Creation Of The Copyright Societies In Cinematograph Work, An Antithesis To The Basic Idea Of Free Communication
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OVERSEAS MARRIAGES: A
CHALLENGE
Meha Verma, Chanakya National Law University Amritanshu Udbhava, Chanakya National Law University
ABSTRACT
“It takes patience to appreciate domestic bliss; volatile spirits prefer unhappiness”- George Santayana Marriage, a social union or legal contract between people called spouses that creates kinship. NRI marriages as understood by us are between an Indian woman from India and an Indian man residing in another country either as Indian citizen or as citizen of that other country. In the eagerness of lucrative offers of NRI marriages, families often ignore the risk and complexity arising out these marriages.
The problem is manifold and includes dowry and other kinds of harassment of married women in foreign countries like nonconsummation of marriages, marriages of convenience, concealment of earlier existing marriage by the husband before marrying an Indian woman and lack of social security faced by an Indian woman on the foreign soil once the marriage is broken and ex parte divorces are obtained. The disturbing trend, however, appears to be the easy dissolution of such marriages by the foreign courts even though their solemnization took place in India as per the Indian laws. Since there is no comprehensive and special law to govern such aspects and also in view of the jurisdictional issues involved in decide the matrimonial cases, women are being deprived of justice with impurity.
With modernization and urbanization, the violence against women has got increased in many forms resulting in the form of increase in dowry deaths, domestic violence, sexual harassment at workplace, molestation and eve teasing, increase in rape cases, child abuse, bigamy, abandoning of new born girl child and also the declining sex ratio. Violence against women is also getting manifested in the form of rape, sexual abuse, and sexual harassment at workplace, dowry death, suicide, female foeticide and female infanticide, harassment by NRIs to their wives, social violence against widows and psychological and physical violence by alcoholic/addict husbands to their wives. NRI brides are forced to put up with lying, cheating, false promises, unreasonable dowry demands not to mention divorce, desertion and abduction of children.
Women are especially vulnerable in the foreign country often without any financial support. They have no one to turn at the time of crisis. The ignorance further give rise to problems like property disputes, marriage related problems like abandoning of women even before taking her to the foreign country and if taken abandoning there with no support and means of sustenance, physical harassment. One of the interesting facts which had come to surface now is that not only girls but boys are also becoming greedy to settle abroad with NRI brides. This paper reviews about issues related to the NRI marriages, property disputes arising out of these marriages and the challenges faced by government in regulating the problems. Keywords: solemnization, non-consummation, Ex parte divorce, modernization, urbanization, uniform civil code.
INTRODUCTION
‘NRI marriages’, as generally understood, are between an Indian woman from India and an Indian man residing in another country (thus NRI – non-resident Indian), either as Indian citizen (when he would legally be an ‘NRI’) or as citizen of that other country (when he would legally be a PIO – person of Indian origin)1. The problem is especially related to Indian women who get trapped in deceptive matrimony with overseas Indians. They also ignore that in case of things going wrong in an NRI marriage, the woman’s recourse to justice is greatly constrained and complex. The aggravated risk in such marriage is the woman is being ‘isolated’ far away from home in an alien land, facing language constraints, communication problems, lack of proper information about the local criminal justice, police and legal system.
The problem is manifold and it incorporates issues like dowry and various other types of harassment of married women in foreign countries, marriages of convenience, concealment of earlier existing marriage by the husband before marrying an Indian woman. Another very important issue which needs attention is lack of social security faced by an Indian woman in a foreign country when the marriage is not working. The situation is worsened by lack of support network of friends and family and monetary constraints which leaves the deserted wife completely helpless and stranded. In many of the Indian states and regions marriage of a son or a daughter abroad is taken to be a status symbol. Sometimes such marriages are taken as an easy way out to enter a foreign country for a comfortable life and lucrative future. But as it is said, all that glitters is not gold.
Sometimes these foreign dreams come at a cost of innocent lives and the future of the spouses who travel to a foreign land along with these NRIs. In some cases they do not even have to travel abroad to get harassed as their dreams get shattered while they are still in India. In the eagerness of not to let go of such lucrative marriage offer, the families totally ignore even the common cautions that are observed in traditional matchmaking. A number of problems are emerging with the NRI marriages. The problem is not just due to opportunistic NRIs, but also because of the parents who trust someone whom they hardly know.
2Most of these NRI marriages which are happening in a hush rush situation are ending up into false marriages where the well respected institution of marriage in India is being challenged and are being treated as a Honeymoon marriages and there is hardly any commitment involved on the part of the bridegroom or his family (in many cases). It seems that these NRI’s have started taking these marriages as the only means to appease their parents who are still looking
1 http://ncw.nic.in/sites/default/files/NRIDoDont.pdf
2 https://www.legalservicesindia.com/article/1723/NRI-Marriages.html
for an Indian bahu (daughter-in-law) for their son abroad. But they forget that their son is no more the same boy/man whom they sent abroad few years back. His way of thinking, habits, likes and dislikes might have changed. And if after so many changes they force him to get married to an Indian girl who is not of similar background where he has acquired the new habits then there will be problem. And thus so many cheat cases to appease the parents are appearing in the last decade. And if strong law is not made to bring such cheats and frauds to books which include the social culprits as the parents of the NRI grooms, there is no solution to such big social problem. 3 From last several years a new problem has come on the surface that is about Indian women trapped in fraudulent marriages with overseas Indians. This issue has raised a call of time as it is so pressing.
