1

WORKSHOP- IV

N.R.I., MARRIAGES - ISSUES AND CHALLENGES

WITH SPECIAL REFERENCE TO CUSTODY OF
CHILDREN

Article Submitted by:-

Sri V.V. Srinivasa Murthy,
I Additional District Judge, Kadapa
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N.R.I., MARRIAGES - ISSUES AND CHALLENGES

WITH SPECIAL REFERENCE TO CUSTODY OF CHILDREN

CONTENTS

1. Introduction

2. N.R.I. Marriages & its effects.

3. International conventions and bilateral treaties

4. Indian Scenario

5. Jurisdiction of Foreign Court

6. Child custody & abduction

7. Parental Child abduction & case law

8. Adoption of Children

9. Conclusion
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INTRODUCTION:-

Wise men have said ‘Physical injury is finite, emotional is infinite’.

Their acumen was never challenged and perhaps will be noted in high
perspicacity for times ahead. The relevance of this adage is seen in
context when we bring into the fore the malady, highly social in nature,
forming the core of this thought in the form of NRI Marriages or Non-
Resident Indian Marriages.
The evolution of a global village had led to the fragmentation of
the institution of marriage, to an extent, in India with high incidences of
desertion of wives by NRI husbands, child abduction cases, matrimonial
property disputes etc. The puritan social mind-sets of Indian families
that prefer NRI grooms over their domestic counterparts has only
aggravated the rising problem. Many Indian families prefer NRI grooms,
and see them as an opportunity to advance their socio-economic status.
Three crores of Indians are residing outside India. These marriages are
turning out to be a traumatic experience. It is pertinent to note that NRI
marriages are not only governed by Indian Laws but laws of the other
country of either party comes into play.

SUGGESTED THEMES
Some of the suggested themes pertaining to N.R.I., marriages are
as follows:
Theme I : Issues Relating to Laws of Marriage in India, vis-à-vis abroad
Theme II : Issues Relating to Laws of Divorce in India, vis-à-vis abroad
Theme III : Issues Relating to Settlement of Matrimonial Property
Theme IV : Issues Relating to Child Custody, Adoption and Maintenance
Theme V : Issues Relating to Child Abuse and Inter-parental Child
Abduction
Theme VI : Prenuptial Agreements – A way forward
2. N.R.I., MARRIAGES AND ITS EFFECTS:-
(a) ‘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).
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(b) Fragile marriages are exposing an ugly social malaise that

primarily afflicts northern states of Punjab and Delhi, and Andhra
Pradesh in the south. Alarmed by the conspicuous numbers of NRI
marriage frauds, the Parliament constituted a Standing Committee to
examine the looming crisis and release a report. In its draft report, the
committee has recommended that registration of NRI marriages be
made mandatory. It has also suggested the building of a NRI
matrimonial law to categorically cover aspects such as abandonment,
divorce and maintenance and child custody. Migration, temporary or
permanent has also been giving rise to various kinds of matrimonial
disputes destroying the family and its peace. In India, the marriage is
seen more as an alliance between two families rather than a mere union
of two individuals. The Family Law Act, 1969 in U.S.A., adopted purely
‘No Fault’ Divorce Law.
(c) In most cases an NRI marriage is solemnized in India and the
bride is then taken to her husband‟s abode which is in the foreign land.
Assuming at this juncture, an ex-parte divorce decree is obtained by the
NRI husband in a foreign court. Here, the Indian spouse is left helpless,
deserted on Indian shores confronted with a matrimonial litigation of a
foreign court, which she neither has the means or ability to invoke
which often results in despair, frustration and disgust.
(d) In “Sheenam Raheja v. Amit Wadhwa” 2012 (131) DRJ 568, the
Delhi High Court relying on the judgment given by the Supreme Court
in “Y. Narasimha Rao (1991) 3 SCC 451” held that in instances of
marriage between the parties having been solemnized and registered
under the provisions of the Hindu Marriage Act, 1955 its dissolution
could be effected only under the said Act.
(e) Indian Courts in principle do not recognize foreign matrimonial
judgments dissolving marriage by such breakdown. In another case, the
Honourable A.P High Court refused to influence its decision with the
divorce decree from the US court produced by the husband. (Venkat
Perumal v. State of A.P., AP II (1998) DMC 523). “VeenaKalia v Jatinder
N. Kalia” AIR 1996 Del 54 was another case where the NRI husband
obtained exparte divorce decree in Canada on ground not available to
him in India.
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(f) The remedy is compulsory registration of N.R.I., marriages. In

