If you are stuck in such a situation, here is what to do.

A complex situation has arisen concerning a marriage that was officially registered in the state of Avantika Pradesh under the Special Marriage Act. The husband, Mr. Rohan, is an Indian citizen but resides permanently in the fictional country of Zanland (an NRI). The wife, Ms. Isabella, is a citizen of Zanland. They have one child, who is also a citizen of Zanland, and all of their joint assets are located abroad in Zanland. The couple has been living in Zanland for the past several years.

The core issue is whether Ms. Isabella can initiate divorce proceedings in Avantika Pradesh, India. Questions have been raised about the jurisdiction of Indian courts over such matters, especially concerning residency requirements, child maintenance for a foreign national child, and the division of assets located entirely outside of India.

Advice in such cases

Navigating an international divorce is intricate, but Indian law provides a framework. The jurisdiction of an Indian court in a divorce case is primarily determined by statutes like the Special Marriage Act or the Hindu Marriage Act. A key principle is that a divorce petition can be filed in the district court within whose jurisdiction the marriage was solemnized. Therefore, since the marriage was registered in Avantika Pradesh, an Indian court there would likely have the jurisdiction to hear the divorce petition, regardless of the current residency of the parties.

However, while the court can grant a divorce, enforcing orders related to child maintenance and the division of foreign assets becomes complicated. The enforcement of such orders would depend on the laws of Zanland and any reciprocal agreements or treaties between India and Zanland for the execution of judicial decrees.

Applicable Sections of Law

The legal framework for such a case primarily involves civil law rather than criminal statutes like the Bharatiya Nyaya Sanhita (BNS).

• The Special Marriage Act, 1954: Since the marriage was registered under this Act, its provisions will govern the divorce. Section 31 of the Act specifies the jurisdictions where a petition can be filed, which includes the place where the marriage was solemnized.
• The Code of Civil Procedure, 1908: This code outlines the procedural aspects of civil litigation in India, including the service of summons to a party residing abroad and the rules of jurisdiction.
• Foreign Marriage Act, 1969: This act may also be relevant for marriages solemnized where one party is an Indian citizen and the other is a foreign national.

If you are the complainant

If you are in Ms. Isabella’s position and wish to file for divorce in India, the following steps are advised:

• Consult with Lawyer: The very basic and important step to start is to talk to a lawyer/advocate. You should not hesitate in paying his consultation fee, which might be in the range of Rs. 10,000 to 50,000, depending on the case. He is helping you in this situation to come out. He is an expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved in 7-10 days.
• Filing the Petition: File a divorce petition in the Family Court of the district in Avantika Pradesh where your marriage was registered.
• Grounds for Divorce: Clearly state the grounds for seeking the divorce as per the provisions of the Special Marriage Act.
• Prayer for Relief: In your petition, you can include prayers for child maintenance and a share in assets, but be aware that enforcing these orders for foreign assets and a foreign-national child will be a separate and complex legal challenge.

If you are the respondent

If you are the respondent, like Mr. Rohan, living abroad and receiving a summons from an Indian court:

• Do Not Ignore the Summons: Ignoring a legal notice can lead to the court passing an ex-parte decree (a judgment in your absence), which can complicate your legal status and future travel to India.
• Engage a Lawyer: Immediately hire a competent lawyer in India to represent you.
• Challenge Jurisdiction (if applicable): Your lawyer can advise you on whether there are grounds to challenge the court’s jurisdiction, particularly concerning orders about assets located outside of India.
• Participate in Proceedings: It is in your best interest to participate in the proceedings through your legal counsel to present your side of the story and protect your interests.

How the police behave in such cases

Divorce is a civil matter, so the police have a very limited or no direct role in the proceedings themselves. Police involvement would only occur if a criminal complaint is filed alongside the civil case, such as allegations of cruelty, harassment, or criminal intimidation. In such a scenario, the police would conduct an investigation as per the provisions of the Bharatiya Nyaya Sanhita (BNS) and the Bharatiya Nagarik Suraksha Sanhita (BNSS). Otherwise, for the divorce case, all matters are handled by the Family Court.

FAQs people normally have

What evidence is required?

To file for divorce in such a scenario, you will typically need:

• The official Marriage Certificate issued under the Special Marriage Act.
• Proof of identity and citizenship for both parties.
• Evidence supporting the grounds for divorce (e.g., communication records, witness statements).
• Documents related to the child, such as birth certificate and passport.
• A comprehensive list and documentation of assets and income, even if they are located abroad, as this will be relevant for maintenance and alimony discussions.

How long will the case take?

A contested divorce involving international parties can be a lengthy process in India. The duration can range from two to several years, depending on various factors:

• Service of Notice: Serving summons to a party in a foreign country can take a significant amount of time.
• Jurisdictional Challenges: If the respondent challenges the court’s jurisdiction, this preliminary issue itself can take months or years to resolve.
• Complexity of Issues: Cases involving foreign assets and international child custody are inherently more complex and time-consuming.
• Court’s Caseload: The backlog of cases in the concerned court also affects the timeline.

Advocate Sudhir Rao, Supreme Court of India