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Tara   29 September 2023

Nri contesting divorce in india

My brother lives in USA and he and his wife separated 8 months after marriage. My bhabi came back to India and filed several criminal cases against all of us. My brother filed a divorce case, however, he was advised by some friends of his that all he needed to do was to send the signed vakalatnama to India and although his lawyer also said that he should notarise it in embassy, he could not since he was short of time and the embassy was 70 km from his residence. He sent back signed papers (affidavit page on petition) and vakalatnama to his lawyer and he filed the divorce case. My question is, will the court accept the petition since he is NRI and the documents including vakalatnama has been signed and sent without notary/stamp at Indian embassy? The case has been filed. Kindly advise. What to do if any issue is raised by other side?


 6 Replies

Sumitra kumar   29 September 2023



Meet a local prudent advocate since the assimilations of facts narrated by you may have discrepenices or not understood property.


Thank you.

T. Kalaiselvan, Advocate (Advocate)     29 September 2023

The vakalatnama given by your brother duly executed in a foreign country should be attested by a local notary public or by an official of the Indian embassy.

The distance from his residence to the place of notary or Indian embassy cannot be claimed as an excuse for not getting the needful done properly.

The court on scrutinisation finds that the petitioner is a NRI and currently residing in a foreign country may reject the petition for this reason itself. 

In that event he has to comply with the instructions as directed by court while returning the papers. 

Dr. J C Vashista (Advocate and Legal Consultant)     30 September 2023

Since the case is already stated to have been filed by the lawyer (in India) on the basis of vakalatnama, which has been found to be in order, let the case may proceed till someone objects.

Seek opinion and advise of the lawyer engaged by you or your NRI brother for proper guidance and necessary action, if any.

Toqeer Janjua   04 October 2023

Meet a local lawyer and discuss with him your case is not a big deal.

Maya   07 October 2023

I have several videos of her torturing me and the kids - she has major anger issues and many times resorts to voilence and abusive yelling in front of the kids. However all these videos are shot in Canada. Will they be of any help for my defense?

If I am stuck in India due to my passport being confiscated, I will lose my job in Canada. Which I worry ab a lot

LCI Thought Leader Sanjeev Duggal Advocate   30 November 2023

NRI couples who got married in India have the option of divorcing in Indian courts by meeting the stipulations specified. They are permitted to apply for divorce in their home country rather than in India, if that is their preference.

In India, you are allowed to petition for divorce in the county where "you last resided as a couple." This means that you can petition for divorce in a court in your nation of residence if your marital home or your most recent place to live together was there.

The courts recognize an NRI's petition for a divorce by mutual consent and record both parties' testimony.

Vakaltnamma signed by you and duly notarized in USA is acceptable in Indian Courts.

Sending a vakalat to the attorney in a criminal case is insufficient; one must personally appear before the court for the initial hearing.

Additionally, you must have appeared in court at least once before you can submit a counter.A power of attorney can be granted to a reliable individual, typically a family member, to represent a party who is unable to attend in court. The court grants the first motion after the divorcing parties' remarks have been recorded.The parties have six months to decide whether to reevaluate their divorce after the first motion is granted. Either party may change their mind at any point during this period. The second motion stage, when both parties must be physically present to confirm their permission, is the next step if neither party withdraws consent. Following this stage, the divorce is granted.

Both parties must be present for the confirmation of their consent through recorded statements in court during the second motion stage.

Indian law allows filing for divorce in a foreign court, but the proceedings are not governed by Indian laws. Sections 13 of the Civil Procedure Code, 1908 declares foreign decrees null and void if they are obtained fraudulently, not granted on merits, based on incorrect international law, refuses Indian law applicability, were not pronounced by the appropriate court, violate natural justice principles, or breach Indian law.

The DV Act, 43 of 2005, Section 23(2), allows for the passing of an ex-parte order in order to get the benefits listed in the DV Act.

1. The Supreme Court ruled in Rajesh Sharma &ors v. State of UP & Anr. that all family members, particularly those who live far away, may not be required to appear in person. Instead, the trial court should grant exemptions from personal appearance or permit appearance by video conference without jeopardizing the trial's progress. The same is done with regard to 498a cases, but as DV also exclusively includes matrimonial strife, it may also be applicable there.

2. The Supreme Court stated the following in AbdusSamad v. State of West Bengal (1973) 1 SCC 451: By domicile is meant a permanent home. Domicile is the location that a person has made their home for themselves and their family, not only for a one-time use or temporary residence but with the current intention of making it their permanent residence. So, the domicile of choice is a product of a freely made decision.

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