Consentia on Multidisciplinary Research

ISSUES RELATING TO CHILD CUSTODY, ADOPTION AND MAINTENANCE

“Marriage is really tough because you have to deal with feelings … and lawyers.”                                                                                                           –Richard Pryor

 This quote exemplifies the bitter truth behind many broken marriages and the evil they fight in, herein we would be extensively dealing with issues relating to marriage and children with the ambit of foreign or rather NRI marriages.

Since times we have all known, we Indians have a kind of fascination and hopes attached to the words like ‘foreign’ , ‘NRIs’ etc. To accomplish the same desire of fulfilling their dreams of settling abroad getting married was seen as one of the best and convenient options.

But little did everyone know about the troubles and issues such a sacred relation would bring into the lives of many. In India from Kashmir down up to the south we are trying the curb the trouble related to NRI marriages and the evil they bring with them.

When the breakdown such marriages come up it brings in many aspects to be dealt with like child custody and maintenance for the couple. Maintenance being one of the main issues, many girls married from India find it difficult to get the same mainly because of the unawareness related to the procedure and about their rights.  The applicability of Indian laws and the law of land they live in all have to be taken into consideration.  Though India has set in their own rules and guidelines for the same, the execution is something we have to work upon. 

The questions and issues arising in child custody is more often now of a vague perspective, they appear to be baggage in the split between the couple rather than a true fight for their own blood.

On the other hand we can have a different perspective of child custody through the recent Norway case, where both the parents jointly had to fight for the custody of their two children.  Eventually the custody was given to the grandparents; this case brought in light how the foreign land governs situations in a different perspective than that of India, and how Indian couple have fallen prey for the same.

The paper in this aspect would deal with child custody in different perspectives, situations and various aspects. Relating them with actual procedures, difficulties and real life problems faced by couple and single parents.

“Adoption is not about finding children for families, it’s about finding families for children”
                                                                                           -Joyce Maguire Pavao        

 

The above mentioned quote is a true because by means of adoption it is the children who get new family, parents to take care of them. Adoption is a very beautiful procedure it is a way to give a new life to children by adopting them. By adoption children gets a family though they are not biologically related but they are related by love. Adoption is not an easy task there is a procedure which is to be followed, some rules, documentation and certain conditions for the NRI adopting couple this is for the safety of the child. Inter-country adoption can be a viable choice than domestic adoption for many families, especially those who want to adopt a healthy infant. However, the process can be complex and expensive. There is a procedure by which a couple can adopt a child legally, the procedure may be lengthy, complex and expensive but the outcome of that will give life to both children and the parent adopting them. The procedure of adopting a child in India by an NRI couple is more complicated and length than that by a couple living in India, an NRI may face more legal issues than that by an Indian citizen. So adoption by NRI couple in India is not an easy job.

Recently the newspapers, channels have been throwing a lot of light and attention matters relating to NRI and foreign marriages and the issues that come up with the same.

This paper would mainly deal with how are all the 3 aspects of child custody , adoption and maintenance dealt in India with respect to NRI marriages and foreign marriages interconnecting them with real life cases. Primary issues dealt by the women their rights and why are they unable to reach the same.

ISSUES RELATING TO CHILD CUSTODY, ADOPTION AND MAINTENANCE

 

ISSUES RELATING TO ADOPTION

Adoption is about making a lifelong commitment to provide a loving family home for a child or children who,  for whatever reason, cannot return to their birth home.[1]

As this clearly states the reason and ultimate aim behind adoption, there is no doubt that you  receive love and care only when  you spread it so be it your own child or any cute little child out there. Adoption a beautiful process in itself is recognized all over the world. But with it comes somes responsibilities, restrictions, rules to be followed and moreover an promise to give the child a secure future and life.

In India CARA (central adoption registration agency) takes an charge over the procedure to be followed in domestic as well as inter county adoption. They make sure that every child is adopted only after the prescribed procedure is followed by keeping the check on the same through the various regional agencies they have. It enables a parent-child relationship to be established between persons not biologically related. It is defined as a process by which people take children not born to them and raises them as a member of their family. Intercountry adoption may be a more viable choice than domestic adoption for many families, especially those who want to adopt a healthy infant. However, the process can be complex and expensive.

