Authored by Ram Malani, law student from Faculty of Law Marwadi, Gujarat
Over the years in Indian the women are trapped in the fraudulent marriages with the overseas Indians. There is now an urgent need to build a safeguard for the protection of women and make them about their rights available and their responsibilities on one hand and on another about the safety nets and the social defence mechanism tat are available and which could also assist them. NRI marriages the are generally understood as the marriage between an Indian woman from India and an Indian man residing in another country, as a citizen of India or another country. The marriages of the overseas Indians they are like any other marriage and it also goes through the same ups and downs but except that these kinds of marriages they are not only governed by the Indian Legal system but also by the complex private International law which involves the legal system of other country. This paper it will provide the common issues in the NRI marriages and the legal rights and provision available to women.
The persisting division of ‘private’ versus ‘public’ spaces which views the entry of law in homes as “bull within the china shop” has been largely responsible for keeping the homes considerably insulated from the legal system, notwithstanding the very fact that a number of the grossest rights’ violations happen within the ‘sacrosanct’ four-walls of the homes. This dilemma, coupled with the sensitive and delicate nature of matrimonial relationships per se, are largely chargeable for making the complete gamut of matrimonial disputes one of the foremost challenging and complicated areas for legal intervention within any system. What makes it further complex particularly within the Indian context is the incontrovertible fact that within the absence of uniform civil laws, the non-public laws of every religious community still vary during this country, thus making the matrimonial disputes, especially in’ inter-religious marriages, even more difficult to handle.
In this already complex scenario where matrimonial disputes are placed, the legal complications get multiplied manifold when a wedding steps out of the borders of a countiy and so the boundaries of the country’s legal system, during a phenomenon that has come to be called the “NRI marriages”. These marriages must then enter the domain – often called the ‘maze’ – of personal jurisprudence that deals with the interplay and conflict of laws of various countries, which makes the problems therein that far more complex as are explained later hereunder.
Even though this can be a gender-neutral term, typically the ‘NRI marriages’, as generally understood, are between an Indian woman from India and an Indian man residing in another country (thus NRI – non-resident Indian), either as Indian citizen (when he would legally be an ‘NRI’) or as citizen of that other country (when he would legally be a PIO – person of Indian origin). With the characteristic Indians’ penchant for migration to foreign countries, such alliances are seen because the most coveted ones in Indian society, promising greener pastures for not just the girl but her entire family.
In the eagerness to not relinquishing of such, the families totally ignore even the common cautions that are observed in tradition matchmaking. They also ignore that just in case of things going awry in an NRI marriage, the woman’s recourse to justice is greatly constrained by the rationale that such marriage is not governed any further by only the Indian system but by the way more complex private international laws involving the system of the opposite country too. They even ignore the plain and easy indisputable fact that just logistically for a lady to barter her thanks to justice across thousands of miles would be a thoroughly exasperating experience. The aggravated risks in such marriages, the lady being isolated far from direct an alien land, inevitably facing constraints of language, communication, lack of data of local criminal justice, police and system, lack of support network of friends and family to show to, lack of immediate and readily available monetary support and an area to require shelter in, are issues that nobody likes to speak or hear about at the time of marriage. it’s therefore hardly surprising that there’s growing evidence today that as the quantity of NRI marriages is escalating by thousands once a year, with the increasing Indian Diaspora, the number of matrimonial and related disputes within the NRI marriages have also risen proportionately, of course at the most places way more than proportionately.
Common issues in NRI’s marriages
Some of the standard instances of the problems that arise in NRI marriages that are repeatedly reflected within the actual case studies from different states of the country are as follows:
1) Woman married to the NRI’s they were abandoned even before being taken by her husband to the foreign country of his residence. After a brief honeymoon he had went back, promising her to soon send her ticket and that he never came. In many instances the lady would have already got been pregnant when he left so both she and also the child (who was born later) were abandoned. The husband never called or wrote and never came back again. The in-laws who were still be in India would either plead helplessness or flatly refuse to assist.
2) Woman visited her husband’s target the opposite country only to be brutally battered, assaulted, abused both mentally and physically, malnourished, confined and ill-treated by him in several other ways. She was therefore either forced to escape or was forcibly sent back. It could even be that she wasn’t allowed to bring back her children. In many cases, the youngsters were abducted or forcibly detached from the woman.
