Friday, 4 February 2022

NRI marriage and Pre-Nuptial Marriage

 NRI MARRIAGES AND PRE-NUPTIAL AGREEMENTS


INTRODUCTION: 

NRI marriages, as generally understood are between an Indian woman from India and an Indian man residing in another country (thus NRI – non- resident Indian), either as Indian citizen (when he would legally be an ‘NRI’) or as citizen of that other country (when he would legally be a PIO – person of Indian origin). The issue of NRI marriages have gained paramount importance over the years as the problem of Indian woman trapped in fraudulent marriages with NRI’s and PIO’s, has assumed alarming dimensions. This has necessitated an urgent need to build safeguards to protect these women and make them aware of their legal rights and equip them with the knowledge of the laws of the foreign country and the rights they enjoy there, especially against any form of abuse, including domestic violence. 

REGISTRATION OF MARRIAGE OF NON-RESIDENT BILL, 2019:

Every NRI who marries a citizen of India or another NRI shall register his marriage within 30 days. In case an NRI falls to register the marriage within 30 days, the passport authority may impound his passport. The bill adds a provision to the code of Criminal Procedure, 1973. If summons could not be served to a person, it may be served by uploading it on a designated website. If the person summoned does not appear before the court, it may upload a warrant for arrest on the website. 

The bill does not allow a late registration beyond the 30-day period. Non-registration could result in impounding of passport which may have consequences such as deportation. The bill amends the CrPC on the process of summons. This amendment is not restricted to offences under the bill, but will cover all matters under the CrPC. An NRI is defined as an Indian citizen, who resides outside of India. Unlike, other laws, the bill does not specify the minimum number of days abroad to qualify as an NRI. 

INTERNATIONAL RECOGNITION OF DIVORCE AND SEPARATION 

Article 10 of Hague convention on recognition of divorces and legal separation: 

  1. “recognition may be refused if recognition would be manifestly contrary to the public policy of the recognizing states”.

PRE-NUPITAL AGREEMENT:

  • A contrary entered between parties prior to marriage that determines each party’s rights in the other’s property, spousal support, and other related issues in case of divorce or death. 

  • The pre-nuptial/ante-nuptial agreements are becoming a commonly accepted instrument to protect property especially in the United States of America. 

  • Traditionally, courts were move receptive to premarital agreements that provided for property distribution at death than those that prescribed the consequences of divorce. 

  • As restrictive divorce laws have given way to no-fault regimes, pre-nuptial contracting has gained wide acceptance.

  • The right of a child to support may not be adversely affected by a premarital agreement. 

  • If an agreement modifies or eliminates spousal support and the dependent assistance, the court may require the other spouse to pay spousal support notwithstanding the agreement. 

PRE-NUPTIAL AGREEMENTS IN INDIA:

Prenuptial agreements are not governed by the Indian Marriage laws: can section 10 of Indian Contract Act, 1872 be said to be applicable to pre-nuptial agreements?

Section 10: all agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. 

Section 23 of the ICA, 1872: the consideration or object of an agreement is lawful, unless it is forbidden by law, or is of such nature that, if permitted it would defeat the provisions of nay law or is fraudulent of involves or implies. Injury to the person or property of another, or the court regards it as immoral, or opposed to public policy. 

  • Traditionally, marriages in India are a sacrament and a contract. So, pre-nuptial agreements are against public policy. However, with acceptance towards the contractual nature of marriage, public policy is also subject to change.  

  • There has been an increasing trend of signing pre-nuptial agreements in India, specially, urban India. Whereas, there has been no case where it has been upheld by any court of law. 


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