Hague Convention On Intercountry Adoption

The hague convention of 1993 set out conventions which need to be explicitly followed during inter country adoption. The basic paramount agenda of the convention was to safeguard the interests of the children being adopted and not letting any kind of child trafficking, abuse etc through the medium of inter country adoption.

The Convention adoption process generally involves six primary steps.

  1. Choose an Accredited Adoption Service Provider
  2. Apply to be Found Eligible to Adopt
  3. Be Referred for a Child
  4. Apply for the Child to be Found Eligible to Immigrate
  5. Adopt the Child
  6. Obtain an Immigrant Visa for the Child

These are the basic adoption procedure followed by many countries including India, but the documentation and verification process in sync with the legal procedure of the concerned state. But the basic structure is the same. Checking in the eligibility of the adoptive parents etc.

The principle features stated in the convention include

1. The best interests of the child are paramount,

2. Subsidiary principle,

3. Safeguards to protect children from abduction, sale and trafficking,

4. Co-operation between States and within States,

5. Automatic recognition of adoption decisions,

6. Competent authorities, Central Authorities and Accredited Bodies.

 These features most of the times arise up as issues for any adoption taking place increasing the difficulties relating to the same.

Inter Country Adoption In India

Firstly, each and every effort must be made that the child is opted by any in-country adoption by any domestic couple or family. After the child has rejected 3 times from such a procedure only then the child is placed in for inter-country adoption. Since its always better for the welfare of the child to grow in a family environment whether in foreign rather than grooming up in an orphanage or an institution where it will have no family life. And among the present socio economic conditions prevalent in the country it will be quite possible that the child may fall prey to a life of destitute, half-hunger, suffering from malnutrition and illness.

In India, an Indian, Non Resident Indian (NRI), or a foreign citizen may adopt a child. There are specific guidelines and documentation for each group of prospective adoptive parents. A single female or a married couple can adopt a child. In India, a single male is usually not eligible to be an adoptive parent.

The Supreme Court of India in the case Laxmi Kant Pandey v. Union of India[2] clearly set out the guidelines to be followed in the matter of inter-country adoption. It was in this case where in the supreme court urged for an agency like CARA in India.

An NRI couple from Houston were trying to adopt a child from India after having failed have one of their own in eight long years of marriage. They approached agencies in India who promised to get the work done but the same wasn’t accomplished even after two long years. Adoption is India is governed by old laws such as The Guardians and Wards Act, 1890 (GWA) and the Hindu Adoption and Maintenance Act, 1956 (HAMA), which makes it a difficult and complicated task in India.

For accomplishing an inter country adoption in India there comes a tremendous amounts of regulatory road blocks and legal hassles since most are not aware of the exact documentation and procedure that is required for the job.

The common problems NRI couples have to face are:

  1. The 2 laws mentioned above do not permit Non Hindus to become adoptive parents and they can only be entrusted as the guardians of the children they wish to look after.
  2. Even Hindu NRIs have to make an adoption deed as specified in Section 16 of HAMA and have to obtain additional ‘guardianship orders’ from a ‘guardian judge’ under the Hindu Minority and Guardianship Act, 1956 (HMGA) without which immigration is not permitted.
  3. The 80:20 adoption ratio criteria stipulated by the government which provides preference for in country adoption at 80% against only 20% to NRIs and PIOs.
  4. A NRI can apply for a child only when the child is offered internationally after being rejected thrice for domestic adoption

 

 

The Legal Road Blocks

Many NRI couples or PIO’s face a lot legal hurdles while adopting a child from India. The Guardians and Wards Act, 1890(GWA), a 116 year old Indian law, plays a spoilsport for the 12 million orphaned children in India who need parents by not allowing Muslims, Christians, Jews and Parsis to become a child’s adoptive parents. The intervention of personal laws in the process of adoption makes it very difficult for the non-hindus, since the more liberal Hindu Adoption and Maintenance Act, 1956 (HAMA) does not allow non-hindus to adopt a hindu child. The ultimate result is that non-hindus and in some pertinent cases even the hindus are not given the recognition of adoptive parents but only that of guardians.

