Indian divorce laws for NRI couples: the Act, the court and the foreign decree

Which Indian law governs an NRI marriage?

The law of the marriage, not the law of the country you live in today. In Y. Narasimha Rao v. Y. Venkata Lakshmi (1991) the Supreme Court held that the matrimonial law under which the parties married is the law that decides how, and on what grounds, the marriage can be dissolved. A couple married by Hindu rites in Vijayawada who later took US citizenship are still, for an Indian court, a Hindu Marriage Act couple.

The Hindu Marriage Act, 1955 says as much in its opening section. Under Section 1(2) it applies to Hindus domiciled in India even while they are outside India. Section 2 counts Sikhs, Jains and Buddhists as Hindus for this purpose, so an Anand Karaj wedding in Jalandhar is dissolved under the same Act.

The hard case is a purely civil marriage registered abroad, at a county clerk's office or a register office. Whether an Indian court can dissolve it, and under which Act, turns on your religion, your domicile and where each of you has lived since. That has to be answered before a petition is drafted, not after.

What are the grounds for an NRI divorce in India?

Exactly the grounds open to a couple who never left. Being an NRI adds no ground and removes none. Under the Hindu Marriage Act there are three routes, and a fourth rule about timing that catches many recently married couples.

Mutual consent under Section 13B

Both spouses file together after living separately for at least a year, stating that they cannot live together and have agreed to end the marriage. Living in different countries counts as living separately. The decree comes at a second motion made no earlier than six months and no later than eighteen months after filing, unless the court waives the wait. Either spouse may withdraw consent at any time before the decree, as the Supreme Court held in Sureshta Devi v. Om Prakash (1991).

Fault grounds under Section 13(1)

One spouse files alone and must prove the ground. The grounds are adultery, cruelty, desertion for at least two years before filing, conversion to another religion, serious and incurable mental disorder, communicable venereal disease, renouncing the world, and not being heard of as alive for seven years. Leprosy was removed as a ground in 2019. In NRI cases, cruelty and desertion are the two that come up most.

Desertion needs more than distance. A husband who returns to his job in Melbourne while his wife waits in Ludhiana for a visa he never sponsors may well be deserting her. A couple who agreed to work in two countries for a while are not deserting each other.

Grounds only a wife can use

Section 13(2) adds four. A husband's second marriage from before the Act came into force; rape, sodomy or bestiality; a maintenance order in her favour followed by a year without living together; and a marriage before she turned fifteen that she repudiated before turning eighteen. The maintenance ground is useful where a husband abroad has simply ignored an Indian maintenance order.

The first-year bar

Section 14 stops any divorce petition from being presented within a year of the wedding, unless the court gives leave for exceptional hardship or exceptional depravity. It matters in the familiar story where the husband flies back within weeks of the wedding. Mutual consent cannot help either, since it needs a year of living apart.

Is irretrievable breakdown a ground for divorce in India?

No, not before a family court or a district court. If a marriage has ended in every practical sense but neither spouse can prove a statutory ground, and one will not consent, those courts cannot dissolve it. Only the Supreme Court can, under Article 142 of the Constitution, and the Constitution Bench confirmed that power in Shilpa Sailesh v. Varun Sreenivasan (2023).

That single point explains most of the trouble NRIs have with foreign decrees. England and Wales since April 2022, Australia and every US state allow divorce on breakdown without proof of fault, and Canada grants most divorces on a year's separation. None of those is a ground in the Hindu Marriage Act.

Which court can hear an NRI divorce? Section 19 of the Hindu Marriage Act

The petition goes to the district court, or to the family court where one has been set up under the Family Courts Act, 1984, for one of the places listed in Section 19. You may choose any place that fits your facts.

Section 31 of the Special Marriage Act works on similar lines. Clause (iii-a), added in 2003, is the one deserted wives rely on most, because she does not have to go back to the town of the wedding or to her husband's family home to file.

When no Indian court can hear it

If you married abroad, never set up home together in India, and neither of you lives in India now, none of the five clauses applies. A fortnight with family over Diwali does not make you resident; courts look for a settled home, not a visit. In that position the divorce has to happen abroad, and the real question becomes whether India will recognise it.

Cases in two countries at once

Nothing stops one spouse filing in India while the other files abroad. Indian courts can restrain a party from pursuing a foreign case, but they use that power sparingly. More often the race is settled by which decree the other country, and India, will later accept. That is why recognition has to be thought through before filing.

Is a foreign divorce decree valid in India?

