Monday, January 28, 2013
1.Can I File divorce petition without coming to India
Yes, you can file divorce petition without coming to India. You can file Divorce petition from the place of residence of the respondent(in case if husband is petitioner or in case wife is petitioner), or the place of marriage or the place where the couple last lived together. wife can file wherever she resides after separation.
2. How many times I have to attend the court hearing for divorce case in India?
Its depends upon circumstances. Means if your cross examination is over on the same day then rest of proceedings are for lawyers.
3. How many times I have to attend the court for mutual consent divorce ?
In case of mutual consent divorce you have to attend/appear in court twice for the purpose of recording the statement in court. In so many courts now camera/video conferencing has been started and you can record your statement through the video conferencing but its totally depends upon the court to court as there are so many complication.
3. Should both the spouses attend the court hearing for divorce in India?
If it is for divorce by mutual consent, both of them should attend the hearing for the purpose of recording the statement but some time court may consider one if other is out of country and he or she has given the power of attorney to represent her or him in court, but remember its totally depends upon court.
4. can a person seek divorce Under Hindu Law within a year of marriage?
Under Section 14 of the Hindu Marriage Act, 1955, no petition for divorce can be filed within one year of the marriage. But in exceptional circumstances, The Honorable High Court is in empowered to grant leave to file the case before the expiry of one year.
5. How much time it will take to get divorce in India?
If it is a divorce by mutual consent of the spouses, Six months from the date of filing. It is possible to get divorce before six months, recently The Honorable Supreme court has dissolved the marriage before expiry of six months.
6. How much it will cost me for getting in India?
It depends on the lawyer to lawyer as in India there is no fix fees schedules.
7. What are the Documents require for mutual consent divorce?
Address proof, passport size photograph of petitioner, marriage card if available, marriage certificate, marriage photographs and ID proof..etc.
8.how I can annulled or Nullity of my marriage ?or what is the procedure to annulment of marriage in India?
Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-
(a) that the marriage has not been consummated owing to the impotency of the respondent; or
(b) that the marriage is in contravention of the condition specified in clause (ii) of Section 5; or
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978, the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or
(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
9.can I claim or seek maintenance in divorce case proceeding?
As per section 24 of Hindu marriage act, Maintenance Pendente lite and expenses proceedings. Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner' s own income and the income of the respondent, it may seem to the court to be reasonable
10.can I seek child custody or child visitation in divorce ?
As per section 26 of HMAct,
Custody of children. In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such, orders and provisions with respect to the custody, maintenance and education of such children as, might have been made by such decree or interim orders in case the
proceeding for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made
11.Judicial separation in India meaning and procedure.
Petition for Judicial separation may be presented on any of the grounds specified in divorce like--adultery, desertion, cruelty, chronic illness etcor on grounds of failure to comply with RCR--then it shall be no longer obligatory for the petitioner to cohabit with the respondent.
12.How I can transfer divorce petition from court where its filed by my husband at my place ?
The Supreme Court has the power to transfer the cases from one High Court to another and even from one District Court of a particular state to another District Court of the other state. In such transfer cases the Hon’ble Supreme Court transfer only those cases if they really lack appropriate territorial jurisdiction and those cases which were otherwise supposed to be filed under the transferred jurisdiction. Hon’ble Supreme Court often looks at the real ground / reason for such transfer.
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13.I am in USA and got divorce, is it valid in India ?
A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-
(a) where it has not been pronounced by a Court of competent jurisdiction.
(b) where it has not been given on the merits of the case.
(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable.
(d) where the proceedings in which the judgment was obtained are opposed to natural justice.
(e) where it has been obtained by fraud.
(f) where it sustains a claim founded on a breach of any law in force in India.
14.I am in India my husband/wife filed divorce petition in USA/UK/Australia/foreign, I am not able to contest the proceeding, if he or she obtain the decree of divorce in foreign, is it valid in India ?
foreign judgment/decree of divorce then it will be valid for dissolving such Indian marriage as has been held by the Supreme Court of India in several of its judgments. The very first condition is with regard to Jurisdiction of such foreign court, what it means that both or either of the parties should be residing in the foreign country where from such decree of divorce has been obtained. The second important condition is with regard to merits of the case for divorce, whether those merits considered by the foreign court to arrive on this conclusion or not. Next, a proper notice was served to the other party with regard to such divorce proceedings & the other party was assigned a sufficient time to file his or her defense against the case, hence following the principle of natural justice. There was no fraud or force involved in such case & both the parties either mutually agreed to surrender itself to such foreign court for getting the decree of divorce or neither of them objected to such foreign court proceeding with such matter & deciding it accordingly. Lastly the decree so passed by the foreign court should not be such which may not be executable in India