Come January, our overseas non-resident Indian (NRI) brethren descend on Indian soil to reconnect with their roots. On January 7, the government is set to host the annual jamboree, Pravasi Bhartiya Divas (PBD). This is an annual ritual to appease NRI sentiments, and stoke patriotic fervour with sops, subsidies and entertainment.
Each year, NRIs also use the occasion to make demands on the government, seeking effective, expeditious and timely resolution of the problems they face in India. Having become accustomed to practical Dispute Resolution Systems abroad, the NRIs hope that there will be parallel structures in India, and baffled Indian authorities routinely offer instant, out-of-the-box remedies to save face. What we have, as a result, is quite a mess.
Just to cite some examples: A distraught husband from Patiala settled in Australia litigates for divorce; his Tamil wife settled in Hong Kong petitions courts for maintenance and child custody; a separated US Green Card holder husband relocated to Mumbai sues for divorce, while the US-based wife from Varanasi seeks child support and benefits, sitting in the USA; a separated NRI couple in UK seeks the intervention of the British courts to settle terms for their children to visit India with their mother and to ensure their return to UK; a divorced NRI husband in USA seeks child custody from the mother, who has resettled in Hyderabad; a harried British-Asian Muslim husband in the UK seeks to dissolve Nikahnama contracted in Lucknow; an embittered Swiss father of Punjabi origin seeks quick dissolution of marriage solemnized in New Delhi; a traumatized Indian doctor in UK seeks return of children removed to Gujarat by the wife, who has launched proceedings under Domestic Violence Act in Satara. This is a list of real-life situations, and many of these defy easy resolution.
The huge Indian diaspora, nearing 30 million in 130 countries, pose problems that are quite unique in family law. There are no ready answers to the problems in existing Indian matrimonial legislation. Hence, judicial innovation to carve out relief in distinct NRI family disputes is necessitated; and this has to be done on a case-to-case basis. These, however, are not consistent, statutory remedies.
Recent media reports reflect a new pitch and euphoria, and the hope that answers will be generated overnight to NRI problems is huge. The creation of an NRI Commission, the constitution of NRI cells, designated authorities for NRI problems and special NRI committees are all being mulled over. However, all such administrative measures appear to yield nothing, and the problems resurface, with each passing year.
As nothing emerges on the ground, matters are complicated, and the problems are compounded.
There are multi-faceted problems that NRIs face, especially in the realm of validation and dissolution of marriages, enforcement of divorce decrees, maintenance obligations, matrimonial property regime, child custody/abduction, inter-country adoptions, testate/intestate succession, tenancy of property, land ownership, property investments and, most recently, surrogacy issues.
NRIs seek resolution of their problems from an Indian legal system not designed and created for resolving their new-age issues. Times have changed, but statutory Indian laws have not kept pace. Most NRI problems do not even find definition or recognition in Indian laws. Our legislators have weightier issues to deal with, and these concerns do not find much time.
It is when one keeps these considerations in mind that one realizes that creating NRI cells, commissions, committees or other bodies will not help. No such authority, without statutory powers, will have any credibility in the framework of the existing legal system. Parallel set-ups without statutory sanction are redundant. Such administrative bodies will, at best, be recommendatory; their decisions will need judicial sanction. The aggrieved NRI or affected party will still need to invoke powers of a court of competent jurisdiction for actual relief.
The government thus needs to seriously enact new laws or amend existing ones to define the NRI problem and prescribe solutions. One such notable example is found under Section 13 of The East Punjab Urban Rent Restriction Act, 1949. Its amendment in 2001, created a special class of NRI landlords who had a special right to recover immediate possession from tenants occupying their premises by a special summary procedure.
In the family law arena, limping NRI marriages, abandoned spouses, abducted children, overseas adoption and surrogate relationships need statutory solutions. Family laws for NRIs need exhaustive overhaul. There are two ways to deal with the changes needed in family law - either all family law legislation could be amended, or one single comprehensive Indian law could be enacted for all family-related legal problems that NRIs face.
A similar situation prevails in the field of property laws too. Tenancy, succession, registration, investment and transfer of ownership of property form a bulk of NRI problems. Here again, scattered and outdated legislation serves no purpose. Thus, there is again dire need for multiple amendments or for enacting a new NRI property law dealing with the problems of NRIs comprehensively. All the special legislative overhaul measures are likely to fail if the legal system does not create or empower special courts to deal with these issues.
More responsive machinery must be put in place, with proper rules, under the newly enacted or amended NRI laws. The time has come for change. The answer lies not in creating cells, commissions and other toothless administrative bodies. Only enacting appropriate NRI laws and making the corresponding procedural rules to implement them, so that authority is vested with competent courts that can adjudicate NRI disputes will provide an effective remedy.
This must be done on an all-India basis. Piecemeal state-level legislation will not suffice. Above all, we need sincerity, commitment and resolve to enact or amend laws for NRIs. The political system must respond to these needs, as they are issues that cannot wait; they try the patience of many who are used to more effective redressal of grievances in other parts of the world.
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BY ANIL MALHOTRA (COURTESY:DAILY POST, NOV.24.,2011),
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