Only if it passes Section 13 of the Code of Civil Procedure, 1908. Under Section 14 a certified copy of a foreign judgment is presumed to come from a competent court, but the presumption falls away if any of the six defects in Section 13 is shown. Read against a divorce decree, they look like this.

In Narasimha Rao the Supreme Court pulled these tests into one rule. The jurisdiction the foreign court assumed, and the ground on which it granted the divorce, must both be ones recognised by the matrimonial law under which the couple married. The court accepted three situations where a foreign decree will stand: the respondent was domiciled or habitually resident in that country and the ground also exists in Indian law; the respondent voluntarily and effectively submitted to that court and contested on such a ground; or the respondent consented to the decree.

The rule is very much alive. In January 2026, in Kishorekumar Mohan Kale v. Kashmira Kale, the Supreme Court held that a US decree granted on irretrievable breakdown, for a couple married by Hindu rites in Mumbai, did not bind in India: the ground is not in the Hindu Marriage Act and the husband had not submitted to the US court. Objecting to a court's jurisdiction is not the same as submitting to it. The Supreme Court then ended the marriage itself under Article 142.

Two side notes. Section 44A of the Code, on decrees from reciprocating countries, is about money decrees and does not turn a foreign divorce into an Indian one. And whether an Indian decree is accepted abroad is a question of that country's law, for a lawyer licensed there.

What happens if you remarry on a foreign decree India does not accept?

In Indian law the first marriage is still alive, so the second is void under Sections 5(i) and 11 of the Hindu Marriage Act. The spouse who remarried can be prosecuted for bigamy under Section 82 of the Bharatiya Nyaya Sanhita, 2023 (earlier Section 494 IPC). The first spouse keeps the right to maintenance and, on a death, can claim to inherit as the lawful spouse.

There are two clean ways to settle the question. If both of you agree, a mutual consent divorce in India ends the marriage beyond argument. If not, either spouse can ask for a declaration of matrimonial status: clause (b) of the Explanation to Section 7(1) of the Family Courts Act, 1984 covers a suit for a declaration as to the validity of a marriage or the matrimonial status of a person. Where no family court has been set up, the same declaration is sought by a civil suit under Section 34 of the Specific Relief Act, 1963.

Maintenance, children and property when one spouse is abroad

Maintenance

A wife in India can claim interim maintenance under Section 24 and permanent alimony under Section 25 of the Hindu Marriage Act, maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, 1956, and maintenance for herself and the children under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (earlier Section 125 CrPC). A husband without income can claim under Sections 24 and 25 too. Since Rajnesh v. Neha (2020) both sides swear a statement of income and assets, and a salary earned abroad has to be shown in full.

Collecting is the harder part. An Indian order is executed against what the paying spouse has here: rent, bank balances, a share in a flat or land. Enforcing it in another country depends on that country's law.

Children

Custody is decided on the welfare of the child, under Section 26 of the Hindu Marriage Act while a divorce is pending and under the Guardians and Wards Act, 1890 otherwise. Section 9 of that Act sends a guardianship petition to the court where the child ordinarily resides. A child who has lived in Toronto for years may therefore not be within any Indian court's ordinary jurisdiction. India has not joined the Hague Convention on child abduction, so a foreign return order is weighed by an Indian court rather than enforced as it stands.

Property

India has no community property regime. Each spouse keeps what stands in his or her name, stridhan belongs to the wife, and the court takes the other spouse's assets into account when it fixes alimony. A flat in India changes hands only by a registered deed or an Indian decree, and a transfer to a spouse living abroad has to fit the FEMA Non-Debt Instruments Rules, 2019.

What to do next if you are thinking about divorce from abroad

1. Identify your Act. Find the marriage certificate and check it against the table above.
2. List your Section 19 places. Note every Indian place that qualifies, and which of them is practical for hearings.
3. Test any foreign decree. If either of you holds or plans a foreign divorce, check it against Section 13 before relying on it.
4. Hold back on irreversible steps. Do not remarry, sell joint property or move the children across borders until your status is settled.
5. Pick the route. Mutual consent or a contested petition. The practical steps, from the Power of Attorney to statements by video, are in our guide on how an NRI files for divorce in India.

VIVS Legal advises NRI clients online from its office in Sanpada, Navi Mumbai, by video, phone or WhatsApp, with papers exchanged by email. Advice is led by Adv. Swanand Pandit, Advocate, High Court of Bombay. If the court with jurisdiction is outside Mumbai and Navi Mumbai, we explain at the first consultation how hearings there would be handled and what that costs. Our NRI divorce lawyer pages cover individual countries, and our note on divorce under Hindu law goes deeper into each ground.