Many Indians and people from other nations, with different personal laws, have migrated and are migrating to different countries, either to make their permanent abode or for temporary residence. There are cases where citizens of India have been contracting marriages, either in this country or abroad, with nationals of other countries or among themselves, or having married here, either both or one of them migrate to other countries. There are also cases where parties having married here have been residing separately in different foreign countries. This migration has been giving rise to various kinds of matrimonial disputes, destroying the family and its peace.

There are some instances of the problems, which are seen occurring frequently due to cross-border migration: Abandoned brides in distress due to runaway foreign country resident Indian spouse; stressed non-resident Asian parents frantically searching for their sonin- law in India, who has moved their child from a foreign jurisdiction in violation of a foreign court order; desperate parents seeking child support and maintenance; non-resident spouse seeking enforcement of foreign divorce decree in India; agitated children of deceased non-resident Indian turning turtle in trying to seek transfer of property in India and its repatriation to foreign shores; anxious and excited foreign adoptive parents desperately trying to resolve Indian legal formalities for adopting a child in India. 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.

Dr. Rajeev Mehta, an NRI doctor, USA says “Divorce and custody matters drag on in India for years. Some family court judges do not follow any rule book and will misapply or even twist the actual meaning of case laws in order to make decisions based on sympathy or influence. The litigant who is more devious and has political, legal and bureaucratic connections is more likely to manipulate the system with the help of an army of lawyers. Even otherwise, most noncustodial parents end up losing access to their child because it is impossible to enforce visitation orders and going back to the family court would mean that the noncustodial parent wastes many more years attempting to obtain justice.”

These cases have bewildered officials of foreign High Commission and police, where former are trying to understand the customary practices of marriage and divorce, exclusively saved by Indian legislation and latter for the intricacies of Indian law in apprehending offenders of law on foreign soil.

Solicitors and litigants overseas frantically look for professional opinions and advice when the problems come to the Indian resident abroad. However, application of multiple laws, their judicial interpretation and other legalities often leave the problems unresolved. 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 judgments on this ground, leaving the deserted Indian spouse helpless on the Indian shores. According to K V Rathee, Advocate and Special Adviser – India, Blake, Cassels and Graydon, “The abandonment of a spouse by an NRI brings into play social, legal, contractual, criminal, private and public international law issues. It cannot simply be considered a civil dispute arising from a domestic discord, marriage breakdown or abandonment. In its very core, it is a criminal issue leading to emotional and mental distress and thus a fit case for punitive and compensatory damages. There is no one silver bullet that will cure this problem. We can have as many laws as we want but throwing many books on the problem will result in a hit-and-miss outcome. The fact that decisions of our courts are not enforceable in foreign lands, gives solace and protection to devious NRIs. We need to bring in legislation, a sort of omnibus law that takes the bull by its horns. It should have all the relevant provisions so that remedy can be found in one place. Also, we could make provisions for pre-nuptial arrangements and have reciprocal agreements with countries where NRIs are based to have a proper enforcement of decrees and orders of Indian courts.”

What is the panacea for all such issues and legal problems? Unfortunately, no special Indian legislation exists to combat the problems of the ever increasing number of Indians on foreign shores. However the dynamic, progressive and open minded judicial system in India often comes to the rescue by implementing the existing laws while taking into consideration the practical aspects, keeping in mind the new generation problems of immigrant Indians. A deep study of the overseas family law jurisdiction has revealed that it is the judicial precedents, which provide the much available guidance and judicial legislation to overcome this problem. The time has now come to seriously analyse the pros and cons, so that some composite legislation is enacted to deal with the problems of the NRIs.

The solution partly exists in implementation of existing laws, framing of proper regulations, creation of family courts, fast-track courts and amendment of existing legislation. Given below are some suggestions to mitigate the hardships and the problems faced by NRIs to resolve their family disputes:

• Registration of marriages must be made compulsory. This will ensure compliance of conditions of a valid marriage, provide proof of marriage and act as a deterrent for bigamous practices.
• Dissolution of marriage on the ground of irretrievable breakdown of marriage as a ground for divorce should be introduced when at least one of the spouses is an NRI subject to safeguards provided by legislation. Such a ground would provide NRI spouses a judicial forum in India to seek 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.
• Wherever one of the spouses is an NRI, parallel additions must be made in the Indian Marriage Act, 1955 and the Special Marriage Act, 1954 to provide for the provisions for maintenance and alimony of spouses, child custody and child support as also settlement of matrimonial property. This will ensure that the spouses or children on Indian soil are maintained and provided for in accordance with the income and standard of the NRI spouse in the foreign jurisdiction.
• In the matters of succession, transfer of property, making or execution or implementation of wills, repatriation of NRI funds, the existing procedures must be simplified and streamlined.
• 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 the civil aspects of International Child Abduction 1980.
• Inter-country child adoption procedures must be simplified and a single uniform legislation must be provided for in the matter of adoption of Indian children by NRIs. This should be hedged with ample checks and safeguards but at the same time provide a unified, straightforward and single agency procedure instead of the present system which is lengthy, complicated, involves multiple agencies and is very time consuming.

Dr. Mehta opines that to mitigate the hardships and the problems faced by NRIs, there is a real need for separate legislation and fast-track courts to deal with family matters of NRIs, creation of more family courts, amendment of existing legislation, better implementation of the laws, and severe penalties for those who misuse the laws.

The above changes can be made either by providing a new composite legislation for NRIs or suitable changes can be incorporated in the existing legislations for streamlining the laws and procedures. 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. Since NRIs are our backbone, it is important to see what India can do for them and not only what the NRIs can do for India, so that any misgiving or impression that they are non-required Indians is dispelled once for all.