Law Querier (Service) 13 June 2012

Divorce order gets from canada

Wife has been living in Canada since 8 years. She was coming to marry in India. Before marriage, there was a plan that wife sponsored her husband to Canada after completion of marriage. Then, she went back to Canada after marriage and Husband was in India. There were disputes arose on telephone because of small reasons between husband and wife. Then, wife had decided to divorce with her husband but husband don’t want to divorce. She entered a case in Canadian court for divorce and also entered a divorce petition, Section 13 (1) (ia) in family court of India by make POA to her father. Husband is contesting divorce by giving reply in Indian family court. As per Canadian divorce law if husband and wife live separate for one year then they can get divorce. Now, there is a completion of one year of separation of husband and wife. So, Canadian court has ordered divorce and sent divorce order letter by post to husband’s house in India. Wife has PR status or Working visa status in Canada. She is not citizen of Canada.

I am from husband side. What legal action husband take against his wife? Can husband put any allegations to his wife who is in Canada? Can you refer any similar cases?

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2 Replies

MRRpersonality (Knows very little about Indian laws) 13 June 2012

Well, as per canadian jurisdiction you have divorce. But since the marriage has occured in India and was under one of the Indian marriage acts like HMA section 13 then your marriage is not dissolved as per Indian laws. I understand the canadian part of the case. But what are the reasons she put forward in her petition in Indian ? How long is your marriage ? Why do you want to live with her if she does not want to live with you ? Are you sure you wont have any future problems ?

Anjuru Chandra Sekhar (Advocate ) 13 June 2012

Divorce issued by a foreign court is valid unless there are exceptional circumstances. One of those circumstances is the husband not able to contest her petition in the foreign court because of not being able to afford it or travel to such distant place only for the sake of defending the case. So the effect of that divorce taken in Canada is that she can be safe as long as she is in Canada. If she never comes back to India and settles in Canada and marries some other man in Canada nobody can do anything against her as per Canadian law. But here in India, you can file the case of Bigamy if she marries. You can apply for impounding/revocation of her passport based on any arrest warrant issued by criminal court and try for her extradition to face trial proceedings. So to ensure that they do not suffer any criminal cases they also file one divorce petition in India to get a divorce decree from Indian court as well so that you don't trouble them with criminal case of Bigamy if she remarries. And if she has divorce decree issued by Indian court she can also visit India freely whenever she likes if she remarries without having to fear about police nabbing her in Airport or her residence when she lands up in India.

You cannot do anything against her till you have information (and evidence) that she remarried someone before decree of divorce is granted by Indian court.