Marriage has been defined as, “The state of being united to a person of the opposite sex as husband or wife in a legal, consensual, and contractual relationship recognized and sanctioned by and dissolvable only by law.” It refers to the legal recognition of the relationship between two people after which they are recognized as husband and wife. There are instances where the marriage does not work out and the parties to the marriage want to end the relationship and go on their own paths. This process is known as divorce. The process for divorce can be long and complicated, especially for NRIs who are staying abroad but have their marriage registered in India.
India has several laws related to marriage depending upon the religion of the person. These include Hindu Marriage Act, 1955; Special Marriage Act, 1954; The Indian Christian Marriage Act, 1872 and more. The grounds for divorce vary to an extent in each of the acts. However, every law related to marriage and divorce in India provides for divorce by mutual consent. Therefore, as per Indian Law, divorce by mutual consent can be obtained both in Indian and Foreign courts. This provision is included for the convenience of the NRIs so that they do not have to travel to India to seek divorce.
Divorce by Mutual Consent
It is a form of divorce where both the husband and the wife want to wilfully separate after the marriage. In this form of divorce, there is no contest from either of the parties or allegations of Domestic Violence, Cruelty, Adultery, etc. In these cases, the husband and wife arrive at the understanding that the marriage is no longer working out and make the choice to separate. It is the only form of divorce in India that can also be obtained in Foreign Courts.
Divorce by ‘Mutual Consent’ in Foreign Courts for NRIs
This option is given to NRI couples residing abroad only in the cases of divorce by ‘mutual consent.’ The proceedings do not take place according to Indian laws but as per the laws of the country of residence of the NRIs. The procedure followed in such cases will be that of the laws of the country of residence and not as per the laws of India. In this case, the parties will have to engage foreign lawyers in their jurisdiction who will assist in obtaining the divorce.
Once the divorce has been allowed and a decree of the court has been obtained, it has to be enforced in India for the divorce to be valid in India. The Code of Civil Procedure, 1908 (CPC) provides for the enforcement of foreign decrees in India. The enforcement of such decrees depends on whether the decree has been passed by a court of a reciprocating territory or a non-reciprocating territory.
When the decree is passed by the Court of a Reciprocating Territory
In this case, Section 44A (1) of the CPC provides that a judgment passed by a superior court in a foreign territory, it can be executed in India can be passed as if it was passed by a District Court in India. A certified copy of the decree along with the certificate from such a court is treated as conclusive proof for the enforcement of such decree under Section 44A (2) of the CPC.
When the decree is passed by the Court of a Non-Reciprocating Territory
In this case, the process is more complicated since a suit needs to be filed before the Indian Court as well. The decree cannot be executed directly. The Court in India has to deem the foreign decree enforceable and pass its own decree upholding the foreign decree. It has to be proven before the Indian Court that the tests laid down under Section 13 of the CPC are satisfied.
Role of an Indian Lawyer or Law Firm in the enforcement of a decree by a Foreign Court
Reciprocating Territory – In this case, the decree of the foreign court along with a certified copy of the order is to be sent to the Indian lawyer who can file it before the Court. This will validate the decree in India as well and the divorce process will be completed.
Non-Reciprocating Territory – In this case, the decree of the foreign court along with a certified copy of the order is to be sent to the Indian lawyer who will file a suit before the Court. The lawyer will prove before the Court that there is no violation of Section 13 of the CPC and the decree is enforceable in India.
In both cases, the Power of Attorney can be sent in the correct form to the lawyer in India and he will file the suit before the Court or submit the decree along with the certificate before the Court, so you do not have to travel to India/
Divorce by ‘Mutual Consent’ in Indian Courts for NRIs
The application for Divorce by ‘Mutual Consent’ can be filed in the Indian Courts as per the conditions mentioned in the Act under which the marriage is registered. The process involves the following steps:
- Drafting and filing of a divorce petition – This process can be initiated by one of the parties with the assistance of their respective lawyer. A notice is issued by the Court to the other party who can either accept the divorce or choose to contest the divorce.
- Court hearing and inspection – Once the notice has been served, both parties are summoned before the Court. The parties can be present in the Court themselves or they can be represented by the Power of Attorney holder.
- Recording of Statements and Adjournment – In most cases, the Court records the statements of the parties and adjourns the case for a period of six months before the divorce proceedings are completed. However, in the cases of divorce by ‘mutual consent’, the period of six months, also known as the ‘cooling off’ period can be waived off. This was held by the Supreme Court in the case of Amardeep Singh v. Harveen Kaur. Moreover, in the case of Tomy Joseph v. Smitha Tomy, the Kerala High Court observed that the benefit of the waiving off of the ‘cooling-off period’ is secular in nature and will apply across the family laws of different religions. If this period is waived of, the parties can sign the mutual consent form themselves or through their Power of Attorney Holders and the divorce is granted by the Court.
- In other cases, once the cooling-off, the parties sign on the form of divorce by mutual consent if there is no change in the status quo and the divorce is granted by the Court.
Role of an Indian Lawyer or Law Firm in filing a case for Divorce by Mutual Consent in Indian Courts for NRIs
The process of divorce ordinarily requires physical presence before the Court. However, the NRIs no longer need to travel to India as the process can be carried out by their lawyer who is authorized to act on their behalf. The lawyer can file their case, sign on their behalf, and obtain the decree.
For the representation of the parties, the Indian Courts have held that video conferencing and genuine representation of a person can be permitted to advance the interest of justice. This change was allowed by the Supreme Court in order to save both money and time in the case of Krishna Veni Nagam v. Harish Nigam. Therefore, the divorce process for NRIs in India can be completed without physically traveling to India.
Divorce by mutual consent can be obtained in both Indian and Foreign Courts. The decree of divorce obtained from a foreign court needs to be enforced in India and can be deemed invalid if it does not fulfil the conditions under Section 13 of the CPC. It does not require travelling to India as the court proceedings can be done by a lawyer through power of attorney. A divorce by mutual consent in an Indian Court can also be obtained without travelling to India. The proceedings are conducted through video conferencing and the physical signing of documents can be done through your representative who is authorized by the Power of Attorney. In both cases, an Indian Law firm or a Lawyer is needed and can be of great help to you during the entire process.