• Mutual divorce from foreign country

Hello , I want your advise urgently. I got married in 2010 through special marriage act. After few months  my husband went to NZ for higher studies. We never had cohabitation since we wanted to wait till social marriage which was supposed to be done in 2012-13. But in between we started facing so many issues and we both decided to part away. Now the thing is that I am in India and he is in NZ .he is having PR over there. We want to finish it quickly because we both want to settle down soon. According to him it is so fast if we done from NZ court.we will go for mutual divorce only. Now my question is , is this divorce will be valid in India. Will I have to face any difficulties if I remarry someone else in India after that divorce which will be ordered from NZ court? I am eagerly waiting for your reply. Thanks in advance.
Asked 1 year ago in Family Law from Bangalore, Karnataka
Religion: Hindu
In your case The divorce in Newsland court is not valid.the main reason is you are not domiciled and permanently resident NZ.More over the jurisdiction assumed by the foreign court as well as the ground on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may be as follows: (i) where the matrimonial action is filed in the forum where the respondent is domiciled habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.

So better to apply divorce in Indian Court under Section 28 of the Special marriage Act, 1954 .And with draw the contesting case which you have filed 2 years before. 
A petition for divorce may be presented to the District Court by both the parties together on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

Secondly on the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to it in sub-section (1) and not later than 18 months after the said date, if the petition is not withdrawn in the meantime, the District Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised under this Act, and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of the decree.
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0
1. If both of you go for mutual consent divorce, then it is recognised and valid in India. 
2. Even contested divorce on the grounds of Cruelty/Adultery/Desertion/Impotency are grounds that Indian Law recognises, so if the divorce is granted on these grounds – The decree is valid in India. Please note that in such a case it need not be validated in India by filing a suit or anything.  It is the burden of person challenging the decree to discredit it.
3. You can remarry someone else in India after the divorce decree from NZ court.
4. The court shall take submissions of both sides into consideration before deciding the case – if it is not done – then decree does not hold good in India. In other words both spouses have to be present in the court.
5.  If there is no consummation of marriage, both of you can opt for Annulment of marriage, wherein technically it will be considered that the marriage had not taken place and you will be treated as unmarried for all practical purpose and there will be no need of taking divorce.
Shashidhar S. Sastry
Advocate, Bangalore
1242 Answers
59 Consultations
5.0 on 5.0
1. The ex parte divorce granted  in NZ will not be valid in India. Hence I can't suggest you for the same.
2. The best option is to file mutual divorce in NZ which will be valid in India very much.
 3. If the mutual divorce in NZ takes more than six months then apply for the same in India which doesn't take more than six months time.
All the best.
Devajyoti Barman
Advocate, Kolkata
5226 Answers
54 Consultations
4.9 on 5.0
1) divorce obtained by mutual consent in New Zealand would be valid in India 

2) you are free to remarry in India after obtaining divorce 
Ajay Sethi
Advocate, Mumbai
23291 Answers
1220 Consultations
5.0 on 5.0
1) since your husband has permanent residency in New Zealand he can file for divorce in New Zealand 

Ajay Sethi
Advocate, Mumbai
23291 Answers
1220 Consultations
5.0 on 5.0
Quick solution to your concern is to ask him to come down to India toake appearance in the case, you have filed 2 years back so that you both can go for mediation and settle the matter amicably. After the settlement agreement drawn up, case will be converted in to mutual consent petitin and decree of dissolution will be granted.

As you are in India and he is in NZ hiw you can get Mutual consent divorce in NZ.?

Ask him to come down to India for fifteen days so that both of you can finish the legal aspects pending from years.
Sandeep Hegde
Advocate, Bangalore
361 Answers
97 Consultations
4.8 on 5.0
The quickest divorce in India will be by mutual consent which will take at least 6 months to get the marriage dissolved by a decree of divorce through a court.  However this is not  the situation in a foreign country when India couple approach a court in a foreign country where they live.  In countries like US, UK, Australia, Canada, New Zealand, if the Indian couple decide to divorce or dissolve their marriage by mutual consent, it will be completed within a month.

