• Validity of divorce taken abroad

Dear Personal,

I have earlier posted about the divorce applied in europe on mutual consent but no response from wife. After hearing your feedback, i have contacted the lawyer in India and briefed my case. He has suggested that first we will serve a notice to my wife asking her to respond to the summons send out by the European or express her interest if she want to apply the divorce in India by mutual consent. 

After sending the notice I have also tried to contact her, however it was not sucessful as i still do not hear any response from her. Lately, the situation and consequences that i  am going through are troubling me very much. It seems that she is doing it deliberately, and i am also not aware what is reason for this. I have also mentioned to her that we have no possiblity to come back together as the issues that we went through in our marriage cannot be solved. It only hampers the life for both of us with no happiness. I have clearly mentioned to her that i do not want to continue in the relationship nor have any second thought to considering it as i do not see any happiness or future together. 

I have not heard any response nor any information from her side. She remained to be silent. This is really hampering my life here being alone without the family or people around. I have spoken to court officials here, said that they will wait couple more weeks to see if they hear anything from my wife. If they do not they will appoint a lawyer on her behalf here and proceed with the case. I think the divorce that is obtained in this case is termed as Ex-partee divorce as the other partner has not responding to the summons. Now i am in a situation to know if the divorce obtained like this will be or can be validated in India. I read that in India also Ex-partee divorce is granted if one of the partner does not respond or participate in the divorce proceedings. What i understood that the divorce obtained from abroad can be valid in india if it has been obtained acording to the  Indian laws. Could you please correct me in this regard.

In Europe there is no divorce based on cruetly or a contested one. The other way the divorce is granted if the partners are deserted for more than 2 years. I see that this is also one of the laws in India. I wanted to know if the divorce in europe is obtained based on this will it also be valid in India. 

Since i am not hearing any response from wife. I think it is not possible to apply mutual divorce in India too. The possibility that i have is to apply for contested divorce in India based on mental cruelty. Could anyone elaborate how to proceed with this process, how much time it could take and what are the things that are required. Since i live abroad there is also problem with my physical presence. In that case i need to appoint a lawyer, give a PoA and bear the expenses. All this process is really making me dificult and to live my life. I really do not want to get into any of these issues, allegations about each other and proving the opposite person guilty to obtain the divorce (i.e. to contest). It is becasue i have being undergoing lot of mental harrasment and the difficultities with the Finances from the day i got married. Could anyone of you please assist and guide me if there are other possible ways to get seperated in a good note without affecting anyone as my wife have chosen to be silent and live her own life. I am also now not interested to communicate with her further.

It would be helpful if you could assisst me in this regards.
Asked 11 months ago in Family Law from Sweden
Religion: Hindu
1) divorce obtained abroad will be valid if obtained on grounds recognised by Hindu marriage act 

2) in case your wife does not participate in divorce proceedings abroad she can challenge divorce decree obtained by you in India 

3) you can file for divorce on grounds of mental cruelty . Contested divorce cases take 5 years 

4) you have prove allegations made in petition  

5) you can execute POA in favour of family member but you will have to come to India during trial for giving evidence 

6) your lawyer based on your instructions will  draft and file petition for divorce on grounds of cruelty
Ajay Sethi
Advocate, Mumbai
23116 Answers
1214 Consultations
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If a foreign court grants ex-parte divorce it is unlikely to be upheld in India on a legal challenge laid thereto by the ex-spouse who had been proceeded against ex-parte. It is understandable that you do not want to communicate with your wife, but you have to go through the legal process if you wish to see the end of this. There is no need to communicate with her any further if she has chosen to not to respond to your offer for mutual divorce. You can go ahead and file for divorce on the ground of desertion against her. Except mutual divorce there is no legal way to get separated on a good note.
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
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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.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.

A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-
(a) where it has not been pronounced by a Court of competent jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;
(d) where the proceedings in which the judgment was obtained are opposed to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law in force in India.
So these six conditions are fulfilled by such foreign judgment/decree of divorce then it will be valid for dissolving such Indian marriage as has been held by the Supreme Court of India in several of its judgments.
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.

