• Possibility of dismissal of divorce case

Hi all,
 Background:- I have filed a divorce case in india in november 2021 and my x wife filed a case in netherland on february 2022.Even after informing her she filed the case. We both live in netherland.
Now, she is demanding me to withdraw the case in india. Netherland law says , netherland court doesn't have any jurisdiction to finalize the divorce case given already there is a case in india. They are going to wait till june 2023.

My case history 
November, december , court asked other party to file objection,She hasn't filed any thing
December 2022, February 2022 court asked petitioner evidences. I am in netherland and i couldn't go.

Now , there will be hearing on april 2023, probably there will be one in june 2023. 
Keep in mind that my x wife has shown clear intention of causing trouble. All my efforts to make it peaceful has not worked.They want me to go to them and plead which i don't want. 
We got married for more than 13 years.

My question:-
 1.What are the possibilities that divorce case get dismissed?
 2. How can i avoid divorce case getting dismissed?
 3. What are the precautions should i take so that court case doesn't get dismissed?
 4.If divorce case in india get dismissed. Netherland court will declare divorce and again she can file objection in indian court for the divorce declared in netherland. I don't want this.
 5.What things should i consider while making an agreement to close the divorce matter?
 6.Consider she goes for monthly alimony then what would be the formula as my income and expenses will be in netherland.
 concerns :- Partner alimony, child alimony[financial] If she go back to india after 1-2 years and i stay back in netherland. 
 Currently , she is getting partner ,child alimony based on netherland court formula.
 7. Is there any law in india which declare divorce as we stayed apart for more than 2 years?Is there a simple way to get divorce in india without going through lot of court hearings?
 8.What are the important hearings should i plan to attend in case , indian divorce case continues?
 
Regards,
Asked 3 years ago in Family Law
Religion: Hindu

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18 Answers

1. If you don't file your side evidence despite sufficient opportunities were given then the court may dismiss the case for default 

However you can restore it later in by filing a petition under order is rule 9.

2. You have to file the evidence or ask your advocate to request more time since you are at abroad hence unable to file it now.

3. You can ask your lawyer to file a petition seeking adjournment citing some valid and genuine reasons.

4. You don't allow the Indian divorce case to be dismissed.

5. You have to analyse the background and foresee the intention of the opposite party and be prepared to agree to only those which are feasible and possible.

6. You have to work out over the issue of concern as per Netherlands law and procedures adopted there in case the court of that country is deciding on the divorce case and alimony case.

If she's employed then the burden will shift on both.

7. No.

8. The evidence and cross examination.

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

1. On merits or after other party is not attending

2. Depends on stage and status

3. If she doesn't attend then it will not be  dismissed but If also don't attend then it may 

4. It depends on order of neitherland court

5.mutial agreement between you and wife to get mutual consent divorce

6. You need to show your expenses and her income status to deny income 

7. No you need a court decree 

8. All are important 

Prashant Nayak
Advocate, Mumbai
34514 Answers
249 Consultations

You should come down to india tender affidavit of evidence . If wife does not appear you would get exparte divorce decree in india 

 

2) if you don’t attend court divorce case would be dismissed 

 

3) if wife has refused to stay with husband for continuous period of 2 years it amounts to desertion and is ground for divorce 

 

 

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

1. The outcome of the divorce case depends on the evidence and arguments presented in court.

2. To avoid dismissal, relevant evidence and arguments must be presented convincingly.

3. All necessary documents must be filed and court orders must be followed to ensure the case is not dismissed.

4. The Netherland court will declare the divorce if the Indian court dismisses the case.

5. An agreement should be made to address issues such as property division, alimony, child custody, and visitation rights.

Mohammed Mujeeb
Advocate, Hyderabad
19325 Answers
32 Consultations

- You should know the law for the divorce before getting reply point wise:

 - 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. 

1. If you will not appear before the court in Netherland, then the decree of divorce granted by that court will not valid in India. 

2. If you have filed a divorce case in INDIA, then it cannot be dismissed on the ground that a divorce case has been filed by the wife in abroad .

- Further, if she will not appeared before the court after getting notice of the court , then the court may pass ex-parte decree , and which is valid . 

3. Try to serve the notice to her. 

4. As I mention above that if you will not appear before the court in Netherland , then the decree of divorce granted by that court in your absence will not valid in INDIA. 

5. She can claim 1/4th of your income , if she is not able to arrange her maintenance as per her standard of living. 

6. Separation of two years is also a ground for divorce. 

Mohammed Shahzad
Advocate, Delhi
15814 Answers
242 Consultations

1) Mutual consent divorce takes 6 months . contested divorce proceedings take more than 5 years 

 

2) if wife has deserted you for continuous period of 2 years then you can file for divorce on grounds of desertion . you cannot take advantage of your own wrong . if you refuse to say with her then cannot take plea that wife has deserted you 

 

3) if your wife is highly qualified and working she would get any maintenance unless there is substantial differences in your incomes 

 

 

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

1. Whether the divorce case in India is taking more time or not, the fact is that there is a divorce case pending before an Indian court and it has been admitted by her before the Netherlands court, therefore the court at Netherlands can be requested to not to to entertain her divorce case till the case in India is disposed. 

2. There is no yardstick to measure the quantum of maintenance. If she is highly qualified and has been gainfully occupied and drawing a handsome salary, her claim for maintenance can be repudiated by the Indian court as per Indian laws.

3. Your understanding is right.

 

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

1. As I mentioned above that if you will appear before the Netherland Court and contest the case filed by her , then the decree of divorce granted by that court will be valid in India. 

- Under the Hindu Marriage Act, Desertion is a ground for divorce. 

2. If she is a working lady and her income is sufficient for her maintenance , then she cannot claim maintenance from you. 

