• Indian - EU couple marriage/divorce conditions

Hi , I'd like the advice for the following case: 
He's Indian ( Hindu) from Karnataka - NRI status (non resident Indian), she is Romanian (country part of EU -European Union) - (Christian). They are unmarried and have a child together. The child is born in Romania, recognised in Romania by his father (on the Birth Certificate and in front of Romanian Authorities). The father has Romanian Resident Card (through the child) and declared residence at the Romanian girlfriend 's address. The child and his mother have Romanian passport only (no other countries resident cards)

If they get married and then they have a divorce, what is the difference for the following marriage situations, what are the advantages and disadvantages for each of them? Who is more likely to obtain the child's custody in each of the following cases ? What jurisdiction will be applied? Where will the judgement will take place, in India or in Romania? Let' s say she files for a divorce in Romanian court, could the trial be moved in India? On what grounds, in what conditions?

1st case: They get married in Romania.

2nd: They get married in Romania and register their marriage in India. Is this case possible? Does the Romanian marriage is compatible with the Indian laws in the order to be registered ? I know India doesn't accept to register the Marriage Certificate of some countries.

3rd: They get married in India. 3rd A case: they divorce in the 1st 2 years of marriage. 3rd B case: they divorce after 2 years of marriage.

4th: They don't get married and he applies (with the mother's agreement) for the child's PIO/OCI card ( = person of Indian origin/ overseas citizen of India). If they aren't married but decide to separate, can he or she fight into the court to obtain the child's custody? If yes, which jurisdiction will apply, the Romanian or the Indian one?

Who is more likely to obtain the child's custody in each of the cases above? 

Thank you.
Asked 4 years ago in Family Law
Religion: Hindu

8 answers received in 1 day.

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13 Answers

If they get married in Romania divorce , child custody would be governed by laws of Romania

2) they can register marriage with Indian Embassy or consulate in Romania under provisions of foreign marraiages act . In such case you can file for divorce , child custody in India

3) if the marry in India they would be governed by provisions of special marriages act

4) if thy don’t marry and have live in relationship in Romania they would be governed by laws of Romania for child custody

5) generally custody of minor child is awarded to mother . Welfare of child is paramount consideration

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

1. Either of them apply for divorce under the local Romanian law.

2. If they marry as per Hindu rites then only the marriage can be subsequently registered in India under HMA. However marriage as per local Romanian customs is not valid for registration in India unless they registered marriage afresh in India under Special Marriage Act.

3. There is no difference.

4. PIO can not be obtained without the valid marriage between the couple. The mother can nevertheless apply for custody in Romania and her right for custody is expected to be preferred. Since the child is born in Romania and is being brought up therein only the law as prevalent in Romania would be preferred unless the child started residing in India only for some time with no plan to go back to Romania anymore.

The person having hysical csotdy of the chid is given more preference.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

The answers are:

1.You may get marry any where in the world and this have no ristriction.

2. The marriage can be registered in India under special marriage act to safeguard the interest of wife in India. Your registration will be based on Romanian certificate issued for marriage.

3. For marriage registered in India have a cooling period restrictions of one year duration and then can go for divorce petition after 6 months of separation included in cooling period.

4. Any child born to an Indian national weather legitimate or illegitimate have all the rights as the legitimate child and wife if not married to will be deprive off rights of wife. If not married the custody likely if contested and proved that the child is of the man and if he is more than 5 years of age will go to the man. He can obtain the PIO/OCI card for the boy but not for himself on the basis of this till his status is not of permanent residency. Normally the juridiction of Romania will apply but in cases persued in India juridiction of Indian courts be looked in.

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

1. Then child custody and divorce are governed by the romanian law and they have file under jurisdiction of Romania.

2. They can register under Foreigners marriage act in India. And then there divorce and custody of child can be governed by Foreigners Marriage act India and india shall have jurisdiction for this they can register in the embassy itself they donot need to travel india.

3. In India they have to marry under Special Marriage Act,and the act itself contains the provision of divorce and custody and they will be governed by same.

