• Understanding divorce rules for non-Indian

My wife and I were born & married in India. After 12 years of marriage and having 2 kids she fell in love with someone in 2010 before we moved to Canada. I tried to make things workout for six years when I was in Canada but didn't realize that she was cheating and waiting for citizenship. Once she got citizenship she has decided to move with partner she wants to be with. She dosen't want responsibilities of kids aswell. Although having education never worked knowingly to keep her income very low making excuse of weather condition.   Before leaving from Canada she has decided to divorce and give full custody of kids. She had discussed with lawyer and decided on all matters and has mutually signed joint separation cum divorce agreement with all financial matter. But after moving to India she has started cohabiting with new partner and now decided to work with lawyer in India asking for more property share then decided mutually agreed arrangement. I have following question

1) Can she file petition in India and serve to my mother when I am not present? My mother who wants to come to Canada to help support kids can her lawyer stop her from travelling out of country by any type of law?
2)  I am not in India can I hire any lawyer to fight my case against her lawyer. What are steps to divorce partner with some guideline for timing to receive divorce
3) Knowing that she had cheated for several years and never worked enough knowingly what are my options and what would be needed to prove if I try to fight that case
4) What is my spouse's legal rights to receive considering she cheated, desert the family, do not want to take responsibility of kids. Especially my property in India and Canada, my retirement fund in Canada, my parental property, bank balance, savings funds.
5) Knowing now she has turned  greedy can I file divorce in Canada without her consent. I am ready to fulfill all obligation we decided in separation agreement. What are her choices if I get divorce. Can she challenge in Indian court and revert the decision on property distribution, alimony, etc.
6) Is she eligible for alimony and what is formula court in India use to account for alimony. What are her other rights?
4)
Asked 30 days ago in Family Law from United States
Religion: Hindu
1) I presume divorce decree has not been granted by Canadian  courts on basis of agreement

2) if no divorce decree passed she can file petition on Indian courts for divorce or RCR 

3) summons have to be served to you and not your mother 

4) as on date your mother can travel abroad as no orders passed by courts restraining her from travelling abroad 

5) in case any false dowry harassment case is filed against her court may impose restrictions on her traveling abroad 

6) you can engage a lawyer to fight your case but you will have ti come to India during trial 

7) contested divorce proceedings take 5 years to be disposed of 

8) wife has no rights on husband property inindia 

9) if you are able to prove allegations of adultery wife would not get any alimony 

10) you can file for divorce in Canada but if wife does not participate in divorce proceedings divorce decree would not be valid in India 
Ajay Sethi
Advocate, Mumbai
23328 Answers
1220 Consultations
5.0 on 5.0
1. Yes, she can file such case in India unless the arrangement she made with you in Canada were done through the legal process in Canada.
2. Yes, you can hire an advocate in India to represent you in India. Give your mother POA ti sign on your behalf.
3. Without seeing the contents of her petitions it is difficult to advise on your defence. You can anyway deny the allegations and produce counter evidence if you have any.
4. Her prospect to get maintenance is very bleak if your case is properly handled. The wife has though no right of share in the proeprty of husband in India.
5. Yes you can file divorce suit in Canada.
6. same as above.
Devajyoti Barman
Advocate, Kolkata
5239 Answers
54 Consultations
4.9 on 5.0
1) if property is in joint names she would be co owner of the properties. 

2) you will have to file declaratory suit that you are absolute owner of the properties as full consideration was paid by you 

3) her chat messages , emails , audio recordings would be admissible in evidence to prove adultery 

4) summons can be served by post at your residential address abroad 

5) you cannot stop wife from filing divorce petition in India . she has tto prove her allegations made ion divorce petition 
Ajay Sethi
Advocate, Mumbai
23328 Answers
1220 Consultations
5.0 on 5.0
1.  She can file a dowry harassment complaint before the local police implicating, inter alia,  your mother and in such case, the police may after receiving strong evidence pray for seizure of her passport complaining that she is trying to escape the clutches of Indian Court after having committed the alleged crime.

