LEGAL RIGHTS OF WOMEN IN MARRIAGE

 

Every woman has the right to lead her life (married or otherwise) with dignity, freedom, care and support from her spouse without the fear of violence (emotional, mental or physical), neglect, fear or humiliation of any kind. In India, due to years of patriarchy, women have been subjected to painful situations of forced abortions, marital rape, cruelty at the hands of their spouse and in-laws. Laws were made to protect women and elevate their social and economical position in society. In the current scenario, the law is present, but due to its complexities, many women do not know how to make use of them to their benefit.

The Indian law system is complex, we agree. But below, we will try to do our best to break down concepts and help you understand the workings of the legal rights of the Indian woman, including but not limited to her rights in a divorce, domestic violence, child custody, rape laws, and cases where the in-laws are pressuring her for dowry.

 

DISSOLUTION OF MARRIAGE

Marriage endows certain legal rights and obligations on both the wife and the husband. For a wife/husband to exit the marriage, she/he has to initiate legal proceedings to obtain a divorce or an annulment. The common misconception is that the breakdown of marriage results in divorce. Divorce is caused by the breakdown of marriage, but it is not the only way. A marriage can be dissolved in different ways:

  1. Annulment
  2. Divorce

 

ANNULMENT:

While a divorce dissolves a marriage,  an annulment renders the marriage null and void, i.e. as if the marriage did not take place at all. Annulments are rarer than divorces and have very different grounds.

Which marriages are qualified to be annulled? Void and voidable marriages can be annulled. While void marriages are automatically annulled, in a voidable marriage, one party needs to seek annulment.

Once annulment is granted by the Court, the status of the parties goes back to what it was prior to the marriage. Annulment can be granted when a marriage is either void or voidable.

https://blog.ipleaders.in/nri-mutual-consent-divorce/

Void Marriage Voidable Marriage
Meaning A marriage is automatically void and is automatically annulled when it is prohibited by law A voidable marriage is one where an annulment is not automatic and must be sought by one of the parties.
Grounds
  • Bigamy
  • Degree of prohibited relations (unless custom or usage permits otherwise)
  • Sapindas (unless custom or usage permits otherwise)
  • Impotency
  • Lack of mental capacity
  • Under age of consent
  • Fraud or force
Who can seek annulment The parties can approach a court for a legal declaration of nullity. This is just a formality to be brought on record and is done as a precaution to ensure that in the future, the void marriage is not called in question. The parties have to approach the court for nullifying the marriage.

  • If the petitioner consents and lives with the respondent for more than one year after force ceased to operate or fraud was discovered.
  • If at the time of marriage, wife was pregnant by some person other than the husband, and he was unaware of it and after discovery has refused to maintain marital intercourse with the wife.
Consequences Children born out of a Hindu void marriage are legitimate.

A wife cannot claim maintenance from her husband unless it is a Hindu void marriage.

Children born are identified as legitimate children and are entitled to succeed to the estate of their parents.

 

Useful Links:

http://www.advocatekhoj.com/library/bareacts/indiandivorce/21.php?Title=Indian%20Divorce%20Act,%201869&STitle=Children%20of%20annulled%20marriage

https://sites.google.com/site/divorcelawsinindia/nullity-of-marriage-in-india http://www.vakilno1.com/legalviews/void-marriage-nullity-of-marriage.html

 

DIVORCE:

Divorce is caused by the breakdown of the institution of marriage, for whatever reason. For legal purposes however, you need to file for divorce under valid grounds for your divorce petition to be successful. The societal pressures of filing for divorce in India are quite challenging. One requires tremendous mental strength to fight against various social stigmas and economical threats which may arise while proceedings of divorce are underway.

 

FEW THINGS DISSATISFIED SPOUSES SHOULD LOOK AT BEFORE OPTING FOR A DIVORCE:

  1. Can there be a solution which does not lead to a divorce?

Not every small fight or dispute warrants a divorce discussion. Before taking any step, try talking it out with your trusted friends and advisors. Or you could even try talking to your husband or wife (please proceed with caution if you are a victim of domestic violence or cruelty).

