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TAMIL NADU NATIONAL LAW SCHOOL

( A STATE UNIVERSITY ESTABLISHED BY ACT NO.9 OF 2012 )


Navalur Kuttapattu, Srirangam (TK), Tiruchirapalli 620009, Tamil Nadu

PAPER-IV FAMILY LAW-I

LOOPHOLES IN NRI MARRIAGES?

SUBMITTED TO:
Ms.Pranusha kulkarini

By
S.Srisankar
II year B.Com.LL.B (Hons)
(Reg No.BCO150031)
Tamil Nadu National Law School
Tiruchirappalli
Email ID: srishankar63@gmail.com
Declaration by the candidate

I hereby declare that the project title entitled Loophoels in NRI marriages? submitted by
Srisankar to Tamil Nadu National Law School, for the subject family law-I to Ms.pranusha
kulakrini is done by me. It is not copied directly from any websites except for the definitions
and other facts relating to that matter.

Signature of the candidate

S.Srisankar
INDEX
Abstract
Introduction to NRI marriages
Common issues faced by NRI marriages
Few initiatives recommended by the Supreme Court of India
Present Scenario of NRI marriages
Execution of the decrees passed by the courts in the reciprocating
territory- Section 44A of the CPC
Execution of a decree outside India - Section 45 of the CPC
NRI marriages with reference to section 10 of the passports act
A few land mark cases pertaining to the disputes in the NRI marriages
Recommended Legal Amendments proposed by the NCW (National
Commission for Women)
Summary/Conclusion
General
The concept of Family had evolved over a period of time since the time of
pre civilisation when man felt there was a common need for laws to
govern people, to protect children and women. The term family is
considered to the very fundamental unit and the smallest social unit
through which the personality/ characters of an individual are developed,
through which rights are claimed, through which basic disputes are
resolved and also an indispensable part of the society. In general whatever
is personal is considered to be political. In many countries there are
families are governed by multiple customs, rules and laws. It is an obvious
fact that the Disputes at the family level are much more higher in terms of
number then those at the district, state and nation level policies, disputes
and the problems in the administrative and constitutional aspects.
Therefore there is a need for Family law in regulate, govern and protect the
interest of individuals at the personal and the family level.

Research methodology
This project consist of most secondary data and some of the sections of
various law were also referred, this project also descriptive incite of the
opinion in reference to a video and some of the wordings in the project are
the same as they sections and laws and statements.

INTRODUCTION TO NRI MARRIAGES

In General marriages in India are said to be one of the most complicated and challenging areas
within legal interventions as there are various family laws and personal laws which vary from
religion to religion and more over due to the absence of the Uniform Civil Code the process is much
more complex especially when it involves inter religious marriages. When it comes to an NRI
marriage, the Marriage involves a person either male or female either a citizen of India living in
another country or a person who is of India origin (in most NRI marriage disputes, the NRI is a
male) marries a person of Indian origin. The NRI marriages involve various personal law and the
laws of two different country, therefore the in case of dispute in NRI marriages, the complexity
manifolds a multiple times. these marriages often enter into a domain often known as the maze,
which consist of private international law which deals the conflict of laws two different countries.
Even though NRI marriages is a gender neutral term, however it typically means a indian woman is
being married off to an Indian man living in another country or a man of indian origin living in
another country however it doesn't mean that it does not happen the other way around. Due to the
fact that Indians have a higher tendency of liking or getting attached to move or immigrate to
foreign countries, the indian family living aboard promise greener pastures not only for the girl but
also for her family. Due to such eagerness and excitement, the family general would not want to
miss such a match. Due to this the families generally tend to forget about the other factors to be
considered in the traditional marriages. Some of the other essential factors to be considered int eh
traditional marriages are :
the womans resource to justice as the NRI marriages involve a lot of personal laws of two
different countries
the aggravated risk taken by the woman as she isolates herself and lives in an alien land
inevitably faces constraints like the language issue, the lack of knowledge of the local criminal
justice, communications
lack of knowledge pf the police and the legal system
lack of network of friend and relatives to rely on
lack of good monetary supports

Due to the aforesaid mentioned reasons it is easy for the the women is get easily exploited in varied
number of aspects. Surprisingly the number of NRI marriages is escalating year after year and so as
the number of issues and disputes faced in such type of marriages. However at the same time it can
be depicted that men are also equally exploited in a number of ways by NRI women.

