Introduction : Negotiating a divorce matter is never easy to handle single handedly. It becomes a much more difficult matter when the spouses live abroad. We can feel the emotional and legal complexities that Non- Resident Indians face, while the processing of a Mutual Consent Divorce. Mutual Consent Divorce is the type through which both spouses can get a peaceful, efficient result, which is much more wanted, rather than lengthy litigation and mental stress.
Benefits of Mutual Divorce
For NRIs there are few advantages for mutual consent divorce –
i) No need to travel Far - The Indian Legal system now offers digitized, modernized systems like video conferencing for legal consultations OR you can appoint a Special Power Of Attorney (sPOA) so the spouses don’t have to be physically present in India. This saves a lot of time and travel expenses.
ii) Flexible Resolution - Rather than contested divorce MCD is much faster and flexible. It has a translucent timeline of 6 to 18 months.
iii) Predictability - If both husband and wife are ready to take a divorce , it is much more predictable the outcome of the issue.
Jurisdiction-
Under Section 13B of Hindu Marriage Act 1955 it is written specifically .
Both party can take divorce if - ( Applicable for NRIs)
i) Both spouses agree to the divorce.
ii) They have been living separately for at least one year.
iii) marriage is registered under Indian laws.
iv) At least one of the spouses has some form of residence or connection to India.
Process of Filing Mutual Consent Divorce For NRIs –
i) Filing the Petition
- A joint petition can be filed by both the spouses with the help of an Advocates.
- If they can not come to India they appoint an Advocate through virtual consultation.
ii) The First Motion
- They appear before the court for the first hearing
- Court will give a 6 month Cooling - off period
iii) The Second and Last Motion
- After that 6 month cooling- off period the spouses appear for the final hearing.
- Even after that if the couple still stick to the same decision , court will pass a decree of divorce.
Documents needed–
i) Marriage Certificate
ii) Identity Proof
- PAN card
- Aadhar Card
- Government id proofs
iii) Address proof
- Current Location
- Where last reside in India
iv) Financial Statement
v) Proof of separation
The place where they can file a Divorce?
It Depends on -
i) Place of Marriage
ii) The place where the couple last resided in India
iii) Current residence in India
The concept of Power of Attorney In this matter -
Well, NRI people can face hurdles as they are coming with an issue across the borders. Sometimes it becomes impossible for them to come physically so in that case they can appoint or give sPOA to a person who will basically be their representative in India.
In this matter, Now in some places of India grants Virtual hearing too.
Some advice for NRIs who wants help with this issue -
i) Consult an experienced Advocate
ii) Ensure all the documentation is legalized and in proper manner.
iii) If progressing through virtual meetings , be clear about every terms and conditions, the steps you need to take or do.
CASE LAWs-
- i) Y. Narasimha Rao & Ors. v. Y. Venkata Lakshmi (1991)
- ii) Amardeep Singh v. Harveen Kaur (2017)
Conclusion –
For NRIs, a mutual consent divorce is the most easy way to end a marriage, From every aspect of legal, emotional, and financial. The process needs to be smooth even across borders, with proper legal guidance that can be possible easily. Understanding the rights and the procedures under Indian law can make a significant difference.
FAQs-
1)Can NRIs file a mutual consent divorce in India if both spouses live abroad?
A- Yes they can, they just have to consult a well experienced Advocate from India.
2)What are the legal requirements for MCD in India ?
A- Both spouses must agree to the divorce.
- - They must have been living separately for at least one year.
- 3) Is physical presence mandatory for NRI spouses ?
A- Not always , But for specific reasons Yes, But generally most of the time there is no need.
- 4) Is the six-month cooling-off period applicable to NRIs also ?
A- Yes , it is applicable for NRIs also.
- 5) Do both spouses need to appear at both motions for mutual consent divorce?
A- It is better to appear Physically but if it is not possible Represent through sPOA or special power of attorney.
- 6)Can child custody be decided after MCD?
A- Yes , As it is a related part of MCD , After divorce Child custody concerns are natural. So consult with a lawyer to know more about it.
- 7)What will be the time length of mutual consent divorce in India for NRIs?
A- Typically, it takes 6 to 18 months . It can be faster but for that you have to consult your Advocate.
