Brother staying with wife in africa. Can he file for divorce in Africa

628 votes

As per the law prevailing in India, the parties can file divorce within the jurisdiction of the court they are residing as on date, where their matrimonial home is situated or paternal house is located. One needs to check the laws in Africa i.e., the laws for the time being in force.

Advocate Jiwan Pal Singh LawRato

703 votes

Dear Querist,

Your brother can file divorce in courts of Africa. However, if the divorce is not through mutual consent, then the divorce decree granted shall have to stand scrutiny of Indian Courts. Say, if your brother files divorce on grounds of cruelty and his wife submits to the Jurisdiction of such African court, and he obtains the decree, then that decree for divorce would be final and need not pass test in Indian Courts. However, if the wife does not contests and decree is passed in that case such decree shall have to pass the test of Indian laws in Indian Courts, if challenged by Wife. In such case, the Indian Courts would test as to whether the African Court followed the procedure prescribed in Hindu Marriage Act or not. I am sure, African Courts would rule by their own law and may miss out on some essential provision of Indian law, which may render in nullifying of such decree in India.

Therefore, it is advised that if the divorce is contested then please file it in India.

I don't have expertise of African laws so wouldn't be able to comment on the same.

Best regards

Advocate Kunal Sabharawal LawRato

959 votes

Thank you for your query
As you have said that marriage took place in india and the parties have been living for 15 years in Africa
Now filing of divorce in india will be the proper course of action
However course of action can be suggested on going through the papers and more inputs are required as well

LawRato LawRato