This Article has been written by Ms. Shilpi Sharma, a 2nd year student of Lloyd Law College, Greater Noida, Uttar Pradesh.
Nonresident Indian is the complete version of the designation, which conveys its significance. The income tax act and the FEMA ACT provide alternative definitions for the term “NRI” in place of a direct definition in Indian legislation. A non-resident Indian (NRI) is a person who possesses an Indian passport who emigrates to another country for employment or study. According to data from the External Affairs Ministry, by December 31, 2016, these NRIs had dispersed over 208 counties, home to 3,08,43,419 people. Every time we hear the term NRI, we automatically think of the USA. However, with 44,60,000 people, there are only 1% of NRIs in the USA, compared to 10% in the UK. There are 75% of people in the United Arab Emirates (Dubai), 25% of people in Saudi Arabia (30,04,585), and 35.7% of people in Qatar (600,000). While some NRIs practise Baha’i, Buddhism, Christianity, Islam, Jainism, Judaism, Sikhism, and Zoroastrianism, the majority of them are Hindus. How difficult is it to attain the final destination of justice when 3,08,43,419 countries dispersed across 208 different religious practices are involved in legal battles? This is especially true when those countries lack special laws and procedures.
The Income Tax Act does not define NRI explicitly. Section 6 lays out in detail the requirements for being deemed a resident in India, and it declares that non-residents are those who do not meet these requirements. A person’s status as a resident or non-resident is determined by how long they have been in India. The length of stay is measured in days for each fiscal year that runs from April 1 to March 31 (referred to as the prior year under the Income-tax Act).
If a person is in India for at least 182 days in that year, or at least 365 days for the four years prior to that year and at least 60 days in that year, they will be considered residents of that previous year.
Anyone who does not meet both of the aforementioned requirements will be regarded as a “non-resident” for that prior year. The definition of “resident” is loosened in the following instances by eliminating condition 2 (i.e., only condition 1 is applicable):
An Indian national who departs the country at any time in order to work abroad or as a ship crew member, a visitor visiting India who is either an Indian citizen or a person of Indian descent who lives abroad. Keep in mind that if someone was born in united India, either their parents or grandparents would be considered to be of Indian descent.
Clauses A through Z(e) of Section 2 of the Foreign Exchange Management Act define several terminologies. Indian residents are defined in clause V; those who do not meet this criteria shall be referred to as non-residents under clause W of Section 2. According to clauses V and W, an Indian citizen is considered a non-resident if they go outside of India for (a) work or business, (b) vacation, or (c) other reasons where their stay outside is likely to be indefinite. Individuals employed by United Nations agencies and representatives sent overseas on temporary missions by federal, state, and private sector enterprises are also considered non-residents.
NRI MARRIAGES
According to the dictionary, marriage is the legally or formally acknowledged union of two individuals as partners in a personal relationship (in the past and in certain jurisdictions, this has historically only applied to unions between men and women). Thus, to put it simply, a man and a woman’s partnership is their ability to negotiate life, which is why they are referred to as life partners.
When thinking about executing a girl’s marriage, the parents of middle-class or upper-class Indian girls look for NRI bridegrooms, assuming that they are making a lot of money overseas. If they marry their daughter to them, their daughter will have a happy life, but due to the bridegroom’s or his family member’s money-grubbing, it becomes a nightmare for them. Since the bride’s father is an NRI and makes a high salary, his parents are also contributing a sizeable portion of the dowry. However, they don’t understand why, given his high income, they are asking for more money when there is no reason to.
When a parent marries, they also view it as a prominent matter, and proclaiming it a heroic act. Before it became a problem, neither the bride’s parents nor the bride perceived it as an affront. When it gets serious, people begin to postpone things, and by then, their lives are unhappy.
The institution of marriage has certain peculiarities. For example, an outsider cannot learn from those within the institution; instead, they are eager to join and, once within, want to leave, which is difficult to do.
The nature of the institution of marriage evolved over time based on the individuals who entered it. In accordance with the Hindu religion’s holy dharma of man and women, many attributes were ascribed to wives and women in the Vedas in a manner that also applied to males; sadly, these attributes were not as widely disseminated as those associated with women.
The act of being married and the reason behind it have drastically changed in the modern era. Men and women are getting married for financial gain, to go overseas with their spouses, and to continue their connection after marriage. Any Indian spouse who becomes an NRI either before or after marriage, whose marriage was consummated in accordance with Indian law wherever in the world, and whose spouse departs from India would be classified as victims of NRI marriages.
