A string of horror stories about women being abandoned by their Indian husbands abroad surfaced recently during a conference about NRI marriages organised by the National Commission for Women in Chandigarh, India. These included women who were forced by thugs to vacate properties they were living in after their husbands sent them divorce papers out of the blue.

According to a paper published by the New Jersey based-NGO Manavi, there were 12,000 abandoned women living in Gujarat in 2004. A 2007 study estimated 25,000 wives of Non-Resident Indians (NRIs) to have been deserted in Punjab. However, these figures do not reflect the true picture as not many women come forward to lodge complaint, Which makes the Non Residential Indian (NRI)s could be  often called to as Non reliable Indian.

This article gives information on safeguards available to women deserted by their NRI spouses, legal remedies available, authorities that can be approached for redressal of grievances and non-governmental organisations which can provide assistance.

Contents

1. Introduction

2. Typologies of Problems in NRI Marriages

3. Preparing for Marriage: What to expect going to a different Country

3.1 What to Expect Going to A Different Country?

4. Eternal Vigilance

4.1 Never violate these Don’ts

5. Verification of Antecedents/Documents

6. Do it Right

7. Precautions for the Bride

8. Legal Awareness – Indian Laws Regarding Registration of Marriage

9. Rights of NRI Spouses

10. Legal Rights of Women

11. Matrimonial and Maintenance Rights of Women & Rights to custody of Children

12. Other Relevant Laws

13. NRI Matrimonial Disputes: Some Important Judgments

14. Useful Information about Passports/Visas

15. Frequently Asked Questions

16. Important Links

1.Introduction

With the increase in Indian Diaspora and consequently overseas marriages, the number of matrimonial and related disputes in such marriages have also risen proportionately, and at some places much more than proportionately. Marriages to Overseas Indians are like any other marriage and may go through the same ups and downs except that these marriages are governed not only by the Indian legal system but also by the far more complex rules of private international law involving the legal system of the other country. The aggravated risks in such marriages occurs due to the woman being isolated far away from home in an alien land, facing constraints of language, lack of knowledge of local police and legal system, lack of support network of friends and family and readily available monetary support and a place to take shelter in. Overseas Indians may typically include Indian Citizens who have moved abroad for higher studies and/or work or foreign citizens whose parents are of Indian Origin. Alliances with Overseas Indians in the Indian society are seen as promising better future for not just the woman but her entire family. In the eagerness not to let go of such promising offers the families sometimes ignore even the common cautions that are observed in traditional matchmaking. On the other hand, Overseas Indians try to marry Resident Indians due to cultural similarities and traditional Indian values. In the absence of proper precautions and sufficient fact finding there may be mismatch of expectations leading to marriages turning sour. Such cases may take the shape of:

Abandonment of spouses for various reasons:

-Domestic Violence

-Extra-marital relationships

-Delays in the system for acquiring visa/immigration

-Ex-parte Divorces

This article is an attempt to help you prepare for marriages between Overseas Indians and Resident Indians. It provides an insight into realistic expectations about life abroad, typical problems and general advice on how to counter these situations, precautions to be taken, your rights and country specific advice. The article has also tried to include replies to some frequently asked questions. As more often than not, it is the woman who suffers more because of lack of awareness and isolated far away from home in an alien land, facing constraints of language, lack of knowledge of local criminal justice, police and legal system, lack of support network of friends and family to turn to, lack of immediate and readily available monetary support and a place to take shelter in, this article contains separate chapters devoted to women specific rights.

2. Typologies of Problems in NRI Marriages

The problems in Overseas Indian marriages may take the shape of women being abandoned because of various reasons. It may be before she is taken to the foreign country of her husband’s residence or going to the foreign country but coming back within a year, either sent back or forced to flee. The problems may arise due to woman herself or her parents held to ransom for payment of huge sums of money as dowry, both before and after the marriage or due to women learning later that the person she had married was already married in the other country to another woman, whom he continued to live with or/and domestic violence cases. Cases of spouses learning later that they were given false information on any or all of the following: spouse’s job, immigration status, earning, property, marital status, woman’s husband obtaining an ex-parte decree of divorce in the foreign country behind her back without her knowledge, woman being abandoned in the foreign country with absolutely no support or means of sustenance or escape and without even the visa to stay on in that country, woman going to court for maintenance or divorce but repeatedly encountering legal obstacles related to jurisdiction of courts, service of notices or orders, or enforcement of orders, woman being coaxed to travel to the foreign country of the man’s residence, getting married there and later discovering that Indian courts have even more limited jurisdiction on such marriages, have also come to light. A small percentage of cases of Overseas Indian husbands being harassed wrongly have also been reported; hence Ministry advises strongly against misuse of laws.

