Mutual Consent Divorce Procedure for Nri's

Last Updated on June 10, 2024 by Satish Mishra

Hindu Marriage Act, 1955 provides provision for Mutual Consent Divorce in India under section 13-B to its citizens married under Hindu law staying in India or be it abroad in countries like Canada, America (USA or States we call), Australia, New Zealand, European Countries, UAE, and where so ever Indians are currently residing across the globe. The act was introduced as an amendment by our parliament in the year 1976.

The fondness of marrying a NRI can be seen in many parts of India including Punjab, Chandigarh and other areas of Haryana. But even marrying NRI grooms and brides doesn’t come with lifelong guarantee. It too may crash one day and hit rock-bottom. We all choose best of stuff for ourselves but destiny is also something. Let’s not get philosophical and come to complete guide of Mutual Consent Divorce for NRI couples staying abroad.

Other than the thought of having a divorce, the confusion over the place of divorce occupies major part of stress of the NRI’s couple. Where should we file it? That’s exactly the first question which NRI couples usually put to me and then I try to answer all their questions with most appropriate responses but for the benefit of entire NRI community staying abroad, I have to write one post, at least on NRI’s Mutual Consent Divorce in India.

Contested Divorces are long drawn legal battles based on fault-finding system which in my view is a complete waste of time and futile exercise. I’ll talk about it in my next post. For now, let it be MUTUAL, better we say no fault divorce.

Here we go!

Also read this- WHY MUTUAL DIVORCE IS BEST WAY OF SEPARATION LEGALLY

Case A -If filing in India, it’s pretty simple. Follow these easy steps:

1 Place of Filing Divorce– Either of the place of which husband or wife has Aadhaar card (master document of all proofs), now a must have for Divorce cases in India. It can also your last resided place together as per statute if you can produce relevant documents like Rent contract, telephone bills, or payment receipts that clearly shows you have lived in the city where you are applying for divorce.

2 Terms and Conditions- Who is taking what, and till when plus the final call on all trivial issues clearly sorted about Money, Kids, EMI, House, Pension, Jewellery, Property etc. Once the place is decided, everything else is cakewalk. Remember in Mutual Consent Divorce there is no such question as why? Both of you need this and that’s why it is happening. Strictly no fault finding else it is never happening. What? Mutual Divorce.

3 Hiring the right Advocate– Usually Mutual Divorce matters are not that complicated but being a NRI, you can’t afford to take chances due to paucity of time. A good competitive and professional lawyer of Chandigarh, Panchkula, Mohali and Zirakpur will easily be able to schedule the entire mutual consent divorce process while your stay in India is completed. The chosen Advocate and Lawyer will file the case as per convenience of NRI couple and make the first motion of Mutual Consent Divorce finally happen.

4 Fee- Fee is not that whopping. Don’t worry you don’t have to cough up that much for just 2 court visits and 6 month cooling off period that now can be condoned with the discretion of District Judge. It is quite reasonable and LegalSeva has one of the best competitive quotes in the market. Don’t believe in us? Just roam for a while online and come to us. You’ll be glad to choose LegalSeva in the end for sure.

5 Time – 6 months is the statutory period which even can now be condoned if your marriage is old and separation is more than 18 months (1 year mandatory plus 6 months more). You just have to handover the documents to advocate in the first visit, review the rough draft of Mutual Divorce Petition on email and request alterations if desired. The Mutual Divorce specialist lawyer of tricity will make the necessary amendments and call the NRI couple very next day for filing. LegalSeva does the first motion on the very first day of filing only.

6 Procedure- I am very scared of courts. What will I say to judge? What will he ask? What should we say? This is same with everyone be it NRI. I was also the same kind until I became the Lawyer (Satish). LegalSeva will calm your inner storm before the judgment day and take away all your stress related to the process or procedure of Mutual Consent Divorce in Tricity. Judge will ask just one simple thing. Why is this divorce happening, be it Mutual? Rest is your facts stated in petition about our marriage. Hope you still remember it. Otherwise your champion divorce lawyer (LegalSeva) is there to assist you.