3) Woman who was herself or whose parents were held to ransom for payment of giant sums of cash as dowry, both before and after the wedding, making her continued stay and safety in her husband’s country of residence enthusiastic about that.
4) Woman who reached the foreign country of her husband’s residence and waited helpless at the international airport there only to search out that her husband wouldn’t turn up the least bit.
5) Woman who was abandoned within the foreign country with absolutely no support or means of sustenance or escape and without even the legal permission to remain on in that country.
6) Woman who learnt on reaching the country of her NRI husband’s residence that he was already married within the other country to a different woman, whom he continued to live with. He may have married her because of pressure from his parents and to please them or sometimes even to use her sort of a servant or develop dowry.
7) Woman who later learnt that her NRI husband had given false information on any or all of the following: his job, immigration status, earning, property, legal status and other material particulars, to con her into the wedding.
8) Woman whose husband, taking advantage of more lenient divorce grounds in other legal systems, obtained ex-parte decree of divorce within the foreign country through fraudulent representations and/ or behind her back, without her knowledge, after she was sent back or forced to travel back to India or maybe while she was still there.
9) Woman who was denied maintenance in India on the pretext that the wedding had already been dissolved by the court in another country.
10) Woman who approached the court, either in India or within the other country, for maintenance or divorce but repeatedly encountered technical legal obstacles related to jurisdiction of courts, service of notices or orders, or enforcement of orders or learnt of the husband commencing simultaneous retaliatory due process within the other country to create her proceedings
11) Woman who sought to use legal code to punish her husband and in-laws for dowry demands and/ or, or matrimonial cruelty and located that the trial couldn’t proceed because the husband wouldn’t come to India and withstand the trial or respond in any thanks to summons, or perhaps warrant of arrest.
12) Woman who was coaxed to travel the foreign country of the man’s residence and get married therein country, who later discovered that Indian courts have even more limited jurisdiction in such cases.
13) Woman who had to fight nasty legal battles for custody of her children and for child support, and to bring them back together with her after she was divorced or forced to go away, sometimes even facing charges of illegally abducting her own children.
Legal rights of women
Each and every women has the right to lead hear own married life with freedom and dignity, without abuse and violence, a proper support and care from her spouse, and any kind of fear or humanity of any kind.
The following acts on the part of the constitute the domestic violence and it is illegal in most of the countries and against which the local police of each and every country they can approach for the protection and help:
- Sexual Abuse
- Physical abuse
- Economical abuse
- Mental and emotional abuse
- Verbal and social abuse
Instance physical abuse it flows:
- Usage of any kind of weapon or firearms.
- Repeatedly torturing or forcing for miscarriages and abortion.
- Slapping, hair pulling, stabbing, pushing, confinement to a room.
Mental and emotional abuse include:
- Threaten to harm any relatives or children.
- Blackmailing, pear pressure and coercion.
- Humiliating both privately and publicly.
- Accusing the women to lose her morals.
- Breaking or causing destruction in house.
Instances of sexual abuse:
- Physical assaulting the sexual parts.
- Forcing for sexual acts without consent.
- Treating the other partner as a sexual object.
- Punishing for non-compliance with sexual demands.
Matrimonial and Maintenance Right of Women & Right to Custody of Children
- Section 24 Hindu Marriage Act, 1955 provides for interim relief, a monthly sum considered by the court and expenses of proceedings.
- Section 25 Hindu Marriage Act, 1955 provides for permanent alimony and maintenance.
- Section 125 of Cr PC provides that a husband should maintain wife and kids.
- Quick disposal of case
- No upper ceiling
- The mother and youngsters will get separate maintenance
- For this a separate application needs to be put up before the court
Maintenance during the proceedings of the divorce case
- the girl has the correct to say ad-interim maintenance even during the proceedings of the divorce case
- Maintenance is typically decided depending upon the income and standing of the husband and he needs to provide maintenance accordingly
- the lady can even claim maintenance from the 35 ancestral properties of the husband through his right there in property
- If the husband doesn’t respect the court’s order, he is arrested.
Matrimonial Rights of Sikh, Buddhist and Jain Couples
Matrimonial rights of Sikh, Buddhist and Jain couples are same as that of Hindus seeable of the definition of Hindus under Hindu Marriages Act, 1956 wherein the definition Hindu includes Sikh, Buddhist and Jain religions.
