A COMPLETE GUIDE ON DIVORCE OF NRI
Many non-resident Indians (NRI) come to India to marry girls who are also aspirants to migrate from India by this marriage relation. It is often seen that some NRIs marry local girls, enjoy them and return to the foreign countries with vague hopes behind that their wives would be taken after completion of official formalities. But all those hopes are never materialized. Sometimes they receive papers in India in the form of foreign divorce decree. In the Punjab it is said that the NRI matrimonial frauds account for at least one-fifth of women related complaints to the Punjab State Women’s Commission!
No doubt you can file the case in US and got the divorce over there also but to imply the same in India you have to file the case in India also. Coz you enter into the marriage in India and it is Indian court only who can make divorce also. So the best way is attend the Indian court else even getting divorce from US, you have to again file a case in India to validate and execute the order in India and there are very few lawyers who act on International law and treaties. Further without executing the divorce of first wife you cannot arrange second wife in India in respect of any city. It will amount to bigamy and you will be dealt with criminal charges. The same was held in the case of Y. Narasimha Rao & Ors. v. Y. Venkata Lakshmi & Ors.
The Hon’ble Supreme Court in the case of Smruti Pahariya Vs Sanjay Pahariya has held the personal presence of both parties required for the purpose giving evidence to show to the satisfaction of the Family court that the consent for divorce exist till the end, there is no withdrawal of the consent by either of them & if any of them is absent there will be no presumption that consent given during the first motion for the divorce shall continue till the end hence both of them should be present at the time of second motion too for ascertaining their consent for divorce.
If both the NRI spouses are Indians and have been married under Hindu marriage Act of 1955 they can seek divorce with mutual consent under section 13-b that provides for divorce by mutual consent.
As far the fault divorce proceeding if the other party fail to file his/her defense the divorce proceedings shall be done ex-parte against that person, the evidence of the petitioner recorded & the decree of divorce passed, whether the other party accept the grounds of divorce or not, his/her absence means he/she has no defense/remain uncontested hence proceeded ex-parte.
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