We live abroad. Can we still file for divorce in India?

Yes. Living abroad does not remove your marriage from the reach of Indian law, and for a marriage solemnised in India the Indian courts are very often the natural forum.

Where jurisdiction comes from

Under Section 19 of the Hindu Marriage Act (and the equivalent provision in the Special Marriage Act) a petition can be presented to the district court within whose jurisdiction:

• the marriage was solemnised, or
• the respondent resides at the time of presentation, or
• the parties last resided together, or
• the wife is residing on the date of presentation, where she is the petitioner, or
• the petitioner resides, where the respondent is outside India or has not been heard of as alive for seven years

The last two limbs are the ones that matter most for NRIs. Together they mean that a wife who has returned to Bengaluru can file here even though the marital home was in Dubai or New Jersey, and that a spouse in India can file locally whenever the other is abroad. For a marriage solemnised under the Special Marriage Act the equivalent provision is Section 31, which works on similar lines. The guide to NRI divorce in India works through how the choice is made when more than one court is open.

Serving the spouse abroad is the slow part

Not the filing, not the hearing. Service. Budget three to nine months for it and treat every week saved as a real saving. What helps: a current residential address rather than a workplace, the passport number and visa status, an email address the spouse actually uses, and any correspondence in which they have acknowledged that address. Courts will consider service by registered post, by courier, by email, through the diplomatic channel, and where all of that fails, by substituted service including newspaper publication. Ask your advocate to seek permission for the alternative modes in the same application rather than one at a time, because each refused attempt costs a full hearing date.

Do you have to fly back

For a mutual consent divorce, both parties must ordinarily appear and have their statements recorded at both motions, because the court is satisfying itself that consent is free. Courts have increasingly permitted video conferencing for parties genuinely unable to travel, and a power of attorney holder can handle many procedural steps, but the court's own practice varies and consent recording is treated as personal. Do not assume; ask your lawyer to seek permission early.

Two things sharpen that advice. First, in Santhini v. Vijaya Venketesh (2017) the Supreme Court held that video conferencing in a Family Court proceeding should not be directed without the consent of both parties. E-court practice has moved a long way since, and Family Courts now hear a great deal remotely, but the starting point remains that the other spouse's consent is the shortest route to a video appearance. In a mutual consent matter that consent is usually there for the asking, and it should be recorded in the joint memo. Second, a power of attorney holder can file, appear on procedural dates, receive documents and even conduct much of the case, but a power of attorney cannot give your consent for you at the motions and cannot be cross-examined in your place on facts within your personal knowledge. Draft the power of attorney to say what it actually covers, get it notarised and apostilled or attested at the Indian mission, and send the original by courier rather than relying on a scan.

Practical points

• Documents executed abroad usually need notarisation and, depending on the country, apostille or consular attestation.
• If proceedings have already been filed in two countries, the question of which should proceed becomes a live and expensive dispute. Take advice before filing anywhere.
• Where children are involved and one parent is in India, custody and removal issues need to be addressed at the outset, not after a child has travelled. This is the single most expensive thing to fix late. Once a child is out of the country, or has been kept back in India past the agreed date, you move from a family court application to a habeas corpus petition, a foreign court order and a fight about which country decides. The separate guide on child custody for NRI parents sets out how Indian courts approach a foreign custody order and the welfare principle they apply to it.
• Keep your own paperwork in order from day one: passports and visa pages for both spouses and the children, the marriage certificate with an apostille if it was issued abroad, proof of the last matrimonial residence, employment and tax records in the country of residence, and immigration status. All of it becomes evidence about jurisdiction, maintenance and custody.

Filing here and filing there at the same time

Where the marriage was solemnised in India and one spouse is still here, filing in India first is often the stronger position, because a decree from the Indian court will be recognised here without further argument, whereas a foreign decree has to survive a separate test when it is brought back. The rules on when a foreign divorce decree is valid in India explain why that asymmetry exists. Where the other spouse has already moved in a foreign court, do not simply ignore those proceedings: non-participation is how ex parte decrees are obtained. Take advice on whether to appear, whether to contest jurisdiction, and whether to move for an anti-suit injunction here, and take it before a date is missed rather than after.