State of Andhra Pradesh, A.P., Compulsory Marriages Registration Act,
2002 came into force from 25.10.2002.
(g) Section 8(1) of the Hindu Marriage Act, 1955 makes it optional for
State Governments to provide for rules for providing for registration of
marriages. There is no provision for registration of divorces under Hindu
marriage Act, 1955, Special Marriage Act, 1954, and Indian Christian
Marriage Act, 1872. Presently, the Central Government has proposed
for amendment to Births and Deaths Act, 1969 for making a provision
for registration of marriage.
(h) The myriad issues of NRI marriages were analyzed by the
honorable Supreme Court of India in “NeerajaSaraph (Smt) v. Jayant V.
Saraph and Anr”. (1994)6 SCC 461 and it was held “although it is a
problem of Private International Law and is not easy to be resolved, but
with change in social structure and rise of marriages with NRI the Union
of India may consider enacting a law like the Foreign Judgments
(Reciprocal Enforcement) Act, 1933 enacted by the British Parliament
under § 1 in pursuance of which the Government of United Kingdom
issued Reciprocal Enforcement of Judgments (India) Order, 1958.”
(i) In “Ms. Jorden Diengdeh v. S. S. Chopra” AIR 1985 SC 935, the
Honourable Supreme Court of India observed that it is necessary to
introduce irretrievable breakdown of marriage and mutual consent as
grounds of divorce in all cases.
In “Naveen Kohli v. Neelu Kohli” AIR 2006 (SC) 1675, it was
recommended to the Union of India to seriously consider bringing an
amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable
breakdown of marriage as a ground for the grant of divorce.
(j) A marriage can only be dissolved under a law according to which
it was solemnized in the first place and that is the fundamental law of
the land. Hence if a marriage is annulled under foreign jurisdiction then
the proceeding would become void ab initio and the divorce decree
would have no value (Sheenam Raheja case stated supra).
3. International Conventions and Bilateral Treaties.
1. Convention on the Service Abroad of Judicial and Extra judicial
Documents in Civil or Criminal Matters, 1965 (Service Convention)
2. Convention on the Recognition of Divorce and Legal Separation, 1970
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3 Convention on the Laws Applicable to Maintenance Obligation, 1973

