Check out this blog to get details on the meaning of divorce and its types, steps to be followed to file divorce on mutual consent, and terms and conditions for filing theuncontested divorce in india.
NRI Divorce in India – Mutual Divorce and Mutual Uncontested Divorce in india is a tough decision for many couples, and it can be emotionally and financially painful. In recent times, divorce rates have gone high, and there are multiple reasons for this increase in numbers. Some of the most common grounds for divorce are incompatibility between partners, lack of commitment, financial problems, lack of physical relationship, miscommunication, misunderstanding, infidelity, addictions, domestic abuse, family matters, etc. Here let us discuss about the uncontested divorce in India.
Meaning of Divorce
A divorce is a legal step between married couples to dissolve their relationship and in Mutual Uncontested Divorce in india. It can be referred to as a break-up of their marital status. In order to proceed with the filing of a divorce case, the parties and the court must decide how to:
- Manage the questions of custody and responsibility of children below 18
- Evaluate the assets and liabilities of the parties involved and divide them
As per state laws, each party is:
- Granted, one-half of the marital assets
- And is accountable for one-half of the marital expenses.
NRI Divorce in India
NRI divorce refers to the divorce proceedings involving Non-Resident Indians (NRIs). NRIs are Indian citizens or people of Indian origin who live outside India either permanently or for an extended period. When an NRI couple decides to end their marriage, the divorce process can be complicated due to the geographical distance and differing legal systems involved.
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Jurisdiction:
Determining the appropriate jurisdiction for the divorce case can be challenging in NRI divorces. It depends on various factors such as the place of marriage, the current residence of the parties, and the nationality of the individuals. Different countries may have different divorce laws and procedures, so it’s crucial to consult with a lawyer familiar with international family law.
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Choice of Law:
In an NRI divorce, the choice of law can also be a complex issue. The applicable law for divorce-related matters, such as property division, child custody, and alimony, may vary depending on the jurisdiction. The courts may apply the law of the country where the divorce is filed or the law of the country with which the couple has the closest connection.
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Legal Representation:
It’s advisable for NRIs going through a divorce to hire a lawyer who specialises in international family law or has experience handling NRI divorce cases. A knowledgeable attorney can guide you through the legal process, protect your rights, and ensure that your interests are represented effectively.
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Documentation:
NRIs involved in a divorce should gather and organise all relevant documents, such as marriage certificates, passports, financial records, and any existing prenuptial or postnuptial agreements. These documents may be required during the divorce proceedings to establish facts, determine jurisdiction, and address financial and property matters.
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Child Custody:
Child custody issues can be particularly challenging in NRI divorces due to the potential for disputes regarding international relocation and visitation rights. The courts consider the best interests of the child when determining custody arrangements, but it can be complex when one or both parents live abroad.
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Enforcement of Orders:
Once a divorce is granted, it is essential to ensure that the orders and agreements are enforceable across jurisdictions. The enforcement of court orders, including child support, alimony, and property division, can be complicated when dealing with international borders. Understanding the legal mechanisms for enforcing orders is crucial in protecting your rights.
Types of Divorce
The Indian divorce laws classify divorce into the following categories:
- Mutual Consent Divorce
A mutual consent divorce can be chosen when both the husband and wife agree to break their relationship and adhere to the conditions governing their divorce without fighting in court. Divorce on mutual consent is uncontested divorce in india as the conditions and formalities like maintenance, the responsibility of child/children, and division of property are decided by the partners, and there’s no need to contest them before a court of law in the Mutual Uncontested Divorce in india
- Contested Divorce
A contested divorce is the second type of divorce that can be chosen when one partner, i.e. husband or wife, wants to file for a divorce, but the other partner doesn’t agree or consent to the same. Therefore, it is a one-sided divorce and if not accept to uncontested divorce in india
- Summary Divorce
This type of divorce is applicable to couples who haven’t been married for long, don’t have kids, have little property, and have joint debts. Both partners need to agree to this and must file court papers jointly.
- Uncontested Divorce
In an Mutual Uncontested Divorce in india , both partners settle all the issues in advances such as child support, maintenance, and division of property, and mention it in the property settlement agreement. Then, they can file the case in court and get divorced in a relatively short period of time. So the most of the case in the under uncontested divorce in india .
- Default Divorce
A default divorce happens when one partner seeks divorce, and the other doesn’t respond. There are merits and drawbacks to this type of divorce.
- Fault and No-Fault Divorce
A fault divorce is when both parties are accusing the other of several faults. Then the court will decide whose faults are the least. In a No-fault divorce, the partners have to state that they have suffered an irreparable breakdown of their relationship.
- Mediated Divorce
Here, a trained mediator discusses with the partners and tries to help them resolve all the divorce issues. They offer guidance and help the two parties applying for divorce communicate with each other. This process may help to settle down the problems.