It becomes difficult when they approach their respective embassies for visa , wherein they encounter a huge disappointment. Many of the countries do not just recognize the adoption deed under section 16 of the HAMA, the foreign rules stipulate that the adoptive parents have to obtain ‘guardianship orders’ from ‘guardian judge’ under the Hindu Minority and Guardianship Act,1956(HMGA) for hindus and a similar order under the GWA for non-hindus. The fact that a valid adoption under HAMA  is not acceptable for immigration purposes, unless supported by a guardianship order either under GWA or HMGA, is somewhat of a legal paradox.

In the absence of a uniform adoption Law, Muslims, Christians, Jews, Parsis can adopt children using the Guardians and Wards Act 1890. However, it provides only the guardianship status. Since the child has the status of a ward under the Act, s/he finds no legal protection in terms of enjoying legal rights over her/his parent’s property. It is left to the parent/guardian to will his property to the child, or as is the case with Muslims, gift their ward a section of their property during their lifetime as Muslim personal law does not allow a person to will away his property.In order to integrate provisions of the UNCRC and protect the fundamental right to equality of children as provided under the Article 14 of the Constitution of India, there is a need for amendment in the Adoption Law.

Guardians and Wards Act, 1890,in India for the purpose of the inter-country adoption the provisions of Guardians and Wards Act,1890 are utilized. The district court appoints a guardian under section 7 of the Act on being satisfied that the same is being done for the welfare of the minor. In the case of Jayantilal L. Shah And Anr. Etc vs Asha T. Shah And Anr[3], where in the court was thoroughly confident about giving the custody of the children to Norwegian couple stating them as guardians under the said law and later adopting the child under the Norwegian law.

Article 39 and 44 of the Indian constitution, calls for the protection of childen and youth from material and moral exploitation. In an effort to evolve a uniform civil code, the government of india introduced an Adoption of children’s Bill, 1972. But the Muslim community opposed it. Keeping in mind the large scale child trafficking in the world, the rights of the child, 1989 conventtion requires that inter-country adoption will receive only the last priority while searching for the foster home. Like any other types of adoption, Inter-country adoption can be expensive, time consuming and uncertain.

Reality Check On Issues Relating To Adoption

In an pertinent case which would shun the conscious of people around the world and the repercussions adoption has later in the life of an individual was witnessed in the case of Kairi Abha Shepherd. She was adopted by an American single mother when she was months old from Kolkata, India. She lost her adoptive mother when she was 8 years old. But stateless at 17 after being disenfranchised and disowned by both her adopted country and the country of her birth — how much more cruel can the world be, except of course to punish her with debilitating multiple sclerosis when she is fighting a pitiless legal system. In a heart-breaking case that reveals the remorseless nature of governments, bureaucracies, and the judicial system, when she was only three months old by an American single mother from Utah, has been ordered to be deported to India, a country she has never lived in or visited. This is a typical case where an issue relating to the citizenship of th child is in question, not completed immigration facility so on and forth as made the girl a global orphan.

In May 2005, the CBI Anti-Corruption Bureau in Tamil Nadu busted a child adoption racket, is trying to contact the foreign foster parents who adopted the children with the help of an illegal agency in Chennai. The case had originated on the basis of complaints from parents about missing children. One of them, the child of Kathiravel and Nagamani, pavement-dwellers in Pulianthope, had been allegedly kidnapped and sold to a Dutch couple. Similarly, the four-year-old child of Sylvia, a woman from Otteri, was kidnapped from an auto and sold to a couple in Australia. Another couple from the city had lost their one-and-a-half-year old child, who was traced to the US. In September 2006, while expressing serious concern over human trafficking, a Division Bench of the Madras High Court had handed over the investigation of the three cases of illegal child adoption to the CBI in September 2006.

