We know that marriage can be difficult. Some people can keep their promise "until death separates us" but others end up divorcing. In India, some parents want their daughters to marry 'well to do' Non-Resident Indians (NRIs). An NRI is an Indian citizen who resides abroad. Not all of these marriages succeed. There are certain differences in the application of divorce laws for Indians residing abroad and resident Indians.
Divorce laws for NRIs when both spouses are NRIs
There are two options are available here. You can apply for a divorce in India or the country of your residence abroad.
1.1. How can you get a divorce in India as an NRI?
If the marriage took place in India - according to the personal law that applies to you depending on your religion - you submit a divorce petition to the family court of the place of marriage. You can also submit the request at the place where one of you has lived in the past or where one of you resides.
For example, if you registered marriage under the Hindu Marriage Act in Mumbai, you can apply for a divorce at the Family Court in Mumbai. If one of you normally lives in Pune, then you have an option to choose between Mumbai and Pune.
1.2. What are the grounds for divorce for NRIs?
The usual grounds for divorce under the respective personal laws also apply to NRIs.
A separation with mutual consent is nevertheless preferable to a divorce where parties disagree on grounds for divorce. Moreover, the Supreme Court has ruled in a recent ruling that the usual period of 6 months for obtaining a mutual divorce will no longer be necessary in certain circumstances.
1.3. Should the NRI remain in India until the divorce is finalised by the court?
No, it is not necessary to stay in India until the case is over. You can give someone else a special power of attorney after the case has been filed. For the submission of proof however, you must come to India.
Also for a divorce by mutual consent, you must also be present on the day of the decision.
1.4. How to get a divorce abroad where you live as an NRI?
In case you want to terminate the marriage in a country (other than India) where you are residing permanently, it is only possible if it is a divorce by mutual consent. The Indian legal system does not recognize ex partedivorce orders, that is, where only one spouse is a participant.
You can apply for a divorce according to the marriage law that applies in the country where you live. Afterwards, you must get the foreign judgment validated in India.
Exceptions: a foreign judgment is not valid in India when, among others:
- the judgment has not been pronounced by a competent court;
- the judgment has not been given to the case on the merits;
- procedure is based on an incorrect interpretation of international law or a refusal to recognize the law of India in cases where such law does apply. If, for example, the court in Amsterdam should have applied Indian law, but did not do so, this would be contrary to the principles of private international law;
- the procedure is biased or only one party was given the opportunity to prove their case and the other party did not even have the opportunity to be heard;
- a claim is based on a ground that is contrary to the law in India. An irreparable collapse of a marriage - a marriage that can no longer be saved - is not a reason for divorce according to Indian law and is therefore void;
2. Divorce laws for NRIs when only one spouse is an NRI
The applicable divorce legislation for NRIs depends on the situation.
If you are married in India, the same procedure applies as above. If you are married abroad, the relevant foreign marriage law applies.
The trend for Indian women to marry NRIs is very high and so are the statistics of their abandonment.
Unfortunately, there are no separate divorce laws for NRIs. This creates confusion when it comes to laws around marriage, divorce, adoption, etc.
How can Miss Legal India help?
Need help? Contact Miss Legal India for all your legal queries with regard to divorce in India. We can not only advise you to follow the right course of action but also represent you in court.