This article has been written by MS. Neha Udayan a 3rd year student of Lloyd Law College ( LSL), Greater  Noida

 

INTRODUCTION

A citizen of India who stays abroad for employment/ carrying on business having vacation outside India or stays abroad for an uncertain period under certain circumstances is called a non-resident Indian. In today’s globalized world.” the movement of men and women within a continent or from one continent to another for different reasons, ranging from employment to business or from education to tourism, marriages and divorces on a transnational scale are on the rise.

 The trend of Indian parents wanting to get their daughter married to a foreign-settled guy is growing as time goes by. For parents, it is for the betterment of the daughter. They feel an NRI guy will earn more and will give the daughter a better life. In the eagerness not to let go of such, the families ignore even the common cautions that are observed in traditional matchmaking. They also ignore that in case of things going awry in an NRI marriage, the woman’s recourse to justice is greatly constrained by the reason that such marriages are not governed anymore by only the Indian legal system but by the far more complex private international laws involving the legal system of the other country too. The aggravated risks in such marriages are the woman being isolated far away from home in an alien land, inevitably facing constraints of language, communication, lack of knowledge of local criminal justice, police, and legal system, lack of support network of friends and family to turn to, lack of immediate and readily available monetary support and a place to take shelter in, are issues that no one likes to talk or hear about at the time of marriage. NRI marriages are escalating by thousands every year, with the increasing Indian scenario, the number of matrimonial and related disputes in NRI marriages has also risen proportionately, in fact in most places much more than proportionately. 

 

COMMON ISSUES IN NRI MARRIAGES

1 Many times, the husband reaches the foreign country earlier than the wife and promises to apply for and provide for a visa. Such brides often end up staying in India for years in expectation of receiving a visa, often it is found that the husband never applied for a visa for the wife. 

2 If the woman reaches the foreign country, their husband does not show up at the airport to pick her up and abandons her in the city itself. 

3 If the woman goes to her husband’s house in a foreign country only to face domestic violence both mentally and physically, malnourished, confined, and ill-treated by her husband in several ways. She is, therefore, either forced to flee or is forcibly sent back. She may not be allowed to take her children with her in most cases. In many cases, the children are forcibly taken away from the woman.

4 Woman learns on reaching the country of her NRI husband’s residence that he is already married in that country and continues to live with his first wife. He may have entered into this second marriage due to pressure from his parents and to please them or sometimes even to use her as a domestic helper or to extract money from the bride’s side.

5 A woman who later learned that her NRI husband had given false information on any or all of the following: his job, immigration status, earnings, property, marital status, and other material particulars, to con her into the marriage.

6 Women who approached the court, either in India or in another country, for maintenance or divorce but repeatedly encountered technical legal obstacles related to the jurisdiction of courts, service of notices or orders, or enforcement of orders or learned of the husband commencing a simultaneous retaliatory legal proceeding in the other country to make her legal action.

 7 A woman who sought to use criminal law to punish her husband and in-laws for dowry demands and/, or matrimonial cruelty and found that the trial could not proceed as the husband would not come to India and submit to the trial or respond in any way to summons, or even warrant of arrest.

For whatever reason it may be, a woman is often subjected to physical, mental, psychological, and emotional abuse from her husband or his family members. Such criminal activity is never reported as at times the wife fears that the husband may continue to do this kind of activity or abandon her.

LEGAL INTERVENTIONS – DOMESTIC 

1. A) Compulsory Registration of Marriages – Registration of marriages be made compulsory – the Supreme Court in Transfer Petition of 2005 – Smt Seema Vs Aswini Kumar, vide judgment dated 14th February 2006 has issued the directions that the central and State Governments shall take the following steps.

1 Marriages of all persons who are citizens of India belonging to various religions should be compulsorily registered in their respective states. 

2 The procedure for registration should be notified by the respective states within 3 months. 

3 Thus, it is now incumbent upon the states to provide for registration of marriages which needs to be implemented in case of NRI marriages taking place in India.

1. B) Amend, if necessary, the Passport Act and add a special provision for the cancellation of the passport of the offending NRI spouse. Also, include more detailed particulars of the spouse in passports apart from attaching her photographs. Also add provisions for the requirement of updating of passports of NRI men after marriage to include marital status, to make a stricter offense for fake/false passports.

OTHER GOVERNMENTAL INTERVENTIONS. 

1 “Special Cells” be set up for NRI Marriages, at the state (where the problem is serious) as well as at the Central level, having representation from professionals like lawyers and counselors and also having close cooperation with the National/State (11) Women’s Commission, to facilitate flow, legal assistance, and other necessary action on the prompt basis from a single window. 

 2 A Special Cell be set up with Indian embassies, especially in target countries, to provide crisis assistance, legal support, and information as well as all other support to Indian women abroad as well as in India.

CASE– Margaret Pulparampil v Dr. Chacko Pulparampil (AIR 1970), is one of the earliest cases before an Indian court involving the issue of children’s custody in NRI marriage. In this judgment, the High Court of Kerala not only recognized the important principle of “real and substantial connection” to establish the court’s jurisdiction to decide custody issues but also recognized the availability of the remedy of writ of habeas corpus to claim custody of a child who has been illegally removed by a parent. Here the court allowed the child to be moved back to the mother in Germany even though that meant allowing the child to be moved out of the Indian court’s jurisdiction, as the court felt that the interests of the child were of paramount consideration and in this case made it necessary to give the custody to the mother in Germany.

