Non-Resident Indians (NRI), Indian settled abroad or on work permit who are involved in Matrimonial Dispute often faces legal proceedings related to Divorce, Maintenance and Child Custody or Domestic Violence along with other allied charges in India. But they face great difficulty in understanding the complex procedure and laws related to Matrimonial Laws in India, also they find it difficult to find the best suitable Family Law Attorney who can represent their case in the court. Apart from this they also face the biggest problem in interacting directly with their prospective Family Law Attorney to understand the complex issues of trans-border divorce cases and NRI Divorce Laws in India, but we came up with a solution for all the NRI’s facing such cases in India by providing them Online Consultancy as our team consist of Biggest Network of Top-Notch Best in Class Matrimonial Law experts who help and guide the NRI Husband’s and Wife’s to understand their Matrimonial Laws and Matrimonial Rights in lot more simple way and we also provide them the best Family Law Counsel on whom they can rely upon for their case in India.
How Can An NRI Seek A Divorce
It sometimes happens that even after frantic efforts, the marriage doesn’t work out and the couple has to take the tough yet wise decision of getting separated and not continuing their marriage. This kind of situation can occur to any married couple, whether they are in India or Abroad. Similarly, NRIs living Abroad may also have to get divorced in India. In such a case, it is best to go for a divorce by Mutual Consent as per Indian Law.
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Once you have figured out that there is no way you can mend your relationship, a petition for a divorce needs to be filed to commence the proceedings. There are two forums available to file this suit. If you stay in India (despite your partner being an NRI), you may choose to initiate proceedings in an Indian Court. The other option is to file a suit in a foreign court.
FILING A MUTUAL DIVORCE IN AN INDIAN COURT
Mutual consent divorce is the quickest form of divorce in India. When both husband and wife agree that things are not working with them and it's time to amicably end the marital alliance. When they decide not to put allegations against each other and go public with a family dispute, rather move on with mutual respect, agreement and dignity.
Both husband and wife jointly need to present a petition before the court of law requesting a divorce. If the couple has children, they need to come up with a documented mutual understanding to bring them up.
WHAT IS THE PROCEDURE FOR MUTUAL CONSENT DIVORCE?
Here is the seven-step process for a mutual consent divorce under Section 13B of the Hindu Marriage Act, 1955
Step 1 - Both Spouses need to put a signed petition requesting the dissolution of their marriage before the court of law. You need the help of a divorce lawyer. You may also disclose that all attempts to save your marriage have been futile and you are mutually agreeing to the dissolution.
Step 2 - Both parties appear in the family court. The court will analyze the petition and the documents. In some cases, the court may recommend mediation to reconcile relations. Once it proved that it's irreconcilable, divorce proceedings will begin.
Step 3 - Once the court is satisfied with the petition and documents, it orders both parties to record a statement under oath.
Step 4 - After the court analyses the petition and it's satisfactory the courts may order the statement of the parties to be recorded under oath.
Step 5 - The court passes an order on the first motion, once the statements are recorded. Both parties have 6 months' before filing the second motion.
Step 6 - If both the parties decide to go ahead with the divorce procedure the course passes second motion after 6 months period and gets on with the final hearing.
Step 7- Decree of Divorce?
The court wants to be sure that there is no conflict between both parties about the following issues-
- Child custody
- Property or any other marital issue.
Once assured the court will pass a decree of divorce and declare the dissolution of marriage
HOW LONG DOES IT TAKE TO GET MUTUAL CONSENT DIVORCE IN INDIA?
Six months. If you have jointly presented a petition for mutual consent divorce under section 13-B, the court will give six months cooling off period after your first motion for the couple to think through and decide. After 6 months you can apply for a second motion anytime within 18 months to get your final hearing and divorce decree.
Reducing the six month cooling off period is purely at the discretion of the court. Earlier it was mandatory but in 2017 the supreme court of India in Amardeep Singh vs. Harveen Kaur CA NO, 11158 OF 2017 suggested that it can be waived off based on the facts of the case and situation.