If you do not have anyone to confide in and if you need help, there are many women help centres, NGOs and counsellors dealing with family and divorce cases. They will guide you to a clearer path. Also read <Link: Planning my future, mental health pages>

  1. Why do I want the divorce?

Ask yourself this question before you take the step. The answer must be clear and reasonable. Why? Always remember, if you feel that you aren’t in the right marriage, you should leave. Divorce is full of ups and downs. If your reasoning for opting out of the marriage is clear and well-thought out, you will be less susceptible to psychological issues and ‘cold feet’. A woman opting for divorce can face stigma and harassment because of the Indian patriarchal society which does not respect a woman’s autonomy. However, this does not mean you are making a wrong decision by opting for a divorce if you feel that the marriage is not working.

  1. Try to talk to your partner about the divorce

Chances are, if you are feeling the discord in the marriage, so is your spouse. The talk with your partner can go three ways:

  1. You talk to your partner and decide on a way to keep the marriage alive. You both decide to compromise, either for your children or for each other.
  2. If you both cannot work past the differences in the marriage and agree on getting a divorce, then you can file for a mutual consent divorce.
  3. Chances are that your partner is not on the same page as you are, or if you are trapped in an abusive relationship, then you should consult someone on filing a contested divorce petition.

[Details on both forms of divorce are given extensively below.]

With the advancement of time and social awareness, several acts have been passed by the government to make the present day divorce procedure in India more progressive with respect to gender-related equality.

Below we have listed the laws which are currently existing pan-India for marriages under different religions. India is a secular country which promotes religious freedom to all, therefore marriages fall under personal laws of each religion.

 

HOW TO IDENTIFY WHICH MARRIAGE AND DIVORCE LAW APPLIES TO YOU:

  • Hindu marriages (which includes Sikhs, Jains and Buddhists) are governed by Hindu Marriage Act,1955.
  • Muslim marriages are governed by Muslim Personal Laws of Divorce and also the Dissolution of Marriage Act,1939 & The Muslim Women (Protection of Rights on Divorce) Act,1986.
  • Christian marriages are governed by The Indian Christian Marriage Act,1872 and Indian Divorce Act-1869.
  • Parsi marriages are governed by The Parsi Marriage & Divorce Act-1936, with amendments in 1988.
  • For all inter-religion marriages and marriages which choose to be registered under it, the Special Marriage Act,1954 applies.
  • The NRI Marriage Act applies for the marriages of Non-Resident Indians(NRIs).

 

HOW DO I GET A DIVORCE?

A cursory reading of the entire gamut of Indian Laws regarding Divorce makes it clear that the Divorce can be obtained by two ways:

  1. Mutual Consent Divorce (MCD)

Mutual Consent Divorce means dissolving a marriage legally by the consent of both the spouses. In a Mutual consent divorce, both spouses agree to getting a divorce and ending their married life owing to irreconcilable differences.

COURTS WHERE CAN ONE FILE FOR DIVORCE UNDER MUTUAL CONSENT?

Like we have mentioned above, divorces are granted under the religious law that one follows. <Link: Look at HOW TO IDENTIFY WHICH MARRIAGE AND DIVORCE LAW APPLIES TO YOU> Below are the name of the courts where you can legally file for mutual consent divorce. The place where one can file for divorce is mentioned in “Jurisdiction” in <link: “How does the Indian Court system work”>.

Under Hindu law:

Law: Section 13B of the Hindu Marriage Act, 1955.

Court: The married couple must make a petition to the district court together.

Requirements to file a Mutual Consent Divorce: The married couple must be living apart for a period of one year or more, they have not been able to live together and they mutually agree to get the marriage dissolved.

Under Muslim Law: Mutual consent divorce procedure under Muslim law is different than that under other laws. We deal with the procedure of Mubara’at (Mutual Consent Divorce) under this heading completely

Law: Mubara’at under Shariat Law and Dissolution of Muslim Marriages Act, 1939

Court Procedure:

  1. The couple must give the Chairman a Notice in writing.
  2. The “Chairman” means the Chairman of the Union Council or a person appointed by the Government or by an Officer authorised by the Government to discharge the functions of chairman.
  3. Within 30 days of such notice, the chairman must constitute an Arbitration Council to try to bring about reconciliation between the parties.
  4. Talaq is not effective until the expiration of 90 days from day on which the notice is delivered to the Chairman.