It is high time to defend these women’s and more importantly, to make them aware of their rights and responsibilities. Also it is felt that some social safety machinery should be provided which could assist them. The problems that a girl has to face are of much diverse nature. Some of such issues are of grave violation of the rights of married women which in turn affect the whole family of the girl. 4 It must be understood that such NRI Marriages are solemnized in India, but the proceeding of divorce takes place on the foreign courts where dissolution takes place very fast. This is a most alarming trend. Unfortunately, there is no specific law that deals with such aspects. Too add to, jurisdictional issues and conflict of laws issues is also very complicated. This leads to deprival of justice on the part of those women.
Though matrimonial disputes are one of the most challenging and complex areas for legal intervention within any system, what makes the situation complex particularly in the Indian context is the fact that in the absence of uniform civil laws, the personal laws of various religious communities continue to be different, thus making the matrimonial disputes, especially in inter-religious marriages, even more difficult to deal with. In this already complex scenario, the legal complications get multiplied manifold when a marriage steps beyond the borders of a country and its legal system, in a phenomenon that has come to be known as “NRI marriages”. These marriages have to then enter the domain – often called the ‘maze’ - of private international law that deals with the interplay and conflict of laws of different countries, which makes the issues therein that much more complex.
Even though this is a gender-neutral term, typically the ‘NRI marriages’, as generally understood,
3 https://districts.ecourts.gov.in/sites/default/files/SCJSOMPETA.pdf
4 Ibid
are between an Indian woman from India and an Indian man residing in another country (thus NRI – non-resident Indian), either as Indian citizen (when he would legally be an ‘NRI’) or as citizen of that other country (when he would legally be a PIO – person of Indian origin). Since Indians share high desires for migration to foreign countries, such alliances are seen as the most popular ones in Indian society, promising greener pastures for not just the woman but her entire family. In the eagerness not to let go of such a match, the families totally ignore even the common cautions that are observed in traditional matchmaking. This aggravates the risks that such women have to confront with.
The worst nightmare of the life becomes true when the woman being isolated far away from home in an alien land, is facing constraints of language, communication, lack of knowledge of local criminal justice, police, legal system, and lastly no family to turn to. 5 PROBLEMS:- As is widely seen, in case of NRI marriages allurements thrown by agents, the greed for making dollar and the desire to settle family members in foreign countries are the root causes leading to such marriages. Moreover, under the changed scenario, and people getting influenced by the globalization, the problem of NRI boys marrying girls and then running away is becoming more and more intimidating. There are many states in India which has become a hub for the forced migration of young women. It seems government has failed to keep proper checks on such marriages.
It has also failed to pass a law that enforces compulsory registration of NRI marriages. The changing socio-economic conditions in India forced many of people to go out to foreign lands for better livelihood. But this need to migrate became in course of time a craze for going abroad, and thus began the exploitation of many social ties under the influence of a money-minded culture. The travel agents know well that Indians who are running out for better fortune are crazy about settling abroad. They are exploited by such travel agents also. Many of them are fake 1ones, leading to Malta-like tragedies. There is also the additional crazy desire that one would be able to settle some family member(s) abroad after the marriage of one’s daughter.
Because of this mentality, parents from middle class strata go ahead to arrange their daughters’ marriages with NRI boy without even verifying the background and past history of the boy. 5 “12th Report: Plight of Indian Women Deserted by NRI Husbands”, Standing Committee on Empowerment of Women, August 2007.
NEED OF SEPARATE LEGISLATION:-
There is also a need to have a new inclusive legislation that deals with NRI marriages which provides for appropriate legal remedies. Such new law must be made applicable to NIR who have settled abroad.6
1 REGISTRATION
The most important is the registration of NRI marriages which is not being done as of now. This should be made compulsory in the case of overseas Indians. Such registration shall ensure that all conditions of valid marriage are complied with. This will in turn ensure compliance of conditions of a valid marriage, provide proof of marriage and act as a deterrent for bigamous practices. Section 8 of the Hindu Marriage Act, 1955 makes it optional for State Governments to provide for rules for providing for Registration of marriages. It is opined that states with significant NRI migration must make marriage registration compulsory particularly when one of the spouses is an NRI. Simultaneously, it should be made obligatory that the NRI spouse must give intimation of his registration of marriage to the concerned Embassy / High Commission in India, in which country he is presently resident.
The State of Punjab should make and notify rules under Section 8 providing for compulsory registration of marriages and incidental matters related thereto.
