When both parties were in India & married in India according to any of the Indian forms of marriage then the dissolution of such a marriage should be done through the Indian Family Court of the competent jurisdiction where the marriage took place, where either of the parties usually reside, or where both parties last resided together.
Who wish to take advantage of Indian laws and the legal system to avoid facing up to any foreign judicial system. Indian Marriage solemnized in India according to Indian matrimonial laws, then the Indian courts will have territorial jurisdiction to hear & decide matters relating to this marriage & the foreign court's decision may or may not be acceptable in India; hence, the best course is to get this marriage dissolved according to the Indian court's decree of divorce.
Procedure in Mutual Divorce
In all, there are two court appearances in a mutual divorce
- First A joint petition signed by both parties is filed in court. Secondly, in the first motion, the statements of both parties are recorded and then signed on paper before the Honourable Court.
- Thirdly The 6 month period is given for reconciliation, (the honourable court gives a chance to the couple to change their mind)
- Fourthly, 6 months after the first motion or at the end of the reconciliation period if both parties still don't agree to come together. Then the parties may appear for the second motion for the final hearing.
- A divorce decree will be granted as the Honourable court may deem fit.
Formalities to be complied with
(a) A petition is to be presented jointly by the parties to the marriage.
(b) The parties have been living separately for a period not less than one year. It is doubtful whether it was intended by the legislators that the parties have lived separately by mutual consent or by force of circumstances or situations.
But it does not seem necessary for the court to go into that matter provided the condition of separate living under the same roof of the matrimonial home or in separate residence by the parties is satisfied. Unless the consent of any of the parties to such a petition is vitiated by coercion, fraud or undue influence, the court ought not to travel beyond the statutory condition of its jurisdiction.
(c) The parties have failed for any reason whatsoever to live together. In other words, no reconciliation or adjustment is possible between them.
(d) The parties have freely consented to the agreement of dissolution of marriage.
(e) The parties are at liberty to withdraw the petition. It seems that the petition may be withdrawn even at the instance of one party in the course of six months from the date of presentation of the petition. But when a joint motion is taken by the parties after the lapse of six months but before the expiration of eighteen months from the date of presentation of the petition for making an inquiry, the unilateral right of a party to withdraw the petition appears to be barred. But in Sureshta Devi v Om Prakash it has been held that a party to a petition for divorce by mutual consent can unilaterally withdraw his or her consent.
(f) The court must be satisfied as to the averments in the petition after making an inquiry and after hearing the parties which are initiated by a joint motion of the expiry of six months from the presentation of the petition. The expression "after hearing the parties" appearing in sub-section (2) of Section 28 of the Act does not require the presence of the parties before the court. Affidavit evidence is sufficient for this purpose by virtue of Section 40 of the Act which attracts the Code of Civil Procedure 1908 and which provides in Order 19 for proof of any point by affidavits.
In a mutual divorce, you choose an advocate and ask him to prepare a mutual divorce petition and send it to you through email. Signed the petition and sent it by courier after putting your signature on it and having it attested by a notary in the US. Ask your wife to put the signature in the same, and then he can file it before the family court at Ernakulam. After six months, the case will call, you may attend, and on the same day, the case will consider, your application and allow.
If both parties are in US the same time you can also file divorce in US court .
Generally 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 Code of Civil Procedure and also on account of comity of Nations. Such decree of divorce granted by foreign Courts need not to be validated in Indian Courts. However, as a matter of abundant precaution, one can approach to the Indian Court for declaring that divorce is valid and binding.