Under Christian law:

Law: Section 10-A of the Divorce Act, 1869

Court: The married couple must make a petition to the district court together.

Requirements to file a Mutual Consent Divorce: The married couple must be living apart for a period of two years or more, they have not been able to live together and they mutually agree to get the marriage dissolved.

Under Parsi Law:

Law: Section 32-B of the Parsi Marriage and Divorce Act, 1936

Court: A suit for divorce must be filed by both parties of the marriage together.

Requirements to file a Mutual Consent Divorce: The married couple must be living apart for a period of one year or more, they have not been able to live together and they mutually agree to get the marriage dissolved.

Under Special Marriage Act, 1954

Law: Section 28 of Special Marriage Act, 1954

Court: The married couple must make a petition to the district court together.

Requirements to file a Mutual Consent Divorce: The married couple must be living apart for a period of one year or more, they have not been able to live together and they mutually agree to get the marriage dissolved.

 

PROCEDURE OF MUTUAL CONSENT DIVORCE IN INDIA AFTER FILING THE PETITION

The following procedure is only for Hindus, Christians, Parsis, and people who come under the Special Marriage Act. For Muslims, procedure is mentioned above.

 

Mutual Consent Divorce is to be filed by the couple only if the requirements to file a Mutual Consent Divorce are met.  A petition for divorce, supported with affidavits, should be filed by both spouses. The husband and the wife should jointly state to the court that they are unable to live together and that they both want the marriage dissolved.  The courts will receive a petition for mutual consent divorce and the statements of both individuals will be recorded.

For purposes of appearance in court proceedings, if one party is unable to come, a power of attorney can be accorded to any person. This person should preferably be a family member. Once the statements of the individuals filing for divorce are recorded, the first motion is granted.

After the first motion has been granted, a period of 6 months is allotted as an interim period for the individuals to rethink their consent for the divorce. In this intervening time, either party can withdraw their consent.

In case one of the sides withdraws his/her petition, the court initiates to make an enquiry. If the concerned side disagrees to give the consent, the court holds no right to pass the divorce judgment.

If neither party withdraws consent, then comes the second motion stage where the individuals have to be present to confirm their consent. The divorce is granted after this.

In the stage of second motion, both parties have to be present to confirm their consent by recording their statements in the court. Here, the physical presence of the parties is compulsory unlike in the first motion stage where a power of attorney could be granted.

The period of 6 months can be extended to 18 months from the date of first motion being granted within which both parties must come to the court physically and record their statements giving their consent to the divorce. The courts have allowed for some amount of flexibility to be granted in this regard. Thus, an NRI can assign his consent and his presence between a period of 6 months to 18 months to acquire the final decree for mutual consent divorce by the courts.

For a judgment of mutual consent divorce to be passed, the husband and the wife should also come to terms of settlement regarding all of their rights and obligations including but not limited to:

  • Custody of Child;
  • Lump Sum Maintenance Amount of Wife;
  • Litigation Expenses;
  • Property distribution, etc.

For a mutual consent divorce in India, Chayn would always suggest the married couple to consult an experienced lawyer together who will effectively guide and help draft the terms of settlement so that the divorce decree is granted by the courts at the earliest.

 

Useful Links:

https://mylegalwork.com/guides/mutual-consent-divorce

 

  1. Contested Divorce  

In a contested divorce, the other spouse either does not agree with getting a divorce and wants to remain married OR the other spouse agrees to a divorce but does not agree to the terms of the divorce such as division of property, child custody, maintenance, child support and other related issues.

Contested divorce is based on a fault-based approach. One spouse will accuse the other of some reason because of which the marriage cannot work out. The courts will then hold a trial and deem whether such a reason is enough grounds for granting a divorce decree to the aggrieved party. Here, of course, it is imperative that one spouse wants to remain married. So in one interesting case the wife filed for divorce on grounds of cruelty, and the husband contested the claim of cruelty, but stated that he had no qualms in divorcing his wife. The courts stated that both parties are agreed on getting the divorce and the contested divorce petition was dismissed.

The aggrieved spouse can file for contested divorce in the courts. Gender is no bias in contested divorce cases.

