1

NRI marriages – Issues and challenges with

special reference to custody of children

Presented by

M.Suneel Kumar,

Senior Civil Judge,

Sompeta.

Table of Contents
Preface .........................................................................................................................2

NRI ................................................................................................................................3

Resident .......................................................................................................................4

Non Resident Indians under FEMA .....................................................................5

NRI Marriages(Mirage) ..........................................................................................5

Is It For woman only ................................................................................................8

Laws that governs NRI Marriages .......................................................................9

The fallowing laws governs the NRI’s in respect of marriage, divorce,

maintenance and custody of the children's ......................................................9

Issues In NRI Marriages ..................................................................................... 11

Legal issues involved in NRI Marriages ........................................................... 12

Conflict of Laws ..............................................................................................12

Jurisdiction.......................................................................................................15

Maintenance and child custody .................................................................15

Validity of foreign court orders and Jurisdiction of Indian Courts17

Bringing the NRI’s to India. ....................................................................... 23

Serving of summons ...................................................................................... 26

Look out circulars (LOC) .............................................................................. 29

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Divorce ...................................................................................................................... 32

Custody of children ............................................................................................... 34

Different Government institutions, which protect the victims of NRI

marriages .................................................................................................................. 39

End note .................................................................................................................... 39

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Preface

If we observe the evaluation of mankind, the man migrated to other

places in quest of wealth, knowledge or survival. In other words, he
migrated to earn, learn or save life. We can trace the migration to
other countries for wealth started when king Ashoka invading
kalinga of southeast and Samudragupta on south. Either post-
independence or per-independence migration to other countries
are mostly for becoming wealthy may it be in monetary or
knowledge wise.

The British people came to our country for business, and

then they became rulers. Now our Indians going around the world to
become rich, becoming part of that society, holding key posts and
becoming source of the income of this country as such we find the
definition of NRI U/s 6 of, in income tax act and Foreign exchange
management act. That is the one part of positive result of NRI’s. The
negative part with reference to their personal life, the western
culture is quite different from that of the Indian, Our NRI grooms
neither they are embracing the western culture completely nor
Indian when they migrated to abroad particularly in respect of
family and marriage issues. Due to which, these people adopting the
things that are advantageous to them from both cultures and
becoming not belongs to any of it ultimately. As such, they are
marrying our girls in search of virginity or wealth or as obedient sons
and demanding more dowry but leaving them in India to their fate.
The parents of these NRI’s sometimes became helpless and not
extending any help to the brides.

Earlier, the parents of girls searching for NRI’s as their first

option, whenever they thought about marriage of girl, with an
impression that she would lead great life in abroad. Now these
dreams were shattered and it became a mirage. The problems that
were facing by the brides who married NRIS are mainly on two
reasons one is for dowry and the other one is that the spouses
 4

already married, developed intimacy with other girl. The problems of

these NRI brides are exclusively for them apart from the other
problems faced by the women in India. With this backdrop we will
go through with the issues of NRI marriages(Mirage) and issues
related to child custody.

NRI
The full form of the NRI is nonresident Indian that itself
speaks its meaning. The word NRI was not defined anywhere in
Indian laws directly, it was explained by other ways in income tax
act and Fema act. The general meaning for the NRI, non-resident
Indian is a person who holds Indian passport and emigrate to other
countries for the purpose of study or employment. These NRIs
spreading around 208 counties with a population of 3,08,43,419, by
31-12-2016 as per the external affairs ministry statistics. When ever we
hear the word NRI, we look towards USA but our NRI;s in USA is only
1% with population of 44,60,000, where as in UK it is 10% with
population of 18,25,000, In UAE it is 75% with population of 28,03,751 ,
in Saudi Arabia 25% with population of 30,04,585, Qatar 35.7% with
population of, 600,000. Most of the NRI’s practicing Hindusim, some
also practicing Bahai, Buddhism, Christianity, Islam, Jainism, Judaism,
Sikhism and Zoroastrianism, When 3,08,43,419 spreading 208
countries practicing different religions involves in legal battle, how
difficult it is to to reach ultimate destination of justice more
particularly When they have no special laws and procedures.

Income Tax Act has not directly defined NRI. Section 6

contains detailed criteria of who is considered as Resident in India
and provides that anyone who doesn’t meet these criteria is Non-
Resident. The status of a person as a resident or non-resident
depends on his period of stay in India. The period of stay is counted
in number of days for each financial year beginning from 1st April to
31st March (known as previous year under the Income-tax Act).
 5

Resident
An individual will be treated as a Resident in India in any
previous year if he/she is in India for: At least 182 days in that year,
Or at least 365 days during 4 years preceding that year and at least
60 days in that year. An individual who does not satisfy both the
conditions as mentioned above will be treated as “non-resident” in
that previous year. Definition of Resident is relaxed by dropping
condition 2 given above (i.e. only Condition 1 is applicable), for the
following cases: An Indian citizen who leaves India in any year for
the purpose of employment outside India or as a crew member of
an Indian ship, an Indian citizen or a person of Indian origin who
resides outside India and who comes on a visit to India. Note that a
person shall be deemed to be of Indian origin if he, or either of his
parents or any of his grandparents, was born in undivided India.

Non Resident Indians under FEMA

Section 2 of Foreign exchange management Act contains
clauses A to Z(e) defining different terms clause V defines who is
resident Indian, who didn't fall under the residents will be called as
non residents as per clause W of Section 2. As per clause V and W,
An Indian Citizen who stays abroad for (a) employment/ carrying on
business or (b) vacation outside India or (c) stays abroad under
circumstances indicating an intention for an uncertain duration of
stay abroad is a non-resident. Persons posted in U.N. organizations
and officials deputed abroad by Central/ State Government and
Public Sector Undertakings on temporary assignments are also
treated as non-resident.

NRI Marriages(Mirage)
The dictionary meaning for marriage is: the legally or formally
recognized union of two people as partners in a personal
relationship (historically and in some jurisdictions specifically a union
between a man and a woman). Therefore, we can simply say its
partnership of man and woman to negotiate with life that is why
 6

they will be called as life partner. The parents of middle or High-class

Indian girls are searching for NRI bridegrooms whenever they
thought about performing marriage of girl, by presuming that they
are earning a lot in abroad. If they perform marriage of their
daughter with them, their daughter will lead happy life, but it turns a
mirage and their life became nightmare because of the bridegroom
or his family member’s greediness towards money. The parents of
bride also offering hefty amounts as dowry since he is an NRI and
earning a lot, but missing a point or logic when he is earning a lot
why they are demanding more dowry, there is no point in asking
more. At the time of marriages the parents also taking it as
prestigious issue, and claiming it as great deed. Neither the parents
nor the bride looking it as an offence till it became an issue. When it
becomes an issue, they start pillar to post, by then their life's turns
miserable.
The institution of marriage have its unique features, the
person who is out side of the institution won’t learn lessons from the
persons in the institution, he is eager to enter in it, from the time he
enters in it he wants to come out which is not easily possible. The
institution of marriage changed its nature from time to time
depending upon the persons entered in it. As per the Hindu religion
its sacred dharma of man and women, in vedhas lot of qualities
were attributed to wife or woman similarly to men also, but
unfortunately, they were not as popular as that of the qualities of
woman propagated. The following are the qualities that a man has
to posses…..
, కర ద ః

చ కృషః మ మః

తృపః ఖ ఃఖ తం

షట ర కః ఖ ధర థః ( మందక స ం)
 7

ప య డం ఒక వ ,ప ఫ ఆ ంచ ం . కర ద ః

ం నడపడం , ల ర ంచడం , సంయమనం

వ వహ ం . సమ ౖ ఉం .

