Friday, March 23, 2012

Laws related to NRI divorce

There is a growing trend for Indian women or men to get married to NRIs. The desire to settle in a foreign country for better quality of life inspires Indians to tie knots with NRI brides and grooms. The statistics show that 225 women from metros get married to NRIs every year, and out of this almost 25 are either deserted by husbands or want to end their marriage due to reasons of deception or hiding facts. In light of this it is very important for Indians who get married to NRIs to keep an idea of laws related to NRI divorce. 

Most of the Indian females are crazy about getting married to NRIs. Their parents also want to marry off their daughters to foreign based Indians who can provide a better quality of life and home. The parents are ready to churn out any amount of cash for foreign based grooms. They spend huge money in wedding as well as giving dowry to the boy’s family. 

The trend of marrying NRIs is very much prevalent in the state of Punjab. National Commission for Women says there are 15,000 women deserted by NRIs in Punjab alone. There are lots of Punjabis settled abroad. The parents of these Punjabi boys and girls insist their children on getting their spouses from India so that a cultural continuity is maintained. In fact the parents of the boys who are settled outside India ask a lot of dowry from the girl’s family, and the family manages to pay any amount for marrying their daughters to NRIs. However, many of such marriages end in divorce. Some common situations that lead to divorce are: 

  • The NRI spouse already has another spouse, and in some cases children also, settled with him abroad. In most of the cases the groom does not take the bride with him leaving her behind with parents. But when the reality is disclosed the girl’s family seeks divorce for their daughter. 

  • The NRI spouses exaggerate about their possessions in the foreign country - home, vehicle, high paying job, but actually might not be in a position to support a family after marriage. 

  • The lifestyle of the NRI spouse is too much advanced for the Indian spouse to keep pace with him or her. The NRI spouse feels that he or she is not suitable as a partner and seeks divorce on the grounds of incompatibility. 

Whatever may be the reason for divorce, a person who has married an NRI should be aware of the basic laws related to NRI divorce. 
If both the spouses are Indians and have been married under Hindu marriage Act of 1955 they can seek divorce with mutual consent under section 13-b that provides for divorce by mutual consent. 

If both the spouses are residing in USA, or any other foreign country, then they can seek divorce by mutual consent under the country’s divorce laws related to foreign marriages. The Indian legal system will recognize the divorce only if it is with the consent of both the parties. 
There are not many laws that protect the interest of Indians married to NRIs. However, due to rise in the number of troubled marriages among Indians and NRIs, the government is initiating non government organizations in India and abroad. These organizations give advice to Indian men and women who are married to NRIs and residing in abroad. They offer counseling, legal advice, and moral support in event of divorce and separation. 

Even if the divorce is taking place in abroad it would be good to appoint an attorney who is proficient in dealing with Indian divorce laws related to NRIs
If you are planning to get a divorce, mutual divorce should always be preferred to a contested divorce. Obtaining divorce through mutual consent is quite advantageous as it saves both time and money. The provision for dissolving marriage through mutual divorce in India is included in Section 13 B of the Hindu Marriage Act by the Marriage Laws (Amendment) Act, 1976. Any marriage solemnized before and after the Marriage Laws (Amendment) Act, 1976 is entitled to this provision. 
Though several laws have been passed with the progress of time, the divorce procedure in India is still complex and you will have to contest the divorce for several months. The Indian judicial law believes that the extended time span might workout well for the couple to reconsider their marriage and hence, a marriage will be saved from being dissolved forever. 

A Brief Outline of the Procedure of Mutual Divorce in India 

Mutual Divorce is to be filed by the couple only after they have lived apart for at least a year. A petition supported with affidavits for divorce should be filed in the district court by the both the spouses. The husband and the wife should jointly state to the court that they are unable to live together as they are facing immense difficulties in adjustment. 
The filing of divorce petition by both the husband and the wife is legally known as the "The First Motion Petition for Mutual Consent Divorce". "The Second Motion Petition for Mutual Consent Divorce" mentioned in the sub-section (2) of Section 13 B is filed when the couple reappears to the court for the second time after a period of six months. If the judge is satisfied after a hearing from both the husband and wife, the court announces a mutual divorce decree. 
If the couple fails to appear in the court after six months and not later than eighteen months from the date of first motion, the divorce petition becomes null and void. Either of the couple can withdraw his/her petition within the six months term. 
A judgment for mutual divorce is passed out only if all the necessary agreements required for a mutual divorce in India are strictly maintained. The husband and the wife should come to terms of settlement regarding the following issues. 

