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Author Topic: Wife-Indian Citizen;Husband-Australian Citizen. How can the wife file a divorce?  (Read 2800 times)

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Offline bagho

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Good morning, everyone. I need some help from you. I'm a women's rights activist and a woman approached me for help. She is an Indian. Her husband is Indian born, Australian citizen.

Her husband had subjected her to domestic violence, (marital) rape and harassment while in Australia. Now he is blackmailing her with her private pictures. The woman has come to India while her husband is still at Australia.

Now, I'd like to ask,

1. Which case should she file first - Sexual assault or divorce case?

2. How can the divorce happen if he doesn't come to India and attend the court proceedings?

3. Is there a legal way to force him to come to India, so as to attend the court proceedings?

Could you please help us? We'd be very grateful to you all. Thank you very much.

Offline advmisthi

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Domestic violence, (marital) rape and harassment and blackmailing with photographs, are all criminal offences not matrimonial matters.

Tell the good lady to report a complaint in CAW cell, they will guide you accordingly what to do next.

Regarding such grave allegation, the when the matter comes up for hearing the court will itself make preparation for getting her husband to India, and if India has an extradition treaty treaty with Australia it will not be a problem at all.
Adv.Misthi Mukherjee
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Offline Advaradhyakirmani

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Hi Misthi,
India does have an extradition treaty with Australia, here is the complete extract of the treaty:
*************************************************
Extradition Treaty between Australia and India on Mutual Legal Assistance in Criminal Matters

Background
6.1 The Extradition Treaty between Australia and the Republic of India (the Extradition Treaty) and the Treaty between Australia and the Republic of India on Mutual Legal Assistance in Criminal Matters (Mutual Legal Assistance Treaty) are regarded as linked treaties by the Australian Government and as a consequence will be examined together in this chapter.

The Extradition Treaty
6.2 The Extradition Treaty is based on a model extradition treaty developed by Australia to conform to Australia’s domestic legislative framework.1 Australia’s model extradition treaty has been used to develop a network of bilateral extradition treaties that currently number 35. 2

6.3 Australia’s current extradition relationship with India is based on the Commonwealth Scheme for the Rendition of Fugitive Offenders 1966. This was
an agreement of less than treaty status between members of the
Commonwealth. Consequently, the agreement is non-binding in international law and imposes no obligations on participating states.3

6.4 The Australian Government has negotiated this treaty because of the requirement under the Commonwealth Scheme to provide a full brief of evidence sufficient to establish a prima facie case in support of an extradition request.4 The Attorney-General’s Department (AGD)
described the requirement to establish a prima facie case as:
…a very high evidentiary standard [that] can cause considerable delay, both in the requesting country, which has to prepare the brief of evidence, and for the requested country, which has to analyse whether a prima facie case has been made out.

6.5 According to the AGD, international developments in extradition matters since the late 1980s have indicated a trend towards simplifying the extradition process by establishing a ‘no evidence’ standard of information for extradition requests.5 The no evidence standard means that a country requesting an extradition is not required to make an evidentiary case as
part of the extradition request.

6.6 The no evidence standard is argued to be a useful tool to aid extradition to and from countries that use a civil law system. The AGD asserted that the legal framework in a civil law system means that many of the system’s practitioners do not understand what is meant by a prima facie case.6

6.7 In practice, the no evidence standard still involves some assessment by the
requested Government as to the legitimacy of the request. The assessment
is principally against the grounds for refusing an extradition request, 7
which are set out below.

6.8 While Australia prefers a no evidence standard; that is, no evidence is
required to be included as part of an extradition request, Indian domestic
legal requirements necessitate that the requesting country must include an evidentiary case that is a less than prima facie case as part of the extradition request.8

6.9 According to the AGD:
The standard required in this treaty is such information as would reasonably establish that the person sought has committed the offence for which extradition is requested and to establish that the person requested is the person to whom the warrant refers. This standard does not require that every element of an offence be supported by evidence. Instead, there needs to be evidence that links the individual to the crime without necessarily proving each element of the offence.9
 
Proposed extradition process
6.10 The Extradition Treaty will apply to Australian and Indian nationals who are wanted for prosecution, or for the imposition or enforcement of a sentence, in relation to sentences with a minimum punishment of at least one year in jail.10

6.11 Where a request for extradition is received, the Extradition Treaty will require that the receiving country represent the requesting country in the extradition matter, including representing the requesting country in any proceedings arising out of the request.11