The most commonly faced issues in NRI marriages:

Some typical Instances of Issues which arise in most of the NRI marriages in the different states of
the country are as listed below:

Woman married to NRI was abandoned even before being taken by her husband to the foreign
country of his residence. After a short honeymoon he had went back, promising to soon send her
ticket that never came. In many instances the woman would already have been pregnant when he
left and so both she and the child (who was born later) were abandoned. The husband never
called or wrote and never came back again. The in-laws who could still be in India would either
plead helplessness or flatly refuse to help.
Woman went to her husbands home in the other country only to be brutally battered, assaulted,
abused both mentally and physically, malnourished, confined and ill-treated by him in several
other ways. She was therefore either forced to flee or was forcibly sent back. It could also be that
she was not allowed to bring back her children. In many cases, the children were abducted or
forcibly taken away from the woman.
Woman who was herself or whose parents were held to ransom for payment of huge sums of
money as dowry, both before and after the marriage, making her continued stay and safety in her
husbands country of residence dependent on that.
Woman who reached the foreign country of her husbands residence and waited helpless at the
international airport there only to find that her husband would not turn up at all.
Woman who was abandoned in the foreign country with absolutely no support or means of
sustenance or escape and without even the legal permission to stay on in that country.
Woman who learnt on reaching the country of her NRI husbands residence that he was already
married in the other country to another woman, whom he continued to live with. He may have
married her due to pressure from his parents and to please them or sometimes even to use her like
a domestic help or pick up dowry.
Woman who later learnt that her NRI husband had given false information on any or all of the
following: his job, immigration status, earning, property, marital status and other material
particulars, to con her into the marriage.
Woman whose husband, taking advantage of more lenient divorce grounds in other legal
systems, obtained ex - parte decree of divorce in the foreign country through fraudulent
representations and/ or behind her back, without her knowledge, after she was sent back or
forced to go back to India or even while she was still there.
Woman who was denied maintenance in India on the pretext that the marriage had already been
dissolved by the court in another country.
Woman who approached the court, either in India or in the other country, for maintenance or
divorce but repeatedly encountered technical legal obstacles related to jurisdiction of courts,
service of notices or orders, or enforcement of orders or learnt of the husband commencing
simultaneous retaliatory legal proceeding in the other country to make her legal action
Woman who sought to use criminal law to punish her husband and in-laws for dowry demands
and/ or, or matrimonial cruelty and found that the trial could not proceed as the husband would
not come to India and submit to the trial or respond in any way to summons, or even warrant of
arrest.
Woman who was coaxed to travel to the foreign country of the mans residence and get married
in that country, who later discovered that Indian courts have even more limited jurisdiction in
such cases.
Woman who had to fight nasty legal battles for custody of her children and for child support,
and to bring them back with her after she was divorced or forced to leave, sometimes even facing
charges of illegally abducting her own children.
However the above mentioned list tell about the in-depth detail faced only by the women victims of
the NRI marriages, it can be concluded that a number of mentioned issues in the above list has also
been suffered by men also.
One of the main steps/initiatives recommended by the Supreme Court
of India are as follows:

If a marriage dispute between an Indian and a NRI in India cant be set aside in a foreign court
The Government of the foreign land should ensure alimony for the wife in the property of the
husband in his property both in the foreign land as well as in India. The main reason for this is it
is a very difficult task to enforce the maintenance to the women in the foreign land and in case of
fraud such alimony or attachment of the property will help.
That the orders executed in Indian court can be applicable in foreign courts. However such an
initiative is not practical as the all the foreign countries the law of the restive land will apply only
within its jurisdiction and not outside the jurisdiction of the specific country.
Registering reciprocal agreement under 44A of CPC (Civil Procedural Code).1

