By Babita Jha April 15, 2023 Legal Issues

Abandoned NRI Wives: the need for effective laws

Table of Contents

What is the problem of NRI wives?

Each year, thousands of men leave India to work abroad. Many of these return home to find a bride. However, in some cases, NRI wives are abandoned in India. The man marries her, takes the dowry, and never returns. Without a proper divorce, women can’t remarry and live with stigma.

In others, the woman is taken overseas, abused and deserted. Wife abandonment often goes hand in hand with domestic violence and dowry harassment. The wife is abandoned in foreign environments, divorced either without their knowledge or their consent and deserted without an understanding of the local legal system. In some cases, the men are discovered to be either already married or living with another woman.

The most common problems can be enlisted as below:

1. NRI husband abandons wife;
2. NRI husband is already married;
3. NRI husband physically abuses his wife
4. NRI husband Acquiring ex-parte divorce
5. NRI husband Lies about his financial and immigration Status
6. Problems related to custody of children

The reason behind the abandoned wife of NRIs

1. The country has one of the largest Diasporas– nearly 32 million Indians or people of Indian origin. The trend of Indian women entering into marriages with Indian men residing in foreign countries rises with increasing transnational migration.

2. Men try to find their match in India as there is pressure to marry within the community.

3. Some women and their families consider it prestigious to marry a Non-Resident Indian (NRI), believing they can provide opportunities for a better life overseas.

4. There is no strong law to help such abandoned wives.

Some examples

Case 1:

Anitha (name changed) is a software engineer from Andhra Pradesh. She is married in a traditional Hindu wedding in 2012. Her husband was working in the UK. He was chosen by Anitha’s family. But he didn’t take Anitha to the UK after their marriage. On the excuses such as problems with the visa and so on.

In 2016, Anitha became pregnant. Under pressure from the family, the husband brought her to England. On arrival, she was shocked to discover her husband’s secret. He had a British partner, two children and a stepchild. Neither husband’s nor wife’s family knew about the other family. The husband threatened to leave Anitha if she told anyone.

When Anitha discovered her husband’s secret family, he imprisoned her in the house and cut off access to finances. Unaware of her rights in the UK, she was scared of being deported without her child. She had no social network to turn to. Eventually, she was able to contact her family, who helped her leave the country with her child.

Anitha was forced to get a restraining order against her husband, who made death threats. She was now back in the UK seeking a divorce and child contact arrangements, which were proceeding well. She was also suing her husband in India for demanding money from her for her dowry. This case was stuck in judicial and bureaucratic limbo. The husband has not appeared at court hearings in India.

Case 2:

Lakshmi (name changed) was abandoned by her husband. Married in India, Lakhsmi had been living with her husband. In Ireland for some years and the couple had a son. The husband suggested a trip back to India to meet some of his relatives. Lakshmi was not working, so was financially dependent on her husband. After they had been in India for a few weeks, her husband flew back to Ireland without her knowledge. She and her son were left with her in-laws with no money and no way home.

From Ireland, her husband emailed her asking for a divorce. Lakshmi has spent the year trying to get help from different government departments in India and Ireland, but the pandemic has not helped, and she is without the financial means or legal support to pursue her case.

How serious this problem is?

The scale of overseas abandonment is unclear. But between 2015 and 2019, the Indian government says it dealt with more than 6,000 cases. The National Commission for Women says it received 2,846 complaints from women who had been abandoned between 2017 and 2021. The Ministry of External Affairs informed Parliament that 4,698 complaints of Indian women being deserted by their NRI husbands were received and addressed between 2016 and 2019.

Telangana, which has high emigration rates, has a special NRI police unit dealing with 208 cases. Punjab, Andhra Pradesh, Haryana, and Kerala also have police departments to address wife abandonment.

Lacuna in present law?

1. The Indian Penal Code (IPC)

IPC lacks appropriate provisions to deal with such cases. Accordingly, complaints are often filed against NRI husbands under section 498-A of the Indian Penal Code and the Dowry Act.

However, complaints under section 498-A are often toothless because requests for the husband’s extradition are usually rejected by foreign countries. Men rarely appear for court hearings in India, and summons issued by Indian courts often don’t reach the recipient, held up in the Indian high commissions and embassies abroad. So, tackling cases of abandonment is complex and time-consuming. Abandoned wives and their lawyers have to liaise with local police departments, India’s ministry of external affairs and embassies and consulates across the world.

2. Code of Civil Procedure, 1908 (CPC)

Since there exists no separate provision for the recognition of foreign matrimonial judgments or other foreign decisions in related matters in any family law legislation, the recourse is to Section 13 of CPC.

