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Mak (sale)     20 August 2015

Foreign court divorce : ex party / uncontested

I have specific concern on one thing that i like to let you know & get right information.

 
I got divorced from family court of canada based on one year separation. 
 
She never been to canada & i got ex party uncontested divorced . As per my understanding any abroad country divorced can not be considered valid in india until n unless it is contested & granted based on Hindu marriage Act.
 
I need to know what are the step i need to take if i want to make canadian divorced legally valid in india ? 
 
So far my ex-wife says she will sign papers for divorce if i present it but i am not 100% sure on her.
 
Please guide me.
 
Regards
Mayank


Learning

 4 Replies

A.Radha Sampath (Advocate)     20 August 2015

If you file for contested divorce and the other spouse contested and a decree is passed in foreign court then you can validate it by presenting in our concerned courts.

If it is an exparte decree, it has no value in our courts and it is as much as not being divorced.

If it is MCD, it is valid even in our indian courts

Adv.Vandana Vaidya (Advocate & Regd. Patent Attorney)     21 August 2015

Here's the requirement for Mak to file a divorce in Canada (answer to A.Radha Sampath and Raj123:)

Mak you are eligible to file divorce in Canadian Court, if you both are resident of the Country and both of you agree to submit to the jurisdiction of the Court. Your query very well says, your wife has never been to Cananda, then how can you file a case in Canada? This ex-parte degree has no value in he eyes of Indian personal laws. So you both are not divorced in the eyes of Courts and the personal laws our Indian Country. 

 

 

 

Mak (sale)     21 August 2015

Thanks for reply. As i already mentioned that she never been to canada & based on law of province where i am staying , i applied accordingly. 

I want to know that As we are already separated more than 2.5 years without any contact to each other. Does Desertion based on 2 year will allow me to apply in indian court ? What could be time line if i applied based on desertion of 2 years ? Please advise me on this process.

 

Anand   21 August 2015

Hi Mak, this is a tough one. Even though she hasn't been to Canada, from my understanding (as I live in a similar country, Australia) you should have sent her the Canadian divorce papers to sign in India and had her dial into the Court hearing so that your divorce was granted on mutual consent.

 

Before going through Indian courts (and breaking your head in the process), I think you should try and give this a shot: ask your wife if she's still willing to sign the Canadian divorce papers for divorce by mutual consent and ask the Court you went to if the ruling can be revised from ex-parte to mutual consent. Explain to them your situation that the divorce will only be valid in India if it is by mutual consent and that your wife has agreed to co-operate. I hope they'll listen. This way it should be valid in India - you don't have anything to lose by not trying.


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