Check out this blog for details on mutual divorce in Indian courts and foreign courts, the recourse available to NRI husbands and wives, and the alimony laws in India.
The quickest way to get a divorce in India is through mutual consent. When spouses agree to a divorce by mutual consent, without making any allegations against each other, they jointly present a mutual divorce petition before the Honourable Court.
Forums Available for NRI Mutual Divorce
There are two forums available to NRIs for filing a suit of mutual divorce, as mentioned below.
- In the case of a spouse staying in India even though the partner is an NRI, the party in India can go to an Indian Court to initiate proceedings
- Filing a suit and initiating proceedings in a foreign court.
Divorce Proceedings in Indian Court and Foreign Court
In Indian Court:-
In India, filing a petition for a mutual divorce is a way safer and smoother process.
The court receives the NRI petition for a Divorce by mutual consent and records the statement of both the concerned parties.
If a party cannot appear for court proceedings, another person can be accorded a power of attorney. Preference to be a power of attorney is given to a member of the family. After recording the statements of the two parties who have filed for divorce, the first motion is granted.
After granting the first motion, six months is set as the interim so that the two persons filing for the divorce can rethink the divorce. During these six months, either of the two individuals can withdraw the mutual divorce consent. If either party does not withdraw the consent, then proceedings enter the stage of the second motion, and now the individuals need to be personally present to confirm their consent. Post their appearance, the divorce is granted.
Both parties must be present during the second motion stage to confirm their consent by recording their statements in court.
The interim period of six months can be increased to 18 months from when the first motion was granted. So, an NRI gets the flexibility of assigning consent and being personally present any time from 6 months to 18 months to get the final decree from the court for the mutual consent divorce.
In Foreign Court:-
Indian Law, for the purpose of convenience, has made provision for filing a petition in a foreign court asking for annulling a marriage that has been registered in India. It is provided that such a divorce should be a mutual consent divorce and no other. The Indian courts will only recognise a divorce decree from a foreign court if it is a mutual consent divorce decree.
The above holds true only for marriages registered in India. If the marriage is registered in another country, the Indian court does not have jurisdiction. Nevertheless, in case the wedding was held in India and was registered under the Hindu Marriage Act or Special Marriage Act, the Indian Court will intervene and give recognition to the divorce granted by a foreign court.
When Both Husband and Wife are NRIs:-
When both the partners are residents of a foreign country, such as the USA, they can file for mutual consent divorce based on the country’s divorce laws applicable to foreign marriages. This divorce will only be recognized by Indian law if it is with the spouses’ mutual consent.
Recourse When Both Parties Stay Abroad:-
When the parties are both NRIs residing in separate countries but were married in India, they should both engage a lawyer independently. They should execute a Power of Attorney in their favour. The documents that require signatures will be sent to the respective country’s Indian Embassy. You need to understand all about Alimony in India and process in India.
When is an NRI Mutual Consent Divorce Not Valid?
A decree of NRI mutual divorce will be invalid in the following cases:
- A court of competent jurisdiction did not award the decree
- Either party’s consent was obtained by coercion, force, or undue influence
- The decree of divorce was not awarded on the case’s merits.
A decree of the above-mentioned type can be challenged in an Indian court to make it null and void.
Alimony
With every divorce whether mutual or contested comes the question of alimony. So, what is Alimony?
Alimony refers to the money that has to be paid, by law, to a former spouse (husband or wife) after the Divorce process is finalised. Alimony has been a crucial factor in divorces throughout the years.
Nowadays, men and women are looked upon as being equal in society. So, the burden of paying alimony can be on either party based on the spouse’s financial condition. While the law treats men and women as equal, it is more liable that the man is the one who will end up providing interim support to the ex-spouse at the time of the litigation proceedings.
Conditions Under which Alimony Need Not to be Paid
- When the partners mutually decide that there is to be no payout of maintenance, then the court will not specify an alimony payment
- When the court sees that the partner who is asking for alimony is financially sound and capable of looking after themselves and does not need the alimony for similar lifestyle maintenance, the court can refuse to grant alimony
- Section 125(4) of The Code of Criminal Procedure, 1973, specifies that if the ex-wife has a relationship with another man, she loses her legal entitlement to alimony irrespective of whether she might or might not marry that man.
Other Aspects
In India, the terms and conditions for alimony payment are different with respect to various personal laws. Divorce is conducted based on the religious matrimonial and Alimony in divorce for which the couple has opted.
Christians
Marriage disputes are resolved for couples of Christian marriage based on the Special Marriage Act of 1954 and the Indian Divorce Act, 1869.
Hindus
If the marriage is registered under Hindu laws, both marriage and divorce will be governed through the Hindu marriage act, of 1955. (Mutual divorce is dealt with in Section 13-B)
Inter-Religious Marriage
In cases where both the partners follow different religions, marriage, and divorce will be governed under the Special Marriage Act of 1954. This act only has a provision for alimony fees to be paid out to the wife and not to the husband.
Muslims
In the case of Muslim marriages, all matrimonial disputes, as well as divorce cases, are governed by the Muslim Women (Protection Of Rights on Divorce) Act, 1986 and by the Dissolution of Marriage Act, 1939.
Conclusion
Alimony has become a ground for exploitation in many divorce cases worldwide. Proper knowledge of divorce and alimony laws can be empowering to both parties involved in a divorce and can lead to a strain-free separation.
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