- Collaborative Divorce
In collaborative divorce, the spouses have to hire their own specially trained lawyers to bring their cases to district court: https://districts.ecourts.gov.in/. Each spouse must disclose all the information to their lawyers, who will help them achieve a settlement goal.
- Divorce Arbitration
In this type, an arbitrator, i.e. an attorney or a retired judge, will decide on the marital issues after studying the case and reviewing the documents.
Conditions for Seeking Divorce on Mutual Consent in India
The terms and conditions for Alimony divorce on mutual consent and Mutual Uncontested Divorce in india are:
- The partners should have been staying separately for a minimum period of one year
- They must feel that they cannot live together
- They mutually agree that their marriage has failed
- They must file jointly for a Mutual divorce without any influence, cheating or bribe.
What are the Guidelines of the Registration of Marriage of NRI Bill in 2019?
If you are marrying a resident Indian, it is important to ensure that you register your marriage within 30 days from the date of the wedding. Failure to comply with the Registration of Marriage of NRI Bill can lead to the following consequences:
- Your passport may be impounded by the passport authority under Section 10(3) of the Passports Act, 1967.
- Indian courts have the power to issue summons and warrants through the designated website of the Ministry of External Affairs (MEA).
- In the case of proclaimed offenders, their immovable and movable properties can be seized.
Documents for Filing Divorce on Mutual Consent in India
The following documents are required for on mutual consent and Mutual Uncontested Divorce in India:
- Marriage certificate
- Information about the family of both the partners
- Address proof of both the partners
- Four photographs of marriage
- Information about profession and income
- Income tax statement for last 3 years
- Details of property and debts
- Evidence of staying separately for a year
- Evidence related to the failed attempts at reconciliation
Procedure for Divorce on Mutual Consent in India
- Filing a Divorce Petition: A divorce on mutual consent is initiated with the filing of a divorce petition in court.
- Court Hearing and Inspection: Both partners will have to appear in the family court with their respective lawyers. If they are an NRI and living abroad, they may either have to come to the court or can be represented by the power of attorney holder. The NRI partner may have to execute a power of attorney deed from their country of residence to represent the said power of attorney. However, they have to be physically present before the court to attest evidence from their side when the case is posted for prosecution-side evidence. we can try file Mutual Uncontested Divorce in india
- Statement Records: After verifying the petition, the court passes an order to take both partners’ statements on oath.
- First Motion: After taking their statements, the court passes the first motion. The couple must wait for six months and then file the second motion.
- Second Motion and Final Hearing: After deciding to file a second motion, they can go for the final hearing before the court.
- Divorce Decree: Once the partners declare that they do not have any issues related to child safety, property distribution, and other grounds, the divorce on mutual consent reaches the final step and also for Mutual Uncontested Divorce in india . The partners must come to an agreement for the court to take a final decision. Once the court acknowledges the agreement, it passes a decree of divorce declaring that the marriage has been dissolved and concludes the divorce to be final.
Can NRI File Divorce in India?
Yes, an NRI can file for divorce in India, provided the marriage was registered here or based on mutual consent. However, they must follow Indian laws and procedures, including providing a valid reason for the divorce.
Can NRIs File for Divorce in a Foreign Court?
It is possible to obtain a divorce in a foreign court; however, it is important to meet the residency requirements, which can vary from country to country.
An NRI couple who got married in India may choose to seek a divorce in a foreign court for various reasons. The most common reasons include:
- Domestic violence
- Issues involving in-laws
- Financial problems, such as one spouse concealing financial information from the other
- Adultery
- Desertion
There are primarily two types of divorce decrees:
- Uncontested Divorce: In this situation, both parties agree to the terms of the divorce without any objections. This is often referred to as divorce by mutual consent. An uncontested divorce can be finalized within a couple of months.
- Contested Divorce: In this case, the couple desires a divorce but cannot reach an agreement regarding property, child custody, alimony, etc. In such situations, the court intervenes and resolves the issues after the separation agreement is signed. A contested divorce can take up to two years from the date of filing to be finalized.
When NRI couples who married in India seek a divorce in a foreign country, there are key points to consider:
- The NRI can approach the foreign court just like any other citizen of that country.
- The divorce may affect the visa status, subject to immigration laws.
- Although the marriage was solemnized in India, the divorce laws of the foreign court will be applicable.
It’s important to note that the specific requirements and procedures may vary depending on the country where the divorce is being pursued. Seeking legal advice from professionals familiar with international family law is recommended to navigate through the process effectively.
Will a Foreign Divorce Decree Be Recognized in India?
Indeed, Indian courts recognize foreign divorce decrees. However, if you are an NRI couple who got married in a foreign location, you will not be subject to Indian divorce laws.
Indian courts can only intervene in the separation of couples in the following situations:
- Resident Indian couples married in India.
