Confusion on two opinions of 2 lawyers on betrayal and adultery
Sandbpunekar
(Querist) 24 October 2016
This query is : Resolved
Case is referred 26 days ago under Betrayal Adultery and Divorce subject. 2 lawyers were contacted who gave different opinion.Hence confused.
1.Husband wants to get divorce in India while she was ready to comeback in India. Now she is not willing to comeback to India. If wife get separated in USA being greencard holder she can file divorce case there which means 50% loss on life long earning of husband and in all tangible and non tangible assets which will go in hands of wife for ever. More over some false criminal charges husband may face.
Lawyer one opined to submit adultery case against her lover.(Criminal charge for adultery is not provided against women in law hence against lover). Also file Divorce case in India. If she comes to India then it will be easy to send summons to wife. Summons can be sent in USA. If she accept for MCD then it will be easy to settle the case. He also suggested to give POA to relative of Husband duly attested by USA Consulate who will sign for submission of case of divorce and adultery in India. As such Husband is not required to present in India for submission of case. He may be required to come in court for 1 or 2 times.It is to be added that Lawyer one has suggested for anticipatory bail case to be submitted in India by Husband through POA holder as a precautionery measure. This can be filed by POA.
2. Lawyer two said first send Lawyer's notice to wife by email or courier in USA directly and not through consulate stating adultery revealed and prepare for MCD in India. If she does not accept, Husband has to come to India for submission of divorce case. Advocate said wife can be sued for adultery case in India and once divorce case under HMA and adultery case is filed in India, USA court can not continue same cases there on same grounds. If wife is ready for MCD then both are required to be present physically for submission of divorce case. Advocate advised not to file adultery case against Lover of wife if she is ready for MCD.There is no necessity of anticipatory bail as wife can not find any criminal evidence against Husband.
MCD will not be accepted by wife when she has powerful rights in USA
It is confused matter, who is wrong and right. Can one identify best lawyers in Pune who are knowledgeable & experienced in NRI divorce and adultery cases. On internet no such information is available. Can any one guide and help.
Sandbpunekar
(Querist) 24 October 2016
It is to be added that Lawyer one has suggested for anticipatory bail case to be submitted in India by Husband through POA holder.
MCD will not be accepted by wife when she has powerful rights in USA.
Rajendra K Goyal
(Expert) 25 October 2016
How are you concerned with the query?
Is it a moot court problem or actual?
Are you in India or in USA at present?
Rajendra K Goyal
(Expert) 25 October 2016
You said:
Now she is not willing to comeback to India.
Reply:
She is green card holder, there seems no reason why she should return.
You said:
If wife get separated in USA being greencard holder she can file divorce case there which means 50% loss on life long earning of husband and in all tangible and non tangible assets which will go in hands of wife for ever. More over some false criminal charges husband may face.
Reply:
You have not mentioned when marriage took place and where?
In USA She is entitled for only 50% of the asset earned during present marriage and not of full life, You would be in a better position if you arrive at consent divorce there rather to file case in India.
Rajendra K Goyal
(Expert) 25 October 2016
You said:
Lawyer one opined to submit adultery case against her lover.(Criminal charge for adultery is not provided against women in law hence against lover). Also file Divorce case in India. If she comes to India then it will be easy to send summons to wife. Summons can be sent in USA.
Reply:
Where the adultery occurred?
From where the lover belong India or USA?
Whether lover is a green card holder /citizen of USA or of / in India?
Are you able to prove charges against him through concrete evidences?
Have you asked your lawyer whether criminal case can be filed in India, if crime took place in USA on a green card holder of that country by a person of that country?
Rajendra K Goyal
(Expert) 25 October 2016
You said:
If she accept for MCD then it will be easy to settle the case.
Reply:
There is no reason, why she should accept MCD in India when she can get better amount in USA for divorce.
You said:
He also suggested to give POA to relative of Husband duly attested by USA Consulate who will sign for submission of case of divorce and adultery in India.
Reply:
POA can be given for limited purpose, you may have to present if court order.
Rajendra K Goyal
(Expert) 25 October 2016
You said:
As such Husband is not required to present in India for submission of case. He may be required to come in court for 1 or 2 times.It is to be added that Lawyer one has suggested for anticipatory bail case to be submitted in India by Husband through POA holder as a precautionery measure. This can be filed by POA.