2.You can certainly (you shall have to) engage a local lawyer to defend yourself and your family members. After receiving the copy of the plaint for the divorce, you shall have to submit your opposition and after that both side shall submit evidence and the case may linger for 2 to 4 years.

3.Your first step should be to lodge a police complaint against her paramour bringing the charge of adultery and once such charge is proved, he will go to jail and you shall get the divorce easily without having to pay any alimony. This is the most appropriate step for you under the given circumstances.

4. If it is proved that she is in adulterous relationship with another person, she will not be entitled to any alimony. Otherwise she will be entitled to an amount anything in between 1/5th to 1/3rd of your net monthly earning multiplied by PPP index (purchasing power parity between India and Canada). the amount will be decided by the Court.

5. Foreign decree of contested divorce is not valid in India. You shall have to file a divorce suit in India. As per Indian Law, wife has no claim on her husband's properties during his life time. she can claim maintenance/compensation only.

6. If you can prove her staying/living with her paramour in India, her paramour will be arrested and she will loose her right to claim alimony/maintenance.
Krishna Kishore Ganguly
Advocate, Kolkata
12131 Answers
233 Consultations
5.0 on 5.0
1. She is already 50% owner of the said property. You shall have to file a declaratory suit praying for a declaration that the entire property actually belongs to you since you have paid the entire consideration while she is not capable of paying any part of the consideration also praying for a direction upon the Registrar to cancel her name from the records substituting  with your name.

2.To prove adultery, you shall have to prove that she has been establishing physical relationship with her paramour. An evidence that she is living together with that person also will suffice for the purpose.

3. Contested divorce takes around 2 to 4 years whereas mutual consent divorce will take around 6 & 1/2 months from the date of its filing.

4. She can serve a notice at your foreign address. On receipt of the notice, you shall have to hire a local lawyer to defend you.

5. You can not stop anybody in lodging complaint or seeking judicial intervention by filing a suit against you.

Krishna Kishore Ganguly
Advocate, Kolkata
12131 Answers
233 Consultations
5.0 on 5.0
Dear Querist
My opinion on your queries are as under:

1) Can she file petition in India and serve to my mother when I am not present? My mother who wants to come to Canada to help support kids can her lawyer stop her from travelling out of country by any type of law?
Opinion: if she filed any petition then she has to mention in her petition about your current address and the court will issue summon to you at your address and forcefully or knowingly nobody can serve summon to your mother on behalf of you.
secondly, nobody can stop your mother to visit you.

2)  I am not in India can I hire any lawyer to fight my case against her lawyer. What are steps to divorce partner with some guideline for timing to receive divorce
Opinion; If the divorce was granted by the court based on that agreement then this divorce will be valid in India until and unless it is proved that due to pressure she signed that agreement. you may engaged a lawyer and take his/her service as per his/her expertise.
  
3) Knowing that she had cheated for several years and never worked enough knowingly what are my options and what would be needed to prove if I try to fight that case
Opinion: Its depend on the case, which type of the case she filed against you and your family.

4) What is my spouse's legal rights to receive considering she cheated, desert the family, do not want to take responsibility of kids. Especially my property in India and Canada, my retirement fund in Canada, my parental property, bank balance, savings funds.
Opinion: Only maintenance and right to residence she can claim if she is unable to maintain herself.

5) Knowing now she has turned  greedy can I file divorce in Canada without her consent. I am ready to fulfill all obligation we decided in separation agreement. What are her choices if I get divorce. Can she challenge in Indian court and revert the decision on property distribution, alimony, etc.
Opinion; yes, she can challenge the divorce order passed by Canadian Court in her absence and against the Hindu marriage Act-1955.

6) Is she eligible for alimony and what is formula court in India use to account for alimony. What are her other rights?
Opinion: As per her ability/capability, if she is unable to maintain herself then she can claim alimony or maintenance otherwise not.

