• Divorce taken abroad

Respected personal,

I am NRI living in europe, but married 4 years ago in Hyderabad, India. Currently i am living alone as my wife have moved back to India couple of months ago. We both have mutually agreed to dissolve our marriage due to unavoidable situations. As we were living in europe right after marriage. Based on our mutual agreement i have filed a joint divorce application here. Since she has moved out to india, she was not present here to sign the application, thereby court have send her a letter to get her consent. Though we both have agreed to separate mutually and file the application, so far neither me nor court have heard any response from her side. The situation for me is very depressing as i do not know how to proceed further. The court here waits for six months time, if they do not hear anything from my wife they will consider my application and grant the divorce. I wanted to check if the divorce taken abroad in this case can also be valid in India. Or do I need to follow any other legal procedures to dissolve the marriage in India.

Many thanks for your valuable advice. Looking forward for your assistance.

Best Regards
Asked 1 year ago in Family Law from Hyderabad, Telangana
Religion: Hindu
1. The foreign decree is divorce is accepted in India but in certain conditions.
2. One such condition is appreciation of your wife in the divorce proceeding and the ground of divorce in abroad must be a valid ground of divorce as well in India.
3. So even if the European court grants you divorce on the ground which is valid in India as well since your does not participate in the said case she can refuse it accept the decree in India and file fresh case.
4. Yes, if she send letter of consent then the same will be valid in India.
Devajyoti Barman
Advocate, Kolkata
5248 Answers
54 Consultations
4.9 on 5.0
1. The court will proceed to grant ex parte divorce to you if your wife does not respond to the summons. Her lack of response to the summons indicates that she is likely to challenge in India the divorce granted by the foreign court, which may set aside the same. The Indian courts are loath to uphold the divorce granted without the participation of the spouse who assails the same. It was an ill conceived move in the first place to file for divorce in Europe if both of you are citizens of India.

2. A judgment by a foreign court is valid in India till such time that an Indian courts declares it as illegal. 

3. You may withdraw the divorce petition from the court and file it in India.
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
5.0 on 5.0
1) if your wife does not participate in divorce proceedings divorce decree would not be valid in India 

2) she can move court on India to challenge the divorce decree and for declaration that marriage is valid and subsisting 

Ajay Sethi
Advocate, Mumbai
23367 Answers
1224 Consultations
5.0 on 5.0
1) if your wife consents to grant of divorce the decree would be valid in India 

2) if you want divorce abroad it should be on the grounds recognised under HMA 

3) for instance if court grants divorce on grounds of mental cruelty and decree is granted after consideration of evidence divorce decree would be valid in India 
Ajay Sethi
Advocate, Mumbai
23367 Answers
1224 Consultations
5.0 on 5.0
Hi, if the wife is participate in the court proceedings in Europe then the divorce granted in Europe is also valid.

2. In you case she is not participated in divorce proceedings so divorce is not valid in India.

3. If you want you have to file a petition for divorce in India only.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
Foreign court decree of divorce or dissolution of marriage can be valid in India provided such decree is according to the provision of law in India as provided under section 13 of the Civil Procedure Code and Principle of law as laid down by the Indian courts. A foreign court divorce decree may be valid in India ONLY if the spouse had lived in that country and had consented to that country's jurisdiction.
Under Section 13(e), Civil Procedure Code, the foreign judgment is open to challenge "where it has been obtained by fraud". Fraud as to the merits of the respondent's case may be ignored and his allegation that he and his wife "have lived separate and apart for more than three (3) consecutive years without cohabitation and that there is no possibility of a reconciliation" may be assumed to be true. But fraud as to the jurisdiction of the foreign court is a vital consideration in the recognition of the decree passed by that court. 

As per the latest Supreme Court judgment which had held that a decree of divorce granted by a foreign court is not valid in India if the ground is not recognized by Indian law.

Mutual consent Divorce 

Decree of Divorce by a foreign Court is also valid in India if there is no challenge by the other party. If both of you go for mutual consent divorce, then it is recognised and valid in India.If she is ready for divorce then better to file in India for avoiding future litigation. When both the parties were India & married in India according to any of the India form of marriage then the dissolution of such marriage should be done through the Indian Family Court of the competent jurisdiction where the marriage took place or where either of the parties usually reside or where both the parties last resided together. . 
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0
1. The Mutual Consent Divorce decree, if passed by the foreign court without the presence of your wife will not be treated as valid as per Indian law,

2. Had the proceedings been attended by your wife, the the said decree of divorce would have been accepted by Indian court,

3. File a MCD petition in India where you shall have to appear before the Court after 6 months of its filing during the 2nd motion,

4. If she is not interested for MCD, file a Divorce Suit on the ground of cruelty in India for which you can execute a POA in favour of anyone in India to pursue your case in India. 
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
1. If decree of divorce against MCD petition filed is granted by a foreign court wherein both the parties attended the hearing, then the said decree of divorce is valid in India,

2. If the hearings of the said MCD case is not attended by your wife, then the consequential decree of divorce passed by the foreign court will not be treated as legally valid in India,

