Fractured Family Laws



This Article is authored by Advocate Anil Malhotra.


According to Government figures, over 3.4 million non-resident Indians (NRI) have registered as Overseas Citizens of India (OCIs) in order to gain visa free entry to India for the rest of their lives. Actual figures of NRIs may be 30 million. Global Indians have lived, established, and prospered in nearly 195 nations throughout the world. Without a doubt, these cosmopolitan Indians are a distinct nationality in their own right. They emphasise the urgent necessity for a worldwide law to handle their disputes. Nationality, citizenship, marriage, divorce, spousal maintenance, alimony, inter-parental child removal, custody, and guardianship of children have all found expression in issues relating to nationality, citizenship, marriage, divorce, spousal maintenance, alimony, inter-parental child removal, custody, and guardianship of children. In addition, link prevails in marriage property distribution, inter-country adoptions, succession and inheritance of Indian property, and, last but not least, surrogacy arrangements. Domestic abuse in transnational partners' abusive marriages has spawned a new body of law. Since, there are no updated or amended Indian laws or reasoned interpretations of law on these themes, foreign courts and law practitioners are at a loss to settle these issues. There are numerous legal conflicts. Anomalies arise as a result of parallel and simultaneous adjudications in several jurisdictions, compounding legal issues involving human interactions. The applicability of international laws, the legitimacy of foreign judgments, and the exposition of Indian court decisions are all consequential concerns that require interpretation and expert opinion. Under outmoded Indian laws, Indian courts have a hard challenge carving out specific answers in complex litigations.


Hindu marriages made in heaven, solemnized on Indian soil being in the nature of a sacrament find an uphill road if sought to be broken on earth and dissolved on fault grounds before competent Courts under personal law of parties. Divorce by mutual consent requires both spouses to jointly petition the Court and maintain the unanimous decision to part for at least six months from the date of first hearing before the competent Court. In Amardeep Singh, Supreme Court held that where the Court dealing with the matter is satisfied, the statutory period of one year separation of parties before filing the petition and the second statutory period of six months waiting before filing the second motion for divorce by mutual consent by the Court can be waived. This is permissible, if all efforts of mediation/conciliation have failed and parties have genuinely settled their differences including alimony besides child custody issues. It was held that this is a discretionary relief as the waiting period is not mandatory but directory, and the waiting period ought not to prolong the agony of the parties. However, the residuary prerogative and power of Supreme Court under the Constitution, should not be exercised contrary to the statutory provisions to dissolve marriages. In Shilpa Sailesh, Supreme Court is examining the jurisdiction of the Apex Court, to dissolve a marriage between consenting parties without referring them to the Family Court, to wait for the mandatory period prescribed under Hindu law. However, when a traditional marriage of a Global Indian breaks up overseas, the anxiety to dissolve it expeditiously is preferred to be done in the foreign matrimonial home of the spouses. Vexed question which then crops up frequently before Indian marital Courts is whether to accord recognition to such foreign divorce decrees or not as invariably such overseas dissolution is based on the ground of irretrievable breakdown of marriage which is not a ground for divorce under Hindu law.


Therefore, any foreign court matrimonial decree dissolving a Hindu marriage on the breakdown principle does not find recognition in India. Consequently, whenever any such foreign divorce decree is thrust before a Indian matrimonial court in an attempt to avoid a matrimonial litigation of a divorce petition preferred by the local spouse on conventional fault grounds under Hindu Law, the lack of maintainability has to be tested on judicial principles settled by the Apex Court. Invariably, attempts to avoid divorce trials in India on the basis of a foreign matrimonial decree do not find favour.


Parties may be directed to file pleadings and establish facts by leading evidence upon issues being framed by the Indian Court. The crisis only perpetuates the misery of parties who can no longer live together. Law Commission Recommendations in 1978 and 2010 proposed adding irretrievable breakdown as a ground for divorce, but a draft law prepared in 2013 by the Union Government has never seen the light of the day. The stalemate continues.

With the influx of foreign matrimonial judgments being thrust before Indian Courts by a multiplying NRI population overseas, Parliament in its wisdom could well consider enacting a simplified irretrievable breakdown ground hedged with safeguards if one or both parties are resident abroad. Shifting the adjudicatory forum on Indian soil will aid and assist spouses to peacefully bury the hatchet on an equitable settlement fair to both parties on home turf without putting parties to expensive litigation abroad. This would also resolve the application of personal law issues being adjudicated by competent courts in India without a conflict of jurisdictions.