Reply:
No case has been filed by her in India, it is too early to proceed for AB.
Rajendra K Goyal
(Expert) 25 October 2016
You said:
Lawyer two said first send Lawyer's notice to wife by email or courier in USA directly and not through consulate stating adultery revealed and prepare for MCD in India. If she does not accept, Husband has to come to India for submission of divorce case.
Reply:
Better take second opinion.
You said:
Advocate said wife can be sued for adultery case in India and once divorce case under HMA and adultery case is filed in India, USA court can not continue same cases there on same grounds.
Reply:
Cannot agree in the given circumstances that criminal case can be started in India for a crime occurred in USA when accused and victim are living / were in USA from long time?
USA court can proceed with the divorce case, if filed in accordance with the state law of the state in which they are living. In USA, it is allowed in most of the states that divorce case can be filed there if couple is living in that state / jurisdiction of court from last 6 months or so as time fixed by the respective state. They may not be concerned with the divorce proceedings in India, till final divorce decree from India is produced before divorce allowed by them.
Rajendra K Goyal
(Expert) 25 October 2016
You said:
If wife is ready for MCD then both are required to be present physically for submission of divorce case. Advocate advised not to file adultery case against Lover of wife if she is ready for MCD.There is no necessity of anticipatory bail as wife can not find any criminal evidence against Husband.
MCD will not be accepted by wife when she has powerful rights in USA
Reply:
If MCD in India is not accepted, opined to file consent divorce / contested divorce in USA. You have to part with considerable saving, but mental fatigue / time can be saved a lot. In USA contested divorce may be decided in 1-2 years and if property distribution agreed between both, it would end in a year or before.
Sandbpunekar
(Querist) 25 October 2016
Many2 Thanx to Mr. Rajendra K Goyal for giving valuable guidance and for deep interest taken in this live case.
The couple is green card holder and not citizen. They r still Indian Citizen. They married 11 yrs back in Maharashtra under HMA having kids of age 10 and 3 yrs living in USA. Adultery took place in USA in her city of resident by Indian resident lover of other USA state who came in contact through social media. About this details are given in original post subject Betrayal , adultery and divorce 27 days ago and then two advocates were consulted.
Name and address of Lover could be traced through internet but his all details could not be found as he resides in other state and stays far long. Lover has two kids and wife with him. Personally not followed for contact.Husband feels pain and loves his wife and still wants to continue marriage with wife and wants to forget her deeds. But she already involved by heart with lover and continue to contact on email etc. It is not clear whether lover will accept her as second wife. What r reaction at lover's home r not known.
Possibility of wife coming back to India is there when parent of wife will know the case and they all may decide thereafter how to handle the case and give backing to daughter. Hence, husband has delayed to communicate the adultery to her parents. There are both possibilities that they may accept MCD in India or they may be aggressive. Of course, parent will first bother about security, safety of daughter and then about action. Husband is in confused and painful stage.
Rajendra K Goyal
(Expert) 26 October 2016
It is advisable to go for divorce in USA. Divorce there is no cause, you can file divorce, you would get, no reason need to be mentioned. Yes, you have to pay her a considerable amount as alimony and have to spare a lot of money for your children for their education and expenses. There are possibilities, she may get negligible amount after very heavy counsel fee, litigation fee etc.
In India it is very tough to find and prove reason for divorce.
Guest
(Expert) 26 October 2016
Case does not seem to belong to you? Both the opinions seems to be of yours own, being in confusion to solve some academic query.
Please clarify, whose husband and whose wife?
Background of the case may also be discussed, how betrayal and adultery is considered by you and your lawyers?
Sandbpunekar
(Querist) 26 October 2016
Thanks to Mr.PS Dhingraji and Mr. Rajendra K Goyal for raising queries and for granting help/guidance. The case was posted 28 days ago which is live case and facts are as under. It is not a hypothetical case but is a live one. The case and confusion, questions and queries may be used by any person for academic use. For which this website is helpful. Being my relative suferer, I am gathering valuable guidance. It is a fact that two advocates from Pune were contacted and then above said confusion arose. Both the spouse are in tremendous pressure which any one can realise. Destruction of family, kids problems and loosing them by one spouse, financial stake etc. they will face. Hence, requesting all of you belive in this live case.