- NRI couples married in India.
- Citizens of another country married in India.
For NRI couples married in India, an Indian court will recognize a foreign divorce decree under the following conditions:
- The divorce has been obtained by the mutual consent of both parties.
- The divorce has not been obtained through fraudulent means.
- The divorce adheres to the principles of Universal International Law.
- The divorce proceedings have followed the principles of natural justice, including adequate notice, fair hearing, and absence of bias.
- The divorce has been granted based on the merits of the case, supported by sufficient evidence (such as adultery, domestic violence, economic hardships, etc.).
It’s important to note that each case is unique, and specific details may influence the recognition and application of a foreign divorce decree in Indian courts. Seeking guidance from legal professionals well-versed in international family law is advisable to understand your individual circumstances and the legal implications involved.
When Do Indian Courts Decline a Foreign Divorce Decree?
In the event that either member of an NRI couple, married in India, is dissatisfied with the decision of a foreign court, they have the option to challenge it in an Indian court. The Indian court will assess the foreign divorce decree to determine its validity.
Foreign divorce decrees will be rejected by Indian courts under the following circumstances:
- The applicants were not given the opportunity to present their case in the foreign court.
- The foreign divorce decree was not granted based on grounds recognized by Indian divorce laws.
- The decree violates the principles of natural justice, such as lack of adequate notice, unfair hearing, or bias.
- The decree was obtained through fraudulent means.
If you plan to file for divorce in a foreign court, it is advisable to seek the guidance of a lawyer beforehand. The lawyer can assist you in understanding the eligibility criteria and the applicability of foreign divorce decrees in Indian courts.
When a divorce is mutually finalised and recognized by both Indian and foreign courts, the likelihood of further legal complications is significantly reduced.
Will this Foreign Decree be Recognized by the Indian Courts?
The Indian courts do not recognize a decree passed by foreign courts if it falls under the conditions outlined in Section 13 of the Civil Procedure Code, 1908.
This means that the decree:
- Is not issued by a competent court.
- Has not been granted based on the merits of the case.
- Appears, from the proceedings, to be based on an incorrect interpretation of international law or a refusal to acknowledge Indian law when applicable.
- Was obtained in violation of the principles of natural justice.
- Was obtained through fraud.
- Supports a claim that contravenes any law in force in India.
A decree passed by a foreign court can be challenged and deemed null and void by an Indian court based on these conditions.
In a significant judgment, the Supreme Court ruled that a divorce obtained from a foreign court is invalid if it does not adhere to the provisions of Indian divorce laws.
Indian courts may refuse to recognize a decree from foreign courts if Indian law does not confer jurisdiction on those foreign courts.
If a foreign court has the necessary jurisdiction and the decree fulfills the conditions mentioned above, it is considered valid and conclusive by Indian courts.
Such a decree must also address matters related to the property of both individuals in the foreign country as well as in India, taking into account the applicable laws for NRIs. Other matters like child custody, alimony, etc., must also be adjudicated accordingly.
However, once a couple falls under the jurisdiction of foreign courts, they are subject to the family or divorce laws of that country. In the case of Y Narasimha Rao & Ors. vs Y Venkata Lakshmi & Anr., the respondent did not submit to the jurisdiction of the foreign court.
The Supreme Court held that:
“The jurisdiction assumed by the foreign court as well as the ground on which the relief is granted must be in accordance with the matrimonial law under which the parties are married.”
Exceptions to this rule may include:
- Filing the matrimonial action in the forum where the respondent is domiciled and permanently resides, and granting relief based on grounds available under the matrimonial law applicable to the parties’ marriage.
- The respondent voluntarily and effectively submitting to the jurisdiction of the forum mentioned above and contesting the claim based on grounds available under the matrimonial law applicable to the parties’ marriage.
- The respondent consenting to the granting of relief, even if the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.
If such consent is obtained, the foreign decree would be considered valid. Therefore, a Christian couple submitting to the jurisdiction of the UAE and utilizing Muslim personal law for obtaining a mutual consent divorce in Dubai would be valid and upheld by Indian family courts.
After obtaining a decree for mutual consent divorce, the parties are required to submit a notice along with the divorce certificate to the Marriage Officer in India. This enables NRIs to use the foreign decree as valid, facilitating property division in India in accordance with the decree, and allowing them to remarry.
Filing for Divorce in India
Filing a divorce petition in India offers a smoother and more secure process. The courts accept a petition from an NRI seeking mutual consent divorce and record the statements of both individuals.
In cases where one party cannot appear in court, a power of attorney can be given to a trusted person, preferably a family member, to represent them. Once the statements of the divorcing individuals are recorded, the court grants the first motion.
