Family Law

MARRIED IN INDIA AND GETTING DIVORCED IN CANADA (OR AUSTRALIA, USA)?

Getting a divorce is stressful. Especially so if a person is married in India and then seeks divorce in Canada. In Western countries, divorce proceedings are not as complex as in India. Generally, it is enough to show a separation of more than one year to get divorce. Further, the lawyers also advise clients who are residents in Canada not to get involved in a long litigation.

However, things are a little different in India. Here, laws relating to marriage are just one part of vast Hindu Family Law, which includes laws relating to succession, inheritance, adoption, guardianship, and maintenance. A handful of litigation under Hindu Family involves a wife not having any gainful employment, who desires that her child should have a share in the ancestral property of her husband. She will see divorce as a loss-making situation as once she is divorced, her child cannot claim any share in the ancestral property of the husband. Further in such situations, wife may not be willing to give the custody of the child to her husband. This is just one of the many situations arising out of Hindu law, which makes divorce a complicated affair in India. Further, divorce proceedings in India can linger on for years. For a spouse with revenge on their mind without any cost considerations, delay in getting divorce becomes a legal heaven.
If a husband or wife takes divorce in Canada, the other spouse has several grounds under Section 13 of Civil Procedure Code to file a suit to declare the decree of divorce passed by a Canadian court unlawful and void. Besides, there are judgments of the Supreme Court of India, which clearly state that ground of divorce in Canada must be the one which is recognized as a ground of divorce in India as per Hindu Marriage Act, 1955.

Once a court in India invalidates a decree of divorce in Canada, the wife may lodge/register a First Information Report (FIR, police complaint) to the effect that the husband and his relatives in India and/or abroad have treated the wife cruelly for the purpose of taking dowry. In such a case, a trial initiates against the accused persons who may also be arrested for several days even though they are innocent and wrongly named in the FIR. This police complaint can also be used by the wife to extract money from the husband. This is not even treated as a part of temporary or permanent alimony or even maintenance under Section 125 of Criminal Procedure Code, 1973.

This also gives rise to a strange legal situation in which a person is deemed to be divorced in Canada and married in India. The repercussions of such legality are criminal, civil and financial.

A wife can also initiate criminal proceedings under anti-dowry laws in India the moment she comes to know that the husband is filing a divorce in Canada. She may not even need to come to India to initiate such criminal proceedings in India.

Therefore, before considering divorce in the circumstances mentioned above, husband or wife must consult a lawyer in India. In such circumstances, a lawyer in India can seek a decree of mutual divorce in India as a parallel proceeding. A lawyer in India may also assist the family lawyer in Canada to get the best possible outcome for the client.