Hello team, My case is rather peculiar, I got married under special marriage act ( me being Muslim and my wife a hindu ( in india in April 2013 after which my wife moved to UAE in July 2013 , during this period she was staying with her parents since they were not aware of the marriage. I joined her in July 2014 in UAE after finally securing a job...even after I relocated my wife stayed at her company accommodation till Dec 2014 on some or the other pretext and then went to USA on 1st January 2015 on the pretext of a one month training and never came back atleast not to UAE. I requested her for divorce but she says she cannot travel to india since she is now an illegal immigrant having overstayed her 06 months travel visa . She's ready to give divorce by mutual consent but can't travel to india. What are my options ? Is there a way I can get divorce by mutual consent without she being present ?
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1) your wife personal presence is not necessary
2) she canexecute POA in favour of family member have it attested before Indian consulate
3) you can file for divorce by mutual consent in India
4) wife can convey her consent through skype during counselling
5) her virtual presence should suffice
6) mutual consent divorce would take around 6 months
1. First file a suit for contested divorce in India. If she also wants divorce then she must refuse to attend the case.
2. Once the court satisfies that your wife in spite of service of summons is absent the court can proceed ex parte and grant ex parte divorce.
3. Do not go for mutual divorce on the basis of power of attorney she may give to her parents to represent her in court as courts without physical presence of party doesn't allow mutual divorce.
If she cannot travel to India then she may execute a GPA in favour of a blood relative to authorize him to file for mutual consent divorce for and on her behalf. The said agent can engage a lawyer on her behalf and appear in the court for and on her behalf.
1. No. You can not get mutual consent divorce without her being present in India.
2. You both shall have to jointly file the MCD petition before the local Court in India and after around 6 & 1/2 months of cooling period, both of you shall have to appear before the Court to confirm that you still want the divorce.
3. On hearing the same from both of you, the Court will issue the decree of divorce as prayed by both of you.
4. So, you can not get MCD if one of you fail to appear before the Court during the 2nd motion.
I See a lot of conflicting answers ranging from it is possible to have video conferencing to its not possible at all without physical presence, one of the lawyer i spoke to mentioned that i can have an agreement executed wherein she will convey her consent and get it attested by Indian consulate in US which then will be registered with a registrar, is this right because it seems to me the fastest way of getting it done??
There are number of judgments that personal presence of parties is not necessary in divorce by mutual consent
2) virtual presence is sufficient
3) she can execute POA in favour of family member to attend court on her behalf
The option you have mentioned in subsequent queries have absolutely no basis in India nor court is going to pass decree of mutual divorce on this.
I stick to advice given earlier.
1. For MCD, physical presence during the 2nd motion is a must.
2. So, with out the presence of your wife before the Court on the final day being the day of the 2nd motion, you shall not get decree of divorce against the MCD petition filed by both of you.
Video Conferencing is not permitted in such cases. As I said before, she can execute a GPA in favour of a blood relative in India and have it attested it in Indian Consulate and once it is registered in India the agent can file for divorce on her behalf.
I requested her for divorce but she says she cannot travel to india since she is now an illegal immigrant having overstayed her 06 months travel visa . She's ready to give divorce by mutual consent but can't travel to india. What are my options ? Is there a way I can get divorce by mutual consent without she being present ?
If she is willing to give mutual consent divorce then for the present she may execute a power of attorney deed in favor of someone close to her in India and get it duly attested by a Notary of that country of by an officer of the Indian Embassy.
The said POA agent can sign the papers on her behalf and the joint petition can be submitted for first motion, but she has to be present for the second motion before the court to confirm her decision.
If the court permits for video conferencing confirmation during the second motion this option can be availed without she having to visit India.
I See a lot of conflicting answers ranging from it is possible to have video conferencing to its not possible at all without physical presence, one of the lawyer i spoke to mentioned that i can have an agreement executed wherein she will convey her consent and get it attested by Indian consulate in US which then will be registered with a registrar, is this right because it seems to me the fastest way of getting it done??
What you have heard has either been misinterpreted by you or incorrect.
The POA deed alone can be attested by a Notary in the foreign country which would authorise her agent to sign the divorce papers on her behalf.
As a matter of fact if you feel that this is not possible you may file a contested divorce and send the summons to her address, if the summons are not received by continuously for three times then as per the procedures on further issues, the court may set her exparte and you will get an exparte divorce judgment, which will be more faster than any other mode.