Category of divorce to file if wife eloped with lover to abroad
2 years ago
Wife left abroad without informing me. Texted only after boarding the flight. Mentions incorrect fact that there was no rapport between us and she was bored in the marriage. She showed no such signs while being here. Purposefully hided her plan. Her parents saying she is residing with her brother in Australia but unable to contact her or get her in WhatsApp call or video call. She stopped communication with me. We don't have kids. We were both divorced earlier from first marriages and being in this second marriage for 3 years. Its more than 2 months since she left. I checked through a private agency. Based on call records she has affair with other person. Both left country at same time. She had taken long term student visa 1.5 years. So will mostly get a PR and stay with other person in Australia forever. In which category I should file divorce ? Desertion cruelty or adultery ? Can her family contest the case on her behalf by a fakely signed power of attorney ? Is these details sufficient evidence in court to get me divorce fast if contested ? Can I send legal notices to her local address for the case. Pls advice. Thanks.
A.Dear Sir,
You may file a case under section 494 as follows saying that she married for second time during subsistence of first marriage.
=====================================================
Section 494 in The Indian Penal Code
494. Marrying again during lifetime of husband or wife.—Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Second marriage during the subsistence of the first marriage is illegal in India and the relationship arising from the same does not have any validity. One of the conditions for a valid marriage under Section 5 of the Hindu Marriage Act, 1955 is that neither of the party should have a spouse living at the time of the marriage. Under Section 11 of the Act, second marriages can be declared null and void.
LAW IN DETAIL………………………….……………….……… …………… …… Bigamy becomes an offence only if the husband or wife is alive. It is an offence even if it is performed with the consent of the first wife. It will not apply, • if the husband or wife of the first marriage is dead or • if the first marriage has been dissolved by a decree of divorce or • the former marriage is void or declared void by a decree of nullity Section 494 of the Indian Penal Code exempts from punishment a second marriage contracted seven years after the absence of the spouse. In Sarla Mudgal v. Union of India (1995 air 1531 SC), the Supreme Court held that, • If a man after renouncing Hindu religion has adopted Muslim religion and he without taking divorce from his wife has married again, then this marriage is not legal. • He will be punished for committing bigamy under section 494 IPC Bigamy is a non-cognizable offence, bailable and compoundable with the permission of the court. It is punishable with imprisonment up to 7 years or fine or both. For the offence of committing bigamy by concealing the fact of the first marriage is punishable with 10 years imprisonment or fine or both. However, this offence committed under section 495 is not compoundable. As for the second wife, though she is not entitled to any kind of right or share in the husband’s property, she can also claim interim maintenance from her husband. In Laxmibai v. Ayodhaya Prasad, it was held that ‘wife’ and ‘husband’ used in Section 24 of the Hindu Marriage Act are not be given strict literal meaning. The expression should mean a person claiming to be wife or a husband. In Rajesh Bai v. Shantabai, it was held that a woman whose marriage is void because of the existence of another wife is entitled to maintenance under section 25 of the Act. Interim maintenance under Section 20 is also allowed. The children from the second wife are entitled to share in their father’s self –acquired property. PROCESS FOR SOLUTION……………………………….………… ……………… Complaint Under which Section ? …………………………… … …………… Only the person aggrieved can complain in case of bigamy. If the aggrieved is the wife, then her father can complain under section 494/495 of the Indian Penal Code. A petition for declaration that the second marriage is void can be filed only by the parties to the marriage and not by the first wife. A complaint can also be filed for cheating under section 415 IPC for fraudulently deceiving the person by keeping the subsistence of the first marriage a secret. Whom to complain / where to complaint? ……………….. …………………… The wife can file a complaint either in the court or in the Police station. How to file the Case ? ………………………… ………………... ………… …… The Supreme Court has laid down that proof of solemnization of second marriage in accordance with the essential religious rites applicable to parties is absolutely essential and a must for conviction for bigamy. Mere admission by the accused is not enough. What Next ? …………………………..………………………... …… ……………… Appeal lies to the next higher court in the hierarchy. ALTERNATE REMEDIES………………………………………..………………… … If the offence is committed under section 494, it can be compounded with the permission of the court.
http://vikaspedia.in/social-welfare/women-and-child-development/women-development-1/bigamy
Does a provision differ for different religions?
Even though Indian Penal Code prohibits and punishes for Bigamy, it is necessary that Personal laws in India should prohibit bigamy. We can go through the following Personal laws in India to understand this concept-
1. Hindu Marriage Act– Section 1 of Subsection (a), (b) and (c) states which specific religion and persons come under this Act. Thus, under Section 17 of Hindu Marriage Act, any person considered Hindu according to Section 1 marries again during the life of first husband/wife, shall be punished under Indian Penal Code provision.
2. Parsi Marriage and Divorce Act– Section 5 of this act declares Bigamy null and void or dissolved and imposes a penalty under Section 494 and 495 of Indian Penal Code.