3. Preparing for Marriage: What to expect going to a different Country

 What can you do to avoid getting into such situations?
Be well aware of cultural, social, and legal aspects of entering into marriage

-Prepare yourself for a married life, which is going to be in a new and unfamiliar environment/country.

-Try to know your spouse well, learn about where he/she lives before you arrive there and develop reasonable expectations. Communication is the key to a successful marriage. Understand what you are getting into

-Blindly getting into a marriage may cost you both financially and emotionally

-It is very important to know about current laws related to Indian marriages. Indian personal laws are strongly applied even in the case of marital discord outside India.

-Learn about the Domestic Violence law that has been passed by the legislature.

-If for any valid reason, one spouse wants to come out of marriage (even in the first year), it can lead to several years (typically over 5 years) of a rigorous legal battle, if the other spouse contests the case.

-Acquire an in-depth knowledge of “mental cruelty and dowry harassment” under section 498A of the IPC.

-Acquire knowledge of child custody, maintenance pay, Restitution of conjugal rights, other criminal law provisions relating to Dowry Act as well as important provisions of Indian Penal Code such as giving and fabricating false evidence (section 191 & 192); punishment for voluntarily causing hurt (section 323); defamation and punishment (for defamation sections 499 & 500).

-Do not misuse laws to get a foothold in another country or to wrongly punish somebody

What to Expect Going to A Different Country?

Language

Even though English is the international language, it is not the official language in many countries. Learning a new language takes a significant amount of time, effort and practice. The social circle may get very limited on account of different culture and language and may lead to feelings of isolation. One should be mentally prepared for that.

Food

Many people who move to a foreign land initially have difficulties adjusting to the availability of ethnic food. The number of stores and their accessibility vary depending on the place. This may lead to initial health problems and adjustments in food preferences.

Culture

Adjusting to a new culture takes time for different people. Venturing out into the world, to a certain extent, requires the ability to communicate and be open to new people and new ideas. This ability needs a willingness to let go of certain ideas that are irrelevant or counter-productive to one’s life in a new place. In other words, not being too conservative is helpful. All these possibilities should be borne in mind while making decisions regarding marriage to an overseas Indian.

Lifestyle

One’s attire does influence the way one is perceived, and therefore one’s interactions with other people. One may even feel uncomfortable wearing western outfits or socializing with foreigners hence one should be prepared to adapt to different dress and behavioral requirements depending on climate, social and professional environments.

The way daily chores are performed in different countries depends on local climate and resources, which may differ significantly from how people are used to in India. For instance, in a country like the United States domestic servants are rare and extremely expensive, and therefore can be afforded by less than 1% of the population. Western cultures do not think it beneath their dignity to do their own household work including cooking, washing dishes,doing the laundry, cleaning the house, etc. This necessity for self-sufficiency might pose a serious challenge to women who may have had domestic servants back in India.

In some cultures like that of the U.S., while people do recognize and acknowledge one’s presence in the neighborhood, they may not be inclined to involve in personal relationship with neighbors. While Indians do form and maintain social groups such interactions are quite infrequent compared to the amount of social interaction one is used to in India. In addition, the sample size is too small to choose from. So, one might be caught between the need to socially interact with people and the unwillingness to interact with specific individuals. This perceived social isolation adds to the stress of adjusting to a new environment away from family and friends.

Time Zone differences

Moving to a different part of the globe means being subject to sudden change in the time zone. A bigger challenge is to connect with relatives and friends in different countries. One needs to realize that they may not be able to have telephonic or online conversations with their kith and kin as and when they desire because of the time zone differences. This may result in psychological stress for some women, especially housewives/home-makers, who feel deprived of communication with their loved ones. Hence mentally be prepared.

Homesickness

Leaving one’s friends and family behind to travel to a distant place can be stressful. A person must be enterprising and try to find things to keep themselves occupied with and learn new things. Not finding anything that interests the mind may make life in a different country very unexciting and constraining.

Climate

Large parts of countries such as the U.S. and Canada have harsh/depressing winters compared with the tropical/sunny climate of India. This not only is a challenge to one’s health, but also imposes restriction on lifestyle. During the severe cold weather, spending time outside one’s home is nearly impossible. Staying home for prolonged periods of time can result in boredom and feelings of isolation and depression.

