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JYOTI GUPTA (am)     29 June 2011

Summon outside India

 

 Respected Sir/Madam,

I got married in April 2008, and husband was doing PhD in switzerland....and his parents living in delhi.... married in delhi only...

I went there for 3 months and things were not gud between us... lot of mental trauma and harrasment was there...

Came back to India in Nov 2008 and living with my parents since March 2009.

Today I filed the case on ground of desertion and cruelty in my family court of my city…

Being honest, we gave my husband Permanent address in India.. and since he is abroad we also gave his office as well as residence address in the switzerland.

when the judge ordered for summon to be send.. the Babu their said, since two addresses are of abroad how will you send on these addresses… We said we will send it directly then he said.. no it should go thru the Embassy only…... (our lawyer was also ignorant of this fact...)

We thought we need to send it to Swiss embassy in New Delhi only...and when I came back home I called swiss embassy in delhi and after some discussion the person there told me that you dont need to send it to us.. it will go  thru Min of External affairs..

Then I called on a few no. in Min of External Affairs  and they all gave me a new no to follow up and finally the matter was put in the court of Min Of Law & Justice...

Then I called Min of Law & Justice and after trying a few no. I got the correct person who will take this matter.. he told me to send the letter to him and he will forward it to Indian embassy in Switzerland... and they will send it further to my husband..

But I see a lot of time waste in this procedure.. and this procedure is still not very much clear to me… How will it all go…   

So my question is... Is it possible if do not send summon to him in switzeland and send him summon only at Delhi..which is his permanent address and also mentioned in our marriage registration certificate as well..

 

Kindly tell me the best possible way to finish this case as soon as possible...

We dont want any alimony or maintence or any kind of claim from my husband..

 

Please guide.

 

thanks

 

I want advice from you how the things happen in such cases… What is the correct procedure… What I am saying is correct or not… 



 14 Replies

Sajeev Menon (Legal Consultant Dubai 00971 508836442)     29 June 2011

Dear Jyothi,

 

You have to get him summoned through the Indian Embassy at Swiss legally. Without serving proper legal summons you cant get the exparte decree or if you managed to get the exparte decree by hiding the fact that the respondant is residing at Swizz, it will amounts to defrauding the court by supressing the material fact of respondants present address. I hope that you can implede his parents as respondants and let them to furnish his correct address. If parents are implicated automatically son will turn up to court.

JYOTI GUPTA (am)     29 June 2011

Dear Sir,

Thanks for the reply.

Sir, the problem is no one knows the correct procedre to be followed to send summon to switzerland... some say it will be thru this ministry, other say civil case doesnt need to be summoned thru embassy... and many diff opinion..

 

Now the main point is, If we go by rules and procedure than it will take quite long time to get divorce(esp seeing red tapism in India).. further my in laws have cleared their side by saying gal can get divorce on her own if she want.... So it means they have no objection If I take divorce by ex parte...

 

SO woudnt it be better if I send summon only to Indian address i.e. delhi and get decree.... 

Please correct me if I am wrong..

Amit Parmar (Junior Lawyer)     30 June 2011

Hello Jyoti,

                   I agree with the advise of Mr. Sajeev any notice,  summons, or warrant is always sent through Indian Embassy, As u have already filed a divorce decree which is having a civil nature, it will definately going to take a long time to end this litigation of your's.

                    So as the only thing you want from your husband is divorce, then why dont you take the benifits of the Domestic Violence, 498a... etc.

                     As this laws are very useful and vital weapons of the women and the trial is also speedy regarding to the divorce decree ..........  

**Victim** (job)     30 June 2011

@ Advocate Amit Parmar -----> Proceeding of DV, 498 (a), Crpc 125 is it going to be civil or criminal in case if husband is abroad ? What is she going to get if she files all such cases despite of the fact that husband is outside country ? Only if husband is in india then we could definately encourage her to file DV,498(a) or Crpc 125 against husband. In case if she files all such cases it will be more harder for her husband to respond for divorce.........he can keep her hanging for longer time asking for divorce.....but this is just my thinking if u have a different opinion about this pls share with us so that we can also learn from you.

**Victim** (job)     30 June 2011

@ Jyoti i am not an expert or lawyer but i think below post will help you a lot to serve summons to your husband abroad............i suggest you read Paragraph (G) highlighted in red where it clearly defines extradition procedure but Extradition in Marital disputes is not going happen so just rethink before you take steps of 498 (a), Crpc 125 or DV. Your husband is domiciled in foreign land there are certain limitations of Swiss jurisdiction as well............