4. Convention on Celebration and Recognition of Validity of Marriage,
1978
5. Convention of 15 November 1965 on the Service Abroad of Judicial
and Extrajudicial Documents in Civil or Commercial Matters.
6. Convention on the Civil Aspects of International Child Abduction,
1980
7. Convention on Jurisdiction, Applicable Law, Recognition, Enforcement
and Co-operation in respect of Parental Responsibility and Measures for
the Protection of Children, 1996
4. Indian Scenario:-
(a) Bilateral agreements need to be concluded with countries where
Indian Diaspora is in large numbers. The existing legislation for bilateral
agreements is available on the basis of reciprocity i.e. section 44A of
CPC , Section 3 of Maintenance Orders enforcement Act 1921 and
section 13 of CPC. The Foreign Marriages Act, 1969 and The Foreign
Marriage Rules, 1970 are also enacted. These laws enable recognition
and enforcement of foreign divorce decrees, maintenance orders, child
custody, etc
(b) Bilateral agreements on critical issues covered by the Conventions
mentioned above, especially validity and recognition of divorce decrees,
maintenance, child abduction and custody and service of orders and
Service Abroad of Judicial and Extra Judicial Documents in Civil or
Commercial Matters.
(c) The Passports Act 1967 and rules made thereunder can contain
special provisions for cancellation of passport of an offending NRI
spouse if he is an Indian Passport Holder. Likewise,the Citizenship Act,
1955 can entail penalties for matrimonial frauds. The Extradition Act,
1962 can be amended to seek return of matrimonial offenders for trial
in India who have settled in foreign countries. Additionally, the law of
matrimonial maintenance in India both in family law legislations and the
Criminal Procedure Code must be amended for making special provision
for providing matrimonial maintenance and settlement of matrimonial
property for the abandoned Indian spouse.
(d) The Supreme Court in Transfer Petition(C) No 291 of 2005 – “Smt
Seema Vs Aswini Kumar”, vide judgement dated 14 th February 2006
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has issued the directions that the central and State Governments shall
take the following steps.
❑ Marriages of all persons who are citizens of India belonging to
various religions should be compulsorily be registered in their respective
states.
❑ The procedure for registration should be notified by the respective
states within 3 months.
❑ Thus it is now incumbent upon the states to provide for registration
of marriages which needs to be implemented in case of NRI marriages
taking place in India. Also marriage certificates for NRI marriages
should be issued in duplicate copies and must carry social security
number of the NRI spouse.
5. JURISDICTION OF FORIEGN COURT:-
(a) Section 2 (5) of Code of Civil Procedure states the meaning of
term “Foreign Court” and section 2(6) states about “Foreign
Judgement”. Section 13(a) to (f) of Code of Civil Procedure states
when foreign Judgement is not conclusive. Section 14 of Code of Civil
Procedure says about presumption as to foreign Judgements. But such
presumption may be displaced by proving want of jurisdiction. Tests to
determine domicle can be determined taking help of Section 41 and 44
of the Evidence Act. The earliest Judgement regarding jurisdiction of
courts is “Jagir Kaur v. Jaswant Singh” AIR 1963 SC 1521.
(b) In “Narasimha Rao v. Venkata Lakshmi”, (1991)2 SCR 821, the
Honourable Supreme Court explained the implications of each clause of
Section 13 Code of Civil Procedure in this case. The relevant portion of
the judgment is worth quoting:
Clause (a):
“15. Clause (a) of Section 13 states that a foreign judgment shall not be
recognised if it has not been pronounced by a court of competent
jurisdiction. We are of the view that this clause should be interpreted to
mean that only that court will be a court of competent jurisdiction which
the Act or the law under which the parties are married recognises as a
court of competent jurisdiction to entertain the matrimonial dispute.
Any other court should be held to be a court without jurisdiction unless
both parties voluntarily and unconditionally subject themselves to the
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jurisdiction of that court. The expression “competent court” in Section

41 of the Indian Evidence Act has also to be construed likewise.”
Clause (b):
“16. Clause (b) of Section 13 states that if a foreign judgment has not
been given on the merits of the case, the courts in this country will not
recognise such judgment. This clause should be interpreted to mean (a)
that the decision of the foreign court should be on a ground available
under the law under which the parties are married, and (b) that the
decision should be a result of the contest between the parties. The
latter requirement is fulfilled only when the respondent is duly served
and voluntarily and unconditionally submits himself/herself to the
jurisdiction of the court and contests the claim, or agrees to the passing
of the decree with or without appearance. A mere filing of the reply to
the claim under protest and without submitting to the jurisdiction of the
court, or an appearance in the court either in person or through a
representative for objecting to the jurisdiction of the court, should not
be considered as a decision on the merits of the case. In this respect
the general rules of the acquiescence to the jurisdiction of the court
which may be valid in other matters and areas should be ignored and
deemed inappropriate.”
Clause (c):
“17. The second part of clause (c) of Section 13 states that where the
judgment is founded on a refusal to recognise the law of this country in
cases in which such law is applicable, the judgment will not be
recognised by the courts in this country. The marriages which take place
in this country can only be under either the customary or the statutory
law in force in this country. Hence, the only law that can be applicable
to the matrimonial disputes is the one under which the parties are
married, and no other law. When, therefore, a foreign judgment is
founded on a jurisdiction or on a ground not recognised by such law, it
is a judgment which is in defiance of the law. Hence, it is not conclusive
of the matters adjudicated therein and, therefore, unenforceable in this
country. For the same reason, such a judgment will also be
unenforceable under clause (f) of Section 13, since such a judgment
would obviously be in breach of the matrimonial law in force in this
country. “
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Clause (d):
“18. Clause (d) of Section 13 which makes a foreign judgment
unenforceable on the ground that the proceedings in which it is
obtained are opposed to natural justice, states no more than an
elementary principle on which any civilised system of justice rests.
However, in matters concerning the family law such as the matrimonial
disputes, this principle has to be extended to mean something more
than mere compliance with the technical rules of procedure. If the rule
of audi alteram partem has any meaning with reference to the
proceedings in a foreign court, for the purposes of the rule it should not
be deemed sufficient that the respondent has been duly served with the
process of the court. It is necessary to ascertain whether the
respondent was in a position to present or represent himself/herself and
contest effectively the said proceedings. This requirement should apply
equally to the appellate proceedings if and when they are filed by either
party. If the foreign court has not ascertained and ensured such
effective contest by requiring the petitioner to make all necessary
provisions for the respondent to defend including the costs of travel,
residence and litigation where necessary, it should be held that the
proceedings are in breach of the principles of natural justice. It is for
this reason that we find that the rules of Private International! Law of
some countries insist, even in commercial matters, that the action
should be filed in the forum where the defendant is either domiciled or
is habitually resident.”
(b.1) On the basis of the above interpretation, the Court then
went on to lay down a golden rule that has been repeatedly followed
and relied upon in subsequent cases:
“20. ... The jurisdiction assumed by the foreign court as well as the
grounds on which the relief is granted must be in accordance with the
matrimonial law under which the parties are married. The only three
exceptions to this rule were also laid down by the Court itself as follows:
(i) where the matrimonial action is filed in the forum where the
respondent is domiciled or habitually and permanently resides and the
relief is granted on a ground available in the matrimonial law under
which the parties are married;
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(ii) where the respondent voluntarily and effectively submits to the

