Legal Implications of Divorce for Non-Resident Indians (NRIs) Special Considerations
“ This article has been written by Jenia Begam , a 5th year BA.LLB of LJD Law College, (University of Calcutta) ”
Abstract
Divorce is the total breakdown of the marriage institution. The legal process of divorce is complicated, and it may get even more complicated when non-resident Indians (NRIs) are involved. NRIs, who live abroad but have connections to India, confront particular difficulties while navigating the divorce legal system. This article examines the unique circumstances and legal consequences for Non-Resident Indians (NRIs) going through a divorce. It addresses issues like child custody, financial settlements, jurisdiction, and the execution of foreign rulings.
Keyword : Non-Resident Indians, Marriage , Divorce, Divorce with Mutual Consent Child Custody , Indian laws, Legal Issues
Introduction
Non-Resident Indians make up an important part of Indian society and have achieved success in the economy as well as respect in society and culture throughout the world. These comprise both Indian nationals and individuals born to Indian parents who moved abroad for employment or further education. Along with the benefits of customary Indian marriages for future generations, these Indians have contributed their religion, customs, culture, languages, and eating habits. These Indians immigrated overseas, mostly in search of Indian wives, to preserve Indian customs and culture while preventing the invasion of foreign brides. The bride and groom, as well as their entire family, are expected to benefit from these relationships with Overseas Indians in the future.
However, the majority of NRIs divorce their spouses because Indian women in foreign marriages have experienced several difficulties over the years that resulted in their husbands divorcing them. This could happen before to, during, or following their journey to the other country, forcing them to leave or return home within a year.
- What is Divorce for NRIs ?
A person seeking a divorce after marrying an NRI should be informed of the fundamental laws about NRI divorce.
The divorce laws of the nation about foreign marriages allow for the mutual agreement divorce of spouses who reside in the United States of America or any other foreign country. The divorce may only be recognized by the Indian legal system if both parties have given their permission for it.
- Divorce with Mutual Consent
According to section 13 (B) of the Hindu Marriage Act of 1955, Also Section 28 of the Special Marriage Act, 1954 provides for divorce by mutual consent. Section 10A of the Divorce Act, of 1869, provides for divorce by mutual consent (the period of separation is 2 years) a couple who is married to another Indian and who wishes to seek a divorce by mutual consent can do that.
This type of divorce occurs when both the husband and the wife decide to separate from their marriage voluntarily. There are no objections from either party or allegations of cruelty, adultery, or domestic violence in this type of divorce. In these situations, the husband and wife choose to separate after realizing that their marriage is no longer working well. It is the only type of divorce available in India that may be obtained through international courts.
- Divorce with Mutual Consent for NRIs
Only in circumstances of “mutual consent” divorce is this option available to NRI spouses living abroad. The laws of the NRIs’ home country are followed during the proceedings rather than those of India. In such circumstances, the process shall be carried out following the laws of the resident’s nation, not the laws of India. The parties in this situation will need to hire foreign solicitors practicing in their jurisdiction to help them get a divorce.
For a divorce to be considered legal in India, it must be implemented once it has been granted and a court decision has been received.
- Legal issues of NRIs Marriages
Divorce laws in India are stricter than in Western nations, and men living in Western nations sometimes use this difference in laws to get divorce decisions. This calls into doubt the legality of divorce decrees obtained from other nations in cases where the marriage was consummated in India in compliance with the Hindu Marriage Act.
In case of Smt. Anubha vs Shri Vikas Aggarwal And Ors., the young wife filed a lawsuit against her NRI husband, who had left her soon after marriage, for an order of declaration and maintenance. While the lawsuit was pending, the wife attempted to stop the divorce petition from moving forward in the United States. The defendant was barred by the court from going any farther in Connecticut, USA, for a period of thirty days. But the husband persisted in filing a “No Fault Divorce Petition” in the US. Upon being notified, the Indian Court passed an order that asking for the defendant record for the following statement under the Order X of the CPC. His defense was dismissed for lack of attendance, and contempt charges were brought.
As the matter was pending in India, the court decided that the order that had been acquired from the Connecticut Court was legally enforceable. The Delhi High court ruled that the Hindu Marriage Act does not provide the basis for the defendant’s marriage dissolution. The Hindu Marriage Act applied to the parties’ marital disputes since they were Hindus. The order obtained by the defendant from the Connecticut Court of USA was not enforceable in India since the plaintiff refused to submit to the jurisdiction of the US Court or provide approval for the divorce to be granted there.