 

 

Comprehensive guidelines referred to in Letter No. 25016/17/2007-Legal Cell, dated ______ of Internal security Division, Ministry of Home Affairs regarding service of summons/notices/judicial process on persons residing abroad. --

1. Section 105 of Criminal Procedure Code (CrPC) speaks of reciprocal arrangements to be made by Central Government with the Foreign Governments with regard to the service of summons / warrants / judicial processes. The Ministry of Home Affairs has entered into Mutual Legal Assistance treaty/Agreements with 22 countries which provide for serving of documents. These countries are Switzerland, Turkey, United Kingdom, Canada, Kazakhastan, United Arab Emirates, Russia, Uzbekistan, Tajikistan, Ukraine, Mongolia, Thailand, France, Bahrain, South Korea, United States of America, Singapore, South Africa, Mauritius, Belarus, Spain and Kuwait. In other cases the ministry makes a request on the basis of assurance of reciprocity to the concerned foreign government through the mission / Embassy. The difference between the two categories of the countries is that the country having MLAT has obligation to consider serving the documents whereas the non-MLAT countries does not have any obligation to consider such a request.Summons/notices/judicial processes issued by the Indian Courts.

2. The summons/warrants/judicial processes received by MHA are forwarded to the concerned Indian Missions/Embassies which in turn, takes up the matter with the designated authority in that country. In case of MLAT countries, the manner of communication is as laid down in MLAT and can be either directly between MHA and the Central Authority or can be through the diplomatic channel. The designated authority after considering the request directs its agency to serve the document on the concerned person and the report of the service, if any is also received through the same chain. This is broadly the system in majority of the countries. However, in some countries private companies/NGOs have also been entrusted with the service of judicial papers.

3. Based on the experience gained, some guidelines are given below which may be followed while making a request to MHA for service of judicial processes. It may, however, be noted that it is the discretion of the requested country to serve the documents and any time frame for a positive response cannot be predicted.

a) All requests for service of summons / notices / judicial processes on persons residing abroad shall be addressed to the Under Secretary(Legal), IS-II Division, Ministry of Home Affairs, 9th Floor, Lok Nayak Bhawan, New Delhi- 110003. All requests shall be forwarded through post only with a covering letter from the Registrar/Court official giving the following information: a) Material facts of the criminal matter including purpose of the request and the nature of the assistance sought. b) The offences alleged to have been committed, a copy of the applicable laws and maximum penalties for these offence. c) Name, designation, telephone and fax number of the person/officer who will be able to give any clarification, if required. d) The complete address of the issuing authority to which the judicial papers/service reports may be returned. e) Approval of the competent authority to bear any expenditure, which they be charged by the foreign government/agency for the service of the documents. f) Degree of confidentiality required and the reasons therefore(in case of confidentiality requirement). g) Any time limit within which the request should be executed. This will be subject to allowance of sufficient margin of time by the requesting agency, as indicated in para 3(iv) of the guidelines b) MHA, on receipt of request, will examine it in view of the provisions of treaty, if exists, with the requested country and as per the provision of CrPC in case of non-treaty country. c) MHA requires at least a period of 12 weeks times for service of such notices in the concerned countries. It is, therefore imperative that a date of hearing/appearance may be decided accordingly. d) In the case of non English speaking countries, the notices should be accompanied with the certified/authenticated translation(in duplicate) in the official language of the country where the notice is proposed to be served. e) Name and address of the individual/organization should be complete in all respect and PO BOX no. and Passport no. will not suffice as address of the individual. f) Ministry of Home Affairs responsibility to service the summons is only in Criminal Matters. Hence, summons in Criminal matters only may be sent to the Ministry for service abroad. g) MHA does not undertake service of the non-bailable warrants of arrest. The service of non-bailable arrest warrents amounts to the extradition of the individual. The request for extradition are based on certain legal procedures contained in applicable treaties negotiated on the basis of the International Principle of Extradition. Such requests are to be forwarded to the Ministry of External Affairs, CPV Division, Patiala House Annexe, Tilak Marg, New Delhi – 110001."

JYOTI GUPTA (am)     30 June 2011

Thanks to all of you for replying to my query..... it is of much help..

 

but when I discussed with few person at my level regarding such cases, they are saying file for the case in delhi only... coz

1.u are not demanding anything...

2.they also want to end the relationship

3.they wont contest the case... as per their saying(coz they have said that gal can take divorce on her own if she want)

Now regarding delhi,  the marriage was held in delhi only and this is permanent address of my husband....written on marriage certificate and everywhere else..

further my husband is doing his PhD in switzerland, and we have no clue abt his whereabout for last two years... 

Plz clarify

Adv. Chandrasekhar (Advocate)     30 June 2011

First, sincere thanks to Mr. Victim for supplying this valuable information.

Next, it is not applicable in the case under consideration for the reason, the author is asking the procedure of serving summons on defendant (not accused) in divorce proceedings (purely civil proceedings and have no connection to the criminal proceedings) and Order V of the Civil Procedure Code is applicable and not Section 105 Cr.P.C. as explained by Mr. Victim.  The procedure that is laid down in the above circular relates to only criminal proceedings, such as Section 498-A.  So, to solve the problem, we have to refer the R.25 of Order V of C.P.C., which I reproduce below:

25. Service where defendant resides out of India and has no agent

 

Where the defendant resides out of 4[India] and has no agent in 4[India] empowered to accept service, the summons shall be addressed to the defendant at the place where he is residing and sent to him 1[by post or by such courier service as may be approved by the High Court, by fax message or by Electronic Mail service or by any other means as may be provided by the rules made by the High Court], if there is postal communication between such place and the place where the Court is situate :

In this case, she can directly send the notice /summons of the case accompanied with the petition directly to the residential address / official address of the husband in foreign land vide Registered Post / Ack. Due, speed post (if service is available) and authorized courier service (if service is available) and even by e-mail with the approval of the court.  If he receives the notice and does not appear in the court ex-parte proceedings start.  If he refuses to receive the notice and the postal employee makes such remark on the envelope and returns the same to the court, then the court thinks it deemed service.  In addition to this, the court can send the notice / summons to his last known indian address.