3. In the above instance, you shall have to file a Divorce Suit in India as suggested in my earlier post.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
1) you can file for contested divorce on grounds of mental cruelty abroad . decree of divorce passed would  be valid in India as it is one of grounds recognized under HMA and after marriage both you and your wife stayed in europe

2)if you file for contested divorce in india it may take 5 years . yu have to prove allegations made in complaint . you can give POA to family member . but you will have to come to india during trial 
Ajay Sethi
Advocate, Mumbai
23367 Answers
1224 Consultations
5.0 on 5.0
Yes suit for mutual divorce can be filled in your physical absence. If you appear on the final day of hearing that is enough.
Devajyoti Barman
Advocate, Kolkata
5248 Answers
54 Consultations
4.9 on 5.0
Hi, you can give Power of Attorney to your father or mother so on they will file a petition for divorce on behalf of you on the ground of cruelty.

2. Provided at the important stage your presence is very much required i.e at the time of evidence, cross examination.

Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
1. MCD and or No-fault divorce decree passed by foreign Court is accepted by Indian Court as valid if and only if both the parties appear before the Court during hearings,

2. You are right to in assuming that since she has not responded the Summons issued by UK court, she might to it in India also if MCD is filed here,

3. So, you can file a Divorce Suit in India where she  stays (as otherwise she may file application for transferring the said case to the Court of her place wasting valuable time) on he ground of cruelty and leaving you without your consent is also considered as an act of cruelty.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
You should have consulted an Indian lawyer before venturing to file the case in Europe. MCD in India gets concluded in a shorter span of time as compared to what it takes in most parts of Europe. MCD can be filed only if both the spouses are into a positive agreement to end the marriage by filing the papers in the court, failing which the only recourse available to you is to unilaterally file for divorce in India on the grounds applicable to your case. As I said earlier, you have to appear in the Indian court only at the time of your witness deposition. On all other hearings, including for the filing of the case, you do not have to appear. No POA is required to be executed in favour of anyone as nobody except your lawyer is required to put up appearance in the court.
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
5.0 on 5.0
She is wiser than you.If she challenge the foreign divorce decree , the decree is not sustainable in India . For filing a divorce petition you can opt an advocate service. He can prepare the petition and send it through email .You should take print out and Notortised either in consulate or Notory public. Then send by post. So he can file the petition. After that you should present next subsequent hearing dates before the court or give power of attorney to your father or mother. At the time of  giving evidence your presence is must before the court.
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0
I wanted to check if the divorce taken abroad in this case can also be valid in India. Or do I need to follow any other legal procedures to dissolve the marriage in India.
The divorce granted under this situation dissolving the marriage by passing exparte decree in Europe,  without her consent, is invalid in India. 
You may have to follow the legal procedures properly in India once again to get your marriage dissolved. 
 An exparte divorce obtained in India is valid in the eyes of law.





I have another question, in case my wife have responded to the court letter in the mean time and agrees to separate mutually. Does the divorce granted by the court in Europe will also be valid in India. 

In case your wife responds to the court notice and gives her consent and then a decree of divorce is drawn on mutual consent,  the divorce decree is very much valid in India.




The situation is creating a lot of mental stress and hampering the health. Could you also please guide me if there is any other procedure to obtain the divorce if the wife is not responding nor showing the interest to the divorce application filed.

If she is not responding, then you may get divorce after six months and can remarry  but back at India, it may be called as bigamy hence you may decide to stay back in Europe itself after that.
T Kalaiselvan
Advocate, Vellore
14151 Answers
127 Consultations
5.0 on 5.0
 I just wanted to know if i get the divorce decree based on the grounds of mental cruelty from europe, which is also according to the indian law. I hope it will be valid, though I need check out here what are the primary grounds to take the divorce apart from mutual consent and desertion for more than two years. 

Please be aware that if a marriage was solemnised in India as per Indian laws, only two types of divorce decree at abroad is recognised in India they are :  1)  by mutual consent;    2) by contest.
A decree of divorce obtained on any grounds other than this is not recognised and is invalid.




 If this cannot happen, i do not think there is any point in applying for mutual divorce in India as she might not respond there as well and that would lengthen the time even further. In case i do not hear from her I just wanted to know if i could file the petition from here with the help of the lawyer in India based on the mental agony that i am going through due to hear behaviour during this process (like she did not want to continue the relationship, went abruptly from europe, agreed for the mutual divorce, suggested to apply in europe and then not responding to the summons without any valid reason) and also based some other issues that hampered my mental health in the marriage during last 4 years or on the basis of conjugal rights/irretrivable marriage

If you have decided to file a divorce petition in India whether mutual consent or contested divorce on the grounds of cruelty, no doubt you can engage an advocate in India from abroad itself, you can sign the petition  as well as vakalat from Europe itself by getting your signatures attested by a local Notary public or an official of the Indian Embassy/High Commissioner.  At the same time you can execute a power of attorney deed also in favor of any close relative at your native in India, who shall represent you during your absence, however you may have to be present before court for deposing evidence as well as cross examination or can get it done through video conferencing method also.  The grounds for divorce shall be cruelty and the contents what you have mentioned may be impleaded in the pleadings of the petition.
The time taken for disposal cannot be predicted. 
T Kalaiselvan
Advocate, Vellore
14151 Answers
127 Consultations
5.0 on 5.0
1) if your wife does not agree for MCD you have to file for contested divorce . You have no other alternative