So better thing you can apply  divorce in India and contest the case .If she is not  comes to the court you can exp party divorce which is vaild in iIndia
Ajay N S
Advocate, Ernakulam
1905 Answers
19 Consultations
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Get the decree of divorce from European court and once it is granted inform your wife about it.
The ex parte divorce if granted by foreign court is liable for challenge but if on getting its information your wife remains silent you can breath a sigh of relief and after some time remarry.
Devajyoti Barman
Advocate, Kolkata
5154 Answers
54 Consultations
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1.Ex-Parte decree is passed when one party did not contest the case. You have filed mutual consent divorce case in Europe without her signature on the petition (as is done in India). There is no evidence that she has consented for the divorce mutually with you. So, this decree of divorce on the ground of mutual consent without her signature on the petition and/or ever attending the hearing will not be accepted as valid in India,

2. Since she is not responding to your offer of MCD, you have no other option but to file a divorce suit in India on the ground of cruelty,

3. If she does not respond to the summons sent be the Court, the case will be heard and decided ex-parte,

4. You shall have to execute a POA in favour of any body in India and get it notarised through the authorised officer of your local Indian Consulate,

5. If not contested by your wife, the case may be decided within 1 to 3 years depending on the persuasive skill of your Advocate. 

  
Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
5.0 on 5.0
I think the divorce that is obtained in this case is termed as Ex-partee divorce as the other partner has not responding to the summons.?
Any exparte divorce obtained outside India is not recognised as valid divorce as per Indian laws..




I read that in India also Ex-partee divorce is granted if one of the partner does not respond or participate in the divorce proceedings. What i understood that the divorce obtained from abroad can be valid in india if it has been obtained acording to the  Indian laws. Could you please correct me in this regard.
A exparte divorce obtained in India for the marriage solemnised in India, it is valid and that can be considered as a valid divorce, whereas an exparte divorce obtained in a foreign country is not valid in India as per Indian laws. 



In Europe there is no divorce based on cruetly or a contested one. The other way the divorce is granted if the partners are deserted for more than 2 years. I see that this is also one of the laws in India. I wanted to know if the divorce in europe is obtained based on this will it also be valid in India. 
Again if it is an exparte decision, it may not be valid in India, in India his grounds are applicable it doe not means that the divorce rules will be same to that of a foreign country in India. 



The possibility that i have is to apply for contested divorce in India based on mental cruelty. Could anyone elaborate how to proceed with this process, how much time it could take and what are the things that are required. Since i live abroad there is also problem with my physical presence. In that case i need to appoint a lawyer, give a PoA and bear the expenses.
If you have decided to apply for divorce o mental cruelty in India, you have to draft the pleadings with the averments abut all those happened to you which caused you mental cruelty. You cannot file a petition for divorce without any reason.  You have to state the reason for divorce, which can be contested/objected by the respondent/wife if she opts to fight back and denies your allegations. 
For applying for divorce, you may appoint a POA agent from any of your close relatives and through him/her you can engage a lawyer who will plead your case.  This way you may not be required to appear for the case on each and every date of hearing, you may choose to appear on the important events like deposing evidence fro your side and for subjecting to cross examination. The litigation expenses are to be borne by you whether here in India or at abroad. You have no exemption from it.




 Could anyone of you please assist and guide me if there are other possible ways to get seperated in a good note without affecting anyone as my wife have chosen to be silent and live her own life. I am also now not interested to communicate with her further.
The happy ending will be through divorce on mutual consent only, if you are not interested to communicate with her on this note, you have no other option than to go for contested divorce alone. You have to decide after analysing all pros and cons  this regard. 



T Kalaiselvan
Advocate, Vellore
13931 Answers
127 Consultations
5.0 on 5.0
As mentioned if the court in Europe does not hear any response to the summons. They would pass me the exparte divorce, which is not valid in India. After I get it, I would inform about to this my wife. If she is not responding to it in anyways, what would be the scenario. Will it be possible for me to remarry without any legal issues
An exparte decree passed by a court in a foreign country dissolving your marriage held in India is not valid in India and not recognised as divorce as per Indian laws. You may have to obtain a fresh decree from India otherwise your remarriage cannot be held as valid as per Indian laws and also you may be booked for the offences of bigamy.



