FOREIGN COURT DIVORCE DECREE VALIDITY IN INDIA

FOREIGN  COURT DIVORCE  DECREE VALIDITY 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.

So these six conditions are fulfilled by such 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. In your case if you both had agreed for going through such divorce in Spain through their Family Court having similar status as Indian Family Court, such decree of divorce was passed after considering all the merits of your case, both the parties were heard & their statements properly recorded by the foreign court & a proper judgment followed by the decree passed by such foreign court dissolving your marriage, then this will be a valid dissolution of marriage & the decree of divorce executable in India. Now should you get this decree of divorce declared as valid by the family court of India or not. It all depends on you or on the precondition as mentioned in such decree of divorce by the foreign court. Some foreign courts do put a condition in the decree to any such matter to become valid only after the Indian court or competent government authority gives its ascent of approval on such decree. In such a case you have to file an application in the Family court of competent jurisdiction as discussed above in India to get the approval & validation of such decree of divorce. Otherwise it is entirely on both of you to go in for Indian court validating such foreign divorce decree or not, for all purpose you both can proceed for second marriage if such foreign divorce decree was obtained keeping in mind all the prerequisite conditions as mentioned in section13 of the CPC. Try using the Foreign Family Court divorce decree for both these purposes if the Indian government/authorities don't agree then get this decree validated by Indian

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Foreign divorce decree in India

when a foreign court divorce decree is valid in India

 Foreign Divorce  Decree Validity 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.

So these six conditions are fulfilled by such 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. In your case if you both had agreed for going through such divorce in Spain through their Family Court having similar status as Indian Family Court, such decree of divorce was passed after considering all the merits of your case, both the parties were heard & their statements properly recorded by the foreign court & a proper judgment followed by the decree passed by such foreign court dissolving your marriage, then this will be a valid dissolution of marriage & the decree of divorce executable in India. Now should you get this decree of divorce declared as valid by the family court of India or not. It all depends on you or on the precondition as mentioned in such decree of divorce by the foreign court. Some foreign courts do put a condition in the decree to any such matter to become valid only after the Indian court or competent government authority gives its ascent of approval on such decree. In such a case you have to file an application in the Family court of competent jurisdiction as discussed above in India to get the approval & validation of such decree of divorce. Otherwise it is entirely on both of you to go in for Indian court validating such foreign divorce decree or not, for all purpose you both can proceed for second marriage if such foreign divorce decree was obtained keeping in mind all the prerequisite conditions as mentioned in section13 of the CPC. Try using the Foreign Family Court divorce decree for both these purposes if the Indian government/authorities don’t agree then get this decree validated by Indian


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restitution of conjugal rights of marriage

Restitution of Conjugal Right of marriage.

The Hindu Marriage Act,1955

9. Restitution of conjugal rights.-

 When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.


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Judicial separation law in India

judicial separation

The Hindu Marriage Act,1955 10. Judicial separation.- 1 [(1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.] (2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so. -Phone: +91-11-40513913,22022079,9999318690. -Blog: http://delhi-divorce-lawyer.blogspot.in.

valid grounds for divorce under Hindu marriage act.

Divorce under the Hindu Marriage Act 1955 can be obtained on the grounds of:

1. Adultery

2. Cruelty

3. Desertion for two years

4. Conversion in religion

5. Unsound mind

6. Suffering from venereal disease and/or Leprosy

7. Either spouse has renounced the world not heard for 7 years

8. No resumption of co-habitation for one year after the decree of judicial separation

9. No restitution of conjugal rights for one year after decree for restitution of conjugal rights Husband guilty of rape sodomy or bestiality.

10. And if after an order of maintenance is passed under the Hindu Maintenance and Adoptions Act or the Criminal Procedure Code there has been no cohabitation for one year.

As regards the maintenance and adoption of children, Hindus are governed by The Hindu Adoption and Maintenance Act.


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dowry case under sec.498a-ipc-India

498 A-IPC (DOWRY LAWS IN INDIA)

Indian Penal Code – Section 498A, IPC

Introduced in the Penal Code by Criminal Law (Second Amendment) Act of 1983

(Act No. 46 of 1983)

498A. HUSBAND OR RELATIVE OF HUSBAND OF A WOMAN SUBJECTING HER TO CRUELTY:

Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation: For the purposes of this section, “cruelty” means

(a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman;

or

(b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

Analysis of the section shows that this law deals with four types of cruelty:

Any conduct that is likely to drive a woman to suicide,

Any conduct which is likely to cause grave injury to the life, limb or health of the woman,

Harassment with the purpose of forcing the woman or her relatives to give some property,

or

Harassment because the woman or her relatives are either unable to yield to the demand for more money or do not give some share of the property.