Relative from maharashtra married in Maharashtra before 11yrs having 2 kids below 10 yrs. residing in USA with greencards and both r Indian citizen. By birth kids are USA Citizens. Wife fell in love with other Indian non resident man in USA. Social Media chats, email and note r available. Nude photos exchanged thru social media and mobile back up available and she accepted physical relation verbally/ and recorded. After disclosure and questions with her, Husband Wife both r in frustation & shock. She ask to send her to Maharashtra to parents home. She resigned work.Their marriage is not compatable to continue now. After sending wife to India with kids he wants mutual divorce and if not agreed question remain outstanding. Yet both have not disclosed the fact to their parents. She also do not want to continue marriage under guilt.
1. What precautionery steps he should take for filing divorce and before leaving USA. And precautions after she reaches India.
2. Will adultery and cyber laws against her will impact for denying alimony. lover and she has made adultery and hundreds of photos are exchanged through social media in their account but not public.
3. Can it be condition that Husband is ready to give alimony for her subsistence till she is not employed and deny after she gets employment. For kids he is ready to give.
4. Can he avoid criminal allegation if she is ready for accepting non grant of allimony after her employment written in MCD. (Mutual consent divorce)
5.Can she use sec 498 & 125 in India against Husband.
6. As per USA laws she is entitled to get 50% of sale proceed of mortgage property in both name which may fetch substantial amount after sale as her share during pendancy of divorce case in India/USA. Will court consider this amount while giving relief in alimony.
Any more suggestions?.
Above facts are repeated again and there after Mr.R K Goyalji has given guidance when post about Confusion on opinion of two advocates are posted.
Possiblility of wife coming back to India is more as said earlier in above trail of posts. Her mental status is reported collapsed and she is not in a position to take wise decision alone there without support. It is also not possible for her to stay independently in USA due to no earning by her in USA.
I hope facts are made more clear.
Sandbpunekar
(Querist) 26 October 2016
It is a badluck that I could not find on internet the profiles of advocates in Pune who have experienced in NRI (USA) Divorce and adultery cases. If anyone knows such options/ sites ,pls post.
Guest
(Expert) 26 October 2016
Mr. Sandbpunekar,
In such a case, replies to casual queries of a third person may not be of any help. Ask your relative to come to India, get all the documentary evidence examined in detail by some capable lawyer in his home town, discuss in detail and act accordingly.
Don't forget, except in video conferencing system, a lot of communication gaps are likely to happen in a triangular consultations between your relative, you and the advocates, which may harm his own interest unless he listens properly and act as per advice of his own lawyer.
I don't understand, what is the difficulty for your relative of USA to visit India for the purpose of divorce case at initial stages of consultation, if he can't afford to attend hearings during trial?
However, if he feels any problem to visit India, you may arrange video conferencing for him with some capable lawyer to make him fully understand the strategy to be adopted.
Guest
(Expert) 26 October 2016
You may go to the nearest court or contact the bar association at Pune to find the lawyers.
Sandbpunekar
(Querist) 27 October 2016
Dhingraji , Thanx.
It seems that both spouse may come soon to India and legal matter will be consulted. We have already consulted 2 advocates but expert experienced in NRI Adultery case could not be found with reference. It is difficult to ask such requirement of advocate in bar council or court. We will be a layman there and no body holds such specialised information.Names could be referred there but difficult to get advocate's real profile.
Any how we have to find out an advocate when he visits India.
Sandbpunekar
(Querist) 27 October 2016
Dhingraji , Thanx.
It seems that both spouse may come soon to India and legal matter will be consulted. We have already consulted 2 advocates but expert experienced in NRI Adultery case could not be found with reference. It is difficult to ask such requirement of advocate in bar council or court. We will be a layman there and no body holds such specialised information.Names could be referred there but difficult to get advocate's real profile.
Any how we have to find out an advocate when he visits India
Guest
(Expert) 27 October 2016
You are welcome.
But one thing is not understood. When both the spouse are holding green card, what is the difficulty in getting divorce under US law? It would be rather more easy to get divorce through US courts than in Indian courts.
Rajendra K Goyal
(Expert) 27 October 2016
I second the suggestion from expert P.S. Dhingra.
The author may be of the opinion that in India the process would be easy / without trouble / fast but the situation is altogether different. If they agree for MCD, the goal can be achieved.
Agree India is cheaper in litigation compared to US, if counted in Indian currency. Result in US are earlier. There demanding party in not required to quote and prove reason for divorce.
