Law for NRI families

Though NRIs have increased multifold in foreign jurisdictions, there is want of proper professional information and advice on Indian laws, write Anil and Ranjit Malhotra.

- Abandoned bride in distress due to runaway foreign country Indian spouse
- Stressed Non resident Asian parent frantically searching spouse in India
- Desperate spouse seeking child support and maintenance
- Non-resident spouse seeking enforcement of foreign divorce decree in India

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These are some instances of problems arising every day from cross border migration. There are a large number of legal issues that concern a sizeable section of the global Indian community residing abroad. Though the non-resident Indians have increased multifold in foreign jurisdictions, family law disputes and situations are handicapped for want of proper professional information and advice on Indian laws. The lure for settling in foreign jurisdictions attracts a sizeable Indian population but the problems created by such migration largely remain unresolved.

Solicitors and litigants worldwide, frantically look for professional opinions and advice when the problems come to the Indian resident abroad. Instances of conditions of validity of marriages solemnized in India, modes and means of divorce under Indian law, legal formalities to be complied with for adopting children from India, remedies available in Indian law for enforcing parental rights in child abduction and other family law issues are abound relating to non-resident Indians.

Likewise, there are a plethora of problems in matters concerning succession and transfer of property, banking affairs, taxation issues, execution and implementation of wills and other commercial propositions for non-resident Indians. However, application of multiple laws, their judicial interpretation and other legalities often leaves the problems unresolved even though remedies partially exist in Indian law and partly need new urgent legislation.

The number of Non Resident Indians has multiplied in every jurisdiction abroad. However, family, property, kith and kin or the love for the motherland keeps bringing the NRI back on Indian soil in body or in soul. With this return, the NRI seeks a remedy for his legal problem connected with his temporary or permanent return to India. This invariably makes the NRI import the foreign law of the overseas jurisdiction from where he has migrated. Such a situation is created because either Indian law provides him no remedy or because he finds it easier and quicker to import a foreign court judgment to India on the basis of alien law, which has no parallel in the Indian jurisdiction.

This clash of jurisdictional law is commonly called Conflict of Laws in the realm of Private International Laws, which is not yet a developed jurisprudence in the Indian Territory. Areas of family law in which the problems of jurisdiction of law are seen occurring very frequently relate to dissolution of marriage, inter-parental child abduction, inter country child adoption and succession of property of non-resident Indians.

In matters of divorce, since irretrievable breakdown of marriage is not a ground for dissolving the marriage under Indian law, Indian Courts in principle do not recognise foreign matrimonial judgments dissolving marriage by such breakdown. Surprisingly, even very little help is available in areas of matrimonial offences and problems arising out of child abduction.

Leaving a helpless deserted Indian spouse on Indian shores confronted with a matrimonial litigation of a foreign court which he or she neither has the means or ability to invoke often results in despair, frustration and disgust.

Likewise, enforcement of a foreign court order in whose violation a child of the family has been removed and brought to Indian soil brings a parent to India desperately seeking a legal remedy. The list of problems is myriad but the solutions are few or non existent.

Unfortunately, no special Indian legislation exists to combat such remedies. The numbers of Indians on foreign shores have increased multifold but the multiple problems, which bring them back to India and are left to be resolved by the conventional Indian legislation. Times have changed but laws have not. However, the dynamic, progressive and open minded judicial system in the Indian Jurisprudence often comes to the rescue of such problems by interpreting the existing laws with a practical application to the new generation problems of immigrant Indians. Fortunately, judicial legislation is the only crutch available.

A very interesting, human and engrossing area of cross border litigation arises in cases of inter parental child abduction from foreign shores when a spouse removes the child to India in violation of a foreign court order. Unfortunately, India is not a party to the Hague Convention on the Civil Aspects of International Child Abduction, 1980. Neither was Pakistan.

But the UK-Pakistan Judicial Protocol was signed on January 17, 2003 by the President of the Family Division of the High Court of England and Wales and by the Chief Justice of the Supreme Court of Pakistan. It incorporated the effective provisions of the Hague Convention for the return of the abducted children to the country of the habitual residence. Perhaps, the crying need of the day exists for one in India also. Even though the British and Indian Governments have recently signed a treaty to extradite offenders of criminal law but in respect of matrimonial problems there is no such agreement, treaty or protocol. Even Legislative changes are still a far cry.

What then is the remedy as a panacea for all such ills and legal problems?

(To be continued)