• Divorce in a foreign land

My husband, i and our 6yr old daughter moved to sydney Australia, just a few months back .We are both PR holders. There was abuse of all kinds in this marriage right from the start but things got better after our daughter's birth in 2016. But he started abusing me physically again in 2020 and has continued ever since. He hit me twice after coming to Australia in front of our daughter which makes her very scared. I want a divorce from him and now he wants it too but is reluctant to give me any alimony. All the savings and our house is in pune, india. And as per him if we divorce here he is not liable to pay me any alimony other than child support which is not enough to cover our expenses , considering i do not have a job yet. He is not keen on keeping our daughter eithe
Asked 3 years ago in Family Law
Religion: Hindu

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7 Answers

You can file for divorce in Australia but it should be on grounds recognised by HMA 

 

2) you are entitled to spousal maintenance and child support 

 

3) better option is to file for divorce on India on grounds of mental cruelty 

 

4) seek interim maintenance and alimony from husband 

 

5) also seek sole custody of your daughter 

Ajay Sethi
Advocate, Mumbai
99784 Answers
8145 Consultations

- 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 foreign Court, and after due adjudication and trial, divorce is granted, then it will be valid and binding in India. 

- Hence, if you both wanted to be separated , then file a joint petition there on the ground of mutual consent divorce , and the decree passed by the Australian court will be valid in India. 

- Further, if he not agrees for the payment of alimony , then you can also file there contested divorce case and there you can seek alimony and other property shares as well 

- However, if he will not contest that case , then the decree will not valid in India. 

- You can also file a contested divorce and maintenance case in India for getting divorce , alimony and child custody . 

Mohammed Shahzad
Advocate, Delhi
15814 Answers
242 Consultations

You can use local law against abuse by husband and obtain a protection order for you and daughter. As Indian national he is bound by all Indian laws. You can file criminal and civil cases against him in India through GPA executed in favour of your relative. He/she will be entitled to use Indian law which is highly favourable to women. You can file criminal complaint  for cruelty, abuse in the  Court of Magistrate  under Protection of Women from Domestic Violence Act, 2005, Section 498A, Dowry Prohibition Act if there are demands for dowry directly or indirectly. If marriage took place within seven years, all burden will be on him prove that there is no cruelty on his part. You can also seek divorce with heavy maintenance  amount during proceedings and handsome alimony after divorce .


You have many options under Indian law. Law is in favour of women. Following  remedies are available to you…


  1. Code of Criminal Procedure, 1973, Section 125: you can obtain monthly maintenance for yourself and child. Employed or not, earning or not he is bound to pay you and your child maintenance.

  2. Indian Penal Code, 1860: You can file criminal case under Section 498A if there is cruelty or demands of dowry for which punishment is imprisonment upto three years.
  3. Under Hindu Minority and Guardianship Act, 1956, mother is natural guardian and custodian of child till it reaches age of five years with visiting rights to father. Thereafter, father  is natural guardian and custodian of child with visiting rights  to mother .

After filing of criminal complaint, summons will be issued to him if he fails to appear in Indian Court a warrant will be issued against him and after a LOC, even a red corner notice and he may also be extradited resulting in impounding of his passport.

Ravi Shinde
Advocate, Hyderabad
5132 Answers
42 Consultations

Whether the house in Pune is on an individual name or joint name?, if on joint name of you both then you are entitled to 50% share in it, which he cannot deny.

It is not advisable to file a divorce case in Australia and better not to participate in the divorce proceedings even if he is filing a contested divorce in Australia. 

You can file a petition before the same court for spousal and child support on the given facts that you are not having any income to sustain your expenses and that of your child.

If you do not want to continue this marital relationship with him anymore, then you can prefer to file a divorce case in India as per Hindu Marriage Act. You can also file a petition seeking maintenance for you and your child including permanent alimony.

Being a PR you will bound by the decision of Australian court, hence you can contest the case and inform court in Australia that since you have already filed the matrimonial dispute case in India, the case that he filed is not maintainable.

You can produce documentary evidences before Australian court to affirm your facts.  

T Kalaiselvan
Advocate, Vellore
89985 Answers
2492 Consultations

Client I am sorry to hear that what is this case you can file or divorce with the country where you get married if it is an Australia then you can file a divorce over there and then enforce the judgement in India and in case the marriage happened in India then you can also file for the first in India and file for alimony for the same

Anik Miu
Advocate, Bangalore
11014 Answers
125 Consultations

If you feel your marriage has broken down irretrievably, you may initiate divorce proceedings in India in consultation with a competent lawyer. You are entitled to maintenance if you prove your financial status to the satisfaction of the court through proper documentary evidence. Please note that custody of any child below 10 years will be with the mother. If your husband is agreeable for a divorce by mutual consent, you may file a petition in an Australian court of appropriate jurisdiction. It will be valid in India.

Swaminathan Neelakantan
Advocate, Coimbatore
3070 Answers
20 Consultations

You can file for alimony in India if the marriage was solemnised in india 

Prashant Nayak
Advocate, Mumbai
34520 Answers
249 Consultations

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