Financial and Social preconceptions

One of the misconceptions about Indians living in foreign countries is that they are able to earn enormous amounts of money, relatively easily. This may not be the case always and one should be ready for a very high cost of living and long hours of work.
Men and women interact differently in western cultures. Hence one must familiarize oneself with the nature of interpersonal relations in a foreign county to avoid feelings of insecurity.

Employment

As a foreign citizen, the ability to earn a livelihood is limited by the immigration rules. Depending on the type of visa, employment may or may not be permitted. For example, in the U.S., a student visa and a tourist/visitor visa do not provide the opportunity to take up a job. The categories of H-1 and J-1 are meant for employment. The spouses of Indians living in the U.S. often arrive here on the basis of a dependent visa. With the exception of a J-2 visa (J-1 dependent), all other dependent visa holders are not permitted to work. Attending an academic degree program requires a transition to an F-1, which takes time, money and admission to a program. These conditions obviously hinder one’s economic and educational freedom. For a young person who had the freedom to work and earn a livelihood in one’s own country, being in a restrictive situation such as the above is likely to be quite disagreeable.

Medical facilities and health insurance

Most of the developed countries of the world are perceived to have excellent health-care facilities. While this may be true, access to such facilities is not easy or uniform across the population. Enrolment in an acceptable health insurance plan (most of which are usually expensive) is a necessity for seeking medical consultation and treatment. Visiting a doctor requires making an appointment, and few clinics/hospitals offer walk-in consultations, as is the norm in India. Many medicines that are available over-the-counter in India, are only available by prescription in other countries, which can only be obtained from a licensed doctor (both require additional payment).

Take an informed decision

The difficult experience that are associated with all the above problems are a significant strain on any marital relationships, let alone a new one. A relatively painless transition into one’s new life is highly desirable for a marriage, while the lack thereof can cause damage that is sometimes irreparable depending on the temperaments of the spouses. A failure to adjust to a new life and to be open-minded about new ideas can be a direct cause of marital strain; hence one must make an informed decision, taking future possibilities into account.

4. Eternal Vigilance

It helps to be as vigilant as possible in all marital proposals. Before finalizing a proposal, make sure to verify the following:

Never violate these Don’ts

-Do not take any decision in haste and do not get pressurized to do so for any reason whatsoever.

-Do not finalize matters over long distance, on phone or through e-mails.

-Do not blindly trust any bureau, agent, tout or a middleman.

-Do not ever agree to forge papers or enter into any fake transactions for any reason or on any pretext.

-Do not fall for any schemes to be able to migrate to another country, or promises for green card through marriage.

-Do not finalize matters in secrecy; publishing the proposal amongst the near and dear ones, friends and close relatives could help you in getting vital information which you may not be able to collect otherwise.

-Do not agree to having only a registered marriage or to getting the marriage solemnized in a far off place.

-Do not agree to the marriage taking place in the foreign country.

-Do not file any false case against the spouse.

-Don’t use dowry laws and law on cruelty i.e. section 498A of IPC as a weapon to harass.

5. Verification of Antecedents/Documents

Verify if the status of the spouse is actually as represented, especially with regard to the following particulars:

-Marital status: whether single, divorced, separated

-Employment details: qualification and post, salary, address of office, employers and their credentials

-Immigration status, type of visa, eligibility to take spouse to the other country

-Financial status (to be verified with the employer)

-Properties said to be owned, residential address

-Criminal antecedents, if any

-Family background

Check the following documents relating to the spouse

-Visa, passport

-Voter or alien registration card

-Social security number

-Tax returns for the preceding 3 years

-Bank account papers

-Property papers

Contact the following:

-Indian embassy in the foreign country (contact details available at the end of the article)

-Employer of the person

-Local Indian associations and networks of Indian citizens (contact details of some organizations working in this area you find at the end of the article)

-Friends and relatives in that country

6. Do it Right

Insist on the following:

-Registration of the marriage along with social marriage. Registration certificate should be carried at all times.

-Doing all the paperwork for issue of visa and other required formalities at your end.keep all the original papers with yourself.

-Affidavit from the spouse stating present marital status.

-Visit on an insurance cover before arriving in the new overseas residence.

-Insist on a health insurance cover before arriving in the new overseas residence. Regular and meaningful communication between the two persons to be married and their family.

