If divorce has been granted on grounds recognised by HMA in India then you are at liberty to re marry in India
Hello, My divorce has been granted in Australian federal courts. I am Australian citizen and my ex-husband is Indian citizen. Is any legal issue to get married again in India?
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If divorce has been granted on grounds recognised by HMA in India then you are at liberty to re marry in India
What are those grounds of HMA.
If the divorce obtained from Australia is Mutual Consent Divorce and if both the husband and wife attended the divorce proceedings, then the Divorce decree is recognised in India or if the divorce decree obtained from Australian federal court is based on one of the grounds for divorce as prescribed under the Hindu Marriage Act and both husband and wife attended the divorce proceedings, then it's also recognised in India. However the divorce decree so obtained has to be revalidated in the jurisdictional Civil Court of India, before remarrying.
- If the said divorce has granted without the consent and appearance of your husband , then the said Decree of Divorce is not valid in India.
- But , if the said divorce is granted in the presence of both the parties i.e. on mutual consent then the decree of divorce is valid in India , and you both are free to marry with some other.
It is not clear whether the same mutual or consensual.
If mutual then you can remarry unless she raises objection.
Dear Madam,
Usually if both parties not consented or appeared before Australian Court then such divorce decrees not recognized by Indian courts as Hindu Marriage Act is unknown to Australian Courts. If your marriage happened on appearance of both the couple then you can marry otherwise you have to apply for legal divorce in the Family Court of the city in which you are residing and get Ex-parte or otherwise divorce decree.
The Indian Code of Civil Procedure 1908 permits the recognition of a foreign judgment as long as the order is final and conclusive. However, the foreign judgment (e.g. Australian divorce order) will not be considered conclusive under this Act if the foreign judgment fails to recognize and apply the relevant Indian law.
In the event that an Australian Court grants a divorce, the order may or may not be recognized or valid in India, depending on the circumstances.
It is important to note that the only ground for divorce recognized in Australia is a no-fault ground of “irretrievable breakdown” of the marriage.
The grounds of divorce under section 13 of the Hindu Marriage Act include, but are not limited to adultery, cruelty, conversion, unsoundness of mind, virulent and incurable leprosy, entering a new religious order, a presumption of death, non-compliance with judicial separation order or decree of restitution of conjugal rights. The Hindu Marriage Act does not include “irretrievable breakdown” as a ground for divorce.
Dear Client,
Being an Australian citizen means that your divorce decree issued by an Australian federal court must be valid in India. Yet, it is advisable to consult a legal expert in India to ensure there are no extra steps necessary to confirm the validity of the decree. The 90-day waiting period mandated by the Hindu Marriage Act, 1955, typically applies after divorces. However, it is ambiguous whether this condition would be relevant for you since the divorce took place overseas. To legally remarry in India, it's important to observe the formalities, predominantly obtaining a marriage license and registering the marriage per the relevant laws. If your spouse is from India, be sure they have received all needed authorizations to marry someone from outside the country.
Hope you find this answer suitable for resolving you query.