The legal framework of the country is currently dependent on this section to provide relief to abandoned women. Reiterating the importance of this section, the Supreme Court explained that,

“…only that court will be a court of competent jurisdiction which the Act or the law under which the parties are married recognises as a court of competent jurisdiction to entertain the matrimonial dispute. Any other court should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court…”

This essentially means the parties would have to establish that the decree obtained was with the consent of both the parties, for it to be valid. It allows the Supreme Court to refuse to blindly enforce judgments passed by different countries in family matters.

An exception to this is, however, “Reciprocating Territories”, as defined in Section 44A of the CPC. India recognises the following countries as reciprocating territories – United Arab Emirates, United Kingdom, Fiji, Singapore, Malaysia, Trinidad & Tobago, New Zealand, Hong Kong, Papua & New Guinea and Bangladesh.

Thus, if a woman is married to an NRI whose habitual residence is in any of the aforementioned countries, judgments passed by a court in these territories are enforceable in India and equivalent to a judgment passed by an Indian court.

3. financial assistance

The Indian government provides financial assistance to women stranded overseas, but there is no help with litigation, getting the accused to India, extradition or impounding the passport of the accused.

4. Issue of validity of marriage

In India, NRI marriages and their validity is governed by the personal laws under which the marriage took place. In most foreign countries, on the other hand, Private International law rules are applied. India doesn’t have strong Private International law.

Currently, four conventions from The Hague Conference on Private International Law have been ratified. However, we are yet to ratify key conventions such as:

1. The Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil Law or Commercial Matters (which provides remedies against ex-parte divorces);

2. The Convention on Celebration and Recognition of Validity of Marriage, 1978 (which denies recognition to bigamous marriages entered into by NRI husbands in their country of residence); and

3. The Conventions on maintenance obligations and child support.

The Law Commission of India noted the issues that arise by virtue of a conflict between private international laws and national laws.

5. Issue of jurisdiction

The principal challenge for NRI wives, however, remains the jurisdiction – where the spouses reside in different countries, any judicial decisions passed by a foreign court, more or less becomes unenforceable.

6. Issue of passport

The Section 10(3)(h) of the Passport Act, 1967, deals with variation, impounding, and revocation of passports and travel documents as follows:

“(3) The Passport Authority may impound or cause to be impounded or revoke a passport or travel document–

(h) if it is brought to the notice of the passport authority that a warrant or summons for the appearance, or a warrant for the arrest, of the holder of the passport or travel document, has been issued by a court under any law for the time being in force or if an order prohibiting the departure from India of the holder of the passport or other travel document has been made by any such court and the passport authority is satisfied that a warrant or summons has been so issued or an order has been so made.”

Before June 2011, passports of abandoned husbands were never impounded or revoked. When the women got together and protested the non-implementation of the above provision of law, the Chandigarh Regional Passport Office began impounding passports. However, the petition further reveals that there are about 12,000 complaints regarding NRI abandoned brides in Punjab alone, but the number of passports impounded so far is disproportionately small. Petitioners claim that abandoned brides have been rebuffed by passport authorities in Delhi, Chennai, Hyderabad, Ghaziabad and Mumbai when they sought penal action against their husbands.

Revocation of passports is resorted to in the face of repeated refusal to respond to successive summons/non-bailable warrants issued by the Courts. It is the strongest possible measure for the enforcement of the rule of law. As a result of the revocation, the legal justification for the stay of the husbands in foreign countries vanishes. According to the petition, out of 40,000 cases, only eight passports have been revoked and some of the men surrendered in India in May 2018.

When spouses are taken abroad, it is usually on a tourist visa/spouse visa. The latter are typically sponsored by the spouse, who then attains full control over his wife. The husband withdraws his support for his wife unilaterally, resulting in her deportation. The usual strategy, the petition claims, is for the husband to inform the authorities in the country where he is residing, that his marriage has irretrievably broken down and on receiving this information, the authorities treat the visa as cancelled and deport the wife.

Proposed legislation

There is no central law requiring the registration of marriages of NRIs solemnised outside India. The law commission recommended some composite central legislation be enacted to deal with the problems mentioned above.

The Registration of Marriage of Non-Resident Indian Bill, 2019 was introduced to create more accountability and offer more protection against the exploitation of NRI wives. The Parliamentary Standing Committee on External Affairs of India in 2019 approved this Bill. The main provisions in this Bill are as follows:

Registration of marriages: Every NRI who marries a citizen of India must get his marriage registered in India within thirty days.

An amendment to the Passport Act, 1967 allows impounding the passport in case of failure to fulfil the above.

Issuing summons and warrant to the NRI husbands residing abroad.