Matrimonial Rights of Parsi Women
- Every marriage to be certified by the officiating priest immediately on solemnization of the wedding.
- Can file a suit of nullity of the wedding when the consummation of the wedding isn’t possible thanks to natural causes. l If the husband has been continuously absent for 7 years.
- the wedding has not been consummated within one year after the solemnization because of the wilful refusal of the husband.
If the husband is of unsound mind.
- When the husband has been found to be committing adultery or bigamy or rape or an unnatural offence.
- If the husband has been committing cruelty on the wife.
- If the husband has voluntarily caused grievous hurt on the wife or has infected her with sexually transmitted disease or the husband compels the wife to submit herself to prostitution.
- If the husband is undergoing a sentence of imprisonment for 7 years or more. l If the husband ceases to be a Parsi.
Maintenance Rights of Parsi Women
- Entitled for permanent alimony and maintenance.
- Just and proper share of the joint property.
Matrimonial Rights of Muslim Women
A Muslim woman are going to be entitled to a dissolution of the wedding on the subsequent grounds:
- If the whereabouts of the husband haven’t been known for a period of 4 years l If he has neglected or didn’t provide for her maintenance for a period of two years
- If he has been sentenced to an imprisonment for a period of seven years or upwards
- If he has didn’t perform without reasonable cause his marital obligation for a period of three years
- If he was impotent at the time of marriage and continuous to be impotent
- If he has been insane for a period of two years or he’s laid low with leprosy or virulent social disease
- A Muslim woman can repudiate her marriage before attaining the age of 18 years, if she had been given in marriage by the daddy before she attained the age of 15 years.
- If the husband treats her with cruelty which has been defined elaborately as follows:
- habitually assaults her or makes her life miserable by cruelty of conduct whether or not such conduct doesn’t amount to physical ill-treatment, or
- associates with women of evil repute or leads an infamous life, or
- attempts to force her to steer an immoral life, or
- disposes of her property or prevents her exercising her legal rights over it, or
- obstructs her within the observance of her religious profession or practice, or
- if he has more wives than one, doesn’t treat her equitably in accordance with the injunctions of the Quran.
Maintenance Relief for Muslim Women
- Mahr or other properties of Muslim women to lean to her at the time of divorce.
- an inexpensive and fair provision and maintenance to be made and paid to her by her former husband within the Iddat period. Reasonable and fair maintenance for the kids for a period of two years from their date of birth.
- She is further entitled to an amount up to the sum of Mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter per Muslim Law.
- Are the properties given to her before or at the time of marriage or after the wedding by her relatives or friends or the husband or any relative of the husband or his friends.
- she will be able to make an application to a Magistrate if she isn’t given maintenance.
Matrimonial Rights Under Christian Law
- Divorce of the wedding might be sought either by husband or wife on the subsequent grounds: If the respondent (wife or husband)
- Has committed adultery
- Ceased to be Christian
- Incurably of unsound mind for a period of not but 2 years
- full of virulent and incurable style of leprosy for the preceding 2 years
- Has been plagued by sexually transmitted disease in an exceedingly communicable form for the preceding 2 years
- Has not been heard of for seven years as alive
- Wilful refusal to consummate a wedding and therefore the marriage remains not consummated
- Failure to accommodates a decree of restitution of legal right l Deserted the petitioner for a minimum of 2 years immediately preceding the filing of the divorce petition
- Treating the petitioner with cruelty
- A Christian wife may present a petition for divorce if the husband has been guilty of rape, sodomy or bestiality after the solemnization of the wedding.
- Divorce could even be obtained by mutual consent.
- Maintenance is sometimes decided depending upon the income and standing of the husband and he should provide maintenance accordingly
- the lady may claim maintenance from the ancestral property of the husband through his right in this property
- If the husband doesn’t respect the court’s order, he will be arrested
Right to Custody of youngsters Custody of youngsters after Divorce
- Till 5 years old the kid stays along with his mother
- The court where the divorce proceedings are underway carries out the choice
- The welfare of the kid is kept in mind
- the kid is consulted by the Magistrate
Dhanwanti Joshi v. Madhav Unde JT 1997 (8) SC 720
Indian courts to contemplate the question on merits, bearing in mind the welfare of kid as paramount.