Abstract

Marriages in India were shaped by culture, religion, norms and customs; then in 1955 came the codification. Over the years, global migration has made NRI marriages a complex socio-legal category as marital status, divorce, maintenance, custody, and property enforcement may involve India and a foreign country simultaneously. The place of marriage, later citizenship, and domicile may point to different legal systems. Strategic forum selection is generally seen.

Definitional and Statutory Gaps

"NRI" is defined for statutes such as the Income Tax Act and FEMA, but family law lacks a uniform definition. Different situations, such as an Indian citizen married to NRI, both Indian National spouses later migrating, NRis' marriages to Indian National-raise distinct jurisdictional questions. Yet, matrimonial law does not address these situations.

Extraterritorial Operation, Reach, Citizenship and Domicile

The HMA-1955 was enacted for the Hindus in India, but the courts have considered its application to even the Hindus living abroad, especially when the marriage was solemnised in India. The central question is whether that original connection should continue after both parties acquire foreign citizenship or domicile.

Foreign citizenship ends Indian citizenship under the Citizenship Act, 1955, but does not erase every legal relationship previously created in India. Property, pending proceedings, and India-connected conduct may still attract Indian law. The issue is therefore which factor-place of marriage, domicile, habitual residence, nationality, submission to jurisdiction, or cause of action-should govern the particular dispute? The larger question is of allegiance to w hich Constitution?

Recognition of Foreign Decisions & Decrees

The recognition of foreign decisions by Section 13 Code of Civil Procedure 1908, is subject to six exceptions: where court lacked jurisdiction, where natural justice was denied, or fraud occurred, when not decided on merits or founded on incorrect application of International Law or in breach of Indian Law. In Satya v. Teja Singh (1975), a US decree was rejected as jurisdiction was founded on a doubtful domicile; in Y. Narasimha Rao v. Y. VenkataLakshmi (1991), the Court stressed the importance of jurisdiction and grounds consistent with the matrimonial law governing the parties. These principles can produce "limping marriages": a relationship dissolved in country where person may be working & earning but treated as subsisting in India.

Parallel Proceedings, Misuse Perceptions and Fairness

NRI disputes usually involve civil and criminal proceedings in India as well as simultaneous matrimonial proceedings abroad concerning domestic violence, maintenance, dowry­related allegations, restitution, custody, divorce and alimony, creating duplication, travel burdens, expenses, ex parte orders and even employment consequences if adverse orders are obtained.

The system must address genuine abandonment, violence, and economic vulnerability and guard against exaggerated or strategically framed fanciful claims. Sushil Kumar Sharma v. Union of India (2005), Preeti Gupta v. State of Jharkhand (2010), recognised these misuse concerns and cautioned against mechanical issue of criminal process. A gender-neutral approach will go long way in ensuring the processing of genuine claims and ensure due process.

Hindu NRis may search online for criminal cases, warrants, look-out-circulars and arrests of even their relatives located in India and their having to spend time in Jail.

The Hindu Marriage Act, 1955 (HMA) is religion-specific, whereas the Foreign Marriage Act, 1969 (FMA) provides secular framework for marriages solemnised abroad. A plain reading of Section 1(2) and Section 2 of the HMA shows that the statute is not so clear and specific so to completely prohibit application to NRI and foreign citizens of Hindu faith. 'Interpretation by courts', far from smoothening the creases, has only created more wrinkles.

About 25 percent principal substantive statutes contain a general power to make rules; and a power to remove difficulties. But the 1955 HMA Act contains neither, which only explains the increasing difficulties for Hindu NRis.

Whatever may have been the rationale in 1955; 70 years later, it has long ceased to exist.

Extending FC Act and DV Act to NRis

Relatives residing in India may be arrayed as the accused ! Applications under the Family Courts Act 1984, and the Domestic Violence Act 2005, may provide monetary relief, protection, residence, or compensation, with jurisdiction linked to fairer premises. However, the liability must not rest on statutory relationship. Mere complaint cannot be substitute for proof.