Human trafficking has been one of the major concerns in front of the nation from the aspect of child and women welfare, kidnapping young children and selling them to foreign nationals by way of adoption emerges as a black spot on the nation as whole.

An adoption case of a minor Indian girl by a Non-Resident Indian (NRI) couple has landed before the Gujarat high court as the local passport office has sought the court’s order before issuing an Indian passport to the girl. The case relates to a Gujarati-origin couple that had settled in Kenya a decade back. The couple recently adopted the 11-year-old daughter of their uncle residing in Gujarat. They also registered the adoption before the officer of the sub-registrar. But when they sought an Indian passport for the girl, the passport office instructed them to get an order from the competent court as the issue relates to adoption of Indian child by an NRI couple.
The issue, thus, landed before the high court which has sought clarification from the Ministry of External Affairs (MoEA) regarding rules in such cases.

ISSUES RELATING TO CHILD CUSTODY

Child custody under Indian scenario is mainly dealing about the care, control and protection of a minor child. The issue regarding child custody is more familiar in the family courts, wherein the issue crops up as a result of dissolution of marriage between the parents of the child or annulment of the marriage. Child custody can be broadly classified into two, firstly  physical custody and legal custody, wherein physical custody deals with aspects like where the child would live and how the child would share time with both parents. Legal custody dealing with the more important aspects like education, religion, and medical care to be made in for the child. Both the custodies can be either joint or sole custody of child. Generally custody is granted to both the parents or anyone of them and in rare cases to uncle, aunt, grandparents or any relative.

Since India being a secular country and most of the personal, family relations governed by the personal laws of respective religion, even child custody is governed under the same ambit of respective personal law. There is no uniform civil code as in for this matter as well. While relating the issue to nri marriage there comes into scene many other issues like registration of marriage, likes of the child, the development of the child, if they are separated by borders then deprived of the love and affection of the either parent.

Children are the worst sufferers in a broken marriage. In many a cases they become easy pawns in the hands of one of the spouses. In case of NRI marriages, there have been several instances where  one of the spouse was found to have abducted the child(ren) to India. Under such circumstances, the issue  becomes even more complicated since the child custody battle ensues in 2 countries and under 2 different set of laws. Such child abduction cases many a times are in gross violation of the orders of the local court in the foreign land.

Legal Perspective Of Child Custody

Hindu laws: The Hindu Minority and Guardianship Act 1956 (HMGA) and Guardians and Wards Act 1890 (GWA). These Acts are to be read together and implemented in the matter of child custody and appointment of guardian for the minor.

The Hindu Minority and Guardianship Act, 1956 contains a provision which lays down that custody of a child upon the age of 5 years should ordinarily be with the mother.

 There are no separate laws for Christians, they follow Indian divorce act. While for parsis they follow the Parsi Marriage And Divorce Act,1936

The Supreme Court of India in one of its most dynamic perception applied in with a case of NRI couple possessing US citizenship even their kid possessing the same. The issue of child custody propped in when, the wife along with her kid flew back to India. Moreover the California court had already their judgment relating to the custody of the child. The two main issue before the Supreme court was whether the case maintainable under the jurisdiction while it was already to decided by a California court, to which the court replied in affirmative stating that courts in this country are bound to determine the validity of such decrees and orders keeping in view the provisions of Section 13 of the Code of Criminal Procedure 1908 as amended by the Amendment Act of 1999 and 2002. And the second issue was itself of the custody, wherein court gave in the custody to the mother of the child and held that, court reiterated that in matters dealing with custodial rights, the interest of the minor should be paramount. The interest of the minor shall be better served if he continued in the custody of his mother, especially when the father has contracted a second marriage and did not appear to be keen for having actual custody of the minor.The court added that father should be allowed to talk through telephone or video conference, “which too shall not only be permitted but encouraged by the appellant.”

This case shows that the court gives in utmost importance to the welfare of a child and that the aggrieved must be answered and no matter where the NRI is settled. The court has exercised its power correctly and  under the appropriate provisions available to them under said issue.

