LCI Learning
Master the Art of Contract Drafting & Corporate Legal Work with Adv Navodit Mehra. Register Now!

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

Law Querier (Service)     23 June 2012

Divorce seeking nri wife demand maintenance?

A divorce case has filed (section 13 (1) (ia)) in Indian family court by nri wife living in Canada through POA of her father. Similarly, wife had filed other divorce case in Canada court.  Husband has replied in Indian court that he doesn’t want to divorce and denied all allegations put by his wife. Now, as per ground of divorce of Canada (completion of one year of separation) Canada court has ordered divorce. Husband has got Canada divorce order through post. Now, Husband has no chance to save his marriage. So, he wants to surrender to foreign divorce order. The question is, if husband agree with foreign divorce order, how can he gets Indian divorce order? Can husband have to pay any alimony or maintenance to his wife after divorce in India though wife is good in financial position in Canada and the divorce case petition filed by wife? Can wife demand any maintenance or alimony? Can wife demand her gold ornaments and articles recieved during marriage ceremony while she  got divorce from Indian court?



 8 Replies

Adv Archana Deshmukh (Practicing Advocate)     23 June 2012

There is no need to file 2 divorce cases. I the divorce decree is acceptable to the husband i.e does not want to repudiate the same on the ground of fraud played or lack of knowlege, he can file the decree in the Indian court and pray for dismissal of the pending divorce case.

Adv Archana Deshmukh (Practicing Advocate)     23 June 2012

Typing mistake....read 'If the divorce decreei is acceptable to the husband' in the first line

Law Querier (Service)     23 June 2012

But, my question is also for,
Can husband have to pay any alimony or maintenance to his wife after divorce in India though wife is good in financial position in Canada and the divorce case petition filed by wife? Can wife demand any maintenance or alimony? Can wife demand her gold ornaments and articles recieved during marriage ceremony while she  got divorce from Indian court?

Adv Archana Deshmukh (Practicing Advocate)     23 June 2012

Depends upon what comes before the court and what happens during the hearing. If she is living sepearately willingly and has sufficient means to maintain herself then, no alimony need to be paid. 

 

Yes, she can demand her gold back.

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com))     23 June 2012

1. If you agree by the Canadian Divorce Decree you need not do anything. File a suit for declaration to declare you are divorced now as per the decree of the Canadian Court. Family Court is likely to take it up and give you a decree in no time. (S.13/14 CPC should be relied upon). 

2. In such circumstances maintenance may be claimed but difficult to get. 

3. She is entitled to her ISTRIDHAN and can claim it both civilly and in criminal actions or both. 

 

Good Luck !

Guest (Guest)     23 June 2012

If the husband doesn't want to oppose the decree of divorce granted by the Canadian court he can file a suit for declaration u/s 13&14 CPC to validate the foreign decree. The wife can be given maintenance if she proves that she doesn't have sufficient means to maintain herself.  She is also entitled to claim back her istridhan by taking recourse to law.

Anjuru Chandra Sekhar (Advocate )     23 June 2012

It is not necessary that you accept the divorce just because foreign court had ordered for divorce.  Foreign judgment/decree is not valid in India if such decree is obtained by not following principles of natural justice.  As you have not been able to defend yourself by reaching Canadian court, S.13 (d) is applicable for you, on that ground the decree of divorce obtained by her will become invalid in India.  That means in layman's terms, if she marries in Canada without/before obtaining divorce from Indian court, you can proceed against her u/s.494 of IPC. 

 

She cannot apply for alimony and maintenance if she is earning more than you.

 

If she succeeds in her divorce petition, her case will become strong because she is able to prove cruelty by husband.  In such case she can claim compensation under S. 22 of Domestic Violence Act for damages suffered by her due to domestic violence.  Hence it is better rebut her allegations in Divorce petition but propose for Mutual Consent Divorce on the basis of foreign decree.  Bring it to the notice of judge in next hearing and propose for MCD as you feel a decree of divorce is already obtained by her in foreign court there is no point in contesting the divorce petition in India and pursuing this matter further.

 

She can recover Stridhan (gifts, gold ornaments) by filing criminal case U/s.406 of IPC or by filing for S.3(a) read with S.19(8) of DV Act.

Anjuru Chandra Sekhar (Advocate )     23 June 2012

S.13(d) of CPC


Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register