Divorce is a profoundly transformative and frequently intricate process that signifies the dissolution of a marriage, bringing emotional, financial, and legal challenges for all involved. The matter becomes even more resilient when both the parties are married in India as per the Indian laws but they are settled abroad (NRI or OCI) or one of the parties lives abroad with the child leaving the other party in India.

For Non-Resident Indians (NRIs) or Overseas Citizens of India (OCIs) who marry in India and subsequently settle abroad, several factors must be considered. These include determining the jurisdiction, understanding the applicable legal principles, identifying the personal law governing the marriage, deciding where to file the divorce petition, and figuring out how a divorce granted by a foreign court is recognized in India. This article navigates through the aforementioned issues and outlines the approach as to how to go about it.

Marriage in India is considered to be sacrosanct and holds an important place in binding the society together. In India, marriage is governed by different personal laws based on religion, and the legal framework varies for different communities as underlined:

Hindu Marriage Act, 1955

• Governs marriage among Hindus, Buddhists, Sikhs, and Jains.

• The marriage must be between two individuals who are both Hindus (or belong to one of the other mentioned religions).

• The marriage must be solemnized according to Hindu rites and ceremonies.

Muslim Personal Law (Shariat) Application Act, 1937

• Governs marriage for Muslims in India.

• The marriage is a contract and must be performed as per Islamic traditions.

Christian Marriage Act, 1872

• Governs marriage for Christians in India.

• The marriage is solemnized by a minister or priest according to Christian rituals.

Parsi Marriage and Divorce Act, 1936

• Governs marriage for Parsis in India.

• Marriage must be conducted according to Parsi religious customs.

Special Marriage Act, 1954

• Governs marriage for individuals from any religion, allowing interfaith and intercaste marriages.

• The marriage is solemnized without religious rites, based on mutual consent.

Foreign Marriage Act, 1969

• Governs the marriage of Indian citizens to foreign nationals or marriages that take place outside India.

• A marriage is registered at an Indian consulate or embassy, and the provisions of the Special Marriage Act apply in these cases.

Now that we have had an overview over the laws governing marriage in India, we can draw that the diversity in marriage laws may create challenges in seeking divorce in India or overseas. We hereunder understand step by step the divorce process for NRIs/OCI:

1. Establish a ground for divorce: If it is based on the consent of both the spouses, they can apply for a Mutual consent divorce under section 13B of The Hindu Marriage Act, 1955(for Hindus, Sikhs, jains and Buddhists) or section 28 of The special Marriage Act, 1954 (for interfaith marriages) or under Muslim Personal Law, Christian Marriage Act. On the other hand, when the divorce by one party is contested by another, it can be based on various grounds as mentioned in the abovementioned laws. Like, section 13 of The Hindu Marriage Act lays down several grounds for divorce- Adultery, cruelty, desertion, conversion into another religion, leprosy, mental disorder, venereal disease, renunciation, presumption of death, no resumption of cohabitation.

   
   

2. Petition for Divorce: Generally, when it is a divorce based on mutual consent, both the spouses must agree and submit a petition before the family court, either in India or abroad. If filing in India, the petition should be filed in the jurisdiction where the marriage was registered or where the wife resides. Whereas, when it a contested divorce, the petition should be filed in the family court having jurisdiction over the matrimonial home, or where the wife resides. For NRIs/OCI: If the marriage was registered in India or one of the parties is still residing in India, the petition should be filed in the Indian court. Here, the Indian court may require proof of solemnization of marriage and spouses Indian origin (through residence proof), but where the marriage took place outside India or both parties are living abroad, the NRI spouse can approach the foreign court, in accordance with the International laws (like Hague convention, etc.) and the legal provisions of that country. However, in this case, the Indian court still has to recognize the decree awarded by the foreign court in India subject to certain conditions specified under section 13 of the Code of Civil Procedure, 1908 (for brevity, CPC 1908) through Decree validation process.

The exceptions for recognizing foreign divorce decree in india as per section 13 CPC, 1908 are:

1. If there is lack of competent jurisdiction, its judgment is considered Invalid, hence non-recognizable.

2. If the judgment passed by the foreign court is not based on merits. The same was held in the case of Y. Narsimha Rao & Ors. V. Y. Venkata Lakshmi & Anr. (1991 INSC 142)

3. If the foreign judgment is based on an incorrect interpretation of international law or ignores Indian law, it is deemed to be invalid. The judgment must align with the Indian laws and include crucial details in the petition.

4. Any judgment obtained through fraudulent means is not recognized, including situations where one or more parties were unaware that the jurisdiction was of their home country.

5. If the judgment supports a claim based on violating Indian law, it is considered invalid.

For a foreign judgment to be binding, it must pass these six exceptions, The presumption under section 14 ,CPC is that a foreign judgment was passed by a court of competent jurisdiction unless rebutted by demonstrating one or any of the exceptions listen in section 13. In the Landmark ruling of Satya vs. Teja Singh (1974 INSC 190), the supreme court held that a foreign court is considered competent if it is recognized by the law under which parties were married. If both parties willingly and unconditionally agree to the jurisdiction of the foreign court, the decree maybe valid in India. If the foreign court is from a reciprocating territory, the decree can be easily executed in India under section44A of the CPC. India has notified 13 reciprocating territories that include Aden, Bangladesh, Cook Islands, Fiji, Hong Kong, Malaysia, New Zealand, Papua New Guinea, Singapore, Trinidad and Tobago, United Arab Emirates, United Kingdom, and Western Samoa.

3. Appearances in the court: The NRI spouse may be required to attend hearings in India. However, in certain cases, particularly in mutual consent divorces, they may be allowed to seek exemption from personal attendance or use video conferencing, if permitted by the court. NRIs can also hire a lawyer in India to represent them and manage the proceedings. The pleader can attend hearings on their behlf, especially in mutual consent divorce cases.

   
   

4. Child Custody: If children are involved, child custody becomes a key concern. Indian courts typically prioritize the well-being of the children. When one spouse is overseas, the court may need to consider international child custody laws and treaties, such as the Hague Convention on International Child Abduction, if applicable. It maybe complex to involve both domestic and international laws. Also, if the child custody is adjudicated by the foreign court, Indian courts generally respect the foreign court’s decision as per comity of courts provided it aligns with child’s welfare and does not violate Indian public policy.

   
   

5. Alimony And Maintenance: The court can order maintenance or alimony for a spouse, regardless of whether they are in India or abroad. This is especially important for an NRI spouse who may have moved to a foreign country. Enforcing maintenance orders can be challenging if the paying spouse is outside India, often requiring the use of international enforcement mechanisms.

Divorce proceedings for NRIs in India follow a structured process, but can be complicated, particularly in contested cases or when both parties live abroad. Key aspects such as jurisdiction, child custody, property disputes, and maintenance need to be handled with care, often requiring legal counsel both in India and in the country where the NRI resides. The recognition and enforcement of foreign divorce decrees In India involve a complex mix of legal principles, jurisdictional concerns and conformity with the Indian personal laws. Section 13 of the CPC offers a detailed framework for evaluating the validity of foreign judgments, ensuring they align with the Indian legal standards and principles of natural justice. Indian courts not only have paved clear guidelines for recognizing foreign divorce decrees, but also looked out for the post-divorce implications involved in cross-border divorce cases.