3. Christian Marriage Act– Even though the Christian Marriage Act doesn’t have specific provision for Bigamy, Form of Register Marriage is only for Bachelor/Spinster and Widow/Widower. For Marriage Certificate Section 60 Sub Section (2) states that “neither of the persons intending to be married shall have a wife or husband still living”, and making false oath or declaration is punishable under Section 193 of IPC, this clarifies that more than one marriage will be considered illegal under this act.
4. Special Marriage Act 1954– Section 44 of this act states punishment for Bigamy and imposes a penalty under Section 494 and 495 of Indian Penal Code.
Foreign Marriage Act 1969- Section 19 of this act states punishment for Bigamy and imposes a penalty under Section 494 and 495 of Indian Penal Code.
5. Muslim Marriage Law– There are no codification or specific provisions for this law. It is written in Quran that a Muslim male can marry two, three or four times, if they are capable to treat and respect each wife equally after marriage, if not then only one.
If a person marries more than once under Hindu Marriage Act, Parsi Marriage and Divorce Act, Christian Marriage Act, Special Marriage Act and Foreign Marriage Act, he/she will be punished according to Indian Penal Code.
And according to Muslim Marriage law, any Muslim Male committing Bigamy is not invalid and hence not an offence.
You may file a case under section 494 as follows saying that she married for second time during subsistence of first marriage.
=====================================================
Section 494 in The Indian Penal Code
494. Marrying again during lifetime of husband or wife.—Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Second marriage during the subsistence of the first marriage is illegal in India and the relationship arising from the same does not have any validity. One of the conditions for a valid marriage under Section 5 of the Hindu Marriage Act, 1955 is that neither of the party should have a spouse living at the time of the marriage. Under Section 11 of the Act, second marriages can be declared null and void.
LAW IN DETAIL………………………….……………….……… …………… …… Bigamy becomes an offence only if the husband or wife is alive. It is an offence even if it is performed with the consent of the first wife. It will not apply, • if the husband or wife of the first marriage is dead or • if the first marriage has been dissolved by a decree of divorce or • the former marriage is void or declared void by a decree of nullity Section 494 of the Indian Penal Code exempts from punishment a second marriage contracted seven years after the absence of the spouse. In Sarla Mudgal v. Union of India (1995 air 1531 SC), the Supreme Court held that, • If a man after renouncing Hindu religion has adopted Muslim religion and he without taking divorce from his wife has married again, then this marriage is not legal. • He will be punished for committing bigamy under section 494 IPC Bigamy is a non-cognizable offence, bailable and compoundable with the permission of the court. It is punishable with imprisonment up to 7 years or fine or both. For the offence of committing bigamy by concealing the fact of the first marriage is punishable with 10 years imprisonment or fine or both. However, this offence committed under section 495 is not compoundable. As for the second wife, though she is not entitled to any kind of right or share in the husband’s property, she can also claim interim maintenance from her husband. In Laxmibai v. Ayodhaya Prasad, it was held that ‘wife’ and ‘husband’ used in Section 24 of the Hindu Marriage Act are not be given strict literal meaning. The expression should mean a person claiming to be wife or a husband. In Rajesh Bai v. Shantabai, it was held that a woman whose marriage is void because of the existence of another wife is entitled to maintenance under section 25 of the Act. Interim maintenance under Section 20 is also allowed. The children from the second wife are entitled to share in their father’s self –acquired property. PROCESS FOR SOLUTION……………………………….………… ……………… Complaint Under which Section ? …………………………… … …………… Only the person aggrieved can complain in case of bigamy. If the aggrieved is the wife, then her father can complain under section 494/495 of the Indian Penal Code. A petition for declaration that the second marriage is void can be filed only by the parties to the marriage and not by the first wife. A complaint can also be filed for cheating under section 415 IPC for fraudulently deceiving the person by keeping the subsistence of the first marriage a secret. Whom to complain / where to complaint? ……………….. …………………… The wife can file a complaint either in the court or in the Police station. How to file the Case ? ………………………… ………………... ………… …… The Supreme Court has laid down that proof of solemnization of second marriage in accordance with the essential religious rites applicable to parties is absolutely essential and a must for conviction for bigamy. Mere admission by the accused is not enough. What Next ? …………………………..………………………... …… ……………… Appeal lies to the next higher court in the hierarchy. ALTERNATE REMEDIES………………………………………..………………… … If the offence is committed under section 494, it can be compounded with the permission of the court.
http://vikaspedia.in/social-welfare/women-and-child-development/women-development-1/bigamy
Does a provision differ for different religions?
Even though Indian Penal Code prohibits and punishes for Bigamy, it is necessary that Personal laws in India should prohibit bigamy. We can go through the following Personal laws in India to understand this concept-
1. Hindu Marriage Act– Section 1 of Subsection (a), (b) and (c) states which specific religion and persons come under this Act. Thus, under Section 17 of Hindu Marriage Act, any person considered Hindu according to Section 1 marries again during the life of first husband/wife, shall be punished under Indian Penal Code provision.
2. Parsi Marriage and Divorce Act– Section 5 of this act declares Bigamy null and void or dissolved and imposes a penalty under Section 494 and 495 of Indian Penal Code.
