Divorce from abroad

Mr. Vikas i have been following your post since couple of days until i read your latest comments. It's obvious that you wanted your sister's husband to come india so that you can snatch his passport. I assume The term "Settlement" means that you need money. Mr. Tajobs is right EU countries has child abduction laws and he can seek divorce under this grounds. If you want to stop him you will have to hire lawyer in ireland itself.

It would be difficult to bring him to india and then proceed in court. I would suggest resolve this issue by talking with him directly.......filing unnecessary cases in indian courts will make no sense until her husband comes india.

Hi, 

He knows that its next to impossible for us to hire any irish lawyer and thats the reason he is very confident and not even responding to our phone calls even. But the thing is that he has property and assets here in India. His parents also live here. So definitely he will come some day. We tried to contact his parents also but they also dont seem to be intrested in talks now. Infact they are saying we dont want to interfere in their son's decision. His sister will be marrying in couple of months and we are sure he will attend the marriage. is there any way we can hold him here legally. How a passport is confiscated? and what remedies can he use?

thanks

Vikas

Our lawyer is saying that we can claim for all the dowry that we gave in marriage by filing divorce here. But all the furniture and even electronic items that we gave to him were actually invoiced in the name of my sister. Can we still claim on that because all of that is his home in India?

The courts will consider the following points before validating the divorce decree granted by foreign courts:

1.  Whether the girl has been given sufficient opportunity to contest the case in foreign land?  (in your case it is not so.  She has neither money to engage an efficient advocate nor a place to stay there and give day to day instructions to her advocate to defend her position.  The courts in India will not consider that the girl has been given sufficient opportunity to put her case before the foreign courts). But you must write a letter in a petition form addressed to that particular court saying your financial incapacity to engage an advocate as well as to stay and defend your case.  Keep a copy of the same, which has to be used by you when you contest the divorce decree granted by divorce.

2.  Indian courts will not recognize such divorce decrees which are granted on the grounds, which are not specifically allowed in Indian matrimonial laws.  CHILD ABDUCTION IS NOT A GROUND AS PER HINDU MARRIAGE ACT TO GET A DIVORCE DECREE.  Hence, Indian courts will not recognize such divorce decree.  If gets such decree, you contest it in Indian courts and get such decree set aside.

3.  He has got immovable properties lying in India.  It is a strong point for you.  By invoking appropriate criminal law provisions you can take remedial steps to the injury caused to your sister.  His immovable property can be attached and if he lands in India he can be put behind bars and while getting bail, a request for impounding his passport can be requested for.  You consult your advocate how these things can be brought into effect.

Dear Mr. Chandu,

Our lawyer said that we can ofcourse put criminal case on him but he is asking us do we want to put only criminal case on him or want divorce from him in India. And we are confused now. Also, my sister never stayed with her-in-laws eversince she came back from europe. its alomst 3 years now she last stayed in his house in India. also I want to know will court not ask for any proofs if we put any criminal case on him. Will we not questioned that how come we woke up now after a longtime specially when he has started divorce proceedings abroad. And moreover, we are sure he must have given thought to all these options. Our lawyer was saying that he can hire a lawer in India also to remedy all the counter attacks that we might to on him. he mentioned something about "anticipatory bails" . is there anyway we can find if he has taken any such step already here in India.

thanks

Vikas

Do not confuse yourself between the relief you want and the maintainability of your cases before courts and the rate of success of cases intended to be filed by you. Every thing is separate issue and has to be thought over differently without overlapping one another.

I try to give some suggestions, which you may give a thought over.

IF SHE ALSO WANTS DIVORCE DECREE:

1.  Then let him get divorce in foreign land on whatever ground he wants.  Just deny the charges in that divorce petition by sending reply to that court and let him have his divorce decree.  Obtain copy of divorce decree.

2.  After obtaining divorce decree, file a petition under Section 25 of Hindu Marriage Act for permanent alimony.  Permanent alimony will be fixed on the basis of his income and value of immovable and movable  properties he possessed.  It may be lumpsum or monthly amount.  You go for one time lumpsum alimony.  She has also got other remedies as a divorcee to get maintenance under Section 125 Cr.P.C. or Section 18 of HAMA or under provisions of domestic violence Act.

3.  The daughter has got a right  for maintenance under the provisions of various Acts.

IF SHE DOES NOT WANT DIVORCE DECREE:

1.  File a domestic violence case and ask for shared household in matrimonial home (for the purpose of this case, in-laws' house is matrimonial home, as husband is living abroad).  And also ask for maintenance for herself and the child.  Do not worry about maintainability and delay in filing the case.  Both can be explained to court.  If he does not contest these cases, you will get favourable orders and for execution of the same, his immovable properties can be attached.