Now to your questions;
We want to finish it quickly because we both want to settle down soon. According to him it is so fast if we done from NZ court.we will go for mutual divorce only. Now my question is , is this divorce will be valid in India. Will I have to face any difficulties if I remarry someone else in India after that divorce which will be ordered from NZ court?
The decree of divorce dissolving the marriage solemnised in India on the grounds of mutual consent by  a court in NZ is very much valid in India and based on that the individuals can remarry anyone as per their desire.  The decree of divorce issued by a NZ court is very much valid provided both have consented for the same.
T Kalaiselvan
Advocate, Vellore
14069 Answers
127 Consultations
5.0 on 5.0
We have also filed in a court. But our lawyer suggested to go for contested one and now it has became exparte.which is taking unnecessary long time. We are having no trust on the procedure .it is almost 2 year we have filed.no result yet.
Have you filed a divorce case in India too?  The lawyer at which place  (India or NZ) suggested you to go for contested divorce?  If you have given your consent for mutual divorce at NZ, that is very much enough and sufficient for   recognition in India as a valid divorce.  There is no necessity for contest divorce. If the divorce decree exparte in India, this is also sufficient for you to get remarried to some one of your choice after three months of this decree.
T Kalaiselvan
Advocate, Vellore
14069 Answers
127 Consultations
5.0 on 5.0
Where are you right now?India or NZ. IN your case if you get an exparty decree in already  filed case then   it also valid for remarry another  person .
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0
1. If you are citizens of India and your marriage took place in India then you should apply for mutual divorce in India. The divorce granted by the NZ court may be challenged in an Indian court by either spouse. 

2. It seems to me that you are on the wrong path if the divorce filed has been a contested one and ex parte proceedings have been initiated by the court. 

3. The simple answer to your predicament is mutual divorce. Consult another lawyer with all the documents related to the case.
Ashish Davessar
Advocate, Jaipur
18158 Answers
449 Consultations
5.0 on 5.0
if both of you are ready for mutual consent divorce then there is three procedure which can be adopted.

1. filed the mutual consent divorce in India through his Power of Attorney Holder and get the same within 6-8 months. as per section 13(B) of Hindu Marriage Act-1955

2. visit NZ and filed the divorce case there and get the divorce decree from there.

3. if you are not disagree with him and unable to travel to NZ then he may file a divorce case in NZ and get the divorce order and sent a copy of the same to you and you accept the same then the divorce will also be legal in India.

Feel Free to Call
Nadeem Qureshi
Advocate, New Delhi
3534 Answers
130 Consultations
4.9 on 5.0
1. If you get the decree of divorce on mutual consent ( or no fault divorce which is considered as mutual consent divorce by indian Courts) fro NZ Court wherein both of you attend the hearing,then the said decree of divorce will be considered as valid by Indian Courts,

2. Before getting remarried, get the said decree of divorce passed by NZ Court endorsed by local DM.
Krishna Kishore Ganguly
Advocate, Kolkata
12123 Answers
231 Consultations
5.0 on 5.0
1. In India, you should have filed mutual consent divorce petition which would have been decreed within 6 & 1/2 months from the date of its filing,

2. In the above instant you both were required to be present before the Court during the 2nd motion only to confirm the Court that still you want decree of divorce.
Krishna Kishore Ganguly
Advocate, Kolkata
12123 Answers
231 Consultations
5.0 on 5.0
1. Mutual Consent divorce petition is signed by both the parties before filing,

2. No fault divorce petition is filed by any one party and if Court hearing of the same is attended by the other side with out contesting it and agreed for it then rhye decree of divorce passed in such cases by the foreign court is considered as valid mutual consent divorce decree by Indian Courts,

3. So, he can file the said divorce case before the NZ Court.
Krishna Kishore Ganguly
Advocate, Kolkata
12123 Answers
231 Consultations
5.0 on 5.0
You are married in India,  not at all lived with him in NZ and you are presently in India. 

So he having PR status won't help him as NZ Court don't have jurisdiction  over the marriage happened in India.
Sandeep Hegde
Advocate, Bangalore
361 Answers
97 Consultations
4.8 on 5.0
Hi, if you participated in the divorce proceedings in Newzeeland then it is valid in India but if you are not participate in the divorce proceedings then that decree is not valid in India.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0

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