For me, the court clerk misled the court and it is the responsibility of the party / her  advocate to appraise the court with the rules, so that the court can take appropriate action.  In this case, to resort to serve the notice through the Indian Embassy in the country via Ministry of External Affairs is not required as it is not a criminal case.  

1 Like

**Victim** (job)     30 June 2011

@ Jyoti since your husband is cooperating with you and since he is willing to give you divorce.....first of all both of you will be asked to sign no objection letter in which both of you will agree that after dissolution of marriage none of you will have any objection after doing this since your husband is in switzerland he can appoint a lawyer in india and request court for procedure called "Performa-Party" in which your husband can seek for reciprocal arrangements via video conferencing and give you divorce remotely once judge is satisfied by both of you he or she will dissolve this marriage..........

Adv. Chandrasekhar (Advocate)     30 June 2011

After placing my post, I have got the benefit of going through the author's post timed at 8.32 and came to know that she does not know his address abroad.  But one thing must be sure, that either notice has to be served or deemed to be served to the satisfaction of the court to proceed further in this case.  For that, what I suggest is to give permanent address of the husband in Delhi and get the notice served.  If returns to the court without service, ask the court for substituted service, i.e., newspaper publication.  If the court gets hint that he is living abroad, till the notice is properly served, the court will not proceed further.  As the marriage was held in Delhi and the defendant husband permanent residence is Delhi, she can file the case in Delhi.

JYOTI GUPTA (am)     30 June 2011

Thanks a lot chandu sir for all the help you provided me here as well as on phone...

You were able to catch the nerve of my case and going per ur suggestion.. we are continuing with the yesterday case... our lawyer is also aware abt Order V Rule 25.. and now there will be no need of sending summon by embassy or Ministry.. it will be send only by Reg post/speed post...

and we are simultaneously sending it to his Delhi address as well... and my in laws are agreeing to receive the summon,.

 

so lets hope for the best..

 

THanks to this forum for so much help to me

Pradeep Kumar (Lawyer)     01 July 2011

Dear Jyoti,

            Summons can be served to your husband either by Post,E-mail,Fax or Political agent throguh Ministry of Foreign Affairsas prescribed by the High Court Rules Jurisdiction in your case.Now the question arise how would you do that? Well since your lawyer is oblivion about the procedure and you need to get it done promptly,get some one else to get this job done.

Pradeep Kumar & Associates

09871765000

sadhana mehta (-)     26 September 2013

Filed divorce petition in family court ,I have not asked for any maintenence or alimony , my husband lives in London is an Indian citzen, and an Indian passport holder, the address in the marriage certificate is that of India, I just want divorce as marriage was not connsumated as my husband did not reveal to me the reason, perhaps he was not capable of connsumating due to some physical disability or he is a gay I still do not know the reason  I stayed with him for one year and returned to India , please advise if summons can be sent to Indian address where his father and family resides in India , and if the father accepts it will it be deemed by the family court as served. .  Is it also necessary to send the summons to his present residence in London or his office address in london through the ministry of law and justice in New Delhi or is it sufficient to serve at the local address in India which is the permanent address of the husband.

sadana

Samir N (2HelpU) (Business)     27 September 2013

@Sadhana, Ultimately the summons will have to be served on him AND not his family members or on his permanent address. It has to be accepted by him or declined by him. Are you in contact with your husband? Is he willing to go for a divorce? How is your relationship with him? These are important questions. If your relationship is cordial, then discuss with him and arrange for him to receive the summons. Otherwise, he will try to avoid it, if he wants to do so. First, you must know of his intent.


Since you are not demanding anything of monetary value, (which is very refreshing and I wish God made more of your types), it would be in mutual interest to have an amicable divorce settlement. Perhaps you can save him the public humility of his s*xual inclinations or the lack altogether and in return he will accept some milder allegations and not unnecessarily delay the proceedings. Try and communicate all this to him so that there are no games played in the process and you both come out smiling!


When my wife served a divorce petition on me, when I was abroad, it was served through the Indian consulate and that is why I am so sure of this requirement. But the similarity of my situation with yours ends there! GOOD LUCK!!!

Arjun (Business)     22 November 2014

Im not a lawyer or an expert in this subject. My sister is  also facing the same legal procedures. My sister's husband is an NRI, who has filed a divorce petition against her three years back in India. We have also filed some counter cases against that including 498a. But we  tried to send summons to his residing abroad address from the family court of India. But we couldnot send the summons to abroad, since it is a civil case in family court.  Is it possible to send summons to abroad Indian embassies for this civil case from family court of India. Please advise


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