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

Mr. Rohan, an Indian citizen, is currently residing in the Republic of Concordia with his wife, Ms. Priya, who is on a Spouse Support Visa. Ms. Priya joined him in Concordia a couple of years ago. After several years of marriage, Rohan is contemplating filing for divorce due to irreconcilable differences that have emerged over time. He has sought initial legal opinions and has been advised that filing for divorce in Concordia might be more advantageous than in India.

Rohan was initially considering traveling to India without informing his wife of his intentions to avoid a confrontation abroad, where he feels isolated. He planned to involve both families in India to mediate the process. While he believes his wife’s parents are reasonable, he is uncertain about how the situation will unfold and is deeply concerned about shielding his own parents and siblings from any potential legal harassment or complications.

He is now questioning the strategy of filing for divorce through a lawyer in Concordia after both he and his wife are physically present in India. Rohan hopes for an amicable separation and is willing to provide fair alimony, as he still cares for her well-being but feels he cannot continue the marriage. The core of his dilemma is choosing the correct jurisdiction and legal path to ensure a smooth process that protects his family.

Advice in such cases

Navigating a divorce when spouses reside in different countries involves complex legal challenges. The choice of jurisdiction—India or the foreign country—has significant implications for the entire process, including the grounds for divorce, division of assets, and alimony.

• Understanding Jurisdiction: The first step is to determine which country’s courts have the authority to hear the case. This often depends on factors like the place of marriage, the last place the couple resided together, and their current residency status.
• Enforceability of Foreign Decrees: A divorce decree granted by a foreign court is not automatically valid in India. Its recognition is governed by Section 13 of the Code of Civil Procedure, 1908. A foreign judgment may be rejected if it was not passed by a court of competent jurisdiction, was not given on the merits of the case, or is founded on a breach of any law in force in India.
• Risk of Parallel Proceedings: It is possible for one spouse to file for divorce abroad while the other initiates legal proceedings, including criminal complaints, in India. This can lead to a complicated and protracted legal battle across two jurisdictions.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is 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 much faster than you think.

Applicable Sections of Law

Matrimonial disputes involving Non-Resident Indians (NRIs) are primarily governed by Indian personal laws, along with procedural laws that dictate jurisdiction and enforcement.

• The Hindu Marriage Act, 1955: This act governs divorce among Hindus. Section 13 lists the grounds for divorce, such as cruelty, desertion, and adultery.
• The Special Marriage Act, 1954: This act applies to inter-faith marriages and civil marriages, providing secular grounds for divorce.
• The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS): Section 144 of the BNSS allows a wife to claim maintenance, regardless of where the divorce proceedings are filed.
• The Bharatiya Nyaya Sanhita, 2023 (BNS): Sections 85 and 86 of the BNS (corresponding to the old Section 498A IPC) deal with cruelty by a husband or his relatives. These provisions are often invoked in matrimonial disputes and can lead to criminal proceedings against the husband and his family members in India.
• Code of Civil Procedure, 1908: Section 13 is critical as it lays down the conditions under which a foreign judgment is considered conclusive and enforceable in India.

If you are the complainant

If you are the one initiating the divorce, a strategic and well-thought-out approach is essential.

• Gather Documentation: Collect all relevant documents, including the marriage certificate, passports, visa details, proof of residence in both countries, and evidence of your financial status.
• Document Grounds for Divorce: Carefully document all instances of cruelty, desertion, or other grounds on which you are seeking the divorce. This can include emails, text messages, or witness accounts.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is 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 much faster than you think.
• Choose Jurisdiction Wisely: Discuss the pros and cons of filing in India versus the foreign country. Factors to consider include the speed of the legal process, laws regarding alimony and asset division, and the potential for your family in India to be implicated.
• Anticipate Counter-Actions: Be prepared for the possibility that your spouse may file criminal complaints in India under sections like 85/86 BNS. An experienced lawyer can advise on how to seek anticipatory bail and protect your family members.

If you are the victim

If you are the spouse against whom divorce has been filed, it is crucial to act promptly to protect your rights.

• Do Not Ignore Notices: If you receive a legal notice or summons from a foreign court, do not ignore it. Failure to respond can result in an ex-parte decree (a judgment passed in your absence) against you.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is 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 much faster than you think.
• Assert Your Rights in India: You have the right to file for maintenance under Section 144 of the BNSS in an Indian court, even if divorce proceedings are ongoing abroad. You can also initiate your own civil or criminal proceedings in India if grounds exist.
• Challenge Foreign Decree: If an ex-parte divorce decree is passed against you, you can challenge its validity and enforceability in India under Section 13 of the CPC, especially if the foreign court did not have proper jurisdiction or if the grounds for divorce are not recognized under Indian law.

How the police behave in such cases

The police’s role in divorce is generally limited to criminal complaints. In civil divorce proceedings, they have no direct involvement. However, if a complaint is filed under Section 85/86 of the BNS (Cruelty), the police are obligated to register a First Information Report (FIR) and investigate the matter. This can lead to the arrest of the husband and his family members upon their arrival in India. The police will conduct an investigation, collect evidence, and file a chargesheet if they find merit in the allegations. This criminal case proceeds independently of the civil divorce case.

FAQs people normally have

Is a divorce granted by a foreign court automatically valid in India?

No. A foreign divorce decree must meet the conditions laid out in Section 13 of the Code of Civil Procedure, 1908, to be recognized in India. If the decree was passed without proper jurisdiction or is contrary to Indian law, it can be challenged and declared invalid by an Indian court.

What happens if my spouse files a criminal case for cruelty in India while our divorce is pending abroad?

The criminal case in India and the civil divorce case abroad are separate legal proceedings. The criminal case will be investigated by the Indian police, and you may be required to appear before the Indian courts. It is crucial to engage a lawyer in India to handle the criminal matter, which may involve applying for anticipatory bail to prevent arrest.

How is alimony decided in NRI divorce cases?

Alimony is decided based on the laws of the country where the case is being heard. Courts typically consider factors like the income and assets of both spouses, the duration of the marriage, the standard of living during the marriage, and the future needs of the dependent spouse. If the case is in India, the court will apply Indian legal principles to determine the amount.

What evidence is required?

For a contested divorce, comprehensive evidence is key. This includes:

• Proof of Marriage: Marriage certificate, photographs, and invitations.
• Proof of Jurisdiction: Documents showing residency, such as utility bills, rental agreements, or employment letters.
• Evidence for Grounds of Divorce: For cruelty, this could be emails, text messages, witness statements, or medical reports. For desertion, proof of separate living is required.
• Financial Documents: Bank statements, tax returns, salary slips, and property documents of both parties are essential for determining alimony and maintenance.

How long will the investigation take?

In civil divorce cases, there is no “investigation” in the police sense. The process is a “proceeding” that moves through the court system. The duration varies significantly:

• Mutual Consent Divorce: If both parties agree, a divorce can be obtained relatively quickly, typically within 6 to 18 months in India.
• Contested Divorce: A contested divorce, especially one with international elements, can be lengthy and may take several years to resolve due to procedural delays, evidence collection across borders, and appeals.

If a criminal case is filed, the police investigation timeline can also vary, but they are generally expected to conclude it within a few months and file a final report or chargesheet.

Advocate Sudhir Rao, Supreme Court of India