Laws relating to NRI marriages in India

Introduction

Marriage is a sacred institution. It is the very foundation of a stable family and civilized society. Even in the patriarchal society of Rig Vedic era marriage was considered a sacramental union. And even in the contemporary world, most people regard their marriage as a sacrament.[1]Besides being a sacramental bond parents consider marriage as an institution that can give safety and security to the girls of our society. So parents of girls to uplift their socio-economic status and ensure a secure, lavish, and prosperous lifestyle for their daughters are choosing NRI grooms rather than their domestic counterparts. Sometimes they accept the marriage proposal without properly checking about the background of the bridegroom because they think that if they wait this good opportunity can go out of their hand. Resulting in a disastrous life for the bride. After marriage sometimes their husband leave the country without taking them by creating stories about their passport and visa problems, and even if some of them reach a foreign land they cannot connect with their husband because of the wrong address provided to them by their husbands they find themselves helpless in a foreign For Those who were left behind in India after some time their husband's files ex-parte divorce petition by saying non-availability about their partners. when the girl and her family get to know that because of poverty and lack of knowledge they neither move to the foreign land to contest the case nor take help from anyone in the country. As a result the girl's life completely shatters and the dream of getting a secure life turns out to be a mirage. According to the official data of the Ministry of External Affairs, 3,22,85,425 people have settled overseas as of 5'th October 2023. Out of this figure, 1,36,01,780 are Non-Resident Indians (NRI) and 1,86,83,645 are Persons of Indian Origin (PIO).[2]The number of cases reported regarding the desertion of Indian women by their NRI spouses received 1022 petitions in the year 2017 compared to 1510 in 2016 & 796 in 2015. Between January 2018 and 30th July 2018, the Ministry received and redressed 765 complaints.[3]On 21st December 2017, the Indian Parliament was informed that Indian Missions abroad (an "NRI Cell" that was launched by the National Commission for Women to help victims of marriages with NRIs) had received 3,328 complaints from Indian women about marital disputes with their NRI spouses during 2015-2017.[4]

i. 'Who are these NRIs'

The full form of the word NRI is Non-Residents of India. The word was not defined in any of the Indian laws rather it was explained in the Income Tax Act,1961 and FEMA Act 1999. According to Section 6 of the Income Tax Act, 1961 An individual will be treated as a Resident in India in any previous year if he/she is in India for At least 182 days in that year, Or at least 365 days during 4 years preceding that year and at least 60 days in that year. An individual who does not satisfy both the conditions mentioned above will be treated as a "non-resident" in that previous year. The definition of Resident is relaxed by dropping condition 2 given above (i.e. only Condition 1 is applicable), for the following cases: An Indian citizen who leaves India in any year for employment outside India or as a crew member of an Indian ship, an Indian citizen or a person of Indian origin who resides outside India and who comes on a visit to India. Note that a person shall be deemed to be of Indian origin if he, or either of his parents or any of his grandparents, was born in undivided India.[5]According to Section 2(v) and (w) of the Foreign Exchange Management Act, 1999 An Indian Citizen who stays abroad for (a) employment/ carrying on business or (b) vacation outside India or (c) stays abroad under circumstances indicating an intention for an uncertain duration of stay abroad is a non-resident.[6]

ii. 'Laws that govern NRI Marriages'

If both the parties of the marriage are of the same religion they marry as per their law. But if they are not of the same religion they can marry under the Special Marriage Act, 1954. The Special Marriage Act, 1954 (SMA) under Section 4 defines marriage as a union between two people who are not within prohibited degrees of relationship. The SMA allows for the registration and solemnization of marriages between people of different religions, castes, communities, or groups. Two persons can also marry under the Foreign Marriage Act, of 1969 if they are outside India in a foreign land.

iii. 'Problems that are occurring in NRI Marriages'

The problems that arise out of NRI Marriages are- after marriage the husbands desert their wives in India and never come back, even if they take their wives the brides are subjected to physical and mental harassment there, as sometimes they don't know about the foreign languages they become helpless in a foreign land, sometimes the foreign laws are more liberal so the husbands can easily get divorce within some days of marriage, after getting divorce the husbands also denies to give maintenance, the brides sometimes runs from pillar to post to get their rights and their child custody as well.

iv. 'Legal Conundrums'

Outside India in some Western countries 'No Fault Divorce' principle is more prevalent through which a party can take an ex-parte divorce order by showing that there is an irretrievable breakdown of marriage and there are irreconcilable differences. the bridegroom is using this opportunity to get rid of their marriage by leaving their Indian wife clueless.

