From Amritsar to La via London- NRI divorces growing, fake marriages performed
Provisions of the Hindu Marriage Act, as applicable to NRIs, have become very important

Chandigarh, OCTOBER 17, 2004
RANJIT MALHOTRA
Chandigarh lawyer
specialising in immigration.
The Economic Tmes

In view of the growing number of divorces that NRI brides are facing, the legal position in India as to the registration of marriages and recognition of divorce under the provisions of the Hindu Marriage Act, as applicable to the non-resident Indians staying abroad, have become very important. There are a large number of queries in these areas of law by solicitors in the UK, attorneys in USA and foreign lawyers from different parts of the globe.

Visa officers have full information about the state of origin of the applicants. They are quite updated on issues like land value, monies earned from cultivation per acre and Indian customs. In Hindu marriage cases, for instance, they view the Saptapadi photographs very carefully. Saptapadi is the taking of seven steps by the bridegroom and the bride jointly before the sacred fire.

This is because in certain parts of Punjab, fake marriages are performed with all pomp and show without the religious ceremonies actually taking place at all. A typical case is where the British Asian bride is from the Midlands being married to a boy from the state of Punjab. And the parents being wary of the outcome of the spouse application, insist on such a contingent arrangement.

In such a situation, a fake marriage certificate is submitted to the immigration authorities. Dubious travel agents and unqualified local consultants thrive on this non-resident clientele.

Under the Hindu Marriage Act (HMA), the principal law governing Hindu marriages, registration of marriages is not compulsory. This is primarily because Hindu marriages and most marriages in India have been always performed in public with wide publicity. Any state government may make rules for the compulsory registration of Hindu marriages.

However, failure to register a Hindu marriage does not affect its validity. Even where compulsory registration of marriage is laid down under the rules, non-registration does not affect the validity of the marriage but merely entails a nominal fine. Moreover, mere registration of a marriage under will not make the marriage valid

In light of the prevailing law in India, registration of marriages in this region by non-resident Indians is only undertaken to satisfy the immigration authorities. It is not very difficult to obtain fake marriage certificates in the above mentioned areas of Punjab. Such malpractices have a direct bearing on genuine applicants. Even their documentation and circumstances leading to the marriage are viewed cautiously.

The savings clause, under the HMA, is very important as it gives statutory recognition to customary marriages and divorces. It concerns a certain category of Indian immigrants, who have migrated abroad from parts of rural India and have subsequently remarried after divorcing their Indian wives by pleading customary divorce.

Before permanent settlement can be obtained by the Indian immigrant, who has subsequently remarried a girl of foreign origin and extraction, the immigration authorities want to be satisfied about the legal validity of the customary divorce obtained in India.

The HMA gives statutory recognition to customary divorce. But the party relying on a custom needs to prove the existence of such a custom. Experience suggests, that where the immigration authorities doubt the validity of customary marriages and divorces, it is best advisable to commission a private field trip report in India by visiting the village of the applicant or the sponsor or both of them, depending upon the facts and circumstances of the case.

This is with a view to interview ten to 12 elderly mature people from different walks of life, as to how the customary marriage was solemnised or the customary divorce granted and the community practice in such situations. People do not even mind giving affidavits in this regard. Such first hand responses also demonstrate the validity and practice of the custom.

Thus, after the preparation of the field trip report, the validity of such a marriage or divorce, as the case may be, can be supported by a legal opinion under the provisions of Indian law. If the report is well prepared and substantiated by photographs of the interviewees and possible available documentation, the embassy authorities then find it hard to confront the meticulous paper work supported by a legal opinion of an Indian lawyer.
Obviously, it remains the discretion and the prerogative of the embassy authorities to accept or counter such a report. Such line of attack is of immense importance to border line applicants. If the applicant’s case is genuine, the defence of the embassy authorities is drastically diminished. In such a situation, the embassy authorities may opt not to commission their own independent report, and end up accepting the privately commissioned report on behalf of the applicant.

Field trips by embassies

It is not uncommon for immigration authorities of the major embassies to send their staff to verify the genuineness of marriage certificates where doubts arise in their minds. Most of them do not use the services of any outside agency for this purpose.

Some of the Schengen member states employ a panel of reputable lawyers and investigators to verify the documentation and credentials of the applicants in settlement cases. This will involve a surprise visit to the applicant’s village or the place of habitual residence.

However, the American Embassy at New Delhi does not at all outsource investigations into the claims of the applicants. It is common for them to send their immigration officer accompanied by an interpreter to make the necessary enquiries at the village level. Likewise, the Canadian High Commission also does not outsource verification of claims of the applicants.

Evidence of income: Since Punjab is an agricultural state, most of the migrants have an agricultural background. For a Punjabi landlord, size of the land holding is a matter of family pride. A certain category of people, whom the immigration authorities view as potential immigrants, find it very difficult to prove their agricultural income. This is because all agricultural transactions are in cash.

Enquiry process & delay: The enquiry process in certain cases by the immigration authorities leads to substantial delay in deciding the outcome of the application. This is the case when there arise certain doubts in the mind of the ECO during the course of the interview. In certain situations, it can be quite frustrating for the applicant when the matter is referred to the Home Office in London or the BCIS in the USA.

Prime suspects: Young single men from rural backgrounds from Punjab stand very little chance of securing entry clearance to enter Great Britain, America and other major jurisdictions. They are the prime suspect category of potential immigrants.

The much publicised Malta Greek tragedy is a reminder of human trafficking. Despite this mammoth tragedy, there is no let up in the takers for the parallel underground immigration system.