jurisdiction of the forum as discussed above and contests the claim
which is based on a ground available under the matrimonial law under
which the parties are married;
(iii) where the respondent consents to the grant of the relief although
the jurisdiction of the forum is not in accordance with the provisions of
the matrimonial law of the parties.”
(c) In “Veena Kalia v. Jatinder N. Kalia”, AIR 1996 Del 54 was another
case where the NRI husband obtained exparte divorce decree in Canada
on ground not available to him in India. The Delhi High Court held that
not only did such divorce decree not bar divorce petition by wife in India
as it could not act as res judicata, it also did not bar applications for
maintenance filed by the wife in her divorce petition.
(d) In “Maganbhai v. Maniben”, AIR 1985 Guj 187 that a judgment of
a foreign court creates estoppel or res judicata between the same
parties provided such judgment is not subject to attack under any of
the Clauses (a) to (f) of section 13 of the C.P. Code.
(e) In “Balasubramaniam Guhan v T Hemapriya” (Reported in
Manupatra as MANU/TN/0165/2005) also she applied section 13 to an
NRI marriage. Here the wife had filed a suit for declaration to declare
the decree of divorce passed by the Court at Scotland for divorce as
ultra vires, unsustainable, illegal, unenforceable and without
jurisdiction; and for a consequential injunction restraining the petitioner
herein from enforcing the said decree or claim any rights under the said
decree either by seeking to take a second wife or otherwise.
The High Court held in such facts that if the foreign judgment falls
under any of the clauses of Section 13 CPC, it will cease to be
conclusive as to any matter thereby adjudicated upon and will be open
to collateral attack on the grounds mentioned in Section 13. As in the
suit filed by the wife, the foreign judgment granted in favour of the
husband was challenged on the ground that it was an ex parte decree,
the Court which passed the decree was held to have no jurisdiction as
the decree was passed when the wife was in India.
(f) In “Vikas Aggarwal v Anubha” (AIR 2002 SC 1796), the
Honourable Supreme Court upheld the High Court’s order and held that
Order X of CPC is an enabling ‘provision that gives powers to courts for
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certain purposes. The Delhi High Court was therefore justified in

