Introduction

India continues to be one of the most attractive real estate markets for Non-Resident Indians (NRIs). Whether driven by emotional attachment, long-term investment goals, or plans to return home, NRIs are increasingly investing in residential and commercial properties across India.

However, investing in Indian real estate while living abroad comes with significant legal and practical risks. Cases of property fraud, title disputes, misuse of Power of Attorney, and regulatory non-compliance are not uncommon.

This comprehensive guide provides a complete legal checklist for NRIs to safely invest in property in India while ensuring compliance with applicable laws and minimizing risks.

Why NRIs Prefer Investing in Indian Real Estate

Before diving into legal safeguards, it is important to understand why Indian real estate remains attractive:

• Strong long-term appreciation potential
• Rental income opportunities
• Emotional value and future security
• Favorable exchange rates
• Growing infrastructure and urban development

Despite these advantages, legal due diligence is the most critical factor in protecting your investment.

Legal Framework Governing NRI Property Investment

NRI property transactions in India are governed primarily by:

• Foreign Exchange Management Act (FEMA)
• RBI guidelines
• State-specific property laws
• Registration Act, 1908
• Income Tax Act, 1961

What NRIs Can Buy

NRIs are allowed to purchase:

• Residential properties
• Commercial properties

NRIs are generally not allowed to purchase:

• Agricultural land
• Plantation property
• Farmhouses
  (unless inherited or gifted under specific conditions)

Step-by-Step Legal Checklist for NRIs Before Buying Property

1. Title Verification (MOST IMPORTANT)

The first and most critical step is verifying whether the property has a clear and marketable title.

What to Check:

• Ownership history (20–30 years)
• Chain of title documents
• Encumbrance certificate
• No pending litigation

Why it matters:
A defective title can lead to long legal disputes and financial loss.

2. Verify Seller’s Identity & Authority

Ensure that the seller has the legal right to sell the property.

Check:

• Original ownership documents
• Government-issued ID
• Authority in case of Power of Attorney

Avoid dealing with intermediaries without proper authorization.

3. Check Encumbrances & Liabilities

An encumbrance means any legal or financial liability attached to the property.

Verify:

• Loans or mortgages
• Court attachments
• Charges by banks

Obtain an Encumbrance Certificate (EC) from the local sub-registrar office.

4. Land Use & Zoning Compliance

Ensure the property complies with local land-use regulations.

Check:

• Residential vs commercial classification
• Local authority approvals
• Layout approvals

Illegal constructions may be demolished or penalized.

5. Approvals & Permissions (For Under-Construction Property)

If you are buying from a builder:

Verify:

• RERA registration
• Building plan approvals
• Environmental clearance
• Occupancy certificate (OC)
• Completion certificate (CC)

Always prefer RERA-registered projects.

6. RERA Verification

The Real Estate (Regulation and Development) Act (RERA) protects buyers.

Check:

• Project registration number
• Builder track record
• Delivery timelines

Visit the state RERA website for verification.

7. Agreement to Sell & Sale Deed Review

All agreements must be legally vetted.

Key Clauses:

• Payment schedule
• Possession date
• Penalty clauses
• Exit clauses

Never sign documents without legal review.

8. Stamp Duty & Registration

Property transactions must be registered under law.

Ensure:

• Proper stamp duty payment
• Registration at sub-registrar office
• Accurate property details

Unregistered property transactions have no legal validity.

9. Power of Attorney (PoA) for NRIs

Since NRIs are abroad, PoA is commonly used.

Best Practices:

• Use specific (limited) PoA
• Get it notarized and registered
• Avoid giving full sale rights

Misuse of PoA is a major cause of fraud.

10. Tax Implications for NRIs

Key Taxes:

• TDS on property purchase
• Capital gains tax
• Rental income tax

Always consult a Chartered Accountant for tax planning.

11. Payment Compliance (FEMA Rules)

NRIs must follow strict payment rules:

• Payment via NRE/NRO accounts
• Banking channels only
• No cash transactions

Non-compliance may attract penalties.

Read Also: Most Common NRI Property Issues 

12. Property Insurance & Protection

After purchase:

• Insure your property
• Install security systems
• Appoint a trusted caretaker or legal manager

Common Mistakes NRIs Must Avoid

Buying property without legal verification
Trusting relatives or agents blindly
Signing documents without understanding
Ignoring local laws
Delaying registration

Practical Example

An NRI purchases a flat in Punjab without proper title verification. Later, it is discovered that the property was mortgaged to a bank. The buyer faces litigation and financial loss.

Lesson: Legal due diligence is non-negotiable.

File a Complaint Before the NRI Commission for Any Fraud In Punjab

Why Legal Assistance is Essential

Hiring a property lawyer ensures:

• Title verification
• Document drafting
• Risk assessment
• Legal compliance
• Dispute handling

A small legal fee can save lakhs in future losses.

Final Checklist Before Buying Property in India

Verify title (20–30 years)
Check encumbrance certificate
Verify seller identity
Confirm RERA registration
Review legal documents
Ensure FEMA compliance
Plan tax implications
Register property properly

Conclusion

Investing in property in India as an NRI can be highly rewarding—but only if done correctly. The key lies in legal due diligence, proper documentation, and expert guidance.

