This article is authored by Sakshee Saxena, a fourth year law student at JECRC University, Jaipur.
India has always valued its religious and cultural beliefs. However, it is ironic that atrocities against women are on the rise in a country where religious and cultural customs hold women in high regard and they are worshipped in the form of many deities. The patriarchal nature of Indian society is the main cause of deprivation of women’s rights. Violence against women has always been a part of the patriarchal value structure, as well as the social framework that forces women into a subordinate role. The problems of women who have been abandoned by non-resident Indian (NRI) bridegrooms are a concern that gets lost in the shuffle of big issues that women face in India.
The Concept of Overseas/NRI marriages:
Marriages between an Indian woman from India and an Indian man residing in another country ,either as an Indian citizen or as a citizen of that other country, are known as ‘NRI marriages’. With the increase in transnational migration, the number of Indian women marrying Indian men living in other countries is on the rise. NRI marriages in India are regulated by the personal laws of the state where the marriage took place. In foreign countries on the other hand, rules of Private International law are applied.
The allure of establishing a business settling down in a foreign jurisdiction attracts a substantial Indian community, but the problems that migration creates such as fraud, deception, abandonment and violence with Indian wives are largely unresolved. However, in view of rapidly accelerating globalisation and expansion of Indian communities outside of India, it is necessary to consider the consequences of such an overarching phenomenon.
Vices Related to Overseas Indian Marriages:
The abandonment of married women by their Non Resident Indian (NRI) husbands is a new and distinct type of violence against women. NRI men abandoning their wives has become common occurrence now. Overseas marriages go through same ups and downs as any other marriage except these marriages are governed not only by Indian law but foreign law as well. The abandonment of Indian wives by their NRI (non-resident Indian) husbands has reached epidemic proportions in recent years.
Issues Arising Out of Such Marriages:
Desertion of Women by NRIs : The pattern of abandonment of wife by NRI men falls into three categories:
· A woman residing with her husband in a foreign country suddenly finds her husband has disappeared leaving her in the lurch.
· A woman residing abroad with her husband is deceptively taken back to India and left there without passport visa and money and without any way of reuniting with her husband.
· A woman who is married when husband visits India and he migrates to other country without sending back any support for visa and the women is left abandoned while there is no news from the husbands side.
Domestic violence : some women are taken abroad only to be brutally battered, assaulted, abused both mentally and physically, malnourished, confined and ill-treated by their husbands and sometimes by their in-laws for dowry[i].
Lenient legal system abroad for grounds of divorce: In terms of divorce, Indian laws are more strict than those in Western countries. Husbands who live in western countries take advantage of local rules to avoid Indian laws and seek ex-parte divorce decrees.
The issue in NRI marriages is multifaceted, and it includes dowry demand, brutality and other forms of abuse, non-consummation of marriage, marriage of convenience, concealment of a prior marriage, ex-parte divorce, and other issues. While abandoned brides are a problem in many Indian states, including Gujarat, Haryana, Rajasthan,Tamil Nadu, Kerala, and Andhra Pradesh, the problem is particularly severe in Punjab and in the northern part of the country, where a strong desire to migrate to western countries has long existed.
Laws Related to NRI marriages:
The NRI marriages are governed by following laws-
a) the Hindu Marriage Act, 1955
b) the Special Marriage Act, 1954,
c) the Foreign Marriage Act, 1969
d) Any other personal law governing the spouses.
e) The Foreign Marriage Act, 1969, which is merely an extension of the 1954 Special Marriage Act, allows an Indian national to marry abroad with another Indian national, a foreign national, or an individual domiciled in another country.
In cases related to issues arising out of NRI Indian marriages, Indian courts rely on section 13,14 and 44A of civil procedure code.
Section 13 states the circumstances when a foreign judgement is not conclusive or final, and establishes certain exceptions in which Indian courts may interfere and render their own decision in the case. When a foreign judgement is founded on jurisdiction or on ground not recognised by Indian law, it is not conclusive. As a result, even if NRI husbands approach the courts where they reside and procure a divorce, it would be null and void if the grounds on which they obtained the divorce are not recognised by Indian law[ii].
Section 14 declare that the Court shall presume that a foreign judgement was pronounced by court of competent jurisdiction, if it is not contrary to natural justice, not obtained by fraud, and not in violation of Indian law and if it is not found on the face of the proceedings to be based on correct international law or denied to accept Indian law with reference to related matter of disputes.
