Mutual Consent Divorce for NRIs in India: Can It Be Done Without Travelling?
The problem
You and your spouse have agreed to separate. One or both of you live abroad. You want a divorce in India but cannot keep flying back for hearings.
Example: A couple married in Bengaluru in 2018 under Hindu law. The husband lives in the UK and the wife in Bengaluru. They have lived apart for over a year and agree on everything.
What the law says
Under Section 13B of the Hindu Marriage Act, 1955, a couple can file a joint petition for divorce by mutual consent if they have lived separately for at least one year. Similar provisions exist in Section 28 of the Special Marriage Act, 1954 and Section 10A of the Indian Divorce Act, 1869.
Normally the court records a first motion, and then a second motion after six months. In Amardeep Singh v. Harveen Kaur (2017), the Supreme Court held that this six-month period can be waived in suitable cases. The Court also said that parties may join by video conference. The final decision is the judge’s.
The petition is filed in the Family Court where the marriage took place, where you last lived together, or where the wife lives.
What you can do – step by step
- Agree on all terms in writing. Alimony, return of jewellery and gifts, child custody and visits, and withdrawal of any pending cases.
- Prepare the joint petition and affidavits. The NRI spouse can sign abroad and send the originals.
- File in the right Family Court in Bengaluru.
- Ask for appearance by video conference for the spouse living abroad, with reasons.
- Apply for waiver of the six-month period if you meet the conditions.
- Attend the final hearing in person or by video, as the court allows, and collect the decree.
Documents to keep
- Marriage certificate and wedding photographs
- Proof of address of both spouses
- Passport, visa or residence permit of the NRI spouse
- Signed settlement terms
Mistakes to avoid
- Leaving terms vague. Disputes after filing can stop the divorce.
- Assuming a foreign divorce will be recognised in India. That is not always the case.
- Missing a hearing without informing the court. Keep in touch with your advocate.
Contact
To speak to an advocate, call +91 63660 42792, WhatsApp the same number, or email contact@baselegal.in. You can also send us a message. Read more about our Family Law practice. See also NRI and cross-border divorce and whether a foreign divorce is valid in India.
This article is for general information only. It is not legal advice. Please speak to an advocate about your own case.