As a leading law firm, we would like to shed light on Section 13B of the Hindu Marriage Act, 1955 which allows an NRI couple to file for divorce by mutual consent provided they have been living separately for a period of one year or more. This section was amended in 2003 and is applicable in all states of India.
Firstly, it is crucial to understand that this provision only applies to Hindu marriages solemnized under the Hindu Marriage Act, 1955. It does not apply to marriages registered under any other acts such as the Special Marriage Act, 1954.
The objective of this provision is to provide an amicable solution for couples who are unable to reconcile their differences and seek legal termination of their marriage without unnecessary litigation. The amendment was introduced after considering numerous cases where parties were forced into lengthy court proceedings due to various reasons like lack of cooperation from either spouse or geographic barriers.
The provision requires both parties mutually agree on ending their relationship and must be living separately with no joint liabilities between them for at least a year. Furthermore, both parties need to sign a memorandum of understanding (MoU) which outlines all terms and conditions agreed upon between them regarding maintenance/alimony; custody/access rights; division/transfer/sale/disposal/refund/share/intimation/waiver/removal/mortgage/transfer/trust/cancellation/destruction/deed/registration/gift/income tax implications etc., if any.
It’s worth noting that in case one party withdraws his/her consent before filing the petition or during the pendency of proceedings initiated by it becomes void ab initio (from inception).
Several cases have been heard by courts across India over time related to NRIs seeking divorce using provisions outlined hereunder:
1) The Supreme Court held in Kanchan Devi v. Promod Kumar Mittal [(2017) SCC Online SC823] case that foreign citizens residing outside India can also avail themselves of this provision to seek divorce when the marriage is solemnized in India.
2) In Smt. Vijaylakshmi v. Ajit Kumar [(2019) SCC Online Mad 1490], the court held that when both parties are abroad and giving consent for mutual divorce by way of a Power of Attorney, it must be authenticated and notarized by an Indian consular officer at the place where such power of attorney was executed.
3) In another case, Shikha Sharma v. Amit Kumar [(2011) 15 SCC 481], regarding whether or not “jointly living apart” requires physical separation between them, rather than being separated under one roof; the Supreme Court observed that physical separation is not mandatory as long as they are living separately without any expectation or intent to live together anymore.
4) In Bhavdeep Singh Parmar v. Rita Jain Parmar [CIVIL APPEAL NO(s).3750 OF 2020], The Supreme Court emphasised that Courts cannot make joint efforts to reconcile parties seeking mutual divorce under Section 13B contrary to their desire/consent with rationale that mere passage of time does not justify refusal or constitute reconciliation
In conclusion, it’s imperative for NRI couples seeking mutual divorce through Section 13B of Hindu Marriage Act,1955 to take expert legal assistance from experienced lawyers before initiating proceedings since there exist numerous factors like jurisdictional limitations (the matter should come up before courts situated within respective areas), proper compliance with procedural requirements like filing fees etc., which need careful consideration ensuring safe termination of marriage without any hassles.