OCIdivorce (others) 05 July 2015

Oci wife being dragged in australian court

Hello

I am an OCI wife who has been tortured by husband and his family memebers for proerty settlement as per australian family law. I was married in INDIA as per HMA and our matrimony contined in india for 8 years till aug 2006. We both were domiciled in india at the time of marriage. We migrated to australia in 2007 and my husband acquired the australian citizenship in 2009 and i got in 2010. My husband is a mechanical engineer from A very recognised uni in inida But he always preferred a low paying jobs for less stress and enjoy. And so most of the time i had to play a role of the bread earner as he always had an excuse of low salary. His demand for money continues in the matrimony time in india and also in australia. In australia he also took the depression medications. He has been very cruel to me as well as my parents through out our matrimony. He also had lots of conflicts to various people and organisations of society in india and in australia. Due to his un reasonable demand of money and his issues in the society i was very nervous and stressed. Whenever i had discussed this matter with his elder brother (who is suppose to be running their family matters as his parents are old) he always told me to keep up with that and keep supporting his brother due to his mental illness. This unreasonable and irresponsible behaviours from my inlaw's side also made me quite nervous and stressed. Hence in 2011 i left my husband and kept on living alone for some time and then with my parents. The issue is since last one year both my husband and his brother are after me to settle the property as per australian family law and give quite a lot of moeny to my husband as well as life time of spousal support since he can not earn . I have offered them to settle the divorce in India on mutual consent basis and i had also offered them some amount to settle it peacefully and as mentioned in the section 24 of the HMA. While this discussion i left australia and travelled to india to get more details.

My questsion is 1) do i have to follow the australian family law or my case should be as per the HMA and the divorce and maintenance and property division should be as per the HMA. 2) Is their act of asking money from my hard earn money qualifies as dowery and section 498 can be used against them? 3) What should be the best approach to progress my case.
Please help. I am really very nervous and looking for a guidance from all the esteemed lawyers in india. Thank you.

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OCIdivorce (others) 05 July 2015

Alos My husband is OCI as well. He has been living in australia for past one year and i was in aus for past 2 years but i travel in and out of country based on my work requiremetns. i dont have any house in australia and there had been no physical contribution by my husband in my property which is mainly a savings i made from my past earnings.

Kappil Cchandna (Expert Bail & Criminal Defence Lawyer at Delhi Supreme Court of India) 05 July 2015

Mam,

You can file a divorce case in India on the grounds of mental cruetly and seek lumpsum alimony under Section 25 of the HMA, becasue your case is covered under HMA and not any Australian Law.

You better intiate the proceedings in India and let him become the party to it .

Fell free to call and discuss.

Warm Regards

Kapil Chandna Advocate

09899011450

CompelledToLearnLaw (Financial Examiner) 06 July 2015

I disagree with Advocate Kapil Chandna ji: HMA 25, just like HMA 24, is a gender neutral law. She is in a better financial position than her husband. So the husband too is entitled to launch an application under HMA 25 for permanent alimony. The Court will decide whose application of 25 will succeed.

25. Permanent alimony and maintenance.-

(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall, while the applicant remains unmarried, pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant and the conduct of the parties, it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.

Reference: The Hindu Marriage Act, 1955.

The author nicely lived with her husband until she received her Australian citizenship in 2010, and left her husband in 2011, probably on the same day when she received her OCI, and now she thinks she can suddenly disregard the laws of Australia by ditching responsibility towards her husband. In Australia, a spouse with means needs to pay maintenance to the spouse who needs the support. The Court will consider his mental illness very seriously and into his favour.

Lady, if u wanna avoid paying ur husband maintenance in Australia, u better pack ur bags and leave Australia to go work somewhere else. Getting a divorce through the Hindu Marriage Act or the Zulu Marriage Act or the likes will not exempt u when he prays to the Australian Court for his maintenance. The Australian Court will certainly consider the amount paid to ur husband by u in India, if any, and if u can prove it. If the Indian Court decides not to grant maintenance to ur husband, it's decision will have no binding force on the Australian Court. If the Australian Court awards him maintenance and u failed to pay, ur wages will be garnished, and ur assets will be seized if required. The Courts there do not work as slow as the ones in India. Any money he spends, in efforts to collect overdue payments, will be charged to u.

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