THE PRESENT SCENARIO OF NRI MARRIAGES

In the recent times the National Commission for Women has made conclusive legislative draft
however as of now the Parliament has to bring in suitable law for this. The main reason are which
the Government is not able to provide a proper framework for the victims of the NRI marriages as
the Indian or NRI as the indian law will not apply to them as they are out of the jurisdiction of
India. one of the solutions in plugging the gaps is for the compulsory registration of the NRI
marriage as an evidence, secondly the arbitrary contract must be implemented under sec 44A of
CPC. According to the statistics provided the highest number of cases in the NRI cell was from
Delhi is 73, Haryana is 40, and UP is 43. The total number of cases registered in NRI cell is 515
of which 225 cases are registered from the metro. However in reality this is not the realistic figure
is actually much more as a lot of family don't have enough money to claim the rights in the foreign
lands as the legal service in most of the foreign land is expense, and the victims are nat aware of the
legal rights in the foreign land. Under the above mentioned circumstances it becomes very hard for
the poor and certain proportion of the middle class families to tackle.Another problem exist in the
implementing the existing law, for example section 21 of foreign marriage act2 which gives the
punishment for false declaration, n according to the laws in HMA where ever the Hindu wife is

1
LAW OF LAND: FRAUDULENT NRI MARRIAGES, RAJYA SABHA TV
2
section 21 of foreign marriage act of chapter 5 (penalties)
residing she has the rights to file a petition and automatically gets jurisdiction. Ignorer to tackle or
plug in the gap to a certain extent it is not only the mere registration but also at the time of such
marriage the two parties should disclose their informations like their assets, income, job, whether
they are a citizen of India or not. As mentioned before NRI marriages typical is a marriage in
which a Husband takes the wife to the foreign land but however that is not the case now a
reasonable numbers men were also exploited, hence it can be concluded the remedies should not be
female centric laws. All this information mentioned above are in reference to the LAW OF THE
LAND tv show showcased in Rajya Sabha TV.3

SECTION 44A CPC- EXECUTION OF DECREES PASSED BY


COURTS IN RECIPROCATING TERRITORY:

THIS SECTION STATES THAT Where a certified copy of decree of any of the superior Courts of
any reciprocating territory has been filed in a district court, the decree may be executed in as of it
had been passed by the District Court.
In the aforementioned statement it can be stated that the meaning of reciprocating territory
means any country or territory outside India which the Central Government may, by the
notification of the Official Gazette, declare to be a reciprocating territory for the purpose of this
section; and the Superior Courts with reference to any such territory means such Courts as may
be specified in the said notification &
Decree with reference to the Superior Court means any decree or judgment of such court under
which a sum of money is payable, not being a sum payable in respect of taxes or other charges of
a like nature or in respect of a fine or other penalty, but shall in no case include arbitration award,
even if such an award is enforceable as a decree or judgment.

SECTION 45 CPC: EXECUTION OF DECREES OUTSIDE INDIA:


This Section states that So much of the foregoing sections of this Part as empowers a Court to
send a decree for execution to another Court shall be construed as empowering a Court in any(state)

3
This is in reference to the TV show: LAW OF THE LAND showcased by Rajya Sabha TV and all
the informations, statical data and reports and other aforementioned statement were made by the
following people: Amritanshu Rai, Ranjana Kumari (President of the women power connect),
Pratima Singh (ACP-Crime against women Cell), Kriti Singh (Advocate and Legal Convenor of
AIDWA), Indhu Malhotra (Senior advocate), Mamta Sharma (Chairperson of the Nation
Commission for Women), Geetla Luthra (Advocate).
to send a decree for execution to any court established by the authority of the Central Government
(outside India) to which the (State government) has to by notification in the Official Gazette this
section to apply.4
Therefore it can be concluded that for the above two sections that is Section 44 A of CPC and
section 45 of CPC that a reciprocating marriage or an NRI marriage if registered under the former
section that is section 44A, even in case subsequent fraudulent act in case of the NRI marriage the
aforesaid sections can provide a good ground for executing legal action or decree overseas.

