How can NRI Obtain a Divorce in India?

by  Adv. Rupa K.N  

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NRI divorce

Introduction

Nonresident Indian is the full form of the term, and it speaks for itself. There is no direct definition of “NRI” under Indian law. The NRI, or nonresident Indian, in its broadest sense. A nonresident Indian is someone with an Indian passport who immigrates to another nation for work or studies. Divorce is not simple; when it comes to NRI divorce, it might become more difficult if one of the parties does not reside in India. In this article, we discuss the divorce options available to NRI couples.

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Reasons that lead to NRI divorce

1. The NRI husband is already married to another woman and may even have children who live with him abroad. Most of the time, the groom leaves the bride with her parents rather than taking her with him. But when the truth is out, the girl’s family asks for their daughter’s divorce.

2. The NRI spouses exaggerate their assets in the foreign nation, including their home, car, and high-paying jobs, yet they may not be able to sustain a family after marriage.

3. The Indian spouse cannot keep up with the NRI spouse’s lifestyle since it is too modern. The NRI divorce can be on the basis of incompatibility since they believe they are unsuitable as a mate.

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What laws deal with NRI divorce?

1. If both partners are Indian citizens and were wed in accordance with the Hindu Marriage Act 1955, they may file for divorce by mutual consent in accordance with section 13-B of the Act.

2. Under the country’s divorce rules pertaining to foreign marriages, if both spouses are resident in the USA or any other foreign country, they may seek a divorce with mutual consent. Only a divorce that has the permission of both parties will be recognised under Indian law.

Conditions for an NRI divorce

1. Both partners request an NRI divorce judgement in India.

2. During the divorce process, a couple files for divorce in India while living abroad.

3. One partner is an NRI while the other resides in India.

4. They are both NRIs.

5. One is a foreign national, while the other is an NRI.

Procedure for NRI divorce

1. The parties must file a divorce petition with the court.

2. The parties must previously agree on a maintenance amount and custody of any children born from the marriage.

3. The case will be adjourned for six months from the date of the plea presentation, generally known as the first motion.

4. After that time, the parties are required to appear in court to affirm their divorce by mutual consent. This will serve as confirmation. 

5. Any of the parties may withdraw or return the petition for divorce before the second motion and within six months.

NRI divorce options that are available

NRI Divorce by Mutual Consent

The petition for mutual consent in an NRI divorce is filed under the laws of the foreign nation in which it is acquired, not the laws of India. This can be done easily with the right kind of legal advice for divorce.

The decree in NRI divorce is only legitimate if the court that issued it has proper jurisdiction over the matter and met with all of the requirements and conditions. Other issues, including alimony/maintenance, child custody, and asset distribution, will be resolved amicably by the spouses in accordance with the laws of the foreign nation in which they reside.

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Validity of Mutual Consent for NRI Divorce

1. A decree of mutual consent NRI divorce will not be deemed legitimate if

2. A court of competent jurisdiction did not issue the decree.

3. Force, coercion, or undue influence was used to secure either party’s permission.

4. The NRI divorce order was not granted on the grounds of the case.

5. Such a decree might be challenged in an Indian court and declared null and invalid.

Reciprocating Territory’s Court issues a decree.

In this instance, Section 44A (1) of the CPC states that a decision rendered by a superior court in a foreign nation may be enforced in India as if rendered by a District Court in India. Section 44A (2) of the CPC considers a certified copy of the decree, coupled with the certificate from such a court, to be conclusive proof for the implementation of such decree.

Non-Reciprocating Territory’s Court issues decree

NRI divorce is more cumbersome in this situation since a suit must also be filed before the Indian Court. The decree cannot be carried out directly. The Indian Court must declare the foreign decree enforceable and issue its own decree supporting the foreign decree. The Indian Court must be convinced that the tests outlined in Section 13 of the CPC have been met.

Alternative Solutions for NRI divorce

1. Recording of statements through video conferencing: After authenticating their identification, NRI clients might have their statements in a mutual consent divorce recorded while residing in a foreign nation to save an unnecessary trip just to provide statements in court.

The attorneys and the court should take steps to guarantee that our NRI clients have access to videoconferencing services that save the court’s and the parties’ important time. In mutual consent divorce and contentious divorce, the Family Court might examine the likelihood of videoconferencing to assist the cause of justice and require the parties to present and have their remarks recorded using videoconferencing. NRI clients should be advised by their lawyers.


2. Proceedings through Power of Attorney: Parties in marriage problems, particularly NRI divorce, can be represented in court by a valid notarized Special Power of Attorney with apostille certification. The Code of Civil Procedure includes a specific provision that permits a power of attorney holder to file a petition. The Family Court can hear an application made through a power of attorney.

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Conclusion

The process of NRI divorce has been addressed above. The divorce decree obtained from a foreign court must be enforced in India and may be ruled invalid if it does not meet the requirements set out in Section 13 of the CPC. It is not necessary to fly to India because the court processes can be handled by a lawyer using a power of attorney or by mutual consent. Another thing to remember is that even if the divorce is taking place abroad, it is best to choose a lawyer online who is familiar with Indian divorce laws pertaining to NRIs.

An NRI divorce can be represented in court by a valid notarized Special Power of Attorney. Talk to a lawyer now.

Adv. Rupa K.N

Adv. Rupa K.N

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Advocate Rupa K.N, with over 24 years of independent practice, specialises in providing legal expertise, advice and guidance to a broad range of customers. Having been practising law independently for several years after doing her B.A. LLB from Bangalore University and PGDM from the National Institute of Personnel Management.

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