How can an NRI seek a divorce?

Last Updated at: May 19, 2020
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divorce
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.

 

Going through grief and sadness in a relationship is natural but when it becomes unbearable, many couples seek divorce as the only way out. While it may not be easy, seeking a divorce when one of the parties is not an Indian resident can further add to the complication. In this article, we talk about how NRI couples can seek a divorce.

The Two Forums

Once you have figured out that there is no way you can mend your relationship, a petition for a divorce needs to be filed to commence the proceedings. There are two forums available to file this suit. If you stay in India (despite your partner being an NRI), you may choose to initiate proceedings in an Indian Court. The other option is to file a suit in a foreign court.

Filing a suit in an Indian Court

Although several grounds for divorce are available to a party filing a divorce case in an Indian Court, the least complicated way to seek a divorce is through mutual consent. Now, with the highest court of India ruling that there is no need for a compulsory period of waiting for six months, the process has been made less time-consuming.

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Process: The divorce petition in the form of an affidavit, which is to be submitted to the family court. The two most crucial elements of a mutual divorce petition are maintenance and child custody. There is no specific law in India that prescribes the calculation of maintenance, which parties are left to decide upon. However, if no agreement is reached, it is the court that decides after analysis the obligations and finances of each party.

After the filing of the petition and recording the statement of both the parties, the court usually adjourns the matter for a period of 6 months. After six months the parties have to present themselves again in the court for making a second motion confirming the mutual consent filed earlier. It is only after this second motion that a decree of the divorce is granted by the court. During this period of six months, either party may withdraw the petition from the court, in which case no divorce will be granted.

If it is inconvenient for you to keep traveling to India for this purpose, a Vakalatnama or a Special Power of Attorney may be signed in favor of your divorce lawyer who can then represent you in your absence. However, you may still be required for evidence and cross-examination purposes.

Filing a case in a foreign court

Considering the convenience, the laws in India provide for the filing of a petition for annulment of a marriage registered in India. However, this divorce can only be of the nature of mutual consent. This is so because foreign laws on other grounds of divorce may differ (such as cruelty, irretrievable breakdown of marriage, fraud) and hence the Indian courts do not recognize a divorce decree if it is not granted on the basis of mutual consent.

Another aspect that needs to be kept in mind is that the marriage must be registered in India. If both husband and wife are Indian citizens but get married in Spain under Spanish law, then the Indian courts will have no jurisdiction. In this case, it is the Spanish law on divorce that will apply. However, if the marriage takes place in India and is registered under the Hindu Marriage Act or Special Marriage Act, only then would the Indian Court seek to intervene and recognize the grant of divorce by a foreign court.

As strange as this may sound, if you file a divorce petition in a foreign court and get a divorce on a ground other than mutual consent, you would be divorced in that country but still legally married in India.

Whether ex-parte divorce can be sought?

Let’s assume that one of the parties to the marriage in Spain is unhappy with the relationship and seeks an ex parte divorce, which means a divorce filed, proceeded against and granted by the court without the involvement of the other spouse. While this may be legal in Spain if uncontested by the spouse, the Indian courts will usually not recognize such a divorce and the parties will again have to move proceedings on a mutual consent basis only. This is so because the court has hardly any knowledge of whether the summons was properly served and other formalities of an ex parte case were fulfilled.

Recourse when both parties stay abroad

Let’s say Mr. V stays in Spain while Miss V stays in the USA, both being married in India. In this case, it will be very expensive for both parties to keep coming to India for divorce proceedings. Thus, the best way to seek a divorce, in this case, is for both parties to engage a lawyer independently while also executing a Power of Attorney in their favor. The documents that need to be signed will be forwarded to the Indian Embassy in that country.

 

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How can an NRI seek a divorce?

8738
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.

 

Going through grief and sadness in a relationship is natural but when it becomes unbearable, many couples seek divorce as the only way out. While it may not be easy, seeking a divorce when one of the parties is not an Indian resident can further add to the complication. In this article, we talk about how NRI couples can seek a divorce.

The Two Forums

Once you have figured out that there is no way you can mend your relationship, a petition for a divorce needs to be filed to commence the proceedings. There are two forums available to file this suit. If you stay in India (despite your partner being an NRI), you may choose to initiate proceedings in an Indian Court. The other option is to file a suit in a foreign court.

Filing a suit in an Indian Court

Although several grounds for divorce are available to a party filing a divorce case in an Indian Court, the least complicated way to seek a divorce is through mutual consent. Now, with the highest court of India ruling that there is no need for a compulsory period of waiting for six months, the process has been made less time-consuming.

Get FREE legal advice now

Process: The divorce petition in the form of an affidavit, which is to be submitted to the family court. The two most crucial elements of a mutual divorce petition are maintenance and child custody. There is no specific law in India that prescribes the calculation of maintenance, which parties are left to decide upon. However, if no agreement is reached, it is the court that decides after analysis the obligations and finances of each party.

After the filing of the petition and recording the statement of both the parties, the court usually adjourns the matter for a period of 6 months. After six months the parties have to present themselves again in the court for making a second motion confirming the mutual consent filed earlier. It is only after this second motion that a decree of the divorce is granted by the court. During this period of six months, either party may withdraw the petition from the court, in which case no divorce will be granted.

If it is inconvenient for you to keep traveling to India for this purpose, a Vakalatnama or a Special Power of Attorney may be signed in favor of your divorce lawyer who can then represent you in your absence. However, you may still be required for evidence and cross-examination purposes.

Filing a case in a foreign court

Considering the convenience, the laws in India provide for the filing of a petition for annulment of a marriage registered in India. However, this divorce can only be of the nature of mutual consent. This is so because foreign laws on other grounds of divorce may differ (such as cruelty, irretrievable breakdown of marriage, fraud) and hence the Indian courts do not recognize a divorce decree if it is not granted on the basis of mutual consent.

Another aspect that needs to be kept in mind is that the marriage must be registered in India. If both husband and wife are Indian citizens but get married in Spain under Spanish law, then the Indian courts will have no jurisdiction. In this case, it is the Spanish law on divorce that will apply. However, if the marriage takes place in India and is registered under the Hindu Marriage Act or Special Marriage Act, only then would the Indian Court seek to intervene and recognize the grant of divorce by a foreign court.

As strange as this may sound, if you file a divorce petition in a foreign court and get a divorce on a ground other than mutual consent, you would be divorced in that country but still legally married in India.

Whether ex-parte divorce can be sought?

Let’s assume that one of the parties to the marriage in Spain is unhappy with the relationship and seeks an ex parte divorce, which means a divorce filed, proceeded against and granted by the court without the involvement of the other spouse. While this may be legal in Spain if uncontested by the spouse, the Indian courts will usually not recognize such a divorce and the parties will again have to move proceedings on a mutual consent basis only. This is so because the court has hardly any knowledge of whether the summons was properly served and other formalities of an ex parte case were fulfilled.

Recourse when both parties stay abroad

Let’s say Mr. V stays in Spain while Miss V stays in the USA, both being married in India. In this case, it will be very expensive for both parties to keep coming to India for divorce proceedings. Thus, the best way to seek a divorce, in this case, is for both parties to engage a lawyer independently while also executing a Power of Attorney in their favor. The documents that need to be signed will be forwarded to the Indian Embassy in that country.

 

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Avani Mishra is a graduate in law from the National Law Institute University, Bhopal. She qualified the Company Secretary course with an All India Rank 1 and is a recipient of the President’s Gold Medal for her academic distinctions. She also holds a B.Com degree with a specialization in Corporate Affairs and Administration.