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Binoy (Technical Analyst)     30 April 2013

Filing divorce in u.s. - should i let her know ?

My ex left for India and filed the whole suit of 498a etc followed by DV. Now as per the laws of my country I can get a divorce and since shes still a PR and resident in this country so I don't need to let her know about the divorce in India. From the looks of it, she has no intention of returning here.

My major argument is that in her DV petition she explicitly prays under Section 18 of the Act , that I should not communicate with her in any form. The DV case has not yet started but will begin soon. 

So will it be ok if I file for divorce and dont send it to her parents address in India ? If at the time of validiting the divorce in India comes up, I can always cite her statement in DV petition.  

P.S. Mental cruelty is accepted ground for divorce in my country - so I dont have much of a reason to worry about the grounds. 



Learning

 7 Replies

Tajobsindia (Senior Partner )     30 April 2013

1.    Ex part divorce taken abroad is not valid in India no doubt grounds can be available similar to ours and you may succeed there. Further a foreign court's ex part divorce decrees are not enforceable in India when the other party has not submitted to the jurisdiction of a foreign court. Moreover, a divorce has to be granted in accordance with the mandate of Hindu Marriage Act (assuming) under which parties got married.
Ref.: Y. Narasimha Rao Vs. Venkatalaxmi [1991 SCR (2) 821, 1991 SCC (3) 451]
 

2.    Till she gets Protection Order under S. 18 DV Act you are not barred not to serve upon divorce papers informing her of your intention to seek divorce from abroad.

Rajendra K Goyal (Advocate)     30 April 2013

I agree with the views of need justice.

Tajobsindia (Senior Partner )     30 April 2013

I disagree to @ Need Justice

Argument:-

Wife and husband lived at Mumbai after marriage, whereas wife's natal home is Delhi. She files DV Act at Delhi after being thrown out of shared household (Mumbai).

Tell me @ Rajendra Kumar Goyal will DV complaint admit and stand trial in Delhi?

Que. to you is; if not then why whereas if yes then why in reference to context?

On above argument lines say wife's natal home is Bihar whereas alleged violence takes place in Mumbai which was her shared household and after somehow escaping she files S. 498a IPC r/w S. 406 IPC from Patna in Bihar State. Tell me then why no transfer of such case ever takes place to Mumbai Jurisdiction?

[I placed that citation of HC based on which @ Need Justice is saying what he wanted to say, but I myself donot agree to ld. Justc. reasoning in that argument.]

Binoy (Technical Analyst)     30 April 2013

Well wife has said that DV took place in the time period between marriage and moving abroad. So it is a continuing act. 

But now I am intrigued with the jurisdiction clause. I thought jurisdiction is applicable in 498a not so in DV. 

Which HC citation are you referring to Tajobsindia in the DV case?

Tajobsindia (Senior Partner )     01 May 2013

@ To both

1.
J & K’s DV Act is called The Jammu and Kashmir Protection of Women From Domestic Violence, 2010 and enacted on 29-04-2010
.

2. Mumbai – Bihar – Delhi are Jurisdiction similar to like Binoy’s wife living with him there in US so far as filing DV Act is concerned after coming back to India for which you say she cannot file and I said why not she can very well; ‘jurisdiction’ is word/phrase referred in DV Act because DV Act is a penal Statute so I cannot say ‘cause of action’ technically which is what we adduce when civil cases are taken before Bench.

3. I am referring to Mumbai HC judgment which I donot subscribe to vis-à-vis Mumbai –
BiharDelhi
I hinted earlier.


https://www.lawyersclubindia.com/forum/Can-she-dismiss-this-i-say-yes-or-may-be-no-now-what-you-say-77663.asp



I am clarified.

Goutam Prasad (Advocate)     01 May 2013

Dear Binoy,

Ex-parte divorce taken abroad is not recognised in India.


I will suggest you to hire good advocate in India to defend you in 498A and DV. In addition you can also file petition for divorce here.

 

Regards

 

Goutam Prasad

Advocate

Supreme Court of India

 

Mob: 9810753838

 

https://www.facebook.com/aegisjurist

legalcatalyst (Advocate)     30 January 2016

While I agree with the learned friends here and would repeat the same answer, please go through the attached judgment of Bombay High Court in a case where few of the facts are similar.

 


Attached File : 181017 20160130213549 468355605 wp 1507 2012.pdf downloaded: 106 times

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