  • Custody of Child 
  • Return of Dowry Articles / Istridhan of Wife 
  • Lump Sum Maintenance Amount of Wife 
  • Litigation Expenses 

For a mutual divorce in India, we would always suggest you to consult an experienced lawyer who will effectively guide you to get the divorce through a mutual agreement done between you and your spouse. 

There are certain phases in your life that affect you mentally and psychologically and ultimately bring about a significant change in your identity. Marriage is certainly a memorable event in your life that assists you in shaping yourself as a new individual. On the other hand, a divorce will lead you to unravel the unexplored tumultuous facets of life. Once you are determined to get a divorce or all set to put an end to the conventional blissful marital relationship, you should first file for a divorce. 
You might have gone through a long phase of emotional turmoil before making up your mind for divorce, filing for divorce in India is even more distressing as the whole procedure may require from few months to several years. Due to intricate Indian divorce laws a divorce can drain you out both financially and emotionally. If you are firm in your decision in spite of being aware of all the elaborate legal divorce processes, allow us to provide you brief information on steps involved in filing for divorce in India. 

Hiring a Lawyer 

The very first step in getting a divorce is to hire a lawyer who would be acting as your legal advisor through out the long process of divorce. While appointing a lawyer, you must make sure that he/she is experienced enough to handle your divorce case tactfully and efficiently. Your lawyer should take interest in your case and he/she must devote a substantial time to execute all the legal proceedings of your divorce. It is always advisable that you enter into an agreement regarding the fee structure at the very first day of your meeting with the lawyer. 

The procedure of filing a divorce 

According to the Indian divorce laws there are mainly two ways to obtain you divorce, the mutual divorce and the contested divorce. In case of a mutual divorce, you can have a talk with your estranged spouse to come to a settlement and get a “no-fault divorce”. If you are seeking a contested divorce, you can file your divorce on the grounds that are specified under the particular Indian marriage act that you are entitled to. There are separate divorce laws for Hindus, Christians, Parsis and Muslims. Sikhs, Jains and Buddhists are governed by the Hindu Marriage Act, 1955 for filing for divorce in India. Laws are even laid down for Inter-cast marriages under the Special Marriage Act, 1956. 

The following are the grounds on which divorces are commonly filed. 

  • Involvement of the spouse of the petitioner in adultery or indulging in sexual relationships outside his/her marriage. 
  • Willfully deserting or abandoning the petitioner for a continuous period of two years prior to the filing for divorce in India. 
  • Inflicting physical and mental abuses that may cause danger to life and health. 
  • Sexually impotent or inability to involve in sexual intercourse. 
  • Suffering from incurable diseases and insanity 

Your lawyer will draft a divorce petition based on the grounds for filing a divorce in India as mentioned in the Indian divorce laws. You will be expected to provide your lawyer every necessary details and documents that would enable him/her to file the case in the relevant court. 
For filing for divorce in India, you are required to hand over the following photocopies of documents to your lawyer. 
  • Income Tax statements for the past 2 or 3 years 
  • Details of your profession and your present remuneration 
  • Your birth and family related information 
  • Details of properties and assents possessed by you 

Along with the above mentioned documents you need to provide your lawyer with a detailed account of your marriage that includes how and when you got married and what went wrong that led to the break up of the marital bonding you once shared with your spouse. The more honest you are in your account the easier will be for the lawyer to file a strong petition for a contested divorce. For further proceedings you will have to sign ‘vakalatnama’ to give authority to your lawyer to represent you in the courtroom. Shortly, the court will send a notice and a copy of your petition by registered post to your former spouse asking him/her to appear in the court on a specified date. 
Facing the consequence of filing for divorce in India is quite challenging as it requires tremendous mental strength to fight against various social stigmas and economical threats. You should be well prepared to confront all impediments that will arise once you file a divorce in court. 

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