A cautious and informed approach ensures that your investment remains secure, profitable, and free from disputes.

Call to Action

If you are an NRI planning to invest in property in India, ensure that every step is legally verified.

Bhandari Law Firm offers:

• Title verification
• Legal due diligence
• Documentation support
• Property dispute resolution

Book your consultation today and invest with confidence.

Managing property and affairs in India from abroad can be risky if not handled properly. Many NRIs lose money—not because of bad investment—but due to lack of legal protection.

Read Also: NRI Property Management in India

Here are the top issues NRIs face—and practical legal solutions

1. Property Grab / Illegal Possession
Problem: Vacant property gets occupied illegally
Solution:
Regular property inspection
Immediate legal notice & civil action
Police complaint in case of trespass

2. Misuse of Power of Attorney (PoA)
Problem: Trusted persons misuse authority
Solution:
Use limited/specific PoA only
Always register PoA
Avoid giving sale rights unless necessary

3. Property Fraud & Fake Deals
Problem: Buying disputed or fake property
Solution:
Conduct 20–30 years title search
Verify seller ownership
Get legal due diligence report

4. Tenant Not Vacating
Problem: Tenant refuses to leave or stops paying rent
Solution:
Strong rent agreement with eviction clause
Police verification of tenant
Legal eviction process through court

5. Family Disputes Over Property
Problem: Disputes among relatives over inheritance
Solution:
Proper Will drafting
Clear ownership documentation
Partition agreement if required

6. Missing or Defective Property Documents
Problem: Incomplete registry, unclear title
Solution:
Title verification
Mutation & record correction
Certified copies from authorities

7. Tax & Repatriation Confusion
Problem: Issues in sending money abroad
Solution:
Follow FEMA & RBI rules
Proper CA certification
Plan capital gains tax

FINAL ADVICE FOR NRIs

Never invest without legal check
Never rely only on verbal assurances
Always have a legal advisor in India

Protect Your Property Today

If you are an NRI facing any of these issues,
Bhandari Law Firm can help you with:

Legal Due Diligence
Property Protection
Dispute Resolution

Book your consultation now

#NRIProperty #NRILawyer #PropertyLawIndia #LegalAdviceIndia #InvestInIndia #PropertyDispute #NRIIndia #BhandariLawFirm

With the steady rise in global migration, Non-Resident Indians (NRIs) often find themselves balancing emotional ties to their homeland with practical challenges of managing assets from afar. Among these, property ownership and management in India stand out as both an opportunity and a source of concern. Whether inherited, purchased as an investment, or intended for future return, property requires careful handling—especially when the owner resides overseas.

This blog provides a comprehensive overview of NRI affairs relating to property management, legal safeguards, and strategic best practices.

Understanding NRI Property Ownership

NRIs are permitted to purchase residential and commercial properties in India without requiring prior approval from the Reserve Bank of India (RBI), subject to compliance with the Foreign Exchange Management Act (FEMA). However, agricultural land, plantation property, and farmhouses are generally restricted, unless inherited.

Property ownership for NRIs is not merely about acquisition—it extends to compliance, maintenance, taxation, and protection against misuse or encroachment.

Common Challenges Faced by NRIs

Managing property remotely presents several unique challenges:

1. Unauthorized Occupation or Encroachment

Vacant properties are often vulnerable to illegal possession, tenant disputes, or misuse by caretakers. Distance and lack of monitoring increase the risk.

2. Fraudulent Transactions

Cases have emerged where properties are sold or mortgaged using forged documents or misused powers of attorney.

3. Maintenance Issues

Regular upkeep, payment of utility bills, property taxes, and society charges require consistent supervision.

4. Legal Compliance

Changes in local laws, municipal regulations, and taxation policies may go unnoticed, leading to penalties or disputes.

5. Tenant Management

Renting property may seem like a viable option, but issues such as non-payment of rent, refusal to vacate, or misuse of premises are common concerns.

Importance of Professional Property Management

To mitigate risks, NRIs are increasingly opting for professional property management services or legal advisors. These services typically include:

• Periodic inspection and reporting
• Tenant verification and rent collection
• Documentation and lease agreements
• Legal due diligence
• Handling disputes and eviction proceedings
• Payment of taxes and utility bills

A well-structured management system ensures that the property remains secure, compliant, and productive.

Legal Safeguards Every NRI Must Consider

1. Title Verification and Due Diligence

Before purchasing or even managing an existing property, ensure that the title is clear, marketable, and free from encumbrances. A thorough title search of at least 20–30 years is recommended.

2. Power of Attorney (PoA)

NRIs often execute a Power of Attorney in favor of a trusted individual or legal professional in India. This document must be carefully drafted, notarized, and preferably registered to avoid misuse.

3. Proper Documentation

Maintain updated copies of sale deeds, tax receipts, mutation records, and society approvals. Digitization of records is advisable.

4. Rental Agreements

Lease agreements should be legally vetted, clearly defining rights, obligations, lock-in periods, and eviction clauses.

5. Regular Monitoring

Periodic physical inspection or photographic/video verification of the property helps prevent misuse.

Taxation Aspects for NRIs

NRIs are subject to tax implications in India on income generated from property, such as rental income or capital gains upon sale.

