Where the case can be filed
Section 19 of the Hindu Marriage Act 1955 sets out where a matrimonial petition can be filed. Ordinarily this is the place where the marriage was solemnised, where the parties last resided together, or where the respondent currently resides. A separate limb of the same section allows the petitioner to file at the place they themselves reside if the respondent is, at the time the petition is presented, residing outside India. This matters in practice: a spouse who has moved back to India after a separation is often able to file close to home, rather than having to track down wherever the other party happens to be living.
Two proceedings running at once
It is not unusual for one spouse to file for divorce in India while the other files, or has already filed, in the country where they now live. India does not automatically defer to a foreign proceeding, and a foreign court will not necessarily defer to an Indian one either. What tends to matter is which proceeding reaches a final and enforceable outcome first, and how genuinely each side has participated in the one they are not personally attending. Ignoring an Indian proceeding on the assumption that a foreign decree will simply override it is a common and expensive mistake.
An order passed without you
If a respondent does not appear despite having been served, whether by ordinary post, courier or substituted service such as publication, the court can proceed and decide the matter ex-parte, meaning without that party's participation. This is not the end of the road. Order IX Rule 13 of the Code of Civil Procedure allows an application to set aside such a decree, but it must ordinarily be filed within thirty days of the decree, or of the applicant gaining knowledge of it, and the applicant must show that service was defective or that there was sufficient cause for the non-appearance. Delay beyond thirty days can sometimes be condoned, but it should not be relied on; the safer course is to instruct counsel in India the moment a party learns proceedings may be underway.
Look-out circulars and passport impoundment
Two further measures come up often in these disputes. A look-out circular can be opened by an investigating agency, and is used to alert immigration authorities if the subject attempts to leave or enter India. Separately, Section 10(3) of the Passports Act 1967 allows a passport to be impounded in specified circumstances, including where proceedings are pending before a criminal court. Neither measure is automatic, and both can usually be challenged, but a client planning travel to India during a live dispute should take advice before booking a ticket rather than after landing.