Make sure that the two persons to be married meet personally and interact freely and frankly in a comfortable atmosphere to make up their minds as many times as they feel necessary. Rely on the gut feeling and communicate amongst yourselves, if any, if you sense anything is wrong or amiss. Always keep communication amongst yourselves easy and open.

Particularly, don’t part with your passport. Keep at least one copy of the passport. Publicize the marriage and have a social marriage ceremony.

7. Precautions for the Bride

Try to arrange for a bank account for the bride in the foreign country for her to be able to withdraw money in emergency.

Equip the woman to take help in emergencies by providing her with contact details like phone numbers and e-mail Ids of police and other state authorities, help lines and legal aid bodies in the foreign country as well as of the Indian embassy there, especially the Indian welfare offices, if appointed there. It would also help her to know the contact details of social support groups and networks.

Equip the woman with knowledge of the laws of the foreign country and the rights she enjoys there, especially against any form of abuse or neglect, including domestic violence and the need to get residence permit and other protections as a victim of domestic violence or abuse.

Equip the woman with professional/vocational qualifications and skills to be independent.

Equip the woman with social skills to be able to develop contacts with the neighbors and make friends in the foreign country. Insist on keeping in touch with the woman, even after the marriage on phone and e-mail and through local friends and relatives and get alert if at any point there is any reluctance or difficulty in this. Whenever it is possible, the spouse going abroad should learn the language of the country where they are going to reside after marriage.

8. Legal Awareness – Indian Laws Regarding Registration of Marriage

At present there is no uniform marriage law that exists in India. Some of the states in the Indian Union have enacted legislation to make marriage registration compulsory; those states are Andhra Pradesh, Delhi, Goa, Gujarat, Himachal Pradesh, Karnataka, Maharashtra. Other states such as Bihar, Chattisgarh, Haryana, Jharkhand, Madhya Pradesh, Orissa, Rajasthan, Uttar Pradesh, etc., are yet to follow the lead to make the necessary changes in their legislations to make the registration of marriages compulsory. However, in these States registration of marriages is optional.India has a plural system of laws. The four major communities viz. Hindu, Muslim, Christian and Parsi, have their own personal laws governing marriages. In addition

India has a plural system of laws. The four major communities viz. Hindu, Muslim, Christian and Parsi, have their own personal laws governing marriages. In addition to these laws, there is the Special Marriage Act, 1954. In February 2006, the Supreme Court of India gave the central and state governments three months to enact legislation making it compulsory to register all marriages. This law would help ensure a minimum age for marriage,

In February 2006, the Supreme Court of India gave the central and state governments three months to enact legislation making it compulsory to register all marriages. This law would help ensure a minimum age for marriage, prevent marriages without the consent of both parties, check bigamy and polygamy and deter people from buying and selling young girls under the pretence of marriage.

9. Rights of NRI Spouses

General Rights of NRI Spouses

-Right to equality and equal protection of the laws (Article 14 of the Constitution of India)
-Right to Life (under Article 21 of the Constitution of India).
-Right to have one’s own nationality/citizenship.
-Right to possess independent domicile.
-Right to own/possess property independently or jointly.
-Right to travel.
-Right to enforce proper foreign decrees.

Women’s Specific Rights

-Right against physical / sexual / economic exploitation
-Right to compensation against desertion (1994 6 SCC 641).
-Right to keep the children below 5 years under the custody of the mother.
-Right to take back matrimonial presents and streedhan.
-Right against dowry.
-Right against cruelty, bodily harassment, torture, etc.
-Right against domestic violence.

Matrimonial Rights of NRI Hindu Spouses

Grounds for Divorce
When One spouse

-Enters into sexual relationship/adultery with another person
-Deserts for more than two years
-Inflicts physical or mental cruelty on the wife
-Converts to another religion
-Has leprosy which cannot be treated
-Has become mentally unsound such that no treatment can help him
-Has venereal disease
-Has disappeared for more than seven years
-Has renounced the world and become a saint
-Husband has been convicted for committing rape and bestiality
-Repudiation of child marriage

Divorce by Mutual Consent

-No grounds are required to be given if divorce is by mutual consent.
-The husband and wife should be husband and wife staying separately for the preceding one year before giving a joint application.
-Both are agreed that they cannot stay with each other
-The judge will issue a notice after six months intervening period
-If the couple do not change their mind after six months and still seek divorce, the same shall be granted to them.

