The concept of Divorce is the full disintegration of the union of marriage. In our country, India, divorce is not fully accepted as people are made to believe divorce is un pure in all religions. The social norms and brand that divorce is an unhealthy process has been ingrained in the minds of the people. However, the process of divorce does put one through emotional, physical and financial pressures. As divorce is a highly life changing situation. Adv. Bindu Dubey is one of the best family law divorce lawyers in Mumbai for NRI who can help the clients have their divorce procedures a little easy as she and her team will handle all the situations and the tedious paper work that comes with it.
Many a times the process of divorce is made a little less complicated if both the parties agree to part ways mutually i.e., MUTUAL CONSENT DIVORCE. Here, the application for divorce will be filed under the said jurisdiction of courts that is where the couple got married. The provisions used for the divorce of a Hindu couple will be taken from the HINDU MARRIAGE ACT OF 1955. Similarly for Muslims the provisions will be taken from DISSOLUTION OF MUSLIM MARRIAGES ACT OF 1939. This is the same with respect to Christian, Parsis and other religions. The laws will be taken from their personal laws. In spite of all these different Act few things remain the same for divorce. The area where marriage was held will be the jurisdiction, the residence of couple will be taken into consideration and the place where the couple stayed while filing for divorce. With respect to all this the jurisdiction will be decided and the couple can file for divorce in the said court and the court will look into the matter.
Question arises as to what if the couple is not residing in India after their marriage?
When a Non – resident of India solemnizes their marriage in India and later decides to get a divorce but reside somewhere else and not in India then they will be allowed to file for mutual consent divorce either in India or in the country that they are currently residing in. The exception laid in the Indian legal system for this purpose states, ‘Petition for divorce can be applied by parties in the jurisdiction where the couple last resided’ that is the couple can apply divorce in their current or former residence even it being a foreign country.
At any instance where the couple wants to file for divorce in a foreign country then they will be mandated and guided to do the same with respect to the rules mentioned under the India law. However, the petitions and processes will be done as according to the laws of the place where they reside. It has to be kept in mind here that INDIAN LAWS WILL NOT BE APPLICABLE IN THE FOREIGN COURTS. The courts in India does not acknowledge the decrees passed by the foreign courts i.e., the decree passed is indefinite and unsettled under Section 13 of the Code of Civil Procedure of 1908. This means that the said decree has not been decided by any court of qualified jurisdiction and the decree has not been passed with respect to the merits of the case. Decree was obtained by fraud of breached the law. Any decree that has been processed and put forth by the foreign courts can be challenged and be stated as void under the Indian courts with respect to the reasons stated.
In the case of ‘Narasimha Rao Vs. Venkata Lakshmi’ the apex court held that the mutual divorce that has been obtained from any foreign courts will be invalid if the laws as mentioned under Indian divorce system is not followed. Indian courts have the full power and authority to refuse to accept any order that has been passed by the foreign courts if and only if the Indian courts have not given the said foreign courts to take the jurisdiction. The marriage must be registered in India and if they had married in a foreign country then their divorce will be done under the said foreign nation’s laws. If a divorce petition has been filed and contested in any country and a mutual divorce has been obtained, the couple will still be legally married in India. However, few exceptions have been laid with respect to this rule i.e., place where the respondent consents to grant relief; where the respondent voluntarily allows for the jurisdiction etc. Had there been obtained the decree will considered as a valid one under Indian law. The mutual consent divorce order must be submitted with the divorce certificate to the Marriage officer in India and this is mandatory. This will make sure that the couple is divorced even in India.
CAN NRI FILE DIVORCE IN INDIA?
Filing for divorce in India is a comparatively easy process. The petition will be filed by the NRIs and the consent of involved parties will be recorded. If any one party is not able to attend the proceedings, then power of attorney will be provided. After the first motion has been allowed, duration of six months will be given as the interim time. If this crosses the second motion will take place where it is mandatory for both the parties to be present to show consent. The duration of six months can be extended to even eighteen months if deemed necessary.
The divorce decrees that have been sanctioned by the Indian courts will be valid in the court of law in other countries just like how Indian marriages are valid abroad. The divorce order should be recognized in abroad nation if the spouses have joint property in that country. This is one main essential for finalizing the divorce abroad.
Obtaining divorce is a tedious process in itself and the procedures for claiming divorce by an NRI is separately a painful process with loads of paperwork. Therefore, hiring the best divorce NRI lawyer like Adv. Bindu Dubey will definitely make the process a little less complex as she will handle the case with full care and will aid the clients to have a smooth divorce.