This article has been written by MS. Neha Udayan a 3rd year student of Lloyd Law College (LSL), Greater Noida
ABSTRACT
This article deals with the impact of Foreign Divorce Degrees in Indian NRI Marriages and the challenges faced by Indian NRI. Also, a mention of the landmark case of Y Narasimha Rao v. Y Venkata Lakshmi which talks about the decree dissolving marriage passed by the. foreign court.
INTRODUCTION
Marriage is the foundation of a stable family, two souls united as spouses, a permanent union of hearts. A Hindu boy and a Hindu girl are getting married in India, moving abroad, and living happily ever after. How do we wish that all love stories have a happy ending like this, right? But most of the stories or lives of partners don’t end happily as we expect. Unfortunately, life takes a turn, and the husband-and-wife relationship turns sour after moving abroad. At such times husband and wife wish to live separately, while proceeding for divorce. Marriage under Hindu law is considered to be a sacrament bond and is the union for the upcoming seven lives. It is not subjected to dissolution because it is not a mere contract between man and woman.
Over the years a large number of NRIs have emerged in every jurisdiction. They migrate to another place in search of wealth and survival. With the globalization of societies, the increasing mobility of individuals, and advancements in communication technology, Indians are increasingly seeking partners from other parts of the world. This led to a significant rise in the number of NRI marriages, both domestic and foreign. In the middle, they often face unique challenges which are increasing divorces among individuals. There comes the issue of, what if that couple due to any differences between them due to cultural and legal differences between India and that country, files or moves for a divorce in that particular and the effect of it on them. The complexities of long-distance relationships, cultural differences, and financial challenges have put a strain on many marriages. However, with the rising number of divorces involving NRI couples, the impact of foreign divorcee degrees on Indian NRI marriages has become a significant issue. The introduction of foreign divorce degrees has only further complicated matters for Indian NRIs.
Challenges faced by Indian NRIs
1 Legal Complexity: Indian divorce laws differ significantly from those of Western countries. As a result, NRI couples face challenges in navigating the legal systems and understanding the nuances involved in obtaining a foreign divorce decree.
2 Language Barrier: Many NRI couples have to overcome a language barrier when seeking a divorce in a foreign country. Communication difficulties can lead to misunderstandings and difficulties in resolving marital issues. Moreover, the absence of translators and interpreters fluent in both languages can further complicate the divorce proceedings.
3 Financial Implications: Divorce can be expensive, and NRI couples often face financial constraints. The costs associated with traveling to a foreign country, legal fees, and living expenses can strain their resources, making it difficult for them to navigate the legal complexities effectively.
4 Cultural Differences: Cultural differences play a significant role in shaping attitudes and behaviors towards marriage, divorce, and family. NRI couples often encounter challenges in reconciling their cultural backgrounds with the expectations of their host countries, leading to conflicts and difficulties in maintaining a successful marriage.
5 Jurisdictional Issues: Determining jurisdiction for divorce proceedings becomes a crucial factor in cases involving Indian NRIs. Indian courts may have jurisdiction over NRI marriages under specific provisions, such as section 13B of the Hindu Marriage Act if the parties have resided to have a common domicile in India. However, in cases where the NRI couple has settled in a foreign jurisdiction, determining the jurisdiction can be complex. This can result in prolonged proceedings, additional costs, and uncertainty regarding the legal framework g governing the divorce.
6 Property and Asset Division: another significant challenge faced by Indian NRIs is the division of property acquired during the marriage. Indian laws provide for a just and equitable distribution of marital assets upon divorce. However, foreign jurisdictions may not necessarily recognize or enforce such principles. This can lead to confusion and disagreement over the distribution of assets, further adding to the complexity of the divorce process.
7 Child Custody and Maintenance: In cases of divorce, the welfare of the children is of utmost importance. However, determining child custody and visitation rights can be particularly challenging for Indian NRI couples. Indian laws prioritize the best interests of the children, while foreign jurisdictions may have different legal standards. This can give rise to conflicts and disagreements over child custody arrangements, making it difficult for the parties to reach a harmonious solution.
8 Lack of Support: NRIs often face challenges in accessing support systems and cultural resources following a divorce in a foreign country. The lack of familiar surroundings, community networks, and social support systems can make it challenging for individuals to navigate the emotional and practical aspects of a divorce.
9 Family Dynamics: Also play a significant role in the success of marriages between Indian NRIs and foreign divorces. Indian families often face great importance in maintaining family ties and upholding traditional values. Foreign divorces, on the other hand, may have different family dynamics and expectations. Balancing the needs of both families can be challenging, and it requires open communication and compromise.
No Indian legislation exists to tackle such remedies. The number of Indians on foreign shores has increased multifold but multiple problems which bring them back to India are still left to be resolved by conventional Indian legislation.
There was a case Y Narasimha Rao vs. Y Venkata Lakshmi, the Supreme Court observed that no country could afford to sacrifice its internal unity, stability, and tranquility for the sake of uniformity of rules and comity of nations whose considerations are important and appropriate to facilitate international trade, commerce, industry, communication, transport, exchange of services, technology, and manpower, etc. The Supreme Court referred to the 65th Report of the Law Commission on Recognition of Foreign Divorces and elaborately discussed the import of section 13 of the Code of Civil Procedure in the context of recognizing foreign matrimonial judgments in the country.
Section 13 (a) states that a foreign judgment shall not be recognized if it has not been pronounced by a court of competent jurisdiction. This clause should be interpreted to mean that only that court will be a court of competent jurisdiction which the Act or law under which parties are married recognizes as a court of competent jurisdiction to entertain matrimonial disputes. Any other court should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdictions of that court. The Supreme Court also held these.
Section 13 (b) states that if a foreign judgment has not been given on the merits of the case, the courts in this country will not recognize such judgment.
Section 13 (c) second part, states that where the judgment is found on refusal to recognize the law of this country in the case in which such law is applicable, the judgment will not be recognized by the courts in this country.
CONCLUSION
Law Commission in its 65th report on Recognition of Foreign Divorces made a big change in suggesting that, in considering the questions about recognition of foreign decree of divorce, the court should have based their decisions not only on the question of domicile but also based on habitual nationality. What I found out is that the breakdown of marriage as an additional ground should be introduced in our legal system. It will provide one spouse as an NRI with the safeguard in legislation. This is only possible by amending the Hindu Marriage ACT of 1955, and the Special Marriage Act of 1954. It will provide the spouse with a judicial forum in India and they can get a remedy in their own country rather than importing or bringing foreign judgment in Indian courts.
Indian systems though it is slow sometimes, can be fast as well as better than other countries.
REFERENCES
1 Research done by Anil Chawla Law Associates LLP. link
2 Critical Analysis by Manoj Swarup. link
3 Law Commission. link
4 Case. link
5 CPC. link