'In "''''''Anubha v Vikas Aggarwal (100 (2002) DLT 682). ''''''Where the plaintiff, the young wife, was to live separately from her NRI husband, the defendant. She also sought a decree for maintenance as she had been deserted and abandoned by him very soon after the marriage, after being subjected to cruelty. During the pendency of the suit when the wife learned of a divorce petition having been filed by the husband in the USA, she also approached the court to restrain that action from proceeding in the USA. Whereupon the Court passed the order restraining the defendant from proceeding further in the Court in the State of Connecticut, USA for thirty days. However, despite the order, the husband proceeded with the "No Fault Divorce Petition" proceedings in the US. When this fact was brought to the notice of the Court in India, the Indian Court passed an order asking the defendant to record the statement under Order X of the CPC, and on his failure to appear, his defense was struck off and contempt proceedings were initiated. After the husband obtained the decree of divorce despite all these, the question that arose foremost for determination was whether the decree of divorce obtained from the Court in Connecticut in the USA during the pendency of the proceedings of the case in India was enforceable in law or not. '

'The Court held that the ground on which the marriage of the defendant was dissolved is not available in the Hindu Marriage Act. The parties were Hindus, their marriage was solemnized according to the Hindu rites. Their matrimonial dispute or relationship was, therefore, governed by the provisions of the Hindu Marriage Act. Since the plaintiff did not submit to the jurisdiction of the US Court nor did she consent to the grant of divorce in the US Court the decree obtained by the defendant from the Connecticut Court of USA was held to be neither recognizable nor enforceable in India. Therefore even if the NRI husbands approach the courts where they reside and obtain divorce it will not bind if the grounds on which they obtained it are not available in Indian laws".[7]

Under Indian law, there are two ways by which a divorce decree obtained abroad can be enforced in India: either by way of Section 13, or Section 44A, of the Code of Civil Procedure, 1908. The former applies to judgments from countries with whom India does not have a treaty or agreement on mutual enforcement of judgments, and the latter to countries with whom India has reciprocal enforcement agreements.

The Hon'ble Supreme Court in 'Narasimha Rao v Venkata Lakshmi [1991] 2 SCR 821 'has explained the definition of competent jurisdiction. it has also said that the foreign courts assumed jurisdiction and the relief granted by I must be by the specific matrimonial law under which both the parties have married. though the Court has also'''''maintained some exceptions about this principle.[8]

'Way Forward'

· The Law Commission of India, in its 287th report, has recommended compulsory registration of marriage under the Registration of Marriage of Non-Resident Indians Bill, 2019 between Non-Residential Indians/Overseas Citizens of India and Indian nationals. It has also emphasized that the registration should be done mandatorily within 30 days and if any person fails to do that his or her passport will be impounded. The law commission also suggests that despite other provisions of the Criminal Procedure Code,1973 (CrPC) if there is a problem in sending a summons in person the court can upload it to the designated website of the Ministry of External Affairs so that later it can also be used as a proof. If after uploading the proclamation the person remains absent in court the court may attach the property of that proclaimed offender.[9]

· There should be a uniform treaty between the countries so that offenders can easily be traced and get back to the country where they have done the offense.

· The government should organize community events and awareness programs so that the common man does not fall into this type of trap.

· The parents also have to change their mindset other than finding a bridegroom for their daughter who can provide a safe and secure life financially they should give proper education and training to their daughter so that they can become self-sufficient and not have to depend on others.

[1]< ref > Dr.Paras Diwan and Peeyushi Diwan, Moden Hindu Law, pg 63 (25th edition 2021)< / ref >

[2]< ref > Report No. 287 Justice Ritu Raj Awasthi, Justice K T Sankaran, Prof. (Dr.) Anand Paliwal, Prof. D.P. Verma, Dr. Reeta Vasishtal, Mr. M. Karunanithi, Dr. Rajiv Mani, Prof. (Dr.) Raka Arya, LAW ON MATRIMONIAL ISSUES RELATING TO NON-RESIDENT INDIANS AND OVERSEAS CITIZENS OF INDIA / 1.1 (2024) < / ref >

[3]< ref > Report No. 287 Justice Ritu Raj Awasthi, Justice K T Sankaran, Prof. (Dr.) Anand Paliwal, Prof. D.P. Verma, Dr. Reeta Vasishtal, Mr. M. Karunanithi, Dr. Rajiv Mani, Prof. (Dr.) Raka Arya, LAW ON MATRIMONIAL ISSUES RELATING TO NON-RESIDENT INDIANS AND OVERSEAS CITIZENS OF INDIA / 1.7 (2024) < / ref >

[4]< ref > Report No. 287 Justice Ritu Raj Awasthi, Justice K T Sankaran, Prof. (Dr.) Anand Paliwal, Prof. D.P. Verma, Dr. Reeta Vasishtal, Mr. M. Karunanithi, Dr. Rajiv Mani, Prof. (Dr.) Raka Arya, LAW ON MATRIMONIAL ISSUES RELATING TO NON-RESIDENT INDIANS AND OVERSEAS CITIZENS OF INDIA / 1.13 (2024) < / ref >

[5]< ref > THE INCOME-TAX ACT, 1961, No 43. Acts of Parliament, 1961 (India) s.6 < / ref >

[6]< ref > THE FOREIGN EXCHANGE MANAGEMENT ACT, 1999, No 42. Acts of Parliament, 1999 (India) s.2 < / ref >

[7]< ref >Smt. Anubha vs Shri Vikas Aggarwal And Ors, (100 (2002) DLT 682) < / ref >

< ref >See M.Suneel Kumar, Senior Civil Judge, Sompeta, NRI marriages – Issues and challenges with special reference to custody of children < / ref >

[8]< ref >Y. Narasimha Rao And Ors vs Y. Venkata Lakshmi And Anr, AIR 1991 SCR 821< / ref >

[9]< ref > See M R Madhavan, The Registration of Marriage of Non-Resident Indian Bill, 2019, PRS LEGISLATIVE RESEARCH (May 20, 2024) (May 23, 2024) < / ref >

• #cite_note-1 [1]
• #cite_note-2 [2]