March 9th, 2008 
krishna There are real life encounters which defy legislative solutions. The huge Indian diaspora in 130 countries abroad, today exports from their foreign homes unique family law problems in the Indian domain which do not find ready answers in existing Indian matrimonial legislation. Hence, judicial innovation to carve out individual relief in distinct NRI family disputes is necessitated on a case-to-case basis. But these are not consistent statutory remedies.
In a unique recent decision of the Delhi High Court, the order of the matrimonial court in the wife’s divorce petition in India, granting her monthly maintenance of Rs 11 lakh besides awarding her Rs 1lakh in litigation expenses to be paid by the NRI husband living in the US, was set aside on two grounds. Firstly; the husband was denied opportunity to contest proceedings in India and secondly; because the matrimonial court had treated the income of the husband in USA as the measure to grant monthly maintenance to the wife who was living in India.
According to the High Court, for payment of maintenance to a wife in India by a husband living abroad and earning in foreign currency; the quantum of maintenance has to be considered in accordance with standards, cost of living and other related factors in India to work out loss of dependence.
However, in an earlier decision of the Delhi High Court, in the case of an abandoned Indian wife, the husband living in the US was directed to pay 1,000 US dollars per month besides litigation expenses of 5,000 US dollars to the wife as per the formula of one third of the salary of the husband in US which was payable to the wife. The Court took serious note that abandoned wives dumped by spouses living in foreign countries are not immune from compliance with orders passed by Indian Courts under the Hindu Marriage Act.
The logic and reasoning in the latter judgment is undoubtedly appealing. If the dependent Indian spouse is dumped on Indian soil, she has every right to be maintained in accordance with the living standards and income of her spouse living abroad. If she is unjustifiably denied rights of cohabitation by her spouse of abroad, she must be compensated in measure of the currency in which he earns and spends and not as per the currency of the country in which she is forcibly abandoned to live. Why should the NRI spouse be given advantage of his own wrong by not making him pay in the foreign currency in which he earns?
This plight of abandoned NRI spouses now needs a statutory crutch. Classified columns in local newspapers are full of court notices against erring NRI spouses living abroad facing petitions for divorce, applications for’ maintenance, complaints of matrimonial cruelty or criminal proceedings to declare a spouse a proclaimed matrimonial offender. What purpose do they serve and can they secure service of the erring spouses? Are the provisions of law requiring publication of court notices in the locality of the last local residence of the person of any use? Sitting in a foreign country, would such a spouse have any idea of this matrimonial litigation through such local public notices?
Seeing the alarming number of cross border matrimonial conflicts, it now time for the legislature to enact a wholesome family law code to provide statutory solutions with consistent answers to limping marriages solemnized in India and dissolved abroad.
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