In this blog post, Khadija Khalil, from Pravin Gandhi College of Law, pursuing Diploma in Entrepreneurship Administration and business law course by NUJS, writes how can an NRI file for Mutual Consent Divorce.

Mutual Consent Divorce

Divorce is the complete breakdown of the institution of marriage. In India, divorce is something which is heavily frowned upon by religion as well as society. The social stigma involved with getting a divorce adds to the emotional stress of a person going through such a life changing event.

When both parties in a marriage agree to a divorce, it is called a mutual consent divorce.[1] Any married couple looking to file a divorce petition must adhere to the jurisdiction of the courts. Jurisdiction means the power of the court to grant a valid decree. Therefore, the court must have the jurisdiction to take up the matter beforehand otherwise, any decree granted by them will be invalid.

In matters of divorce, the jurisdiction depends on the religion under which the couple got married.

For example,

• If the couple is Hindu by religion then, the Hindu Marriage Act, 1955 will apply for divorce.
• If the couple is Muslim, then the Dissolution of Muslim Marriages Act, 1939 will apply.
• Similarly, for Christian, Parsi, and inter-religion marriages, different statutes apply.

Each Act differs slightly in the jurisdiction but, the few points which remain constant throughout the different statutes are:

1. The area where the marriage took place (was solemnized and/or registered).
2. The area where the married couple last stayed together.
3. The area where the other party is residing at the time of filing a petition for divorce.

Through the above, you will arrive at the family court of the area where you can file the joint petition for divorce. This court has the rightful jurisdiction to hear the matter.

Bonus Read: How to file for divorce through Mutual Consent?

What if the Couple is 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 Indian law provides for this exception of filing a divorce in another country.

It says that a petition can be filed within the jurisdiction of the courts of which the parties to the marriage last resided.

The residence or the matrimonial home of the NRI couple will be a foreign country. Thus, the couple can file for a divorce petition either in India or in such foreign country.

Filing for Divorce in a Foreign Country

When a couple decides to file a divorce petition in a foreign country, they do so on the basis of the power given to them under the Indian law. The petition for mutual consent divorce will have to be made in accordance with the laws of the country in which the couple resides. The Indian laws will not apply to the foreign courts. The foreign court will then pass a decree recognizing the divorce in accordance with their procedure.

Will this Foreign Decree be Recognized by the Indian Courts?

The Indian courts do not recognize the decree passed by the foreign courts if the decree so made is inconclusive under Section 13 of the Civil Procedure Code, 1908.[2]

This means that the decree:

1. Is not pronounced by a Court of competent jurisdiction.
2. Has not been given on the merits of the case.
3. Appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable.
4.  Was obtained opposed to the principles of natural justice.
5. Has been obtained by fraud.
6. Sustains a claim founded on a breach of any law in force in India.

A decree passed by a foreign court may be challenged and declared null and void in an Indian court on the basis of the above conditions.

Under a landmark judgment[3], the Supreme Court held that the divorce obtained from a foreign court was invalid if the provisions of the Indian divorce laws are not followed.

The Indian courts can refuse to validate a decree given by the foreign courts if the Indian law does not provide for such foreign court to have jurisdiction.

If a foreign court has the jurisdiction and the decree has complied with the conditions, then the foreign decree is held valid and conclusive by the Indian courts.

Such a decree must also adjudicate on matters with regard to the property of both the individuals in the foreign country as well as in India, keeping in forefront the law applicable to the NRIs.

Other matters like child custody, alimony (if any), and so on and so forth must also be adjudicated in accordance.

However, once they come under the jurisdiction of the foreign courts, the couple can submit themselves to the family or divorce laws of that country. In Y Narasimha Rao & Ors. vs Y Venkata Lakshmi & Anr.[4], the respondent had not submitted to the jurisdiction of the foreign court.

The Supreme Court held that –

‘The Jurisdiction assumed by the foreign court as well as the ground on which the relief is granted must be in accordance with the matrimonial law under which the parties are married’.

The Exceptions to this Rule may be as Follows –

• Where the matrimonial action is filed in the forum where the respondent is domiciled habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married.

• Where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married.

• Where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.’

Had such consent been acquired, the foreign decree would have been a valid one. Thus, a Christian couple submitting to UAE’s jurisdiction and Muslim personal law for getting a mutual consent divorce in Dubai is valid and will be upheld by the Indian family courts.

After the decree for mutual consent divorce is obtained, the parties need to submit a notice along with the divorce certification to the Marriage Officer in India compulsorily. This will allow the NRIs to make use of the foreign decree as a valid one. They can then partition the property in India in accordance with the decree and remarry.

Filing for Divorce in India

Filing a divorce petition in India is a much smoother and safer route. The courts will receive a petition from an NRI for mutual consent divorce and the statements of both individuals will be recorded.

For purposes of appearance in court proceedings, if one party is unable to come, 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.

After the first motion has been granted, a period of 6 months is allotted as an interim period for the individuals to rethink their consent for the divorce. In this intervening time, either party can withdraw their consent. If neither party withdraws consent, then comes the second motion stage where the individuals have to be present to confirm their consent. The divorce is granted after this.

In the stage of second motion, both parties have to be present to confirm their consent by recording their statements in the court. Here, the physical presence of the parties is compulsory unlike in the first motion stage where a power of attorney could be granted.

The period of 6 months can be extended to 18 months from the date of first motion being granted. The courts have allowed for some amount of flexibility to be granted in this regard. Thus, an NRI can assign his consent and his presence between a period of 6 months to 18 months to acquire the final decree for mutual consent divorce by the courts.

Will this Indian Decree be Recognized by the Foreign Country?

It is important to keep in mind that divorce decrees passed by Indian courts are valid in other countries just like marriages that are registered in India are valid in foreign countries. Basically, no foreign court is going to question if the decree passed by an Indian court on a matter of divorce of a couple married in India is 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

After analyzing how an NRI couple can acquire a mutual consent divorce in a foreign country and in India, it can be seen that both sides have their advantages and disadvantages. Therefore, the decision of where to file a mutual consent divorce petition must be carefully perused by both parties beforehand. It should also be agreed upon mutually to ensure that the process is completed quickly and is not dragged around.

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References –

[1]     https://mylegalwork.com/guides/mutual-consent-divorce
[2]     Section 13 of Civil Procedure Code, 1908. http://www.vakilno1.com/bareacts/laws/civil-procedure-code-1908.html#13_When_foreign_judgment_not_conclusive
[3]     1991 SCR (2) 821
[4]     Ibid.