What I also would like to know is it possible to file a petition for MCD in India without her signature?
No, you cannot file a MCD petition in the Indian courts without her signature.  The MCD petition is a joint petition hence a petition without her signature will not be accepted by court, will be returned.

If so, I assume that court would send the summons to know her consent on the MCD. Even here if she does not respond in this case will court again grant a expartee divorce. If that is the case will that be valid. If she is not responding to it in anyways, Will it be possible for me to remarry without any legal issues.?
In MCD the above things are not possible hence no further answer to your subsequent queries on the same subject.



As understood from your answers that the expartee divorce is also granted in India if I file MCD petition without wife signature and if the spouse is not responding to the petition. I am little curious to know why the expartee divorce granted abroad is not valid even if it is granted on the same grounds that she was not responding to the petition as we have been living here after marriage.
There is no exparte divorce in MCD in India.  The law and legislation of different countries are different hence there is no answer for your question 'Why here' and 'why not there'



In any case if I either she does not agree for MCD, or the expartee divorce is not valid in India, will it be possible for me to take the divorce on the basis of desertion Stating that she has left me mentioning that she has no interest or intention in continuing relationship with me. Personally I do not want to file a petition on mental cruelty that I underwent though I have all the evidences.
For divorce on the grounds of desertion, the law here in India is that the period of desertion should be two years or more.   Hence divorce on the grounds of mental cruelty would be ideal. 





T Kalaiselvan
Advocate, Vellore
13931 Answers
127 Consultations
5.0 on 5.0
1) your wife can challenge divorce decree in India   as she has not participated in divorce proceedings 

2) . for divorce granted abroad to be valid in India it has to be on grounds recognised by HMA 
. in your case if you applied for divorce by mutual consent abroad and wife with draws her consent or does not appear in court then in such cases no divorce decree can be granted . court will dismiss  your divorce petition 


3) you   cannot file MCD in India without her signature 

4) you can file for contested divorce in India on grounds of mental cruelty . if wife does no respond you can get exparte decree in India 

Ajay Sethi
Advocate, Mumbai
23116 Answers
1214 Consultations
5.0 on 5.0
1. As informed you in my earlier post, ex-parte divorce decree availed in foreign court is not treated as valid in India,

2. You can not file a petition of MCd without taking her signature. So, getting Ex-Parte decree in Mutual Consent Divorce petition, wherein both the parties did not sign, is impossible,

3. You can file a contested divorce petition, on the ground of desertion and cruelty  as suggested in my earlier post (not MCD with your signature only) wherein you only sign the petition and send summons to your wife and in case of her not attending the hearing, Ex-Parte decree of divorce will be granted by the Court.
Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
5.0 on 5.0
you may file a divorce on the ground of desertion before the Europion court and if the Europion Court passed an ex-party decree based on the desertion then it may be possible that this divorce may kindly be valid in India if she is not object because as per section 13 of CPC the foreign Judgment will not be conclusive if:

13. When foreign judgment not conclusive.- A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except,—

(a) where it has not been pronounced by a Court of competent jurisdiction; 
(b) where it has not been given on the merits of the case;

(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable;

(d) where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a breach of any law in force in India. 
 
She may raise a question before the Indian Court against the Judgment of Europion Court that this Judgment is against the natural Justice and without hearing me the court can not pass that type of Judgment as I am unable to bear the expenses of traveling and lawyer in Europe.
Hence it will be better to file a contested divorce in India through counsel after appoint a Power of Attorney in India. it may take time but there is no other option left.

Feel Free to Call
Nadeem Qureshi
Advocate, New Delhi
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129 Consultations
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With out getting a valid divorce decree you can't remarry by legally.Your status as divorcee has no validity as per Indian law. If both parties are ready and willing then only we can file a MCD in India. 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. Who wish to take benefit of Indian laws and legal system to avoid facing up to any foreign judicial system

You can use desertrion and cruelty as good ground in your Divorce petition in India.So go to India and File a divorce case In Indian Court
Ajay N S
Advocate, Ernakulam
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19 Consultations
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MCD requires the signature of both the spouses or their constituted attorneys. The court will not send her any summons to know if she is ready to file MCD or not. If you get divorce from a foreign court the only proceeding which you can initiate in an Indian court is for validation of divorce. You cannot file for divorce in India if it has been granted by a foreign court. 
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
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