How can I get divorced in one country when my spouse lives in another country?

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Your question is not clear whether your spouse is an NRI or an Indian at the time of marriage, and whether marriage between you and your spouse was solemnized in India as per one of the religions in India.

If couples are Indians, married as per Hindu Laws, and both wanted to end your marriage relationship, can opt to file a Mutual consent Application under Section 13-B and may obtain divorce within short period of time i.e. probably within one year period from the date of filing.

If the spouse in another country, you may wanted to obtain divorce from him/her, however, she/he not cooperating you in the said proceedings, one option would be that you may file a case in the Indian Courts.  In Sondur Rajini v Sondur Gopal (2005 (4) MHLJ 688),  it was held that “residence of a wife with her parents at the time of filing of a petition would be sufficient to attract the jurisdiction of Court, and Petition filed Section 19 (iiia) of Hindu Marriage Act, maintainable in all Family Courts of India.

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Foreign court’s decrees especially ex-parte decree of divorce or decree obtained by fraud are not legally valid and not binding on the Indian Courts.  In Neeraja Saraph v Jayant Saraph (1994) 6 SCC 461, to safeguard the interests of the women, it was held that

  1. Foreign courts has no jurisdiction to nullify the marriages between an NRI and Indian woman, taken place in India
  2. Woman (wife) entitled to sufficient alimony in the husband’s property both in India and abroad.

The decree granted by Indian courts could be executable in foreign courts based on reciprocal agreements like Section 44-A of the Civil Procedure Code by which  foreign decree executable in Indian Courts
In Rajiv Tayal v. Union of India & Ors. (124 (2005) DLT 502: 2005 (85) DRJ 146) it was held that if husband failed to appear before the Indian Courts in any of the proceedings filed by wife in the India , whether it would be divorce or maintenance proceedings, wife has available remedy under Section 10 of the Passport Act for impounding and/or revocation of the passport of her NRI husband.

By sending summons to your spouse who lives in other country and make him to appear before Indian Courts and may proceed with proceedings.  In Vikas Aggarwal v Anubha (AIR 2002 SC 1796), the Supreme Court upheld held that Order X of CPC gives powers to make husband his personal appearance in the matrimonial proceedings before Indian Courts.  Also, in the same case, it was held that “it was open for the Court to pass a suitable consequential order under Section 151 CPC as may be necessary for ends of justice or to prevent the abuse of process of Court.”

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 By Anitha Gutti