Judicial Separation

-One can ask the court for judicial separation on the same grounds which entitles him/her to divorce
-Divorce puts an end to marriage, while judicial separation does not
-The husband and wife are merely staying apart; and if ever they want to come together, they can and they would be staying as husband and wife
-After divorce one has to remarry to stay as husband and wife

Right to seek restitution of conjugal rights

If the husband has deserted the wife and vice versa without any valid reason and does not fulfil the marital obligations, he/she can be ordered by the court to join back his/her family.

10. Legal Rights of Women

Every woman has the right to lead her married life with dignity and freedom, care and support from her spouse, without abuse, violence (emotional, mental or physical), neglect, fear or humiliation of any kind.

Domestic Violence

The following acts on the part of the husband constitute domestic violence and are illegal in most countries and against which the local police of every country can be approached for protection and help:

-Physical abuse

-Mental and emotional abuse

-Verbal and social abuse

-Sexual abuse

-Economic abuse

Instances of Physical abuse

-Hair pulling, limb twisting, slapping violently, punishing, cutting, stabbing, confinement to a room.

-Usage of weapons and firearms.

-Repeatedly forcing abortions and miscarriages.Instances of mental/emotional abuse

-Blackmailing, coercion, threat, pressure.

-Accusing the woman of loose morals.

-Humiliating, both in public and private.

-Breaking household goods, killing family pets.

-Threatening to hit or harm children & close relatives

Instances of sexual abuse

-Forcing intercourse or other sexual acts without consent

-Physically assaulting sexual parts.

-Treating partner like a sexual object.

-Demanding forms of unnatural sex.

-Threatening violence or punishing for non-compliance with sexual demands.

Instances of verbal/social abuse

-Abusing and derogatory name calling.

-Maligning in front of peers and friends.

-Insulting in front of others.

-Abusing her parents, friends & family.

-Enforcing isolation, physical confinement, restricting familial contacts, controlling movement: generally treating badly.

Instances of economic abuse

-Controlling all family income and limiting access to finances.

-Forcing not to take up employment.

-Forcing financial dependency.

-Not providing sufficient funds for household expenditure.

-Accusing of misuse or misappropriation of finances

11. Matrimonial and Maintenance Rights of Women & Rights 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 children.
  • Quick disposal of case
  • No upper ceiling.
  • The mother and children will get separate maintenance.
  • For this a separate application has to be put up before the court.

Maintenance during the proceedings of the divorce case

-The woman has the right to claim ad-interim maintenance even during the proceedings of the divorce case.

-Maintenance is usually decided depending upon the income and status of the husband and he has to provide maintenance accordingly.

-The woman can also claim maintenance from the ancestral property of the husband through his right in that property.

-If the husband does not respect the court’s order, he can be arrested.

Matrimonial Rights of Sikh, Buddhist and Jain Couples

Matrimonial rights of Sikh, Buddhist and Jain couples are same as that of Hindus in view 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 marriage.

-Can file a suit of nullity of the marriage when the consummation of the marriage is not possible due to natural causes.

-If the husband has been continuously absent for 7 years.

-The marriage has not been consummated within one year after the solemnization due to the willful 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 venereal 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.

-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 will be entitled to a dissolution of the marriage on the following grounds:

-If the whereabouts of the husband have not been known for a period of 4 years

-If he has neglected or failed to provide for her maintenance for a period of 2 years

-If he has been sentenced to an imprisonment for a period of 7 years or upwards

-If he has failed to perform without reasonable cause his marital obligation for a period of 3 years

-If he was impotent at the time of marriage and continuous to be impotent

-If he has been insane for a period of 2 years or he is suffering from leprosy or virulent venereal disease.

-A Muslim woman can repudiate her marriage before attaining the age of 18 years, if she had been given in marriage by the father before she attained the age of 15 years.

-If the husband treats her with cruelty which has beendefined elaborately as follows:

(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or

(b)associates with women of evil repute or leads an infamous life, or

(c) attempts to force her to lead an immoral life, or

(d)disposes of her property or prevents her exercising her legal rights over it, or

(e) obstructs her in the observance of her religious profession or practice, or

(f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran.

Maintenance Relief for Muslim Women

-Mahr or other properties of Muslim women to be given to her at the time of divorce.

-A reasonable 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 children for a period of two years from their date of birth.

-She is further entitled to an amount equal to the sum of Mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim Law.

-Are the properties given to her before or at the time of marriage or after the marriage by her relatives or friends or the husband or any relative of the husband or his friends.

