POSTED BY: NRI Legal World | 9 November - 2018
Divorce refers to a complete breaking down of a marriage. With regards to divorce in India, it is something that is frowned upon by the society and religion, too. Divorce is often accompanied by a social stigma and can cause a great deal of emotional stress to people planning to undergo such a drastic change in their lives.
In situations where both the parties mutually agree to a divorce i.e. both the partners are ready to permanently separate from one another, it is called a mutual consent divorce. Any married couple planning to file a divorce petition must conform to the jurisdiction of the Indian court of law. Jurisdiction, here, implies the power of the court to grant an authorized decree. Thus, it is a must for the court to have the jurisdiction in order to take up the case, or else the decree granted by them shall be treated as invalid.
With regards to divorce cases, the jurisdiction is dependent on the couple’s religion under which they got married. For instance, in case the couple belonged to a Hindu religion, then the Hindu Marriage Act, 1955 will be applicable. According to Hindu Marriage Act a Hindu is, any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj, any person who is a Buddhist, Jaina or Sikh by religion, and any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.
And, in case the couple is a Muslim, the Dissolution of Muslim Marriages Act, 1939 will be applicable. In a similar manner, for Parsi, Christian and inter-religion marriages, varied statuses are applicable.
All these acts differ from one another in some way or the other, but there are a few factors that remain the same in all the statutes:
• The place where the vows were taken (was registered or/and was solemnized)
• The place where the husband and wife last stayed as a couple
• The place where the other party is staying when the divorce petition is filed
Taking into consideration the above points, you will reach out the court in the place where you the couple can file the petition for mutual divorce. This court will be having the rightful jurisdiction to take up the hearing of the case.
In case an NRI who is married in India wants to get a divorce by mutual consent, then he/she can pursue it by filing a petition for divorce in India or in the country where both the partners are living. The Indian law provides this relaxation of filing the divorce in the foreign country. It accepts the case filed in the jurisdiction of the court of which the couple last resided.
The residence of the NRI husband and wife will be a foreign nation. Therefore, they can file their divorce case in the foreign country or in India.
If the couple prefers to register a divorce petition in the other country, they do it on the basis of the authority provided to them under the Indian law code. The petition for mutual divorce needs to be made in accordance with the legal guidelines of the country where the couple lives. The Indian ordinances are not going to be applicable in the international courts. The foreign court passes a decree of accepting the divorce in agreement with their legal procedures.
There are some cases wherein the Indian court of law does not accept the decree passed by the international court and it is generally when the judgment passed is inconclusive under Section 13 of the CPC, 1908.
This implies that the decree:
• Is not ordered by a court of competent jurisdiction
• Hasn’t been given on the basis of merits
• Is based on an incorrect view of the international law or a law of India is refused to be considered where it is applicable
• Was taken against the ethics of natural justice
• Has been taken by fraud
• Sustains a claim of the breach of any Indian law
A decree issued by an international court can be challenged and also stated invalid in an Indian court on the basis of the above factors. Under a landmark case judgment, the Supreme Court stated that the divorce taken from an international court was void in case it does not comply with the Indian divorce laws.
The Indian courts may refuse to authenticate a decree provided by the overseas court in case the Indian law code doesn’t provide for that international court to have jurisdiction. In situation where a foreign court bears the jurisdiction and the decree has conformed to all the factors, the overseas decree is held applicable and definite by the Indian court. This kind of a decree also needs to adjudicate on factors pertaining to the property of both the partners in the foreign land and in India, keeping in mind the legal guidelines applicable on the NRIs.
Furthermore, matters such as child custody, alimony (in case any) etc. also need to be adjudicated accordingly. Nevertheless, once a couple appears under the jurisdiction of the overseas court, they have the leverage of submitting themselves to the divorce or family laws of that nation. In the case of Y Narasimha Rao and Ors. Versus Y Venkata Lakshmi and Anr., the respondent didn’t submit to the jurisdiction of the overseas court.
It was stated by Supreme Court that the jurisdiction assumed by the foreign court and the basis on which the relief is granted should be as per the matrimonial law under which the couple took vows.
Exceptions to this rule are:
• Where the matrimonial action is registered in the community wherein the respondent is domiciled naturally and permanently lives and the relief is granted on a basis of the matrimonial law code under which the couple is wedded.
