I'm writing on behalf of my cousin, who lives in Australia. He and his wife are permanent residents of Australia. He wants to file divorce in the Indian court on the basis of restoration of conjugal rights. He wants to know if it can be filed in the Indian court when both of them are in Australia. They are Indians and have been in Australia for the past 5 years. His wife holds an Indian passport, where as he holds the Australian passport. He was told that he cannot file for restoration for conjugal rights in India when they both live in Australia. Is that true? Thanks
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Divorce can be filed only on the grounds available under the Hindu Marriage Act, (I presume your cousin to be governed by Hindu Law) and restoration of conjugal rights does not count among one. A petition for restoration of conjugal rights is under Hindu Marriage Act an attempt to save the marriage by praying to the court for a decree directing the other spouse to resume cohabitation. On the other hand, a marriage can be dissolved by a court of competent jurisdiction on the ground of cruelty, adultery, desertion, etc. Your cousin can file for divorce on any of these grounds.
If the marriage was solemnized in India or the couple last resided in india, jurisdiction for divorce will lie with the Indian courts even if the couple is domiciled in Australia.
Thanks so much for your respons. He is a Christian and married in India, so I'm not sure if its applicable under the Hindu Marriage Act. He and his wife live under the same roof as strangers. It was his lawyer who adviced to file for restoration of conjugal rights and wait for a year and later on file for divorce if there was no change in status. Later on he was told that he wouldnt be able to do so as both are living in the same house. Thats why I need clarification on this.