After the first motion is granted, a 6-month interim period is provided for the individuals to reconsider their decision for divorce. During this time, either party can withdraw their consent. If neither party withdraws consent, the second motion stage follows, where both individuals must be physically present to confirm their consent. The divorce is granted after this stage.
In the second motion stage, the presence of both parties is compulsory for confirming their consent through recorded statements in court. Unlike the first motion stage, a power of attorney cannot be granted.
The 6-month period can be extended up to 18 months from the date of the first motion being granted. The courts allow for some flexibility in this timeframe. Therefore, an NRI can allocate their consent and presence within a period of 6 to 18 months to obtain the final decree for mutual consent divorce from the courts.
Where Can Nri Couples File for Divorce?
NRI couples who were married in India have the option to file for divorce in Indian courts, following the mentioned requirements. However, if they prefer to file for divorce outside of India, in their country of residence, they are allowed to do so.
According to Indian law, you can file for divorce in the jurisdiction where “you last resided as a couple.” This means that if your matrimonial home or last residence together was in your country of residence, you can file for divorce in a court there.
Legal Requirements to Consider When Filing for Divorce in a Foreign Country
Under Indian law, you have the right to file for divorce in a foreign court. However, it’s important to note that the divorce proceedings will not be governed by Indian laws. Instead, your petition will be submitted and the proceedings will be conducted in accordance with the laws of your country of residence.
In this context, Section 13 of the Civil Procedure Code, 1908 plays a significant role. According to this law, Indian courts will declare a foreign decree null and void if it meets any of the following conditions:
- It was obtained through fraudulent means.
- It was not granted on the merits of the case.
- It appears to be based on an incorrect understanding of international law.
- It refuses to acknowledge the applicability of Indian laws where relevant.
- It was not pronounced by a court that has the appropriate jurisdiction.
- It violates the principles of natural justice.
- It breaches an Indian law.
Furthermore, the decree must also address matters such as property division, child custody, alimony, and other related issues.
The Supreme Court of India has previously stated that the jurisdiction assumed by the foreign court and the grounds on which relief is granted must align with the matrimonial law under which the parties were married.
An exception is made for parties who voluntarily consent to have their divorce proceedings regulated by the law of their country of residence. For instance, a Christian NRI couple residing in the UAE may agree to have their divorce proceedings governed by Muslim Personal Law for a mutual consent divorce.
As long as such consent is given, the decree obtained will be considered valid.
Once the final decree for mutual consent divorce is obtained, it is mandatory to send a notice along with the marriage certificate to the Marriage Officer in India to validate your divorce.
Filing for Mutual Consent Divorce in India – Important Information for Nris
- In initial court proceedings, a power of attorney can represent a party if they are unable to attend.
- Following the first motion, a 6-month interim period is provided for the couple to confirm or withdraw their consent.
- The interim period can be extended up to 18 months for NRI couples.
- In the second stage of the motion, both parties must be present, and the power of attorney cannot fulfill the role of the absent party.
- A divorce decree obtained from an Indian court for a marriage solemnized in India is valid in all countries.
- If needed, the decree can be recognized in any country by filing a petition for recognition.
Conclusion
It is a tedious process to file for a Mutual Uncontested Divorce in India. The process of how an NRI can file for a divorce has been highlighted above. Though a divorce is a logical conclusion to a marriage that doesn’t seem to work, trying to work things out may be tried as a last resort to eliminate the long ordeal that awaits a divorce.
FAQ
What are the eligibility criteria for NRIs seeking a mutual uncontested divorce in India?
NRIs seeking a mutual uncontested divorce in India must meet certain eligibility criteria, such as having a mutual agreement for divorce, not having obtained the divorce through fraudulent means and following the principles of natural justice, including adequate notice, fair hearing and absence of bias.
Is physical presence in India mandatory for NRIs filing for a mutual uncontested divorce in India?
Physical presence in India is not mandatory for NRIs filing for mutual uncontested divorce in India. NRIs can file for divorce in their country of residence, as long as the court where they file their divorce petition has the power to give a valid decree regarding their divorce.
How does the process of serving legal notices work for NRIs involved in a mutual uncontested divorce in India?
The process of serving legal notices for NRIs involved in a mutual uncontested divorce in India typically involves serving the notice through registered mail or courier service. In some cases, the court may allow service through video conferencing or by publishing the notice in a newspaper.
What documents are required for NRIs initiating a mutual uncontested divorce proceeding in India?
For NRIs initiating a mutual uncontested divorce proceeding in India, the required documents include a copy of the marriage certificate, a joint declaration of consent for divorce, and any other relevant documents, such as proof of residence and service of process.
Can NRIs resolve financial and property matters through a mutual uncontested divorce in India?
Yes, NRIs can resolve financial and property matters through a mutual uncontested divorce in India. After obtaining the divorce, the couple can apply for a divorce certificate and use it to divide their joint property according to the terms they have agreed upon.