8) wife has no rights on husband property in India : So although two properties that I have has joint name of my and her she has no right on my property because it was from my income and she never paid anything in property.
Opinion; if the property is in name too then she can claim her share in those property as a husband you gifted or due to love and affection you mentioned her name in the properties.
 
 9) if you are able to prove allegations of adultery wife would not get any alimony: On adultery I have some audio and chat messages clearly showing her intention to move with her lover while she was staying with me. Does that count as enough proof towards adultery.
Opinion: Intention is not an offence, you have to prove that she had sex with that person and if there is only intention or conversation then adultery can not be proved.

11) What are steps to divorce partner ( Petetion -> ______ - >_____-> Divorce) with some guideline for timing to receive uncontested divorce
Opinion: Mutual consent divorce is the only way to get divorce without any tension.

12) If she files for petition in India, can she send it to me by post to consider it delivered. Also is only hiring a lawyer my option she files petition.
Opinion: after filing the divorce petition before the court, the court will issue a summon to you by process server, speed post/registered post or through embassy.

13) Can I stop her filing petition because my son is preparing for university next 2 year and crucial stage of career  and with no one to take care of him I cannot travel without disturbing his study because even if my mom comes to US she cannot manage driving and managing home.
Opinion: No, you can not stop her for filing the petition by any reason, it is her legal right and nobody can interfere in the legal or fundamental rights of another person.

Feel Free to Call
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
4.9 on 5.0
1) Can she file petition in India and serve to my mother when I am not present? My mother who wants to come to Canada to help support kids can her lawyer stop her from travelling out of country by any type of law?

If she has decided to trouble your mother in order to  put pressure on her to claim property or share she may adopt such cheap activities on the ill advise of evil elements surrounding her. However her lawyer nor the court can restrict your mother from travelling abroad without any criminal case pending against her. Neither she nor her lawyer can even move court asking the court to restrict her fro travelling abroad.






2)  I am not in India can I hire any lawyer to fight my case against her lawyer. What are steps to divorce partner with some guideline for timing to receive divorce

If your marriage was dissolved by a decree of divorce on the grounds of mutual consent at Canada, you need not apply for divorce again in India and she too cannot challenge the same in India because she consented for this divorce already.
You can engage a lawyer in India for defending your interests but not to fight against her lawyer because her lawyer is doing his own duty in the interest of his client.
So there cannot be any grievance against her lawyer. 





3) Knowing that she had cheated for several years and never worked enough knowingly what are my options and what would be needed to prove if I try to fight that case

Since she has severed the ties and got divorced, what else is the solution you require anymore now.  The cheating of this type is not an offence at this stage.  Adultery is an offence during the subsistence of your marriage that too against the adulterer only and not against your wife.


 


4) What is my spouse's legal rights to receive considering she cheated, desert the family, do not want to take responsibility of kids. Especially my property in India and Canada, my retirement fund in Canada, my parental property, bank balance, savings funds.

The property in Canada as well as in India have been properly arranged by an agreement at the time of divorce, she cannot claim anything beyond that,.
You can repudiate any claim beyond the agreed terms.





5) Knowing now she has turned  greedy can I file divorce in Canada without her consent. I am ready to fulfill all obligation we decided in separation agreement. What are her choices if I get divorce. Can she challenge in Indian court and revert the decision on property distribution, alimony, etc.

If the marriage has not been dissolved yet in Canada then you may apply for it on the basis of the divorce agreement and can express that you are willing to fulfill the conditions as agreed between both.Since she has already expressed her willingness for mutual consent divorce, you can apply for the same in her absence too, the court may pass judgment on that basis itself which will be beneficial to you because it is very much valid in India. She cannot challenge the same in India since she has already given her consent before leaving Canada for India.




6) Is she eligible for alimony and what is formula court in India use to account for alimony. What are her other rights?