Section 498A of the Indian Penal Code, is a criminal offence. It is a cognizable, non-bailable, and non-compoundable offence.

Unfortunately, the formulation of this law left a host of loopholes for exploitation and abuse.

20+ years later, if a family has an estranged `Bahu’ (daughter in law) in their family, the entire family can be jailed under Section 498A of the IPC, based on a complaint in the police station. The objective of the ‘Bahu’ and her parents is to subject the family to an ordeal designed to break their will and ensure that they give in to whatever demands put forward.

This law exposes families who belong to the middle and upper middle classes of society and NRIs, as these segments of society are vulnerable to legalized extortion by corrupt agencies of the government.

There is no way to avoid a 498A from being filed, unless the family is very well connected or somehow manage to make her realize that it is not in her long term interest to change a domestic dispute into a criminal offence.

A typical case will go on for 3 to 7 years.

From the people you talk to and from the online portals you visit, you will learn that this is a criminal law to combat domestic violence and dowry harassment etc, etc, etc. I’ll ignore this and cut to the chase.

In its present form,

In legal terms, 498A is an offence, which is:

Cognizable: Offences are divided into cognizable and non-cognizable. By law, the police are duty bound to register and investigate a cognizable offence. 498A is a cognizable offence.

Non-Bailable: There are two kinds of offences, bailable and non-bailable. 498A is non bailable. This means that the magistrate has the power to refuse bail and remand a person to judicial or police custody.

Non-Compoundable: A non-compoundable case, e.g. Rape, 498A etc, cannot be withdrawn by the petitioner. The exception is in the state of Andhra Pradesh, where 498A was made compoundable.

In actual terms, 498A is an offence, which is:

Cognizable: The police will register a 498A case since it is required by law, but they don’t investigate but go on to arrest people because of the money to be made in bribes from both sides in a 498A case.

Non-Bailable: Since bail is at the discretion of the magistrate, all sorts of games will be played to have families locked up while negotiations go on to settle the case. This may happen in cases where the magistrates are allegedly corrupt or, the public prosecutor and the cops are in cahoots.

Non-Compoundable: Though 498A is non compoundable, the courts are allowing the withdrawal of the case when the parties agree to reconcile or settle case. In real terms, if you pay up, the case goes away. If you don’t you’ll get stuck with a criminal case that will go on for years.


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MAINTENTANCE IN DIVORCE IN INDIA

MAINTENTANCE  IN  DIVORCE  IN INDIA

Maintenance pendente lite and expenses of 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 the petitioner the expenses of 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.

Sec.25 Of Hindu Marriage Act 1955 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 purposes by either the wife or the husband, as the case may be, order that the respondent shall 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 of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the immoveable property of the respondent.

(2) If the Court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.

(3) If the Court is satisfied that the party in whose favour an order has been made under this Section has re-married or, if such party is the wife, that she has not remained chaste or if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in

such manner as the court may deem just.

The following are the conditions depending on which alimony is awarded by the court.

Alimony is generally not granted to the seeking spouse if he or she is already receiving support during the time of divorce. Although the rewarding of alimony can be revised in such events based on the arguments for claiming the support.

In case of a contested divorce, often spouses fail to come to any understanding regarding alimony. In such situations, the court takes up the task of making a decision on the amount of alimony to be paid.

Only under certain compelling situations the court steps out to change the already framed alimony. Some times the court might even hand over the burden of paying for the maintenance to a public body.

The following are the factors that influence the duration and amount to be paid as alimony.

The amount and duration of alimony generally depends upon how long the marriage existed. Marriages that lasted more than 10 years are entitled to be granted a life long alimony.

Age of the spouse is also taken into consideration while awarding alimony. Normally a young recipient of alimony gets it for a short period of time if the court thinks that he or she will soon be able to become financially sound trough prospective career excellence.

Alimony is also in vogue in order to equalize the economic condition of both the spouses. The higher earning spouse is entitled to pay a heavy amount as alimony.

The spouse who is projected to be enjoying a prosperous career is liable to pay high alimony amount.

If one of the spouses is suffering from poor health, the other is subjected to payment of high alimony to ensure proper medication and well being of the other spouse.

The terms and conditions of payment of alimony in India vary from one personal law to another. None of the Indian personal laws are spared from criticism due to existence of flaws in framing definite rules for granting alimony. The Shah Bano case is one such instance that exposes how the sustenance of a divorced woman is affected due to inclusion of inappropriate laws regarding post divorce maintenance and financial support.


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