Divorce
Querist :
Anonymous
(Querist) 28 March 2018
This query is : Resolved
the case is about divorce on the grounds of mutual consent, the divorce proceedings are taking place in the US. the wife is in India and has signed the waiver of service.
now the question is whether she can go through exemption of notice given to her and through which convention.
Vijay Raj Mahajan
(Expert) 28 March 2018
The process of divorce by mutual consent in India is very clear where both parties jointly file petition for divorce, if one party is not present in person to sign the petition or present it in the Family Court, that party can give power of attorney to someone on his/her behalf to do the necessary acts in the process and procedure as provided for the divorce by mutual consent. The finalisation of divorce by mutual consent is completed after 6 months period. The presentation of joint divorce petition is usually referred as the first motion and the finalisation of the process after 6 months the second motion. The 6 months period is provided in law for cooling period where both parties can give a second though to continue the divorce proceeding or the marriage and after 6 months whatever decision they take the Family Court decide accordingly. In exceptional cases both parties may pray to the Family Court to decide the divorce without waiting for 6 months cooling period and Family Court if is satisfied for the same because of genuine reasons provided by the parties, waive off the waiting period of 6 months and decide the divorce and issue decree of divorce to the parties.
Now in foreign countries the process of divorce by mutual consent is some what similar if not same, where the decision to dissolve the marriage by decree or certificate of divorce is agreed upon by both. If the wife who is living in India at the time of presentation of the divorce petition in the foreign court, than her specific consent for the same need to be taken especially if its for Indian couples. The ex-parte or uncontested divorce initiated and decided outside India by husbands in most cases get challenged by the wives in India and the Indian court on the ground u/s 13 CPC and Principle of Law laid down in Y. NARASIMHA RAO case by the Supreme Court of India declare the ex-parte or uncontested divorce taken in foreign court as null and void. All the money spend by Indian husbands living outside goes waste and bigger trouble starts back home for them and their family in India.
How the wife is to be served of court summon in India can be directly done through the agents who are recognised by the foreign courts to this process. The service of court summon to wife not done properly even get challenged in Indian court so the second service through the Indian consulate to Indian citizen in India should also be carried out. The service of court summon through email has been duly recognised by the Indian court that can be the third service of the summon to wife.
For detailed discussion about the law and procedure for divorce you can always avail my legal consultancy services directly. vijaymahajan5758@gmail.com
