Filling divorce from a foreign country

Dear Querist,

Although several grounds for divorce are available to a party filing a divorce case in an Indian Court, the least complicated way to seek a divorce is through mutual consent. Now, with the highest court of India ruling that there is no need for a compulsory period of waiting for six months, the process has been made less time-consuming.

The divorce petition in the form of an affidavit, which is to be submitted to the family court. The two most crucial elements of a mutual divorce petition are maintenance and child custody. There is no specific law in India that prescribes the calculation of maintenance, which parties are left to decide upon. However, if no agreement is reached, it is the court that decides after analysis the obligations and finances of each party.

After the filing of the petition and recording the statement of both the parties, the court usually adjourns the matter for a period of 6 months. After six months the parties have to present themselves again in the court for making a second motion confirming the mutual consent filed earlier. It is only after this second motion that a decree of the divorce is granted by the court. During this period of six months, either party may withdraw the petition from the court, in which case no divorce will be granted.

If it is inconvenient for you to keep traveling to India for this purpose, a Vakalatnama or a Special Power of Attorney may be signed in favor of your divorce lawyer who can then represent you in your absence. However, you may still be required for evidence and cross-examination purposes.

Considering the convenience, the laws in India provide for the filing of a petition for annulment of a marriage registered in India. However, this divorce can only be of the nature of mutual consent. This is so because foreign laws on other grounds of divorce may differ (such as cruelty, irretrievable breakdown of marriage, fraud) and hence the Indian courts do not recognize a divorce decree if it is not granted on the basis of mutual consent.

Another aspect that needs to be kept in mind is that the marriage must be registered in India. If both husband and wife are Indian citizens but get married in Spain under Spanish law, then the Indian courts will have no jurisdiction. In this case, it is the Spanish law on divorce that will apply. However, if the marriage takes place in India and is registered under the Hindu Marriage Act or Special Marriage Act, only then would the Indian Court seek to intervene and recognize the grant of divorce by a foreign court.

As strange as this may sound, if you file a divorce petition in a foreign court and get a divorce on a ground other than mutual consent, you would be divorced in that country but still legally married in India.

Regards,

Palak

Thanks for your response it is very useful

You may authorise a power of attorney to file the case. However, you alone can depose on matters within your personal knowledge.