-She can make an application to a Magistrate if she is not given maintenance.

Matrimonial Rights Under Christian Law

Divorce of the Marriage could be sought either by husband or wife on the following grounds:

If the respondent (wife or husband):

-Has committed adultery
-Ceased to be Christian
-Incurably of unsound mind for a period of not less than 2 years
-Suffering from virulent and incurable form of leprosy for the preceding 2 years.
-Has been suffering from venereal disease in a communicable form for the preceding 2 years
-Has not been heard of for seven years as alive
-Willful refusal to consummate a marriage and the marriage remains not consummated.
-Failure to comply with a decree of restitution of conjugal rights.
-Deserted the petitioner for at least 2 years immediately preceding the filing of the divorce petition.
-Treating the petitioner with cruelty.
-A Christian wife may also present a petition for divorce if the husband has been guilty of rape, sodomy or bestiality after the solemnization of the marriage.
-Divorce could also be obtained by mutual consent.
-Maintenance is usually decided depending upon the income and status of the husband and he has to provide maintenance accordingly.
-The woman can also claim maintenance from the ancestral property of the husband through his right in that property.
-If the husband does not respect the court’s order, he can be arrested.

Right to Custody of children

Custody of Children after Divorce

-Till 5 years of age the child stays with his mother

-The court where the divorce proceedings are underway carries out the decision.

-The welfare of the child is kept in mind

-The child is consulted by the Magistrate
Dhanwanti Joshi v. Madhav Unde JT 1997 (8) SC 720

Indian courts to consider the question on merits, bearing in mind the welfare of child as paramount.

12. Other Relevant Laws

A) Dowry Prohibition Act

Definition of Dowry:
Section 2 of the Dowry Prohibition Act, 1961 defines dowry as any property or valuable security given or agreed to be given either directly or indirectly:-
a. by one party to a marriage to the other party to the marriage or
b. by the parent of either party to a marriage or by any other person to either party to the marriage or to any other person.
Such transaction should take place during or before or in connection with the marriage of the said party. Dowry does not include dower or Mehr in the case of people to whom Shariat Law applies.
Penalty
The punishment for the offence of dowry will be imprisonment for five years. However, the court, for
adequate and special reasons to be recorded in the judgment, may reduce the sentence to a period of less
than five years.
No contract for dowry
Any agreement for giving or taking of dowry is not enforceable.
Concept of Streedhan
-Any property or gift given to a Hindu woman before, at the time of marriage or later is her property
-May be gifted by anyone, even in-laws, friends
-She alone has the right to gift, will or dispose of her property as she desires.
-No one else has a right on it.
-Anyone who has a woman’s streedhan in her/his custody should return it to the actual owner within a stipulated time period.
-If the trustee disposes of her property without her willingness, the offender will be punished with imprisonment and fine.
-If the woman dies without willing away her property, it goes to her sons/daughters and husband.
List of Gifts
A list should be made of the gifts given during or just after marriage. There has to be two lists: one for the man/another for the woman. The man’s list has to contain the gifts to him by either party. The woman’s list has to contain the gifts given to her by either party. Spouses and witnesses should sign it. Both parties should retain a copy of the list.

B) Indian Penal Code

B i) Section 304- B-IPC – Dowry deaths

A woman’s death is called “dowry death” when

-a woman dies of burn or bodily injury or in abnormal circumstances
 -within 7 years of marriage and
-it is shown that just before her death she was being harassed by her husband or any of his relatives for dowry.
In case of such a death, husband or the relative will be presumed to have caused the death of that woman.
Punishment
-the accused will be punished with life imprisonment or at least 7 years imprisonment
-it is also offence if anyone tries to destroy evidence
-postmortem has to be conducted in cases of death

B ii) Section 498 A of IPC – Cruelty.

Husband or relatives of a husband of a woman subjecting her to cruelty will be punished with imprisonment for a term extending to three years and shall also be liable to fine.
‘‘Cruelty’’ means any willful conduct driving the woman to commit suicide or to cause grave injury or danger to life, limb or health of the women;
Harassment of the woman with a view to coercing her or any other person to meet any unlawful demand.

C) Domestic Violence Act, 2005

According to Section 3 of the Act, domestic violence includes any act, omission, commission or conduct if it:
-harasses, harms, injures or endangers the wife with a view to coerce her or her relatives to any unlawful
demand of any dowry or other property or valuable security.
The offence of domestic violence may also result in the accused being charged under Section 498 A of the Indian Penal Code or the Dowry Prohibition Act.