Section 44A talks about the execution of foreign orders passed by courts in reciprocating territory.However,in an absence of Indian legislation with regard to Private International Law,and in matters related to matrimonial and familial disputes, Sections 13 and 14 of the CPC, 1908, will be given prime consideration and effect[iii].
Section 3 of IPC states that if a person commits an offence outside of India's territorial limits that is of a nature that can be prosecuted under Indian law, the person can be tried under the Indian Penal Code's provisions as if the offence had been committed within India's jurisdictional boundaries. If an NRI commits a crime under section 498A, 494 or 495 of the Indian Penal Code even on foreign land,a criminal case can be filed in India.
Initiatives to Safeguard the Rights of Deserted Indian Women:
The Ministry of Overseas Indian Affairs has released a guidance booklet on "Marriages to Overseas Indians,"on 3rd Feb 2012, which includes details on the protections available to women who have been abandoned by their Non-Resident Indian husbands, legal remedies available, and authorities to contact for redressal of grievances.
Besides that ,In February2007, the Ministry of Overseas Indian Affairs (MOIA) initiated a scheme to provide financial assistance to vulnerable Indian women who have been abandoned by their Overseas Indian husbands and are facing divorce proceedings in a foreign country.
The 219th Report of law commission[iv] highlights the Need for Family Law Legislation for Non-resident Indians. The report briefly states the issues arising out of such marriages,difficulties faced under Indian law and it also suggests solution and remedies.
The National Commission for Women (NCW), the national coordinating body for issues relating to NRI marriages,has published a booklet titled "Problems Relating to NRI marriages- Dos and Don'ts".
The Supreme Court has also emphasised the need to consider legislation safeguarding the interests of women and has suggested the following specific provisions in the case of Neeraja Sharaph vs. Jayant Saraph[v] :
1. No marriage between an NRI and an Indian woman which has taken place in India may be annulled by a foreign court.
2. Adequate alimony should be paid to the wife out of the share of the property of the husband, both in India and abroad in case of divorce.
3. The decree granted by Indian courts should be made executable in foreign courts both on the principle of comity by entering into reciprocal agreements and notifying them under section 44A of the Civil Procedure Code which makes a foreign decree executable as it would have been a decree passed by that court
The Proposed Bill (The Registration of Marriage of Non-Resident Indian Bill, 2019):
The Bill was introduced in the Rajya Sabha on Feb 11 2019, by former foreign minister Sushma Swaraj in response to allegations of Indian women being deceived into marriages with non-resident Indians[vi].
· The Bill proposes to make it mandatory to register a marriage with an NRI partner within 30 days of the date of the marriage.
· The amendments to the CrPC, 1973 will enable courts to issue summonses and warrants through the Ministry of External Affairs' specially designated website.
This Bill would provide relief to all Indian women worldwide who are married to NRIs.
Conclusion and Recommendations : is a strict law need of the hour ?
In India, marriage is considered as sacrament, hence The relationship between a husband and wife is said to be the purest form of relation. Over the years, India's cultural norms have undergone continuous and incremental change and transformation. Overseas marriages are also not unusual as a result of globalisation and migration of Indian citizens to abroad. Concerns about NRI marriages have changed dramatically, affecting women of Indian nationality and their families all over the world. The number of complaints and petitions regarding NRI Marital Grievances is increasing at an astonishing rate.
In recent years, the government has taken constructive steps to address the crisis in NRI marriages, and has drafted a bill mandating marriage registration. However, There is a need to comprehend and formulate strict laws on both national and international level to safeguard the rights of women with regard to marriage, divorce, maintenance, inheritance and custody of children etc.
[i] Marriages to Overseas Indians- A guidance booklet, Ministry of Overseas Indian Affairs [ii] Anubha v Vikas Aggarwal (100 (2002) DLT 682). [iii] Satya (Smt.) v Teja Singh AIR 1975 SC 105 [iv] Forwarded to the Union Minister for Law and Justice,Ministry of Law and Justice, Government of India by Dr. Justice AR. Lakshmanan, Chairman, Law Commission of India, on the 30th day of March,2009. [v] 1994 SCC (6) 461 [vi] Recommended by The Parliamentary Standing Committee on External Affairs headed by Shri P.P Chaudhary