SYNOPSIS : Expatriate Indians (NRI) marrying and cheating their Indian wife has been on the rise in recent decades. Usually, Indian women are enticed into marriage by giving various promises. After that, they are abandoned by the Non Residential Indians (NRI) Indians to suffer various hardships. Further victims find it challenging to pursue legal redress and support. To resolve this issue, on 11.02.2019, the government of India introduced the “Registration of Marriage of Non-Resident Indians Bill, 2019”, in the Rajya Sabha.
Indian Diaspora live across various countries contributing to the cultural, economic, and social fabric of the nations in which they reside. The NRIs marrying Indian spouses has become a concerning trend. Such marriages turn out to be fraudulent, leaving Indian spouses, particularly women, vulnerable to face challenging situations such as abandonment, financial exploitation, and legal complexities. These fraudulent marriages often are carried out under the guise of false promises and misrepresentation leaving the Indian partners in distress. The challenges escalate for women in a foreign country facing linguistic barriers, enduring physical and mental abuse, confinement, malnutrition, and ill-treatment at the hands of husbands.
In cases of ex-parte divorces initiated by an NRI husband in a foreign court without the knowledge and consent of his defenseless spouse, such divorces may be passed based on false information and fake documents. A considerable number of NRI marriages in India are unregistered marriages. The delay in legal proceedings and lookout notices to immigration authorities enable the accused to escape abroad. Unfortunately, there is a lack of effective legal recourse for women in marriages involving Non-Residential Indians (NRI).
The 65th Report (1976) commission highlighted that a decree pronounced in absence by a foreign court, to the jurisdiction of which the defendant was not able to present himself, is an absolute nullity according to the international law. In support of this, the law commission quoted observation made by the Supreme Court of India in Smt. Satya v. Teja Singh.
The 205th Law Commission also made a recommendation on compulsory registration of marriage is mandatory within a stipulated period for all the communities, viz., Hindu, Muslim, Christians, etc.
The 21lth Report (2008) of the Law Commission dealt with the great diversity in respect of laws on registration of marriage and divorce prevalent in different religious communities in India.
The Ministry suggested that there should be a portal for registration of marriage governed by the Ministry of Home Affairs, with access to the Ministry of External Affairs. In all Indian passports there is a column for the name of the spouse, a separate column may be specified therein for the Marriage Registration Number.
The eight issues under reference, though related with each other, are conveniently identified as
There is no central legislation prescribing for compulsory registration of marriage. First question, "non-resident Indian" is not found in the Seventh Schedule list. If a particular entry is not included in any of the three lists, Parliament has the legislative competence to enact on such subject matter. Article 248 of the Constitution of India read with Entry 97 (i.e., Entry 91 of the Draft Constitution) of the List I, authorizes the Parliament to legislate on any such subject matter.
The Supreme Court has observed in Union of India v. H.S. Dhillon that: "...Notwithstanding the fact that the residuary power has been vested in the Central Legislature under Article 248 and its consequence translated in Entry 97 in List I, there can be no gain saying that the idea was to assign such residuary power over matters which at the time of framing three Lists could not be thought of or contemplated. "
It is also important to point out that the Supreme Court in Seema -vs- Ashwani Kumar had directed the State Governments that the marriages of all persons who are citizens of India belonging to various religious denominations, should be made compulsorily registrable in their respective States where such marriages are solemnized.
The Supreme Court laid down certain guidelines in the case of M Karunanidhi v. (Jnion of India28, to revoke the repugnancy with respect to matters in the Concurrent List:
"1. The Supreme Court laid down certain guidelines in the case of M Karunanidhi v. (Union of India28, to revoke the repugnancy with respect to matters in the Concurrent List:"
2. Where however a law passed by the State comes into collision with a law passed by Parliament on an Entry in the Concurrent List, the State Act shall prevail to the extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with clause (2) of Article 254.
3. where a law passed by the State Legislature while being substantially within the scope of the entries in the State List entrenches upon any of the Entries in the Central List the constitutionality of the law may be upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the Act it appears that by and large the law falls within the four corners of the State List and entrenchment, if any, is purely incidental or inconsequential.
4. Where, however, a law made by the State Legislature on a subject covered by the Concurrent List is inconsistent with and repugnant to a previous law made by Parliament, then such a law can be protected by obtaining the assent of the President under Article 254(2) of the Constitution. The result of obtaining the assent of the President would be that so far as the State Act in concerned, it will prevail in the State and overrule the provisions of the Central Act in their applicability to the State only. Such a state of affairs will exist only until Parliament may at any time make a law adding to or amending, varying or repealing the law made by the State Legislature under the proviso to Article 254."
Despite the fact that PIOs and OCIs have legally recognized status, they continue to be foreign citizens and are in no way to be confused with Indian citizens abroad. Therefore, while NRIs are Indian citizens living abroad, OCIs and PIOs are foreign citizens whose Indian origin is legally recognized, and by virtue of which certain privileges are extended to them.
When either of the parties to a marriage is an Indian citizen and the marriage takes place in India, then it is governed by the Special Marriage Act, 1954; while if the same takes place in a foreign country, the same is governed in accordance with the provisions of the Foreign Marriage Act, 1969.
Demands Robust Legal Procedure
The Standing Committee on External Affairs (2019-2020) in its Third Report on the i\RI Bill, 2019 had noted that the Ministry of Women and Child Development had developed a Marriage Registration Proforma and a separate website portal for registration of marriages of non-resident Indians to be linked to all the Registrars of Marriages in India.
The NRI Bill, 2019 proposes that marriage be registered within 30 days of marriage in India or abroad. The idea of a blanket 30-days limit after marriage for its registration is not sufficient. The time limit, thus, should be reasonable.
Even the Registration of Births and Deaths (Amendment) Act, 2023, did not incorporate any provision for registration of marriage.
The 212th Report (2008) of the Law Commission had recommended for all marriages to be registered under the Special Marriage Act, 1954, except for those between Hindus, Sikhs, Buddhists and Jains. However, it may be difficult to expand the scope of the Special Marriage Act, 1954, to include the marriage of non-resident Indians because of the provision in the Act relating to the degrees of prohibited relationship.
No law can ever succeed in fulfilling its aim and objectives unless the people are widely aware of it and abide by it. To prevent fraudulent marriages wherein a party to the marriage is an NRI/OCI, the Government should create awareness by engaging with the Indian Diaspora abroad through its community events and regular interaction with the Indian communities and organizations. Such awareness programs can also be organized in conjunction with Indian associations and NGOs working in foreign countries. It is apposite to mention here that the National Commission for Women and the State Commissions for Women have been designated by the Government for conducting awareness programs for women and their families who are about to get into marital relationship with NRIs or OCIs.
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