What is an NRI divorce?
An NRI divorce is a divorce in which one or both spouses are not residents of India. This can complicate the divorce process, as there may be issues with jurisdiction and service of process.
An NRI divorce can be more complex and time-consuming than a regular divorce, so it is important to seek experienced legal counsel if you are considering this option.
Requirements of an NRI divorce
- Both partners seek a decree of divorce in India
- Couple seek divorce in India while residing outside India during proceedings
- One partner is NRI and the other is an Indian resident
- Both partners are NRI
- One is NRI and the other is foreign national
What are the Grounds for NRI divorce?
- Physical/mental cruelty
- Venereal disease
- Unsound mind
- Not in the company for more than 2 years
- Not heard for more than 7 years
Provisions in various laws regarding NRI divorce
If the couple is Hindu it can take a decree of divorce with mutual consent under Section 13B of the Hindu Marriage Act, 1955. It affirms the remedy of divorce to an NRI willing to take a decree from an Indian court. It states,
(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made no earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.
If the couple is Muslim, they can take a divorce through the Dissolution of Muslim Marriages Act, 1939.
If the couple falls under the Special Marriage Act of 1954, they can opt for the remedy through the provision of the said act.
The procedure for NRI divorce
- Parties shall submit a petition in court for seeking a divorce.
- Parties must already agree upon maintenance sum and custody of a child born out of that marriage.
- The court will adjourn the case for six months from the date of the presentation of the plea, also known as the first motion.
- After that period, parties are obligated to attend the court to give their confirmation upon divorce by mutual consent. – This will act as verification. – Also known as second motion.
- After the second motion hearing, the court may grant a decree of NRI divorce in India.
- Before the second motion and within 6 months, any of the parties can take back or withdraw the petition for divorce.
Divorce when parties reside outside India
Power of Attorney
When both parties were married in India but stayed outside India, the way to file for divorce is by entrusting power of attorney. They hire separate advocates to deal with the view. Authorities hand over their agreement to the Indian Embassy of the country in which they are residing.
- Terms of Power of Attorney must be affirmed upon a 100 Rupees Stamp Paper.
- The authority of this is rendered to Registrar and Sub-registrar.
- Two witnesses are also mandatory to attend and affix their sign
- They cannot be the same person to whom power of attorney is given.
These days NRI divorce is also taking place through video conferencing before a judge who can hear them and accomplish a proper verdict upon the matter. This is an easier medium to bring both parties under the same platform to hear them equally.
This takes place because parties become unable to be in the same place at the same time. The aid of technology includes all the legal proceedings and manner of providing justice and tries to avoid a chance of leaving any stone unturned.
Effects of an NRI divorce
- Women can claim both interim and permanent maintenance.
- Custody of a child can also be a part of the entire process.
- The amount of alimony can also be procured from the ancestral property of the husband.
- The marriage comes to end. Both parties are free to marry another person.
Important questions regarding NRI divorce
How do I get a divorce if my husband is abroad?
You need to apply petition in the family court of your district. For a contested divorce (where only you want the divorce), the court will issue a summons to your husband. If needed, you can also involve the embassy of the country where your husband is residing. For a mutual consent divorce, you both need to appear before the concerned family court. In fact, sometimes, video conferencing or power of attorney can be allowed, which means the husband does not have to come to the court. Get proper legal consultation regarding this by applying here.
Can I go abroad during a divorce case in India?
Yes, you can go abroad during a divorce case until prohibited by the court. Also, you need to appear before the court as and when required by it.
How do I file for divorce if my wife is abroad?
You can file a petition first in the family court but the court must be established where the wife resides or where you both last resided together or where the marriage took place. It will be better if you choose mutual divorce with the consent of the wife as it is less expensive, and quicker than a contested divorce and the marriage ends respectfully. Apply for mutual divorce and get a petition in just one day.
Can a person living in the USA divorce his Indian wife without going to India? should he apply for a divorce in the USA or in India?
If the marriage took place as per India’s laws, then the divorce petition will be filed according to Indian laws only. The decree is applicable anywhere in the world. Therefore, you can show the divorce decree obtained via Indian laws to USA authorities/courts to prove that you are not married anymore.
What is the fastest and cheapest way to get a divorce?
Divorce by mutual consent is a faster and cheaper divorce option than a contested divorce in which no one knows about the duration, fee, fights and stress. If you both agree to a mutual divorce, then your marriage might come to an end in a respectful way which is not the case in a contested divorce where there are endless fights and counter-allegations. Apply for a mutual divorce and get unlimited support with a guaranteed refund policy.
by Khushi Shukla
Disclaimer: The opinions expressed within this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of Adjuva Legal and Adjuva Legal does not assume any responsibility or liability for the same.