NRI mutual consent divorce from abroad: video appearance and power of attorney in Ghaziabad

Jurisdiction

Section 19, Hindu Marriage Act: where the marriage took place, where the respondent lives, where the spouses last lived together, or where the petitioner lives if the respondent is abroad.

The attorney

A Special Power of Attorney, attested at the embassy or apostilled, stamped in India, in favour of a relative who attends the court.

The statement

Given by the spouse personally, by video conference with the Family Court's permission, or in person at one motion.

Start from anywhere

Scans on WhatsApp to +91 98710 27648 are enough to open the file.

A large share of the mutual consent divorce petitions the chamber files in Ghaziabad have one spouse outside India. The couple married here, one of them took a job abroad, the marriage ended, and both now want it closed without the spouse abroad spending months of leave on court dates. The Family Court allows this to be done, within limits. This article sets out the limits and the steps.

Can the petition be filed in Ghaziabad at all

Section 19 of the Hindu Marriage Act fixes where a petition can be filed. The Family Court, Ghaziabad has jurisdiction if the marriage was solemnised in Ghaziabad, if the respondent lives here, if the spouses last lived together here, or if the petitioner lives here and the respondent is outside India. In a joint petition the spouses choose who is shown as petitioner and respondent, and the choice is made to fit one of these heads. A couple who married in Ghaziabad, or who last lived together in Indirapuram or Vaishali before one of them left, nearly always qualify.

Where the marriage was registered abroad under a foreign law, or where neither spouse has any connection with Ghaziabad, the chamber says so at the start and names the court that does have jurisdiction. The NRI contested divorce page deals with the harder questions that arise when the spouses do not agree.

The Special Power of Attorney

The spouse abroad appoints someone in India to act for them in the petition. The document is a Special Power of Attorney, limited to this case: to sign and verify the petition and affidavits where the law allows an attorney to do so, to engage the advocate, to appear on dates when personal presence is not required, to receive notices and orders, and to apply for the certified copy of the decree. The chamber drafts it so that it is specific enough for the court to accept and no wider than the case needs.

It is signed before the Indian Embassy or Consulate in the country where the spouse lives, or before a local notary with an apostille where that country is a party to the Hague Convention. It is then couriered to India and stamped here within the period the Indian Stamp Act allows after it arrives, so that the court can act on it. The attorney, usually a parent or sibling, brings the original to Chamber 817 with their own identity proof.

What the attorney cannot do is give the spouse's statement. The court records the statement of each spouse at the first and second motion to satisfy itself under Section 23(1)(bb) that consent is free. That has to come from the spouse personally.

The statement by video conference

The Family Court can permit the statement of a spouse outside India to be recorded by video conference. An application is filed with the petition explaining where the spouse lives, why travel is a hardship, and asking for the statement to be recorded through the court's video facility or a link the court approves. The spouse appears on screen with identity proof, the judge asks the same questions that would be asked in the courtroom, and the statement is recorded. The attorney is present in court while it happens.

Practice varies between courts and judges. Some allow video at both motions. Some insist on personal presence at one of them, usually the second motion, so that the decree is passed with the spouse before the court. The chamber tells you which to expect once the petition is listed, and plans the one trip, if there is one, around that date. The time difference matters: a court that sits at eleven in the morning in Ghaziabad is sitting at half past six in the evening on the American east coast, and the application says what hours the spouse can appear.

The spouse who stays in India

The petition is joint, so the spouse in India signs it, attends both motions in person, gives their own statement, and is the one who carries the file through the court. Their presence is what makes the petition move while the other spouse is on a screen. Where both spouses are abroad, each appoints an attorney and the application for video recording covers both, but the court is slower to accept a petition with nobody before it, and the chamber advises on whether one of the two should attend.

The settlement when money crosses borders

The settlement in an NRI petition has to deal with things a domestic one does not. Alimony paid from abroad is paid through banking channels into an Indian account, and the settlement says which account, in which currency, and by what date. Jewellery and articles left in a parental home in Ghaziabad are listed and returned before the second motion, with a receipt. Property in India held jointly is dealt with by a separate transfer. Pending cases are withdrawn or closed; a case under Section 85 BNS against the spouse abroad, or against their parents here, must be quashed by the Allahabad High Court after the settlement, and the settlement provides for the complainant's cooperation in that petition.

The six-month wait between the motions can be waived under Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746, where the spouses have been separated for eighteen months and everything is settled; the hardship of a second trip from abroad is a reason the court takes into account. The waiver article sets out the conditions.

How to start from abroad

Send scans of the marriage certificate or wedding proof, both passports, the terms you have agreed, and a note of every case pending between the families, on WhatsApp to +91 98710 27648. The chamber reads them, confirms jurisdiction, drafts the power of attorney and the settlement, and tells you what the court before which the case will be listed expects by way of presence. The general page on running a Ghaziabad case from outside India covers the mechanics of documents, payments and time zones. Everything after that is the ordinary course of a mutual consent divorce in Ghaziabad, with the spouse abroad present on a screen rather than on a flight.

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