This article has been written by Ms, Neha Singh, a Third-year student of Lloyd Law College, Greater Noida.

Abstract: 

Divorce can be complicated, especially for Non-Resident Indians (NRIs) who want to end a marriage that was legally sealed in India. Thankfully, the Indian legal system acknowledges the special needs of non-resident Indians (NRIs) and provides a simplified procedure for getting a divorce without requiring actual presence in India.

 Introduction:

Divorce is the total collapse of the marriage institution. Marriage and divorce are strongly discouraged in Indian culture and religion. The emotional strain of going through such a profoundly transformative experience is increased by the societal stigma associated with divorce. Sometimes, despite desperate attempts, a marriage fails, and the pair must make the difficult but sensible choice to end their marriage by divorcing one other. Any married couple, whether they are in India or abroad, could find themselves in this kind of position. In a similar vein, NRIs residing outside would also need to get divorced in India.

The process of divorcing can be extremely taxing and complicated, especially when Non-Resident Indians (NRIs) are involved. In India, NRI divorce proceedings frequently bring up particular questions about jurisdiction, relevant legislation, and pragmatic difficulties.

NRI Divorce:

A divorce where one or both of the spouses do not reside in India is known as an NRI divorce. Because there can be problems with jurisdiction and process service, this could make the divorce procedure more difficult.

Living abroad does not require a return trip to India for the purpose of divorce. You won’t have to worry about your life overseas being interrupted during the entire process. Indian courts have included opportunities for distant participation through video conferencing in recognition of the practical challenges that non-resident foreigners encounter.

Requirements of an NRI divorce: 

1. Both partners request an NRI divorce judgement in India.
2. During the divorce process, a couple files for divorce in India while living abroad.
3. One partner is an NRI while the other resides in India.
4. They are both NRIs.
5. One is a  foreign national, while the other is an NRI.

Procedure for NRI divorce: 

1. Parties shall submit a petition in court for seeking divorce.
2. A child born out of that marriage and the maintenance amount must already be agreed upon by the parties.
3. The case will be postponed by the court for six months following the date of the plea-also referred to as the first motion-being presented.
4. Following that time frame, parties must go in court to confirm their divorce by mutual consent. This will serve as confirmation. Likewise referred to as second motion.
5. A divorce decree for NRIs in India may be granted by the court during the second motion hearing.
6. Any of the parties may revoke or withdraw the divorce petition prior to the second motion and within six months.

Challenges to Jurisdiction in NRI Divorce: 

Selecting the appropriate jurisdiction for the divorce processes is one of the main obstacles in NRI divorces. The jurisdictional problem is contingent upon multiple circumstances, such as the location of the couples’ major assets, the place of marriage, and the spouses’ current place of residence.

Place of Marriage:  Regardless of the couples’ current residence, Indian courts have jurisdiction over divorce proceedings if the marriage took place there.

Current Residence :Indian courts normally have jurisdiction over divorce cases involving one or both spouses who are residents of India at the time of filing. If neither party resides in India, establishing jurisdiction could be more difficult.

Significant Assets: Even though neither spouse resides in India, jurisdiction may be affected in an NRI divorce if there are significant assets involved.

Applicable Laws:  NRI Divorces can be governed by various laws, including:

1. Hindi Marriage Act, 1955: Relevant to Jains, Sikhs, Buddhists, and Hindus. It addresses issues including property partition, child custody, and alimony.
2. Special Marriage Act, 1954: Applies to unions dissolved by this act as well as interfaith unions. Divorce on the grounds of cruelty, adultery, or desertion is permitted.
3. Foreign Marriage Act, 1969:  Relates to NRIs who wed outside of India. It acknowledges these kinds of unions and offers criteria for dissolution.
4. Indian Divorce Act, 1869: Applies to Christian marriage and governs divorce among Christians in India.
5. Muslim Personal Law: In India, divorce among Muslims is governed by Sharia law.

Grounds for NRI divorce:

1. Adultery
2. Physical/ mental cruelty 
3. Leprosy
4. Conversion
5. Venereal disease
6. Unsound mind
7. Not in the company for more than 2 years
8. Not heard for more than 7 years
9. Renunciation 

Divorce, when both partners don’t live in Inda: 

Power of Attorney:  Entrusting power of attorney is the method by which a divorce can be filed when both parties were married in India but left the country. They engage different advocates to address the viewpoint. Authorities give their consent to the Indian Embassy of the nation they currently call home.

1. The Power of Attorney’s terms must be confirmed on stamp paper worth 100 rupees.
2. This is authorized by the Registrar and Sub-Registrar.
3. It is also required that two witnesses show up and put up their signs.
4. The person to whom power of attorney is granted cannot be the same person.

Video Conferencing: These days, NRI divorces are also conducted by video conference in front of a judge who may hear both parties and render an appropriate decision. It is simpler to bring both parties together on one platform so that they may be heard equally with this media.

