NRI MARRIAGES IN INDIA – ISSUES AND CHALLENGES – PART 4

Akhoury Anusheel*

(Continued from Part 3.)

POSSIBLE REMEDIES:

Article 15 (3) of the Constitution of India speaks of a Fundamental Right:

Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth: (3) Nothing in this article shall prevent the State from making any special provision for women and children.[1]

As we can see, the Indian Constitution itself provides a Fundamental Right which grants special privileges to women in the sense that the government or State can make specific provisions for their safety and security. Strict and proper implementation of this Fundamental Right can be done by taking the help of the National Commission for Women or NCW, as was created by the legislation called National Commission for Women Act, 1990, for the better protection of the rights of women.[2]

There are many avenues of help available to women, but men are not guilty in all faulty cases related NRI marriages. Therefore, sensitization of the society at large as to the problems faced by Indian men (with regard to frivolous and malicious suits filed against them for the alleged offence of say, domestic violence, or an offence of cruelty under Section 498 A of the Indian Penal Code, 1860[3]) should also be done.

Creating awareness amongst families of all classes about the positive and negative aspects of NRI marriages can also be planned. If a country-wide Census can be conducted every ten years, then surely some manpower can be spared to execute this awareness campaign as well. It would behove the parties to a possible NRI marriage to know of their rights under various legislations such as Sections 13 and 14 of the CPC, 1908, or Section 10 of the Passports Act, 1967.

General awareness about what to do and, more importantly, to not do, should be spread with regard to verification of both the spouses’ identities, actual marital status and other pertinent details which may possibly change their decision about participating in the marriage and solemnizing it. Much trouble can thus be avoided.

2. Concrete legislations on Private International Law

India is a signatory to CEDAW (Convention for the Elimination of all forms of Discrimination Against Women) which was adapted by the UN General Assembly in the year 1979, and was ratified (signed and agreed to) by India in 1993. This Convention is considered the International Bill of Rights for Women, and covers all spheres of civil, political, economic, social, public and private lives of women, and also places emphasis on the need to safeguard the reproductive rights of women. It talks of traditions and cultural practices, and also patriarchy and its effects which gives rise to a regressive mindset.

Article 1 of CEDAW reads as follows:

For the purposes of the present Convention, the term ‘discrimination against women’ shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

The problem with the implementation of this Convention is that member States can limit the spheres in which they want to apply the provisions of it. India, though a signatory and member State, is very lax when it comes to the application of the principles and rights envisioned in this Convention. The government of India says that it does not wish to interfere in the private lives and customs of people, which are guided by tradition and historical practice. But this inaction itself is the cause for the discrimination against women.

If the nation has signed to such an international convention, then it should use its provisions as a lens to interpret national laws which safeguard the rights of women. There are other conventions too, to which India is a signatory, such as the UDHR (Universal Declaration of Human Rights), ICCPR (International Covenant on Civil and Political Rights) and ICESCR (International Covenant of Economic, Social and Cultural Rights). The aims and objectives of these treaties and conventions can be used to lay down provisions related to Private International Law.

Even the Supreme Court in the case of Vishaka in 1997, held that international conventions can be used to interpret our own laws and that by becoming a signatory to CEDAW, India had committed itself to an international standard or model of rights for women. So, why not use CEDAW and other conventions to frame legislations related to Private International Law? The provisions which resemble this are scattered throughout different statutes of Indian Law, and not codified in a single place, which makes the application of this specific law very difficult.

Legislations which answer the question of applicable jurisdiction, the correct law(s) which can be applied and the acceptability of foreign decrees passed by foreign Courts are required, so as to make adjudication in cases of faulty NRI marriages easier and expeditious. But one thing must be kept in mind that while such legislations are being formed, the law-makers should not become overly zealous with respect to empowering women, same as they should not give in to patriarchal norms of society. Such a balance is difficult to attain, but is necessary. The plight of not only women who are victims, but those few men too, should be taken into consideration, and laws should be made to alleviate such agony of the people who suffer in such marriages.


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

[1] GOPAL SANKANARAYANAN, THE CONSTITUTION OF INDIA 14 (9th ed., Eastern Book Company 2016).

[2] HUMAN RIGHTS: A SOURCE BOOK 168 (ARJUN DEV et al., National Council of Educational Research and Training 1996).

[3] PADALA RAMA REDDI, INDIAN PENAL CODE, 1860 251 (24th ed., Asia Law House 2016).

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