SECTION 10 OF PASSPORTS ACT

With reference to section 10 of the PASSPORTS ACT AND A DEEP UNDERSTANDING OF


THE CLAUSE (D) AND (H) it can be concluded with reference to the NRI marriages the person
(can be he or she) if a citizen of India living in abroad and in case they have committed a fraudulent
act in the NRI marriage, they are passports can be confiscated.
The passport authority may impound or cause to be impounded or revoke a passport or travel
document,
(a) if the passport authority is satisfied that the holder of the passport or travel document is in
wrongful possession thereof;
(b) If the passport or travel document was obtained by the suppression of material information or on
the basis of wrong information provided by the holder of the passport or travel document or any
other person on his behalf: [Provided that if the holder of such passport obtains another passport,
the passport authority shall also impound or cause to be impounded or revoke such other passport.]
1[Provided that if the holder of such passport obtains another passport, the passport authority shall
also impound or cause to be impounded or revoke such other passport.]"
(c) if the passport authority deems it necessary so to do in the interests of the sovereignty and
integrity of India, the security of India, friendly relations of India with any foreign country, or in the
interests of the general public;
(d) if the holder of the passport or travel document has, at any time after the issue of the
passport or travel document, been convicted by a court in India for any offence involving
moral turpitude and sentenced in respect thereof to imprisonment for not less than two years;
(e) if proceedings in respect of an offence alleged to have been committed by the holder of the
passport or travel document are pending before a criminal court in India;
(f) if any of the conditions of the passport or travel document has been contravened;

4
Section 45 of the CPC with reference to the Code of Civil Procedure, 1908.
(g) if the holder of the passport or travel document has failed to comply with a notice under sub-
section (1) requiring him to deliver up the same;
(h) if it is brought to the notice of the passport authority that a warrant or summons for the
appearance, or a warrant for the arrest, of the holder of the passport or travel document has
been issued by a court under any law for the time being in force or if an order prohibiting the
departure from India of the holder of the passport or other travel document has been made
by any such court and the passport authority is satisfied that a warrant or summons has been
so issued or an order has been so made.5

Mentioned below are some of the most important case laws pertains to
the the disputed in the NRI Marriages along with their respective
judgements:

In Harmeeta Singh v Rajat Taneja 102 (2003) DLT 822 the wife was deserted by her husband
within 6 months of marriage as she was compelled to leave the matrimonial home within
3 months of joining her husband in the US. When she filed a suit for maintenance under
the Hindu Adoptions and Maintenance Act in India, the High Court disposed of the
interim application in the suit by passing an order of restraint against the husband from
continuing with the proceedings in the US court in the divorce petition filed by the
husband there and also asking him to place a copy of the order of the High Court before
the US court.

The Court made some other observations while passing this order, mainly that even if the
husband succeeded in obtaining a divorce decree in the US, that decree would be unlikely
to receive recognition in India as the Indian court had jurisdiction in the matter and the
jurisdiction of the US courts would have to be established under Section 13, CPC. The
Court then said that till the US decree was recognised in India, he would be held guilty of
committing bigamy in India and would be liable to face criminal action for that. The court
also said that since the wife's stay in the US was very transient, temporary and casual, and
she may not be financially capable of prosecuting the litigation in the US court, the Delhi
courts would be the forum of convenience in the matter.

5
With reference to section 10 of passports act, indiankanoon.com
In Vikas Aggarwal v Anubha (AIR 2002 SC 1796), the Supreme Court had been
approached by the NRI husband whose defence had been struck off in a maintenance suit
filed by the wife in the High Court as he had not appeared in the High Court despite the
High Court's order directing him to personally appear and giving him several
opportunities. The High court had directed him to personally appear to give clarifications
to the court on the circumstances in which the US court had proceeded with and granted
decree in a divorce petition filed by the husband in the US despite order of restraint
having been issued by the Indian court against the proceedings in the US. The High Court
had also rejected his application for exemption from personal appearance on the basis that
he apprehended that he would be arrested in the case under Section 498 A, IPC filed by
the wife.

The Supreme Court upheld the High Court's order and held that Order X of CPC is an
enabling provision that gives powers to courts for certain purposes. The Delhi High Court
was therefore justified in requiring the husband to personally appear before the Court for
his clarification, especially since the affidavit of his counsel in America annexed with the
affidavit filed in the trial court was not enough to clarify the position and his father, as
found by the trial court, could not throw further light in the matter, having not been
present during the proceedings in America. Also the inherent powers of the Court under
Section 151 C.P.C. can always be exercised to advance interests of justice and it was
open for the Court to pass a suitable consequential order under Section 151 CPC as may
be necessary for ends of justice or to prevent the abuse of process of Court.

