LIVE Online Course on NDPS by Riva Pocha and Adv. Taraq Sayed. Starting from 24th May. Register Now!!
The Indian Constitution Courses

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

Mak (sale)     25 April 2015

Nri divorce : by mcd

Hello

I got married in India in year 2009. But from Jan-2013 we got seperated  and  i moved to Canada.

Since then i never been in touch with her.

On April 2014 , we already exchange all ornaments and other stuffs in presence of her with elders from both side duly written on notarized stamp paper with signature of her and other witness.

I am Permanent Resident of Canada and i applied for divorce based on one year seperation in family court of canada. She never been to canada. We do not have kids. Family Court grant me Divorce " Ex-Partie"

I want to know that does my canadian divorce will be consider valid by Indian Law ? Can i re-marry  based on divorce judgement from Family court of canada ? If Canadian divorce is not valid in india then what i should do to make it legally valid ? 

it is for sure that we both ( me & my Ex-wife) have different ways to live life and never want together.

 

Please advise.

 

 

 


 



Learning

 14 Replies

Adv.Vandana Vaidya (Advocate & Regd. Patent Attorney)     25 April 2015

Your post is quiet confusing, on one hand, the title of your post says, you have got divorce by mutual consent I.e mcd. On the other hand you say, your wife has never come to Canada, then in such case, how could you file mcd? Normally in any foreign country, there must be a minimum period of residency and both the parties should also be subject to the jurisdiction to file a mcd.

A mcd case, (considering the residency, jurisdiction and consent of both) then there is no need of validation of this decree in India, as Indian Courts would not interfere with a decree, where parties have voluntarily subjected to a foreign jurisdiction.

However, in the absence of this, a foreign judgment can be enforced in India in one of two ways:

1. Judgments from Courts in "reciprocating territories" can be enforced directly by filing before an Indian Court an Execution Decree. 

A "reciprocating territory" is defined in explanation 1 to Section 44A of India's Civil Procedure Code as: "Any country or territory outside India which the Central Government may, by notification in the Official Gazette, declare as a reciprocating territory."

The United Kingdom and Canada are among the list of countries which has been declared as "reciprocating territories."

Presently, the United States of America is not declared as a "reciprocating territory" by the Government of India.

2. Judgments from "non-reciprocating territories," such as the United States, can be enforced only by filing a law suit in an Indian Court for a Judgment based on the foreign judgment. The foreign judgment is considered evidentiary.

The time limit to file such a law suit in India is within three years of the foreign judgment.

A foreign judgment is considered conclusive by an Indian Court if such judgment:

  • has been pronounced by a court of competent jurisdiction; 

  • has been given on the merits of the case; 

  • is founded on correct view of international law; 

  • is contained in proceedings that followed principles of natural justice; 

  • has not been obtained by fraud; and

  • does not sustain a claim on a breach of any law in force in India. 

Indian courts are overburdened and therefore slow. Enforcing a foreign judgment in India could take years in some instances, depending upon the complexity of the issues involved in the dispute between the parties.


Adv. Chandrasekhar (Advocate)     25 April 2015

The ex-parte decree is not valid in India for two reasons: 1.  Hindu Law demands two years separation (we call it desertion) without a valid reason.  2.  the decree you got there is an ex-parte one.  If she contests that decree in Indian courts, she is likely to succeed.  So, talk to her and get mutual consent divorce decree on Indian soil to obviate any future problems.

SAINATH DEVALLA (LEGAL CONSULTANT)     25 April 2015

Nothing more to add than that mentioned by the above 2 experts

Mak (sale)     26 April 2015

Thank you Vandana Ji & Adv. Chandrashekhar.

Let me clear confusion of Vandana Ji. I got divorced from Family court of canada based of one year of seperation . She never been to canada. I filled papers in family court and family court send notice of divorce process to intimidate her and wait for 60 days to get any feedback from spouse.If there is no reply or objection then court grant divorce. So i got this divorce done. We got seperated since Jan.2013 in India and its more than 2 years of seperation. 

As canada is reciprocating territories as per information posted by Vandana then does that mean my canadian legal divorce valid in india and can not be objected by her ?

Please help me in clear of this doubt. 

Let me know if you need more information.

 

 

 

 

Mak (sale)     26 April 2015

I just checked but i did not find Canada under reciprocating territories ?

 

The List of the Reciprocating Territories as per the Provisions of Section 44 A of the Code of Civil Procedure, 1908, is as under :

 

  1. United Kingdom
  2. Singapore
  3. Bangladesh
  4. UAE
  5. Malaysia
  6. Trinidad & Tobago
  7. New Zealand
  8. The Cook Islands (including Niue)and The Trust Territories of Western Samoa
  9. Hong Kong
  10. Papua and New Guinea
  11. Fiji
  12. Aden.

Is it most recent list  ?

saravanan s (legal advisor)     27 April 2015

your exparte divorce is not valid in india.since you have married in india according to hma you got to get divorce only on the grounds specified in it or the divorce proceeding in the foreign court should have been conducted according to hma which  is not possible

Mak (sale)     28 April 2015

It`s really hard to understand complexity of foreign divorce and its applicability in India.

Adv. Chandrasekhar (Advocate)     28 April 2015

Your query is not difficult to answer, but you are refusing to accept the answer.  The ex-parte divorce  you obtained in Canada on the ground of one year separation can be successfully challenged by your wife, if she intends so and your decree is not valid in India.  Also refer to Supreme Court decision Y. Narasimha Rao vs. Y. Venkata Lakshmi & Ors. (II (1991)DMC 366 SC), which has been consistently followed by Indian Courts.