చ కృషః

పం కృ వ ఉం . అం ఎల ఉ హం ,సం షం ఉం .

మ మః

ఓ ఉం . తృ క ప ల ౖన వ ం

క ఉం .

తృపః

ర /త వం న సంతృ ం .

ఖ ఃఖ తం

ఖ ః ల ం వ అండ ఉం . మం డల

పం .

ఈ షట ర -ఈఆ ప సకమం ఉతమ ,

ధర డబడ .

Lack of at least one quality of above in men causing disruption to

the institution of marriage. Now there is radical change of
performing marriage and its purpose, the man and women are
marrying for money, for going abroad on the spouse ground, the
contact marriages also came in to existence, which even extended
to living in relationship. If any of Indian spouse becomes NRI after or
before marriage, if their marriages was performed on any of the
Indian laws anywhere in globe and spouse lefts in India, they will fall
under the category of victims of NRI Marriages.
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Is It For woman only

The answer is big no, because now a day the girls are getting better
ranks in education, all competitive exams than that of the boys and
getting better jobs than the boys get. The girls are securing more
than 50%posts in all jobs all most all the top posts now are holding by
the woman. They are competing with boys in all most all sorts of jobs.
The MNC prefers girls for the posts, the reasons best known to them.
Once these NRI girls went there and secured their possessions in
employment, there they are leaving these NRI boys and marrying as
per their choice. However, in the case of boys, they are not facing
the harassment physical and in helpless possession like that of the
girls. Even if they were subjected to any mental harassment, they
were not in possession to complain the same because of his male
ego. However, these types of incidents taking place not that
frequent as women facing but such instances are also there. Once
our boys & girls landed in western soil, nobody there to question
them, the persons preferring to live in a way they like and not
bothering about society since in the said society its acceptable. The
western culture influencing them due to it though they prefer to
marry Indians they are not continuing the same and preferring to live
with if a person of their like come across to them. Even otherwise the
brides for settling the scores when there was disputes between wife
and husband including the family members of NRIs with false
complaints under section 498 A of IPC. Due to which in recent
judgments Supreme Court held the arrest of the family members are
not mandatory. Therefore the issues are not limited for women only
now the reverse trend started .

Laws that governs NRI Marriages

The fallowing laws governs the NRI’s in respect of marriage, divorce,

maintenance and custody of the children's
 The Hindu Marriage Act, 1955,

 The Special Marriage Act, 1954,

 9

 The Foreign Marriage Act, 1969

 The J&K Hindu Marriage Act, 1980

 Goa, Daman and Diu Laws

 Quaranic Laws of Muslims

 Parsi Marriage and Divorce Act, 1936

 The Indian Christian Marriage Act, 1872

 The Indian Divorce Act, 1869

 Hindu Adoption and Maintenance Act, 1956,

 The dissolution of Muslim Marriages Act 1939

 The divorce Act 1869

 The Marriage Laws (Amendment) Act, 2003 (Act No. 50 of 2003)

So all the laws that were in existence in India will be applicable to

the NRI’s, If both the spouses belongs to same religion, they will be
governed by the law that covers the said religion, If they belongs to
different religions they will be governed by the Special Marriage Act.
Irrespective of caste or religion, one can follow Special marriage
Act. Section 5 of Hindu marriage Act prescribes conditions of valid
Hindu marriage, section 2 explanation specifies that Buddhists, Jains
and Sikhs are Hindus. Section 4 of special marriage act prescribes
conditions for solemnization of marriage, similarly Section 4 of foreign
marriage Act. As per Section 4 of Christian marriage act, it has to be
solemnized according to act. As per Section 10 it shall be performed
in between 6 Am and 7 Pm. As per section 11 it has to be preformed
in church only unless there is no church within five miles. Section 3 of
Parsi marriages and divorce act contemplates requisites of valid
Parsi marriage. The uniformity of all the laws are that there should not
be living spouse by the date of marriage, they must attain majority
and not within the degree of prohibited relationship.
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Issues In NRI Marriages

The issues that arose out of marrying NRI bridegroom are in addition
to the issues that are being faced by Indian woman. We need not
elaborate the issues that are being faced by the Indian women on
this soil. These issues were culled out from the cases reported and
decided by the courts.

 Their NRI husbands were abandoning the brides after their short
honeymoon. Sometimes due to their short cohabitation by then
they became pregnant too. There were instances where the
brides were left at airports by going to bring car.

 Even if they were taken to abroad they were using like a maid
servant arrested in a room and subjecting them to physical and
mental harassment brutally assaulting them for money.

 The NRI husbands providing false information in respect of their

employments and social status and other particulars.

 The bridegrooms taking advantage of legal provisions of

western countries, which are liberal in granting Divorce,
obtaining ex-parte divorce, they can get divorce within days of
marriage. Where as in Indian system after marriage at least one
and half year’s time requires to take divorce on mutual consent
U/s 13 B of Hindu marriage act. If its on contest we can imagine
time requires to get divorce. There are 2001 HMOP’s pending
on the files of trail courts.

 The Indian woman who were taken on abroad facing much

hard ship without knowing the language and legal remedies
available for them in the said country. Even they were not in
possession to survive and feed their children.

 They have to fight for maintenance of them as well as their

child on the foreign soil. They have to fight for custody of child.
It is well known fact the legal services are so expansive in the
western countries.
 11

 The husbands obtaining divorce under foreign law, on that

ground trying to evade maintenance.