Venkat Perumal v State of AP II(1998)DMC 523 is a judgment passed by the Andhra


Pradesh High Court in an application filed by an NRI husband for quashing of the
proceedings of the wife's complaint in Hyderabad under Section 498 A of the IPC against
matrimonial cruelty meted out to her. She had alleged that she was subjected to harassment,
humiliation and torture during her short stay at Madras as well as US and when she refused
to accept the request of her husband to terminate her pregnancy, she was dropped penniless
by her husband at Dallas Air Port in the US and she returned back to India with the
assistance of her aunty and on account of the humiliation and mental agony she suffered
miscarriage at Hyderabad.

The High Court held that the offence under Section 498-A of IPC is a continuing offence
and the mental harassment on the wife had continued during the stay with her parents at
Hyderabad. The court therefore rejected contention of the husband that sanction of the
Central Government, as contemplated under Section 188 of the Code, is required to
prosecute and held that even otherwise, it is not a condition precedent to initiate criminal
proceedings and the same can be obtained, if need be, during trial and hence, it could not
be said that the proceedings were liable to be quashed on that ground.

The Court also refused to influence its decision with the divorce decree from the US court
produced by the husband since in any case the FIR had been lodged by the wife prior to the
UC court's decree.

The judgment in Neeraja Saraph v Jayant Saraph (1994) 6 SCC 461 was passed in the
following facts: The appellant wife who got married to a software engineer employed in
United States was still trying to get her visa to join her husband who had gone back after
the marriage, when she received the petition for annulment of marriage filed by her NRI
husband in the US court. She filed a suit for damages in such circumstances as she had
suffered not just emotionally and mentally but had also given up her job in anticipation of
her departure to the US. The trial court passed a decree of Rs. 22 lakhs The High Court in
appeal stayed the operation of the decree pending final disposal on the condition of
deposit of Rs. 1 Lakh with the court. On appeal by the wife the Supreme Court modified
the High Court's order in favour of the wife by enhancing the deposit amount to Rs. 3
Lakh.6

LEGAL AMENDMENTS PROPOSED MADE BY THE NCW (NATIONAL COMMISSION


FOR WOMEN ).
1. Criminal Procedure Code, 1973 - amendment of sections 198 and 320

To remove restriction on lodging of complaint in respect of offences under sections 494 and
495 of the Indian Penal Code. Section494 of IPC lays down the provision through which
one can be punished for marrying again in the life time of husband or wife7
Amendment of section 320 so as to make the offences under section 498 of the Indian Penal
Code as Compoundable.
2. Recommendations and suggestions on Amendments to the DOWRY PROHIBITION ACT, 1961.
Indian Penal Code, 1860.

6
http://ncw.nic.in/frmnriimpcaselaws.aspx (important cases in NRI marriages)
7
IPC (INDIAN PENAL CODE)
Strengthening of the laws to curb the incidence of sale of minor girls.
3. Commission of Sati ( Prevention ) Act, 1987.
To transfer the substantive provisions under the Indian Penal Code.
The offence may be called as "Sati murder".
4. Hindu Marriage Act, 1955.
Amendment of section 5 so as to omit epilepsy as a ground for divorce.
5. Child Marriage Restraint Act, 1929.
Amendment should be made to change the definition of kidnapping under section 359 of the
IPC.
The marriage of a minor should be made void.
The offence should be made cognizable and non-bailable.
6. Indecent Representation of Women ( Prohibition ) Act, 1986.
The Commission recommended for the amendment of Section 1 of the Act to make the
definition of derogatory representation of women more wider. Further provided for the
increasing of punishment to the violators.
7. Immoral Traffic ( Prevention ) Act, 1956 (for elimination of child prostitution and devising a
comprehensive package for rehabilitation ).
The Commission recommended that the age of majority of the child under the Act may be
raised to 18 years.
Further the Government should take up correctional measures and also to rehabilitate the
women and children in prostitution.