CompelledToLearnLaw (Financial Examiner)     28 April 2015

Brother, ur current decree is not valid in India so the question of enforcing it in India does not even arise. Read the judgment mentioned by Adv. Chandrasekhar ji:

 

“The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may be as follows: (i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.”

https://indiankanoon.org/doc/989920/

 

As far as the ground is concerned, Canada does recognize cruelty as a valid ground for divorce but most people do not go via this route since it’s much quicker to obtain divorce by showing one year separation to prove Marriage Breakdown. Although, even if u had applied under cruelty, ur divorce decree would not be valid if ur wife residing in India did not take part in the divorce proceedings.

 

Remember, u can go ahead and marry in Canada as long as u r never gonna visit India. No one can extradite u on the ground of bigamy because Canada herself is the one who awarded u the divorce decree and u r a bona fide divorced-man as far as the Canadian law is concerned. Remarry in Canada without any worry. Just do not visit India.

 

In case u r stupid enough to remarry in India and u get booked here for the offence of bigamy: the Supreme Court of India’s view is that a person who has obtained an exparte decree cannot be convicted for bigamy. Although, in this case, the wife who was proceeded exparte against, was a resident of Canada. Read the judgment:

 

“.. ... ..the complainant Balwant Singh annexed copy of an affidavit filed by Kamaljeet Kaur which states that she was not aware of the divorce proceedings filed by her husband Pashaura Singh. However, from this affidavit, it is apparent that her husband has obtained a divorce judgment. There is nothing in the affidavit that divorce judgment has been stayed or set aside. On the face of the allegations made in the first information report, therefore, ingredients of the offence under Section 494, IPC are not satisfied.”

https://indiankanoon.org/doc/174511/

 

Nonetheless, in all likelihood, if u remarry in India, u will experience a big time harassment and maybe some jail time too.

 

The following comment is not fit for a legal forum but it gives me great satisfaction to write it:

If u r stupid enough to ever remarry anywhere, with or without a valid divorce, I hope u get booked under every woman friendly law there is in this world. Since u have failed to learn ur lesson from the first wife, I hope the second wife will set u straight. I hope beggary be ur fate after she is through with u. I hope the government will take coins out of ur pan and give half of them to her. Being homeless and begging in the freezing winters of Canada is a befitting punishment for someone who dared to walk again in the same path where he was once surprised and attacked by the cobras. I hope the cobras will finish the job during their 2nd go.

Mak (sale)     29 April 2015

Thanks Mr. Chandrasekhar & my friend CompelledToLearnLaw .

 

Biswanath Roy (Advocate)     30 April 2015

Your decree for divorce by Canadian Court  is invalid for two reasons, name,-

1. As your marriage was solemnized according to the provisions of Hindu Marriage Act  so you shall have to obtain a decree according to the provisions of the same act.

2. EXPARTE DECREE is not valid as absolute decree which can be challenged by the opponent. within statutory period by your wife, besides, Indian Law principally accepts 'reasonable opportunity of being heard in all cases but in your case a singly opportunity was given to your wife to challenge your divorce

Hence, such decree can be challenged in Indian Court.

Mak (sale)     30 April 2015

Thank you Mr. B Roy for information & reply.

T. Kalaiselvan, Advocate (Advocate)     02 May 2015

I think Mr. Compelled to learnlaw has given a verly clear picture to your querywith elaborate explanation  and conclusding opinion.  Senior learned advocate respect Roy sir has highlighted the answer very properly.  Therefore it isbetter to obtain a mutual consent divorce from her in India which will be safe for ever.

Harassedexhubby (self)     02 August 2015

Hi,

As everyone else has pointed, your divorce is not valid in India as it is ex-parte... It would have been valid if she was also in Canada at the time of divorce or the divorce was a "at fault" divorce like Indian/UK.. I think reciprocating country means countries which have a "at fault" divorce, not sure.. At fault means you need to prove that the spouse has harmed/harassed/deserted/infidel you etc.. Most western countries don't have an "at fault" divorce.. Some countries have the option of a "no fault" + " at fault" divorce like some states in USA, UK.. But countries like Canada/Australia have only a no fault divorce..

You should get some family/friends to talk to her parents and apply for a mutual consent divorce in India, this process takes about 6 months and you can come to India once and finish all the legal formalities and go back or I think you can also give power of attorney to someone to act on behalf of you.

If you are sure you can't live with her at all..please be careful not to give her/ her family the wrong feelers. As time goes by people mellow down and change their minds... If she has changed her mind in the last 2-3years and wants to stay married with you (for wat ever reasons)  and you don't want to, you could be in for some temporary trouble..

I was married to a girl in India and have gone thru an overseas No-fault divorce which was originally a mutual consent divorce and then she contested the one year separation because she changed her mind... The court accepted her claim and kept the case going for one year and then asked her after one year if she was ok with the separation and she couldnot really say No after one more year... I still don't know what her reasons for contesting a MCD application were but I knew I had to divorce for a happier life for me and her.. The court gave us 1 more year to settle all financial matters, we didn't live long together and didn't have much mutual property/finances.. They took all the marriage expenses/jewellery etc from my family in India...so I guess that was the end of the story.. After 5 years of turmoil in life and a huge financial loss both in terms of expenditures on her and lost financial opportunities, I now live in India itself and given up hopes and looking forward to a new marriage soon.. 

In your case if you don't have much family and property in India.. Just take your citizenship there, marry and live happily, don't give a heck about Indian law.. 

If you/your family plan to approach her for MCD in India please don't let herfamily know you have taken a Canadian divorce.. You could get stuck with 498a in India as the courts don't easily allow bails/ overseas travel to grooms who have taken overseas ex-parte divorce..

If indeed you have left her in India and absconded to Canada after getting your visa and she still intends to be with you.. I can assure you, you and your family will be shown hell on earth if you visit India...

 

 

 


Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register  



Post a Suggestion for LCI Team
Post a Legal Query