3. Christian Marriage Act– Even though the Christian Marriage Act doesn’t have specific provision for Bigamy, Form of Register Marriage is only for Bachelor/Spinster and Widow/Widower. For Marriage Certificate Section 60 Sub Section (2) states that “neither of the persons intending to be married shall have a wife or husband still living”, and making false oath or declaration is punishable under Section 193 of IPC, this clarifies that more than one marriage will be considered illegal under this act.
4. Special Marriage Act 1954– Section 44 of this act states punishment for Bigamy and imposes a penalty under Section 494 and 495 of Indian Penal Code.
Foreign Marriage Act 1969- Section 19 of this act states punishment for Bigamy and imposes a penalty under Section 494 and 495 of Indian Penal Code.
5. Muslim Marriage Law– There are no codification or specific provisions for this law. It is written in Quran that a Muslim male can marry two, three or four times, if they are capable to treat and respect each wife equally after marriage, if not then only one.
If a person marries more than once under Hindu Marriage Act, Parsi Marriage and Divorce Act, Christian Marriage Act, Special Marriage Act and Foreign Marriage Act, he/she will be punished according to Indian Penal Code.
And according to Muslim Marriage law, any Muslim Male committing Bigamy is not invalid and hence not an offence.
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A.Dear Client,
1. You may file for divorce in the grounds of desertion.
2. Yes, she can appoint a power of attorney who can contest the divorce on her behalf.
3.Yes, you can send legal notice to her last known local address.
STEP BY STEP PROCEDURE TO FILE FOR DIVORCE
The Step by Step procedure for divorce is given as follows:
Step 1: Filing Petition
The first step of the divorce procedure is to file for a Divorce Petition in the concerned family court through a competent lawyer. Any of the partners which is aggrieved can approach the court and file for Divorce Petition in the appropriate jurisdiction on any of the grounds mentioned above. The same can be done with the help of a divorce lawyer. The petition must be filed along with affidavits, vakalatnama, and other relevant documents.
Step 2: Service of Summons
The next step after filing the Divorce Petition is the service of summons on the contesting parties to inform them that a divorce procedure has begun against them by the aggrieved spouse. The party who is served the summon has to appear before the Judge of the family court. After sending the notice or summons to the parties, the court may also suggest the parties to mediation.
Step 3: Response to Petition
The next step in the procedure for divorce is filing a response to the Divorce Petition. This is done by the party that wishes to contest the divorce on the grounds that they wish to contest on, accepting or rejecting the points raised in the petition.
Step 4: Trial
Once both the parties have presented their points through the petition and the response, the trial begins where the court hears both the parties with their evidence and witnesses.
Step 5: Temporary Orders
The next step of the procedure to file divorce is the interim orders which are passed by the court related to child custody, alimony, maintenance etc.
Step 6: Final Order
The final step is where the court pronounces the final order dissolving the marriage after which the court proceedings will come to an end.
1. You may file for divorce in the grounds of desertion.
2. Yes, she can appoint a power of attorney who can contest the divorce on her behalf.
3.Yes, you can send legal notice to her last known local address.
STEP BY STEP PROCEDURE TO FILE FOR DIVORCE
The Step by Step procedure for divorce is given as follows:
Step 1: Filing Petition
The first step of the divorce procedure is to file for a Divorce Petition in the concerned family court through a competent lawyer. Any of the partners which is aggrieved can approach the court and file for Divorce Petition in the appropriate jurisdiction on any of the grounds mentioned above. The same can be done with the help of a divorce lawyer. The petition must be filed along with affidavits, vakalatnama, and other relevant documents.
Step 2: Service of Summons
The next step after filing the Divorce Petition is the service of summons on the contesting parties to inform them that a divorce procedure has begun against them by the aggrieved spouse. The party who is served the summon has to appear before the Judge of the family court. After sending the notice or summons to the parties, the court may also suggest the parties to mediation.
Step 3: Response to Petition
The next step in the procedure for divorce is filing a response to the Divorce Petition. This is done by the party that wishes to contest the divorce on the grounds that they wish to contest on, accepting or rejecting the points raised in the petition.
Step 4: Trial
Once both the parties have presented their points through the petition and the response, the trial begins where the court hears both the parties with their evidence and witnesses.
Step 5: Temporary Orders
The next step of the procedure to file divorce is the interim orders which are passed by the court related to child custody, alimony, maintenance etc.
Step 6: Final Order
The final step is where the court pronounces the final order dissolving the marriage after which the court proceedings will come to an end.
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Subhashis Paul
Responded 2 years ago
A.You don't need to send any legal notice to your wife's parents for getting divorce, if you have enough proof of adultery against your wife then kindly file a contested divorce against your wife at earliest by consulting with an advocate. The advocate will arrange up all the facts as needed for your case after getting the brief from you. If your wife is not present in Kolkata, then it will be easy for you to get an exparte order against your wife since she will not be able to come and appear before the court. If she have to appear then she have to file a vakalatnama signed by herself and filed through an advocate only. It is the capability of the advocate to make your case win against your wife. For further query do consult at earliest. Her parents cannot fight the case against you by taking any power of attorney.
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