The court has not mentioned any ground under which the waiver can be granted but in general, the following conditions have been considered in past-
- When any of the couples were settling off abroad
- When the wife was getting married (a woman is often considered a victim of divorce)
- Urgent Medical conditions
As mentioned earlier, these are not defined by any law. It depends on the judge or how strongly your lawyer presents your case and the validity of the grounds under which you are applying for a waiver. In some cases, people are able to get their divorce within 2-3 weeks.
On the contrary, if you have children, then the court will take time to consider your case. Before granting any waiver the court would like to be absolutely sure about
- Legal and Physical custody of your child,
- Their upbringing and well being,
- Division of your property, maintenance for the wife and children,
- Your joint liabilities,
- Alimony and other factors.
WHERE CAN I FILE THE PETITION FOR A MUTUAL CONSENT DIVORCE?
You can file a petition of Mutual Consent Divorce at any location mentioned below -
- Place of your marriage
- Place where you resided together last time as a couple
- Place where your wife is residing at the time of petition
FILING FOR DIVORCE IN A FOREIGN COUNTRY
When a couple decides to file a divorce petition in a foreign country, they do so on the basis of the power given to them under the Indian law. The petition for mutual consent divorce will have to be made in accordance with the laws of the country in which the couple resides. The Indian laws will not apply to the foreign courts. The foreign court will then pass a decree recognizing the divorce in accordance with their procedure.
Will this Foreign Decree be Recognized by the Indian Courts?
The Indian courts do not recognize the decree passed by the foreign courts if the decree so made is inconclusive under Section 13 of the Civil Procedure Code, 1908.
This means that the decree:
- Is not pronounced by a Court of competent jurisdiction.
- Has not been given on the merits of the case.
- Appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable.
- Was obtained opposed to the principles of natural justice.
- Has been obtained by fraud.
- Sustains a claim founded on a breach of any law in force in India.
A decree passed by a foreign court may be challenged and declared null and void in an Indian court on the basis of the above conditions.
WHETHER EX-PARTE DIVORCE CAN BE SOUGHT?
Let’s assume that one of the parties to the marriage in Spain is unhappy with the relationship and seeks an ex parte divorce, which means a divorce filed, proceeded against and granted by the court without the involvement of the other spouse. While this may be legal in Spain if uncontested by the spouse, the Indian courts will usually not recognize such a divorce and the parties will again have to move proceedings on a mutual consent basis only. This is so because the court has hardly any knowledge of whether the summons was properly served and other formalities of an ex parte case were fulfilled.
CHILD CUSTODY LAWS FOR NRI’S
The custody is decided on the basis of a non – negotiable instrument “best interest and welfare” of the child which means that the one who will serve the child emotionally, educationally, medically, and socially and fulfill these needs will get the custody of the child.
Because of divorce and custody battles or quarrels, the innocent child gets caught up in the legal and psychological warfare between both the parents.
After the dissolution of marriage, custody of a child can be given as:-
- Sole custody:- One parent is granted custody & the other is proved unfit for the
- Joint physical custody:– In this, a child will reside with one physically & will take care of the child primarily but both the parents will have legal custody.
- Third party custody:- In this, the third person will get child’s custody instead of their real or biological parents by the court.
CUSTODY UNDER HINDU LAW AS WELL AS SECULAR LAW:
Normally, the mother gets the custody of child who is under the age of 5. Custody of an older boys and older girls is decided by the child’s interest but usually fathers get custody of older boys and mother gets the custody of older girls. The child is not given to mother if proven ill-treat.
The child who is above 9, his choice is taken into consideration.
- The Court is then an ultimate guardian of the child in order to protect the child’s property. Hence, is called Parens Patriae.
- The custody will not be determined by the earning capacity of the parent, but the custody is given to those who provide a safe and secure environment.
RIGHTS OF A CHILD IN MATRIMONIAL DISPUTES
- Each child can defend or downgrade either parent
- Each child can take over any parental responsibility for making custody decisions.
- He can maintain relationships independently with each parent.
- He can be financially supported by both parents.
- He has a right to spend time with both parents on regular basis.
- Each child has a right for getting proper care arrangements when not supervised by parents.
- He has a right to be nurtured, guided, supervised, etc. by each parent.
- Each child has the right to know about both the parents.