As a law firm specialized in family and matrimonial laws, we would like to shed light on Section 13B of the Hindu Marriage Act, 1955 as amended in India which allows for Divorce by Mutual Consent among Non Resident Indians (NRI).
Section 13B was introduced through an amendment in the year 1976, and it outlines provisions for divorce granted as per mutual agreement between spouses. This means that both parties can agree to end their marriage without engaging in any lengthy or contested proceedings.
This provision is relevant to NRIs who are living abroad and wish to obtain a divorce decree. Earlier, non-resident Indians were required to come back to India and reside here for six months ahead of filing a petition under Section 13B(2) of the HMA Act. However, with the latest amendment dated June,08th2021 this provision has been deleted which means that now any NRI individual or couple residing outside India can file for Divorce under Section 13 B provided they satisfy jurisdictional requirements i.e one party lived within territorial limits at least last one year preceding date of presentation.
It is important to note that all aspects related to the welfare of children resulting from such a divorce need due consideration before granting such relief under section-13B (Divorce by Mutual consent). Such cases will be subject matter before Family Court/Civil Court having competent jurisdiction .
The relevance of this provision was highlighted when Kalyani v Narayanan [1989 SCC Supl.(1)692] came up before Supreme court where it was held ” Where husband is an Indian domiciled outside india does not extinguish those rights pertaining him but he may lose his rights if during proceeding no defense plea taken ” This decision removed ambiguity around provisions applicable on NRI couples seeking mutual dissolution.
Moreover, In Samar Ghosh v Jaya Ghosh [(2007)4SCC511], The Hon’ble Supreme court elaborated on grounds of divorce by mutual consent and held that there must be a clear intention from both sides to end the marriage, it should not be obtained through coercion or fraud, and adequate provision for maintenance should be made for the other party.
In another landmark decision in Sureshta Devi v. Om Prakash [(1991) 2 SCC 25], The Hon’ble Supreme Court upheld the validity of foreign decrees granted in divorce cases as long as they do not conflict with Indian laws.
Additionally, In Y Narasimha Rao vs.Y Venkata Lakshmi (1991), it was held by the Apex Court that if solemnisation of marriage invalidated due to lack of valid consent same can be annulled under Section -12(1)(c)of Hindu Marriage Act irrespective whether NRI husband resided abroad or within India .
Hence, we believe that NRIs seeking mutual dissolution have an easier legal recourse available now without undergoing undue hardship which earlier meant loss of time , money and resources on account of prolonged litigation’s . This also encourages peaceable settlement rather than involving acrimonious disputes over marital issues thereby minimizing emotional stress and trauma amongst parties involved.
In conclusion, we would recommend consulting a competent family law expert before taking any action related to matrimonial grievances so as to avoid unwanted hassle .