NRI Legal Services in India
Non-Resident Indians face legal issues in India even when they live and work outside the country. Family disputes, divorce, child custody, maintenance, property matters, and proceedings before Indian courts may require attention in India while one or both parties reside abroad.
NRI legal services in India can cover legal matters related to family relationships, matrimonial proceedings, property disputes, and other disputes with an Indian legal or jurisdictional connection.
The legal position in an NRI matter depends on the facts, the country of residence, the nature of the dispute, the law governing the relationship and the jurisdiction of the relevant Indian court.
Family Law Matters for NRIs
Family-law issues involving NRIs can arise in several situations. One spouse may live abroad while the other remains in India, or both spouses may live outside India and maintain legal, family or property connections with India.
Common matters include:
Divorce and matrimonial disputes
Mutual consent divorce
Contested divorce
Maintenance and alimony
International child custody
Domestic violence proceedings
Domestic violence proceedings
Property disputes between family members
Succession and inheritance issues
Execution of documents through a power of attorney
Recognition or enforcement of certain orders
The applicable law is not determined simply by the fact that a person is an NRI. Marriage circumstances, parties’ residence, location of the property, and the nature of the proceeding all need to be considered.
01
Divorce for NRIs
An NRI may need to consider divorce proceedings in India where the circumstances and jurisdictional requirements permit an Indian court to hear the matter.
The law governing the marriage is important. For example, the Hindu Marriage Act, 1955 contains provisions concerning Hindu marriages, divorce, jurisdiction and procedure. The Special Marriage Act, 1954 provides for a special form of marriage and includes provisions concerning divorce and related matrimonial proceedings.
A few important sections within these acts include:
- Section 19 of the Hindu Marriage Act
- Section 31 of the Special Marriage Act
- Section 13 of the Civil Procedure Code
- Section 9 of the Guardians and Wards Act
- Section 13 of the Family Courts Act
An NRI considering divorce in India may therefore need to establish:
Such factors can affect the appropriate court and procedure.
What is Section 44A of the Civil Procedure Code?
Section 44A of the Civil Procedure Code allows a decree of a superior court in a reciprocating territory to be executed in India as though it were a decree of an Indian court. The United Kingdom and the UAE are notified of reciprocating territories; the United States is not.
A maintenance or custody order obtained in London is therefore in a materially different position in India from one obtained in New Jersey, and a client who does not know that can waste a great deal of time and money on the wrong route.
02
Mutual Consent Divorce for NRIs
Where both spouses agree to dissolve their marriage, a mutual consent divorce may be considered if the statutory requirements are satisfied.For an NRI couple, additional practical questions can arise concerning documents, signatures, appearances, communication with the court and participation from abroad.
The ability to participate remotely or through another procedural arrangement depends on the applicable law, the court handling the matter and the circumstances of the case. It should not be assumed that every court will permit the same arrangement.Where a power of attorney is proposed, the document should be prepared and executed in accordance with the requirements applicable to the particular transaction and jurisdiction.
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Contested Divorce Involving NRIs
A contested divorce can involve additional procedural considerations when one spouse lives outside India.
These may include:
The fact that a spouse lives abroad does not by itself determine whether an Indian court has jurisdiction.
A skilled lawyer like Adv. Kanchan Talreja will understand the matter and examine the relevant jurisdictional provisions before starting the proceedings.
04
Child Custody and NRI Parents
Child custody disputes where parents live in different countries require consideration of family law principles and the child’s practical circumstances.
Questions may include:
The Guardians and Wards Act, 1890 contains provisions concerning guardianship and the jurisdiction and procedure of courts dealing with guardianship matters.
The welfare of the child remains central to custody decisions. An NRI parent’s residence abroad does not, by itself, determine whether that parent can seek custody or visitation.
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Maintenance for NRI Families
Maintenance disputes may arise where one spouse lives abroad, and the other remains in India. An application may require information concerning the financial circumstances of both parties. Where the respondent earns income outside India, questions may arise concerning salary, employment, assets, investments and other financial resources.
The applicable legal provision determines the procedure and the information that may need to be placed before the court. The existence of overseas income does not automatically determine the amount of maintenance. The court considers the relevant financial circumstances and applicable law.
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Family Courts and NRI Proceedings
Family Courts deal with disputes relating to marriage and family affairs within the jurisdiction provided by law. The Family Courts Act, 1984 sets out provisions concerning the establishment, jurisdiction and procedure of Family Courts. It also addresses settlement efforts, proceedings, legal representation, judgments and appeals.
An NRI involved in a family-law dispute in India may therefore need to identify the appropriate court based on the nature of the proceeding and the applicable jurisdictional provisions. The location of the court is particularly relevant when documents, appearances or evidence need handled during the proceedings.
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Power of Attorney for NRIs
A power of attorney may be relevant where an NRI needs someone in India to act on their behalf for a particular legal or administrative purpose.
The scope of a power of attorney depends on the authority granted in the document. It should clearly identify the acts the authorised person is permitted to undertake.
A power of attorney does not automatically give the attorney authority to perform every act on behalf of the principal. The document must be examined to determine its scope.
For documents executed outside India, additional requirements concerning execution, notarisation, attestation, stamping or registration may arise depending on the document and the purpose for which it will be used in India.
The requirements should be confirmed for the specific document before it is executed.
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Legal Documents for NRIs
An NRI dealing with a legal matter in India may be asked to provide documents such as:
The documents required depend on the nature of the matter.
Documents issued outside India may also require authentication, apostille, attestation or other formalities before they can be used in India, depending on their nature and the country in which they were issued.
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Legal Assistance for NRIs in Family Matters
Legal help for NRIs in family matters involves reviewing the circumstances, identifying the applicable Indian law, assessing jurisdiction, preparing documents and representing the client before the appropriate court.
Depending on the matter, assistance may include:
The legal approach depends on the individual circumstances rather than the person’s NRI status alone.
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Understanding NRI Legal Matters
Legal matters involving NRIs often require attention to both Indian law and practical issues arising from residence outside India. Adv. Kanchan Talreja, with her expertise in this field, has a large NRI client base who trust her to advise them in their best interests.
The country in which a person lives, the location of the marriage, spouse’s residences, location of children or property, and existing proceedings can affect the legal position.
An NRI dealing with a family dispute in India should therefore obtain advice based on the specific facts and documents of the matter. General information cannot determine which court has jurisdiction or what procedure will apply in an individual case.
No particular outcome, timeline, court order or enforcement result can be guaranteed.
References
- The Hindu Marriage Act, 1955, India Code, Ministry of Law and Justice, Government of India.
- The Special Marriage Act, 1954, India Code, Ministry of Law and Justice, Government of India.
- The Family Courts Act, 1984, India Code, Ministry of Law and Justice, Government of India.
- The Guardians and Wards Act, 1890, India Code, Ministry of Law and Justice, Government of India.
