The article is written by Milind Rajratnam, from Dr Ram Manohar Lohiya National Law University, Lucknow.

Introduction

The institution of marriage gives rise to obligations, conjugal relations and certain rights between the spouses and this is the reason why law seeks the discharge of those marital obligations. In India, conjugal right is believed to be inherent in the very institution of marriage and not a mere creation of statute.

But in cases where foreign element, i.e. Private International Law, is involved, then for the purpose of resolution of Conflict of laws, the Courts resort to the Principles of Comity or Courtesy and in some cases, the Courts also use the Principle of reciprocity.

Till date, there is no specific and cogent legislation in India with regards to NRI marriages and there is an urgent need of legislative intervention in this matter as delivering Justice to all by way of legislation is far more satisfactory way of dispensing Justice, than delivering Justice on a case by case basis.

This article will be analyzing the existing measures through which the Indian Courts deal with NRI marriages and will also be pointing out the loopholes present in them.

Marriage and Divorce

The basic belief relating to marriage is that it is a sanctified union which joins two individuals for life. Divorce is a serious issue which devastates the interest of the parties involved and therefore the courts should make every attempt to save the marriage and should insist on the performance of marital obligations.

Sharing of common life, including all the happiness and misery associated with it, is the essence of marriage. Living together is a symbol of sharing such aspects of marriage, while living apart indicates disruption of the essence of marriage and if this disruption goes on, then it has the tendency of causing breakdown of marriage.

The institution of marriage gives rise to obligations, conjugal relations and certain rights to both the spouses and therefore the law seeks the discharge of these marital obligations. Withdrawal from state of things is considered to be violation of marital obligations and duties[i]. Marital obligations are safeguarded and protected because they are considered to be the foundation of a family. In every family system, divorce is discouraged to a large extent and is permitted only in grave circumstances and that too in a manner specified by law.

The Supreme Court in Bipin Chander Jai Singh Bhai Shah v Prabhawati[ii]observed that withdrawal from a state of things, i.e. “the home”, is desertion. For desertion to be a ground of Divorce under Section 13(1)(ib) of the Hindu Marriage Act, 1955, two conditions need to be fulfilled. Firstly, there has to be intention to bring the cohabitation to an end permanently (animus deserendi) and secondly, there must be factum of separation. Also, with regard to the deserted spouse, another two essential conditions, i.e. absence of consent and absence of conduct giving reasonable cause to the other spouse to form intention to desert the matrimonial home, has to be proved by the complainant[iii].

Justice Chandrachud in N.G. Dastane v S. Dastane[iv] said that the court has to take into consideration the particular couple that has approached the court, and not the ideal couple because ideal couple will probably not approach the court for the resolution of differences between them. Lord MacDermott in Preston Jones v. Preston Jones[v]observed that, while dealing with cases involving the issue of divorce, there should be strict enquiry conducted and the marriage bond should not be left aside lightly as it involves the status of parties. This observation is still relevant in Indian context and therefore every possible efforts should be made in order to save the marriage and bring about reconciliation between the parties.

Matrimonial Problems faced as a result of NRI Marriages

In India, over the years, the issue of NRI marriages has gained substantial importance by virtue of it assuming alarming dimension due to the fraudulent trappings of Indian Women by the People of Indian Origin (PIOs) and Non-Resident Indians (NRIs). Since there is not any specific and cogent legislation with regard to NRI marriages in India, there is an urgent need of legislative intervention.

Matrimonial disputes are already one of the most complex areas for legal intervention and it becomes more complex when one of the parties of the marriage belong to an area beyond the borders of India. Such marriages then enter into a maze where there is a conflict of laws of different nations.

There are some typical issues that arise in NRI marriages which are pointed out by the National Council for Women after conducting research on actual cases in different nations. Some of them are:

• Abandonment of women by her husband after being taken to the foreign country.
• Brutal assault, battering and abuse of women, both mentally and physically, by the husband and his family members.
• Capturing and holding of the women in the foreign nation for the sake of huge sum of money as dowry.
• Giving false information relating to the job, salary and property to the family members of the women before marriage, and later conning the women into marriage.
• Hiding of the status of pre-existing marriage by the husband.
• Husband who has obtained divorce from women through an ex-parte decree by making false representations without her knowledge in other legal systems.
• Women encountering jurisdictional obstacles in Indian Courts due to unavailability of cogent legislation in this regard[vi].

Current legal status on disputes arising out of NRI Marriages

In order to deal with the foreign decrees of matrimonial matters, there is a need of well-developed Private International Law body that has the power of recognition, reorganization and solemnization of marriages alongwith checking the legitimacy of a foreign decree of divorce. In India, the rules of Private International Law is either scattered in different legislations, i.e. Special Marriage Act, Foreign Marriage Act, etc., or have been evolved by the courts. But these are not cogent enough to deal with all sort of issues that arise in a NRI marriage as they are deeply based on the English Rule of Private International Law.

Although the courts in India have repeatedly appealed to the legislature for enacting a law that seeks to prevent the injustices that are caused to the Indian wives of those NRIs who obtain an ex parte decree of divorce without the knowledge of their wives, from courts of foreign jurisdiction. There is also a need for such a provision in that enacted law that gives recognition and solemnization of foreign marriages here.

In the case of Y. Narsimha Rao v Y. Venkata Lakshmi[vii], the SC held that jurisdiction assumed as well as the grounds of decision made by the foreign court should be in consonance with the matrimonial laws under which the parties are married.

Just like the European Nations did under the Brussels II framework on Regulation of Recognition of Foreign Orders, India should also enter into bilateral/ multilateral agreements with other nations for purpose of recognition of matrimonial decrees given in courts of foreign jurisdiction.