Legal issues involved in NRI Marriages

Conflict of Laws
The Indian laws are more stringent than the western countries in
respect of divorce. The husbands who are residing western countries
are take advantage of the laws where they are residing to avoid the
Indian laws and obtain divorce decree. A question would arise
about the validity of the divorce obtained from foreign countries,
when the marriage was performed on Indian soil and as per the
provisions of Hindu marriage act. In Anubha v Vikas Aggarwal (100
(2002) DLT 682). Where in the plaintiff, the young wife, was seeking
decree of declaration that she was entitled to live separately from
her NRI husband, the defendant. She also sought for a decree for
maintenance in her favour besides the pendent lite expenses as she
had been deserted and abandoned by him very soon after the
marriage, after being subjected to cruelty. During the pendency of
the suit when the wife learnt of divorce petition having been filed by
the husband in the USA, she also approached the court to restrain
that action from proceeding in the USA. Whereupon the Court
passed the order restraining the defendant from proceeding further
in the Court in the State of Connecticut, USA for a period of thirty
days. However, in spite of the order the husband proceeded with
the "No Fault Divorce Petition" proceedings in the US. When this fact
was brought to the notice of the Court in India, the Indian Court
passed an order asking the defendant for recording of the
statement under Order X of the CPC and on his failure to appear, his
defense was struck off and contempt proceedings were initiated.
After the husband obtained the decree of divorce despite all these,
the question that arose foremost for determination was whether the
decree of divorce obtained from the Court at Connecticut in the
USA during the pendency of the proceedings of the case in India in
 12

the given facts and circumstances was enforceable in law or not.

The Court held that the ground on which the marriage of the
defendant was dissolved is not available in the Hindu Marriage Act.
The parties were Hindus, their marriage was solemnised according to
the Hindu rites. Their matrimonial dispute or relationship was,
therefore, governable by the provisions of Hindu Marriage Act. Since
the plaintiff did not submit to the jurisdiction of the USA Court nor did
she consent for the grant of divorce in the US Court the decree
obtained by the defendant from the Connecticut Court of USA was
held to be neither recognisable nor enforceable in India.
Therefore even the NRI’ husbands approaches the courts where they
residing and obtained divorce it will not bind if the grounds on which
they obtained is not available in Indian laws.

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 tenable and the
jurisdiction of Indian Court was upheld as it was the court within
whose jurisdiction she ordinarily resided.

Therefore, when there was conflict of laws the Indian laws prevail
over foreign laws. The efforts of NRI’s to go away from the Indian
laws are only futile exercise.
 13

Jurisdiction
As per section 9 Of CPC The Court shall have jurisdiction to try all suits
of a civil nature excepting suits of which their cognizance is expressly
or impliedly barred . In respect of NRI marriages if any part relating to
marriages taken place in India, or Marriage is performed on Indian
soil or According to Indian laws anywhere on the globe or if the
spouses lived in India automatically Indian Courts have jurisdiction
over the NRI Matrimonial Dispute
As per section 3 of IPC “any person liable, by any Indian law to be
tried for an offence committed beyond India shall be dealt with
according to the provisions of IPC for any act committed beyond
India in the same manner as if such act had been committed within
India. Section 108A of IPC “A person abets an offence within
the meaning of this Code who, in I ndia, abets the
commission of any act within and beyond I ndia which would
constitute an offence as if committed in India”. If an NRI
commits any offence under section 498A or 494 , 495 of IPC
even on foreign land she can file criminal case in India

Maintenance and child custody

Section 125 of CrPC , Section 24 ,25 of Hindu marriage Act and
Section 20 of Domestic violence Act, Section 18 and 20 of Hindu
adoption and maintenance Act contemplates the maintenance to
the wife and children. Under section 125 of CRPC the wife can seek
maintenance if she resides in India by the time of filing of the case, if
she is unable to maintain herself. She can also seek maintenance for
her minor child. As per section 24 of HMAct interim maintenance and
pendent lite expenditure can be sought. Under S 25 of HMAct she
can sought permanent alimony. In Harmeeta Singh v Rajat Taneja
102 (2003) DLT 822 the wife was deserted by her husband within 6
months of marriage as she was compelled to leave the matrimonial
home within 3 months of joining her husband in the US. When she
filed a suit for maintenance under the Hindu Adoptions and
Maintenance Act in India, the High Court disposed of the interim
 14

application in the suit by passing an order of restraint against the

husband from continuing with the proceedings in the US court in the
divorce petition filed by the husband there and also asking him to
place a copy of the order of the High Court before the UScourt.
The Court made some other observations while passing this order,
mainly that even if the husband succeeded in obtaining a divorce
decree in the US, that decree would be unlikely to receive
recognition in India as the Indian court had jurisdiction in the matter
and the jurisdiction of the US courts would have to be established
under Section 13, CPC. The Court then said that till the US decree
was recognized in India, he would be held guilty of committing
bigamy in India and would be liable to face criminal action for that.
The court also said that since the wife's stay in the US was very
transient, temporary and casual, and she may not be financially
capable of prosecuting the litigation in the US court, the Delhi courts
would be the forum of convenience in the matter.

Validity of foreign court orders and Jurisdiction of Indian

Courts
Section 13 and 14 of CPC deals with the foreign court judgments
and its presumptions. The foreign court judgments are conclusive as
to any matter thereby directly adjudicated upon between the same
parties or between the parties under whom the, or any of them
claim litigating under the same title. If it is passed by competent
court having jurisdiction, if it has been given on merits, if it is not
found on face of the proceedings to be found on in correct
international law or refused to accept Indian law, it is not opposed
to natural justice, not obtained on fraud and not in breach of law in
India. The Hon’ble Apex court dealt with section 13 of CPC
elaborately in Narasimha Rao v Venkata Lakshmi [1991] 2 SCR 821.
Where in the decree of dissolution of marriage passed by the Circuit
Court of St. Louis County, Missouri, USA was passed by the court by
assuming jurisdiction over the divorce petition filed by the husband
there, on the ground that the husband had been a resident of the
 15

State of Missouri for 90 days preceding the commencement of the

action as the minimum requirement of residence. Secondly, the
decree had been passed on the only ground that there remained
no reasonable likelihood that the marriage between the parties
could be preserved, and that the marriage had, therefore,
"irretrievably broken". Thirdly, the respondent wife had not submitted
to the jurisdiction of the foreign court.
Taking on from where it was left by Satya v. Teja, the Court explained
the implications of each clause of Section 13 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 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
 16

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."
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
 17

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."
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;
(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;
 18