 2.  If the grounds are available, file Section 498-A case, without bothering about maintainability and delay in filing such cases.  The offences here are continuing in nature and territorial jurisdiction also can be extended even though the offences were held in foreign country.

3.  Once he obtains divorce decree from foreign court (you send your reply to that court showing your inability to pursue the case there and keep a copy of the same), you challenge the same in Indian court. Get other reliefs available under the Act by moving interim applications.

Vikas just discuss with your family before you file any unnecessary charges. Adv. Chandu has always provided his valuable advise to womens and i respect his knowledge. But it will be very easy to advise someone when the law is women biased. I would appreciate if he could keep his heart open and advise victims of women biased laws as well.......

In concern to Adv. Chandu's post i want to know how is it possible for daughter in law to request for household if the house doesn't belong to her husband ? She has rights to claim her husband's property but there is no way that she can claim mother in law or father in law's property.......

Mr. Chandu,

Thats exactly, what our lawyer has suggested. And, most probably, we might go for it. Though we are still persuading him to come on talks with us. But my question is that are there any legal remedies that he might have already prepared in advance keepking our hostilities in mind? our lawyer is saying that all he could do is take an anticipatory bail. But even that can not make him leave country if he comes here...is there anything else he can do in order to safegaurd himself in India already?
 Also, please note that the house in which his parents are living is in his name. Though, we are not sure if he as transferred it in their after my sister came back to India.

Also, please tell, can a person run two divorce cases in two different countries, I mean if we decide to particpate in Irish court also and also file divorce case in INdia. is that process valid and make any sense?

thanks

Vikas

@ Adv. Chandu

1. The moment a party participates either for denial or for anything in a foreign Court his / her presence is marked and it is as good as intent to contest be it so that the filing was done for reasons you advised. You are advising party to "send a reply" and further "seek certified copy" of one of the foreign court granted decree" ! For what she needs the decree copy?
I find this advise bald/immature.

2. No person can misguide two foreign Courts (India by stating that I donot follow Irish decree yet I have replied there during their proceedings and obtained copy of decree also and simultaneously tell Irish court that your decree I will not follow as I donot have money to come and contest) it is like advising someone without any merit simply because some of SC Judgments says foreign Court decree are not applicable to India but same and much later Judgment also says if it was obtained by representation / contest / reply it is still valid! Atleast this much you will also sucbscribe to?

3. Also see in your spare time another wrong advise on filing Bharat Ratna DV Act you suggested in the name of clearing parties confusion at link
https://www.lawyersclubindia.com/forum/Late-filing-bharat-ratna-dv-act-hit-by-s-468-crpc-limitation-45008.asp 

4. The author of this thread replied to my one que. on "dowry" quite early on page 1 of this thread and this husband was good to return back the car and he never asked dowry but was given by wife's side so even giving hint to see if "grounds" exists and file S. 498a IPC r/w S. 406 IPC is bald money making advise which Prabhakar ex LCI adv. was also good at.


Is having property / assets back home in his name a crime that you are pushing a overseas living Indian husband into trap of Bharat Ratna DV Act and or S. 498a / 406 IPC ??????


Cm'n I always expect better from you.

Mr. Tajobsindia,

Good counter reply in response to Adv. Chandu's post.

This why i mentioned in my above post. His suggestions were to file Fake 498 (a) and i didn't expect this advise from good lawyer. 

@ Mr. Vikas,

One thing i have understood from my personal experience is that burden lies on the person who files the complaints. Make sure you are 100 % sure enough that you will be able to prove those charges which Adv. Chandu has advised you.

If you are not sure and if you still feel to file those charges then i suggest you to do some research on defamation & forgery cases as well.......i am sure Adv. Chandu can make you familiar on those

I am so very thankful to all of you for giving many valuable suggestions. Yes, for sure we are in great trouble. We are just concerned about my sister and her daughter's future. Not sure what step to take at the moment, If we dont reply then he will easily get divorce there and moreover even if we reply we can not participate from here. And thats the reason he is cashing on our situation. He knows that he can easily get away without paying any alimony to my sister. And when we are trying to request him to atleast talk to us, he is avoiding us. Dont know what step to take. Since, he is not interested to talk to us. we have no other option other than filing any case on him. But I will be very greatful if anybody can tell how we can bar him in irish court from taking divorce or if we can enforce him legaly to come to india. Can foreign ministry or INdian embassy in ireland help us to deport him to India. This is not at all justified that he can just get away with divorce without any talks and concern about his daughter also and we do nothing. please suggest if there is anyway we can legally enforce hiim to come to india. will putting criminal cases on him like dowry or domestic violence help? 