• Rental Income: Taxable in India, with TDS applicable.
• Capital Gains: Long-term or short-term depending on holding period.
• Repatriation: Sale proceeds can be repatriated subject to FEMA guidelines and submission of required documents.

It is advisable to consult a tax expert to ensure compliance and optimize tax liability.

Best Practices for Effective Property Management

1. Engage Legal Experts
   A qualified legal professional can safeguard your interests, conduct due diligence, and represent you in disputes.
2. Use Technology
   Install CCTV, smart locks, and remote monitoring systems for real-time updates.
3. Maintain Transparency
   Keep clear records of all transactions, agreements, and communications.
4. Regular Audits
   Conduct periodic legal and financial audits of your property.
5. Choose Reliable Tenants or Caretakers
   Background verification is essential before handing over possession.

Conclusion

For NRIs, property in India is not just a financial asset—it is often tied to emotional value and future aspirations. However, without proper management, it can become a liability. A proactive approach, supported by legal expertise and professional management, ensures that your property remains secure, compliant, and profitable.

Investing in structured property management today can save significant time, money, and stress in the future. Whether you own a single residential unit or multiple properties, adopting best practices is essential to protect your hard-earned assets.

If you require assistance in property due diligence, title verification, drafting agreements, or complete property management solutions, engaging a trusted legal professional can make all the difference.

Divorce is not merely a personal or emotional decision — it is a structured legal process governed by statutory law, judicial precedents, and procedural safeguards. Whether you are considering separation, have already received a legal notice, or are facing matrimonial litigation, understanding the legal framework is essential before taking any step. DIVORCE INDIA PROCEDURE PROTECTION

In India, divorce laws are primarily governed by the Hindu Marriage Act, 1955, the Special Marriage Act, 1954, the Indian Divorce Act, 1869, Muslim Personal Law, and other community-specific statutes. The procedure, grounds, and reliefs vary depending on the nature of the marriage and the type of divorce sought. DIVORCE INDIA PROCEDURE PROTECTION

This detailed legal guide explains the process of Mutual Divorce, Contested Divorce, Alimony, Child Custody, Domestic Violence implications, 498A cases, property rights, and important precautions before initiating proceedings.

1. Types of Divorce in India DIVORCE INDIA PROCEDURE PROTECTION

A. Mutual Consent Divorce

Mutual Divorce is filed when both spouses agree that the marriage has irretrievably broken down and they wish to separate amicably. It is generally considered faster and less adversarial.

Procedure:

1. Joint petition filed before the Family Court.
2. First motion statement recorded.
3. Cooling-off period (normally 6 months; may be waived in appropriate cases).
4. Second motion and final decree of divorce.

Settlement must include:

• Alimony / one-time settlement amount
• Child custody and visitation rights
• Division of assets and liabilities
• Withdrawal of pending civil or criminal cases (if agreed)

B. Contested Divorce DIVORCE INDIA PROCEDURE PROTECTION

When one spouse does not agree to dissolve the marriage, a Contested Divorce petition may be filed on specific legal grounds such as:

• Cruelty (mental or physical)
• Desertion for more than two years
• Adultery
• Mental disorder
• Conversion of religion
• Venereal disease
• Renunciation of the world

Contested divorce involves pleadings, evidence, cross-examination, interim applications for maintenance, custody battles, and final arguments. It may take longer depending on complexity and court pendency.

2. Maintenance & Alimony (Interim and Permanent)

Maintenance is one of the most litigated aspects of matrimonial disputes. Relief may be sought under:

• Section 24 & 25, Hindu Marriage Act
• Section 125 CrPC
• Domestic Violence Act
• Special Marriage Act provisions

Courts consider:

• Income and earning capacity of both parties
• Standard of living during marriage
• Dependents
• Financial liabilities

Read Also: Family Courts in India

3. Child Custody & Guardianship

In custody matters, the welfare of the child is the paramount consideration. Courts may grant:

• Sole custody
• Joint custody
• Shared parenting arrangements
• Visitation rights
• Interim custody during pendency

Factors considered:

• Child’s age
• Financial stability
• Emotional environment
• Educational needs

4. Domestic Violence & 498A Implications

Many divorce proceedings run parallel to criminal complaints under:

• Protection of Women from Domestic Violence Act, 2005
• Section 498A IPC
• Dowry Prohibition Act

Reliefs may include:

• Protection orders
• Residence rights
• Monetary relief
• Compensation
• Criminal prosecution

5. Property, Streedhan & Asset Division

In India, there is no automatic 50-50 property division. Ownership depends on title, contribution, and documentation.

Important aspects:

• Streedhan is the absolute property of the wife
• Joint property rights depend on shareholding
• The settlement deed must be properly drafted
• Property disputes may continue post-divorce

6. Important Precautions Before Filing for Divorce

Before initiating any matrimonial litigation, consider:

Financial documentation and income proof
Preservation of digital evidence (messages, emails, recordings where legally admissible)
Child welfare planning
Tax implications
Mediation possibilities
Impact of criminal proceedings
Drafting of legal notice and petition

Early strategic mistakes can weaken your case. Proper legal drafting, jurisdiction selection, and interim applications play a crucial role in protecting your rights.