8. Medical Termination of Pregnancy Act, 1971


The women's consent must be obtained in every case.
To provide stringent punishment to the violators.
9. Guardians and Wards Act, 1890
The Commission recommended that Section 15 and 16 or the Act should be amended so as
to remove the compulsory linking of the wife's Domicile with that of the husband.
Further a testamentary guardian may be appointed only with the consent of the parent if
alive and capable of acting.
10. More powers to NCW through : NCW (Amendment) Bill 1998
Power to appoint its own staff.
Appointment of Commissioner for women's rights.
Power of Prosecution in the lines of NHRC & Kerala State Commission for Women.
Extension of the Act to the State of J & K.
11. Amendment of laws relating to rape and sexual assault
redefinition of the definitions of rape and allied provisions
The recommendations are incorporated in Criminal Law (Amendment) Bill, 2006 and sent
to the Government
12. Family Courts (Amendment) Bill,2005
There shall be one or more family courts in every district.
Appeal under these matters will lie only to the High Courts.
Private Members Bill was referred to the Commission and recommendations have been
submitted to the Government.8

SUMMARY / CONCLUSION/ RECOMMENDATIONS:


In the recent years it can be said that the number of NRI OR RECIPROCATION Marriages is on
the rise and so as the number of disputes in NRI marriages os on the rise. It must noted that NRI
Marriages is not a simple case when it comes to disputes as such marriages involve multiple number
of personal laws and also the law of the Indian territory and that of the respective reciprocating
country. Therefore it is conclusive that the Indian moving to the foreign land tend to face a lot of
difficulties (lack of communication, no knowledge of the local language, the legal system and the
rights) and in many of the marriages they are often victims of fraudulent acts. The victims of the
NRI marriages are women in general, however this is not a gender oriented problem as an equal

8
Important NRI law amendments recommended by the National Commission for Women
number of men are also the victims of such marriages. According to the statical datas represented in
this project, a total number of 515 cases has been reported to the NCW, which around 225 from the
urban areas, however this is not the realistic figure as large number of people from the lower middle
class and the poor class are financially weak and are not able to offer such expensive legal services
due to which the Central Government has to set up commission to aid these victims financially.
Secondly due to the complexity of the laws in India and the reciprocal countries it is very difficult
to pass a decree for maintenance in favour of the other party (mostly the women), therefore in case
of fraudulent case it is very much essential for the to provide alimony for the respective parties in
the other parties property both in the reciprocating country and as well as India. At the time of such
reciprocating marriages, the two parties must disclose their personal details like assets, income,
their profession, their relationship status, whether they are a citizen of India or a resident of the the
reciprocating country. Due to the fact that a large number of Indians have the craze to live in
foreign countries and the families don't keep track about the consequences, the Government must
create awareness regarding the preventive measures to be taken and also spread awareness. Even
though there is no specific road map for a draft to be enacted by the legislature, but the remedies for
this issues must not be female centric law an equal number of remedies must be given to the men
also. Another issue which arises it the proper lack of proper implementation of the existing laws as
mentioned above, the existing laws which are capable of plugging the gap of such issues must be
implemented firmly, for example section 21 of foreign marriage act, section 10 of passport act and
the sections 44a and 45 of CPC. The legislature must amendment the above mentioned list of laws
as suggested by the recommendatory bodies like the NCW (NATIONAL COMMISSION FOR
WOMEN)and other such governing body.
References
Laws referred:
1. section 21 of foreign marriage act of chapter 5 (penalties)
2. Section 44A and 45 of the CPC with reference to the Code of Civil Procedure, 1908
3. With reference to section 10 of passports act,
4. Section 495 and 496 of IPC
5. Section 10 of Passport Act
Video referred:
This is in reference to the TV show: LAW OF THE LAND showcased by Rajya Sabha TV and all
the informations, statical data and reports and other aforementioned statement were made by the
following people: Amritanshu Rai, Ranjana Kumari (President of the women power connect),
Pratima Singh (ACP-Crime against women Cell), Kriti Singh (Advocate and Legal Convenor of
AIDWA), Indhu Malhotra (Senior advocate), Mamta Sharma (Chairperson of the Nation
Commission for Women), Geetla Luthra (Advocate).
Cases referred:
1. Harmeeta Singh v Rajat Taneja 102 (2003) DLT 822
2. Vikas Aggarwal v Anubha (AIR 2002 SC 1796)
3. Venkat Perumal v State of AP II(1998)DMC 523
4. Neeraja Saraph v Jayant Saraph (1994) 6 SCC 461
Websites referred:
1. indiankanoon.org
2. National Commission for women (nri cell)
link : http://ncw.nic.in/frmnricell.aspx