r2i forum

This is the background -
1) Husband and wife living separately for last 10 years ( W abroad, H in India).
2) One child from the marriage.
3) Child living with W, father consented everytime for the child to join the mother abroad and to have foreign citizenship.
4) Original marriage certificate with W is lost (tried hard to get in registrar office - pune. Registrar office cannot find any records). Other eveidence is old Indian passport of W and child.
5) H has remarried and has a chid. W is trying hard to get a divorce. H not responding to any phone calls/emails.
6) W wants to find out if H has already obtained one sided divorce before remarrying. If that is the case W is happy as she need not start the process again.
7) What options W has in such a situation.
(It is a strain on W's current financial situation to do India visits as she has to pay for her as well as the child's ticket plus hotel bills and other expenses).

1) Husband and wife living separately for last 10 years ( W abroad, H in India).

"abroad" meaning USA or some other country?

2) One child from the marriage.

I am assuming that names of both parents are on the birth certificate and that the mother has received no financial support from the father for the child at all.

3) Child living with W, father consented everytime for the child to join the mother abroad and to have foreign citizenship.

It appears from your statement that child is living with the mother abroad and that father has not claimed that child come and live with him. It appears that child has been granted a foreign citizenship. But I am still confused from your statement as to where the child normally resides and goes to school.

4) Original marriage certificate with W is lost (tried hard to get in registrar office - pune. Registrar office cannot find any records). Other eveidence is old Indian passport of W and child.

It is possible that the husband, somehow got all evidence of marriage from registrars office removed. This is not that easy to do even with heavy bribing as this may mean expunging records. However, US courts even treat cohabitation for a certain time on par with marriage many times. It depends upon what matter is being pursued. For financial compensation, a certificate of marriage may matter less than the evidence of living as a married couple. However for conducting a second marriage, the issue is different.

I am assuming that it is absolutely impossible to get the marriage license from Pune. Were copies of this submitted to Immigration authorities? Can a copy be obtained from there.

Lastly, are there photos and movies of the wedding? They do form a substantial proof.

5) H has remarried and has a chid. W is trying hard to get a divorce. H not responding to any phone calls/emails.

She should talk to an attorney in India and seek some consultation.

6) W wants to find out if H has already obtained one sided divorce before remarrying. If that is the case W is happy as she need not start the process again.

At issue will be the following:
If wife is abroad and re-marries in India and wants to bring the husband abroad and get him a visas, she will need to submit proofs of a valid and legal divorce - this is a divorce decree.

She should be able to obtain a divorce decree on the grounds of abandonment and lack of response in the country of her residence but will depend upon the laws there. In most US jurisdictions, abandonment for one year or more is sufficient grounds for the courts to consider the petition for divorce. For this she should seek consultation of the local attorney.

I feel bad for the woman that she did not pursue financial support for the child at least, which the father has an obligation to support.

7) What options W has in such a situation.

Wife should pursue a divorce where she is domiciled on grounds of abandment and seek a legal divorce that is valid at least in the jursidiction of her residence.

(It is a strain on W's current financial situation to do India visits as she has to pay for her as well as the child's ticket plus hotel bills and other expenses).[/quote]

What is the purpose of these visits? Is the husband asking for the child to be brought to him? If so, then there is a contact? explain a little more clearly.

Desi, thx for your response.

Desi;441621) Husband and wife living separately for last 10 years ( W abroad, H in India).

"abroad" meaning USA or some other country?

>> Another country (Australia)

2) One child from the marriage.

I am assuming that names of both parents are on the birth certificate and that the mother has received no financial support from the father for the child at all.

>> Yes she didn't ask for any support so far. She didn't want to have any contact with the child's father (he was violent). But now the child wants to meet the father.

3) Child living with W, father consented everytime for the child to join the mother abroad and to have foreign citizenship.

It appears from your statement that child is living with the mother abroad and that father has not claimed that child come and live with him. It appears that child has been granted a foreign citizenship. But I am still confused from your statement as to where the child normally resides and goes to school.

>> Yes, the child resides with mother. Child also acquired foregin citizenship as the mother's dependent.

4) Original marriage certificate with W is lost (tried hard to get in registrar office - pune. Registrar office cannot find any records). Other eveidence is old Indian passport of W and child.