(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."
Bringing in the benefit of certainty and predictability of law, the
Court said that "the aforesaid rule with its stated exceptions has the
merit of being just and equitable. It does no injustice to any of the
parties. The parties do and ought to know their rights and obligations
when they marry under a particular law. They cannot be heard to
make a grievance about it later or allowed to bypass it by
subterfuges as in the present case. The rule also has an advantage
of rescuing the institution of marriage from the uncertain maze of the
rules of the Private International Law of the different countries with
regard to jurisdiction and merits based variously on domicile,
nationality, residence permanent or temporary or ad hoc, forum,
proper law etc. and ensuring certainty in the most vital field of
national life and conformity with public policy."
According to the Court, the decree dissolving the marriage passed
by the foreign court was without jurisdiction in this case as according
to the HMA Act neither the marriage was celebrated nor the parties
had last resided together nor the respondent resided within the
jurisdiction of that court. The decree was also passed on a ground
which was not available under the HMA Act which is applicable to
the marriage. Further, the decree had been obtained by the
husband by representing that he was the resident of the Missouri
State when the record showed that he was only a "bird of passage"-
He had, if at all, only technically satisfied the requirement of
residence of 90 days with the only purpose of obtaining the divorce.
The court reiterated that residence does not mean a temporary
residence for the purpose of obtaining a divorce, but 'habitual
residence' or residence which is intended to be permanent for future
as well.
The final judgment therefore was that since with regard to the
jurisdiction of the forum as well as the ground on which the foreign
 19

court had passed the decree in the case, were not in accordance
with the Act under which the parties were married, and the
respondent had not submitted to the jurisdiction of the court or
consented to its passing, it could not be recognised by the courts in
this country and was unenforceable.
The Court finally said: "We believe that the relevant provisions of
Section 13 of the Code are capable of being interpreted to secure
the required certainty in the sphere of this branch of law in
conformity with public policy, justice, equity and good conscience,
and the rules so evolved will protect the sanctity of the institution of
marriage and the unity of family which are the cornerstones of our
societal life."

Bringing the NRI’s to India.

One of the difficult tasks that encounter in prosecuting legal
remedies available to brides are securing the presence of NRI. The
best possible way is using sub clause (3) and (h) section 10 of
Passport Act, the passport can be impounded, then the NRIs has no
option except attending the courts in India. Section 10. Variation,
“impounding and revocation of passports and travel documents

(3) The passport authority may impound or cause to be impounded

or revoke a passport or travel document,-
(h) if it is brought to the notice of the passport authority that a
warrant or summons for the appearance, or a warrant for the arrest,
of the holder of the passport or travel document has been issued by
a court under any law for the time being in force or if an order
prohibiting the departure from India of the holder of the passport or
other travel document has been made by any such court and the
passport authority is satisfied that a warrant or summons has been so
issued or an order has been so made”.

The Apex court in Rajiv Tayal v. Union of India & Ors. (124 (2005) DLT
502: 2005 (85) DRJ 146) where in an NRI husband had filed a writ
petition seeking to quash the order passed by Consulate General of
 20

India, New York, USA, on the directions of the Ministry of External

Affairs, Government of India, New Delhi, for impounding his passport.
He also challenged the order of the Trial Court declaring him a
'proclaimed offender' The NRI husband had filed the Petition even as
he continued to refuse to join the proceedings pending before the
Metropolitan Magistrate largely on the ground that he was residing
in USA and subjecting him to the criminal process in India would be
an unfair burden. The petitioner also submitted in the same breath
that he had not been served with the summons and that the
investigation in his case ought to be conducted by sending him a
questionnaire and he should not be asked to join the investigation in
India. The court held that acceptance of such a plea would give a
premium to the accused husband just because he happened to be
abroad. Merely by going abroad a person could not claim a status
superior to that of a citizen of India. It would then be open to such
an accused to misuse the process of law and to make a mockery of
the Indian judicial system by asking for such a special procedure
which is in any case totally opposed to the principles of the criminal
jurisprudence. The court passed his judgment after also looking at
the conduct of the accused husband since he had refused to join
the proceedings even after being repeatedly assured by the court
that he would be extended suitable protection against his arrest or
any other penal consequences in respect of his passport, but he
declined to do so and insisted that the summons must be served on
him before he is required to answer it, thus taking a hyper technical
plea. The court therefore held that there was no merit in the
husband's plea as to the invalidity of Section 10(e) & (h) of the
Passport Act being violative of Articles 14, 19 and 21 of the
Constitution and the plea of constitutional validity of such provisions
thus stood rejected.

Therefore by using the said provision under passport act the

passports of NRI’s, who deliberately evading the process of courts,
can be impounded. When such steps were taken, they have no
 21

option except to appear before the courts. The only strength of an

NRI is his traveling documents and passport if the same were
impounded, they remains Indians necessarily have to stay in India.

Serving of summons
The biggest problem one has to face in legal proceedings is serving
of summons and notices. Since the bride residing in India, she would
have no first hand information about address particular's of his
residence and work place. Since these NRI boys not working as
permanent employees, the change of employment as well as
abode is frequent. As such tracing out their address particulars is one
of the biggest challenges they face. Unless the notices and
summons are served on them, it will not be possible to proceed
further. For serving summons on NRIs the summons has to be sent to
ministry of home affairs. As per section 105 of CrPC the government
has to make reciprocal arrangements regarding serving of process
accordingly the central government has entered Mutual Legal
Assistance Treaty (MLAT) with around 40 countries and also issued
comprehensive guidelines. Due to entering such MLAT the said
country has obligation to reciprocate with serving of notices and
summons warrants etc where as the other countries have no
obligation to consider such request. The fallowing are
comprehensive guidelines issued by MHA

a) All requests for service of summons/notices/judicial processes

on persons residing abroad shall be addressed to the Under
Secretary(Legal), IS-II Division, Ministry of Home Affairs, 9thFloor,
Lok Nayak Bhawan, New Delhi- 110003. All requests shall be
forwarded through post only with a covering letter from the
Registrar/Court official giving the following information:

a)Material facts of the criminal matter including purpose of the

request and the nature of the assistance sought.

b) The offenses alleged to have been committed, a copy of

the applicable laws and maximum penalties for these offense.
 22

c) Name, designation, telephone and fax number of the

person/officer who will be able to give any clarification, if
required.
d)The complete address of the issuing authority to which the
judicial papers/service reports may be returned.
e) Approval of the competent authority to bear any
expenditure, which they be charged by the foreign
government/agency for the service of the documents.
f)Degree of confidentiality required and the reasons
therefore(in case of confidentiality requirement).
g) Any time limit within which the request should be executed.
This will be subject to allowance of sufficient margin of time
bythe requesting agency, as indicated in para 3(iv) of the
guidelines
b) MHA, on receipt of request, will examine it in view of the provisions
of treaty, if exists, with the requested country and as per the provision
ofCrPC in case of non-treaty country.
c) India has a MLAT with Singapore and the Govt. of Singapore has
prescribed a proforma which shall be completely filled and sent
along with the request for service of judicial documents. The said
proforma is at Annexure – 1 to these guidelines.
d) MHA requires at least a period of 12 weeks times for service of
such notices in the concerned countries. It is, therefore imperative
that a date of hearing/appearance may be decided accordingly.
e) In the case of non English speaking countries, the notices should
be accompanied with the certified/authenticated translation(in
duplicate) in the official language of the country where the notice is
proposed to be served.
f) Name and address of the individual/organization should be
complete in all respect and PO BOX no. and Passport no. will not
suffice as address of the individual.
 23

g) Ministry of Home Affairs responsibility to service the summons is

only in Criminal Matters. Hence, summons in Criminal matters only
may be sent to the Ministry for service abroad.
h) MHA does not undertake service of the non-bailable warrants of
arrest. The service of non-bailable arrest warrants amounts to the
extradition of the individual. The request for extradition are based on
certain legal procedures contained in applicable treaties
negotiated on the basis of the International Principle of Extradition.
Such requests are to be forwarded to the Ministry of External Affairs,
CPV Division, Patiala House Annexe, Tilak Marg, New Delhi – 110001.
The circular of MHA Is appended as appendix 1 . This circular made it
clear it can be used in serving of summons in criminal cases only and
warrants will not be entertained as it amounts extradition of the
individual.

