Filing for a Divorce is an important decision and can be an emotional and stressful time, we assist you at every step of the way.
What is procedure for divorce in India ?
Question and answer related to divorce in India
Any person who has performed the marriage in India he may be an Indian citizen or he may even be a PIO(person of Indian origin) holding a foreign passport can seek the intervention of Indian courts in marriage matters. The plea may include divorce, alimony, maintenance, child custody or annulment of marriage.
If a Hindu who is a foreign national has had a marriage according to Hindu rights on foreign soil. He/she can also seek the intervention of Indian courts under the Hindu Marriage Act 1955.
Impotency means incapacity to have sex . The problem is usually with male's and rarely women suffer from incapacity to consummate. It can be a ground of divorce.
Infertility means incapacity to have children, may be due to less sperm count and problem with women's reproductive organs. It is not usually a ground for divorce, but can be if the spouse knew before marriage that he/she is infertile and did not inform about the same to the other.
Although Divorce by a Foreign court can be recognized in India. But the main problem that arises is that one of the spouses may challenge the foreign decree in an Indian Court. Which he/she has full right to . The person may end up fighting the same case in India, which he thought was over after the foreign judgment, thus also paying both foreign and Indian attorney's.
If the Marriage was registered in India under Indian law. Then if subsequently if divorce is granted to the parties on mutual consent or any of the grounds under The Hindu Marriage Act, 1955. The Decree of Divorce shall be valid all over the world.
There are certain forms of marriages which are void despite the solemnization/ performance of the same.
1) Either party had spouse living at the time of marriage.
2) The parties are within the degree of prohibited relationship, unless the custom or usage governing each of them permits the same.
3) The parties are not Sapindas of each other unless the custom or usage governing each of them permits the marriage of the two.
Marriage in India can also be dissolved by Annulment. It is the same as Divorce but the Grounds of Annulment are different from that of Divorce :
2) Pregnancy of wife other than by Husband
3) Impotency Prior to marriage and subsists even at the time of filing the case.
Once Annulment of marriage is Granted by the court status of marriage changes as it was prior to the marriage.
It is best that you wait for 90 days, because that is the period where an appeal can be made against the order of Divorce. If a person marries between that period and an appeal gets the Divorce decree cancelled then, not only will the second marriage be void ab initio but also the person will be guilty of Bigamy under Hindu Marriage Act, 1955.
Read section 28 of the Hindu Marriage Act,1954 :
Appeals from decrees and orders.-(1) All decrees made by Court in any proceeding under this Act shall, subject to the provisions of sub-section (3), be appealable as decrees of the Court made in the exercise of its original civil jurisdiction and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in the exercise of its original civil jurisdiction.
(2) Orders made by the Court in any proceedings under this Act, under Section 25 or Section 26 shall, subject to the provisions of sub-section (3), be appealable if they are not interim orders and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in exercise of its original civil jurisdiction.
(3) There shall be no appeal under this section on subject of costs only.
(4) Every appeal under this section shall be preferred within a period of ninety days from the date of the decree or order.
Withdrawing of S125 Cr.P.C against you is very much possible, but if the S498A IPC complaint has been registered as FIR, the Report of the same filed by the Police in the Magistrate court, the withdrawal of the same at later stages will not be possible.
The parties can go in for quashing of the FIR proceedings from the High Court otherwise the complete trail in the Magistrate Court will have to go on where in her Statement she withdraw the allegations of cruelty, dowry demand etc. and on that basis the trail court dismisses her FIR and the accused get acquittal order
You don't need your husband to be in India for a divorce. You can file for divorce in the district family court where you reside in India on the ground of cruelty and desertion against your husband.
Where you last resided together or the address of his parents in India can be used for sending him the court summon. If he fails to file his defense for the divorce petition, the case will be proceeded ex-parte against him and decided in your favor, you will get order and decree of divorce that will entitle you to remarry.
The decree of divorce that got your marriage dissolved in the district court in India will be available in the same court records where the process of divorce was initiated and concluded.
You can apply for the certified copy of the final order and decree of divorce by applying it in the district court and get it for your record.
The cost for the same will be the required court fee and professional fee the local lawyer may charge you to get the same from the district court.
You should know the exact date of order, name/particulars of both parties and name of judge who passed the final order and issued the decree of divorce.
Ask him for the divorce papers, like the order and decree of divorce issued by the court, you can confirm the facts about the divorce from the court records yourself or through some lawyer of the state where the divorce process took place. There are few courts where the order/judgment passed by the various judges in the court are posted online for general public, if that is so in the state/city/district, check the order passed by the court in the divorce case.