In general and laymen’s language, marriage is a union of two individuals of opposite sex which is expected to last forever. The nature and extent of legal recognition and protection of marriage and other marriage related issues like divorce, maintenance, custody, and adoption are governed by different family laws around the world and therefore differ in different systems. It is noticed that multiple problems arise particularly in cases of inter-country and inter-cultural marriages. It wouldn’t be wrong to state that the present legal framework is ill-equipped to address them.
This concept of marriage has evolved with time and formidable changes have been witnessed in the same. With respect to India, the concept of marriage is now more looked upon as an arrangement for social convenience. One of the main reasons behind it could be the personal laws which were established in the mid- twentieth century and hasn’t been changed or updated since.
“Foreign” is the word which is often replaced with the word “fancy”. This common notion is one of the factors which encourages people to look forward to such kind of marriages. Going to foreign land seem to be “a ticket of prosperity” for many. With respect to NRI Marriages, the general notion for the same is believed to be an arrangement to marriage between a non-resident Indian and an Indian woman who resides in India itself. Such arrangement are now considered to be deceptive mirage or a trap for Indian women. Considering the complexity and constrained scope of law in this regard, it can only be implied that such women are deprived of the recourse to justice by law. Many aspects of such arrangement proves to be problematic for the women including dowry and various other types of harassment of married women in foreign countries, marriages of convenience, concealment of earlier existing marriage by the husband before marrying an Indian woman. Further, the fact that an Indian woman in a foreign land is often subjected to ‘isolation’ in an alien land, facing language constraints, communication problems, lack of proper information about the local criminal justice, police and legal system. Another very important issue which needs attention is lack of social security faced by an Indian woman in a foreign country when the marriage is not working. The situation is worsened by lack of support network of friends and family and monetary constraints which leaves the deserted wife completely helpless and stranded.
When looked at it with a legal perspective, an undue advantage rests in the hands of the NRI since they stand in the jurisdiction which is outside the limits of India. The women who are harassed mentally and physically, do have the resources to fight back against their spouse for their wrong doing. No bilateral agreements or treaties with foreign countries on issues relating to marriage, divorce, adoption and maintenance exist. In the event of abandonment, parallel Court proceedings are initiated on both sides in different countries. This leads to a conflict of jurisdictions and implementation of Court Orders becomes difficult. Even if an effective order is passed, enforcement hassles make the remedy more illusory than real. To compound the problems, registration of marriages has not been made compulsory uniformly in India, resulting in multiple marriages by the NRIs often without a previous divorce, invariably by duping the previous spouse and providing no social security including maintenance to the abandoned wife and the unfortunate child of such union, if any.
The Supreme Court in its judgement in the case of Neeraja Sharaph vs. Jayant V. Saraph has emphasised the need to consider legislation safeguarding the interests of women and has suggested the following specific provisions:
- No marriage between an NRI and an Indian woman which has taken place in India may be annulled by a foreign court.
- Adequate alimony should be paid to the wife out of the share of the property of the husband, both in India and abroad in case of divorce.
- The decree granted by Indian courts should be made executable in foreign courts both on the principle of comity by entering into reciprocal agreements and notifying them under section 44A of the Civil Procedure Code which makes a foreign decree executable as it would have been a decree passed by that court.
In Harmeeta Singh v Rajat Taneja , the Indian High Court passed an order of restraint against the husband to stop him from continuing with divorce proceedings in the U.S. while a maintenance case was going on in India filed by the abandoned wife. The High Court asked the husband to present a copy of this order to the U.S. court and observed that if he still obtained a divorce from the U.S. courts, such a divorce would not be recognized in India. Since under Section 44A of the Indian Civil Procedures Code (CPC) the United States was not a “reciprocating territory,” orders issued by a U.S. court would not be automatically recognized by the Indian court.76 As per CPC, foreign decrees from non-reciprocating countries must be filed in Indian District courts to seek recognition and enforcement.
The institution of marriage is the very foundation on which the splendid edifice of the social system stands. Although this field of law stands complex in absence of universal civil code. It would not be wrong to claim that this complexity in personal laws tend to amplify its complexity when a marriage in a foreign country is involved which results in prevalence and due consideration to their legal systems too. It is suggested that private international law should deal with issues relating to such arrangements in order to minimize the complexity to some extent. This is the area of law which needs to be looked at and should be provided with solutions and suggestion in order to prevent conflict not only between the parties involved but also the nations involved in such arrangements.