Look out circulars (LOC)

For securing the presence of NRI’s, his family members against whom
cases were registered, deliberately avoiding service of summons,
notices to watch their entry, departure from the country would be
taken up by opening of Look out Circular. This LOC’ s can be issued
within local, national and international levels at Airport, Sea port,
Train or Bus stations border agencies, across the border within a
country, and across the international Border agencies.

The request for opening an LOC in respect of an Indian citizen is

required to be made to all the Immigration Check Posts (ICP) in the
country in a prescribed proforma

The request for opening of LOC must invariably be issued with the
approval of an Officer not below the rank of Deputy Secretary to
the Government of India/ Joint Secretary in the State Government/
concerned Superintendent of Police at district level.

Complete identifying particulars of the person, in respect of whom

the LOC is to be opened, are indicated in the Proforma...
 24

An LOC is valid for a period of one year. It can, however, be

extended further before the expiry of the one year period. In case
no request for extension of LOC is received before expiry of one
year period, an LOC will automatically be closed by the
Immigration Officer concerned after expiry of one year period.'

The Hon'ble High Court of Delhi in W.P. (Crl.) No. 1315/2008-Sumer

Singh Salkan Vs. Asstt. Director & Ors and Crl. Ref.l/2006-Court on its
Own Motion Re: State Vs. Gurnek Singh etc., has formulated the
circumstances under which, who, how can be opened, maintained
and terminated the LOC’s. They are as fallows….

a) Recourse to LOC can be taken by investigating agency in

cognizable offenses under IPC or other penal laws, where the
accused was deliberately evading arrest or not appearing in the
trial court despite NBWs and other coercive measures and there
was likelihood of the accused leaving the country to evade
trial/arrest.

b) The Investigating Officer shall make a written request for LOC to

the officer as notified by the circular of Ministry of Home Affairs,
giving details & reasons for seeking LOC. The competent officer
alone shall give directions for opening LOC by passing an order in
this respect.

c) The person against whom LOC is issued must join investigation by

appearing before I.O or should surrender before the court
concerned or should satisfy the court that LOC was wrongly issued
against him. He may also approach the officer who ordered
issuance of LOC & explain that LOC was wrongly issued against him.
LOC can be withdrawn by the authority that issued and can also
be rescinded by the trial court where case is pending or having
jurisdiction over concerned police station on an application by the
person concerned.

d) LOC is a coercive measure to make a person surrender to the

investigating agency or Court of law. The subordinate courts'
 25

jurisdiction in affirming or canceling LOC is commensurate with the

jurisdiction of cancellation ofNBWs or affirming NBWs.
Basing on which The MHA issued guidelines in respect of opening,
maintaining and closing of of LOC’s The said circular is appended as
appendix 2 . In respect of fallowing cases the automatic termination
of LOC after 1 year doesn't arise.
a. Ban-entry LOCs issued for watching arrival of wanted
persons(which have a specific duration);

b. loss of passport LOCs( which ordinarily continue till the validity of

the document);

c. LOCs regarding impounding of passports;

d. LOCs issued at behest of Courts and Interpol

Divorce
When we unites two persons automatically at one point of time
depending up on the circumstances of each case the separation
would also arise like birth & death, Appointment & retirement and
union & separation either it may be death or divorce in case of
marriage. Section 13 of Hindu marriage Act specifies the grounds
under which the marriage can be dissolved by granting divorce.
similarly Section 27 of special marriage Act envisages the grounds for
divorce.S18 of foreign marriage Act Matrimonial reliefs can be under
special marriage Act section 19 envisages bigamy can be punished
under S494 and 495 and declared marriage as void. Section 32 of
Parsi marriage and divorce Act enumerates the grounds of divorce.
If we go through with all the provisions all are the same with minor
deviations. If the spouse had voluntary sexual intercourse with any
person other than his or her spouse. Treated the petitioner with
cruelty, deserted the petitioner for a continuous period of not less
than two years. Conversion to another religion, unsound mind, or has
been suffering continuously or intermittently from mental disorder of
such a kind and to such an extent that the petitioner cannot
reasonably be expected to live with the respondent. Suffering from a
 26

virulent and incurable form of leprosy. Venereal disease in a

communicable form, renounced the world by entering any religious
order, has not been heard of as being alive for a period of seven
years or more. Are the common grounds for divorce. In the present
context, the NRI Husbands taking advantage of liberal laws of
divorce in western countries making use of them to get rid of wives
and run away from the responsibility of maintenance. When the wife
residing at India they are filing divorce potions in foreign courts and
getting ex-party divorce decrees. Sometimes they are keeping them
in the house and obtaining ex-parte divorce without their
knowledge. When the wives filed for maintenance, they are filing the
divorce orders. Veena Kalia v Jatinder N. Kalia AIR 1996 Del 54
where the NRI husband obtained ex parte 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.

The Court also looked into the circumstances in which the wife did
not contest the husband's divorce petition in Canada - that she had
no means to contest the proceedings there and the decree of
divorce was passed as she was unable to appear and contest the
proceedings as the prohibitive cost of going the Canada and other
circumstances disabled her and her husband took full advantage of
that handicap. Also, the only ground on which the husband sought
divorce was that there had been a permanent breakdown of the
marriage, which was not a ground of divorce recognised under the
Indian law

The Court also relied upon a judgment 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 vide.
 27

Custody of children
When there were disputes between wife and husband generally they
will fought for the child claiming them as their own. Sometimes one
of the spouses forcible took away the child to see the other spouse
agree to the terms of them. Section 26 of Hindu marriage act deals
with the custody of child, which runs as fallows

In any proceeding under this Act, the Court may, from time to time,
pass such interim orders and make such provisions in the decree as it
may deem just and proper with respect to the custody,
maintenance and eduction of minor children, consistently with their
wishes, wherever possible, and may, after the decree, upon
application by petition for the purpose, make from time to time, all
such orders and provisions with respect to the custody, maintenance
and eduction of such children as might have been made by such
decree or interim orders in case the proceeding for obtaining such
decree were still pending, and the Court, may also from time to time
revoke, suspend or vary any such orders and provisions previously
made. As per the said section it is always the welfare of the child is
paramount consideration. None of the parents have absolute rights
over child .As per section 6 of Hindu minority and guardian ship act
the natural guardian is father after him mother but if they didn’t
complete the age of 5 years the natural guardian is mother . The
Hon’ble Apex court in catena of decisions held the child is not the
property of parents and paramount consideration is the interest of
child.