The answer given in the previous question answers this too.  She cannot claim any rights or alimony once the matter has been settled and she has agreed in writing for the same.  Her claim may not be maintainable. 
T Kalaiselvan
Advocate, Vellore
14138 Answers
127 Consultations
5.0 on 5.0
8) wife has no rights on husband property in India : So although two properties that I have has joint name of my and her she has no right on my property because it was from my income and she never paid anything in property. 

She has her rights in the jointly owned property though the fact may be that you only funded for the purchase of the property, do not be under wrong notion that she cannot claim, she can very well file a partition suit claiming her half share in each of the properties that she is a joint owner. 
In fact you cannot sell the property without her consent or knowledge, it will be considered as forgery, cheating and illegal act also it can be considered as an invalid transaction.





9) if you are able to prove allegations of adultery wife would not get any alimony: On adultery I have some audio and chat messages clearly showing her intention to move with her lover while she was staying with me. Does that count as enough proof towards adultery

These cannot constitute as valid and admissible evidences to prove adultery.
It may even backfire with a defamation case against you if you cannot prove it.





11) What are steps to divorce partner ( Petetion -> ______ - >_____-> Divorce) with some guideline for timing to receive uncontested divorce

There is no such thing called uncontested divorce.  Better you may apply for divorce in Canada itself which would beneficial to you. 




12) If she files for petition in India, can she send it to me by post to consider it delivered. Also is only hiring a lawyer my option she files petition

Since she is knowing your address she may try to serve the summons to your foreign address  and once it is served and you are not appearing before the court, then you may be set exparte and a judgment would be passed in your absence. 






13) Can I stop her filing petition because my son is preparing for university next 2 year and crucial stage of career  and with no one to take care of him I cannot travel without disturbing his study because even if my mom comes to US she cannot manage driving and managing home

You cannot stop anyone from doing any particular thing, you can challenge it or leave it to become exparte
T Kalaiselvan
Advocate, Vellore
14138 Answers
127 Consultations
5.0 on 5.0
1.If she is a citizen of India or was a citizen of India at the time of her marriage with you she can file for dissolution of matrimony in India but the summons has to be served on you not your mother. 

2. Your mother cannot be stopped from travelling outside India as she is not a criminal.

3. You are free to engage any lawyer in India for your defence.

4. Under the present Indian law a wife has no share in the property of her husband much less in-laws. She, however, has the right to residence in the property of her husband,

5. She can claim maintenance from you if she is not self-sufficient. Ordinarily, the courts award 1/3rd of husband's net monthly salary as maintenance, but if you can repel her allegations then she may not get a penny.

6. The decree of divorce granted by the Canadian court can be challenged by your wife in India which can set it aside and declare it as illegal, which will open the floodgates of another round of protracted litigation for you in India. So it may make sense to file it in India.


Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
5.0 on 5.0
1. Her right in joint properties is limited to her share, whereas she cannot claim a part of your share.

2. You should be prepared to wait for 1-2 years if you file for divorce in India.

3. If she files a petition against you in India it will be served to you through Indian Embassy.

4. You cannot stop her from filing the petition. 
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
5.0 on 5.0

Ask a Lawyer

Get legal answers from top-rated lawyers in 1 hour. It's quick, easy, and anonymous!
Ask a Lawyer

Family Lawyers

T Kalaiselvan
Advocate, Vellore
14138 Answers
127 Consultations
5.0 on 5.0
Ajay Sethi
Advocate, Mumbai
23328 Answers
1220 Consultations
5.0 on 5.0
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
5.0 on 5.0
Krishna Kishore Ganguly
Advocate, Kolkata
12131 Answers
233 Consultations
5.0 on 5.0
Devajyoti Barman
Advocate, Kolkata
5239 Answers
54 Consultations
4.9 on 5.0
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
4.9 on 5.0
Atulay Nehra
Advocate, Noida
441 Answers
15 Consultations
4.7 on 5.0
Rajgopalan Sripathi
Advocate, Hyderabad
873 Answers
43 Consultations
5.0 on 5.0
Shivendra Pratap Singh
Advocate, Lucknow
2760 Answers
41 Consultations
4.9 on 5.0
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0