The Foreign Marriage Act of 1969

In order to fulfill the assurance of a law that will deal with marriages in which one of the party is a foreigner, the Parliament came up with the Foreign Marriage Act in the year 1969[viii], which contained provisions for marriages of Indians who are residing outside the territories of India, or one of the parties to the marriage is a foreigner. It has borrowed most of the provisions from the Foreign Marriage Act, 1892[ix] of Britain and Marriage Act, 1961[x] of Australia.

Although the Foreign Marriage Act was an improvement in this regard, but it doesn’t contain any provision which explicitly deals with divorce, nullity of marriage and other matrimonial reliefs. Also, it has certain loopholes that are critically analysed hereafter:

1. Not overriding: The provisions of this act are additional provisions and do not have overriding effect over the existing laws which means that it is depended upon the discretion of the person who is marrying a foreigner or is marrying in a foreign nation, to decide whether they want their marriage to be solemnized under this Act or not.
2. Incomplete Act: This Act can be said to be an incomplete Act as it deals with only three factors relating to foreign marriages, i.e. solemnization of marriage, process of solemnization and the registration of marriage. Apart from these three, there is no provision dealing with the issue of divorce, nullity of marriage, maintainance, citizenship of child born out of such marriages, etc.
3. Inadequate Provisions for Penalty: By virtue of Section 19[xi], 20[xii] and 21[xiii] of the Act, it is evident that the punishments and penalties, prescribed under the Act applies only to the Indian party of such foreign marriages and this has the tendency of limiting the scope of this Act as in cases like that of desertion, where one of the party files a suit for desertion and the other challenges the said suit on the ground of marriage not to be subjected to Indian laws, then anomaly will be created by virtue of Hindu Marriage Act being only applicable when both the parties are Hindu. So, in such cases, the foreign party will easily evade the punishment and only the Indian party will be subjected to the penal provisions of this act.
4. Use of ‘may’ in Section 4 and 17 of the Act: The use of word ‘may’ in Section 4[xiv] and 17[xv] makes this Act an enabling legislation. This act does not contain provision that make the solemnization and registration of marriage, a compulsion. In order to make it a compulsion, the act should have contained the word ‘shall’ or ‘must’ in the place of ‘may’.

Suggestions

In India, the laws that can deal with the issues arising in NRI marriages are scattered in different legislations which makes the amendment in so many legislations a difficult and time-consuming task, therefore it is proposed that there should be single legislation dealing with all the issues arising out of NRI marriages which contain the following frameworks:

• It should make the registration of NRI marriages compulsory, notwithstanding any existing provision under any law.
• The NRI party should be required to compulsorily file an affidavit stating that he is not already married or divorced, before the solemnization of marriage.
• There must also be amendment in the Indian Passport Act to provide a separate page in the passport containing details regarding the marital status, photograph of spouse, etc.
• The proposed law should also provide that the marriage between an Indian and an NRI will only be legitimate within India if the marriage takes place under this Act.
• In order to protect the wife from ex parte decree that is usually obtained by the NRI husband in case foreign marriage, the proposed law should specifically state that such an ex parte decree that is obtained without the knowledge or consent of the wife shall not be enforceable in India.
• The proposed law should also provide for adoption and child custody of child born out of such NRI marriages.
• There should be recognition of the property of the married couple as joint property by law and it should be divided between both of them in accordance with the provision of law and not according to the whims and fancies of foreign courts.
• The proposed law should also provide for bilateral co-operation between the Indian government and the overseas authority with regard to the aggrieved women abroad.

Conclusion

To think of “Uniform Private International Law Rules” is like a dream which will not come true and therefore there is a need to resort to more feasible options such as bilateral agreement between nations on issues arising out of matrimony, like Britain has done. To resolve the issue of conflict of laws in matrimony, the British Parliament came up with the Foreign Judgments (Reciprocal Enforcement) Act, 1933[xvi]. Section 1 of the said Act talks about bilateral agreements between nations for the recognition of foreign marriages[xvii].

Also, as already been discussed about the complexities that the Indian Courts have to face in the absence of a cogent legislation with regard to NRI marriages, there is an urgent need of the Parliament to take cognizance of the matter and enact a legislation pertaining to it.

References

[i] Bipin Chander Jai Singh Bhai Shah v Prabhawati, AIR 1957 SC 176.

[ii] Id.

[iii] Mulla Hindu Law, 20^th ed., India.

[iv] N.G. Dastane v S. Dastane, AIR 1975 SC 1534.

[v] Preston Jones v. Preston Jones,[1951] A.C. 391, 417.

[vi] http://ncw.nic.in/PDFFiles/Book-NRI_Marriage.pdf; last visited on March 30, 2020.

[vii] Y. Narsimha Rao v Y. Venkata Lakshmi,1991 SCC (3) 451.

[viii] The Foreign Marriage Act, 1969.

[ix] Foreign Marriage Act 1892, Chapter 23 (56 & 56 Vict.).

[x] Marriage Act 1961, No. 12, 1961.

[xi] Section 19, The Foreign Marriage Act, 1969.

[xii] Section 20, The Foreign Marriage Act, 1969.

[xiii] Section 21, The Foreign Marriage Act, 1969.

[xiv] Section 4, The Foreign Marriage Act, 1969.

[xv] Section 17, The Foreign Marriage Act, 1969.

[xvi] Foreign Judgments (Reciprocal. Enforcement) Act, 1933. [23 GEO. 5. CH. 13.]

[xvii] Section 1, Foreign Judgments (Reciprocal. Enforcement) Act, 1933. [23 GEO. 5. CH. 13.]

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