Parties are unable to be at the same location at the same time, which leads to this. Technology is used to assist with all legal proceedings, the administration of justice, and to make sure that no detail is overlooked. In order to save the court and the parties valuable time, the lawyers and the court should take action to ensure that our NRI clients have access to videoconferencing services. The Family Court may consider the possibility of employing videoconferencing to further the cause of justice in mutual consent and contentious divorces, and it may even order the parties to appear and have their statements recorded via videoconferencing. Lawyers should provide advice to NRI clients.

Options for NRI divorce that are accessible:

NRI Divorce by Mutual Consent:  In an NRI divorce, the petition for mutual consent is filed not under Indian law but under the rules of the foreign country where it is obtained. With the appropriate divorce legal guidance, this is simply accomplished.

The validity of the decree in an NRI divorce is contingent upon the court that issued it possessing appropriate jurisdiction over the case and fulfilling all necessary prerequisites. Other matters, like as child custody, asset division, and alimony/maintenance, will be settled amicably between the spouses in compliance with the foreign country’s legal requirements.

Validity of Mutual Consent for NRI Divorce: 

1. A mutual consent decree A divorce from an NRI will not be accepted if no court with appropriate authority issued the decree.
2.  Coercion, undue influence, or force was applied to get consent from either side.
3. Due to the circumstances of the case, the NRI divorce decree was denied.
4.  A court in India could rule that such a decision is void and unenforceable.

The Court of the Reciprocal Territory issues a decree: In this case, a decision made by a foreign superior court may be enforced in India as if it were made by an Indian district court, according to Section 44A (1) of the CPC. A certified copy of the decree together with the certificate from such a court is deemed conclusive evidence for the decree’s implementation under Section 44A (2) of the CPC.

The court of Non-Reciprocating Territory issues a decree: In this case, NRI divorce is more complicated because an Indian court lawsuit must also be filed. Direct implementation of the decree is not possible. The foreign decree must be deemed enforceable by the Indian Court, which must also issue a supporting decree of its own. The Indian Court needs to be persuaded that the requirements listed in CPC Section 13 have been satisfied.

Effects of an NRI Divorce: 

1. Women are eligible to get both temporary and ongoing support.
2. A child’s custody may also be included in the whole procedure.
3. The husband’s ancestral property may also be used to get the required amount of alimony.
4. The union dissolves. It is permissible for either party to marry someone else.

Case related to NRI divorce: 

Neeraja Saraph V/S Jayant Saraph (1994 (6) SC 488 ) :

Facts of the case:

 On August 6, 1989, in the United States, wife Neeraja Saraph married software programmer Jayant Saraph in honour of her father-in-law. The husband, responding no 1, then returned to America and wrote a letter to his wife, Neeraja, urging her to resign from her position. The appellant believed that she should quit her work and apply for a visa. However, in December, things began to change. Neeraja’s father addressed a letter to her husband regarding her daughter’s predicament, but he never replied. After some time, in June 1990, the appellant received an envelope containing a petition for the husband to have his marriage annulled in a US court from the appellant’s brother. Following her job loss, the woman sued her husband and father-in-law for allegedly wrecking her life, seeking an ex parte decree.

However, respondent number two filed an appeal with the high court, and the money of $1,000,000 was stayed. and instructs the appellant to lower the amount by 50%. However, the Supreme Court overturned the High Court’s rulings and said that the decree would be stayed provided the Respondent deposited the whole amount of Rs. 3,000,00,000, including the Rs. 3,000,00,000 that the High Court had directed, within a two-month period. and the appellant will receive the interest payment each month. Additionally, the ongoing If the matter is not resolved, the appellant may withdraw their money. The NRI husband was ordered by the Supreme Court to provide a 4-lakh interim deposit in her name.

Issue: 

In this instance, the question of private international law emerges because, typically, one party obtains a divorce decision from a foreign court that is not recognized by an Indian court because the foreign court has jurisdiction over the matter. 

Ratio:

 The top court declared that the non-resident husband, who lived in a foreign country, had deserted his Indian wife and did not give her any maintenance. So, who will defend women’s rights?

Held:  In this instance, the court ruled to protect women’s interests and recommended the following clause:

A foreign court cannot dissolve a marriage that was consummated in India. In the event of a divorce, the wife will be entitled to maintenance from her husband’s assets, whether they are in India or outside.

The Supreme Court ruled that the rulings made by the Indian courts and implemented by foreign courts were made out of kindness by reaching a mutual settlement and notifying the parties in accordance with Section 44(a) of the Civil Procedure Code.

Conclusion: It is evident from examining the processes by which an NRI couple can obtain a divorce by mutual consent in India and abroad that each party has pros and cons. Therefore, both parties must carefully consider their options before deciding where to submit a mutual consent divorce petition. In order to guarantee that the procedure is finished promptly and is not prolonged, it should also be mutually agreed upon.

References :

• Neeraja Saraph v/s Jayant Saraph 1994 (6) SC 488
• NRI vision: voice of the Global Indians 
• Divorce Laws for NRI’s ( Non-Resident Indians) by Sunil Kumar Bakshi