Ruchi Majoo Vs Sanjeev Majoo reported in AIR 2011 SC 1952: The

Supreme Court has ruled that Indian courts have jurisdiction to deal
with the custodial disputes of minor children even if a foreign court
has passed an order in favour of either of the parents. A bench of
justices V S Sirpurkar and T S Thakur said in a judgement that simply
because a foreign court has taken a particular view on any aspect
concerning the welfare of the minor is not enough for the courts in
 28

this country to shut out an independent consideration of the matter.

Objectivity, and not abject surrender, is the mantra in such cases.
The apex court passed the judgement while upholding an appeal
filed by Ruchi Majoo challenging a Delhi High Court judgement that
Indian courts have no jurisdiction under the doctrine of "comity of
courts" to entertain any petition if a decree or order has already
been passed by any foreign court. The couple were living with the
kid in the US before she returned to India in 2008. A Delhi court had
on Ruchi's application granted her custody of the child under the
Guardians and Wards Act. The Delhi High Court had, however, struck
down the trial court's order and asked the couple to submit
themselves to the Californian court as all the three possessed US
citizenship. Aggrieved, the wife appealed in the apex court where
she accused her husband of being involved in pornography and
adulterous relationship. The husband, while denying the allegations,
maintained that Indian courts had no jurisdiction since a decree had
already been passed by the Californian court. Rejecting the
husband's arguments, the apex court said "recognition of decrees
and orders passed by foreign courts remains an eternal dilemma in
as much as whenever called upon to do so, courts in this country are
bound to determine the validity of such decrees and orders keeping
in view the provisions of Section 13 of the Code of Criminal
Procedure 1908 as amended by the Amendment Act of 1999and
2002.

In Syed Saleenmuddin v. Dr. Rukhsana and Ors, reported in 2001

(5) SCC 247 the Supreme Court dealing with a habeas corpus
seeking custody of minor children, inter alia, observed as under:"… it
is clear that in an application seeking a writ of Habeas Corpus for
custody of minor children the principal consideration for the Court is
to ascertain whether the custody of the children can be said to be
unlawful or illegal and whether the welfare of the children requires
that present custody should be changed and the children should be
left in care and custody of somebody else. The principle is well
 29

settled that in a matter of custody of a child the welfare of the child

is of paramount consideration of the Court."

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 were not totally
compromised in the process by passing a series of directions to
balance the conflicting interests:

1. The petitioner will execute a bond to this Court to produce the

children whenever ordered by this Court to do so.

2. An undertaking from the German Consulate Authority in Madras

that they will render all assistance possible for the implementation of
any order passed by this Court from time to time within the
framework of the German Law will be produced by the petitioner.

3. The petitioner will obtain and send a report from the Parish Priest
within the Parish in which they propose to live every three months to
this Court giving sufficient details about the children, their health and
welfare and send a copy thereof to the father.

4. The petitioner will inform the Registrar of this Court the address of
her residence from time to time and any change of address will be
immediately notified.
 30

5. She will not take the children outside West Germany without
obtaining the previous orders of this Court excepting when they are
brought to this country as directed in this order.

6. Once in three years, she must bring the children to this country for
a minimum period of one month at her own expense. At that time,
the father will have access to the children on terms and conditions
to be directed by this Court when the children have reached this
country. The three years' period will be determined from the date on
which the children are taken by the mother from this country. They
will be brought to India earlier as directed by the Court at the
instance of the father provided that it is not within a year from today,
if the father is willing to meet the expenses for the trip from Germany
to India and back for the mother and children.

7. The father, if he is visiting Germany, will be allowed access to the

children on terms and conditions as ordered by this Court on motion
by the father intimating his desire to go and see the children and
requesting for permission for access.

8. When the children are brought to India at the end of 3 years the
whole question of custody may be reviewed suo motu by this Court
or at the instance of the father or mother and the present order
maintained, modified, altered or cancelled."

If we go through the case law and judgments decided by the

Hon’ble Apex Court and High Courts in India , the custody was
given to mothers whether they have been residing in India or
abroad.

Different Government institutions, which protect the victims

of NRI marriages
THE NATIONAL COMMISSION FOR WOMEN (NCW)
THE MINISTRY OF WOMEN AND CHILD DEVEOPMENT (WCD)
THE PARLIAMENTARY STANDING COMMITTEE ON EXTERNAL AFFAIRS.
MINISTRY OF OVERSEAS INDIAN AFFAIRS( M.O.I.A)
 31

THE LAW COMMISSION OF INDIA.

End note
“prevention is better than cure”

Nature creates men and women(Husband and wife) as one, and

interdependent. The men emotionally depending upon the women,
women depending upon men for protection. All the happiness and
enjoyment in the life of men is depending up on women. It doesn’t
mean the women are week, when a person is emotionally strong
automatically when occasion arises they will became strong to
protect them. If we observe the society if wife passes husband will
remarry within a year under the guise of looking after him ,family or
children but it is not vise versa in case of death of husband. Now the
occasion arose women became independent and going ahead of
men in all aspects. The present set of laws and enactments
organisations are all curing of miss-tracked men, but we need
preventive steps. The parents are bringing their girl child with utmost
responsibility leaving their sons on streets it appearing like when bison
freely moving on the streets fencing the roses. It is better fence the
bison leaving rose free for which we have to bring up boys more
responsible than the bringing up the girls. Then we didn’t need
special laws for empowerment of women in all walks of life. We the
members of the society have to take preventive steps when the
government taking steps to cure the erred men. You may think the
relevancy of endnote with the subject of NRI marriages and child
issues. Most of the NRI’s who cheated and abandoned the wives
are well educated came from reputed families but we didn't find
any difference in respect of the social menace of dowry and
abandoning of wives in between educated and un educated
persons.
 No. 25016/17/2007-Legal Cell
Government of India
Ministry of Home Affairs,
IS Division-II:Legal Cell

New Delhi, dated the 11th Feb, 2009

To

The Home Secretaries of all States/UTs,

The DGPs amd IGPs of all States/UTs.

Sub : Comprehensive guidelines regarding service of summons/notices/

Judicial process on the persons residing abroad.

Sir,

Section 105 of Criminal Proceedure Code (Cr.P.C.) provides for

reciprocal armaments to be made by Central Government with the foreign
governments with regard to the service of summons / warrants/ judicial
processes. MHA has entered into Mutual Legal Assistance Treaty/
Arrangements with 25 countries. In respect of other countries, the Ministry
attempts to serve the judicial papers by giving an assurance of reciprocity.
However, despite this Ministry’s best efforts the summons and other judicial
process get delayed for various reasons.