In an yet another case, SC has brought a new hope for those women married to NRIs whose marriage has been completely broken. The court gave relief to a woman with charges of abduction of her own child. She was destitute by her husband in US, so she approached the Indian court, taking into account the trauma she faced and in the best possible interest of the child, the court gave in the custody to the mother. Woman  was a victim and she did not have money to fight her husband. The husband had been remarried. Then she thought it is better escaped to India. Mostly marital disputes the right to minor children custody is given to the mother due to she can nurture and brought up the child better than the father.

Normally, the court also allow on the occasionally to meet their children till they attain maturity and later on, Child can decide with whom he would like to stay with Mother or Father or independently.In this case, the SC was taking into consideration of humanitarian. The problems of NRI marriage dispute  is increasing, the supreme court verdict is surely helpful for NRI women.

Reality Check On Some Cases

 Child custody battles have become part of everyday lingo for the 25-million NRI populace. Ali, a British national, married Zeenat in 1987 at Hyderabad, and the couple had two sons in ‘88 and ‘91. They divorced in ‘97 and though Zeenat got custody of the boys she could not get them out of UK. But in ‘98 , she managed to get them to India. Ali found them in 2004, and a long legal proceeding in India later, met his children last year. All this while the boys lived a life in an alien country with no friends. And without their father.

In the case of Nirmaljit, a UK citizen, who married Gagandeep, a man from Punjab, in 1980. The couple had a son the following year in England, where they were based, before the almost inevitable divorce in ‘85. Nirmaljit got the custodial rights, but her ex-husband “abducted” the child and left England – against court ruling. After eight years of legal battle Nirmaljit traced her son in the US.

According to reports and statistics, “child abduction” – just what Gagandeep did – and child custody battles have become part of everyday lingo for the 25-million NRI populace. With different laws in force in different countries, it’s a nightmare of the worst order for the children, especially those “abducted” to India, as the legal eagles go about their business.

These real life cases only showcase the present scenario of child custody and how very badly is the young generation is affected by the same. Divided by borders, by hearts they just are left with divided love of their parents , care and attention.

MAINTENANCE

In India we do not have uniform civil code to govern the personal relations between humans. The concept of marriage their solemnization, registration and the after affects are all dealt by their personal laws in accordance to the faith and religion one follows. There is no uniformity in issues dealt like bigamy, divorce, conditions of marriage, void and voidable marriages and many more aspects of personal law. They are dealt separately according to the  provisions of the their personal law like the Hindu Marriage Act, 1955, Christian Law Of Marriage, Parsi Family Law, Mahomedan Law.

In Family Law maintenance is often used as a synonym for spousal support or alimony, and the term is in fact replacing alimony. Traditionally, alimony was solely the right of the wife to be supported by the husband. A periodic monetary sum paid by one spouse for the benefit of the other upon separation or the dissolution of marriage; also called Alimony or spousal support.

In a country like India where many a times the male member is considered as the soul earning member and the monetary responsibilities of wife are on the shoulder of the husband, the aspect of maintenance as a larger show case, where in the male member even after dissolution is made liable to maintain his wife till she remarries.

Maintenance is a provision to provide any person with the basic needs of life such as food shelter clothing, etc., to sustain a decent life.

Section 125[4] any person can claim maintenance, it is a general and a secular provision under which any person can claim for the maintenance irrespective of their religion, though muslim wife do not have the remedy under this section but it is available to other women of belonging from other religion.

Maintenance under Indian Personal laws

Section 125 as mentioned above is a general and a secular provisions marriages and divorce are a matter of personal laws. Different personal laws has given the definition of maintenance accordingly, they are as follows

Section 24 and 25[5] are the provisions that where a husband or a wife can seek interim maintenance during the pendency of the litigation process and where a wife or a husband can seek maintenance where one of the spouse in unable to maintain himself.

Section 36 and 37[6] are similar to the aforementioned provisions of the Hindu Marriage Act, 1955.

