Non resident Indians are needed guidance in their complicated times due to sophisticated divorce processes. Many NRI husbands are already married or have children abroad, often leaving their Indian brides with their parents instead of taking them along. When this deception is discovered, the bride’s family typically seeks a divorce. Additionally, NRIs may exaggerate their assets, claiming to have luxurious homes, cars, and high-paying jobs, but they often struggle to support a family. The Indian spouse may also find it hard to adjust to the NRI’s modern lifestyle, leading to divorces based on incompatibility.
What Are The Basic Laws Related To NRI Divorce?
Individuals married to NRIs should be familiar with the basic laws governing NRI divorce.
If both spouses are Indian and married under the Hindu Marriage Act, 1955, they can seek divorce by mutual consent under Section 13-B, which provides for divorce by mutual consent.
If both spouses reside any foreign country, they can seek divorce by mutual consent under the divorce laws of that country.
The Indian legal system will consider valid the divorce only if it is obtained with the consent of both parties.
What Are The Steps For Filing A Divorce By Mutual Consent?
The parties must submit a divorce petition to the court.
Both parties must agree in advance on maintenance and child custody arrangements.
The case will be adjourned for six months after the plea is presented, commonly referred to as the first motion.
After six months, both parties must appear in court to confirm their mutual consent for divorce.
Either party may withdraw or retract the divorce petition before the second motion within the six-month period.
NRIs do not need to travel to India for the divorce process. Lawyers authorised through Power of Attorney can file, sign, and obtain the decree on their behalf.
Video conferencing and remote representation have been allowed by the Supreme Court.
After the divorce is granted and a court decree obtained, the decree must be enforced in India for it to be legally valid.
The Code of Civil Procedure, 1908 (CPC), governs the enforcement of foreign decrees in India.
The enforcement process differs based on whether the decree is from a court in a reciprocating or non-reciprocating territory.
What Are The Conditions For Invalidating A Decree Of Mutual Consent NRI Divorce?
The decree will not be considered valid if issued by a court lacking proper jurisdiction.
If force, coercion, or undue influence was used to obtain consent from either party, the decree is not legitimate.
The divorce decree is invalid if it was not granted based on the specific grounds of the case.
Such a decree can be challenged in an Indian court and may be declared null and void.
How Does The Enforcement Of NRI Divorce Decrees Work In India?
Under Section 44A(1) of the CPC, a decree by a superior court in a foreign country can be enforced in India as if it were passed by a District Court in India.
Section 44A(2) requires a certified copy of the decree along with a certificate from the foreign court, which serves as conclusive proof for enforcement.
In case of Non-Reciprocating Territory’s Court Decree, NRI divorce becomes more complex as a separate suit must be filed in an Indian Court. The foreign decree cannot be enforced directly.
The Indian Court must assess the decree, ensure compliance with Section 13 of the CPC, and issue its own decree affirming the foreign judgement.
In conclusion, NRIs navigating divorce must be aware of both Indian laws and the legal processes in their residing countries. Indian courts recognise divorce decrees obtained abroad if they are based on mutual consent and comply with jurisdictional and procedural requirements. However, complications can arise if the decree is from a non-reciprocating territory or was obtained through coercion or fraud. NRIs can manage the process remotely through legal representation, and enforcement of foreign decrees in India is governed by the Code of Civil Procedure, 1908, requiring specific documentation for validation.
