NRI MARRIAGES IN INDIA – ISSUES AND CHALLENGES – PART 3

Akhoury Anusheel*

(Continued from Part 2.)

LEGISLATIONS GOVERNING NRI MARRIAGES IN INDIA:

An NRI marriage is different from a normal marriage in the sense that it raises questions related to the validity of the marriage, the authority of Indian Courts when compared with that of the host country’s legal system and acceptance and enforcement of foreign judgements.

In India, an NRI marriage can be solemnized under the Foreign Marriage Act, 1969 which lays down the conditions for marriage to be followed by both the parties in Section 4:

A marriage between the parties one of whom at least is a citizen of India may be solemnized under this Act by or before a Marriage Officer in a Foreign country, if, at the time of the marriage, the following conditions are fulfilled, namely:

(a) Neither party has a spouse living,

(b) Neither party is an idiot or a lunatic,

(c)The bridegroom has completed the age of twenty-one years and be bride the age of eighteen years at the time of the marriage, and

(d) The parties are not within the degree of prohibited of relationship:

Provided that where the personal law or a custom governing at least one of the parties permits of a marriage between them, such marriage may be solemnized, notwithstanding that they are within the degrees of prohibited relationship.

Section 14 of this Act talks about the certificate of marriage:

(1) Whenever a marriage is solemnized under this Act, the Marriage Officer shall enter a certificate thereof in the form specified in the Third Schedule in a book to be kept by him for that purpose and to be called the Marriage Certificate Book, and such certificate shall be signed by the parties to the Marriages and the three witnesses.

(2) On a certificate being entered in the Marriage Certificate Book by the Marriage Officer, the certificate shall be deemed to the conclusive evidence of the fact that a marriage under this Act has been solemnized, and that all formalities respecting the residence of the party concurred previous to the marriage and the signature of witnesses have been complied with.

Section 17 (6) of this Act talks about the registration of foreign marriages:

A marriage registered under this section shall, as from the date of registration, be deemed to have solemnized under this Act.

Section 15 of this Act speaks of the validity of foreign marriages in India, and states that such marriages solemnized under this Act shall be good and valid in the eyes of law.

Aside from the Foreign Marriage Act, 1969, the other Acts under which an NRI marriage can be solemnized are:

1. The Hindu Marriage Act, 1955,

2. The Special Marriage Act, 1954,

And any other personal law or custom governing the spouses in regard to marriage.

These are the laws which govern an NRI marriage, but more often than not, dispute suits in foreign Courts are filed, and issues related to the applicable law crop up.

English Law faced this dilemma related to conflicting jurisdictions once upon a time. It was called the “Conflict of laws,” but later on the English law makers came up with something called “Private International Law” which dealt with the questions of jurisdiction and enforcement of foreign orders passed by foreign courts. India however, is yet to develop this class of legislation called Private International Law. Therefore, in cases related to NRI marriages, Indian Courts turn to Sections 13, 14 and 44 A of the Code of Civil Procedure, 1908.

Section 13 of the CPC, 1908, states the course of action when a foreign judgement is not conclusive or final, and lays down certain exceptions when Indian Courts can intervene and give their own judgement related to the case. The petitioner (or in such cases, the one who has been ordered by the foreign court) has to initiate and enforcement proceeding and wait for the Court’s judgement. After the proceedings are done with, the Court can pass a judgement for the enforcement of the foreign order through an execution petition. Thus, a foreign judgement is turned into a domestic judgment so as to allow its enforcement.

Once the Court is satisfied that the foreign court was competent to give the decision in the case, then the Indian Court will not further scrutinize the foreign judgment, but if it is vice versa, then the foreign decision will not be given any weight.

Section 14, CPC, 1908, speaks of certain assumptions in regard to foreign judgements. A certified copy of the foreign judgement produced before the Court will be considered to have been passed by a foreign Court of competent jurisdiction, but it is not an absolute piece of evidence. It can be questioned on the grounds of jurisdiction.

Section 44 A, CPC, 1908, talks about the execution of foreign orders passed by courts in reciprocating territory. The term reciprocating territory includes those countries outside India which have been designated so by the Indian Central Government for the application of this section. Section 44 A of the Code of Civil Procedure is quicker when compared to Section 13 of the same Code when matters of conflicting jurisdiction arise, as it allows for the direct adaptation and enforcement of foreign judgements by using the instrumentality called an execution petition without engaging in unnecessary preliminary case proceedings. This depends on two essentials:

1. Section 13 of the CPC must be completely applicable, i.e., all the conditions from 13(a) to 13(f) should be satisfied.

2. There should be a harmonious allegiance or understanding of the principle of comity between the two nations whose jurisdictions are in question.

A remedy available to the wife party to an NRI marriage in cases of marital discord and ill-treatment is mentioned under Section 10 of the Passports Act 1967. This provision provides for the seizure and revocation of the passport of the NRI husband if he doesn’t present himself in the Court when a summons notice is sent to him. This was held in the case of Rajiv Tayal v Union of India and Others, (2005) 124 DLT 502.

(To be continued in Part 4.)


*Graduate, Symbiosis Law School, Hyderabad, Symbiosis International (Deemed University), Pune.

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