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--------------- Print Magazine --------------
 
  May 2016
 
  April 2016
 
 
 
 
Legal Article

LIMPING MARRIAGES

REMEDIES AND SOLUTIONS FOR PUNJAB

Anil Malhotra, Advocate*

The Problem

Marriages on crutches need aid and attention. They limp and need intensive care treatment. Personal family law enactments prevalent today lack effective solutions. The problems are further compounded in NRI marriages in which parties import foreign matrimonial laws to unions solemnised domestically in India. An optional marriage registration law in India led the Supreme Court to pass orders on 14 th February, 2006 and 25 th October, 2007, making it mandatory that marriages of all persons who are citizens of India belonging to various religions should be compulsorily registerable in their respective States where the marriage is solemnised. Sadly, the State of Punjab, as of date has no compulsory registration of marriages prescribed under any enactment or rules made by Punjab. Moreover, compulsory registration of NRI marriages is urgently required to ensure that brides and grooms from the State of Punjab have proof and evidence of their marriage to prevent matrimonial frauds being practised commonly in this jurisdiction. Punjab has the discredit of about 30,000 abandoned "nowhere" brides with no succour or legal remedy. The Punjab State Commission for NRIs in a decision of 11 th July, 2012 recognises this daily phenomenon of fraudulent marriages with overseas Indians leading to cruelty and harassment suggesting that the menace need to be curbed with stern hands. The possible answers lie in a compulsory marriage registration law, setting up of Family Courts in the State of Punjab to deal with all aspects of disputes arising out of a matrimonial relationship and for meaningful amendments to give teeth to the Punjab State Commission for NRIs Act, 2011.

Punjab Compulsory Marriage Registration Law

Essentially, Punjab needs an enactment to provide for compulsory registration of marriages, solemnised or performed in Punjab, irrespective of religion, caste, creed or nationality. This mandate flows from the direction of the Apex Court as also the dire need within Punjab to document the occurrence of marriages. Accordingly, it should be made essential that every marriage between Indian nationals, NRIs or foreign nationals solemnised or performed in Punjab, regardless of status of parties, be compulsorily registered. Additionally, where both or either parties are NRIs or foreign nationals, it should be made mandatory to disclose passport particulars, foreign residence details, and social security number or other identification proof issued by the foreign country where such NRI or foreign national permanently resides. Parties married outside Punjab, but who are residents of Punjab, may also get marriages registered under this proposed law. However, if the marriage already stands registered outside Punjab or under any other law applicable to parties, no necessity be provided for additional registration. This law of proposed compulsory registration may give liberty to decline registration if the marriage between the parties is not solemnised or performed in accordance with the personal or other law of marriage applicable to the parties. Hence, there would be no conflict with The Anand Marriage Act, as parties could opt and choose the law of registration of marriages. A register of marriages would record all essential details and the certificate of marriage would further transmit all such information leading to no abandoned spouse without a remedy of knowledge or details of the other partner residing in a foreign jurisdiction.

Creation of Family Courts in Punjab

The Family Courts Act, 1984 which provides for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of disputes relating to marriage and family affairs is the appropriate forum where such matrimonial matters ought to be decided. The Act leaves it open to the respective State Governments to provide for Family Courts. The State of Punjab essentially needs Family Courts to provide fast-track, effective, meaningful and quick relief for abandoned spouses, deserted children and for resolving other disputes arising out of a matrimonial relationship. Under section 3, the Family Courts are required to be constituted by the State Government in consultation with the High Court. It is thus proposed that the Family Courts should be set up in every district in the State of Punjab so that all matrimonial disputes, particularly of NRIs, get effective, speedy and meaningful adjudication. As of now, the District Judge or his nominee under the Hindu Marriage Act (HMA) entertains and adjudicates all matrimonial cases in their respective jurisdictions. Even though the HMA contemplates day-to-day trial of matrimonial petitions and conclusion within six months, the statutory mandate remains an optical illusion being an impossibility. This deters NRIs from starting any matrimonial cause in Punjab. Hence, constitution of the Family Courts could prove to be a boon. Exclusively deciding matrimonial cases with conciliation, mediation and settlement procedures would put such matters in a better adjudicatory fast track mode for effective relief. Thus, every district in the State of Punjab particularly in the NRI segment would greatly benefit from it and abandoned spouses will have a expeditious relief giving Forum to plead their grievances, in person, if so desired.

Amendment of NRI Commission Act

The Government of Punjab enacted the Punjab State Commission for Non-resident Indians Act, 2011 (Punjab NRI Act) as an Act to provide for the constitution of a Commission for NRIs with a view to protecting and safeguarding the interests of NRIs in the State of Punjab and to recommend remedial measures for their welfare. The NRI Commission is fully functional, taking up matters with efficiency and performing excellently. However, the powers of the NRI Commission are stunted as it has been created prematurely without full powers. The NRI Commission can order or conduct an enquiry or investigation on a complaint with respect to NRIs but the Punjab NRI Act stops short. It leads nowhere. The NRI Commission cannot pronounce a decision or give any judgment because the Punjab NRI Act does not contain any provision by which it is empowered to do so. Hence, the exercise is in futility as the NRI Commission has no teeth. Therefore, it is recommended that the Punjab NRI Act should be amended with the following powers to be exercised after an enquiry or an investigation is conducted by the NRI Commission: -

  • where the inquiry discloses the commission or violation of rights of any law concerning parties of a serious nature, it may recommend to the Government or authority, the initiation of proceedings or prosecution of such action as the Commission may deem fit against the concerned person or persons;
  • approach the Civil, Criminal or High Court concerned for such directions, orders or writs as the Court may deem necessary in the facts of the case;
  • recommend to the Government or authority for the grant of such interim relief to the victim or the members of his/her family as the Commission may deem necessary.

Unless and until the powers of enquiry and investigation of the NRI Commission is given the further statutory authority to take the matter to a logical end, the existence of the NRI Commission will remain an exercise in futility. Upon such empowerment, the NRI Commission will get statutory teeth to enforce their orders. Resultantly, beleaguered NRI spouses in distress can see their cases to a logical end only upon a legal remedy resulting from their complaint. NRI family disputes will no longer remain at sea.

Summing up

The State of Punjab which constitutes the maximum number of NRIs to the 30 million NRI population living in 180 countries abroad owes a moral duty to its brethren to give to them their due. It is a crying need that there should be redressal of family law problems in a proper legal framework. Rhetoric, empty promises, platitudes and non-remedial forums will not serve the purpose. The Government must act and perform. Punjabi NRIs have hope, faith and expectations. These additions and amendments for meaningful remedies of matrimonial problems must be met with without delay. At the same time, law must provide answers so that the NRI does not take recourse to foreign laws which defeats the very purpose and meaning of our domestic laws. The need of the day is to change for the better and to make amendments required for all.

 
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