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 applicants
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 applicants 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.