Introduction to NRI divorce
The matter of divorce in India for NRI is quite complicated and people are usually not aware of the legalities involved with it. First and foremost, it is necessary to understand the implication of the NRI divorce procedure in the USA. The concern arises when a marriage, with an Indian sanction, is in front of the foreign court for termination. Such an event develops uncertain questions, which need to be looked at both technically and fundamentally. Let’s dive straight into what gets you here: Step by step procedure for divorce in India for NRI.
Grounds for Divorce in India for NRI
There are 2 broad grounds for NRI divorce in India which include NRI divorce by mutual consent and contested otherwise.
NRI divorce by Mutual Consent:
- The parties must not provide any grounds of divorce if divorce is by mutual consent
- The husband and wife should be residing separately for the preceding one year before giving a joint application
- Both are in agreement that they cannot stay with each other
- The judge will issue a notice after six months of prime period
- If the couple still seek divorce even after the six month period then the court shall grant them same
Divorce in India for NRI Contested otherwise:
- Enters into sexual relationship/adultery with another individual
- Has leprosy which cannot be cured
- Converts to a different religion
- Has become mentally unsound such that no treatment can assist him
- Repudiation of child matrimony
- Has venereal illness
- Leaves for more than two years
- Has departed for more than seven years
- Inflicts physical or mental brutality on the wife
- Has renounced the world and converted into a saint
Complete step by step procedure for Divorce for NRI
The couple can file an NRI Divorce either in India or in any foreign court. Hence, the procedure differs in th following way:
Step by step process of Divorce in India for NRI
With the recent ruling of Supreme Court of India, there is no need for a compulsory period of waiting for six months, the procedure has been made less time-consuming.
- The divorce plea in the form of an affidavit that the parties should submit to the family court.
- The two most critical elements of a mutual divorce petition is maintenance and child custody. There is no explicit law in India that prescribes the calculation of maintenance. Hence,the parties are to make a decision upon. Though, if parties fail to reach harmony, it is the court that makes a decision after analyzing the obligations and finances of each party.
- After the filing of the petition and documentation of the statement of both the parties, the court typically adjourns the matter for a period of 6 months.
- After 6 months the parties have to present themselves over in the court for making a second motion verifying the mutual consent filed earlier.
- It is only after this second motion that the court grants a verdict of the divorce.
- Throughout this period of six months, either party may remove the petition from the court, in which case no divorce will be granted.
Concept of Vakalatnama or POA in NRI divorce law in india
Also, if it is inconvenient for an NRI to keep traveling to India for this reason then a Vakalatnama or a Power of Attorney may be assigned in favor of the divorce lawyer who can then represent the case. However, the court may still ask for presence of NRI for evidence and cross-examination purposes.
NRI Divorce procedure in USA
If both of the spouses are Indian citizens but get married in the USA under the US law, then the Indian courts will have no authority. In this scenario, it is the US law on divorce that prevails. Note- If you file NRI divorce plea in a foreign court and that court grants you a divorce on a ground other than mutual consent, your marriage is still lawfully prevelant under Indian law.
Provision of NRI contested divorce- Power of Attorney
If a couple stays in USA but their marriage took place in India then, it will be very costly for both parties to keep coming to India for divorce proceedings. Consequently, the best way to seek a divorce, in this scenario, is for both parties to engage a lawyer independently while also executing a Power of Attorney in their support. The authorities will forward the deeds to the Indian Embassy in that nation for the parties to sign those.
Steps to POA
A power of attorney for NRI contested divorce can be filed either if you are about to leave the country or you are already out of the country. If you are about to leave the country then the following steps should be made:
- One should write down the terms of POA on a 100 Rupees Stamp Paper.
- Visit the office of the registrar or the office of sub-registrar of your residence.
- Apart from the POA holder (to whom the party is transferring the NRI contested divorce POA), this procedure requires the presence of two witnesses (friend or relative).
How are assets divided in such divorce?
- The woman has the entitlement to claim ad-interim maintenance even during the proceedings of the divorce case.
- The court usually decides the maintenance in accordance with the income and position of the husband and he has to provide maintenance accordingly.
- The woman can also allege maintenance from the ancestral property of the husband through his privilege in that property.
FAQs for NRIs
1. Photocopy of proof of address like Adhar Card, driving license, passport etc
2. Photocopy of proof of date of birth like Adhar Card, driving license, passport etc
3. Pictures of marriage ceremony
4. Marriage certificate
5. Evidence that indicates both the parties have been living separately for at least one year. These can include receipts of products of utility bills
6. Evidence that indicates that both the parties have failed to reconcile like marriage counseling certificate
7. Income Tax statement of both parties for the last 3 years
The High Court of Madras clearly affirmed that you can file a petition for divorce through the GPA.
All assets of the husband and wife is considered “marital property.” This denotes that even property brought into the matrimony by one person becomes marital property that will be split in half in a divorce. Hence, the property is either divided manually or final verdict goes to the court.