Aggrieved party has to take one of the grounds of divorce as discussed in the section below and will have to file the case in the Court of appropriate jurisdiction.

The party which files the case has to prove the case with support of evidence and documents. On successfully proving the case, divorce will be granted and divorce decree will be drawn up accordingly.

 

COURTS WHERE CAN ONE FILE FOR DIVORCE UNDER CONTESTED DIVORCE

Like we have mentioned above, divorces are granted under the religious law that one follows. <Link: Look at HOW TO IDENTIFY WHICH MARRIAGE AND DIVORCE LAW APPLIES TO YOU> Below are the name of the courts where you can legally file for contested divorce. The place where one can file for divorce is mentioned in “Jurisdiction” in <link: “How does the Indian Court system work”>.

Under Hindu law:

Law: Section 13 of the Hindu Marriage Act, 1955.

Court: The aggrieved spouse must make a petition to the appropriate court.

Requirements to file a Contested Divorce: Fulfillment of the grounds given in the table below.

Under Muslim Law:

Law: Section 2 of the Dissolution of Muslim Marriages Act, 1939

Court: The aggrieved spouse must make a petition to the appropriate court.

Requirements to file a Contested Divorce: Fulfillment of the grounds given in the table below.

Under Christian Law:

Law: Section 10 of the Divorce Act, 1869

Court: The married couple must make a petition to the district court together.

Requirements to file a Contested Divorce: Fulfillment of the grounds given in the table below.

Under Parsi Law:

Law: Section 32 of the Parsi Marriage and Divorce Act, 1936

Court: A suit for divorce must be filed by both parties of the marriage together.

Requirements to file a Contested Divorce: Fulfillment of the grounds given in the table below.

Under Special Marriage Act, 1954

Law: Section 28 of Special Marriage Act, 1954

Court: The married couple must make a petition to the district court together.

Requirements to file a Contested Divorce: Fulfillment of the grounds given in the table below.

 

IDENTIFYING GROUNDS AVAILABLE TO YOU ONLY UNDER CONTESTED DIVORCE. (Briefly, from a wife’s perspective):

Grounds For Hindus For Muslims For Christians For Parsis For Inter-

Religious Marriages

1 Cruelty -Yes- -Yes- -Yes- -Yes- -Yes-
2 Adultery -Yes- 1. For a false charge of adultery: Yes

2. If husband associates himself with women of ill repute or leads an infamous life of adultery: Yes

-Yes- -Yes- -Yes-
3 Desertion For 2 years or more For 4 years or more For 2 years or more For 2 years or more For 2 years or more
4 Conversion -Yes- -Yes- -Yes-
5 Impotency -Yes-
6 Mental Disorder/Illness/Insanity -Yes- Insanity: For 2 years or more For 2 years or more -Yes- -Yes-
7 Virulent and Venereal Diseases -Yes- -Yes- For 2 years or more Within 2 years of knowledge of disease so transferred
8 Presumed dead For 7 years or more For 4 years or more For 7 years or more
9 Refused consummation of marriage/Failure to perform marital obligations For 3 years or more -Yes- For one year or more
10 Failed to comply with decree of RCR For 1 year or more after passing of decree For 2 years or more after passing of decree -Yes- For 1 year or more after passing of decree
11 Imprisonment for 7 years or more -Yes- -Yes- -Yes-
12 Failure to provide maintenance For 2 years or more
13 Option of puberty -Yes-
14 Renunciation -Yes-

PROCEDURE OF CONTESTED DIVORCE IN INDIA AFTER FILING THE PETITION

The grounds for seeking divorce need to prove wrongdoing on the part of the other. A petition mentioning the grounds, along with the evidence must be filed in court. The court would summon the spouse, and post this, charges are framed. After this, the charges are examined one-by-one, with detailed questioning and cross-examination at this stage. Once appreciation of evidences is over, the Court will listen to the arguments of either side, and then proceed to decide whether the accused spouse is guilty of any of the above grounds. If the court finds that the accused spouse is indeed guilty, then it will pass a decree of divorce in favour of the aggrieved spouse.