- Jurisdictional Challenges
The court can consider civil lawsuits under Section 9 of the CPC , except for cases that have expressly or implicitly been banned from cognizance. Indian courts have jurisdiction over all matters about marriages conducted in India, whether the couple resides there or not, or both. According to Section 3 of the IPC , a person found guilty of an offence committed outside of India would be prosecuted under the IPC’s provisions in the same way as if the offence had been committed within India.
According to Section 108A of the IPC , anybody who assists in the conduct of any act, both inside and outside of India, that would be considered an offence if done in India, is aiding and abetting an offence as defined by the laws of India.
If an NRI committed an offense under sections 498A, section 494, or section 495 of IPC , while staying in a foreign country, she can file a criminal lawsuit in India.
- Maintenance
The Hindu Adoption and Maintenance Act’s Sections 18 and section 20 address maintenance for the wife and children. Section 125 of the CrPC, allows the wife to ask for maintenance if she is unable to support herself and resides in India at the time the lawsuit is filed. She may also ask for her minor child’s maintenance. As per the Section 25 of the Hindu Marriage Act allows her to request permanent alimony.
In the case of Harmeeta Singh v. Rajat Taneja , the married woman was forced to leave the marital residence three months after her husband joined her in the United States after her husband left her during six months of marriage. The High Court of India restrained her husband from continuing the US court proceedings after she filed a maintenance complaint under the Hindu Adoptions and Maintenance Act and asked him to provide a copy of the decision of the High Court.
- Child Custody
As every nation has its own set of laws, child custody disputes involving Non-Resident Indians (NRIs) abroad can be a bit complicated. The UNIFORM CHILD JURISDICTION AND ENFORCEMENT ACT governs jurisdiction in numerous cases arising in Indian courts. The children’s home state is granted jurisdictional powers under this act. The Hague Convention of 1980 is one example of a global convention that might be utilized to establish custody. India, however, is unable to apply this provision as it is not a signatory to the convention. According to Article 226 of the Indian constitution with Article 32, a parent faces consequences if they unlawfully remove their child from their custody.
Indian courts have said that they would not interfere with any country’s child custody rules. This is especially important for Indian women who are not residents and are requesting legal custody following a divorce. The Supreme Court ruled that cases involving Indian couples who do not reside in India and are pending in foreign courts cannot be resolved by Indian courts. The Indian Supreme Court and High Court have decided that Indian courts would not supersede British courts, although an Indian mother who is not a resident of the UK brought her child to India.
In the case of Marggarate Pulparampil v Dr. Chacko Pulparampil, it is a landmark Indian court case involving children’s custody in NRI marriages. The Kerala High Court recognized the need for a “real and substantial connection” in order to establish jurisdiction and the right to petition for custody of a child who has been taken illegally. Despite allowing the child to be beyond the Indian court’s jurisdiction, the court allowed the child to be returned to the mother in Germany. The mother was granted custody in Germany after the court decided that the child’s best interests should come first. In order to balance competing interests, the court also put in place protections to guarantee that the father’s parental rights were not completely compromised.
Child Custody Agreement
- The petitioner is required to produce the children as ordered by the court.
- The German Consulate Authority in Madras will assist in implementing court orders within the German Law framework.
- The petitioner will send a report from the Parish Priest every three months detailing the children’s health and welfare.
- The petitioner must update the Registrar of the court with her residence address.
- The petitioner cannot take the children outside West Germany without prior court orders, except when they are brought to India.
- The petitioner must bring the children to India for a minimum of one month at her own expense once every three years.
- The father can access the children if he is visiting Germany.
- The custody question can be reviewed suo motu or at the father or mother’s instance.
Conclusion
Non-Resident Indians have a special set of difficulties in divorce processes, including recognition of foreign judgments to matters of jurisdiction. To successfully go through these challenges, NRIs going through a divorce should consult with legal counsel who specializes in international family law. In the very complex world of cross-border divorces, it is essential to understand the unique legal consequences and issues for non-resident Indians (NRIs).
References
https://indiankanoon.org/doc/439618/
https://indiankanoon.org/doc/1301592/
https://indiankanoon.org/doc/37740179/
Anubha v. Vikas Aggarwal100 (2002) DLT 682, I (2003) DMC 139
https://indiankanoon.org/doc/981126/
https://indiankanoon.org/doc/1507082/
https://indiankanoon.org/doc/1711828/
https://indiankanoon.org/doc/538436/
https://indiankanoon.org/doc/508426/
https://indiankanoon.org/doc/653145/
https://indiankanoon.org/doc/1727980/
https://indiankanoon.org/doc/17630/
https://indiankanoon.org/doc/95286/
Harmeeta Singh v. Rajat Taneja 102 (2003) DLT 822
https://indiankanoon.org/doc/1712542/
Marggarate Pulparampil v Dr. Chacko Pulparampil, AIR 1970 Ker 1