requiring the husband to personally appear before the Court for his
clarification, especially since the affidavit of his counsel in America
annexed with the affidavit filed in the trial court was not enough to
clarify the position and his father, as found by the trial court, could not
throw further light in the matter, having not been present during the
proceedings in America. Also the inherent powers of the Court under
Section 151 C.P.C. can always be exercised to advance interests of
justice and it was open for the Court to pass a suitable consequential
order under Section 151 CPC as may be necessary for ends of justice or
to prevent the abuse of process of Court.
6. CHILD CUSTODY, & ABDUCTION:-
(a) On matters of child custody and abduction, It is recommended
here that giving importance to best interest for child welfare must be a
sine qua non to govern the issue relating to child custody. The
Australian state practice provide important tips in determining the
welfare of the child. Some of them are:
(i) When children are progressing well in a reasonably secure
environment, court will require good reasons for ordering a different
placement (Curr vs. Curr 1979 FLR 90-611).
(ii) Siblings should not be separated.
(iii) Children’s wishes should be respected. Family Law Act provides that
the wishes of a child of fourteen years as to custody/access will prevail
unless court thinks otherwise. (Family Law Act, & 64 (i)(b). Court may
also give considerable weight to the wishes of the younger children who
have certain degree of maturity and understanding of the situation
(Schmidt vs. Schmidt, 1979 FLC 90-685).
(iv) Young children, especially girls are normally best placed in the care
of their mother’s.
(v) Generally speaking, access should be ordered as aspect of children’s
welfare and not as a “consolation prize” for the parents who loses
custody unless, it poses some fairly demonstrable risk to the child.
7. PARENTAL CHILD ABDUCTION & CASE LAW:-
(a) India has not signed the Hague convention on civil aspects of
International child abduction 1980. These child custody issues are dealt
by Indian Courts. Superior courts can issue a writ of Hebeas Corpus for
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securing the custody of the minor against the parent who lands on
Indian soil violating the orders of a Foreign Court.
(b) In, “Surinder Kaur v. Hearbax Singh Sandu”, AIR 1984 SC 1224, it
was held that the provisions of Hindu Minority and Guardianship Act,
1956 cannot super-seed the paramount consideration as what is
conductive to the welfare of the child while exercising summary
jurisdiction in returning the minor children to the foreign country of
their origin. In, “Sarvajeet Kaur Mehaven v. State of Rajasthan”. The
custody of minor child was given to the mother without hearing the
father. In view of the orders passed by the High Court of Justice
(Family Division), UK., requesting courts in India to pass necessary
orders and issue directions seeking the return of the minor back to UK
from India. In Ranabir Singh v. Sathandar Kaur Mann (High Court of P
& H) declined to issue a writ of Hebeas Corpus to the petitioner’s father
residing in Malyasia who was seeking release of five years son and three
year old daughter from mother’s custody in India. The High Court of
Malaya at Kaulumpur, held that the petitioner was entitled to legal
guardianship of the said minor children. The High Court in Indian,
declined to enforce the foreign judgement of Malaysin High Court.
(c) In “Marggarate Pulparampil v Dr. Chacko Pulparampil” (AIR 1970
Ker 1), is one of the earliest cases before an Indian court involving the
issue of children’s custody in NRI marriage. In this judgment the High
Court of Kerala not only recognized the important principle of “real and
substantial connection” to establish the court’s jurisdiction to decide
custody issue, but also recognized the availability of the remedy of writ
of habeas corpus to claim custody of child who has been illegally
removed by a parent. Here the court allowed the child to be moved
back to the mother in Germany even though that meant allowing the
child to be moved out of the Indian court’s jurisdiction, as the court felt
that the interests of the child were of paramount consideration and in
this case made it necessary to give the custody to the mother in
Germany. The court also laid down the safeguards for ensuring the
parental rights of the father in India.
(d) In “Elizabeth Dinshaw v. Arvand M. Dinshaw”
(MANU/SC/0312/1986) while dealing with a child removed by the father
from USA contrary to the custody orders of the US Court passed in
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favour of the mother, the Supreme Court directed that the child be sent
back to USA to the mother not only because of the principle of comity
but also because, on facts - which were independently considered - it
was in the interests of the child to be sent back to the native State.
There the removal of the child by the father and the mother’s
application in India were within six months.
(e) In “Kuldeep Sidhu v. Chanan Singh” (AIR 1989 P&H 103) the High
Court of Punjab and Haryana also took the view that it was in the best
interests of the children that the mother who was in Canada be allowed
to take back the children from India to Canada where the mother
continued to live as they were with their paternal grandparents in India,
the father still being in Canada and as, in any case, the mother had
been awarded their custody by a competent court in Canada.
(f) In “Dhanwanti Joshi v Madhav Unde” (1998) 1 SCC 112 the NRI
husband was already married to another woman and during the
subsistence of the earlier marriage had married the second wife
appellant Dhanwanti Joshi. Dhanwanti had a son from him and when
the child was just 35 days old she left her husband and came back to
India with her infant son. The Supreme Court had the occasion to
decide the custody of the child when he was more than 12 years old
and decided that even though the father may have obtained custody
from the US court, the best interests of the child demanded that the
child be allowed to continue to stay with the mother in India who had
brought up the child single- handedly in India, subject to visitation
rights of the father.
(g) In “Sarita Sharma v Sushil Sharma” ([2000] 1 SCR 915), the
petitioner husband had filed a case for divorce in American Courts and
while the legal battle for custody was still on, both the parties having
been appointed as managing conservators of the children, the wife
brought the children to India, allegedly without even informing the
husband. It was alleged by the husband that the children were in illegal
custody of Sarita Sharma and the High Court had allowed the petition
and directed Sarita to restore the custody of two (21)children to the
husband. The passports of the two children had also been ordered to be
handed over to him. In appeal, the Supreme Court held that the decree
passed by foreign Court may be a relevant factor but it cannot override
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the consideration of welfare of minor children and expressed doubt