In contested divorce proceedings, there is no set time period. Nor is there any specific set of times that the parties need to appear in the court. As and when the hearings are called, the spouses (especially the accused spouse) need to be present in the court.

 

MUTUAL CONSENT DIVORCE V. CONTESTED DIVORCE- PROS & CONS.

Getting a divorce through mutual consent should always be preferred over the contested divorce.

The process of getting a mutual consent divorce is simpler in comparison to that of the other. A mutual consent divorce is less expensive and quicker than their counterpart, the contested divorce.

For a mutual divorce procedure in India, you can come to an agreement with your spouse- addressing disputes regarding maintenance, custody of children, your possessions, etc. The terms of the agreement are mutually decided, which means that you both have better control on the outcome. In terms of advocates fees, mutual consent divorces usually fall in the lower bracket because the advocate’s involvement lies just up to the preparation of the paperwork and basic advocacy skills.

The contested divorce procedure is more complicated. Here the grounds for seeking divorce need to prove wrongdoing on the part of the other. This process is cumbersome, the presenting of evidence, examination and cross-examination usually takes multiple visits. The advocate fees are also relatively high as compared to a mutual consent divorce because his/her involvement with the case is higher. Not only that, but the couple cannot move ahead with their lives because of the litigation which is quite long-drawn.

A mutual divorce, therefore, is more suitable, and it is advisable to reach the terms of agreement before filing for divorce.

 

Useful Links:
http://delhi-lawyers.in/know-difference-between-mutual-and-contested-divorce-india

https://mylegalwork.com/guides/mutual-consent-divorce#why-mutual-consent-divorce

HOW DOES THE INDIAN COURT SYSTEM WORK?

1.HIRING A LAWYER (VAKALATNAMA)

The very first step in getting a divorce is to hire a lawyer who will act as your legal advisor throughout the long process of divorce. Your lawyer should have the following:

  1. Experience: While appointing a lawyer, you must make sure that he/she is experienced enough to handle your divorce case tactfully and efficiently.
  2. Interest: Your lawyer should take interest in your case and he/she must devote a substantial time to execute all the legal proceedings of your divorce.

Fee Structure: Chayn advises that you understand your financial limitations at the beginning. Have a clear chat with your lawyer in the first few meetings on what the fee structure will be like (It will be helpful if the fees are categorized yearly, instead of each court appearance being billed separately).

In case you are unable to afford a lawyer, you can approach the District Legal Services Authority in your area for a lawyer to represent you. The Government provides this lawyer free of cost. Some non-governmental organizations also provide free legal representation in such cases, or can provide referral services to affordable legal services.

What is a Vakalatnama? A Vakalatnama is a signed legal document which is prepared in India to authorise a lawyer to represent your case in court. For what a Vakalatnama contains, we have attached the format below.

 

2. CHANGING YOUR LAWYER

You can change your lawyer for any reason, but it is advisable that you do not keep changing lawyers continuously because it is difficult for the new lawyer to know your case in depth. If the lawyer who is currently representing you is not satisfactory, you can change him/her. You can do this by:

  1. A No Objection Certificate (NOC) may be prepared on the Vakalatnama and other related documents by the lawyer.
  2. If the advocate refuses to give the NOC then you can issue a notice of termination to the advocate. You can then apply to the court to withdraw the Vakalatnama. The new lawyer will submit another Vakalatnama to the court.

 

Useful Links:

http://lawfarm.in/blogs/what-is-the-procedure-to-change-your-attorney-in-the-middle-of-the-case

 

3. DRAFTING THE DIVORCE PETITION

Your lawyer will draft a divorce petition. If it is a mutual consent divorce, then the petition will be based on the requirements for divorce, eg. it is impossible for the couple to live together, they have lived apart for the required period of time. If it is a contested divorce then it will be based on the grounds for filing a divorce in India under the personal law governing your marriage. You will be expected to provide your lawyer with every necessary detail and documents that would enable him/her to draft a concise petition and file the case in the court.

 

4. DOCUMENTS NEEDED

First consult your lawyer on which documents are needed for your case. Documents differ from case to case. For filing for divorce in India, you are required to hand over the following photocopies of documents (generally) to your lawyer, if these apply to you:

  • Income Tax statements for the past 2 or 3 years
  • Details of your profession and your present remuneration
  • Your birth and family related information
  • Details of properties and assets possessed by you
  • Marriage details (ie, marriage photograph, marriage registration certificate, etc.)