With a view to streamlining the procedure, MHA has examined the

matter and comprehensive guidelines are enclosed covering various aspects of
service of the summons/ Notices/ Judicial process on persons residing abroad.

You are requested to kindly have these comprehensive guidelines

circulated amongst all courts/ all investigating officers under your jurisdiction for
strict compliance.

Yours faithfully,

Sd/-
(Amar Chand)
Under Secy. To the Govt. of India

Encl : As above.

Copy to :
i) M/o Law and Justice , Deptt. Of Legal Affairs, Shastri Bhawan, New
Delhi
ii) M/o External Affairs, CPV Division, Patiala House Annexe, Tilak Marg,
New Delhi.
iii) JS(PP), MHA, Lok Nayak Bhawan, Khan Market, New Delhi
iv) JD(Policy), CBI, North Block, New Delhi
v) Joint Director, IB, New Delhi.
 No. 25016/17/2007-Legal Cell
Government of India
Ministry of Home Affairs

Subject: Comprehensive guidelines referred to in Letter No. 25016/17/2007-

Legal Cell, dated ______ of Internal security Division, Ministry of
Home Affairs regarding service of summons/notices/judicial
process on persons residing abroad.
--

Section 105 of Criminal Procedure Code (CrPC) speaks of reciprocal

arrangements to be made by Central Government with the Foreign Governments
with regard to the service of summons/warrants/judicial processes. The Ministry
of Home Affairs has entered into Mutual Legal Assistance Treaty/Agreements
with 22 countries which provide for serving of documents. These countries are
Switzerland, Turkey, United Kingdom, Canada, Kazakhastan, United Arab
Emirates, Russia, Uzbekistan, Tajikistan, Ukraine, Mongolia, Thailand, France,
Bahrain, South Korea, United States of America, Singapore, South Africa,
Mauritius, Belarus, Spain and Kuwait. In other cases the ministry makes a
request on the basis of assurance of reciprocity to the concerned foreign
government through the mission / Embassy. The difference between the two
categories of the countries is that the country having MLAT has obligation to
consider serving the documents whereas the non-MLAT countries does not have
any obligation to consider such a request.

Summons/notices/judicial processes issued by the Indian Courts.

2. The summons/warrants/judicial processes received by MHA are

forwarded to the concerned Indian Missions/Embassies which in turn, takes up
the matter with the designated authority in that country. In case of MLAT
countries, the manner of communication is as laid down in MLAT and can be
either directly between MHA and the Central Authority or can be through the
diplomatic channel. The designated authority after considering the request
directs its agency to serve the document on the concerned person and the report
of the service, if any is also received through the same chain. This is broadly the
system in majority of the countries. However, in some countries private
companies/NGOs have also been entrusted with the service of judicial papers.

3. Based on the experience gained, some guidelines are given below which
may be followed while making a request to MHA for service of judicial processes.
It may, however, be noted that it is the discretion of the requested country to
serve the documents and any time frame for a positive response cannot be
predicted.
a) All requests for service of summons/notices/judicial processes on
persons residing abroad shall be addressed to the Under
Secretary(Legal), IS-II Division, Ministry of Home Affairs, 9th Floor,
Lok Nayak Bhawan, New Delhi- 110003. All requests shall be
forwarded through post only with a covering letter from the
Registrar/Court official giving the following information:
a) Material facts of the criminal matter including purpose of the
request and the nature of the assistance sought.
b) The offences alleged to have been committed, a copy of the
applicable laws and maximum penalties for these offence.
 c) Name, designation, telephone and fax number of the
person/officer who will be able to give any clarification, if
required.
d) The complete address of the issuing authority to which the
judicial papers/service reports may be returned.
e) Approval of the competent authority to bear any expenditure,
which they be charged by the foreign government/agency for
the service of the documents.
f) Degree of confidentiality required and the reasons therefore(in
case of confidentiality requirement).
g) Any time limit within which the request should be executed.
This will be subject to allowance of sufficient margin of time by
the requesting agency, as indicated in para 3(iv) of the
guidelines
b) MHA, on receipt of request, will examine it in view of the provisions of
treaty, if exists, with the requested country and as per the provision of
CrPC in case of non-treaty country.
c) India has a MLAT with Singapore and the Govt. of Singapore has
prescribed a proforma which shall be completely filled and sent
alongwith the request for service of judicial documents. The said
proforma is at Annexure – 1 to these guidelines.
d) MHA requires at least a period of 12 weeks times for service of such
notices in the concerned countries. It is, therefore imperative that a
date of hearing/appearance may be decided accordingly.
e) In the case of non English speaking countries, the notices should be
accompanied with the certified/authenticated translation(in duplicate)
in the official language of the country where the notice is proposed to
be served.
f) Name and address of the individual/organization should be complete
in all respect and PO BOX no. and Passport no. will not suffice as
address of the individual.
g) Ministry of Home Affairs responsibility to service the summons is only
in Criminal Matters. Hence, summons in Criminal matters only may
be sent to the Ministry for service abroad.
h) MHA does not undertake service of the non-bailable warrants of arrest.
The service of non-bailable arrest warrents amounts to the extradition
of the individual. The request for extradition are based on certain legal
procedures contained in applicable treaties negotiated on the basis of
the International Principle of Extradition. Such requests are to be
forwarded to the Ministry of External Affairs, CPV Division, Patiala
House Annexe, Tilak Marg, New Delhi – 110001.
(A) SUMMONS ISSUED BY THE FOREIGN COURTS/AUTHORITIES:-

4. The summons issued by the Foreign Courts/Authorities and received in

MHA will be served by the State Police through CBI-Interpol. However,
Indian Mission/MEA while forwarded such requests to MHA will ensure
that:-
a) The summon is followed with a translated copy in the Indian language.
b) A reasonable time say 10 weeks is allowed after the summons are
received in the Ministry of Home Affairs.
c) An Assurance of Reciprocity(AOR) is followed from the countries
which insist for the same in respect of Indian Summons.
 Annexure-1

[Form for requests from prescribed foreign countries to Singapore for Assistance]
TO: The Central Authority in the Republic of Singapore
FROM: The Central Authority in India -Ministry of Home Affairs

REQUESTS FOR MUTUAL LEGAL ASSISTANCE

IN A CRIMINAL MATTER

Certificate on behalf of
The Central Authority in India- Ministry of Home Affairs
I, [name, appointment /position of person certifying] on behalf of the
Central Authority in India, Ministry of Home Affairs, who is responsible for [state
area of responsibility e.g. criminal prosecutions, investigations] in the
[requesting party] and who is also authorized to make requests for mutual legal
assistance in criminal matters ( in the Ministry of Home Affairs – India) certify
that the Ministry of Home Affairs- India respectfully requests the assistance of
the Government of the Republic of Singapore in a [Criminal matters].