Conclusion

Divorce is not merely about ending a marriage; it is about securing financial stability, protecting parental rights, and ensuring long-term legal safety. Whether it is a mutual divorce, Contested Divorce, Alimony dispute, Child Custody battle, Domestic Violence complaint, or 498A litigation, each case requires careful planning and proper legal guidance.

Legal awareness is the first step toward protecting your future.

For professional assistance in Mutual Divorce, Contested Divorce, Maintenance, Child Custody, Domestic Violence, 498A matters, NRI Divorce, and Marriage Disputes, consult a qualified Family Law practitioner and understand your rights before taking any action.

#DivorceLaw #MutualDivorce #ContestedDivorce #FamilyLawIndia #DivorceProcedure #AlimonyLaw #MaintenanceCase #ChildCustodyIndia #DomesticViolenceAct #498A #MarriageDispute #FamilyCourt #HinduMarriageAct #SpecialMarriageAct #Streedhan #PropertyRights #NriDivorce #LegalAwareness #DivorceLawyer

]]> https://beta.bhandarilawfirm.com/divorce-in-india-a-complete-legal-guide-to-your-rights-procedure-protection/feed/ 0 https://beta.bhandarilawfirm.com/passport-for-an-adopted-child-in-india/ https://beta.bhandarilawfirm.com/passport-for-an-adopted-child-in-india/#respond Tue, 18 Jun 2024 18:52:54 +0000 http://localhost/lawfirm/2024/06/18/passport-for-an-adopted-child-in-india/ Obtaining a Passport for an Adopted Child in India: A Comprehensive Guide

Passport For an Adopted Child In India: Adopting a child is a beautiful journey that brings immense joy and fulfillment to families. However, it also involves navigating various legal processes, one of which is obtaining a passport for your adopted child. In India, the process of securing a passport for an adopted child involves specific steps and documentation to ensure compliance with legal requirements. Here’s a detailed guide to help you through the process.

Understanding the Legal Framework

In India, adoption is governed by the Juvenile Justice (Care and Protection of Children) Act, 2015 and the Hindu Adoption and Maintenance Act, 1956. The Central Adoption Resource Authority (CARA) oversees the adoption process to ensure it is conducted legally and ethically. Once the adoption is finalized, obtaining a passport for your adopted child is a critical step for travel and legal identification purposes.

Step-by-Step Process to Obtain a Passport for an Adopted Child

1. Finalizing the Adoption

   • Ensure that the adoption is legally finalized through the appropriate court orders. For this, you need the final adoption decree or the court order granting adoption.

2. Gathering Required Documents

   • Adoption Deed/Court Order: The official document that legally certifies the adoption.
   • Birth Certificate: If available, the child’s birth certificate must be submitted. If a new birth certificate has been issued post-adoption, it must reflect the adoptive parents’ names.
   • Passport Application Form: Complete the application form available on the official Passport Seva website.
   • Proof of Identity and Address: Submit proof of identity and address of the adoptive parents, such as Aadhar card, voter ID, or passport.
   • Photographs: Recent passport-sized photographs of the child as per the specifications.

3. Filling Out the Application

   • Visit the Passport Seva website and register for an account if you haven’t already.
   • Fill out the online passport application form carefully, ensuring all details are accurate and complete.

4. Paying the Fee

   • Pay the applicable passport application fee online. The fee structure is available on the Passport Seva website and varies based on the type of passport and the urgency of the application.

5. Scheduling an Appointment

   • Once the application form is filled out and the fee is paid, schedule an appointment at the nearest Passport Seva Kendra (PSK) or Regional Passport Office (RPO).

6. Visit to Passport Seva Kendra (PSK)

   • On the scheduled date, visit the PSK or RPO with your child and all the required documents.
   • At the PSK, you will undergo document verification, biometric data collection (if applicable), and an interview.

7. Police Verification

   • After the PSK visit, a police verification process will be initiated to verify the details provided in the application. Ensure that all information is accurate to avoid delays.
8. Passport Issuance
   • Once the police verification is completed and the application is approved, the passport will be printed and dispatched to your address.

Read Also : Immigration Lawyers in Chandigarh Mohali and Panchkula

Important Considerations

• Name Change: If the adopted child’s name has been changed, ensure that all documents reflect the new name consistently.
• Legal Guardianship: In cases where legal guardianship is obtained instead of full adoption, additional documents may be required.
• International Adoptions: For inter-country adoptions, additional clearances from CARA and compliance with the Hague Convention may be necessary.

Conclusion

Securing a passport for your adopted child in India is a structured process that requires attention to detail and adherence to legal protocols. By following the steps outlined above and ensuring all necessary documentation is in place, you can navigate this process smoothly. Having a passport not only allows your child to travel internationally but also serves as a crucial identity document.

For any specific queries or legal assistance regarding the adoption process or obtaining a passport for your adopted child, it is advisable to consult with a legal expert or contact the Central Adoption Resource Authority (CARA).

Obtaining a passport for your adopted child is a significant milestone in your adoption journey, symbolizing a new beginning and the promise of countless adventures ahead.

For more information, call us at 9855677966 or email us at info@localhost.

Facts of the Case

Husband and Wife had gotten married as per the Sikh rites and Hindu Vedic rites and ceremonies.

Appellant a US citizen had moved to that country with his parents in the year 1994. After the marriage, the respondent/wife applied for permanent resident status.