 

Along with the above mentioned documents you need to provide your lawyer with a detailed account of your marriage that includes how and when you got married and what went wrong leading to the breakdown of the marital bond.

The more honest you are in your account the easier it will be for the lawyer to file a strong petition for a contested divorce. The lawyer will also tell you what kind of evidence he needs (eg. hospital reports or bills if you are a victim/survivor of domestic violence, voice recordings for dowry threats, etc.) to make the petition stronger in essence.

Shortly after, the court will send a notice and a copy of your petition by registered post to your spouse asking him/her to appear in the court on a specified date.

 

5. JURISDICTION (TERRITORY)

Jurisdiction means the power of the court to grant a valid decree. The court must have the jurisdiction to take up the matter beforehand otherwise, any decree granted by them will be invalid.

FIRSTLY need to check the personal/religion laws under which you have got married to figure out which court can hear out your divorce matter.

<Read more on which court can hear your petition in the respective mutual consent and contested divorce sections>

SECONDLY you need to check under which territory can you can file the petition.

Jurisdiction for mutual consent divorce depends on the following factors which are constant in all statutes-

  1. Area where the marriage took place or was registered.
  2. Area where the couple last lived together.
  3. Area where the other party is residing at the time of the divorce filing.

Jurisdiction for contested divorce depends on the following factors which are constant in all statutes-

  1. Area where the marriage took place or was registered.
  2. Area where the couple last lived together.
  3. Area where the other party is residing at the time of the divorce filing.
  4. If wife is filing for contested divorce, then the place where the wife is residing at the time of filing the petition.

 

6. HOW LONG WILL THE DIVORCE PROCEEDINGS TAKE?

Time duration for obtaining divorce varies from case to case & place to place. Therefore, the time period for all contested divorce proceedings depends on the circumstances unique to that case. Generally speaking, contested divorce proceedings take approximately 3 to 5 years.

Mutual Consent Divorce decree can be obtained anywhere between 6-18 months.

 

Useful Links:

http://www.divorcelawyers.co.in/how-to-get-a-divorce-in-india/

http://parting.hpage.co.in/welcome_38386049.html

https://mylegalwork.com/guides/mutual-consent-divorce

 

NRI MARRIAGE

The desire to settle in a foreign country for a better quality of life inspires Indians to tie knots with NRI brides and grooms.

According to statistics, 225 women from Indian metro cities get married to NRI (Non Resident Indian) men every year. Out of these, at least 25 women are either deserted by their husbands, or wish to end their marriage on accounts of being deceived by the groom’s family.

The phenomenon of wives abandoned by their NRI husbands has been growing for more than a decade. Nearly every Indian state is plagued by the phenomenon of women deserted by NRI men residing in various countries of Europe, Middle East or countries including Canada, the UK,and the USA. In light of this, it is very important for such women to know about the situations which can arise, if married to an NRI.

Here are some common situations that lead to divorce in a marriage to an NRI:

  • The NRI already has another spouse, and in some cases children too, settled with him abroad. In most of these cases, the groom does not take the bride with him leaving her behind with his parents. If the truth comes out, the bride’s family seeks a divorce for their daughter.
  • The groom’s family exaggerate about their monetary possessions in the foreign country – home, vehicle, high paying job. In reality the situation may be different. The wife feels cheated by her in-laws and husband and seeks a divorce.
  • The lifestyle of the NRI spouse is too different for the Indian spouse to keep pace, and this incompatibility leads to either party seeking a divorce.
  • The wife, is residing with her husband in a foreign country suddenly finds that her husband has disappeared leaving her in the lurch.
  • The wife has been residing abroad with her husband is either deceived and/or coerced into coming back to India and left in India without her passport, visa, and money and thus without any way of rejoining her husband.
  • The marriage takes place before her husband migrates to a foreign country and the wife is never sent sponsorship for a visa to join him. Alternatively, a man who is already living abroad may return to India to marry and then leave with promises to send for his bride. However, the visa papers never arrive.