13. NRI Matrimonial Disputes: Some Important Judgments

The Supreme Court of India has decided some cases and laid down the following law in relation to NRI
matrimonial disputes.

Y. Narasimha Rao & Others Vs. Y. Venkatalakshmi 1991 3 SCC 451

Both husband and wife were married in India under the Hindu Marriage Act. After the marriage the husband went back to USA and obtained a decree of divorce from theState of Missouri. The husband alleged to the court that he was resident of state of Missouri for 90 days preceding the institution of the petition and obtained a divorce decree on the ground that the marriage has been “irretrievably broken down”. The Supreme Court of India held that both on the issue of jurisdiction and the ground on which the foreign decree was passed were not in accordance with Hindu Marriage Act under which the marriage took place. The Supreme Court, therefore, held that the decree was not enforceable in India.

Neerja Saraph Vs. Jayant Saraph and Another 1994 6 SCC 641

Neerja Saraph married Jayant Saraph, an NRI husband. USA and persuaded the
wife to give up her job in India. Suddenly the NRI husband files a case for the annulment of marriage in USA. The wife filed a suit for damage against her husband and father-in-law and obtained an ex-parte decree for Rs. 22 lakh. Pending appeal against the ex-parte decree, the Supreme Court directed the NRI husband to make interim deposit of Rs. 4 lakh in favor of the wife.
Further, the following general rights are also available:
  • Right to get orders by Indian courts enforced.
  • Right to approach court for injunction or interim orders against the husband traveling abroad or taking the children abroad (including impounding of passport)
  • Right to claim damages through a suit for damages
  • Right to claim property shares from husband and in laws

14. Useful Information about Passports/Visas

Passports and Visas are two of the most important document of importance for travel abroad and should be held with great care.
Passport
Passport is a sure means of establishing the holder’s identity and should therefore be carried personally. It is the political
document by which the bearer is recognized in foreign countries as a citizen of the country which issued the
passport. It is a document of importance for travel abroad and is of considerable value to its holder. A passport, is a
request for protection, it is a document of identity, it is a prima Facie evidence of nationality, in modern times it
not only controls exit from the State to which one belongs, but without it, with a few exceptions, it is not possible to
enter another State. The passport should not be allowed to pass into the possession of any unauthorized person.
Visa
A visa is either a multicolored stamp or computerized document affixed to a page in the passport. It allows international visitors to travel as long as the visa has not expired. Once visitors are admitted into the country, visas are no longer the most important documents governing their status.
Things to watch for:
  • Doing all the paperwork for issue of visa and other required formalities at your end keep all the original papers with yourself
  • The copies of passport and visas should be kept retained at 2-3 different places and should be always available with both the parents of the girl and the girl herself
  • The Indian embassies should be immediately contacted in times of distress or urgent need. The Consular Desk
  • in the different embassies usually looks into problems of such nature.
  • Showing a copy of the passport and visa can greatly help in getting a duplicate passport issued speedily.
Hence retain it.
The embassies can help not only by getting duplicate passports issued but also have a well defined system to help in emergencies by helping to get travel documents and emergency certificates and one way tickets to be paid later, on fulfillment of those conditions.
It is better to go always on an independent visa rather than a dependent one. If one has to go on a dependent spouse visa then one may try to get the status changed to an independent one as early as possible as per the rules of that country which can be easily accessed on the internet. One must always remember that over stayal even by a few days may lead to debarment for life in the person ever getting the visa again or getting it renewed hence never trust a second person in remembering the duration
of your visa – always keep it with you and try to get it renewed yourself, as far as possible. The visa laws are very stringent in many countries and once you have been proved as defaulter there is very little that can be done to help anyone.
CPV Division of the Ministry of External Affairs is responsible for issuance of Indian Passport to the Indian Citizens. This document is issued from 28 locations across the country and 160 Indian missions abroad. The passport can be applied in the passport office, having your present address area in its jurisdiction. Specific information from particular Offices, Missions can be accessed through their respective websites.
Visas are obtained by applying to the consulates/agencies designated by the respective countries. Detailed information about the visas and the type of visa that one is eligible for can be easily accessed through the internet on the respective websites. One should read carefully for all relevant documents and fees required along with the application so that they may not be rejected.

15. Frequently Asked Questions

Some frequently asked questions on marriages between Resident Indians and Overseas Indians are listed below, to help you make the right decision:

What is Private International Law?