7 Finally it happens– And on the First Motion itself, Statements of NRI couple are recorded which can be joint or individually. Just a simple standard format already with the steno. Just you have to confirm the details like Marriage date, Separation date, age , residence, profession, settlement terms, kids custody etc.

8 After 6 months– The same process stated at number 7 is repeated and second motion of mutual divorce is done. The entire process is repeated exactly the same way but with a rider that nothing changed in these 6 months and still the NRI couple wishes to seek Mutual Divorce. Tadaaa! You are done baby. Get the final certified copies of court’s order and decree sheet and hang it on your wall of fame. You have accomplished the task of Mutual Consent Divorce Procedure in India for NRI’s.

9 Can’t wait for 6 months? Then seek waiver of 6 month cooling off period by LegalSeva by Dialing 99888-17966. We’ll try our best to get this done for you but remember it is a discretionary remedy not a right. So it may be or may not be waived off. 50/50. But irrespective of the results of the waiver application, second motion will happen for sure, on the same date which was given on the first motion. If the waiver application is allowed, you’ll be called on the date fixed by your advocate or LegalSeva (if you choose us) and that would be your second motion. End of the matter. Mutual Divorce thing finally finished and now you can go back to abroad with single status again. Happy!

Respect difference of opinion and learn agree to disagree and part ways mutually in a marriage when the relationship is not working.

Also read- MUTUAL DIVORCE; A LEGAL VIEW

Case B- if filing for Mutual Consent Divorce on Foreign land or soil, then the laws of that particular country will prevail but both of you have to submit your consent over the foreign procedures of Divorce in the first place. If there no harmony or unity in this decision, then it can be challenged in Indian Courts again, when anyone of the spouse comes back. But then It would be contested, I believe. For the records, Indian Laws are not applicable in foreign Country and therefore not recognized.

If you already got the divorce decree from foreign court then it is as good as Indian one from the local court of District Judge but remember it should not be inconclusive of the Section 13 of Civil Procedure Code, 1908. What does that mean?

Also read- MUTUAL DIVORCE TOP 10 MYTHS BUSTED.

Explanation

Decree passed by incompetent Authority.
Wrong view of the Indian laws taken in foreign court proceedings.
Order in violation of any laws of India
Collusion or Fraud detected and against natural justice principles.
Lastly, the merits of the case completely ignored.

This covers the entire process of filing divorce as NRI. As an exception, courts may grant camera proceedings for the spouse who is living abroad and can’t return for either of the motions, be it first or second. Only judgments passed by courts competent in jurisdiction will be recognized in India. If the case in foreign court is not decided on merits, you still have a chance to challenge it in the Indian Courts.

There can be a situation where one of the spouses is an Indian and other spouse is a citizen of other country, then you either opt for Divorce as per Indian laws or the laws applicable to the country where you are staying. Mutual Consent Divorce or 13-B Divorce petition as we call it in courts can also be filed through GPA, SPA or power of attorney in favour of any blood relation to depose consent before the court but parties must be present atleast once as per satisfaction of the Judge. The petition can be sent and attested from abroad and then duly embossed by embassy as a genuine one to be used in Indian Courts. Remember, this is a discretionary right with courts not a mandatory view. So the application may or may not be allowed by courts.

What next? Want to challenge the decree awarded by foreign court? It’s easy. Just Dial 99888-17966 and say ‘LegalSeva’. The provisions of Indian Divorce laws must be kept in foreign divorce proceedings to give it the same effect of Divorce back here in India. But if all the provisions of India laws are complied with then there is no reason for Indian Courts to deny recognition of NRI’s Divorce in India. Even in abroad, the NRI couples will be governed under their personal marriage law which in this case is Hindu Marriage Act, 1955.