• Wife not giving divorce nor ready to live together

Hi there,
I need advise  on how to get divorce  from my wife who is not ready to live with me or leave me. I am living in Australia  and she is india. We didnt have any contact since 18 months. She only married  me to get Permanent Residency  of Australia. But when i get to know about this i confronted her and she doesnt want to live with me and went back to india. Eventually  her partner  visa got cancelled  as she is not living  with me anymore. In 2 yrs of Marriage  there was no relationship  whatsoever  between  us.. as she said she dont trust me. On what basis should i file divorce. I am young and my life is stuck as she dont want  to communicate  nor her family.  I am so depressed  and want to move on in life.
Your advice  is much appreciated.
Thanks in advance.
Asked 2 months ago in Family Law from Australia
Religion: Hindu
1) you  can file for divorce on grounds of mental cruelty and desertion in India 

2) contested divorce cases take 5 years to be disposed of 

3) mutual consent takes around 6 months 
Ajay Sethi
Advocate, Mumbai
23079 Answers
1212 Consultations
5.0 on 5.0
Since you are in Australia you better apply for divorce in Australia where it is easily granted and in no time .
If your wife [participate in the divorce proceeding the decree of divorce once granted would be valid in India and would be binding on her.
Other option is to apply for the same in India which takes time.
Devajyoti Barman
Advocate, Kolkata
5131 Answers
54 Consultations
4.9 on 5.0
Dear concerned, 

In reference to your notes above, this is a tricky situation - if you start the divorce proceedings in Australia they would not be considered being an Ex Parte orders. To start the divorce proceedings you would have to come to India, however the Indian Laws being pro woman - I'd not suggest you to come to India cause you may face unnecessary litigation. As either of you are not in contact for last so many months...continue to do so ...Also it is suggested to meet a lawyer in Australia to discuss the situation .....

Best of Luck ..Stay Blessed.
Atulay Nehra
Advocate, Noida
423 Answers
15 Consultations
4.7 on 5.0
Since she is not willing and ready to file mutual consent divorce the only remedy for you is to file for contested divorce on the ground of cruelty and desertion, which she can contest on summons. She may also file a criminal complaint for dowry harassment to harass you, so then apply for pre-arrest bail.
Ashish Davessar
Advocate, Jaipur
18049 Answers
444 Consultations
5.0 on 5.0
1. If she is not agreeable to jointly file a mutual consent divorce petition, then you have no other allternative other than filing a divorce petition against her.

2. Non mutual divorce petitions are filed based on acceptable ground like cruelty and/or desertion etc.

3. In the instant case you can file a divorce petition on the ground of cruelty if you any evidence of her cruel acts on you like video/audio recording etc.

4. You can wait for another 4 months and file the divorce suit on the ground of her desertion since 2 years of desertion is required for file the divorce suit on the ground of desertion.

5. For filing the divorce suit, you shall have to come to India or get the plaint and Vakalatnama signed before the local Indian consulate and send the same to your lawyer in India for filing the same before the Indian Court.

6. You can also execute POA in favour of any of your family members to represent you in India for handling the case.
Krishna Kishore Ganguly
Advocate, Kolkata
12027 Answers
226 Consultations
5.0 on 5.0
You can file a divorce case on the grounds of mental cruelty and desertion since he voluntarily abandoned your company and is living separately on her own away from you. 

If you are a PR of Australia, you can file a divorce case in Australia too but the exparte divorce decree obtained in Australia will not be valid in India, for that you may have to file another case seeking dissolution of your marriage in India separately by visiting India or by giving a power of attorney deed in favor of any close relative in India to conduct the case in your absence and you can make yourself available before court during the start of trial of the main case,
T Kalaiselvan
Advocate, Vellore
13883 Answers
127 Consultations
5.0 on 5.0
You can apply for and obtain anticipatory bail in the event of registration of FIR against you. 
Ashish Davessar
Advocate, Jaipur
18049 Answers
444 Consultations
5.0 on 5.0
1)you can file case of divorce against your wife if you so desire 

2) only after FIR is filed against you can you obtain Anticipatory bail from sessions court
Ajay Sethi
Advocate, Mumbai
23079 Answers
1212 Consultations
5.0 on 5.0
No an anticipatory bail is granted only when there is an FIR, so don't come to India don't file any case it will add more tension on your life card. 

It is suggested file a divorce in Australia (yes even if that's experts order) it is valid in Australia and valid till challenged here in India. So at least if you do not come back ....legally you have an ex party divorce degree and you can marry. 


Best of luck
 
Atulay Nehra
Advocate, Noida
423 Answers
15 Consultations
4.7 on 5.0
1. First of all refrain from getting stressed since it will be of no use to get stressed.

2. What legal action do you think can be initiated against you by your wife? Are you anticipation complaint against 498A of IPC?

3. If yes, file a police complaint from Australia against her alleging her cruelty on you.

4. Try to ensure that the information about your arrival is kept secret as far as possible and as much as possible.

5,. If by chance she files the 498A case, contest it fittingly.

4. As per Supreme court order , there will be no arrest against wife;s police complaints without making an investigation in to the complaint.
Krishna Kishore Ganguly
Advocate, Kolkata
12027 Answers
226 Consultations
5.0 on 5.0
If you apprehend any false criminal case s likely to be filed against you, then you may contact your advocate to obtain anticipatory bail to avoid arrest during your visit to India.
T Kalaiselvan
Advocate, Vellore
13883 Answers
127 Consultations
5.0 on 5.0

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