References

 

 

CONCEPT OF SURROGACY – Legal dimension

Parenting is a blessing that many people do not normally receive but it is a dream that practically everyone has. Apart from adoption, there is another way that a couple can get a baby which is Surrogacy. Surrogacy allows willing people to realize this lovely desire for parenthood. Surrogacy arrangements are medically, emotionally, financially, and legally complex.

What is surrogacy?

It involves a person agreeing to carry and give birth to a baby for someone else. After the baby is born, the birth parent gives custody and guardianship to the intended parent or parents. Surrogacy has complex legal and medical steps that must be met.

Surrogacy legislation in Australia

All surrogacy arrangements in Australia must be altruistic (where the surrogate does not get paid for acting as a surrogate, other than being reimbursed for medical and other reasonable expenses).

Most Australian states have specific legislation that outlines the requirements for surrogacy. In the absence of legislation, states and territories are required to abide by national ethical guidelines issued by the National Health and Medical Research Council (NHMRC).

Surrogacy Legislation in Victoria

Under the Assisted Reproductive Treatment Act 2008, the following requirements apply:

The commissioning parents-

1. must be infertile or unable to carry a baby or give birth, or there is a likely medical risk to the mother or baby if pregnancy is carried out.

The surrogate-

1. must be at least 25 years old
2. must have previously been pregnant and given birth to a live child
3. must not use her eggs in the surrogacy arrangement.

It is preferred that the surrogate has already completed her family but this is not a legal requirement.

All parties, including the commissioning, parent/s the surrogate, and the surrogate’s partner must have received counseling and legal advice.

Some clinics also require the donor involved in the arrangement (if there is one) to comply with these 2 requirements.

Evolution of Surrogacy Laws in India

India legalized commercial surrogacy in 2002, opening its doors to a booming surrogacy industry. This legalization led to the growth of numerous commercial firms specializing in surrogacy law, guiding and assisting both Indian and international clients in their surrogacy journeys. However, the commercialization of surrogacy raised concerns about the potential exploitation of surrogate mothers and the commodification of children. In response to these concerns, the 228th report of the Law Commission of India recommended prohibiting commercial surrogacy in favor of ethical altruistic surrogacy, governed by suitable legislation. One of the driving factors behind the surge in surrogacy services in India has been poverty, compelling many economically disadvantaged women to rent their wombs in exchange for financial compensation or essential commodities. To regulate surrogacy arrangements, the Indian Council of Medical Research (ICMR) issued guidelines in 2005. These guidelines stipulated that surrogate mothers were entitled to monetary compensation, the value of which was to be determined by mutual agreement between the surrogate mother and the intended parents.

Additionally, the guidelines specified that the surrogate mother could not donate her egg for surrogacy and must relinquish all parental rights related to the surrogate child.

Surrogacy Bill 2019

• Regulation of Surrogacy

The Surrogacy (Regulation) Bill 2019 categorically prohibits commercial surrogacy but wholeheartedly supports altruistic surrogacy. Altruistic surrogacy allows intending parents to provide compensation to the surrogate mother for medical expenses and insurance coverage during pregnancy.

• Permitted Purposes

Surrogacy is permitted under specific circumstances, including when it is medically established that the couple is infertile and unable to conceive naturally. The couple should not have existed baby. It must also be altruistic and not for commercial gain or exploitation.

• Eligibility Criteria

Intending couples seeking surrogacy must obtain a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the Government of India.

• Protecting the Rights of Surrogate Mothers

If a surrogate or gestational carrier decides not to continue with the pregnancy, the legal framework in India addresses this scenario.

Surrogacy Act 2021

It has established eligibility criteria for intended parents seeking to undertake surrogacy.

1. As per the law, the intended couple must be lawfully married and meet specific age prerequisites.
2. The female partner must fall between the age range of 23 to 50 years, whereas the male partner must be in the age bracket of 26 to 55 years.
3. Additionally, the couple must not have any biological offspring from a prior marital union.
4. The female partner should have a medical indication for surrogacy with valid medical reports to support this claim.
5. The willing surrogate mother should be married with at least one child of her own.
6. An unmarried woman may also qualify as an intended parent, provided she falls in the age group of 35 to 45 years and is either married, divorced, or widowed.  Nonetheless, if she has a surviving child from a previous marriage, she is ineligible for surrogacy.
7. Single males or same-sex couples are prohibited from surrogacy arrangements in India.
8. Medical Indication in the Intended Mother is Must

The new surrogacy law in India allows couples to opt for surrogacy under certain medical conditions, including MRKH, unicorn ate uterus, multiple IVF failure, miscarriage, or abortion.

The continuous refinement of surrogacy regulations in India demonstrates the nation’s strong commitment to protecting all parties involved.

CASE- Baby Manjhi Yamada v. Union of India

In this case, a Japanese couple, Dr. Ikufumi Yamada, and his wife visited India to have a baby through the practice of surrogacy. Then they hired an Indian woman as a surrogate mother for their child who lived in Gujarat where this practice was pioneered. Due to some matrimonial disputes, the couple divorced. The father wanted to have custody of the child but according to Indian law, the single father cannot adopt a girl child. So, in this case, Justice Arijit Pasayat and Justice Mukundakan Sharma of the Supreme Court give the custodial rights of the girl child to her grandmother. So, in this case, it was analyzed that there is a need to have regulated surrogacy laws in the country.

References

1Surrogacy Bill 2019. Linkhttps://loksabhadocs.nic.in/Refinput/New_Reference_Notes/English/29012021_103307_102120474.pdf

1. Bill 2021. Link
2. India kanoon. link
3. International Journal of Law and Legal Jurisprudence studies. link
4. IJCRT,ORG. link
5. India Kanoon. link
6. LegalservicesIndia. link