When my sister came back , she was mentally so disturbed that we had to show her to a psycatrist and for many months she was taking treatment of depression. If we show all these medical reports to court will it help to convince his bad treatment towards my sister? our lawyer said that it might help.

Mr. Vikas Mahajan,

If you contest the divorce case in foreign country effectively and loose it on merits, then there is very little scope for you to contest such divorce decree in India except on the sole ground that the ground on which the foreign divorce decree is not a ground to get divorce decree under Hindu Marriage Act.  For your information, I am attaching a leading case on this subject for your reading and understanding.  Regarding remaining questions you raised, I answer it in another post.

Mr. Vikas Mahajan,

Indian matrimonial laws have given certain reliefs to the economically weaker estranged partner during and after the matrimonial differences by providing maintenance as long as she is divorcee and not married again and similar benefit is available to her daughter still she gets married.  Similarly, a divorcee has got a right to get permanent alimony under Section 25 of the HM Act.  If people attack you for exercising your right and attack me for giving such advice, then that is their outlook.

Now, in another post also, the subject matter of this thread was referred to and I was taught not to give wrong advice.  There a supreme court judgment was also posted, which is totally irrelevant to the facts of your case.  Even the law cited therein is not applicable in your case.  In that case, the husband and wife went for mutual consent divorce and was duly granted.  After that the wife filed a case under domestic violence case.  The facts and law dealt with in that case are quite different to the facts and law applicable in your case. Just by quoting irrelevant supreme court case with a fond hope that other persons will not read and if read cannot understand is old trict always played the immoral advocates in the courts. Even then, without reading and without understanding the full implications of such supreme court decision, I am told about the limitation in domestic violence case.

In your case, three years back she was sent / came back to India and is staying with you.  Now, you are asking only residential rights in the property owned by her husband (even it has been owned by her in-laws, she has got a right to stay there) and also maintenance rights.  For that limitation will not be applicable.  I also add for invoking Section 498-A, cruelty connected with dowry demand is not required.  The physical and mental cruelty unrelated to dowry demand is sufficient enough to invoke this provision.  I say that in matrimonial disputes, the spouse will not knock the criminal court immediately when the crime has happened.  She will give some time if there will be any chance for reco-habitation/conciliation/counselling/elders' intervention/panchayat etc..  So, there is no such Laxman Rekha of 3 year period within which, you can file complaint under Section 498-A.  If she is either physically or mentally harassed, you are entitled to invoke such provision without hesitation within a reasonable period, but before divorce decree is granted.

As you have not filed any criminal complaint till today, there is no scope for him to get anticipatory bail.  

First of all you find out what your sister wants.  She has got financial remedy for herself and daughter as he has immovable properties lying here.

Do not worry about defamation cases and perjury cases as you have not defamed any one nor gave any false statement in the court of law.  The people will always extend such threats to discourage you to exercise your legal rights.

Go ahead.  You are not misusing any law and for that matter any criminal law.  

Dear Mr. Chandu,

Thanks a ton for your clear cut advice and encouragement also. I was reading the document that you attached. Though I could not understand it fully as almost every term is mentioned in law language. But I am surprised that how can the husband in that case filed divorced cases in two different courts? is that allowed? and why did he do like that.? I am asking this because if we also file any case on him here will that not count to be duplicate or something ? 

I am still reading the document you sent. 

Vikas.

Deportation is not going to happen in civil cases.....Mr. Vikas feel free to file the cases on her husband i bet you there is no way you can deport him. Although his movable or immovalbe property can be attached......let's start from begining. Is he going to accept court summons ? (There is no guarantee)......It takes a while just to serve summons to the appropriate person. Although law prevails and you will have to be ready to give a damn good fight in order to take over your sisters husband property but when it comes to deportation it is not going to happen.

Now i am not trying to discourage you but if you reallly want deport her husband go ahead and file those cases my best wishes are with you. I am sure her husband is not going to come back........

Also exparty orders are subject to contest in upper court.....so make sure you are ready when her husband tries fighting back as well and this is when defamation and forgery comes up. Burden lies on you to prove everything.......