NRI Legal Services

A divorce petition under the Hindu Marriage Act, 1955 is presented to the district court within whose jurisdiction one of the grounds in Section 19 is satisfied. Living abroad does not remove the Indian court's jurisdiction where one of those grounds connects the marriage to India.

• s. 19(i)Where the marriage was solemnised. A marriage performed in Mumbai can be dissolved in Mumbai even if both spouses now live abroad.
• s. 19(ii)Where the respondent resides when the petition is presented.
• s. 19(iii)Where the parties last resided together.
• s. 19(iiia)Where the wife resides on the date of presentation, if she is the petitioner.
• s. 19(iv)Where the petitioner resides, if the respondent is at that time residing outside India, or has not been heard of as alive for seven years or more.

Under Section 13B of the Hindu Marriage Act, a joint petition may be presented where the parties have lived separately for a year or more and have agreed to dissolve the marriage. A second motion follows after six months, and within eighteen months, when the court records the statements and passes the decree.

That six-month period is directory rather than mandatory. In Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746, the Supreme Court held that the Family Court may waive it where the statutory separation is already complete, the terms on maintenance, custody and property are settled, and the waiting period would only prolong the parties' agony. A waiver is applied for, and decided on the facts of the matter.

A contested petition runs on the grounds in Section 13 — cruelty, desertion, adultery, conversion, mental disorder and the others listed there. Marriages under the Special Marriage Act, 1954 are governed by the corresponding provisions of that Act, including Section 31 on jurisdiction.

Ancillary proceedings often matter more than the decree: maintenance under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (which replaced Section 125 of the Code of Criminal Procedure), custody and guardianship under the Guardians and Wards Act, 1890, and proceedings under the Protection of Women from Domestic Violence Act, 2005.

A power of attorney covers filing, affidavits on formal matters, collection of documents and the ordinary conduct of the proceeding. It does not cover everything: a petitioner's own statement in a mutual consent matter is personal, and the court records it.

Where a party cannot travel, an application is made for exemption from personal appearance, or for the statement to be recorded by video conference under the High Court's video conferencing rules, or on commission. Whether that is allowed is for the court to decide on the facts, and it is not assumed at the start of a matter.

A decree from a foreign court is not automatically binding in India. Section 13 of the Code of Civil Procedure, 1908 makes a foreign judgment conclusive only if it satisfies the conditions set out there — among them that it was pronounced by a court of competent jurisdiction and on the merits.

In Y. Narasimha Rao v. Y. Venkata Lakshmi, (1991) 3 SCC 451, the Supreme Court held that a foreign matrimonial decree binds in India only where the forum is the one the parties' matrimonial law recognises, the ground is available under the law under which the parties married, and the respondent submitted to that jurisdiction or contested on the merits. An ex parte decree, or a decree on a ground unknown to the law under which the marriage was performed, is commonly held not to bind.

The practical consequence is that a foreign decree may need to be tested, or Indian proceedings filed, before remarriage, succession or a property transfer can safely proceed on the footing that the marriage is dissolved.

An NRI or OCI cardholder may acquire residential and commercial immovable property in India. Agricultural land, plantation property and farmhouses cannot be purchased, though they may be inherited. Acquisition, transfer and repatriation are governed by the Foreign Exchange Management Act, 1999 and the rules made under it.

On a sale by an NRI, the buyer deducts tax at source under Section 195 of the Income-tax Act on the capital gain — for a long-term gain on a transfer made on or after 23 July 2024, at 12.5% without indexation, plus the applicable surcharge and cess. The buyer needs a TAN to deposit it. Where the tax actually payable is lower, an application is made for a certificate for lower or nil deduction — by the seller under Section 195(3), or by the buyer under Section 195(2) — before the transaction, not after.

Repatriation of sale proceeds from an NRO account is subject to the annual limit under FEMA, presently USD 1 million per financial year, with Forms 15CA and 15CB filed through the bank.

One structural point, often learned late: a general power of attorney, an agreement to sell and a will do not transfer title. In Suraj Lamp & Industries (P) Ltd. v. State of Haryana, (2012) 1 SCC 656, the Supreme Court held that such transactions do not convey ownership, which passes only by a registered deed of conveyance.

A power of attorney executed abroad is accepted in Maharashtra once it has been properly executed and authenticated, stamped and, where required, registered. The order matters, and so does the three-month clock.

1. 01ExecuteBefore an Indian consular officer at the embassy or consulate, or before a notary public in that country with an apostille where the country is party to the Hague Apostille Convention.
2. 02AuthenticateSection 33 of the Registration Act, 1908 states who may authenticate a power of attorney executed outside India for registration purposes.
3. 03StampUnder Section 18 of the Maharashtra Stamp Act, 1958 an instrument executed outside the State must be stamped within three months of its first receipt in India.
4. 04RegisterRegistration is insisted upon where the power authorises the sale of immovable property. The sub-registrar's requirements are checked before the document is sent from abroad, not after.

Where a person dies leaving immovable property in Mumbai, the estate is administered under the Indian Succession Act, 1925 or the personal law that applies. For wills made within the ordinary original civil jurisdiction of the Bombay High Court, probate or letters of administration are ordinarily required before the executor can act on the will.

In a co-operative housing society, a nomination is not a transfer of ownership. The nominee is entitled to be recorded as a member so that the society's affairs can continue, while the question of who inherits is decided under succession law. Society records, share certificates and mutation entries are corrected on that basis.

A complaint under Section 138 of the Negotiable Instruments Act runs on strict dates. Miss one and the complaint goes, whatever the merits of the debt behind it.

1. Day 0The cheque is returned by the bank. It must have been presented within its validity.
2. Within 30 daysThe statutory notice is issued to the drawer, from the date of the bank's memo.
3. 15 daysThe drawer has fifteen days from receipt of the notice to pay.
4. Within 1 monthThe complaint is filed, counted from the expiry of that fifteen-day period.

1. 01ConsultationBy video call or telephone, at a time that works across the time difference, with the documents shared in advance.
2. 02PapersA written list of what is needed — title documents, the marriage certificate, the bank memo, the society's records — with what each one is for.
3. 03AuthorityA power of attorney drafted for the matter, executed and attested abroad, then stamped here.
4. 04ConductFiling, appearances and correspondence handled from the office the matter belongs to — Kurla, Andheri, Vikhroli or Vashi.
5. 05ReportingWhat happened on each date, what the next date is for, and what is required before it.