Manish (Software Professional) 06 March 2010

Divorce by Mutual Consent - Absence of one party at hearing

I got married in April 2009 and only after 3 months of marriage we filed a joint petition for divorce by mutual consent in a district court in India. All the financial settlement was done before filing the petition and was presented as a part of petition filing. We have been living separately since then.

Now, almost 7 months have passed from the date of filing the petition and the case will be up for hearing in the court. Our decisions have not changed and we still want a divorce. We both want a divorce decree.

The problem is that i'm working abroad in Australia and cannot come to India for the hearing under any circumstances. Is this fine? Will a decree be granted in my absence? I can provide my employment letters as a evidence that i'm working abroad.

Do i have to send any kind of letter to the court saying that i won't be present for the hearing but my stand has not changed & i still want a divorce? Will this work?

Is there any possibility that in my absence the opposite party(Wife side) can file any other case against me before the court?

Please guide.

Reply Follow

9 Replies

Raj Kumar Makkad (Adv P & H High Court Chandigarh) 06 March 2010

Mr. Whatever circumstances are, you shall have to personally attend the court for only the day fixed if you want desired relief otherwise no decree can be provided and wife sie is then free to start legal actions against you thereafter. You cannot apprise court not to attend reasons sitting abroad. Arrange and settle the matter for ever.

ad. creaminall (professional Advocate) 06 March 2010

in which state your matter is? coz in bandra court some judges are allowed the affidavit of absent party if it is duly signed and notarised by notary.

Manish (Software Professional) 07 March 2010

Hi,

The matter is in Jalgaon district court. And i have given Power of Attorney to my cousin to represent me in the court. The POA is duly notarized by the notary.

Hardik Mehta (Family Counsellor) 07 March 2010

Manish,

In addition to the POA, you need to sign the affidavid of the first / second motion of the divorce in front of the Indian High Commission in Austuralia under Diplomats and Consular (Oaths and Fees) Act Section 3(2) and send the same affidavid to the your POA holder, who will represent you in the court. In this case, you need not come to India to attend the proceedings or the second motion and the divorce decree will be granted. You also need to give another Power of Attorney to the Attorney holder as the POA notarized in Jalgaon may not be accepted by the court. The POA singedd infront of the Indian High Commission will be useful in granting the divorce. Send both to the Attorney holder in India.

Manish (Software Professional) 08 March 2010

Thanks a lot Hardik for the reply!

Just wanted to know one more thing, what should be the content of the affidavit or from where can i get it?

Arup Kumar Gupta, Korba, Chattishgarh ((m)9893058429) 08 March 2010

without your physical presence at court, no mutual divorce is possible. it is a condition - which is within the act.

Arup Kumar Gupta, Korba, Chattishgarh ((m)9893058429) 08 March 2010

Diplomats and Consular (Oaths and Fees) Act

mr hardic, could you tell the act no and year of the act, i tried to see the act in india code but not found there.

Rajni Sinha (none) 05 March 2013

Can mutual conset divorce be given without wife being personally present and husband appointing lawyer with POA on behalf of wife (wife's signature taken fraudulentlly on blank paper and used as POA)? Under which Law/section physical presence of parties to the Mutual Consent Divorce is necessary? Pl guide.