Sections 36 and 37[7] are applicable to the Christians, where a wife can claim maintenance during the pendency of the proceedings and court on being satisfied of the truth of the statements can direct the husband to pay maintenance and after the decree of dissolution of marriage is attained depending upon the financial status of the husband and wife the court will direct husband to pay maintenance to his wife.

Sections 39 and 40[8] are applicable to parsi’s wherein a husband or wife depending upon their circumstances if donot have individual means to survive then the court will direct the spouse to pay the necessary amount of the suit during the pendency of the proceedings, and where the decree of divorce is received the court will direct the spouse to pay maintenance.

The above mentioned provisions are for the divorce while under Hindu Adoption and Maintenance Act, 1956`any hindu can claim maintenance sections 18 till 28 provides from the maintenance can be claim by whom and under what circumstances.

Since maintenance is a right and so it is enforceable by a wife against her husband or vice- versa where he fails to maintain her or after the divorce. This right is available to wife according to their respective personal laws.

An NRI who has married in India under their respective personal laws will be governed by the personal law under which they have married, so the right to claim maintenance from the NRI husband will be same as that of a wife claiming maintenance from her husband belonging to the Indian Nationality.

Legal Issues

There may be many legal issues that may cast in between wherein the wife may not be able to maintenance from her NRI husband

  • The legal issue that may arise for getting a decree of divorce or maintenance will be of validity of the marriage, as a marriage may or may not has not been registered the law of the respected country will have no proof of the marriage then the wife may have a problem in getting maintenance. Though it India it is not necessary to register the marriage but some of the states have laws that make registration of marriage compulsory.

There is no uniform law in the India, though a judgement given by the Supreme Court of India as given in the case of seema vs. ashwini kumar[9] has made it compulsory to register a marriage. It is not a law though but the judgement has been laid down by the Apex Court in India and it is binding upon people and will be in effect until overruled or a new law is made.

In the aforementioned case the court held that it will be necessary to register marriages and also the court directed the states to make laws for registering of marriages. Followin

A marriage of a NRI is performed in India under their personal laws with all rites and customs and if in the state where their marriage took place does not have any law for registration of marriage the marriage though will be valid but a problem may arise when the couple shifts in the another country because a marriage though have been performed under the ritual, rites and customs of their personal laws but the marriage is not registered it will not be considered as a legal marriage in that respective country as there is no valid proof of the marriage that can be presented in the court to prove a valid marriage and due to non-availability of the proof the wife may have in getting maintenance from her husband in the foreign country because she is unable to proof and since the burden of proof lies on the wife to proof her marriage valid and if she fails to do so she may not be able to claim maintenance for her husband.

  • There may arise the problem of jurisdiction i.e. the divorce granted by the court of a foreign country may not be considered as valid in India and so the order to pay maintenance to the wife by the husband may also be considered as invalid.

In case of a NRI marriage there is a major issue of where to file a petition for getting relief for the matrimonial dispute because the marriages are solemnized in India under the respective Personal Law and after marriage the couple move to some other country. As per the provisions of the Personal Laws there can be many jurisdictions wherein a petition or a suit can be filed such as the place where the marriage was solemnized, or the matrimonial home or where the husband and wife has last resided together, or if the wife has been abandoned then the current place of the wife can be the jurisdiction for filing a petition or a suit to claim relief. However, many of the above mentioned jurisdictions may not be available to the NRI couple because their marriage was though solemnized in India but they don’t live there or the parties lives separately one in India and other in a foreign country either of them may file an ex-parte divorce. An ex-parte divorce happens when only one spouse participates in the court proceedings.  “In US, a state has the authority to determine the marital status of that person (who lives in that state) even if it does not have jurisdiction over the other spouse. Usually the spouse who doesn’t live in the county where the divorce was filed would not be subject to its jurisdiction unless a status exception is present. Many a times foreign courts grant ex-parte divorce decrees, with one party being unrepresented and thus unheard. Often the parties are unaware about these proceeding too. Due to various practical and financial difficulties; a party may not be able to contest the case. Generally, the wives deprived of maintenance and matrimonial property in these cases.”[10]

The ex-parte decision of the foreign court can be challenged in India and if the Supreme Court of India is convinced that the judgement given by the foreign court is wrong it may reverse the judgement.