REQUEST

This request is made pursuant to the Agreement between the Govt. of

Republic of Singapore and the Govt. of India agreed on 29th June 2005
(hereinafter “ The Agreement”) concerning Mutual Legal Assistance in Criminal
matters.

NATURE OF REQUEST

This request relates to the [describe subject of criminal matter e.g. service
of summons/Notices/judicial processes issued by the Hon’ble Court _________
In Case number____ u/s ____). The authority having the conduct of the
criminal matter is [describe authority concerned with the criminal matter]

CRIMINAL OFFENCES / APPLICABLE LEGISLATION/PENALTIES

[Set out the offences alleged to have been contravened in relation to the criminal
matter as well as maximum penalties for these offences and attached copies of
applicable legislative provisions. State identity of suspect/ accused person if
known) e.g.

Offence u/s _________ of the Indian Penal Code/ Cr.PC (define the section)

Section _______ “______________”

“Quote”

1State whether it is an investigation, prosecution or an ancilliary criminal matter.

Criminal matter is defined in section 2 of Singapore Mutual Assistance in
Criminal Matters Act (Cap 1904). An electronic version of this is available at
http://statutes.age.gov.sg/

STATEMENT OF FACTS
[DEScribe the material facts of the criminal matter including in particular, those
necessary to establish circumstances connected to evidence sought in the
Requesting Party and the relevance of Singapore evidence to the criminal matter
in the Requesting Party. Such other information as is required where the
requests relates to particular heads of assistance (e.g. location of persons,
enforcement of confiscation order) should also be stated) e.g.

PURPOSE OF REQUEST

By this request it is intended to [state purpose which is intended to be achieved

by the assistance sought to secure admissible evidence to be used in the trial of
____] e.g. serve a summon issued by the Hon’ble Court ______ in case no.
_______ u/s ________ of the Indian Penal Code/ Cr.PC and to secure the
presence of the accused before the said court on ________(date and time)

MANDATORY ASSURANCE & UNDER TAKINGS

It is confirmed that this request:

(a) does to the prosecution or punishments of a person for a criminal
offence that is , or is by reason of the circumstances in which it
alleged to have been committed or was committed, an offence of a
political character.
(b) is not made for the purpose of the prosecuting punishment or
otherwise causing prejudice to the person on account of that
persons race, religion, nationality or political opinions.
(c) does not relates to the prosecution of a person for an offence in a
case where the person has been convicted, acquitted or pardoned
by a competent court or by other authority [Requesting party] i.e.
of the Governement of India in respect of that offence or of another
offence consitituted by the same act or omission as that offence.
The Central Authority in [Requesting Party] i.e. India – Ministry of Home Affairs
further undertakes that:
(a) that any of the evidence / thing obtained pursuant to this request will
only be used for the purpose of the request in connection with [State
particulars of criminal matters]; and e.g. Case No. ______ u/s
_______ of the Indian Penal Code /CrPC; and
(b) that should the Hon’ble Attorney General of the Republic of Singapore
required the return of any evidence / thing obtained pursuant to this
request, at the conclusion of [state particulars of criminal matters] for
e.g. case no. ________ and of all consequential appeals, the
evidence/ thing will be returned to the Honorable Attorney General of
the Republic of Singapore.

ASSISTANCE REQUESTED

The Government of Republic of Singapore is requested to take such steps as are

necessary to give effect to the following:
[describe particular type of assistance required] e.g.

To serve the summons issued by the Hon’ble Court of _______ in Case No.
________ u/s _____________ of the Indian Penal Code/ Cr.PC on the
accused Mr. _________ r/o _________.
EXECUTION OF REQUEST

Confidentiality

[State confidentiality requirements of the Requesting Party, if any] e.g.

There is no requirement of confidentiality in this matter.

Procedure to be followed

It is requested that the following procedures be observed in the execution of the

request

• [State details of manner and form2 in which evidence is to be taken and

transmitted to the requesting party, if relevant]
• [State any special requirements as to certification/ authentication of
documents]
• [State if attendance by representative of the requesting party at
examination of witnesses/ execution of request is required and, if so, the
title of the post held by the proposed representative.
e.g.

The summon along with the copy of the complaint filed in the court may
be served upon __________ and his signature on the duplicate copy of the
summon may be taken as token of acknowledgment and forwarded to the
Ministry of Home Affairs, Government of India, through diplomatic channel.

Period of Execution

It is requested that the request be executed within [ State period giving

reasons i.e. specify likely trial or hearing dates or any other dates/ reasons
relevant to execution of requests] E.g. at least 10 days before i.e. (date)
_______, which is the next date of hearing in the Court of ___________

Signed by : ____________
Name /Designation :
Office :
Date :

_______
2please provide proforma or form of words as appropriate
 Annex B

SAMPLE NOTICE TO PERSON SERVED UNDER ARTICLE 14

TO
[State name and address of person to be served] e.g.
Mr. R Ravindran
93, Loyang View
Singapore 507188

The Central Authority in India – Ministry of Home Affairs [Requesting State] has
made a request pursuant to the Agrement between the Government of Republic
of Singapore (Requested State) and the Government of India (Requesting State)
concerning Mutual Legal Assistance in Criminal Matters for the service of the
attached process:

[describe process and documents, if any to be served] e.g.

Viz: to serve summons issued by the Ld. Additional Chief Metropolitan

Magistrate, 47th Court, Esplanade, Mumbai in CC No.4700982/SS/2007 u/s 500
of the Indian Penal Code.

Please note that by serving the process on behalf of the Central Authority in India
– Ministry of Home Affairs [Requesting State], the Government of Republic of
Singapore [Requested State] takes no position with respect to the merits of any
proceedings in the Additional Chief Metropolitan Magistrate, 47th Court,
Esplanade, Mumbai in CC No. 4700982/SS/2007 u/s 500 of the Indian Penal
Code in the [Requesting State].

Please review the attached process carefully for instruction and deadlines. If you
have any questions about them you may wish to consult a lawyer. You may also
contact [[the representative of the Requesting State] directly at [ Phone number
or other contact details] e.g. Mr. Jayant L Phoujdar, Advocate, Mumbai High
Court directly at 022-66377902, 79037904.

However, if the process is a process other than a summons to appear as a witness

under the law of the India [Requesting State], please note that [ to be advised by
the Requesting State of other possible consequences, if any under its law if the
person refuses or fails t accepts service or fails to comply with the terms of service
of process]. E.g. warrant of arrest will be issued by the Additional Chief
Metropolitan Magistrate, 47th Court, Esplanade , Mumbai, if the person refuses or
fails to accept service or fails to comply with the terms of service of process.

(________________)
Central Authority of India – Ministry of Home Affairs.
Date: