When a marriage goes through a rough patch, there is no other option that can save it, even after repeated mediation, counselling, and other interventions. Divorce becomes the only choice for many. With boundaries blurring and the world becoming a common stage, cross-border marriages have become common. Entering into matrimony might seem easier, but when it comes to breaking free from marriage, several legal considerations crop their head. This is where a thorough understanding of the laws of the land comes into play. Each country has some legal structure based on its cultural, religious, and state laws.
Divorce for NRIs or Indians and foreign nationals in India is governed by a myriad of laws, to name a few. The Hindu Marriage Act of 1955, the Special Marriage Act of 1954, the Foreign Marriage Act of 1969 and so on.
In this blog, we dive deep into the nitty-gritty of the Divorce Procedures for NRIs and Foreign Nationals in India.
Who are NRIs?
As the term suggests NRI’s are Non-resident Indians or NRIs. These are people of Indian descent or nationality who have lived outside of India due to work reasons, after marriages, etc. for a prolonged period for work, study, business, or other reasons. A person is called an NRI if they have spent most of their time outside India. These people may continue to have strong ties to India and can even own property ownership, financial interests, cultural affinities, and family relationships.
In addition, they might also possess Indian passports or Overseas Citizens of India (OCI) cards, which grant them access to specific advantages and rights while living overseas.
Who are Foreign National Indians?
People who don’t have any ties with India or are simply not citizens or residents of India are referred to as foreign nationals in India. These people move to India temporarily for travel, business, jobs, education, or private reasons. They can legally enter India through visas or permits for a fixed, predetermined amount of time.
Foreign nations are connected to India through international treaties, Indian immigration laws, and visa policies that control their legal status and rights.
Differences based on Jurisdictions and Legal systems
- What might be considered common in India can be totally different overseas. Usually, the divorce grounds might differ based on the jurisdiction and legal system in which the marriage was formed.
- Finding faults is the most used weapon to seek divorce. However, certain legal systems also provide “no-fault” divorces, in which there is no need to place blame on one spouse for the breakdown of the marriage.
What are the similarities in divorce procedures for NRIs and foreign nationals in India?
Though there may be a change in certain procedures or ways of undertaking legal proceedings there are some common grounds which remain broadly the same globally. No law supports incompatibility, adultery, cruelty, desertion, or mental illness. For Non-Resident Indians, the marriage takes place under the law pertaining to the religion of the bride & groom if they are of the same religion.
In case they follow a different religion, then it falls under the Special Marriage Act of 1954. This is as same as the citizens residing in the country.
For example, if a marriage happens between Hindus, divorce can be availed with mutual consent under Section 13B of the Hindu Marriage Act, 1955.
Jurisdictional Considerations
An NRI or foreign national who has entered into matrimony with an Indian and who seeks divorce from the same has to provide the necessary documentation to move ahead, such as a marriage license obtained in India, time spent living there, or the last address the pair shared as husband and wife.
Legal Grounds for Divorce
The basic human rights for Indians, NRIs, and foreign nationals remain the same, and they entail abuse, infidelity, abandonment, mental illness, or an irreversible breakup of a marriage. Each side must offer proof to back up their assertions.
Legal Process
The initial steps involve:
- Submitting petitions before the court of law.
- Giving notice to the other spouse.
- Showing up to court.
- Providing proof.
- Receiving a decree of divorce.
Legal Representation
Complete freedom rests with foreign nationals and NRIs to avail of legal expertise from anybody they find suitable. They can hire expert legal advice from competent lawyers who they think can suitably represent them.
Enforcement of Decrees
Irrespective of country of residence, both NRIs and foreign nationals are required to abide by the terms of any divorce decree issued by the court. They have to follow Indian laws if they have applied for divorce in India. It could involve agreements on the division of assets and liabilities, alimony, and child custody.
Divorce is a sensitive topic, and it is important to understand that there can be some variances as well, especially regarding residency requirements, order enforcement, and legal representation.
What are the differences in divorce procedures for NRIs and foreign nationals in India?
Jurisdiction of Indian Courts
The following judgements can understand this.
As decided in Y. Narasimha Rao And Ors vs Y. Venkata Lakshmi And Anr on 9 July 1991 1991, SCR (2) 821
The jurisdiction assumed by the foreign court, as well as the grounds on which the relief is granted, must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may be as follows:
- Where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides, and the relief is granted on a ground available in the matrimonial law under which the parties are married.
- Where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married.
- Where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.
Mr Michael Graham Prince vs Mrs Nisha Misra on 24 February 2022
“……..foreign nationals they are, is not in dispute; however, admittedly, the Government of India has issued OCI Cards to both of them; thus, they are not strangers to this country. Under the Notifications dated 11.04.2005, 05.11.2007 & 05.01.2009 issued by the Central Government u/s. 7B of the Citizenship Act, 1955, in many aspects, the OCI Cardholders are treated on par with Non-Resident Indians (NRI); these notifications are superseded on 04.03.2021, which is beside the point since it is prospective in operation; sub-section 2 of section 7B excludes certain rights from being granted to the OCI Cardholders.
However, this exclusion does not cover the right to seek matrimonial reliefs at the hands of the native Courts; the subject statutory notifications do not, in so many words, vest in them such a right to prosecute may be true, but that per se does not divest them of such a right which otherwise avails even to the OCI Cardholders.”
Residency Requirements
If an NRI or foreign national wants to file for a divorce in India, they may need to meet residency requirements in India. It is imperative to be physically present at court proceedings if asked and have proper documents in place, like a registered marriage certificate or property ownership.
Enforcement of Orders
There are multiple complexities involved and concerns over jurisdiction, recognition of foreign judgments, and the enforcement of Indian court orders outside of India. NRIs may find it more difficult to enforce court orders, particularly those about child custody, alimony, and asset partition. Depending on bilateral agreements and the legal system, foreign nationals may also have trouble executing Indian court rulings in their home nations.
Legal Representation
As they want to be properly represented, NRIs and foreign nationals may seek help from attorneys in India or their native nation. They need a competent lawyer expert in cross-border and international family law. Another prime factor that can increase complexity is language hurdles, cultural differences, and disparities in legal systems.
Linguistic and Cultural Obstacles
The medium of communication in the Indian judiciary, though English, can pose several challenges for petitioners whose native language is other than English. Unfamiliarity with local conventions and practices can pose strong obstacles to quicker decision-making and communication.
Financial Considerations
Since demographic changes are involved and foreign nationals and NRIs may have assets spread across several jurisdictions and differing financial situations, decisions about child support, alimony, and property split can become more complex and difficult. Depending on their residency status and sources of income, foreign nationals and NRIs may likewise have different tax effects.
Getting into marriage might seem easier, but when child custody, property division, language barriers, and other aspects come into the picture, these divorces become increasingly complex and stressful. The best way to deal with such events is to have legal aid through competent lawyers capable of handling such complex divorce cases.
Advocate Kiran S R – A highly skilled, passionate, dedicated advocate, with vast wealth of knowledge, professionalism, ethical approach and expert skills. One of the sharpest legal mindset brings the best principles of legal practice to the forefront. A qualified Engineer turned Advocate. His passion, dedication and vision to help and assist his clients achieve the best results is his driving force.
