If a NRI is married in India wants to file a mutual consent divorce, then can file it in India or abroad where both the parties are residing. There is an exception if the same is not a mutual divorce and it is a contested one.
A divorce petition needs to be filed to commence the proceedings. There are two options to file this suit. If you stay in India (even if your partner stays abroad) you may initiate proceedings in India. The other option available with you is to file a suit in a foreign court.
Filing a suit in an Indian Court
A mutual consent divorce proceedings initiate when both the parties to the marriage i.e. husband and wife want to terminate the marriage. They decide to get separated by mutual consent. According to the provisions of the Hindu Marriage Act, 1955, both the husband and the wife have the right to dissolve their marriage by a decree of divorce on various grounds provided under Section 13 of the Act? Filing for a mutual divorce is always an easy option and we have discussed the procedure of filing a mutual divorce case in an Indian Court in our previous post.
‘Jurisdiction of a court’ means the power of the court to grant a valid decree. Hence, the court must have the jurisdiction to take up the matter or else the decree passed by the court not having the jurisdiction shall be considered to be invalid.
Filing a case in a foreign court
The Indian laws provide for the filing of a divorce petition aboard where the marriage is registered in India but parties are living abroad. But this could only be a mutual consent divorce. The reason is that the foreign laws differ from country to country and hence the courts in India do not recognize a contested divorce decree of a foreign court.
Both the parties staying abroad: Recourse
Mr. ‘X’ stays in Spain and Ms. ‘B’ stays in the USA, both were married in India. As it will be very expensive affair for both the parties visit India frequently for divorce proceedings. Hence, the best way to seek a divorce, here is that both the parties must engage a lawyer independently and execute a Power of Attorney in the lawyer’s favor. The documents that need to be signed will be forwarded to the Indian Embassy in that country.
The couple not living in India after marriage
If a Non-Resident Indian (NRI) married in India wants a mutual consent divorce, then he/she can do so by filing a petition in India or in the country where both of them are residing. The laws in India provide exception, it says that a petition can be filed within the jurisdiction of the courts of which the parties to the marriage last resided. In case of a foreign couple the residence of the NRI couple will be a foreign country. Whether the divorce is to be filed in India or abroad?
Seeking divorce in India
Filing for a divorce in India is comparatively easier and smoother. The courts in India after receiving a divorce petition from an NRI for mutual consent divorce and would record the statements of both the parties.
Appearance before the court: For this, if one party is not able to appear then in that case a power of attorney can be accorded to any person. This person should preferably be a family member. Once the statements of the individuals filing for divorce are recorded, the first motion is granted.
First Motion: The court passes the first motion and after that, the parties to the marriage have to wait for 6 months (cooling-off period) before filing the second motion. The second motion has to be submitted 18 months after passing the first motion.
Second Motion and Final Hearing: Once the parties have decided to go ahead with the second motion then they can go ahead with the final hearing before the court. Under a final hearing, the parties have to state their case, and the court records the statements of the parties on oath.
Divorce Decree: Once the couple mentions that there exists no issue between them about alimony, child custody, sharing in the property, etc. the mutual divorce process reaches the final stage. If satisfied the Family Court passes a decree of divorce declaring that the marriage is dissolved.
Waiver of cooling-off period
The Supreme Court in the case Amardeep Singh v. Harveen Kaur on 12 September, 2017, has held that Section 13B(2) is a directory and not mandatory. If any court dealing with a case of mutual divorce is satisfied that an appropriate case has been made out for waiving the cooling-off period, then it may do so subject to the following conditions:
- The statutory period of six months provisioned u/s 13B(2), along with the statutory period of one year mentioned u/s 13B(1) of separation of parties is over before the first motion itself;
- All efforts for reconciliation including the efforts in terms of Order XXXIIA Rule 3 of the Civil Procedure Code, Section 23(2) of the Act; Section 9 of the Family Courts Act for reconciliation of the parties have failed;
- The parties have put in genuine efforts to settle their differences about alimony, custody of the child or any other pending issues between the parties;
- The waiting period will only prolong their agony;
- The waiver application can be filed one week after the first motion giving reasons for the prayer for waiv
Reorganization of Indian Divorce Decree in the Foreign Country
Divorce decrees passed by the courts in India are valid in other countries similarly like marriages that are registered in India are valid in foreign countries. A Foreign Court would not question if the divorce decree is passed by an Indian court married in India as invalid.
The divorce decree needs to be recognized in the foreign country if the couple jointly owns property in that country. Such recognition is gained by filing a petition for recognition in such country in accordance with their laws. This is the last legal requirement for finalizing a divorce in case the divorcing individuals are non-resident Indians.
Conclusion
Filing for a mutual divorce in India, where the couple is residing abroad is an easier and smoother option. The marriage between the couple should be conducted in India and both the parties should be willing to seek divorce with each other are the two prime requisites for filing a mutual divorce petition in India.
