Posted by Ananya Krishnan
With increasing transnational migration, the trend of Indian women entering into marriages with Indian men residing in foreign countries, rises with it. Indian families often feel there is a certain prestige behind such NRI marriages because the prospective spouse, living and working in another country, sells to the bride’s family an ideal lifestyle. Having their income in foreign currency, creates the guise that the grooms are more financially secure. Eager to marry their daughters into such households, certain red flags that are observed in traditional matchmaking are often overlooked.
Upon arriving in where their husband lives, the wife is abandoned in foreign environments, divorced either without their knowledge or their consent, and deserted without an understanding of the local legal system. In some cases, the men are discovered to be either already married or living with another woman. Some wives never even reach that stage. Some of the men get married in India, promise to take their wife abroad with them, but upon receipt of a dowry, leave her stranded. The Ministry of External Affairs informed Parliament that 4,698 complaints of Indian women being deserted by their NRI husbands were received and addressed between 2016 and 2019.
In India, NRI marriages and their validity is governed by the personal laws under which the marriage took place. In most foreign countries on the other hand, Private International law rules are applied. India doesn’t have strong Private International law. Currently, four conventions from The Hague Conference on Private International Law have been ratified. However, we are yet to ratify key conventions such as the Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil Law or Commercial Matters (which provides remedies against ex-parte divorces), the Convention On Celebration And Recognition Of Validity Of Marriage, 1978 (which denies recognition to bigamous marriages entered into by NRI husbands in their country of residence), and the Conventions on maintenance obligations and child support.
The Law Commission of India noted the issues that arise by virtue of a conflict between private international laws and national laws. The principal challenge for NRI wives however, remains the jurisdiction – where the spouses reside in different countries, any judicial decisions passed by a foreign court, more or less becomes unenforceable.
Since there exists no separate provision for the recognition of foreign matrimonial judgments or other foreign decisions in related matters in any family law legislations, the recourse is to Section 13 of the Code of Civil Procedure, 1908 (CPC). The legal framework of the country is currently dependent on this section to provide relief to abandoned women. Reiterating the importance of this section, the Supreme Court explained that,
“…only that court will be a court of competent jurisdiction which the Act or the law under which the parties are married recognises as a court of competent jurisdiction to entertain the matrimonial dispute. Any other court should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court…”
This essentially means the parties would have to establish that the decree obtained was with the consent of both the parties, for it to be valid. It allows the Supreme Court to refuse to blindly enforce judgments passed by different countries in family matters.
An exception to this is however “Reciprocating Territories”, as defined in Section 44A of the CPC. India recognises the following countries as reciprocating territories – United Arab Emirates, United Kingdom, Fiji, Singapore, Malaysia, Trinidad & Tobago, New Zealand, Hong Kong, Papua & New Guinea and Bangladesh. Thus, if a women is married to an NRI whose habitual residence is in any of the aforementioned countries, judgments passed by a court in these territories are enforceable in India and equivalent to a judgment passed by an Indian court.
A Proposed Legislation
There is no central law requiring the registration of marriages of NRIs solemnised outside India. The law commission recommended some composite legislation be enacted to deal with the problems mentioned above. The Registration of Marriage of Non-Resident Indian Bill, 2019 was introduced to create more accountability and offer more protection against exploitation by implementing the following:
- Registration of marriages: Every NRI who marries a citizen of India must get his marriage registered in India within thirty days.
- An amendment to the Passport Act, 1967 which allows impounding the passport in case of failure to fulfill the above.
- Issuing summons and warrant to the NRI husbands residing abroad.
- Allowing the court to order attachment of the property belonging to the proclaimed offender.
However, the Bill had many issues such as the fact that the very definition of ‘NRI’ was ambiguous, making it unclear who the Bill would apply to (you can read more about that here.). Consequently, it is still under review.
Suggestions And Conclusion
Some authors recommend as a possible safeguard that any such marriage that occurs between an NRI and an Indian woman should not be annulled by a foreign court if the marriage took place in India. Unfortunately, jurisdictional conflict is a problem that cannot be resolved by unilateral ruling. Which is why the Standing Committee on Empowerment of Women in its report to the Lok Sabha suggested that recourse to private international law, may be a desirable solution for India.
The Supreme Court of India, on the other hand, felt that the solution to reducing the amount of deserted brides in the country, was by making marriage registration compulsory. The Law commission of India suggested parallel additions to be made in other personal laws as well, specific to maintenance and alimony of spouses, child custody and child support and also settlement of matrimonial property, when one party is an NRI in the marriage.
However, it is vital that not only the matrimonial laws regarding marriages with non-resident Indians be changed, but also awareness in the family gets created. In the very first stage itself, the families should be vigilant and ensure they check all the information of the potential groom. The government has been trying to support women of Indian origin who have been deserted by their overseas Indian spouses fraudulently, through various schemes, but these measures have not been adequate enough. The Bill when introduced, provided hope that the holes in the current legal framework will be filled, but it itself has many flaws. We cannot be entirely reliant on one section of the CPC to alleviate the plight of these women. Unless these grievances are addressed, and an active solution is formed, the exploitation of these NRI wives will continue and the men would continue to escape accountability of their actions.
Ananya Krishnan is a 4th-year law student from ILS Law College, Pune. She is an intersectional feminist, a collector of quotes, and a connoisseur of ramen. Her areas of interest are international law and human rights. When she is not wasting her time on the latest Buzzfeed quiz, you’ll find her writing and researching about gender studies. She can be found on Linkedin.
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