DIVORCE PROCEDURES FOR NRIS UNDER INDIAN LAW

Divorce for Non-Resident Indians (NRIs) can be uniquely complex, involving the intersection of Indian and foreign legal systems, jurisdictional issues, and specific personal laws. Here’s a breakdown of key legal aspects NRIs should consider, whether filing for divorce in India or abroad

Table of Contents

Governing Laws for NRI Divorce

Hindu Marriage Act, 1955

This act applies to Hindus, Buddhists, Jains, and Sikhs, covering grounds for divorce, jurisdiction, and recognition of divorce decrees. NRIs married under Hindu rites or who identify as Hindu may seek divorce under this act, even if residing abroad.

Special Marriage Act, 1954

This act is relevant for civil marriages and interfaith unions registered in India. It allows NRIs who married under this act to file for divorce in India regardless of religious background or current residence.

Eligibility

NRIs can file for divorce under the Hindu Marriage Act, 1955 if their marriage was performed according to Hindu customs, regardless of where it occurred. This provision ensures that NRIs retain their legal rights under Indian law even when living abroad. To establish jurisdiction, typically one spouse must have a connection to India, like domicile or residence, which allows Indian courts to address issues such as property, alimony, or custody according to Indian legal standards.

The Hindu Marriage Act, 1955 provides several grounds for divorce, including:

Adultery

Extramarital relationships by one spouse.

Cruelty

Physical or mental harm inflicted by a spouse.

Desertion

Abandonment for at least two years.

Conversion

Changing to a different religion.

Mental Disorder

Severe mental illness affecting marital harmony.

Leprosy

An incurable and severe form.

Venereal Disease

Infectious sexually transmitted disease.

Presumption of Death

Spouse missing for seven years or more.

These grounds enable spouses to legally pursue divorce within the Hindu Marriage Act’s

framework.

For NRIs seeking divorce, the following conditions must be met:

Mutual Consent: If both partners are Indian citizens married under the Hindu Marriage Act, they can file for divorce by mutual consent under Section 13-B. If both spouses live abroad, they may pursue divorce according to the laws of their country of residence.
Residency Requirements: At least one spouse must be residing in India at the time of filing, which can present challenges for NRIs who do not have a permanent address in India.
Legal Representation: It is advisable for NRIs to hire a lawyer experienced in both Indian law and international legal standards to effectively navigate the complexities of the divorce process.

As an NRI married in India but now living abroad, you have two main options for filing for divorce

Filing in India: You can file for divorce in India if both spouses are Indian citizens or if the marriage was solemnized under Indian law. This option may be advantageous if you have property in India or are more comfortable with the Indian legal system.
Filing Abroad: You can also choose to file for divorce in the country where you currently reside. This option is often more practical if both partners live outside India, as it helps you avoid the challenges of traveling back and forth for court appearances.

Indian law allows NRIs the flexibility to select the jurisdiction that best suits their needs for divorce proceedings.

Procedure for NRI Divorce

Filing the Petition: The parties must file a divorce petition with the appropriate court.
Agreement on Terms: Both parties should reach an agreement on maintenance and custody of any children from the marriage before filing.
First Motion: The case will be adjourned for six months from the date of the initial plea presentation, known as the first motion.
Court Appearance: After six months, both parties must appear in court to confirm their divorce by mutual consent, which serves as official confirmation.
Withdrawal of Petition: Either party can withdraw the divorce petition before the second motion and within the six-month period.

Enforcement of Foreign Divorce Decrees from Reciprocating Territories

When a court in a reciprocating territory issues a divorce decree, the enforcement process in India is outlined by Section 44A of the Code of Civil Procedure (CPC). According to Section 44A (1), a decree from a superior foreign court can be enforced in India as if it were issued by a District Court in India, thereby allowing Indian courts to recognize and act on foreign judgments from these territories. Section 44A (2) stipulates that a certified copy of the foreign decree, along with a certificate from the issuing court, serves as conclusive proof for its enforcement in India. This requirement ensures that the decree is authentic and valid under Indian law.

Together, these provisions streamline the process for NRIs seeking to have their foreign divorce decrees acknowledged and enforced in India.

Enforcement of Foreign Divorce Decrees from Non-Reciprocating Territories When a court in a non-reciprocating territory issues a divorce decree, the process for NRIs becomes more complicated. In this scenario, the NRI must file a suit in an Indian court, as the foreign decree cannot be enforced directly. The Indian court must first declare the foreign decree enforceable and then issue its own decree to support it. Additionally, the court needs to be satisfied that the requirements set out in Section 13 of the Code of Civil Procedure (CPC) have been fulfilled.

Why Vanta Legal Stands Out?

Expert Team:

Our lawyers are skilled and highly experienced.

Client Focus:

We care about you and your needs.

Proven Success:

We’ve won many cases for our clients.

Efficient Service:

We solve your problems quickly and effectively.