Marriage is a maze. Some people reach the end and fulfill their vow of “till death do us part”. Many people don’t. They reach a dead end. Some of those return and find a way back to reach the end. Some don’t. They give up and get a divorce. In India, parents are eager to marry their daughters to Non-Resident Indians (NRIs). But not all marriages survive. Some end up in divorce. There may be some degree of difference in divorce laws for NRIs and Resident Indians. Here, we discuss the divorce laws for NRIs.
Divorce Laws for NRIs when both the spouses are NRIs
There are two options available here. You can either file for a divorce in India or you can file it in the foreign country where you reside.
How to get a divorce in India?
If your marriage happened according to your respective personal laws in India, you can file a divorce petition in the family court of the place of marriage. You can also file it at the place where either of you last resided or where either of you ordinarily resides.
For example, if you registered your marriage under the Hindu Marriage Act in Mumbai, then you can file for a divorce in the Family Court, Mumbai. If either of you ordinarily resides in Pune, then you have an option to choose between Mumbai and Pune.
What are the grounds for divorce?
The regular grounds for divorce under the respective personal laws are available to NRIs also. But that will consume a lot of time and money.
Although, a mutual consent divorce is preferable to a contested divorce. The Supreme Court recently made it easier in a recent decision. It says that the usual 6-month period for obtaining a mutual divorce will not be necessary under certain circumstances.
Related: Grounds for Divorce in India
Does the NRI have to stay in India till the divorce is final?
In any case, it is not necessary for you to stay in India until the case gets over. You can execute a Special Power of attorney in favour of another personc after the presentation of the plaint.
But for giving evidence, it is critical that you come to India.
For a mutual consent divorce, you need to be present on the day of judgment too.
How to get a divorce in the foreign country where you reside?
In case you want to get a divorce in the foreign country where you reside, it must be a mutual consent divorce. The Indian legal system does not recognize Ex parte divorce orders, i.e., where only spouse participates.
You can apply for a divorce according to the foreign marriage law prevailing in the country where you reside. Afterwards, you need to seek a declaration in accordance with the Family Courts Act to make the foreign judgment valid in India. This declaration can be sought only in the family court which has the jurisdiction to try the case.
Exceptions: When foreign judgments do not apply in India
If you want recognition of the divorce in India, it has to be a mutual consent divorce. In certain cases, the divorce granted by a foreign court will not be recognized in India.
These cases are covered by the exceptions provided by the Indian Code of Civil Procedure. They deal with conclusiveness of a foreign judgment.
These exceptions cover the following situations.
Where the judgment has not been pronounced by a Court of competent jurisdiction
This covers cases where the court has no authority to take up the matter and decide on it. This affects the rights of the party.
For example, consider that A & B got married in Delhi, India. They both reside in London. If B files for a divorce in London in a court which has no jurisdiction in the matter and gets a divorce, then A will not be able to file for a divorce in India as the matter is already decided.
To avoid this prejudice, only judgments pronounced by competent foreign courts will be recognized in India.
Where the judgment has not been given on the merits of the case
This covers situations where the judge decides the case without applying his mind properly.
In the above example, if the case filed by B was not decided on its merits, it will deprive A of her right to file for a divorce in India. Thus, to serve the ends of justice, this exception is given in Indian law.
Proceedings found on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable
In short, it means that the judgment is against International law or Indian law. If the London court should have applied Indian law but did not, it is against the principles of Private International Law.
This kind of irregular judgments are not enforceable in India.
Proceedings are against Principles of natural justice
This means that the proceedings were biased or only one party established their case and the other was not given a chance to be heard.
For example, consider A left for India to file for a divorce while B was still in London. Using this opportunity, B gets a divorce against A in London, to avoid the maintenance he has to pay if the divorce is concluded in India. A loses her right to a fair hearing. To preserve natural justice, such foreign judgments are not recognized in India.
Where the decree has been obtained by fraud
This is an established principle of Private International Law. A foreign judgment obtained by fraud cannot stop you from filing a suit elsewhere.
For example, B may misrepresent that the marriage took place in London and get a divorce. This foreign judgment will not get recognition in India.
Where it sustains a claim founded on a breach of any law in force in India
This means that a foreign divorce based on a reasoning against Indian laws or not recognized by Indian laws will not apply in India.
For example, irretrievable breakdown of a marriage. This means that a marriage which can no longer be saved, is not a ground for divorce according to Indian laws. Thus, if B got a divorce on the ground that A & B can no longer withstand each other, that divorce will not be valid in India.
Related: 4 Don’ts While Filing for a Divorce
Divorce Laws for NRIs when only one spouse is an NRI
Two situations may arise here. The applicable divorce laws for NRIs will vary as per the situation.
If you got married in India, then the same procedure as above applies. If you got married in the foreign country, then the respective foreign marriage law applies.
The tendency of Indian women to marry NRIs is very high. But, in the end they are the ones who are easily deserted. Statistics also support this contention.
Unfortunately, there are no dedicated divorce laws for NRIs in particular. This creates confusion when it comes to personal laws like marriage, divorce, adoption, etc.
It is always safe to be prudent while choosing your life partner.
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