Laws that governs NRI Marriages
The fallowing laws governs the NRI’s in respect of marriage, divorce, maintenance and custody of the children’s
∙ The Hindu Marriage Act, 1955,
∙ The Special Marriage Act, 1954,
∙ The Foreign Marriage Act, 1969
∙ The J&K Hindu Marriage Act, 1980
∙ Goa, Daman and Diu Laws
Quaranic Laws of Muslims
∙ Parsi Marriage and Divorce Act, 1936
∙ The Indian Christian Marriage Act, 1872
∙ The Indian Divorce Act, 1869
∙ Hindu Adoption and Maintenance Act, 1956,
∙ The dissolution of Muslim Marriages Act 1939
∙ The divorce Act 1869
∙ The Marriage Laws (Amendment) Act, 2003 (Act No. 50 of 2003)
Legal issues involved in NRI Marriages
When it comes to divorce, Indian law is stricter than that of the West. The spouses who live in western nations are using the laws of their new home to get a divorce decree and evade the laws of India. In cases where the marriage was consummated in India in accordance with the Hindu Marriage Act, concerns regarding the legality of divorce decrees received from other nations would naturally emerge.
Regarding Anubha v. Vikas Aggarwal (100 DLT 682 (2002)). The young wife, the plaintiff, was requesting an order granting her the right to live apart from her spouse, the defendant, who is a nonresident Indian. In addition to the pendent lite expenses, she requested an order for maintenance in her favour because she had been cruelly treated by him and left him very soon after their marriage. When the wife discovered that her husband had filed for divorce in the United States while the case was still pending, she also petitioned the court to stop the procedure from moving forward there.
Following that, the court issued an order prohibiting the defendant from appearing in court again in the State of Connecticut, USA, for a term of thirty days. Nevertheless, the husband continued with the US “No Fault Divorce Petition” procedures in defiance of the ruling. When the Indian Court learned of this fact, it issued an order requesting that the defendant record his statement in accordance with Order X of the CPC. If he did not show up, the court dismissed his defence and filed charges of contempt.
Even after the husband was granted a divorce despite all of this, the main question that needed to be answered was whether or not the divorce decree that the husband had received from a Connecticut, USA, court during the pending litigation of the case in India under the specified facts and circumstances was legally enforceable. The Court ruled that the Hindu Marriage Act does not provide the basis for the defendant’s marriage to be dissolved.
The couple were Hindus, and the Hindu ceremonies were followed to solemnise their marriage. The Hindu Marriage Act’s requirements therefore applied to their marriage dispute or connection. The defendant got a divorce decree from the Connecticut Court of the USA, but it was ruled that it was not enforceable in India since the plaintiff refused to submit to the jurisdiction of the US court and did not consent to the divorce being granted there.
Therefore, even if an NRI spouse goes to the local courts and files for divorce, the divorce will not be enforceable if the grounds for the divorce are not recognized by Indian law.
In the case of Dipak Bannerjee v. Sudipta Bannerjee (AIR 1987 Cal 491), the husband contested the Indian court’s authority to hear and try the wife’s Section 125 maintenance proceedings. He argued that no Indian court had the international jurisdiction to try such a case because he was a citizen of the United States of America and his wife’s domicile followed his. The Court declared that in cases involving conflicts of laws, all cases must be resolved in line with Indian law, and Indian courts are not permitted to automatically adopt the principles of private international law that are applied in other nations.
The Indian Court’s jurisdiction was sustained because it was the court that she typically resided in, and the court concluded that the challenge brought by her husband was not tenable in light of the intent and social purpose of Sections 125 and 126.
Indian law thus takes precedence over international law in cases of dispute. 13 The attempts of NRIs to evade Indian regulations are merely pointless endeavours.
DIVORCE
A person who has married an NRI should be aware of the fundamental rules pertaining to NRI divorce, regardless of the cause for the divorce.
Section 13-b of the Hindu Marriage Act of 1955 permits divorce by mutual consent, which is what to do if both of the spouses are Indian and were wed under its provisions.
The divorce laws of the country pertaining to 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 can only be recognised by the Indian legal system if both parties have given their agreement.
The interests of Indians married to non-resident Indians are not well protected by several legislation. Nonetheless, the government is starting non-governmental organisations both domestically and internationally in response to the surge in unhappy marriages between Indians and NRIs. These groups offer guidance to Indian men and women who are married to non-resident Indians and live overseas. In the event of a divorce or separation, they provide moral support, legal help, and counselling.
