Over the years the problems of Indian women trapped in fraudulent marriages with overseas Indians are increasingly reported. This has underscored the urgent need to build safeguards to protect these women and make them aware of their rights and responsibilities on the one hand and about the safety nets and social defense mechanisms that are available and which could assist them.
The problem is manifold and includes dowry and other kinds of harassment of married women in foreign countries like non-consummation of marriages, marriages of convenience, concealment of earlier existing marriage by the husband before marrying an Indian woman and lack of social security faced by an Indian woman on the foreign soil once the marriage is broken and ex parte divorces are obtained. A most conspicuous disturbing trend, however, appears to be the easy dissolution of such marriages by the foreign courts even though their solemnization took place in India as per the Indian laws. Since there is no comprehensive and special law to govern such aspects and also in view of the jurisdictional issues involved in decide the matrimonial cases, women are being deprived of justice with impurity.
Now the common issues that take place in NRI marriage:
- Woman married to NRI was abandoned even before being taken by her husband to the foreign country of his residence. After a short honeymoon he had went back, promising to soon send her ticket that never came. In many instances the woman would already have been pregnant when he left and so both she and the child (who was born later) were abandoned. The husband never called or wrote and never came back again. The in-laws who could still be in India would either plead helplessness or flatly refuse to help.
- Woman went to her husband’s home in the other 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 flee or was forcibly sent back. It could also be that she was not allowed to bring back her children. In many cases, the children were abducted or forcibly taken away from the woman.
- Woman who reached the foreign country of her husband’s residence and waited helpless at the international airport there only to find that her husband would not turn up at all.
- Woman who was abandoned in the foreign country with absolutely no support or means of sustenance or escape and without even the legal permission to stay on in that country.
- 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, marital status and other material particulars, to con her into the marriage.
- Woman who was denied maintenance in India on the pretext that the marriage had already been dissolved by the court in another country.
- Woman who approached the court, either in India or in 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 legal proceeding in the other country to make her legal action
- Woman who sought to use criminal law to punish her husband and in-laws for dowry demands and/ or, or matrimonial cruelty and found that the trial could not proceed as the husband would not come to India and submit to the trial or respond in any way to summons, or even warrant of arrest.
- Woman who had to fight nasty legal battles for custody of her children and for child support, and to bring them back with her after she was divorced or forced to leave, sometimes even facing charges of illegally abducting her own children.
LEGAL ISSUES INVOLVED IN NRI MARRIAGES:
- Conflict of laws: On the issue of the validity of the marriage, the choice of law of marriage and divorce i.e. whether the Indian law would apply or the law of the husband’s country of habitual residence would apply in dissolving the marriage.
- Issue of Jurisdiction: Whether the Courts in India or the Courts of the country of the husband’s residence have the jurisdiction to deal with the matrimonial dispute, issues relating to maintenance and other ancillary matters of child custody.
- Maintenance and Custody Laws: Whether the Indian law on these issues will apply or the law of the husband’s country of habitual residence will apply to them.
- Power of the Indian Courts: Whether the Indian Courts have the power to restrain legal proceedings in the foreign courts and/or pass contrary judgments/orders. The foreign courts mostly do not accept Indian Court Orders.
- Property rights and other ancillary issues: Does the abandoned wife and her children out of the broken wedlock have property rights in the ancestral or the property of her in law’s in India. Indian Courts mostly decline any such rights.
- Other legal remedies available: Whether the abandoned wife can avail other remedies like extradition, impounding of passport, cancellation of citizenship, attachment of property, look out orders, suit for damages, injunction, declaration or invoking the Writ of Habeas Corpus.Experience shows that foreign missions and embassies in India of the respective foreign countries offer little or no help. For the abandoned spouse to reach the foreign country is expensive, difficult and cumbersome, if in the first place the spouse manages to obtain a visa at all.
Functions of NRI Cell:
The functions of the NRI Cell broadly consist of the following:-
- NRI Cell is the coordinating agency to receive and process all the complaints related to Indian Women deserted by their Overseas Indian husbands.
- NRI Cell renders all possible assistance to the complaints including conciliation, mediation between the parties and advising the complainant on related issues.
- NRI Cell endeavour towards a coordinated response amongst various Government agencies/ organisations such as State Governments, The National Human Rights Commission, Indian Embassies and Mission, concerned Ministries etc.
- Providing assistance to the aggrieved woman in litigation and other issues pertaining to the complainant/case.
- Seek reports from the State Government and other authorities on the complaints filed and action taken thereon.
- To give advice and recommendations to the government on any policy or issue relating to the NRI marriages.
- To constitute a panel of experts to assist the aggrieved wife and rendering legal services and other assistance , including mediation and conciliation
- To carry out awareness campaigns for the masses on the issue. For this, all the available media services would be utilised by the cell.
- To encourage /support research and study in the related field like issues of grievances associated with dual citizenship, enactment of new legislation or signing of international treaties ,marriage laws of other countries ,etc .
- To look into complaints and take suo-moto notice on any issue brought to the notice of the NRI Cell in accordance with Section 10 (1)(f) of the National Commission for Women Act , 1990 read with sub-section 4 of Section 10 and Section 8 of the Act.
- A possible solution to remedy this situation is amendment of the Guardian and Wards Act. In section 9 of the Act, which deals with jurisdiction of the court to entertain application and states, that District Court will have jurisdiction to entertain an application for guardianship if the minor “ordinarily resides” within the jurisdiction of the District Court. In place of “ordinary resident” the word “resident for the time being” should be substituted. And in every case where a child is brought before the court, the matter should be decided on merits keeping in mind the welfare principle. Also, child wish should also be taken into account before deciding whether the child should stay with her mother or be returned to a foreign country.