Petition for Divorce Objection NRI Divorce India

Appellant/husband and respondent/wife came to India with their child, while they were in India, respondent/wife filed a divorce petition under Section 13(1)(I–a) of the Hindu Marriage Act.

Husband/appellant on returning to the USA alone filed for a divorce petition in Chicago, USA. He was granted an ex parte divorce on the ground of an irretrievable breakdown of the marriage.

Custody of Child Objection NRI Divorce India

Appellant/Husband also approached the Circuit Court of Cook County, Illinois, USA for the custody of the child which was granted to him ex parte.

Writ of Habeas Corpus Objection NRI Divorce India

Further, the appellant/husband had filed a writ petition in Delhi High Court for issuance of a writ of habeas corpus for the production and custody of the minor child.

Also Read: NRI Marriage Registration in Punjab

On being aggrieved with the above, the wife approached the Supreme Court which was allowed with directions to the parties to appear before the Family Court for the decision in regard to the custody of a minor child.

Order VII Rule 11 CPC

Appellant/Husband had moved an application under Order VII Rule 11 CPC for seeking rejection of the said petition on the plea that the provisions of the Act would apply to persons who are outside the territory of India only if they are domiciled in India. Objection NRI Divorce India

Since the husband/appellant was domiciled in the USA, only the wife/respondent was domiciled in India, the Act is not applicable to them.

FAMILY COURT HELD

Family Court had dismissed the application filed by the appellant/husband under Order VII Rule 11 CPC and stated that the appellant/husband cannot be allowed to selectively refer to the pleadings of the respondent/wife.

Further, the family court held that it is for the Court to determine as to whether the facts of a case conclusively establish that the respondent/wife had acquired US Domicile, Family Court rejected the stand of the appellant/husband that the divorce petition filed by the respondent/wife is barred by law.

COURT DECISION

A meaningful reading of the entire plaint must be conducted for the court to satisfy itself as to whether the averments made therein if taken to be correct in their entirety, would result in a decree being passed.

For the above-stated position, several Supreme Court’s Decisions were relied on including  in T. Arivandandam v. T.V. Satyapal,  Popat and Kotecha Property v. State Bank of India Staff Assn.,  2005 7 SCC 510

There cannot be any compartmentalization, dissection, segregation, and inversions of the language of various paragraphs in the plaint. Objection NRI Divorce India

Hardesh Ores (P) Ltd. v. Hede & Company, 2007 5 SCC 614

The averments made in the plaint as a whole have to be seen to find out whether Clause (d) of Rule 11 of Order VII is applicable. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense.

In the instant matter, it has to be determined as to whether the divorce petition filed by the respondent/wife deserves to be rejected or not.

Section 19 of the Hindu Marriage Act offers multiple options as to the local District Court where a Divorce petition can be presented. It includes the place where the marriage of the parties was solemnized or where the respondent resides at the time of presentation of the petition or in case the wife is the petitioner, where she is residing on the date of presentation of the petition or where the petitioner is residing at the time of presentation of a petition in a case where the respondent at that relevant point in time, is residing outside the territories to which the Act extends, as contemplated in Section 1(2).

Concept of ‘Resident’ and ‘Domicile’:

Union of India v. Dudh Nath Prasad,  2000 2 SCC 20

The classical division of domicile is well known. There is the domicile of origin, the domicile of choice, and the domicile of dependence. There has been little change in the essential concept of these three domiciles…

In view of the above, the concept of “domicile” as canvassed by learned counsel for the appellants with reference to change of nationality or change of domicile from one country to another, cannot be imported in the present case. Moreover, “Domicile” and “Residence” are relative concepts and have to be understood in the context in which they are used, having regard to the nature and purpose of the statute in which these words are used.”

The Hon’ble bench stated that under Order VII Rule 11, CPC, the court can only scrutinize the contents of the plaint taken as a whole but it cannot consider the evidence, if any, or the pleas taken in the written statement.

In the instant matter, the respondent/wife categorically stated in her petition that she wanted to reside in India. After the amendment to the Act in the year 2003 and on insertion of sub-clause (ilia) in Section 19, it cannot be said that Family Courts in Delhi are not vested with the jurisdiction to try and entertain the divorce petition filed by the respondent/wife.

DELHI High Court: A Division Bench of Hima Kohli and Subramonium Prasad, JJ., while observing a matrimonial application, held that the appellant/husband cannot raise an objection to the respondent/wife initiating proceedings of divorce in India under the provisions of the Act only because he is a US citizen and domiciled in the USA.

In the instant case, the respondent/wife remains a citizen of India and therefore, is a domicile of India for all intents and purposes. She has chosen to approach the courts in India for obtaining a decree for divorce.

The divorce petition filed by the respondent/wife read as a whole, does disclose a valid cause of action that can be entertained by the Family Court in India.

This article has been written and prepared by Advocate Ishmeet Kaur, from Patiala. 