whether respondent husband would be in position to take proper care of
children because of his bad habits and also because he lived with his
aged mother in the US with no other family support. It further added
that ordinarily the female child should be allowed to remain with mother
so that she can be properly looked after and that it is not desirable to
separate two children from each and that therefore custody of mother
in India was not illegal custody.
(h) The other very progressive judgment on jurisdiction was delivered
by the Kerala High Court in “Marggarate Pulparampil v Dr. Chacko
Pulparampil” (AIR 1970 Ker 1) on the basis of principle of “real and
substantial connection” of the wife with the place where she approaches
a court, overruling that of wife and children following husband/ father’s
domicile.
In this case the father, the 1st respondent, an Indian National,
married as per the ecclesiastical rites, the appellant wife, a German,
who he had met when he went to Germany to study medicine. Two
children were born to them but then differences arose. The approach to
the German Courts seems to have been almost simultaneous by the
petitioner and her husband. The father asked for access to the children,
who were with the mother, shortly after the separation and the mother
sued for divorce. So the husband petitioned the German Court for his
access to the children. The parties thereafter agreed on new terms
regarding access which were filed in the German Court.
(i) In “Dipak Bannerjee v Sudipta Bannerjee” (AIR 1987 Cal 491) the
husband questioned the jurisdiction of Indian court to entertain and try
proceedings initiated by wife under Section 125 for maintenance,
contending that no Court in India had jurisdiction in international sense
to try such proceeding as he claimed to be citizen of United States of
America and his wife’s domicile also followed his domicile. The Court
held that where there is conflict of laws every case must be decided in
accordance with Indian Law and the rules of private international law
applied in other countries may not be adopted mechanically by Indian
courts. The Court felt that keeping in view the object and social purpose
of Sections 125 and 126, the objection raised by husband was not
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tenable and the jurisdiction of Indian Court was upheld as it was the
court within whose jurisdiction she ordinarily resided.
(j) In “Sondur Rajini v Sondur Gopal” (2005 (4) MhLj 688), the facts
were as follows: The appellant wife’s petition was filed inter-alia seeking
judicial separation under Section 10 of Hindu Marriage Act, custody of
minor children and maintenance. The NRI husband took the objection
that the petition filed by the wife was not maintainable on the ground
that the parties were citizens of Sweden and not domiciled in India and,
therefore, the jurisdiction of the Family Court was barred by the
provisions of Section 1(2) of Hindu Marriage Act. if a party to the
matrimonial petition establishes that after marriage he acquired
domicile of some other country, it would not take away the jurisdiction
of the Court in India if on the date of the marriage he were domiciled in
India. It is unjust that a party to the marriage can change his entire
system of personal law by his or her unilateral decision. If that were
allowed it would make the position of a wife very miserable or helpless.
The provisions of Hindu Marriage Act will continue to apply to the
marriage of parties who were admittedly domiciled in India on the date
of their marriage and they cannot be heard to make a grievance about
it later or allowed to by-pass it by subterfuges.
8. ADOPTION OF CHILDREN:-
(a) “Child Adoption” is an Act by which paternity and affiliation are
recognized as legally existing between persons not so related by nature.
The statutes covered are:-
1. Hindu Adoption and Maintenance Act, 1956.
2. Guardians and Wards Act, 1890. (Applicable to non-hindus, such as
Christains, Muslims, Parsis, and Jews. Child adoption under this Act is
rovocable and does not confer status of the biological child on the
adopted child).
3. Juvenile Justice (Care and Protection of Children) Act, 2000 and
Rules formed thereunder. (Applicable to all Indian Citizens and confers
rights available to biological child on the adopted child).
(b) Central Adoption Resource Authority (CARA) is an atonomous
body under the Ministry of Woman and Child Development functions in
matters related to adoptions. Guidelines for adoption from India, 2006
have to be followed by foreigners having stable relationship of married
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couple for five years. The landmark Judgement was passed by