2 CREATION OF FAMILY COURTS
It may also be worthwhile to suggest that under section 3 of The Family Courts Act, 1984, the respective State Governments where Family Courts have not been established should be directed to provide for Family Courts. The State of Punjab which essentially needs Family Courts as a matter of dire urgency should immediately create such Courts to deal with family law problems and give priority to settlement of family law issues where parties are NRIs. Wherever one of the spouses is an NRI, these family Courts can better provide for provisions for maintenance and alimony of spouses, child custody and child support as also settlement of matrimonial property. This will ensure that the spouse/children on Indian soil are maintained
6 Need for Family Law Legislations for Non-Resident Indians”, Law Commission of India, March, 2009
and provided for in accordance with the income & standard of the NRI spouse in the foreign jurisdiction.
3 INTERNATIONAL CONVENTIONS
Again, there is also an urgent need to have some international conventions that would address the marriage related issues of NRI’s.
4 AMENDMENT OF FAMILY LAWS
Dissolution of marriage on the ground of breakdown of marriage as an additional ground for divorce should be introduced when at least one of the spouses is an NRI subject to safeguards provided by legislation. This would require amendment of the provisions of the Hindu Marriage Act, 1955 and Special Marriage Act, 1954. Such a ground would provide NRI spouses a judicial forum in India to seek a remedy on Indian soil rather than importing foreign judgments of alien courts on breakdown grounds and give a chance to the Indian spouse to defend on convenient and equitable terms in Indian courts.
The need for this amendment must be strongly mooted by the State of Punjab to the Government of India to enact appropriate legislation by suitable amendments in the existing Hindu Marriage Act, 1955 and Special Marriage Act, 1954 since inter country migration from the State of Punjab is significant and in large numbers. 7
5 AFFIDAVIT
Another precautionary measure could be compelling the potential NRI husband to submit affidavit which is prepared in the foreign country where he is residing which says about his marital status, economic status and also citizenship status. This shall prevent the potential NRI husbands to commit fraud.
6 SPECIAL CELL
A special cell could also be setup with the Indian Embassy to provide assistances during the emergencies
7 AMENDMENT OF EXISTING LEGISLATIONS
Only enacting international conventions will not serve the purpose unless the existing laws are
7 https://prsindia.org/billtrack/the-registration-of-marriage-of-non-resident-indian-bill-2019.
reviewed and are amended to that extent. The Registration of Marriage of Non-Resident Indian Bill, 2019 was introduced in Rajya Sabha on February 11, 2019. It was referred to the Standing Committee on External Affairs and the Committee was scheduled to submit its report in May 2019. 8 Strengthening of the local laws is also of the utmost importance. Appropriate provisions should be incorporated in the Hindu Marriage Act 1955 so as to provide appropriate judicial forum in India to NRI spouse. Media can play an important role by highlighting adverse effects of marrying NRI in a hurry without adequate verification as this could lead to perpetual social and economic poverty. The imaginary prestige of elevating the family status by marrying their daughters to NRI grooms needs to be checked. This can be done by media particularly vernacular newspapers, television, radio and drama/plays.
Media must play a pivotal role in creating awareness regarding such fraudulent marriages to ward off adverse situations. Indian Diplomatic Missions abroad must help the victims of such marriages. This could be done by setting up a Special Cell for attending to NRI Marriage problems in the Ministry of External Affairs/Ministry of Overseas Indian Affairs. NGOs and other civil society organizations, which have linkages in other countries, should be involved by the government to play an active role in curbing the menace of desertion by NRI men. This could be done by the NGOs which could help in checking the antecedents of bridegroom(s) and recommend them for marriages. They may also identify volunteers in the different cities abroad who could help victims in tracing the whereabouts of such grooms.
This would be possible if the Government (Ministry of External Affairs in particular) and NGOs make a common cause to help victims of desertion and to prevent its recurrence. Any such “holiday marriages” that comes to the notice of authorities should be treated as a rape case, brought under Rape law to enable booking of cases against NRIs who desert their wives, under section 371 of the Indian Penal Code. Rehabilitation and support services should be provided to deserted women such as shelter homes, legal aid, vocational/ skill training etc. Family courts and women's protection cells may be established in the affected districts. LokAdalats could also be conducted frequently in the affected regions to bring about speedy settlement of disputes. Counselling centres in police stations should provide support to the victims.
There should be a provision of legal aid cell in all district headquarters to provide information regarding matters related to dowry, divorce, maintenance, child custody etc. They should also
8 Unstarred Question No. 1231, Rajya Sabha, Ministry of Law and Justice, November 26, 2016.
provide information with regard to visa, passport and other statutory needs for stay abroad. Police and judiciary needs to be sensitized towards this serious social issue of desertion of married women by NRIs. This would go a long way in providing support and humanitarian treatment to victims and ensure speedy judgements of such cases of violence against women.
REFERENCES:
1. http://www.pib.nic.in/release/release.asp?relid=20861 Accessed on 21st January 2012.
2. http://timesofindia.indiatimes.com/india/In-Punjab-matrimonial-ads-for-UKmigration-soar/articleshow/5522013.cms Accessed on 22nd January 2012. 3. http://www.telegraph.co.uk/news/uknews/immigration/7129053/Sham-marriageadverts-behind-surge-in-visa-applications-from-India.html Accessed on 21st January 2012.
4. http://www.ncw.nic.in/PDFFiles/NRIDoDont.pd Accessed on 21st January 2012