When Non-Resident Indians (NRIs) face divorce, they are often faced with two layers of complexity—emotional and procedural. They often pose one of the most pressing questions: Can I file my divorce in Delhi? The answer involves a key legal principle—jurisdiction.
At G.S. Bagga & Associates, we are often approached by NRI clients who reside all over the world—Canada, the UK, Australia, the UAE, and the US—with questions regarding whether the Delhi Family Courts can lawfully hear their divorce petitions. We are not in the habit of dispensing generic guidance. We will explore every aspect of each matter to ascertain jurisdiction under Indian law, in particular where either or both spouses are outside of India.
Understanding Jurisdiction: The Legal Foundation of Divorce
Jurisdiction in divorce determines where a case can be filed, and from where a court will hear the case. Under Indian family law, including the Hindu Marriage Act, Special Marriage Act and the Indian Divorce Act, a court may hear a matter to which it takes cognizance if at least one of a number of available legal ‘touchpoints’ exists. In Delhi the court will take jurisdiction if:
- The marriage was celebrated in Delhi
- The couple had last lived as husband and wife in Delhi
- The respondent (who is usually the wife in matters of mutual consent) is presently residing in Delhi
This has also meant that courts in Delhi have found jurisdiction properly established for NRI divorce petitions where both of the spouses now live elsewhere in the World provided that their last residence in India was in Delhi or that their marriage was registered there. This is not just a theoretical issue to explore; we have had conduct a number of matters with just one strong nexus to Delhi that was the basis for the court’s jurisdiction.
In one example, there was a couple who were married in Delhi, but had moved to New Zealand. When the relationship disintegrated, they contacted us from abroad. The husband was interested in filing mutual consent divorce in India where they will have confidence of enforceability under Indian personal laws. Their marriage was registered in Delhi, and the last place either of them lived together was in Delhi, so there was jurisdiction in Delhi courts. We were able to complete the entire process using a Power of Attorney so that neither party had to return to India.
Mutual Consent Divorce for NRIs: A Practical, Efficient Option
The number of NRIs with a mutual consent divorce has been rapidly increasing due to the efficiency, certainty, and minimal emotional drudgery of the process. Delhi courts are quite capable of handling mutual consent divorce applications, even where one or both parties are from outside of India.
The process itself involves filing a joint petition. In many cases we deal with, our clients will be located in different continents, and often aren’t in a position to travel. Under Indian law, a Special Power of Attorney (POA) can be executed so that a close family member/ legal representative can act on behalf of the spouse who is not present. The POA must be validly executed, which usually requires it to be notarized and apostilled (for many countries) in order to give legal effect in India.
The next step after filing the petition is to have the first motion hearing scheduled by the Family Court. Certainly, Courts in Delhi are open to both parties attending and participating in the hearings via video conferencing. The pandemic opened the courts up to the use of video conferencing and it seems reasonable for them to allow and approve NRIs to attend virtually, where the case load is increasing and resources needed to respond to that workload is being diminished. After the statements have been recorded, there will be a six-month cooling off period, where the parties are separated, and invited to reconcile their differences. Nevertheless, the courts also acknowledge the need for closure, particularly for parties whose marriage has manifested clear signs of failure.
At G.S. Bagga & Associates we have successfully applied for waivers of the cooling-off period in numerous cases. For example, one client was situated in London and had already completed property division, child custody, and alimony through negotiation privately. We provided the trial court the evidence of the complete settlement and argued that reconciliation was impossible. The judge agreed and waived the waiting period which led to a final divorce order in under three months.
Contested Divorce: When Mutual Consent Isn’t an Option
While things can often go smoothly with mutual divorces, not all marriages end amicably. Once a spouse decides to contest a divorce, the question of jurisdiction becomes equally important. A spouse living in India, especially in Delhi, can apply for a divorce even if the other spouse is living in another country.
In one recently completed case, a woman came back to Delhi from the U.S., after being subjected to years of cruelty. Her husband, who was still in another country, tried to argue that the U.S. courts were responsible for the matter. We were easily able to prove done jurisdiction as the woman was living in Delhi and her location was the registered marriage, so any matter concerning her marriage should be allocated to a Malaysian tribunal for legal proceedings about a divorce. The court accepted the arguments, formally issued summons through the diplomatic channel, and permit aspects of the matters to be continue through Delhi.
Contested divorces require excruciating legal preparedness, often not only involving evidentiary documents and cross-examination of the parties, but also identifying the strategic aspects of the hearing. In addition, contested divorces are longer and emotionally exhausting, and even if clients are thousands of miles away, our firm achieves any matters involve through a POA or in any of form of virtual legal consultations with lawyers.
When a Foreign Divorce Needs Recognition in India
An additional complex dimension involves the case in which an NRI couple was divorced in a foreign jurisdiction but needs recognition of that decree in India for the purposes of property distribution, remarriage, or child custody orders.
Under Section 13 of the Code of Civil Procedure, a foreign judgment is unenforceable in India unless it has been granted by a competent court, on grounds recognized under Indian law, and complies with the principles of natural justice. At G.S. Bagga & Associates, we have helped several clients obtain declarations from Indian courts validating their foreign divorces—especially in cases where the divorces were by mutual consent, and the reasoning of Indian personal law supported the foreign court’s conclusion.
In one case, a couple had been divorced in Canada on the basis of irreconcilable differences. While irreconcilable differences do not exist under the statutes of India, we were able to convince the Delhi High Court that the divorce was fair, bilateral, and free from fraud, and obtain recognition of the order from Canada.
Our Legal Strategy: What Sets Us Apart
Jurisdictional concerns are certainly not the merely technical, legal issues; they are foundational to every NRI divorce file. At G.S. Bagga & Associates, we take the time to do a map your marriage history, the movements of both parties/spouses, where they have lived, and the law under which they have contracted their marriage. Legal strategy is foremost practical, not just an interpretation.
We also assist with drafting POAs and getting them registered, where needed. Affidavit prep for waiver of the cooling-off period, court permission where a party is seeking to appear virtually are also other processes we assist with. Where a party must get documents attested while overseas that involve coordination with Indian consulates to obtain documents while abroad, we also help them with those processes too. In a contested matter, we assist parties with gathering evidence, arranging for digitally gathered testimony, and compliance with procedures to follow both Indian and international laws.
Every case is unique, and every NRI divorce invariably is cross border and must be navigated both ahead, wisely and sensitively.
Final Thoughts: Delhi Can Be Your Legal Base—If Done Right
If your marriage was solemnized in Delhi, you functioned as a couple in the Delhi area, or if your spouse presently lives in Delhi—the courts can very likely be a proper venue for your NRI divorce. But plainly establishing that jurisdiction, in a clear, and correct manner, is important.
At G.S. Bagga & Associates, we do not just give legal advice, but full service. Our team will help you traverse every aspect of your divorce; from determining if Delhi has jurisdiction, executing POAs, filing petitions, arguing waiver issues, and representing you in court while you are travelling abroad. Our team is eager to streamline your divorce, with the goal of minimizing time frames, legally sound approaches, and manageable emotional tolls.
If you are an NRI and are wondering if you can file for your divorce in Delhi, let us provide our expertise to help you make that determination.
Contact us today to schedule a consultation—let us review your case and you will see how Delhi courts could be the proper venue to secure your legal closure.