2) it is better you engage a local lawyer fir drafting and filing MCD petition . You cannot file MCD unilaterally both parties have to sign the petition 

3)never give POA to lawyer only give POA to close family member 

4) petition can be filed where marriage is regd or where you have jointly resided after marriage in India . Preferably file in city where your wife is residing or she will move transfer petition to transfer the case
Ajay Sethi
Advocate, Mumbai
23367 Answers
1224 Consultations
5.0 on 5.0
1. MCD petition shall have to be signed by both the parties before filing after staying separately for at least one year,

2. File a divorce petition on the ground of cruelty as per special marriage act,

3.You can execute POA in favour of your lawyer in India,

4. You should file the divorce petition where she is now staying since otherwise she will file a petition to get the case transferred to her place which will be granted by the Court and it will waste time.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
 I want to mention that we got married in register court under special marriage act, then had a hindu rituals. I just want to check if the same divorce laws are applicable in this case.
The act under which the marriage was registered may be different, but again it  is another India matrimonial law, so it will remain same in meaning and spirits.



 I tried for last four years, now i am done with my patience levels. Could you please suggest if there is any other alternative way to dissolve this marriage without hurting each other. I would be happy to do that way.
The only option to dissolve the marriage with happy note shall be by mutual consent alone, the contested form of divorce will leave bitter experiences. 



I wanted to check if it is possible for me alone with the help of lawyer to file the mutual divorce petition and then court send summons to her on my behalf to know if she is also interested for mutual divorce. It is similar to the similar way i have done here in europe. Does that work as we both are from different places. I also wanted to know do we need to live separately for one year before applying for mutual consent in India or can i do it now as it has been four years we were married but separated for last two months. What are the evidences or information is needed if we need to apply.
There is no provision in Indian laws to send her summons for mutual consent divorce.  The petition for mutual consent divorce shold be signed and presented by both before the court.  This is the procedure as per Indian laws.
The one year period of separation can be said to be present even if both were living under one roof.



I understood from your responses that i could take the help of lawyer to file the petition on my behalf from europe. Is it also possible to give POA to the lawyer to represent on my behalf for the proceedings as i do not want to trouble my parents in any sense. It is my problem so i would like to deal with it myself. I could try to come whenever there is a need i have to be physically present.
A lawyer cannot be your POA agent too. A lawyer can be a POA agent but he cannot represent the case as your lawyer, he can represent you during your absence in the court for the case. So you think how you can manage the situation.  Alternately you can ask ny other close relative to act as your agent. 




Last question, Do i need to file the petition where i have done the registered marriage with the help of lawyer from that place or can anyone from India (different place) could also file the petition. And how does it proceed in India if the wife is not responding to any of the court summons or the petitions filed. I personally do not want to get in contact with her any longer to request her to participate. 
It is not necessary that you have to engage a lawyer from that place alone, you can engage the services of a lawyer of your choice who may be practicing in any part of the country but is willing to take up your case at the place where you desire the case to be filed. 
If your wife remains absent even after receiving the summons, the court will set her exparte and upon deposing exparte evidence, an exparte judgement dissolving the marriage by a decree of divorce will be granted.  You dont have to be behind her for any reason. 
T Kalaiselvan
Advocate, Vellore
14151 Answers
127 Consultations
5.0 on 5.0
1. There is no difference in the application of law as long as you are Hindus.
2. Mutual divorce is the remedy if you wish to end the marriage without hurting each other. Mutual divorce papers are to be signed by both spouses, so you cannot proceed unilaterally.
3. The requirement to live separately for a year is not mandatory.
4. You do not give a POA to your lawyer. The only document you sign in his favour is vakalatnama/power of attorney as this is the document which brings the client-attorney relationship into existence. The POA that you are referring to is executed in favour of a blood relative or friend to authorize him to appear in the court on your behalf, but this is not required to be done in your case. 
5. You can engage a lawyer from anywhere in India. 
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
5.0 on 5.0
File a divorce caase against her in india and serve notice to her. If she appeared before the court as k her for mutual divorce ,if she is ready file another petition for mutual divorce .If she is not accept the notice you can get a exparty divorce decree.You can give power of attorney to your close relatives .We can to draw a picture with out a wall. Your physical appearance is must for conducting a divorce petition. 
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0
Hi, you can file a petition for divorce on the ground of cruelty, you can present the petition for divorce where your marriage was solemnized or place in India where you have last resided as husband and wife, in both the place you can file a petition for divorce. 

2. You can present the petition for divorce through the POA also but you must present before the court when you have to give evidence.

3. If your wife is fail to appear before the court then court will proceed ex-party.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0

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