In today’s world, it’s extremely common that a marriage was solemnized in India under Hindu Marriage Act and then both husband and wife or one of them moved abroad. It’s also very common than NRIs come to India for the solemnization of marriage.
Now if such a marriage doesn’t last, it can result in many scenarios which include the Indian laws as well as the foreign laws. Unlike in the west, India does not have specific laws to cater to such litigation so we have to go by the judgments of Indian courts to understand what to do in such cases. This article attempts to cover all such scenarios from legal perspective.
Both the parties mutually agree to amicably end the marriage and all their disputes.
There can be two situations in this scenario:
a) Both the spouses are abroad
In such a scenario, mutual consent divorce can happen in India as well as in the foreign country (if the law there permits). However, it is always advisable to get the divorce through Indian Courts as the divorce granted in the foreign country does not automatically negate the marriage solemnized in India. A foreign divorce decree should get vetted through Indian Courts.
b) One spouse is abroad and one is in India
In such a scenario, the spouse in abroad can travel to India for the Mutual Divorce proceedings as it does not take much time. In case the spouse in abroad simply cannot travel even for few days, then he/she can nominate either one of his/her parents or one of his/her siblings to appear in the Court on his/her behalf.
The parties do not mutually agree to amicably end the marriage.
There can be three situations like:
a) Both parties are abroad and fight case against each other in abroad only
In such a scenario, the concerned court will decide the issues as per the local laws.
b) Both parties are abroad but one files a case abroad and the other files case in India
Here apart from the divorce and other related matrimonial cases being filed, another case can be filed in India for refraining the other party to pursue a divorce case abroad. Such a case is called ‘Anti-suit Injunction’ case for divorce.
In such a scenario, the party who files for case in India will find it difficult to pursue the same in case he/she continues to reside abroad. This recent Supreme Court Judgment can be referred in this matter: Dinesh Singh Thakur vs Sonal Thakur (Civil Appeal 3878 of 2018).
Here one more important thing to note is that in case you have received court summons from a foreign court for divorce, then you should not submit to the jurisdiction of foreign court which means you should not file a reply. Instead you can come to India and file an anti-suit injunction to refrain your spouse from pursuing a divorce case.
There have been instances where parties did not submit to the Jurisdiction of foreign court but continued to reside abroad and filed anti-suit injunction case in India to refrain the opposite party from pursuing a divorce case abroad. However, this did not go well with the India Courts and the injunction was denied. This Bombay High Court judgment can be referred in this matter: Sandip Shankarlal Kedia vs Pooja Kedia (WP2636/2013).
So it’s advisable to file case in India only when you have decided to comeback from abroad and started living in India. If you do that you will find it easy to pursue the cases as per Indian laws and you can even refrain the other party from pursuing a divorce case abroad.
c) One party is abroad and files a case there and one party is in India and files a case in India
Here, the party filing the case in India will have an advantage. The party in India can refrain the party abroad in pursuing a case from abroad by filing an anti-suit injunction case.
There have been few instances in the past where the husbands after filing the divorce case abroad cancelled the spouse VISA of the wife and then got the ex-parte divorce as the wife could not travel abroad. In such a case, courts have granted anti-suit injunction relief to the wife staying in India. This Bombay High Court judgment can be referred in this matter: Arunima Naveen Takiar vs Naveen Takiar (NOTICE OF MOTION NO.28 OF 2015 IN SUIT NO.880 OF 2014)
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