• Regarding Mutual consent divorce in India

Hi All,

I am currently staying in USA and my wife is in Bangalore. We both have decided to go for mutual consent divorce. Since I am staying in USA, I have decided to file divorce in USA to which my wife has also agreed.
Even though my wife has agreed to file for divorce in USA, I would like to make sure in future I don't get into any trouble once I land in India or I plan to remarry in India.

Could you please advise as to what all documents my lawyer needs to prepare and get agreed from my wife and her lawyer(Accepted by Indian law as well) which I can submit for filing which will ensure I do not land into any trouble in future  and makes my case full proof.

Appreciate early response. Thank you.
Asked 1 year ago in Family Law from United States
Religion: Hindu
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.If his wife has accepted the authority of US court, it cannot be open to her to later question the authority of the US court.

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.The better you should file a divorce in India.

Divorce by Mutual Consent is the easiest way to get a divorce, in this both parties work out their terms on which they agree to part ways- file petition in the court, which is finalised in 6 months. Steps in Court Procedure (13 B)

In all there are two court appearances in a mutual divorce
1.	First A joint petition signed by both parties is filed in court. Secondly In the first motion statement of both parties are recorded and then signed on paper before the Honourable Court.
2.	Thirdly The 6 month period is given for reconciliation, (the honourable court gives a chance to the couple to change their mind)
3.	Fourthly 6 months after the first motion or at the end of the reconcile period if both parties still don't agree to come together. Then the parties may appear for the second motion for the final hearing.
4.	Divorce decree will be granted as the Honourable Court may deem fit.

Formalities to be complied with
(a) A petition is to be presented jointly by the parties to the marriage.

(b) The parties have been living separately for a period not less than one year. It is doubtful whether it was intended by the legislators that the parties have lived separately by mutual consent or by force of circumstances or situation.

But it does not seem necessary for the court to go into that matter provided the condition of separate living under the same roof of matrimonial home or in separate residence by the parties is satisfied. Unless the consent of any of the parties to such petition is vitiated by coercion, fraud or undue influence, the court ought not travel beyond the statutory condition of its jurisdiction.

(c) The parties have failed for any reason whatsoever to live together. In other' words, no reconciliation or adjustment is possible between them.

(d) The parties have freely consented to the agreement of dissolution of marriage. 
Ajay N S
Advocate, Ernakulam
2756 Answers
44 Consultations

5.0 on 5.0

1) since your wife is agreeable for divorce by mutual consent better option is to file for divorce in india 

2) lawyer can drfat petition for divorce by mutual consent . send it to you for your signatures . it should be attested before indian consulate 

2) you need not remain personally present and can execute POA in favour of family member .

3) your virtual presence through skype would be sufficent to convey your consent . mutual consent divorce would take around 6 months in India 

4) if you want to file divorce in USA on summons served to her your wife should in reply mention that she has no objection to divorce being granted . she should particpate in divorce proceedings . divorce decree would be valid in India 
Ajay Sethi
Advocate, Mumbai
44377 Answers
2577 Consultations

5.0 on 5.0

1. The divorce is USA in many circumstances is not recognised in India.
2.Even if it is mutual divorce to avoid future complications I would strongly recommend you to apply for the same in India only.
3. For mutual divorce in India apart from marriage certificate and respective passport size photographs no other document is required.
4. It is not so complicated in India. You can send the signed petition sitting in USA to India. Only after six months when the case would be finally heard pay visit to the court only once.
Devajyoti Barman
Advocate, Kolkata
12538 Answers
161 Consultations

5.0 on 5.0

Dear Concerned, 

Yes you can file divorce in USA as well however your wife should give a reply to the summons received in India and her appearing should be recorded. Once her appearing are recorded the Decree of divorce by mutual consent will be valid in India as well. 

Your lawyer need to prepare the divorce petition along with all supported documents (any settlement or understanding b/w you both) and once the signatures and affidavits of both are enclosed, the petition can be filed, 

Note : for a decree from USA your wife's participation / appearing is important to consider the decree valid.

Best of Luck 

Atulay Nehra
Advocate, Noida
1001 Answers
33 Consultations

4.7 on 5.0

Since you are going to apply for dissolution of marriage your US lawyer alone can tell what documents are to be prepared. In so far as Indian law is concerned the decree of divorce passed by the US court will be valid in India if it is a consent based decree. If your spouse with her free consent participates in the divorce proceedings in the US court she cannot subsequently challenge it in India.
Ashish Davessar
Advocate, Jaipur
22966 Answers
631 Consultations

5.0 on 5.0

1. No-Fault Divorce petition jointly filed by both of you or filed by you and agreed by you wife through her lawyer while submitting before the USA court is considered as similar to what is called mutual consent divorce in India.

2. Both of you shall have to get the said decree of divorce passed by the foreign court validated by the local District Judge in India by filing an application.

3. After the said foreign decree of divorce is validated by the Indian Court it becomes enforceable in India and both of you can remarry.
Krishna Kishore Ganguly
Advocate, Kolkata
18161 Answers
438 Consultations

5.0 on 5.0

A divorce by mutual consent in US is very much valid in India too.

The documents required for divorce in US will be let known by US lawyer.

Dont make any agreement here in India in this regard with her.

There is a standard format for post nuptial agreement in US.

That agreement will cover all the aspects which would suffice the entire process. 
T Kalaiselvan
Advocate, Vellore
34540 Answers
372 Consultations

5.0 on 5.0

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