E-Paper
Law for NRI families II
Indian legislature should review issues affecting NRIs and come out with a composite legislation in family law matters, write Anil and Ranjit Malhotra.
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A reading in totality of the matters in the overseas family law jurisdiction gives an indication that in such affairs, it is the judicial precedents, which provide the much available guidance and judicial legislation on the subject. With the large number of non-resident Indians now permanently living in overseas jurisdictions, it has now become important that some composite legislation is enacted to deal with the problems of non-resident Indians to avoid them from importing judgments from foreign Courts to India for implementation of their rights.
The answer therefore lies in giving them law applicable to them as Indians rather than letting them invade the Indian system with judgments of foreign jurisdictions, which do not find applicability in the Indian system. Hence, it is the Indian legislature, which now seriously needs to review this issue and come out with a composite legislation for non-resident Indians in family law matters. Till this is done, foreign Court judgments in domestic matters will keep cropping up and Courts in India will continue with their salutary efforts in interpreting them in harmony with the Indian laws and doing substantial justice to parties in the most fair and equitable way. | However, in this process, the Indian judiciary has made one thing very clear that is the Indian Courts would not simply mechanically enforce judgments and decrees of foreign Courts in family matters.
The Indian Courts have now started looking into the merits of the matters and deciding them on the considerations of Indian law in the best interest of the parties rather than simply implementing the orders without examining them.
Fortunately, we can hail the Indian judiciary for these laudable efforts and till such time when the Indian Legislature comes to rescue with appropriate legislation, we seek solace with our unimpeachable and unstinted faith in the Indian Judiciary, which is rendering a yeoman service.
The authors who were panelists in the legal session on Private International law at the Pravasi Bhartiya Divas held at Mumbai on January 8, 2005 were also key speakers at the Second International Conference organised by the Indian Society of International Law held at New Delhi from November 14 to 17, 2004, where participants worldwide deliberated on the changes needed in Indian Law to improve and facilitate solutions to family law problems of non-resident Indians.
In the context of the State of Punjab, the following suggestions are mooted for improving the existing family law problems posed daily before NRIs and faced by effected people resident in the State of Punjab consequentially when they come in contact with NRIs.
The solutions partly exist in proper implementation of existing laws, framing of proper regulations, creation of Family Courts and Fast Track Courts and by amendment of existing legislation. The six point charter summary is set down as hereunder in the following sequence.
1. Registration of marriages must be made compulsory. This will in turn ensure compliance of conditions of a valid marriage, provide proof of marriage and act as a deterrent for bigamous practices. Section 8 of the Hindu Marriage Act, 1956 makes it optional for State Governments to provide for rules for providing for registration of marriages. It is opined that states with significant NRI migration must make marriage registration compulsory particularly when one of the spouses is an NRI. Simultaneously, it should be made obligatory that the NRI spouse must give intimation of his registration of marriage to the concerned Embassy / High Commission in India, in which country he is presently resident. The State of Punjab should make and notify rules under Section 8 providing for compulsory registration of marriages and incidental matters related thereto.
2. Dissolution of marriage on the ground of breakdown of marriage as an additional ground for divorce should be introduced when at least one of the spouses is an NRI subject to safeguards provided by legislation. This would require amendment of the provisions of the Hindu Marriage Act, 1955 and Special Marriage Act, 1954. Such a ground would provide NRI spouses a judicial forum in India to seek a remedy on Indian soil rather than importing foreign judgments of alien courts on breakdown grounds and give a chance to the Indian spouse to defend on convenient and equitable terms in Indian courts. The need for this amendment must be strongly mooted by the State of Punjab to the Government of India to enact appropriate legislation by suitable amendments in the existing Hindu Marriage Act, 1955 and Special Marriage Act, 1954 since inter country migration from the State of Punjab is significant and in large numbers.
3. Wherever one of the spouses is an NRI, parallel additions must be made in Hindu Marriage Act, 1955 and Special Marriage Act, 1954 to provide for provisions for maintenance and alimony of spouses, child custody and child support as also settlement of matrimonial property. This will ensure that the spouse/children on Indian soil are maintained and provided for in accordance with the income and standard of the NRI spouse in the foreign jurisdiction. It may also be worthwhile to suggest that under section 3 of The Family Courts Act, 1984, the respective State Governments where Family Courts have not been established should be directed to provide for Family Courts. The State of Punjab, which essentially needs Family Courts as a matter of dire urgency, should immediately create such Courts to deal with family law problems and give priority to settlement of family law issues where parties are NRIs.
4. In the matters of Succession, Transfer of Property, Making/execution/implementation of Wills, repatriation of NRI funds, the respective State Governments must simplify and streamline procedures. Ideally speaking, in matters having property problems, fast track Courts must be set up to deal with such cases expeditiously in accordance with a time bound schedule. The Punjab Government has made amendments in The East Punjab Rent Restrictions Act and The Punjab Security of Land Tenures Act for the summary trial of disputes regarding agricultural, commercial and residential property. However, no special Fast Track Courts exist in the State of Punjab to settle these matters on priority. A fresh proposal should be mooted to set up such Courts as soon as possible.
5. In the area of inter-parental child abduction or removal of children to India from foreign jurisdictions against Court orders, India must become a signatory to the Hague Convention on Civil Aspects of International Child Abduction, 1980 to provide a treaty to be followed for observance and implementation of foreign Court orders. As of now, there is no international convention or treaty applicable in India since India is not a signatory to the said convention and other than conventional procedures, there are no remedies for enforcing such rights. Till such time there is no signing of such treaty, the Government of Punjab should permit liaison with foreign missions/Embassies in New Delhi through whom Courts should be assisted to ensure return of children to the Country of their foreign residence if they are removed in violation of foreign Court Orders. The administrative and police authorities in the State of Punjab should be given some uniform guidelines to observe to assist such parents in distress and who often land in the State of Punjab with no clue on whom to approach for assistance.
6. Inter country child adoption procedures must be simplified and a single uniform legislation must be provided for in matter of adoption of Indian children by NRIs. This should be hedged with ample checks and safeguards but at the same time should provide a unified, straightforward and single agency procedure. The present system is lengthy, complicated, involves multiple agencies, is very time consuming and thus needs to be suitably amended. Further, again the State of Punjab should lay down some uniform policy guidelines to be observed by State agencies, adoption homes and administrative authorities so that proper help and guidance is available in adoption matters.
In the view of the authors, the above changes can be made either by providing a new composite legislation for NRIs or suitable changes can be made in existing legislations for streamlining the laws and procedures. It is suggested that a Core Committee of specialists in the field of Private International Law should be constituted at the earliest to prepare a comprehensive draft to suggest the said changes in legislation in the best possible way.