Note: For any further information or any query you may contact us on 9855677966 or via email info@localhost

To the legal fraternity, there exists nothing like a court marriage. When a layperson addresses them with the concept of Court Marriages, it is then that they realize that reference is being made to the marriage taking place under the provisions of the Special Marriage Act, 1954. The blame of the conception of court marriages may be had to the films and stories where the hero and heroine go to the registrar’s office and get married at the moment. In reality, the process is rather an elongated one, with documents to be given and a procedure to be followed. It is not as easy as barging into an office and making a signature which leads to being declaring you to be married. Court Marriage Special Marriage Chandigarh Punjab Haryana

It must be noted that any person whose marriage is solemnized under this Act shall have the same rights and shall be subject to the same disabilities in regard to the right of succession to any property as a person to whom The Caste Disabilities Removal Act, 1850 (21 of 1850), applies. Court Marriage Special Marriage Chandigarh Punjab Haryana

Conditions Precedent: Court Marriage Special Marriage Chandigarh Punjab Haryana

Even before you go into a registrar’s office to get married, it must be satisfied that both the bride and bridegroom satisfy the requirements as laid down in the Special Marriage Act. These prerequisites are as laid down in section 4. The conditions briefly are as follows: Court Marriage Special Marriage Chandigarh Punjab Haryana

1. Monogamy: Neither party must be having a spouse living. Bigamy is punishable under Section 44 of the Act.
2. Consent: Party must not be incapable of giving valid consent because of unsoundness of mind. Even if the party is capable of giving valid consent, he/ she cannot be a party to the marriage if he/ she has been suffering from mental disorder making him/ her unfit for marriage and the procreation of children. A person subject to recurrent attacks of insanity is also not qualified to be a party.

• Major: Male must have completed twenty-one years and the female eighteen years.

1. Prohibited degree: Parties must not be in the degree of prohibited relationship subject to custom to the contrary.
2. Jammy and Kashmir: Both parties are citizens of India and domiciled in the territories to which this Act extends Court Marriage Special Marriage Chandigarh Punjab Haryana

The procedure of Solemnization Of Court Marriage Under Special Marriage in Chandigarh Punjab Haryana

The first step when parties intend to solemnise a marriage under this act is to give notice (form in Second Schedule) to the Marriage Officer of the district. Court Marriage Special Marriage Chandigarh Punjab Haryana

1. The application is to be made to the Marriage Officer of the district in which at least one of the parties to the marriage resided for a period of not less than thirty days immediately preceding the date on which such notice is given. This notice will be recorded in the office of registrar and Marriage Notice Book which is generally open for inspection. Every notice will be published by affixing a copy to some conspicuous place in the registrar’s office. There is also provision for sending of notice to the marriage registrar in whose local jurisdiction they reside, for publication, if they do not reside within the local limits of the district of the Marriage Officer to whom the notice has been given. Court Marriage Special Marriage Chandigarh Punjab Haryana
2. Within 30 days of publication of the notice, any person may object to the marriage on the ground that it would contravene one or more of the conditions specified in section 4.
3. If no objection is raised after the expiration of thirty days from the date of publication the marriage may be solemnized. Court Marriage Special Marriage Chandigarh Punjab Haryana
4. However, if the objection is raised, the Marriage Officer shall not solemnize the marriage and shall be inquired into the matter of the objection. After he is satisfied that it ought not to prevent the solemnization of the marriage or the objection is withdrawn by the person making it, he may proceed to solemnize the marriage. This shall be done within 30 days.
5. Now, if the Marriage Officer upholds the objection and refuses to solemnize the marriage, either party to the intended marriage may, within a period of thirty days, prefer an appeal to the district court whose decision shall be final, Court Marriage Special Marriage Chandigarh Punjab Haryana
6. Finally, the parties and three witnesses shall, in the presence of the Marriage Officer, sign a declaration (form specified in the Third Schedule) and the declaration shall be countersigned by the Marriage Officer. It is not necessary that the marriage is solemnised at the office of the Marriage Officer. It may be done at such other place within a reasonable distance subject to conditions and payments. It may also be done in any other form.
7. Each party says to the other in the presence of the Marriage Officer and the three witnesses and in any language understood by the parties,—        “I, (A), take the (B), to be my lawful wife (or husband).”
8. The Marriage Officer shall enter a certificate (form specified in the Fourth Schedule)which shall be signed by the parties to the marriage and the three witnesses. This certificate shall be deemed to be conclusive evidence of the fact that a marriage under this Act has been solemnized and that all formalities respecting the signatures of witnesses have been complied with. It must be noted that Section 45 imposes punishment for signing a false declaration or certificate. Court Marriage Special Marriage Chandigarh Punjab Haryana

Registration Of Court Marriages Celebrated In Other Forms: Court Marriage Special Marriage Chandigarh Punjab Haryana

Any marriage celebrated, other than a marriage solemnized under the Special Marriage Act, 1872 or under this Act, may be registered by a Marriage Officer upon fulfillment f conditions specified in Section 15. Section 16 provides for the procedure for their registration.

Analysis Of 30 Day Objection Period of Court Marriage Marriage Special Marriage Chandigarh Punjab Haryana

A similar also existed in 1872, however with a number of issues. The present act is also not free from issues. The 30 day objection period has, for instance, been misused a number of times. It is quite clear that this was inserted to afford opportunities for the families of the party. However, this step is questioned a lot many times. No law in the country equates such a provision of thirty days. Not being oblivious to the ground reality we must realise that lives many times of parties to the marriage are at risk and all they want is to be forgotten by their respective families. Haryana’s court marriage checklist for guru gram provides for sending a notice to families, what may become of such couples then may only god know! Keeping all that aside, the provision of public notice takes away from the couple its right to privacy.