Answer:  It is one of the most frequently asked questions in the context of NRI marriage disputes. It must, however, be made clear that the NRI marriages and their validity, divorce, maintenance, child custody, succession to property, etc. are governed/regulated by the personal law under which an NRI marriage took place. In other words, if an Indian settles down abroad whether as PIO or NRI and if he/she had married in India, the marriage would be governed by the Indian law under which they married.

Private International Law or Conflict of Laws is a set of rules which a court would apply whenever there is a case involving a foreign element such as parties are foreigners, or one of the party is a foreigner, or a foreign law is involved for the determination of the issues before it.

Private International Law rules are applied to Indians (NRIs) when they bring a dispute in a foreign court about the matrimonial problems, child custody, movable and immovable property, succession, enforcement of divorce and maintenance decrees. Private International Law is a complicated and technical subject. Application of these rules needs special knowledge about Private International Law, and the answers depend on concrete situations or problems which may arise among PIO /NRIs or between an Indian national or a foreign national.

Do I need to obtain a marriage certificate?

Answer: Yes, it is extremely important for you to obtain a marriage certificate. It is important that both the husband and wife keep a copy of the same. The marriage certificate is necessary for obtaining spouse visa, passport, insurance, bank account etc.

What are various ways to establish the authenticity of the prospective spouse?

Answer:  You should not assume anything. If you are worried about something, it is better to ask more than once if necessary. Ask/find out about the following:

  • Marital status – If he/she is single, divorced, separated, widow(er); get this in a written and notarized form.
  • Employment details – Qualification and post, employer etc. Most people are not comfortable sharing the details of the salary and perks. In the West, unlike in the East (including India), salary is considered personal information which people do not share.
  • Immigration status – This includes the type of visa a person holds and eligibility to take one’s spouse to the other country. Get details about visa paperwork – expected time to prepare, visa appointments, and general information on the new life abroad.
  • Financial status – Does he/she own a house, vehicle, etc. Any loans or prior financial commitments
  • Criminal antecedents, if any
  • Family background – Some details of family members
  • Family type – Would you be living in a nuclear or
  • joint family? (Keep in mind that the situation may change due to unforeseen circumstances).
  • Work after marriage – This should be explicitly understood between both the partners to the marriage. Would the wife work or not? How would husband/wife share the marital responsibilities?

What is the procedure for registration of Marriage?

Answer: An application for the registration shall be in FORM ‘A’ and shall be signed by each party to the marriage or by the guardian. Such party shall be present in person before the Registrar in whose:

  • jurisdiction either party to the marriage has been residing for at least six months immediately preceding the date of marriage
  • The party has to append age proof, and marriage photo
  • Both parties to the marriage and the guardian, if any, should appear before the marriage registrar in person
  • Application for registration of marriage shall be presented within one month of date of solemnization of the marriage
  • If the delay is above one month and up to 5 years, the Sub-Registrar will condone the delay
  • If the delay is above 5 years, the District Registrar will condone the delay

What is Special Marriage Act, 1954?

Answer:  The Special Marriage Act provides for the solemnization of a marriage as well as registration by a Marriage Officer. The parties to the intended marriage have to give a notice to the Marriage Officer in whose jurisdiction at least one of the parties has resided for not less than 30 days prior to the date of notice. It should be affixed at some conspicuous place in the office. If either of the parties is residing in the area of another Marriage Officer, a copy of the notice should be sent to the officer for similar publication. Marriage may be solemnized after expiry of one month from the date of publication of the notice, if no objections are received. If any objections are received, the Marriage Officer has to enquire into them and take a decision either to solemnize the marriage or refuse it. Registration will be done after solemnization of the marriage.

Any marriage already celebrated can also be registered under the Special Marriage Act after giving a public notice of 30 days.

Who is the Registrar of Marriages?

Answer: All Sub-Registrars are Registrars of Marriages under the Hindu Marriage Act and Marriage Officer under the Special Marriage Act.

What is the procedure for getting the Marriage registered under the special Marriage Act?

Answer:  The parties to the intended marriage have to give a notice to the marriage officer in whose jurisdiction at least one of the parties has to reside for not less than 30 days prior to the date of notice.

This notice will be displayed in the notice board of the Sub-Registrar office. After the expiry of one month if no objections are received, declarations by the bride and bridegroom shall be filed. Then the marriage will be solemnized.

Application form for special marriage —- Click Here

 

 

16. Important Links

 

 

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