear before the court through VC as well. 

- Further, if she is asking for hefty amount then inform family members to take anticipatory bail from the court till the time of settlement. 

- Further, a civil suit can be filed through lawyer if you will give POA to him with the execution of an Affidavit dully attested by the US notary or oath commissioner as per there rule. 

- Further, even you can give POA to any relative in India for approaching the cases on your behalf after notarized the same from US Notary and attested from the consulate of India. 

Mohammed Shahzad
Advocate, Delhi
13087 Answers
195 Consultations

5.0 on 5.0

1. You can not "give a mutual divorce from the USA..." You can file an application jointly with her praying for a Mutual Consent Divorce decree to be passed by the Court. Now, for filing the MCD petition, you shall have to sign the petition and the Vakalatnama being physically present before the Advocate. In your case, if you send those papers by post duly signing those papers, your opposite party (or any body for that matter afterwards)  might point out that you had not signed those papers being present before your Advocate since your Passport showed that you were not in India on that particular date. Your MCD order will be declared invalid and you shall be in trouble. To overcome this problem, you can get the final copies of the petition and the Vakalatnama and put your signatures thereupon before the appropriate officer of your local Indian Consulate who will attestate your said signature. Your such signed copies of the petition and the Vakalatnama can be sent to your lawyer in India for collecting your wife's signature on the said MCD petition and file the same after enclosing the signed Vakalatnamas signed by you and your wife. This type of filing is perfectly valid.

 

2. The said Vkalatnama executed by you online is invalid and you shall have to take the steps as explained above ton execute your Vakalatnama. You can also file a case as desired by you by following the above steps.

Krishna Kishore Ganguly
Advocate, Kolkata
27191 Answers
726 Consultations

5.0 on 5.0

1. MCD petition can not be filed by POA holder.

 

2. You shall have to file it yourself following the steps as as explained above.

Krishna Kishore Ganguly
Advocate, Kolkata
27191 Answers
726 Consultations

5.0 on 5.0

1.  The divorce proceedings especially the evidence of the either party through video conference mode is generally not allowed in the family courts.

Since the courts across the country is functioning in the physical mode, no court may entertain the divorce proceedings to be held in the virtual mode, hence don't take them for granted until a second opinion and confirmation obtained from a different lawyer of youir region back in India.

2. Until and unless you authorise someone on yor behalf through a power of attorney deed to conduct and represent the case on your behalf during your absence, you cannot conduct the case from USA remotely.

T Kalaiselvan
Advocate, Vellore
84709 Answers
2172 Consultations

5.0 on 5.0

You can execute a POA deed from USA by getting it attested by a notary public within the jurisdiction of the country of your residence and send it to the person who you chose to be your attorney back in India.

A lawyer can conduct the case legally in the court and cannot act as your power of attorney agent before the court. 

T Kalaiselvan
Advocate, Vellore
84709 Answers
2172 Consultations

5.0 on 5.0

Q1. Family courts won't entertain divorce proceedings through online media. Personal appearance is mandatory in at least 1-2 sessions

Q2. Yes, through Power of Attorney given to somebody who's your friend or relative

Q3. For executing PoA, you alone need to go to the Indian Embassy in US. You can give PoA to your advocate, if he's willing. If the PoA is not prepared in the Stamp Paper as per the state registration rules, you have to get it adjudicated after getting attested at the Embassy.

Muraleedharan R
Advocate, Trivandrum
373 Answers
2 Consultations

5.0 on 5.0

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