Divorce is the complete breakdown of the institution of marriage. In India, divorce is something which is gradually frowned upon by religion as well as society. The common stigma involved with getting a divorce attaches to the emotional stress of a person going through such a life changing event.
When both individuals in a marriage agree to a divorce, it is known as a mutual consent divorce. Any married couple seeing to file a divorce petition must adhere to the jurisdiction of the courts. Jurisdiction implies the authority of the court to give a valid decree. Hence, the court must have the power to bring up the matter before hand otherwise, any decree allowed by them will be invalid.
In the matters of divorce, the jurisdiction relies on the religion under which the couple got married.
- If the religion of the couple is Hindu then, the Hindu Marriage Act, 1955 will apply for divorce.
- While if the couple is Muslim, then the Dissolution of Muslim Marriages Act, 1939 will be applied.
- Likewise, for Christian, Parsi, and inter-religion marriages, different statutes apply.
Each of these Acts differs somewhat in the jurisdiction but, the few circumstances which remain constant throughout are:
- The area in the city where the wedding took place (was solemnized and registered).
- The area in the town where the married couple last stayed together.
- The location and area where the other party is residing at the time of filing a petition for divorce.
Accordingly, you will arrive at the family court of the city where one can file the joint petition for divorce. This court has the lawful jurisdiction to hear the matter.
What to do if the Couple is Not Living in India After Marriage?
If a Non-Resident Indian (NRI) married in India desires a mutual consent divorce, then he/she can do such by filing a petition in India or in the country where both of them are living. The Indian law gives the privilege of filing a divorce in the different country.
It says that a petition can be filed within the jurisdiction of the courts of which the participants to the marriage last stayed.
The marital residence of the NRI couple will be a foreign country. Thus, the couple can file a divorce petition either in India or in such foreign land.
Filing for Divorce in a Foreign Nation
When a couple chooses to file a divorce petition in a foreign country, they do so on the evidence of the power granted to them under the Indian law. The appeal for mutual consent divorce will have to be made under the laws of the nation in which the couple resides. The Indian laws will not ask to the foreign courts. The foreign court will then pass a decree acknowledging the divorce by following their procedure.
Will the Indian Courts recognize this Foreign Decree?
The Indian courts do not acknowledge the decree passed by the foreign courts if the decree so made is unresolved under Section 13 of the Civil Procedure Code, 1908.
It means that the decree:
- Is not declared by a Court of competent jurisdiction.
- Has not been addressed on the merits of the case.
- Seems on the face of the proceedings to be founded on an inaccurate view of international law or a refusal to admit the law of India in cases in which such law is applicable.
- Was taken opposed to the principles of natural justice.
- Has been acquired by fraud.
- Maintains a petition organized on a breach of any law in force in India.
Filing for Divorce in India
Filing a divorce in India is a very easier and reliable route. The courts will receive a petition from an NRI for mutual consent divorce, and the statements of both persons will be recorded.
For determination of appearance in court proceedings, if one party is unable to come, a power of attorney can be granted to any person. This person should willingly be a family member. Once the statements of the couple filing for divorce are recorded, the first action is performed.
After the first plan has been granted, a period of 6 months is allotted as an interim time for the individuals to rethink their consent for the divorce. In this intermediate time, either party can withdraw their consent.
If no one withdraws the consent, then comes the second plan stage where the individuals must be present to authenticate their consent. The divorce is imparted after this.
In the second stage, both the parties must be present physically to confirm their consent by recording their statements in the court. Unlike in the first action stage where a power of attorney could be granted.
The time limit of 6 months can be increased to 18 months from the date of first motion being allowed. The courts have conceded for some amount of compliance to be granted in this regard. Thus, an NRI can give his presence and his consent within a time of 6 months to 18 months to obtain the final decree for mutual consent divorce by the courts.
Will this Indian Decree be Recognized by the Foreign Country?
It is essential to keep in mind that divorce decrees passed by Indian courts are valid in other nations just like marriages that are registered in India are valid in foreign countries. No international court is going to ask if the decree given by an Indian court on a resolution of divorce of a couple married in India is invalid.
The divorce decree requires being recognized in the foreign country if the couple together owns property in that country. Such recognition is obtained by filing a petition for recognition in such country by their laws. This is the last legal condition for finalizing a divorce in case the divorcing individuals are non-resident Indians.
After analyzing how an NRI couple can get a mutual consent divorce in a foreign country and India, it can be understood that both sides have their advantages and disadvantages. Therefore, the decision of where to file a mutual consent divorce petition must be thoroughly perused by both parties beforehand. It must also be agreed upon mutually to guarantee that the process is completed quickly and is not moved around.