Are both you and your spouse Indians who were married in India, but now reside overseas? Or are you an Indian, married to a foreign national, and currently residing outside India? Are you an Indian married to a foreign national, were in a foreign country with your spouse, but due to some issues are back to India, and desire to file for divorce here?
Obtaining a divorce in India is a complicated process on its own, but when marriages between Indians and non-resident Indians or foreigners are added to the mix, it can become a daunting and increasingly complex task to manage, especially without sufficient information.
The laws related to NRI divorce in India are slightly different from the divorce of two Indian citizens. However, both mutual consent divorce and contested divorce are acceptable forms of divorce in the case of NRIs. Below is a brief guide on the NRI divorce procedure in accordance with Indian laws.
The Gist Of The Law :
You can only obtain an NRI divorce if your marriage is registered in India, either under the Special Marriage Act or the Hindu Marriage Act. Only then, can an Indian court seek to intervene, and recognize the divorce granted by a foreign court.
NRI divorce can be categorized either into a mutual or contested divorce. Most of the time, we can say that a mutual consent divorce as granted by a foreign court is valid in the eyes of the Indian court.
This is due to the code of civil procedure’s Section 13 and 14. Although such a divorce doesn’t necessarily have to be validated by an Indian court again; it would definitely be recommended as a matter of extra precaution.
Divorce as granted by a foreign court is not always binding in India. For instance, if the issue had been contested amongst both parties in a foreign court; and the grounds for divorce are available in India then the same will be considered binding in India. But, most divorce cases, other than those filed with mutual consent are not applicable in India. This means that though you may be divorced in a foreign country, you will still be legally married in India.
This section stands to be effective so long as the marriage has taken place in India and at least one of the spouses resides in India at the time of filing.
The Situation If One Of The Spouses Is Still Abroad :
If both your spouse and you were married in India, and reside overseas, but cannot travel to India for various reasons, an NRI divorce can still be obtained. Both the parties can independently appoint a lawyer on their behalf, and grant them the Power of Attorney. You may still be required for cross-examination, or submission of evidence.
The documents that have to be signed, will simply be forwarded to the Indian Embassy, in the countries where the parties are currently residing. If only your spouse is abroad, and you’re in India, summons in a form that is acceptable in their country of residence, can be sent to the concerned party. However, your spouse doesn’t always even need to be physically present, they can also attend the trial remotely; through video call usually in the presence of a judge and an advocate!
When it comes to the welfare of the child, the principle remains the same whether it is dictated by an Indian court or a foreign court. The final decisions regarding custody, property, and other assets, are subject to change depending on several factors. Once the agreement is settled amicably, and the case is closed, neither party can contest the final decision meted out by the court, either in India or abroad.
The entire process may seem quite laborious and daunting, especially when children are involved. An advocate who is an expert on family law will be able to guide you through the entire process and help your spouse and you come to a mutual understanding.
Following this, a draft of your mutual memorandum will be made so that you don’t have to stress the legal validity of the divorce, settlement, and child custody. While we always recommend approaching a legal expert in family law, if you wish to seek our help for these services, don’t hesitate to reach out.