Marriages performed in India remain subject to Indian family law and the jurisdiction of Indian courts even when the couple lives abroad. Divorce, custody and maintenance can be pursued in India by or against an NRI, largely through a power of attorney and video appearance. Orders of foreign courts are recognised in India only if they meet the tests of section 13 of the Code of Civil Procedure, and in matters concerning children the welfare of the child overrides everything else.
Personal laws and where cases are filed
India applies different statutes according to religion and form of marriage: the Hindu Marriage Act, 1955; the Special Marriage Act, 1954 for civil and inter-faith marriages; the Indian Christian Marriage Act and Divorce Act; the Parsi Marriage and Divorce Act; and Muslim personal law. The Foreign Marriage Act, 1969 covers marriages solemnised abroad before Indian consular officers. Family courts in each district hear matrimonial and custody cases, and their jurisdiction generally turns on where the marriage took place, where the couple last lived together or where the wife now resides.
Getting a marriage properly registered, with an apostilled certificate, is the foundation for visas and for any later proceedings.
When a marriage breaks down
The first decision is forum. If both spouses agree, a mutual consent divorce in India is quick and widely recognised abroad. If they do not, each will be tempted to file where they live, and the result can be two cases and two inconsistent orders. A foreign decree obtained without the other spouse's real participation, or on a ground unknown to the law under which the couple married, risks being treated as invalid in India; the guide on foreign divorce decrees explains the test. Financial claims follow: maintenance and alimony are decided on sworn disclosure of both parties' worldwide income and assets.
Children
India is not a party to the Hague Convention on child abduction. A child brought to India is not returned automatically; the High Court or family court examines the child's welfare, giving weight to a foreign custody order without being bound by it. Speed is decisive in these cases. See child custody and guardianship. For families growing through adoption, the inter-country process through the central authority is set out under adoption from India.
Protection and criminal complaints
The Domestic Violence Act gives a woman civil remedies of protection, residence and maintenance, available even when the abuse occurred abroad if she now lives in India. Cruelty by a husband or his relatives is separately a criminal offence. These provisions protect many women, and are also sometimes used to pressure families abroad; we act on both sides. See domestic violence and 498A cases and, for travel restrictions that can follow, look out circulars.
At the other end of life, elderly parents in India have a fast remedy against neglect and property-grabbing under the Senior Citizens Act: see protecting parents.
OCI status and the family
OCI registration ties into family law at several points: a foreign spouse qualifies after two years of registered marriage and loses eligibility on divorce; a minor's card needs both parents' consent; and adopted children need their status regularised. Refusals and cancellation notices can be contested. See OCI card legal issues.
Which service do you need?
| Your situation | Start here |
|---|---|
| We both want a divorce | NRI Divorce |
| My spouse has taken our child to India | Child Custody & Guardianship |
| I need or am facing a maintenance claim | Maintenance & Alimony |
| I am facing or need to file a cruelty complaint | Domestic Violence Cases |
| We want to adopt from India | Adoption from India |
| We need a marriage certificate for a visa | Marriage Registration |
| My OCI application was refused | OCI Card Legal Issues |
| My parents in India are being mistreated | Parents & Senior Citizen Rights |
Frequently asked questions
Can Indian courts decide a family dispute if both spouses live abroad?
Yes, if the marriage was solemnised in India or the couple last resided together there, among other grounds. Whether India is the most appropriate forum is a separate question the courts consider.
Will an Indian divorce be recognised in my country of residence?
In most countries a divorce granted by a competent court where at least one spouse had a real connection is recognised. A mutual consent decree from India is rarely questioned. Confirm with a local lawyer.
Can family court proceedings in India be attended by video?
Increasingly, yes. Courts allow appearance and evidence by video conference in many matrimonial matters, and permit a power of attorney holder to act in mutual consent cases.
Are prenuptial agreements valid in India?
They are not expressly recognised by statute for most communities and courts treat them cautiously, though they may be considered as evidence of intention, particularly in civil marriages. They do not oust the court's power to award maintenance.
Which country should I file in?
It depends on where the marriage took place, where each spouse and the children live, and where orders must be enforced. Take advice in both countries before filing anywhere.
Are family proceedings confidential?
Family courts may hold proceedings in private, and judgments are often anonymised. Our consultations are confidential in any case.