Vices Relating to Overseas Indian Marriages:
It is a common practice in some states for the parents to get their daughter married to Non-Resident Indians, assuming that such grooms would be economically well off and affluent which will not only enable their daughters to lead a life full of comforts, luxuries and prosperity but will also provide financial support to their families and new avenues for their siblings in foreign countries.But in practice, many of these marriages turn out to be failures and create everlasting problems for the bride‟s family. The common issues/problems relating to Overseas Indian/NRI marriages being faced by Indian Women include:
1.Abandonment of the wife for various reasons, even before being taken to the foreign land where her husband resided.
2.Domestic Violence with she being brutally battered, assaulted, abused both physically and mentally, malnourished, confined and ill-treated.3.NRI husband already married thereby her becoming a victim of bigamy.
4.Continued demands for dowry, pre and post marriage from her in-laws.
5.Lenient legal system abroad in respect of grounds for divorce etc. which is misused by her husband.
6. Raison d’être for Fraud NRI nuptials Primarily, the antecedents of the boy and his family are not verified at the time of marriage proposal and this is the root cause for all the above-mentioned problems.
From the bride’s side the marriage is immediately rushed into because her parents find the proposal lucrative as laymen since on the face of it the foreign currency fetches more fortune than the national but often all that glitters is not gold. Majority of the grooms give out false information to their in-laws with respect to their legal status and smear a pseudo-optimistic picture of their employment eminence and this is not verified by the bride‟s family.
Issues at the root of Overseas Divorce :
There are a number of issues associated with the faltering of uncountable overseas Indian marriages. This research paper addresses two of those most important issues which create abysmal problems in the field of Private International Law.
1.Lenient Legal System abroad for grounds for divorceIt is in India that marriage is seen more as an alliance between two families rather than a mere union of two individuals. Even the Indian Supreme Court has in its judgments laid out a scheme by means of which it said that divorce should be prevented and ought to be an initiative of last resort when all cases of reconciliation between the parties are in vain.
General perspective is that it is easier to dissolve a marriage abroadbecause of thelenient legal system of divorce in foreign country and the NRI husband obtains ex-parte decree of divorce through fraudulent misrepresentations.
No-Fault Divorce Provision in theUSAIn 1969, California became the first jurisdiction in America(and in the western world) to adopt a modern, purely “no-fault “divorcelaw when it passed the Family Law Act of 1969, which became effective in 1970.10Since then fifteen states inthe US have “pure no-fault “divorcelaws in strict sense.11In a no-fault divorce, the spouse seeking the divorce does not have to show that the other party is at fault. Thestatute defined “irreconcilable differences” and “irremediable breakdown” in the broadest terms and evidence of marital misconduct was declared to be “improper” and “inadmissible.”Divorce is an emotional/moral subject that cannot easily be discussed objectively or with disinterested detachment.
Thus, it is undeniable that the basis for and method of obtaining divorce in the United States was “fundamentally altered” by the no-fault divorce reform laws enacted in the states.
Today observerswonder whether the no-fault divorce reform movement hasproduced merelya shift from earlier laws that favored women to an existingsystem that favors men.
In most cases an NRI marriage is solemnized in India and the bride is then taken to her husband‟s abode which is in the foreign land. Assuming atthis juncture, an ex-parte divorce decree is obtained by the NRI husband in a foreign court. Here, the Indian spouse is left helpless, deserted on Indian shores confronted with a matrimonial litigation of a foreign court, which she neither has themeans or ability to invoke which often results in despair, frustration and disgust.
The woman is denied maintenance in India on the pretext that marriage has been dissolved by a court in another country.It is submitted that the jurisdiction assumed by the foreign Court as well as the grounds on which the reliefis granted must be in accordance with the matrimonial law under which the partiesare married orwhere the respondentvoluntarily and effectively submits to the jurisdiction of the forum and contests the claimwhich is based on a ground available under the matrimonial law under which the parties aremarried.
Analysis of Case Laws:
In the recent case of SheenamRaheja v. AmitWadhwa, the Delhi high Court relying on the judgment given by the Supreme Court in Y. NarasimhaRao held that in instances of marriage between the parties having been solemnized and registered under the provisions of the Hindu Marriage Act, 1955 its dissolution could be effectedonly under the said Act.
Also, since irretrievable breakdown of marriage is not a ground for dissolving the marriage under Indian law, Indian Courts in principle do not recognize foreign matrimonial judgments dissolving marriage by such breakdown.
In another case theAP High Court refused to influence its decision with the divorce decree from the US court produced by the husband.VeenaKaliav Jatinder N. Kalia was another case where the NRI husband obtained ex parte divorce decree in Canada on ground not available to him in India.The Delhi High Court held that not only did such divorce decree not bar divorce petition by wife in India as it could not act as res judicata, it also did not bar applications for maintenance filed by the wife in her divorce petition.
These judicial pronouncements show the intention of the honorable Indian courts to de-recognize overseas matrimonial judgments which have been given in complete ignorance of the Indian law.Smt. Anubha v. VikasAggarwal discussed the issue whether the decree of „no fault divorce‟ obtained by the husband from the Connecticut Court of USA could be enforced on the wife when their marriage was solemnized as per the Hindu rites and the wife had not submitted to the jurisdiction of the Court in US and had not consented to grant of divorce. The Delhi High Court held that the decree obtained by the defendant from the Connecticut Court of USA was held to be neither recognizable nor enforceable in India.
The NRI husband also initiates divorce proceedings in a foreign court after deserting and harassing the wife.
Trends observed in Indian case law suggest that he does this for the following reasons:
(i) To ensure that the forum for divorce and other ancillary proceedings, such as maintenance or child support, is convenient to him, and inconvenient, or in some cases completely inaccessible, to the wife; (ii) To covertly obtain a decree of divorce in the absence of the wife in an attempt to foreclose all her rights;
(iii) To seek divorce on grounds such as irretrievable breakdown of marriage etc., not currently available under Indian law;
(iv) To avoid coming to India and facing prosecution for any criminal proceedings initiated by the wife. Only in a miniscule number of such cases does the wife actually contest the divorce proceedings. Often, she cannot, and does not, contest because she is unable to meet the costs of the case. It is found that frequently, the wife has also been sent to India, or has been deserted by the NRI husband.
Thus, often her only option is to initiate legal proceedings in India. Even so, the divorce procured in a foreign jurisdiction is not fatal to the rights of the wife. This is because the decree will then need to be enforced in India. This can be done only if it satisfies the requirements laid down under domestic law. Under Indian law, there are two ways by which a divorce decree obtained abroad can be enforced in India: either by way of Section 13, or Section 44A, of the Code of Civil Procedure. The former applies to judgments from countries with whom India does not have a treaty or agreement on mutual enforcement of judgments (Non-Reciprocating Territories), and the latter to countries with whom India has reciprocal enforcement agreements (Reciprocating Territories). Section 13, Code of Civil Procedure: When Foreign Judgment not Conclusive Here, a foreign judgment will be considered conclusive between the same parties on the same matter, unless the case falls under the far-reaching exceptions stipulated therein. The Supreme Court in the case of Y Narasimha Rao read Section13 of the Code of Civil Procedure to address this problem. It laid down circumstances in which such judgments would not be binding on the wife.