It is possible that the husband, somehow got all evidence of marriage from registrars office removed. This is not that easy to do even with heavy bribing as this may mean expunging records. However, US courts even treat cohabitation for a certain time on par with marriage many times. It depends upon what matter is being pursued. For financial compensation, a certificate of marriage may matter less than the evidence of living as a married couple. However for conducting a second marriage, the issue is different.

I am assuming that it is absolutely impossible to get the marriage license from Pune. Were copies of this submitted to Immigration authorities? Can a copy be obtained from there.

Lastly, are there photos and movies of the wedding? They do form a substantial proof.

>> Yes it is almost impossible to get the marriage certificate (both officially,unofficially). It was submitted to passport authorities in India when W made her passport. She tried to get a copy from there but that didn't work either. They seem to destroy records older than 5 years.
Yes, there are photographs, video tapes, child's birth certificate, child's Indian passport and W's Indian passport all have his names and relation clearly mentioned.

5) H has remarried and has a chid. W is trying hard to get a divorce. H not responding to any phone calls/emails.

She should talk to an attorney in India and seek some consultation.

>> She spoke with a lawyer in India and the lawyer told her that she needs to bre physically present for filing the initial petition and also for the final hearing. So she needs to travel for the court hearings along with the child. She has recently lost her job so she is trying to be cautious on her expenses.

6) W wants to find out if H has already obtained one sided divorce before remarrying. If that is the case W is happy as she need not start the process again.

At issue will be the following:
If wife is abroad and re-marries in India and wants to bring the husband abroad and get him a visas, she will need to submit proofs of a valid and legal divorce - this is a divorce decree.

She should be able to obtain a divorce decree on the grounds of abandonment and lack of response in the country of her residence but will depend upon the laws there. In most US jurisdictions, abandonment for one year or more is sufficient grounds for the courts to consider the petition for divorce. For this she should seek consultation of the local attorney.

I feel bad for the woman that she did not pursue financial support for the child at least, which the father has an obligation to support.

>> may be i didn't put the question very clear - if H has obtained a divorce will it be registered at the registrar office ? i.e. can she go to the registrar's office and ask for a copy of divorce certificate.

She did not ask for any support for the child because she was quite well off (good IT job) and H was in a bad financial state. She was relieved to be free from him.

7) What options W has in such a situation.

Wife should pursue a divorce where she is domiciled on grounds of abandment and seek a legal divorce that is valid at least in the jursidiction of her residence.

(It is a strain on W's current financial situation to do India visits as she has to pay for her as well as the child's ticket plus hotel bills and other expenses).[/quote]

What is the purpose of these visits? Is the husband asking for the child to be brought to him? If so, then there is a contact? explain a little more clearly.

>> (As above) visits for court hearings.

#1,
Several things are unclear. If you really need help, you should provide details clearly. A story telling may be necessary with facts for analysis of the situation.
Otherwise you will not be able to receive good suggestions..

my 2c..

I assume it was a marraige under Hindu law.

On the doubt that husband got one sided divorce without knowledge of the wife : There is no such thing AFAIK one sided divorce in India under Hindu Marraige Act. One can either get a court order or it can be by mutual consent. In this case, clearly it was not by consent. Getting a court order can be only for 5 main reasons - Adultery, Desertion, Cruelty, Chronic desease, Impotency.

To prove either of these is a tedious and time consuming process. When either party is not available in courts, I think there is a separate process for advertising in public gadgets and so on.

So in my limited knowledge in India getting a divorce order without mutual consent is not that easy. And it is highly unlikely that none of the wife's relatives or wife would know about it.

If the husband has not got legal divorce and still married another woman then it is worth noting that India's Hindu Marriage Act treats second marriages as null and void. Also it is punishable crime under law. Proving bigamy is very difficult though. Also there may be further complexity that the husband converted to other religion before second marraige. Getting married with proper ceremony / registration and proving that is essential.

Please note The term "Hindu" in post-independence Hindu law governing marriage, divorce, adoption, maintenance, guardianship and succession, describes not only persons who are Hindu by religion, but also those who are Sikh, Buddhist, and Jain. Roughly speaking, the term "Hindu" encompasses those Indians who are not Christian, Parsi, Muslim, or Jewish for the purposes of the law.

I the given case best thing for W may be to file for divorce in the US state (I understand laws vary by state there).

One thing probably you can clarify is why does she need divorce exactly now?