• Where the respondent consciously and systematically registers to the jurisdiction of the forum as mentioned above and contests the declaration on the basis of the matrimonial law under which the couple is wedded.
• Where the respondent agrees with the relief granted even though the forum’s jurisdiction is not as per the matrimonial law of the party.
Provided consent, such as this, has been obtained, the foreign decree would have been a legitimate one. Consequently, a Christian couple approaching to UAE’s jurisdiction and Muslim personal law for obtaining a mutual divorce in Dubai is legal and would be upheld by the Indian court too.
After the decree for mutual divorce is attained, it is compulsory for the parties to send in a notice as well as the divorce certificate to the Marriage Officer in India. This will help the NRIs to make full use of the foreign decree as it being a legitimate one. They can therefore separate the property in India based upon the decree and then remarry.
Divorce proceedings in India are either mutual or contested. The divorce process of both the mutual as well as contested are different but certain steps of the divorce procedures in India are the same. The step-wise divorce process in India in every divorce case is as mentioned below:
Filing of Divorce Petition – The initial step in the divorce case in India is submitting of divorce petition before the suitable family court. The courts wherein the step-by-step divorce proceeding can be started by filing of annulment petition are possibly of the following:
• In jurisdiction where both the parties are living in their matrimonial residence,
• Where the wife is currently residing, or perhaps
• Where the husband is currently residing.
The party that wishes to get the divorce from other needs to submit the petition or in case the parties jointly agree with divorce, in that case a joint divorce petition will have to be submitted before the acceptable court to start the divorce proceeding. The petition of divorce proceedings should state the basis of divorce. A good NRI divorce lawyer will assist you in drafting the petition and also with the complete divorce procedure.
Service of Summons – After filing of divorce petition the subsequent step in the process is the service of summons to the opposite party to let them know that the divorce proceedings has begun against them by their partner. After getting the summons the party needs to show up before the court on the day cited in summon.
Response – The next step in the divorce process is to submit a response to the petition. The response must state the issues upon which the other party would like to contest the divorce as well as acknowledge or decline the points stated in the divorce petition. In case the party fails to show up before the court for submitting the response, in that case the divorce proceeding is going to conclude there after which the court is going to give an ex parte order of divorce hence ending an to the divorce case.
Trial – The subsequent step of divorce process is conducting of trial. Once each of the parties has sent in their petitions of the divorce, the court then is going to listen to each side as well as their proofs and witnesses. This phase of the divorce proceeding in India incorporates the examination as well as cross examination of both the parties along with witnesses. It is actually to a great extent the essential point of divorce process.
Interim Orders – The next step of the divorce process in India is interim orders. In this stage of the divorce proceeding, the court gives provisional orders concerning maintenance, child custody and so on. Interim orders are given at the time of the subsistence of the divorce process and stay in force until the final decision of the court i.e., until the final phase of the divorce procedure in India.
Final Order – The final part of a divorce process is the pronouncement of the concluding order of the divorce. When all the earlier phases of the divorce proceeding are done the court is going to pass the ultimate order that will dissolve the matrimony completely. With the court’s concluding order the divorce process in India comes to an end.
It is essential to remember that divorce decree given by Indian courts are legitimate in other nations the same way as marriages which are registered in India are acceptable in foreign places. Essentially, no overseas court will question in case the decree passed by an Indian court on the subject of divorce of a couple wedded in India is void.
The divorce decree has to be accepted in the foreign land in case the couple collectively owns real estate in that country. This kind of acceptance is obtained by submitting a petition for acknowledgment in such country conforming to their laws. This is the final legal prerequisite for finalizing a divorce if the divorcing people are non-resident Indians.
After reading how an NRI couple can take a mutual divorce overseas as well as in India, it is found that both sides have their own pros and cons. Thus, the choice of where you should register your mutual divorce petition should be cautiously scrutinized by both the parties in advance. It also needs to be agreed upon collectively to make sure that the process is finished smoothly and is not dragged any further.
If you are an NRI and seeking help concerning your mutual consent divorce, then you are at the right place. NRI Legal World is a unique platform assisting NRIs to deal with situations, which are beyond their reach and control. We have a team of experienced lawyers that enables us to help you with an optimal solution. For more call us at: +91 85-85-85-71-71 or email at email@example.com
Also Read: Disputes in NRI Marriages – How to Handle?