Where was marriage solemnised ?
if marriage was solemnised in india file for divorce in india on grounds of mental cruelty and desertion
3) best option is to file for divorce by mutual consent in india
Divorce
My brother married a girl from New Zealand, her family lives in India. Apparently things did not work out. 3 months after marriage she left for New Zealand in 2021. Since it was Covid and NZ embassy was closed she did not file for his paperwork in 2021. It’s been 2 years now, my brother hasn’t heard from her, she never filed the paperwork and now my brother is seeking for a divorce. At some point things went wrong between the two, they haven’t spoken in a long time but I don’t think she is ready for divorce by mutual consent. She said she is coming to India in March 2023 and will talk then, but she never came. What should my brother do?
Asked 2 years ago in Family Law
Religion: Hindu
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7 Answers
If she maintains staunch silence without responding or cooperating neither expressing her decision either to continue or dissolve the marriage, then there's no point in waiting endlessly.
The prolongation of the issue anymore may not be of any use hence he can proceed to file a contested divorce case on the grounds of cruelty and desertion.
Divorce for NRI marriages in India can be a complex and lengthy process, as it involves various legal and practical issues. Some of the key aspects of NRI divorce in India are:
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Grounds for Divorce: If both parties do not agree to a mutual divorce, your brother can seek a contested divorce on various grounds provided under the Hindu Marriage Act, 1955. Given the circumstances, two potential grounds stand out:
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Desertion: If one spouse abandons the other without reasonable cause and without the consent of the other, it amounts to desertion. A continuous period of desertion for two years or more immediately preceding the presentation of the divorce petition is a ground for divorce. -
No Resumption of Co-habitation: If there has been no resumption of cohabitation between the parties for a period of one year or more after the passing of a decree for judicial separation or a decree/order of restitution of conjugal rights, it can be a ground for divorce.
Jurisdiction: Divorce proceedings can be initiated in a court where:
- The marriage was solemnized,
- The parties last resided together, or
- The petitioner is residing at the time of presentation of the petition, provided the other party is a resident of such place.
Legal Notice: Before initiating divorce proceedings, it's advisable for your brother to send a legal notice through an advocate to his wife, mentioning his intent to divorce and reasons thereof. This would not only act as a formal communication of his intentions but also provide an opportunity for her to respond or enter into negotiations for an amicable solution.
Attempt at Reconciliation: The court, in divorce cases, usually refers the parties for mediation to try and facilitate a reconciliation or an amicable settlement. If the mediation fails, then the court proceedings continue.
Documentary Evidence: It will be essential to gather all relevant documents, such as marriage certificate, any communication records, evidence of her moving to New Zealand, or any other relevant evidence that can support his claim in court.
Legal Representation: Your brother should hire an experienced family lawyer who can guide him through the process, prepare the necessary legal documents, represent him in court, and handle negotiations if there's a possibility of an amicable settlement.
Duration: Contested divorces can be time-consuming, especially if one party does not cooperate. The exact duration would depend on the specific circumstances of the case, evidence presented, court's caseload, and other factors.
If she doesn't return or respond even after the legal notice, and if efforts at reconciliation fail, your brother can proceed with filing a petition for divorce based on the grounds mentioned.
It would be wise for your brother to consult with a family lawyer in India to get a clearer understanding of his rights and the best course of action.
The marriage was solemnized in India. We believe that my brother’s wife will respond to the legal notice and will not settle the matter amicably. If my brother files for contested divorce where would he stand as far as maintenance goes? She was a permanent resident of New Zealand and filed for citizenship in 2021 which I believe she must have gotten by now. The last we know was that she was working in NZ.
Asked 2 years ago
File for divorce in India as marriage has been solemnised in India
2) wife would not be entitled to any maintenance as she is working unless there is substantial difference in your incomes
If she is employed and is drawing a handsome salary income then she may not become eligible for maintenance.
If she is a PR of New Zealand and also residing there due to employment or permanently then this would be sufficient to refuse to pay her maintenance even if she files a maintenance case,
- Since, the marriage was taken place in India , then the jurisdiction to file a case can be India
- If she is not living with your brother for the last two years , then your bother can file a contested divorce petition before the family court on the ground of cruelty and separation.
- Further , if she will not appear before the court , then the court may pass ex-parte decree of divorce and which is legal in India and abroad.
- As per law, if wife is living separately without any reasonable cause , then she cannot get maintenance from her husband.
Ask your brother to file divorce in India. If she is not ready than request court to perform divorce on judicial separation ground.