In case of Veena Kalia v Jatinder N. Kalia[11] the NRI husband obtained ex parte divorce decree in Canada on ground not available to him in India. The Delhi High Court held that not only did such divorce decree not bar divorce petition by wife in India as it could not act as  res judicata, it also did not bar applications for maintenance filed by the wife in her divorce petition. The Court also looked into the circumstances in which the wife did not contest the husband’s divorce petition in Canada – that she had no means to contest the proceedings there and the decree of divorce was passed as she was unable to appear and contest the proceedings as the prohibitive cost of going the Canada and other circumstances disabled her and her husband took full advantage of that handicap. Also, the only ground on which the husband sought divorce was that there had been a permanent breakdown of the marriage, which was not a ground of divorce recognised under the Indian law.

So from the above case law it can be conferred that the judgement given by the foreign court can be challenged and in the above mentioned case the decree of divorce was granted on the ground that is not available in India so the wife still had the claim maintenance.

  • Another issue that arises is that whether the judgement given by the foreign court will be applicable in India i.e. can it be enforced in India as well. TheSection 13 of Code of Civil Procedure[12] deals with recognition of Foreign Judgments in India. The Supreme Court of India in many cases have held that the foreign judgement will be binding in India only if it does not violates the Principle of Natural Justice, or there has been any fraud on the part of the parties that led the foreign court to give a judgement in that case the decision of the foreign court will not be binding and it can be challenged For a court to have competent jurisdiction both the parties must voluntarily and unconditionally submit themselves to the jurisdiction of the said court.

In a leading judgment SC of India ruled :-

1. No marriage between an NRI and an Indian Women which has taken place in India may be annulled by foreign court.

2. Provision may be made for adequate alimony for wife in the property of husband in India and abroad.

In case of Narasimha Rao v Venkata Lakshmi[13] the decree of dissolution of marriage passed by the Circuit Court of St. Louis County, Missouri, USA was passed by the court by assuming jurisdiction over the divorce petition filed by the husband there, on the ground that the husband had been a resident of the State of Missouri for 90 days preceding the commencement of the action as the minimum requirement of residence. Secondly, the decree had been passed on the only ground that there remained no reasonable likelihood that the marriage between the parties could be preserved, and that the marriage had, therefore, “irretrievably broken”. Thirdly, the respondent wife had not submitted to the jurisdiction of the foreign court. According to the Court, the decree dissolving the marriage passed by the foreign court was without jurisdiction in this case as according to the HMA Act neither the marriage was celebrated nor the parties had last resided together nor the respondent resided within the jurisdiction of that court. The decree was also passed on a ground which was not available under the HMA Act which is applicable to the marriage. Further, the decree had been obtained by the husband by representing that he was the resident of the Missouri State when the record showed that he was only a “bird of passage”- He had, if at all, only technically satisfied the requirement of residence of 90 days with the only purpose of obtaining the divorce. The court reiterated that residence does not mean a temporary residence for the purpose of obtaining a divorce, but ‘habitual residence’ or residence which is intended to be permanent for future as well. The final judgment therefore was that since with regard to the jurisdiction of the forum as well as the ground on which the foreign court had passed the decree in the case, were not in accordance with the Act under which the parties were married, and the respondent had not submitted to the jurisdiction of the court or consented to its passing, it could not be recognised by the courts in this country and was unenforceable

Since the court quashed the order passed by the foreign court and so the wife could ask for the maintenance form her husband.

These could be the major issues that can create a problem for the wife to claim maintenance though the judgement given by the foreign court can be challenged in India the wife may or may not receive maintenance because if the foreign court gives the judgement in favour of wife of getting maintenance on some ground and the same when challenged by the husband will be reversed on the ground that upon the ground where the judgement was given by the foreign court is not a ground in India.