It might be beneficial to choose a lawyer who is experienced in handling Indian divorce laws pertaining to non-resident Indians (NRIs), even if the divorce is occurring outside.
When two people are automatically united at one point in time, separation may also result from birth and death, appointment and retirement, and union and separation—in the event of a marriage, this may take the form of divorce or death. The Hindu Marriage Act’s Section 13 outlines the conditions that must be met in order to grant a divorce.
Similarly, the grounds for divorce are outlined in Section 27 of the Special Marriage Act.
Section 19 of the Foreign Marriage Act provides matrimonial remedies under the Special Marriage Act, wherein bigamy can be penalized under sections 494 and 495 and the marriage deemed null and void.
The grounds for divorce are listed in Section 32 of the Parsi Marriage and Divorce Act.
All of the provisions remain the same with only slight variations if they are followed. if the partner engaged in voluntary sexual activity with someone other than their spouse. cruelly handled the petitioner and abandoned them for a continuous period of time that lasted at least two years. Unsound mental state, conversion to a different faith, or a mental illness of a form and severity that makes it unreasonable for the petitioner to cohabitate with the respondent. Having a severe and terminal case of leprosy. For at least seven years, there has been no recorded case of contagious venereal disease that has given up on the world and joined a monastic order. are the typical reasons for divorcing. In the current situation, NRI husbands are abusing the amicable divorce rules in Western nations to divorce their spouses and avoid having to pay for their maintenance.
When the wife lives in India, they file for divorce in foreign courts and obtain divorce judgements from the other party. On occasion, they are getting an ex-parte divorce without telling them and keeping them living in the same home. The spouses filed for divorce orders at the same time they sought for support. Under circumstances not accessible to him in India, the NRI spouse secured an ex parte divorce decision in Canada in Veena Kalia v. Jatinder N. Kalia, AIR 1996 Del 54. The Delhi High Court ruled that such a divorce order did not prevent a woman from filing for divorce in India since it could not serve as res judicata. Moreover, the decree did not prevent the wife from filing maintenance requests in her divorce petition. The wife was unable to appear and contest the proceedings due to the prohibitive cost of travelling to Canada and other circumstances that rendered her disabled, and her husband took full advantage of this handicap.
The Court also examined the reasons why the wife did not object to her husband’s divorce petition in Canada: that she had no means to challenge the proceedings there and the decree of divorce was passed.
Furthermore, the husband’s sole basis for filing for divorce was the permanent dissolution of the marriage, which was not acknowledged by Indian law as a basis for divorce.
The Maganbhai v. Maniben, AIR 1985 Guj 187 ruling, which established that a foreign court’s decision establishes estoppel or res judicata between the same parties, provided that the judgement is immune to challenge under any of the clauses (a) through (f) of section 13 of the C.P. Code, was also cited by the court.
CONCLUSION
Men and women, or husband and wife, are created by nature as one and interdependent. Men rely on women emotionally, and women rely on men to protect them. Men’s pleasure and contentment in life are entirely dependent on women. It doesn’t mean that women are weak; on the contrary, when someone possesses powerful emotional reserves, they will naturally become strong in times of need to defend themselves. If we look at society, a husband who loses a wife would usually remarry within a year, claiming to be taking care of his family or the children, but it is not the other way around if the husband dies.
When the time came, women started to become autonomous and outperform males in every way. We need preventative measures, yet the current set of rules and enactments organisations are all cured of misguided men. It looks like a bison wandering freely around the streets, fending off roses, as the parents are bringing their girl kid with the utmost responsibility and abandoning their sons there. It is preferable to cage the bison and leave the roses untrammeled, which means raising boys requires greater responsibility than raising girls.
Then, we could empower women in all spheres of life without the need for specific legislation. As the government works to heal the wronged males, we, the members of the society, must take preventive action. We found no difference in the social threat of dowry and wife abandonment between educated and uneducated people, despite the fact that the majority of the NRIs who cheated and left their spouses behind were well educated and from respected households.
REFERENCES:
[1] https://sites.google.com/site/divorcelawsinindia/nri-divorce-law-in-india?authuser=0
[2]https://districts.ecourts.gov.in/sites/default/files/SCJSOMPETA.pdf
[4]https://www.advocatekhoj.com/library/lawareas/divorceinindia/12.php?Title=NRI%20Divorce%20India
[5] Ipleaders.com
[6] Divorce Act, 1869
[7] Dowry Prohibition Act, 1961
[8] Special Marriage Act, 1954