Also normally you have photocopies etc of marraige certificate. You need those even to record birth of children, passport, visa etc. A careful search either by wife or her parents may be worth. Also you may try your luck with http://yourmaninindia.com/cgi-bin/task_details.cgi?category=1 or similar agencies.

As RRK said far more details are needed for people to provide their own or hearsay experiences.

If W wants to marry again with a new H from outside India, she must obtain a divorce. In addition, in order to sever any legal obligations, she should file obtain a divorce. Even though it seems that the H may have in this case remarried and does not want to go thru the divorce filing etc. I don't know if H's new wife is aware of his past or not and if not that is more the reason for the H not to respond which he is not doing.

So, what should the wife do? Status quo, leave as is. Absolutely not, I would not suggest status quo. I would suggest she seek legal termination of marriage.

Now the question arises is where should she seek legal termination? In Australia or in India.

It appears since the H has remarried there is no big reason for H to pursue or be interested in a divorce and he does not seem concerned about potential future legal issues (chances of which may be very small but finite none the less).

If W plans to make Australia her place of living for long term, she should just pursue divorce in Australia as the land having jurisdiction over her as she is domiciled there and follow Australia court provisions for serving the petition notice and final decree. The evidence of such service (serving of petition and final divorce decree) should be retained.

If she wants to settle in India at some time, especially given the Indian marriage laws, she should then also pursue a divorce in India. Yes, all this will cost money.

Now as to marriage certificate - in USA jurisdictions, one can file a divorce petition which first lays down the facts as follows:

statments about name, address, residence etc
statements about marriage, to whom, when, where, number of children, etc
statements about whereabouts of the spouse if known
statements about any abandonment, lack of financial support, attempts to contact etc.
Statement of the child being abandoned by the other spouse
statements about the court having jurisdiction and why
statements seeking specific relief such as grant of a divorce, child custody, financial support etc.

An attorney or some research would tell her what would be needed in Australia. In the above case, a marriage certificate is not needed unless the other party contests that there was no marriage. The above petition is a sworn statement and accepted as fact by the court if not contested.

Lastly, the pictures, videos, etc should all be retained as evidence of marriage and an attorney in India can guide as how to establish that a valid marriage had occured based on all the evidence (pictures, Australia visa for spouse, statement by the presiding priest if any, if there was a wedding invitation - copy of that invitation, etc).

Good luck

Background:

One of the spouse is a naturalized US citizen currently living in US. Another spouse is an Indian citizen and living in India.They are separated for about 5+ years.Marriage happened in India as per Indian Hindu marriage act.

One living in USA is planning to get the divorce in USA without the mutual consent of the spouse in India.

As per the latest Indian law/Indian Hindu marriage act, could you please confirm/give pointers if the divorce that is obtained in USA court is valid in India also.

Appreciate your help!

PS:

The attorney in US did not know the answer and hence asks the client to check with Indian consulates in US. The attorney also checks with some of the attorney friends in India and says that as per his friend attorney in India, the divorce obtained in US is still valid in India. However, he cautions the client to make a due diligence before going for divorce in US decision.

The Indian consulate people in US have also mentioned that as per new regulations which came to effect from August of this year, the divorce that is obtained in US court is valid in India as well.

karagg;59088Background:

One of the spouse is a naturalized US citizen currently living in US. Another spouse is an Indian citizen and living in India.They are separated for about 5+ years.Marriage happened in India as per Indian Hindu marriage act.

One living in USA is planning to get the divorce in USA without the mutual consent of the spouse in India.

As per the latest Indian law/Indian Hindu marriage act, could you please confirm/give pointers if the divorce that is obtained in USA court is valid in India also.

Appreciate your help!

PS:

The attorney in US did not know the answer and hence asks the client to check with Indian consulates in US. The attorney also checks with some of the attorney friends in India and says that as per his friend attorney in India, the divorce obtained in US is still valid in India. However, he cautions the client to make a due diligence before going for divorce in US decision.

The Indian consulate people in US have also mentioned that as per new regulations which came to effect from August of this year, the divorce that is obtained in US court is valid in India as well.

Karagg,

I would send a letter to the Indian consulate to comfirm the same ( in writing). This way even if the case goes ahead in US there will be a valid proof from GOI.

Further, keep this confirmation safe, do a few notarised copies to attach with divorce certificate if required (who knows what one may need in the future).