Conflicts of law in matrimony

In India, conjugal right is inherent in the institution of marriage and it is not a creation of statute.
But in cases where foreign element, i.e. Private International Law, is involved, then for the
purpose of resolution of Conflict of laws there is no specific and cogent legislation in India with
regards to NRI marriages.

Problems of NRI Marriages

There are some typical issues that arise in NRI marriages.

 Abandonment of women by her husband after being taken to the foreign country.
 Brutal assault, battering and abuse of women, both mentally and physically, by the
husband and his family members.
 Capturing and holding of the women in the foreign nation for the sake of huge sum of
money as dowry.
 Giving false information relating to the job, salary and property to the family members of
the women before marriage, and later conning the women into marriage.
 Hiding of the status of pre-existing marriage by the husband.
 Husband who has obtained divorce from women through an ex-parte decree by making
false representations without her knowledge in other legal systems.
 Women encountering jurisdictional obstacles in Indian Courts due to unavailability of
cogent legislation in this regard.

In order to deal with the foreign decrees of matrimonial matters, there is a need of well-
developed Private International Law body that has the power of recognition, reorganization and
solemnization of marriages along with checking the legitimacy of a foreign decree of divorce. In
India, there are various legislation to implement rules of private international law.

The Foreign Marriage Act of 1969

The provisions of this act are additional provisions and do not have overriding effect over the
existing laws which means that it is depended upon the discretion of the person who is marrying
a foreigner or is marrying in a foreign nation, to decide whether they want their marriage to be
solemnized under this Act or not.
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This Act can be said to be an incomplete Act as it deals with solemnization of marriage, process
of solemnization and the registration of marriage.

By virtue of Section 19, 20 and 21 of the Act, it is evident that the punishments and penalties,
prescribed under the Act applies only to the Indian party of such foreign marriages So, in such
cases, the foreign party will easily evade the punishment and only the Indian party will be
subjected to the penal provisions of this act.

The use of word ‘may’ in Section 4 and 17 makes this Act an enabling legislation. This act does
not contain provision that make the solemnization and registration of marriage, a compulsion. In
order to make it a compulsion, the act should have contained the word ‘shall’ or ‘must’ in the
place of ‘may’.

Indian Courts have to face in the absence of a cogent legislation with regard to NRI marriages,
there is an urgent need of the Parliament to take cognizance of the matter and enact a legislation
pertaining to it.