How can NRI couple married in India get mutual divorce? Where to file?


How can an NRI couple married in India get Divorce by Mutual consent? My nephew got married in India in 1997 according to Hindu marriage rites and was later registered. At the time of marriage my nephew was working in the US and the girl was in India. Later both of them became naturalized American citizens and had a son born in America.

 

Now they are breaking up. Kindly let me know 1. Can they file a divorce case in India 2. Whether the judgement will be binding in USA 3. Will the divorce proceedings be taken cognizance and implemented in USA 4. can they initiate divorce proceedings on line and through video conferencing 5. what is the time frame?

 

Answer

With respect to matrimonial disputes, the jurisdiction of courts is determined based on the following considerations:

i. Where the marriage was solemnized
ii. Where the couple last stayed together (the matrimonial home)

In your nephew’s case, they are amenable to the jurisdiction of both India and US. So, they can file a divorce petition either in India or in USA. 

However, we would like to mention that it is preferred that you file the divorce petition in India as a divorce decree passed in USA can be challenged and declared null and void in India on the following grounds:

i. When Granted by Court not authorised by Indian Law to grant the same
ii. When one side is not heard or his/her submissions not taken on record
iii. On a ground not recognised by Indian Law
iv. When the proceedings are against principles of Natural Justice
v. If it is obtained by fraud

In such a case you shall end up divorced in USA and married in India. 

2. As a marriage registered in India is recognized in USA, similarly a divorce decree passed in India is also recognized in USA. India is the court of competent jurisdiction as the marriage was solemnized in India as per Hindu rites and rituals under the Hindu Marriage Act and even registered in India.

3. After a divorce decree is passed in India, you shall have to file a case for recognition of the said decree in USA and your divorce shall be recognized in USA. 

4. Yes the divorce proceedings for mutual consent divorce can be initiated in India through video conferencing by sending over a Power of Attorney. 

5. The Court under Mutual Consent Divorce gives a statutory period of 6 months for the parties to resolve the dispute and in case the parties are unable to resolve their issues within this time period, the divorce is granted.

 


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