3. Yes, If wife is living separately from her husband without any sufficient reason then it amounts to cruelty and a ground for divorce. 

Mohammed Shahzad
Advocate, Delhi
15814 Answers
242 Consultations

Both the cases in different countries will run on its merits. 

Maintenance as per the standard of living during marriage as per Indian law.

Yes it's desertion

You can force her to stay with you 

Prashant Nayak
Advocate, Mumbai
34514 Answers
249 Consultations

1.to 4. You should comply with the order passed by the Court to avoid your case to be dismissed for non compliance. Your lawyer shall have to file time petition and/or petition praying for allowing appointment of Advocate Commissioner for taking your Evidence online. If you submit evidence & she does not appear of refuses to file objection, the case may be heard ex-party in your favour.

 

5 & 6. Even if you get decree of divorce in Netherlands, you shall have to get the said decree validated by filing an application before the Indian District Judge otherwise you both will be considered as Man & Wife. 

 

7. There is no0 law in India which automatically declares divorce for separation for a long period, You shall have to avail the decree of divorce from the Court. The best way is to file a mutual consent divorce petition on agreed terms which will be decided within 6 & 1/2 months from the date of its filing.

 

8. Reconciliation, evidence are the important dates wher5e you shall have to be personally present before the Court.

Krishna Kishore Ganguly
Advocate, Kolkata
27703 Answers
726 Consultations

1. You both are Indian Citizens and have married in India for which you shall be considered as divorced if you get the decree of divorce in India or get the foreign decree of divorce vetted by Indian Court. Even if it takes long time, the Judicial Process shall have to be completed. You can file the divorce suit even without staying separately. 

 

2. Your net income in Netherlands shall have to be divided with PPP (Purchasing Power Parity) with Indian Rupee and thereafter if the amount is less than her gross earnings in India, you wont have to pay anything to her.

 

3. Desertion by any party for a continuous period of two years is a cause for filing the divorce suit by the aggrieved party.

Krishna Kishore Ganguly
Advocate, Kolkata
27703 Answers
726 Consultations

Dear client,  

There are various possibilities for the divorce case to get dismissed, such as lack of jurisdiction, procedural errors, insufficient evidence, or settlement between parties.

To avoid the divorce case getting dismissed, you should ensure that all necessary documents and evidence are submitted on time, attend all court hearings, and cooperate with the court and your lawyer.

To prevent the court case from being dismissed, you should consult with your lawyer to ensure that all legal requirements are met, attend all court hearings, and follow the court's instructions.

If the divorce case in India gets dismissed, your ex-wife can file for a divorce in the Netherlands, but she cannot object to the divorce decree issued in India.

When making an agreement to close the divorce matter, you should consider factors such as property division, child custody, child support, and alimony.

If your ex-wife seeks monthly alimony, the formula for determining the amount may depend on various factors, such as your income and expenses, the cost of living in your area, and your ex-wife's needs and income.

Yes, there is a provision in the Indian law for divorce based on the ground of separation for two years. However, the process may still require court hearings and legal procedures.

It is important to attend all hearings related to the divorce case in India, especially the ones where your presence is required, such as cross-examination, mediation, or settlement negotiations.

 

 

 

Anik Miu
Advocate, Bangalore
11014 Answers
125 Consultations

1. You can appraoch that bank where you had the account for getting the statement, they may oblige if they still have the records.

2. the above answer suits this question too.

3. you can ask your lawyer itself that what type of evidences he is asking you to procure, without knowing the subject matter no opinion can be rendered on it

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

1. Banks may provide statements for transactions done in 2007, depending on their record retention policy and applicable laws.

2. The same applies to transactions from 2006.

3. Obtaining such information through a GPA depends on its terms and conditions and applicable laws.

4. Required evidence for your case depends on its facts and circumstances.

5. The list of required documents may vary depending on your case's particular facts, Consult your lawyer for advice on what documents may be needed.

Mohammed Mujeeb
Advocate, Hyderabad
19325 Answers
32 Consultations

1) request bank to furnish statement for year 2006 ,2007 

 

2) on basis of registered GPA bank can furnish bank statements 

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

1. You can apply the same and request the bank.

2. you can apply certified copy of the same without court order

Prashant Nayak
Advocate, Mumbai
34514 Answers
249 Consultations

1. & 2. You can obtain the statement of accounts of all your present and closed accounts from the Bank through your POA holder.

 

3. You shall have to adduce evidence in support of all the allegations you have levelled against your wife praying for the decree of divorce, in the divorce suit filed by you. All those evidences will be examined by the Court and if accepted will be marked as Exibit 1 , 2 etc and will be considered as evidence for arriving at the Judgement by the Court.

Krishna Kishore Ganguly
Advocate, Kolkata
27703 Answers
726 Consultations

  1. Yes, it is possible to get the statement from the bank even if the account is closed. You may approach the bank where the account was held and make a request for the statement. However, the bank may charge a fee for providing the statement, and there may be a time limit on how far back they can provide the statement.

  2. Generally, banks do not provide statements for closed accounts beyond a certain period of time. However, you can make a request for the statement of all open accounts from the year 2006. As for the closed accounts, you may need to contact the bank to check if they maintain records beyond a certain period and if it is possible to retrieve them.

Regarding the GPA, it depends on the bank's policy on releasing statements to third parties. Some banks may allow it with a valid GPA, while others may require a court order.

  1. The evidences that require court approval depend on the nature of the case and the applicable laws. Generally, evidences obtained illegally or in violation of someone's privacy may not be admissible in court. Your lawyer may be able to provide you with a list of evidences that require court approval based on the specific case.

 

 

 

 

 

Anik Miu
Advocate, Bangalore
11014 Answers
125 Consultations

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