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preeti (na)     19 September 2014

Canadian law & indian law on divorce

Canadian citizen married an Indian woman in India according to Hindu Marriage Act at Temple and got temple certificate. But the marriage was not registered in court as he had not brought NOC from embassy but instead gave power of attorney to her declaring her as his legal wife. He deserted his indian wife within 10 days of his stay with her after marriage without giving any reason or cause. He left India on the promise that he would send the NOC soon but he did not responded.

After now more than 2 years of no communication he called his wife and did not agreed on mutual consent for divorce and did not agreed for coming to India and legally divorcing her. Instead offered financial support according to Canadian law and not Indian law to which she refused. Also she is not asking any support but divorce.
 
Query: How can it be possible to give financial support according to canadian law as marriage took place in India. what does Canadian law say about such marriage.
 
Can he bring some legal document from canada to India to claim this woman as his wife and harass her later. On what basis he said for support according to canada law.
 
He says as marriage was not registered in india it is not a legal marriage and he will not ever divorce her though he very well know the fact that in India it is a legal marriage. His wife has filed a desertion case on her husband. Thanks


Learning

 10 Replies

Hardeep (Business)     19 September 2014

1) a marriage as per hindu marriage act has to be dissolved under the same only, even if the litigants are / were in a foreign country

see Rupak Rathi vs Anita Chaudhary, 2014

 

2) no idea what Canadian law says but, as said above, it does not hold.

 

3) since the marriage ceremonies were performed, it is a legal marriage although not registered. Till recently, registeration was not compulsory. Temple certificate is proof sufficient.

 

DISCLAIMER : General information and advice provided is without any warranties as to suitability for any use, correctness and application to any specific case. Please always take proper legal counsel . However, if it helped anyone even a little a " thanks" would be appreciated and would encourage me to keep on making efforts :-) . I am also always open to corrections and further learnings from more experienced Seniors here.

Rahul Kapoor (Legal Enthusiast)     20 September 2014

hello,

file for the divorce it will be granted exparte.

Tajobsindia (Senior Partner )     20 September 2014

@ Author,

1. In my opinion first check validity of Temple Marriage Certificate. 

2. This is not a valid Marriage as per Law between a Hindu and a Canadian national is my view. The valid and legal Hindu marriage in a Hindu temple can be between two Hindus only and if both or one of the party is not Hindu by religion at the time of solemnization of Hindu marriage then it will be NO Marriage at all, it will be void ab nito marriage for which No court in India will issue decree of divorce to dissolve such marriage. Registration of marriage is not important here to make temple marriage valid marriage. The Marriage Certificate is not the proof of valid Hindu marriage between the parties if the marriage itself is void ab nito the Marriage Certificate itself becomes null and void.

3. Usually, when two people of different religions want to get married, they can do so only by solemnizing the marriage under the Special Marriages Act, 1954. In such cases, the proceedings before the Marriage Registrar amount to solemnization of the marriage. Notice about the intention to register the marriage has to be given at least 30 days before the date of registration. This is the procedure that is understood in popular parlance as a ‘registered marriage’

4. He can under Canadian laws divorce you (even as ex part) as all he need is to prove 'breakdown in marriage' due to separation of more than 'one year' and you will be sitting here ideating when he will come and give you "paper" divorce whereas he has already secured divorce under his provincial Law if he wants to being caring Canadian!

5. For understanding 'support under Canadian Law' first tell the forum in which province your spouse lives in Canada? If he lives in Quebec then spouse are not entitled to spousal support. In other provinces and territories of Canada, a common-law partner may be eligible for spousal support from the other partner. This may depend on how long the couple lived together before they separated (10 days you say so your case is legally weak even to claim 'support'). So what you write for the forum interpretation purpose about 'he offering support as per Canadian Law' means he is showing a big heart for the 10 days he lived with you and if you are not earning an income currently then it is advised to go for such charity in Canadian Dollars and do your own things meanwhile as most probably he is not going to come back and had he wanted to come back 2 years is not a short time to do so.

6. He is not expected to bring any legal document from Canada to claim you as his wife. Canadian can marry anywhere in the world.

7. He is right in saying it is not a legal marriage and for his support I have already mentioned legal view in para 2.

8. Now what are your options; such marriages are not legal in eyes of Indian matrimonial Laws so getting a divorce certificate is not required reading down this brief is my view.


You = used as generic and not meant for you if you are not effected party in this brief.

preeti (na)     20 September 2014

Thanks all for your valuable replies. 

@Tajobsindia: we both are Hindus and marriage was performed acc to Hindu rituals and traditions. His parents are in India but he is working there and has acquired citizenship of Canada. Thanks.

Samir N (General Queries) (Business)     20 September 2014

Does he hold a PIO or OCI card? If he holds a PIO/OCI card, your marriage is perfectly legal in India and therefore in most western countries. Even if he is not a OCI/PIO card holder, there are numerous laws, both in India and elsewhere, civil and criminal, about leading a woman into believing that she is married and then taking advantage, physical or otherwise, of that misguidance. You can seek civil remedies under the law of torts (fraud, deceit, etc.)  in any western jurisdiction (Canada in this case) which will provide you more financial returns then under matrimonial laws. In North America, U. S. for certain and I think Canada too, attorneys take cases on contingency fees. They retain about 30% of the final returns. You will be required to pay for costs but you can work a deal so that they handle all costs too. In India, such fee arrangements are not allowed. 


However, your questions are replete with contradictions. First you say that he is willing to offer you financial support based upon Canadian law, thereby implying that he is accepting that there was a marriage. In your second question also you are concerned that he will come and assert that there was a marriage and use that as a basis to harass you. In your final question you are concerned of just the opposite - that he will reject the marriage.


