Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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Arvind Gupta   27 June 2022

Divorce - indian dutch citizen with indian citizen

Hi 

I am a Dutch citizen of Indian origin. I came here for studies and settled here after that. I met my wife in India a few years later, and she moved to Netherlands. We have a daughter who is 6 years old. 

As a husband and wife, we are not doing well at all. 

We have had trouble since many years and even now there are so many problems and so many dissatisfactions with each other. 

We are basically not compatible. And I am considering going down the path of divorce. 

The only big problem to sort out is for the kid. 

I am Dutch citizen. My wife and kid are not.

If I approach the court here and file for a divorce, I am sure it will happen easily and smoothly. But I want my kid to stay here in Netherlands. And also my wife, so that the kid could get to see both parents. 

But I somehow see it to be very difficult, as I think my wife is not an independent woman, and I am not sure she will be able to live and work here alone and manage the kid every other week.

Also if things work out like that - how does the Indian law system approve of this divorce? Would it be possible that the divorce would be dragged to Indian courts and if it does, as a Dutch citizen would I have trouble? 

I am only worried about my wife going to India with the kid and deciding to not come back. Would she be in violation of any laws? 

As I have spoken to Dutch lawyers they tell me that it's not legal for your wife to take your kid to some other country. If the local law gives me the right to see my kid every other week and stay with her for every other week, then it's not legal. But what would happen if she goes and doesn't come back? 

I don't know what to do. I don't know if I should take this step or not. But one thing is certain, it's very difficult to live a life like this. This is not the life we want for ourselves. 

Please suggest what are some of the best options. 

Thank you 

AG



Learning

 6 Replies

KUNAL   27 June 2022

Under Sec. 7D Citizenship Act, OCI citizenship can be annulled on grounds of- (a) it got OCI citizenship by fraud (b) it engaged in, or assisted an enemy nation war against India (c) its been jailed for two years or (d)its necessary in public interest. Issue of Dutch courts having jurisdiction arise if both spouses are Dutch nationals & both resided in Netherlands when the divorce was filed. There are some legal approaches to this:

•If you both are Dutch nationals, divorce is by a Dutch district court
•If one of you is an expat married in your home country, divorce is by Dutch Court if you've been living there for over a year
•If you were married in India & divorce case is filed in a Dutch court, the Indian Court will decide if it or the Dutch court has jurisdiction to try case.
•If you have a prenup, then whatever the governing law is in that contract will rule you.

For further queries please feel free to mail me at:

estateplanner621990@gmail.com

Thank you & have a nice day!!

Shashi Dhara   27 June 2022

You cannot force your wife  with kid to stay in that country until no relief obtained by court ,if once both steps to India and decides not to  return or go back then you have to come to India and fight legally in Indian courts.

KUNAL   27 June 2022

If your wife does not return with kid, no issues.
Please let me explain why, sir.

Under Sec. 29(c) Civil Procedure Code, a foreign court can issue summons to an Indian citizen living in India. Under GSR 24(E) being Hague Convention on Service (Abroad) Of Extrajudicial Documents, 1965 if a State is a party to this particular Convention, then it can issue summons to an Indian citizen living in India. On 15th November 1965, Netherlands adopted this Convention & hence GSR 24(E) applies to it. India also adopted this Convention in 1st August 2007.

With exception being that if address of your wife being unknown (in which case service of notice for divorce by Dutch court is impossible), yes, the Dutch court will be able to issue summons to your wife if she's living in India. You do not need to attend India for divorce. If she does not appear with the child, or is absconding, Dutch court can issue summons through Ministry of Law & Justice, India in English(or by translated copy). Also the option of letters rogatory exists too.

If your wife's address is not known, or she's absconding, you can file for ex-parte divorce in Dutch court. Service of summons will be at her last known address (if current address unknown). If the wife is not found anywhere, a lookout notice can be issued. So whichever part of India she's travelling to, if she's found, she will be deported to Netherlands for the case.

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer)     27 June 2022

Yours is not only a legal problem, but also a human rights problem. European countries are very particular about human rights  specifically about the rights of women. Does your wife also want divorce? You have lived together for more than 6 years. Try to sort out the problems, if necessary with the help of councellors. Interests and welfare of your daughter are the most important factors here. She will have better quality of life as a Dutch citizen than as an Indian citizen. Was your daughter born in the Netherlands?  How is it that they are not Dutch citizens?  I think that if they want they can become Dutch citizens. In the interests of your daughter, it is very important, in my opinion, that you should live together. Actually here we would like to hear your wife also.

Arvind Gupta   07 July 2022

Hello Mr Ramani 

Thank you for your reply. 

My wife is not a citizen because she is yet to apply for it. She has not also applied for permanent residency. 

Daughter is not a citizen because wife didn't give the approval. Both parents need to give approval. 

It's difficult to continue such a relation. I want to see my daughter and want her to live here and also would like my wife to be here so the kid can see both parents. 

Should I approach Dutch court? 

 

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer)     07 July 2022

The future of your daughter is of paramount importance here. According to me she should live in the Netherlands and adopt Dutch citizenship.  There may be family counselling organisations there. You find out and approach them. They may be able to advise you whether a Dutch court can give you relief.


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