quesHusband has PR in australia and took divorce,i am indian

My Husband has PR in Australia, staying from 3years and took divorce in australia melbourne. i am in India from 3years with my baby girl. He asked me to transfer the property which is on my name and given by my dad.when i refused to sign the property documents. He sent divorce notice and got divorce there. I tried all the ways to make him understand but no result. So now i am fedup with him and planning to take divorce here and want to live alone with my baby. Please help me how to get divorce from him.He is not ready to come hyderabad.As he afraid that i will file a case. But i dont want any cases.

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    • ans

      If the decree is passed by foreign court has passed the decree then you can get   the approval & validation of such decree of divorce by Indian courts .A s per the General Principle of Law Section 13 civil procedure code(CPC) a foreign decree is conclusive in India in normal circumstances. However the Indian court would refuse to recognize such decree on following grounds:

      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 defence 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  Australia 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, if 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.  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.

      Also, if the conditions mentioned aforesaid are not fulfilled then the decree is not recognized by the Indian courts and you are required to file fresh divorce petition on any of the grounds depending on the facts and circumstances of case.

      If you go through contested divorce under Section 13(1) of Hindu Marriage Act, then please bear in mind its long procedure and will take long time. So we suggest you to execute an agreement with your husband wherein you should specify the terms and condition and also assure him that on arrival you will not take any legal action. Pursuant to this agreement you can file a joint petition and thereby seek mutual consent divorce . Your husband will be required twice for recording of statement. This process is faster and hassle free. You will get divorce within 6 to 8 months.

      Furthermore since your query is silent on many facts, so gave our opinion on limited facts, so  we suggest you to meet a local lawyer at Hyderabad, after examining your facts and circumstances and decree he can guide you better

    • ansNo. 1. Yes. you can file a divorce petition in Hyderabad. we can send divorce notice though court to Australia. If he has not received or refused the court notices the court ill pass orders as per procedure.
      No: 2 The property belongs to yourself, Without your consent your husband can not claim.
      for any further quires contact me at email : gourishankarh@gmail.com

      Advocate Gouri Shankar Hemekari

        Mahabubnagar, Mahbubnagar

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