In situations like this, first compile all facts and evidence, then get all inputs from forums such as this, verify the inputs and then come up with a well-planned strategy. What may appear to be a weakness under one law may turn out to be a gold-mine under another law. For example, if your marriage is deemed invalid, it may make your case weak under matrimonial laws but strengthen it under the law of torts, which offers a LOT in western jurisdictions, including compensatory and substantial punitive damages. Geographical hurdles are now easy to overcome, thanks to our buddy - Internet. Just contact some Canadian lawyer on-line once you have all facts in hand and work out a contingency-fee arrangement. He will be very thankful to you, for obvious reasons.


I am not an advocate so please weigh this as just another input. 

Tajobsindia (Senior Partner )     20 September 2014

@ Author,


In wake of further facts shared with me, I would advice following;
 

1. Hire a local advocate found via reference and after due diligence.
 

2. Proceed on Divorce under ‘desertion’ grounds and if not self working file Application for Maintenance under Civil Laws such as S. 24 HMA and also pray for litigation expenses. 
 

3. Serve Process Service of Court to his parents address with pasting instructions got allowed from Court. 
 

4. Let law of land take its own Course.
 

5. Canadian Law in most of its provinces does not support Law of Torts (civil wrongs) as matrimonial offence in backdrop of your two posts 'facts' unless he caused upon you “physical torture or violence or stalking” but same is not the case the moment you tell the forum via your two postings here that he stayed for 10 days and after 2 years he contacts you hence question of “physical torture and/or violence and/or stalking” which is recognized in Canadian Law of Torts in Marriage is not coming into picture to seek such International Jurisprudence remedy as advised  by @ Samir N (2HelpU). Although the law of torts “hovers over virtually every activity of modern society” (Canadian Tort Law by Allen M. Linden and Bruce Feldthusen, eighth edition, page 1), it does not regulate or seek to oversee family relationships or interactions.  It is not a vehicle to compensate family members for bruised feelings, or disrupted or damaged family relationships.Take two quick facts;  Ontario's Superior Court does not recognises Law of Torts in family relationships, Ref.:  Joudrey Vs. Joudrey. Quebec's Superior Court only recently ruled in favor of wife under Law of Torts when she was able to prove physical and s*xual abuse r/w  intentional infliction of emotional distress Ref.: McCulloh Vs. Drake. In whole of Canada it is known by Law of Torts only and not go by any other term which is besides the point. Thus I am not convinced of @ Samir N (2HelpU) advice of using Law of Torts against the backdrop of your two postings (facts) here.


6. 
My previous long reply was based on your very first post hence may be ignored in toto. It is a legal marriage only if ‘essential ceremonies’ under Hindu Marriage at the temple were performed. Registration fo Marriage is not important to raise cause of action. His Canadian PR status is not coming as a bar now to file a divorce case by you. He has no recourse available under Canadian Law on ‘support’ question as marriage happened before PR status and Canadian Laws do not work on retrospective grounds unlike some of Indian matrimonial Laws!. I suggest civil action suit because criminal action such as S. 498a / S. 406, DV Act etc. are very long time consuming actions and facts in two brief of yours does not suggest taking such high recourse though you have suffered in such marriage which is akin to many of the Punjab Women’s marriages with NRI’s which we hear for and against.


7. 
Rest related advice you may have from a Advocate of choice if locally hired.  


[Last reply]

preeti (na)     20 September 2014

Thanks a lot Tajobsindia. You have provided the best advise. I am already pursuing desertion case. I am not asking or claiming any maintenance from him whether he tries from canada or India. And also my mental peace is more important than money. My only concern is until I get divorce he may not turn up again (like his call after two years). As trust once lost is difficult to regain. 

Thanks once again.

Jimmy (Manager)     20 September 2014

I am a Canadian citizen and can say with certainty that Samirbhai's advice is the most intelligent one offered and that the law of torts is alive and kicking in Canada though it goes by a different term in Quebec for historical and other reasons. International jurisprudence is not required for what Samirbhai suggested.  Matrimonial laws and law of torts are not linked. One does not need the other. And law of torts to be applied does not need physical violence or torture and does not even need marriage. Samirhbai's advice is usually brilliant and very well-rounded.  I think that he is one of those mad scientists so one needs to be somewhat like him to comprehend him. Sorry Samirbhai I mean it with respect and in good humour.  You helped me once with judgements on jurisdiction of Family Court on out-of-state and international properties. Those judgements were truly brilliant and your out of the box advice can be better understood if you cut some of the embellishments you offer around the advice. I am posting this so that others in similar situations as Preeti here can make their choices with proper info and possibly come to different conclusions about their strategy. 

Samir N (General Queries) (Business)     21 September 2014

Jimmybhai, I am not a "scientist" and though I have not taken any psychiatric evaluation, I am reasonably certain that I am not "mad."  True that mad persons do not realize that they are mad but thats another discussion. My "embellishments" are usually to add emphasis and clarifications. Your observations are taken in good humour here. As for the discussion in this post, when ignorance becomes bliss, it is better to leave it undisturbed. But your clarifications will help others who otherwise would have been misled. So, Jimmybhai, thank you!

Anand (CEO)     21 September 2014

@Samir, well said. some advocates on LCI google and provide long incorrect advice. When such advice is accepted you should let it be. @Jimmy, you are right too. U want others to be not guided by the wrong information. @TajobsIndia, you write a lot but it is mostly all wrong. Sorry it is my humble opinion.


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