Reality Check On Some Issues

In cases Anubha v Vikas Aggarwal[14] the issue that arised was whether the decree of ‘no fault divorce’ obtained by the husband from a Court of the United States of America (USA) could be enforced on the wife when their marriage was solemnised as per the Hindu rites and the wife had not submitted to the jurisdiction of the Court in USA and had not consented to grant of divorce. As per the facts of the cases the plaintiff was seeking decree of declaration that she was entitled to live separately from her NRI husband, the defendant, and also for a decree for maintenance in her favour besides the pendente lite expenses as she had been deserted and abandoned by him very soon after the marriage, after being subjected to cruelty. During the pendency of the suit when the wife learnt of divorce petition having been filed by the husband in the USA, she also approached the court to restrain that action from proceeding in the USA whereupon the Court passed the order restraining the defendant from proceeding further in the Court in the State of Connecticut, USA for a period of thirty days. However, inspite of the order the husband proceeded with the “No Fault Divorce Petition” proceedings in the US. When this fact was brought to the notice of the Court in India, the Indian Court passed an order asking the defendant for recording of the statement under Order X of the CPC and on his failure to appear, his defence was struck off and contempt proceedings were initiated. After the husband obtained the decree of divorce despite all these, the question that arose foremost for determination was whether the decree of divorce obtained from the Court at Connecticut in the USA during the pendency of the proceedings of the case in India in the given facts and circumstances was enforceable in law or not.

The Court held that the ground on which the marriage of the defendant was dissolved is not available in the Hindu Marriage Act. The parties were Hindus, their marriage was solemnised according to the Hindu rites. Their matrimonial dispute or relationship was, therefore, governable by the provisions of Hindu Marriage Act. Since the plaintiff did not submit to the jurisdiction of the USA Court nor did she consent for the grant of divorce in the US Court the decree obtained by the defendant from the Connecticut Court of USA was held to be neither recognisable nor enforceable in India.

Balasubramaniam Guhan v T Hemapriya the wife had filed a suit for declaration to declare the decree of divorce passed by the Court at Scotland for divorce as ultra vires, unsustainable, illegal, unenforceable and without jurisdiction; and for a consequential injunction restraining the petitioner herein from enforcing the said decree or claim any rights under the said decree either by seeking to take a second wife or otherwise.

The High Court held in such facts that if the foreign judgment falls under any of the clauses of Section 13 CPC, it will cease to be conclusive as to any matter thereby adjudicated upon and will be open to collateral attack on the grounds mentioned in Section 13. As in the suit filed by the wife, the foreign judgment granted in favour of the husband was challenged on the ground that it was an ex parte decree, the Court which passed the decree was held to have no jurisdiction as the decree was passed when the wife was in India.

 In Swapnil Verma vs. Yogita Pant[15] the Supreme Court of India held that

“Under Section 13(e), Civil Procedure Code, the foreign judgment is open to challenge where it has been obtained by fraud”. Fraud as to the merits of the respondent’s case may be ignored and his allegation that he and his wife “have lived separate and apart for more than three (3) consecutive years without cohabitation and that there is no possibility of a reconciliation” may be assumed to be true. But fraud as to the jurisdiction of the Nevada court is a vital consideration in the recognition of the decree passed by that court. It is therefore relevant that the respondent successfully invoked the jurisdiction of the Nevada court by lying to it on jurisdictional facts.”[16]

These are the real life cases of the NRI marriages

[1] http://www.peterborough.gov.uk/children_and_families/adoption/what_is_adoption.aspx

[2] 1984 AIR 469, 1984 SCR (2) 795

[3] AIR 1989 Guj 152, I (1990) DMC 250, (1989) 1 GLR 257

[4] Code of Criminal Procedure, 1908

[5] Hindu marriage act, 1955

[6] Special marriage act, 1954

[7] The divorce act, 1869

[8] The parsi marriage and divorce act, 1936

[9] (2006 (2) SCC 578)

[10] http://www.legallyindia.com/1125-married-in-india-but-divorced-in-us

[11] AIR 1996 Del 54

[12] Code of Civil Procedure, 1908

[13] [1991] 2 SCR 821

[14] (100 (2002) DLT 682)

[15] 25 April 2012

[16] Ibid

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