Can NRI file for divorce in India?

Yes, a Non-Resident Indian (NRI) can file for divorce in India, but there are specific legal procedures and requirements to be met. The process may vary depending on the personal laws governing the marriage (such as the Hindu Marriage Act, 1955, or the Special Marriage Act, 1954) and the jurisdiction where the case is filed. NRIs have the right to seek divorce in India, regardless of where they reside, under the conditions specified in Indian law.

Legal Grounds for an NRI to File for Divorce in India

Jurisdictional Requirements:

In India, the jurisdiction to file for divorce is generally determined by the residence or the place of marriage. The key legal provisions for filing divorce under Indian law include:

• Hindu Marriage Act, 1955: If either spouse is Hindu, a divorce petition can be filed under the Hindu Marriage Act, even if the NRI spouse is living abroad. The court where the marriage was solemnized or where either party resides (in India) has jurisdiction.
• Special Marriage Act, 1954: For interfaith or non-religious marriages, the Special Marriage Act applies, and a divorce petition can be filed in India if the marriage was registered under this act, regardless of where the parties reside.

Grounds for Divorce:

An NRI can file for divorce on the same grounds as any Indian citizen, such as:

• Cruelty
• Adultery
• Desertion
• Mental cruelty
• Incompatibility
• Irretrievable breakdown of marriage (in some cases).

How to File for Divorce as an NRI in India

1. Determine Jurisdiction

Before filing for divorce, determine which court has jurisdiction. The jurisdiction may be one of the following:

• Where the marriage was solemnized.
• Where the wife resides.
• Where the husband resides (if the marriage was registered under the Special Marriage Act).
• Where the parties last resided together.
• If both spouses are NRIs, and the marriage was solemnized in India or the wife resides in India, the court in India can exercise jurisdiction.

2. File Divorce Petition in Indian Court

The NRI can file a divorce petition either in the district court or the family court in the jurisdiction where the marriage took place, or where the wife (or both parties) resides. The steps are:

• Choose the Appropriate Law: File under the Hindu Marriage Act, the Special Marriage Act, or other applicable laws.
• Prepare the Petition: The divorce petition must be drafted, outlining the grounds for divorce, personal information, and other necessary details.
• You can file the petition online in some jurisdictions, but typically you may need to appear before the court in person or through an advocate.

3. Legal Representation

If the NRI spouse is unable to appear physically in India, they can appoint an advocate in India to represent them in court.

The advocate will help prepare and submit the required documents and ensure the proper procedure is followed.

4. Documentation Required

The NRI will need to submit the following documents when filing for divorce:

• Marriage Certificate (either the religious marriage certificate or a marriage registration certificate).
• Proof of Residence: Proof that the petitioner or the respondent resides in the jurisdiction where the petition is filed (for example, electricity bills, passport, etc.).
• Grounds for Divorce: Details of the reason(s) for divorce, such as cruelty, desertion, adultery, or irretrievable breakdown of the marriage.
• Affidavit: A sworn affidavit detailing the facts and confirming the grounds for divorce.

5. Court Hearings

After filing the petition, the NRI spouse may have to appear in person for hearings. However, if unable to appear physically, the NRI spouse can:

• Give Power of Attorney to an Indian-based relative or lawyer to represent them.
• Appear via Video Conferencing: In some cases, Indian courts may allow NRIs to attend hearings via video conferencing, especially in family court matters.

6. Divorce Decree

Once the court is satisfied with the grounds for divorce, it will pass the decree of divorce. In cases of mutual consent divorce, the process might be faster, while contested divorces may take longer depending on the complexity of the case.

Example of NRI Filing for Divorce in India

Example 1: Divorce under Hindu Marriage Act

Amit, an NRI residing in the USA, wishes to file for divorce from his wife Nisha, who still resides in India. The couple married under the Hindu Marriage Act in India.

Amit decides to file the divorce petition in Delhi where the marriage took place. He appoints an advocate in India and submits the required documents, including their marriage certificate and proof of his residence in the USA.

As Amit is unable to attend court hearings in India, he gives Power of Attorney to his advocate, who represents him in the court proceedings.

After a few hearings and submission of documents, the court grants a divorce decree.

Example 2: Divorce under Special Marriage Act

Simran and Rajesh, both NRIs living in Canada, married under the Special Marriage Act in India. They want a divorce due to irreconcilable differences.

Since both live abroad, they file for mutual consent divorce in a family court in Mumbai, where they last lived together before moving abroad.

The court allows them to submit the petition online and schedules the first motion. After the six-month waiting period, the second motion is filed, and the divorce is granted.

Challenges and Considerations for NRIs Filing Divorce in India

Jurisdiction Issues:

The biggest challenge is jurisdiction, as the court in India must have the legal authority to hear the case. If the couple married in India but is now residing abroad, they must establish residence or place of marriage as a ground for jurisdiction.

Lengthy Process:

Divorce proceedings can take time, especially in contested cases. Mutual divorce is quicker, but contested divorce proceedings may drag on for years.

Court Appearances:

NRIs may need to attend hearings in person unless they can attend via video conferencing or have a power of attorney. The Indian court system may be unfamiliar to NRIs, making it important to work with an experienced lawyer.

Enforcement of Foreign Judgments:

If an NRI spouse obtains a divorce decree in India and needs to enforce it in another country, they should be aware that some countries may not automatically recognize Indian divorce decrees. In such cases, an apostille or attestation may be required to validate the decree.

Conclusion

Yes, an NRI can file for divorce in India, and the process is similar to that followed by Indian citizens. They must establish jurisdiction, prepare necessary documentation, and either appear in court or appoint an advocate to represent them. The key to a successful divorce filing for an NRI in India is understanding the legal framework, working with an experienced lawyer, and following the procedural steps diligently.