The judiciary has however afforded protection to the couples. In Pravan Kumar Mishra Vs. Govt of NCT Delhi, it was held by Delhi HC that the unwarranted disclosure of matrimonial plan of two adults entitled to solemnise it may, in certain situations, jeopardise the marriage. In certain circumstances, it may even endanger the life and limb of one or the other party due to parental interference. Again in Kuldeep Singh Meena v State of Rajasthan, it was held by HC of Rajasthan that additional conditions cannot be employed on couples. While striking down the list the Punjab and Haryana HC held that SMA has to be implemented in a way to promoted inter-faith marriages.

Children born out of Void and Voidable Marriages:

If any of the following conditions are met, the marriage would be void:

1. any of the conditions specified in clauses (a), (b), (c), and (d) of section 4 has not been fulfilled. i.e. Monogamy, Consent, Major, Prohibited degree.
2. the respondent was impotent at the time of the marriage and at the time of the institution of the suit.

Section 24: If any of the conditions as specified in Section 24 are met, the marriage would be voidable. These briefly are non-consummation due to wilful refusal, respondent pregnant by some person other than the petitioner, or the consent of either party to the marriage was obtained by coercion or fraud. It also specifies other conditions that the court must satisfy before granting a decree.

(Read About NRI Marriage Registration In Chandigarh Punjab Haryana)

Section 26:  says that any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate. In respect of voidable marriage, it says that any child is begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it has been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.

These cannot, however, mean that any rights in or to the property of any person, other than the parents, is created by this act.

Conclusion

The Special Marriage Act was passed in 1954 as a series of reforms to modernize the highly complicated personal law in the country. This was the time when Nehru government made such reforms a priority. The act primarily was passed to solemnise marriages that could not have taken place earlier in the parties’respective personal law, essentially meaning validating inter-faith marriages. However, with the modernization of the country, it can be and is used by the people who do not want their respective personal laws to govern them even if they belong to the same community or religion. The reason largely is that there have been certain restrictions and conditions set in every personal law in the country while the central non- secular law provides a more rational and neutral approach.

Author: This article was written by Nikita Sharma, B.A. LLB (Hons), student of National Law University at Himachal Pradesh.

Note: For any further information or any query you may contact us on 9855677966 or via email info@localhost

An NRI is defined as an Indian citizen who resides outside of India. NRI marriages, as generally understood, are between an Indian woman from India and an Indian man residing in another country, either an Indian citizen or as a citizen of that other country. Common Issues in NRI Marriages include abandonment, physical and mental abuse, abandonment of wife in India with no visas, child custody, etc. In Neerja Saraph vs Jayant v Saraph, (1994 SCC (6) 461) the Hon’ble Supreme Court recommended formulation of legislation safeguarding interests of women in NRI marriages.

Law Governing NRI Marriages NRI Marriage Registration In Chandigarh Punjab

Applicable Law: NRI marriages and their validity, divorce, maintenance, child custody, succession to property, etc. are governed/regulated by the personal law under which an NRI marriage took place in India. In other words, if an Indian settles down abroad whether as PIO or NRI and if he/she had married in India, the marriage would be governed by the Indian law under which they married. If parties do not consent or file suit in an Indian Court, these marriages may have to then enter (when parties submit) the sphere of law of host country or private international law where there is the conflict of laws of different countries, which makes the issues therein a lot more complex.

Registration of NRI Marriage: After the 2006 judgement, all states have legislation for registration now. It is considered important for proving the validity of the marriage. An application for the registration shall be signed by each party to the marriage or by the guardian and presented before the Registrar in whose jurisdiction either party to the marriage has been residing for at least six months immediately preceding the date of marriage. All Sub-Registrars are registrars of Marriages under the Hindu Marriage Act and Marriage Officer under the Special Marriage Act. The Special Marriage Act provides for the solemnization of a marriage as well as registration by a Marriage Officer. Any marriage already celebrated can also be registered under the Special Marriage Act after giving public notice of 30 days. NRI Marriage Registration In Chandigarh Punjab

The Registration of Marriage of Non-Resident Indian Bill, 2019

It says every NRI who marries a citizen of India or another NRI shall register his marriage within 30 days. If the marriage occurs outside India, it must be registered with a Marriage Officer, who will be appointed from among the diplomatic officers in a foreign country.  The Bill amends the Passports Act, 1967 to state that in case an NRI fails to register the marriage within 30 days, the passport authority may impound or revoke his/her passport. The Bill adds a provision to the Code of Criminal Procedure (CrPC), 1973.  If the person summoned does not appear before the court, it may upload a warrant for arrest on the website. However, the Bill does not allow a late registration beyond the 30-day period. Unlike other laws, the Bill does not specify the minimum number of days abroad to qualify as an NRI.