Honourable Justice Sri D.Y. Chandra Chud of Bombay High Court, in the
year 2005, regarding adoption of a baby from Balavikas by an actor
couple. The Hague convention on inter country adoption came into
force in India with effect from 1.10.2003. Non-resident Indians can
adopt the child from India by following guidelines of CARA. Section 41
of Juvenile Justice Act and Rule 33(1) of Central Rules express the
aspects of adoption. Guidelines were framed by the Honourable
Supreme Court on Inter-Country Adoption in, “Lakshmikanth Pande v.
Union of India and others” (W.P.(Crl.).No.1171 of 1982). The concept of
adoption was introduced in Juvenile Justice (Amended) Act, 2006.
Section 2(aa) was included. It defines child adoption. In, Manuel
Theodora D’Souza (II(200)DMC 292), the Bombay High Court observed
that the right to adopt being a fundamental right must be capable of
enforcement through the civil court as it falls within the ambit of section
9 of Civil Procedure Code. Under section 41(6) of Juvenile Justice Act,
the District Court can have jurisdiction to entertain application for
adoption by a guardian. Family Court does not have jurisdiction as per
the case ‘Andrew Mendez and others v. State of Kerala’ (2008)
9. CONCLUSION:-
(a) One of the damaging ways finds itself in the cultural transgression
which manifests into failed NRI marriages. To avert the menace
Governmental interventions and social awareness drive with the help of
Non Government Organizations is required. Special cells be set up for
N.R.I., marraiges at the State as well at the Central level having
representation from professionals. Coperation National / State Woman
Commission is required to facilitate flow of legal assistance. Special Cell
be set up at the ambasys specially where the non resident Indians
reside in huge congregations. Online access to information on the laws
and procedures and supporting services be made, in English and in
Indian State Languages. Parametres to be laid for carrying out
verifications of the personal information of N.R.I., grooms. The
documents related to N.R.I., groom such as visa, passport, social
security number, voter registration card can be checked. Help of Local
Indian Associations and Net work of Indian Citizens can be availed.
Compulsory registration of marriages must be observed. The economic,
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marital and citizenship status of the N.R.I., can be taken from the host
country. The legal system of the host country to be considered by
equping the woman with professional / vocational skills and by
educating them on the issues of N.R.I., marriages, the rights of the
wives and children of N.R.I., men, can stop the evil equiping with the
knowledge of laws of the foreign country is also required. By following
the above the social and marital system can be saved from increasing
evil tendencies of N.R.Is.
(b) The institution of marriage needs to be revered in its paramount
form of purity and the clarion call of semblance needs to be answered
before cacophony of uncontrollable proportion ensues. The wheat from
the chaff, fact from the fiction, dreams for despair and reality from
hopes needs to be separated, on the mend, for the world to be a better
and happier place to live in.

-:o0o:-