Since a large number of such marriages take place hurriedly, mostly when these men come back to India for a visit, these women have been popularly labelled as “holiday brides.”

 

DIVORCE FOR NRI’S

Irrespective of the reason for divorce, any person married to an NRI should be aware of the basic laws related to NRI divorce. If both spouses are Indians and have been married under Hindu Marriage Act of 1955, they can seek divorce with mutual consent under section 13-B. Similarly, Muslim marriages will have to follow the Dissolution of Muslim Marriages Act of 1939. Marriages of other religions, or inter-religion marriages will have different statutes for applying for divorce.

Jurisdiction means the power of the court to grant a valid decree. The court must have the jurisdiction to take up the matter beforehand otherwise, any decree granted by them will be invalid.

In matters of divorce, the jurisdiction depends on the religion under which the couple got married. However, three factors are constant in all statutes –

  • Area where the marriage took place or was registered.
  • Area where the couple last lived together.
  • Area where the other party is residing at the time of the divorce filing.

What if the Couple is Not Living in India After Marriage?

If a Non-Resident Indian (NRI) married in India wants a mutual consent divorce, then he/she can do so by filing a petition in India or in the country where both of them are residing. The Indian law provides for this exception of filing a divorce in another country.

It says that a petition can be filed within the jurisdiction of the courts of which the parties to the marriage last resided.

The residence or the matrimonial home of the NRI couple will be a foreign country. Thus, the couple can file for a divorce petition either in India or in the foreign country. The Indian legal system will recognize the divorce only if it is with the consent of both parties.

When a couple decides to file a divorce petition in a foreign country, they do so on the basis of the power given to them under the Indian law. The petition for mutual consent divorce will have to be made in accordance with the laws of the country in which the couple resides. The Indian laws will not apply to the foreign courts. The foreign court will then pass a decree recognizing the divorce in accordance with their procedure.

Will this Foreign Decree be Recognized by the Indian Courts?

The Indian courts do not recognize the decree passed by the foreign courts if the decree so made:

  1. Is not pronounced by a Court of competent jurisdiction.
  2. Has not been given on the merits of the case.
  3. Appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable.
  4. Was obtained opposed to the principles of natural justice.
  5. Has been obtained by fraud.
  6. Sustains a claim founded on a breach of any law in force in India.

A decree passed by a foreign court may be challenged and declared null and void in an Indian court on the basis of the above conditions.

If a foreign court has the jurisdiction and the decree has complied with the conditions, then the foreign decree is held valid and conclusive by the Indian courts.

Such a decree must also adjudicate on matters with regard to the property of both the individuals in the foreign country as well as in India, keeping in forefront the law applicable to the NRIs.

Other matters like child custody, alimony (if any), and so on and so forth must also be adjudicated in accordance.

However, once the spouses come under the jurisdiction of the foreign courts, the couple can choose to submit themselves to the family or divorce laws of that country.

After the decree for mutual consent divorce is obtained, the parties need to submit a notice along with the divorce certification to the Marriage Officer in India compulsorily. This will allow the NRIs to make use of the foreign decree as a valid one. They can then partition the property in India in accordance with the decree and remarry the person of their choice.

What if I apply for divorce in India?

It is important to keep in mind that divorce decrees passed by Indian courts are valid in other countries just like marriages that are registered in India are valid in foreign countries. Basically, no foreign court is going to question if the decree passed by an Indian court on a matter of divorce of a couple married in India is invalid.

The divorce decree needs to be recognized in the foreign country if the couple jointly owns property in that country. Such recognition is gained by filing a petition for recognition in such country in accordance with their laws. This is the last legal requirement for finalizing a divorce in case the divorcing individuals are non-resident Indians.

There are not many laws that protect the interest of Indians married to NRIs. However, due to the rise in the number of troubled marriages among Indians and NRIs, the government is initiating non-governmental organizations inside the country and abroad to impart advice to Indian men and women who are married to NRIs. They offer counseling, legal advice, and moral support in the event of divorce and separation.

Please note that even if the divorce is taking place abroad, it is advisable to appoint an attorney who is proficient in dealing with Indian divorce laws related to NRIs.

 

Useful Links:

blog.ipleaders.in/nri-mutual-consent-divorce/