Guidelines and Policies: Ministry of Overseas Indian Affairs has brought out a guidance booklet on “Marriages to Overseas Indians”. A pamphlet entitled “Thinking of the marriage of your daughter with an NRI?” addresses precautions to be taken before entering into marriage alliance. The National Commission for Woman was nominated as the coordinating agency at the national level for dealing with issues pertaining to NRI marriages by Government of India. An NRI Cell was formally inaugurated which deals with complaints received from within the country and abroad. It brought out a pamphlet “Problems Relating to NRI Marriages-Dos and Don’ts”. NCW has also brought out a report on problems relating to NRI marriages, titled “The ‘Nowhere’ Brides” (4,274 complaints in 10 years). NRI Marriage Registration In Chandigarh Punjab

Custody of Child: A child brought without a proper court order or in breach of the court order could be sent back to the country of habitual residence as per Hague Convention of Civil Aspects of International child abduction. There is more international law but the take of Indian Courts has been to decide to keep in focus the welfare of the child. In Prateek Gupta Vs. Shilpi Gupta 2017 SCC OnLine SC 1421 the SC whittle down to the inference that welfare of the child is of paramount consideration and principle of forum convenience has no place in cases where custody of the child is disputed. Again in Ruchi Majoo v. Sanjeev Majoo (2011) 6 SCC 479, it was held that the interest and welfare of the minor being paramount, a competent court in India is entitled and indeed duty-bound to examine the matter independently. The court in Smt. Surinder Kaur Sandhu vs Harbax Singh Sandhu 1984AIR  1224 recognised that to allow the assumption of jurisdiction by another State in such circumstances will only result in encouraging forum- shopping. In Sarita Sharma v. Sunil Sharma (2000 (3) SCC 14) one of the contentions that were urged before this Court was that the removal of children from the U.S.A. to India was against the orders passed by the American Court. The Court held that the order passed by the U.S. courts constituted but one of the factors which could not override the consideration of the welfare of the minor children. In Dhanwanti Joshi v. Madhav under the Supreme Court held that in a non-convention country like India, courts are to consider the question on merits, bearing in mind that the welfare of the child is paramount.

Maintenance: In addition to Section 125 of CrPC, different personal laws also provide for different provisions for maintenance like Section 24 Hindu Marriage Act, 1955 and Section 25 Hindu Marriage Act, 1955. In United India Insurance v. Patricia Jean Mahajan, the Apex Court deliberated on the principles that would apply to grant of monthly maintenance in NRI marriages. The Apex Court held that standard of living in India, cost of living in India and other related factors have to be considered as well as income of the husband in a foreign country and cost of living in the said foreign country. NRI Marriage Registration In Chandigarh Punjab

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Jurisdictional Issues of NRI Marriages NRI Marriage Registration In Chandigarh Punjab

Section 13 of the Civil Procedure code guides as to what judgements of foreign court are not binding in India. In Neerja Saraph Vs. Jayant Saraph, the court held that no marriage between an NRI and an Indian woman, which has taken place in India, maybe annulled by a Foreign Court. In Vikas Aggarwal Vs. Anubha a maintenance suit filed, the appellant-husband did not appear and filed an application for exemption which was rejected. In the appeal, the Supreme Court held that Order X CPC is only an enabling. It does not bar the court to seek clarification from any party. Y. Narasimha Rao & Others Vs. Y. Venkata Lakshmi is a landmark case, where both husband and wife were married in India under the Hindu Marriage Act. After the marriage, the husband obtained a decree of divorce from the State of Missouri. The husband alleged to the court that he was resident of the state of Missouri for 90 days preceding the institution of the petition and obtained a divorce decree on the ground that the marriage has been “irretrievably broken down”. The Supreme Court of India held that both on the issue of jurisdiction and the ground on which the foreign decree was passed were not in accordance with Hindu Marriage Act under which the marriage took place, thus falling in (c). The Supreme Court, therefore, held that the decree was not enforceable in India.

An Indian spouse may file a case for matrimonial/ divorce relief either at the place where the spouse habitually resides in the overseas country or in India, before a court where the NRI couple last resided preceding the filing of the case, or before a court within whose jurisdiction the wife is currently living.

Private International Law for NRI Marriages: These rules are applied to Indians (NRIs) when they bring a dispute in a foreign court about the matrimonial problems, child custody, movable and immovable property, succession, enforcement of divorce and maintenance decrees. Private International Law is a complicated and technical subject. Application of these rules needs special knowledge about Private International Law, and the answers depend on concrete situations or problems which may arise among PIO /NRIs or between an Indian national or a foreign national

OTHER LAWS (PENAL AND PROTECTIVE)

1. Dowry: “Dowry Prohibition Act, 1961, Section 304- B-IPC – Dowry deaths
2. IPC: Section 498 A, 191 & 192(Evidence),323 (Hurt), 499 & 500 (Defamation)
3. Domestic Violence Act, 2005
4. Ministry of Overseas Indian Affairs (MOIA) launched a scheme in February 2007 to provide financial assistance for obtaining legal aid/counselling through Indian Missions abroad.
5. Compensation against desertion
6. Contact in distress: Ministry of Overseas Indian Affairs, Ministry of External Affairs, Ministry of Women and Child Development, National Commission for Women, National Human Rights Commission, the Indian embassy in the foreign country.

Author: This article was written by Nikita Sharma, B.A. LLB (Hons), and student of National Law University at Himachal Pradesh.

Note: For any further information or any query you may contact us on 9855677966 or via email info@localhost