Allowing the court to order attachment of the property belonging to the proclaimed offender.

However, the Bill had many issues such as the fact that the very definition of ‘NRI’ was ambiguous, making it unclear to who the Bill would apply. Consequently, it is still under review.

PIL in the Supreme Court

On November 13, 2018, the Supreme Court issued a notice to the Centre to file a reply within six weeks on the feasibility of having a policy on the issue of bringing to book Non-Resident Indian husbands who abandon their wives. A similar petition filed in the year 2019 by NGO Pravasi Legal Cell along with two victims fighting a legal battle against their truant grooms settled abroad.

The apex court issued the notice while hearing a joint petition filed by eight such women seeking guidelines to be followed by the police, the immigration services and embassies to ensure speedy justice.

The lead petitioner in this case got married to a permanent resident of Australia. Her husband abandoned her when she was two months pregnant. Her visas were unilaterally cancelled. Due to trauma, she suffered a miscarriage. Her husband evaded all court summons and police notices. His passport was kept on hold for renewal by Consulate General, India, Sydney and he was advised to use emergency services to travel to India to sort out the matter.

But her husband has allegedly breached that advice to avoid coming to India. Her application for issuing a non-bailable warrant against him has not yet been met with success.

Meanwhile, the first petitioner met seven other abandoned women on Twitter while tweeting to the Union minister for external affairs, Sushma Swaraj or each other to find out if any action had been taken in such cases. Three of them became volunteers at the Regional Passport Office, Chandigarh. That is when they realised that the problem had reached epidemic levels. Finding that the present laws are inadequate to deal with the issue, they decided to file a Public Interest Litigation petition jointly in the Supreme Court.

The problems of abandoned wives enlisted in a PIL in the Supreme Court of India are as under:

1. Abandoned brides repeatedly write to the embassies requesting them to find out where their husbands are, and responses are rarely received.

2. When the women contact the police of the foreign country directly, they are informed that privacy laws do not permit the police to give away the location of their husbands.

3. In the absence of statutory rules, the authorities adopt arbitrary approaches. In Chennai, the authorities demand a copy of the charge sheet and refuse to impound passports even if there is a court summons or a non-bailable warrant.

4. Many government officials’ attitude is not supportive, or even derogatory sometimes. In March 2018, chairperson of the National Commission for Women (NCW), which is a statutory body, when some of the abandoned women met her, her first caustic remark was “Who asked you to marry an NRI?” Some officials on asking by women as to how they could possibly recover their money and assets (given as dowry) from their abandoned husbands, replied that the women should consider their husbands as dead and move on. “Callousness and insensitivity on the issue prevail in the Union administration”, says the petition.

5. No legal aid is provided to the NRI abandoned wives by National Legal Services Authority (NALSA) or the State authorities.

6. Abandoned women do not want to divorce for the simple reason that divorce is what the husband actually wants in order to absolve himself of any responsibility. Therefore, abandoned women consider divorce as literally setting their husbands free. Even if the husband files for an ex parte divorce in a foreign country, the woman sees merit in challenging it in India.

7. The petition prayed for suitable directions from the Apex Court to the Indian embassies and High Commissions to play a proactive and compassionate role in coming to the aid of abandoned NRI women by locating the whereabouts of the husbands, engaging legal counsel abroad to represent the women and to take other steps to secure the arrest and deportation/extradition of the husbands to India.

A similar petition, filed by Delhi Sikh Gurudwara Management Committee, which also makes the National Human Rights Commission a respondent, is pending in the Delhi high court.

Conclusion

The problems of abandoned wives need immediate legal and administrative safeguards and protection. Expert suggests the following measures for this:

1. Central and uniform law on marriage for NRI and Indian women.

2. Compulsory registration of marriage

3. Effective participation in private international laws. Standing Committee on Empowerment of Women in its report to the Lok Sabha suggested that recourse to private international law may be a desirable solution for India.

4. Any such marriage that occurs between an NRI and an Indian woman should not be annulled by a foreign court if the marriage took place in India.

5. Effective solution of jurisdictional conflict by legislation.

6. The Law Commission of India suggested parallel additions to be made in other personal laws as well, specific to maintenance and alimony of spouses, child custody and child support and also the settlement of matrimonial property when one party is an NRI in the marriage.

7. The government has been trying to support women of Indian origin who have been deserted by their overseas Indian spouses fraudulently, through various schemes, but these measures have not been adequate.

8. Not only the matrimonial laws regarding marriages with non-resident Indians be changed but also awareness in the family gets created. In the very first stage itself, the families should be vigilant and ensure they check all the information of the potential groom.

By Babita Jha April 15, 2023 Legal Issues