6.12 There are a number of grounds for refusing extradition:
„ the offence concerned is a military offence and there is no similar offence under criminal law;
„ the period of time available to commence a prosecution has lapsed;
„ the offence concerned carries the death penalty, and the requesting
nation has not guaranteed that the death penalty will not be imposed or carried out;
„ the offence concerned is of a political character;
„ the person concerned will be exposed to double jeopardy (that is, they will be at risk of standing trial twice for the same offence);

„ there are grounds for suspecting that the extradition request was made on account of the person’s race, sex, religion, nationality or political opinion;
„ the person is liable to be tried or sentenced in an extraordinary or ad hoc court; and
„ The request does not comply with international treaties such as the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment.12

6.13 If a request for extradition is not granted, the requesting country can then ask that the person be tried where they are. The country in receipt of this request must submit the case to its competent authorities for prosecution.13

6.14 The Extradition Treaty also establishes agreed procedures for dealing with the following extradition related matters:
„ the provisional arrest of the person concerned pending consideration of a request;
„ the receipt of extradition requests from two different countries for the same person;
„ the transfer of the person to the requesting country;
„ the transfer of the property of the extradited person to the requesting country; and
„ the postponement of an extradition where the person is already under prosecution or serving a sentence.14

The Mutual Legal Assistance Treaty
6.15 Like the Extradition Treaty, the Mutual Legal Assistance Treaty is based on a model mutual legal assistance treaty developed by Australia. The model mutual legal assistance treaty has been used to develop a network of bilateral treaties that currently number 25.15

6.16 The Mutual Legal Assistance Treaty is intended to assist the signatory countries to investigate, prosecute and suppress crimes including terrorism, drug trafficking, fraud, money laundering and people trafficking.16

6.17 There are extensive similarities between the Extradition Treaty and the Mutual Legal Assistance Treaty, including the fact that the Mutual Legal Assistance Treaty will replace a Commonwealth based arrangement of less than treaty status, the Scheme Relating to Mutual Assistance in Criminal Matters within the Commonwealth.17 However, in this case, there are no significant changes to the functional arrangements within the Treaty. The new Mutual Legal Assistance Treaty is limited to making the current arrangements subject to international law.18


Proposed legal assistance process
6.18 Under the Mutual Legal Assistance Treaty, Australia and India have agreed to grant each other assistance in:
„ serving documents;
„ the taking of statements and evidence from a person;
„ locating and identifying a person;
„ executing requests to search premises and seize potential evidence; and
„ locating, restraining and forfeiting the proceeds of criminal activity.19

6.19 As with the Extradition Treaty, there are a number of grounds for refusing to comply with a request, including:
„ the offence concerned is of a political character;
„ the request would expose the person concerned to double jeopardy (that is, they will be at risk of standing trial twice for the same offence);
„ there are grounds for suspecting that the request was made on account of the person’s race, sex, religion, nationality or political opinion; and
„ complying with the request would impair the security or sovereignty of the country receiving the request.20

Ensuring the wellbeing of Australian citizens
6.30 While Australian citizens who have been extradited have access to consular support where they request it, the Committee believes this is not sufficient to ensure the wellbeing of these Australians. There may be a number of reasons why a person does not request consular assistance.

This may include the person not wanting assistance, but it may also include real or perceived intimidation, fear of reprisal, ignorance, poor mental or physical health, or difficulties communicating.

6.31 The Committee believes that, unless the person involved has made explicit their objection to consular assistance to the satisfaction of consular officers, all Australians who are subject to extradition should receive a face to face visit from a consular official at least annually.

Advice of extradition
6.32 In relation to foreign nationals who are extradited from Australia to a
third country, the first step should be to formally advise the government of their home country that one of its nationals has been extradited from Australia to a third country. The Committee understands this does not occur at present.30


Conclusion
6.33 The Committee fully supports the Extradition Treaty and the Mutual Legal Assistance Treaty with India. It is clear that these treaties will streamline the extradition and legal assistance processes, improving the quality of law enforcement in Australia and India.

6.34 The bulk of the Committee’s recommendations relate to future extradition treaties. It seems clear to the Committee that the concept of a process to monitor the trial status, health, and conditions of detention of people extradited from Australia has merit. The Committee believes that there is a moral Imperative that Australia never be a party to any injustice or abuse of the human rights of persons it has extradited.
« Last Edit: May 18, 2014, 07:29:51 PM by Advaradhyakirmani »
Adv.Aradhya Kirmani
Expert in Civil and criminal laws

Offline bagho

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Respected Ms. Mukherjee and Ms. Kirmani,

Many, many thanks to you for helping us. We're really so grateful to you. ^_^ I was lost and I didn't know how to help this severely depressed lady, and now we've found a way. Thank you, thank you a million times for coming to her aid.

May you be blessed.

Best wishes,
Soumyadeep Koley.

 

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