4. Romania Jurisdiction will apply.

Mother can more likely get custody as looking at tender age of child and welfare but the fact of each case are different cannot say it depends upon situation but the custody has to be decided looking at welfare of child.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Hi, as per Indian law the child custody of an infant child is likely to stay with mother ..2) if they get married in India under special marriage act , they can file any legal proceedings , here in INDIA also ..

Hemant Chaudhary
Advocate, Gurgaon
4619 Answers
67 Consultations

4.9 on 5.0

1. If they register their marriage in Romania as per the act of Romania then subsequent cases in connection with the said marriage will be decided at Romania by the Court of Romania. however, if she is converted to Hinduism and a religious marriage also takes place at the appropriate of Hindu temple in Romania or at house at Romania before guests, then they can get their said religious marriage registered as per Hindu Marriage Act before the appropriate officer of Indian Consulate and in that case they shall have to file the related cases in India. Even without performing any conversion and religious marriage, they can conduct registry marriage as per special Marriage Act before the said Indian Consulate and in those cases also any related disputed will be heard by Indian courts.

2. By saying " They get married in Romania and register their marriage in India", are you saying that they will first get married as per Hindu Religion in Romania and then get their marriage registered in India as per Hindu Marriage Act or Special Marriage Act? If yes, then Indian Court will have jurisdiction to try their marriage related disputes. If they marry in Romania in church as per Christian religion after he getting converted to Christianity, then the concerned Church will issue the marriage certificate and in that case the related disputes shall be tried by Romanian Court.

3A. & 3B. If both of them get married in India and/or register their marriage in India then they will be eligible to file divorce suit only after completion of one year of marriage.

4. The child may be OCI but she is a Romanian citizen. So, the Romanian court will decide about the custody of the child as per Romanian law.

Krishna Kishore Ganguly
Advocate, Kolkata
26603 Answers
726 Consultations

5.0 on 5.0

If they get married and then they have a divorce, what is the difference for the following marriage situations, what are the advantages and disadvantages for each of them? Who is more likely to obtain the child's custody in each of the following cases ? What jurisdiction will be applied? Where will the judgement will take place, in India or in Romania? Let' s say she files for a divorce in Romanian court, could the trial be moved in India? On what grounds, in what conditions?

The guy is a NRI and not an Indian citizen. The lady is a foreigner. Their child born in Romania is a Romanian citizen. The father of the child is also a Romanian citizen now.

Since the father of the child and the mother of the child are both Romanian citizen, there is no reason that their marriage can be registered in India even under the Foreign marriage act or special marriage act.

Well, if they shift their residence to India, then they may try for registering their marriage, provided the rules permit.

However their child custody case or divorce case shall be tirable under the provisions of Romanian laws, since there is no cause of action happened ion India, there may not be any jurisdictions to try all these cases in India and may not be maintainable.

As per section 17 of the Foreign Marriage act, 1969, Registration of foreign marriages.-(1) Where- (a) a Marriage Officer is satisfied that a marriage has been duty solemnized in a foreign country between parties of whom one at least is a citizen of India as they apply in relation to marriages solemnized under that Act.

Hence the marriage may not be registered in India, therefore no marital disputes can be referred to Indian courts.

The child custody case also cannot be conducted in India since the child, mother and the father are foreigners.

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

See, yes there is a well settled in Indian to not to register the marriage happened in other country irrespective of the nationality of either of the spouses.

There is a presumption in law of every country that the first preference is always the mother you can or should get the child custody if she is capable enough to do the same.

There is no jurisdiction in respect of the mother rights over child custody.

Sanjay Baniwal
Advocate, South Delhi
5464 Answers
13 Consultations

5.0 on 5.0

Custody in every case will lie to biological mother.

Marriage consummated in Romania will be subject to Romania court. No Jurisdiction of Indian Court.

Registration in India possible after getting married in Indian or under Indian Foreign marriage act at Indian Consulate, Romania.

Without valid adoption no, PIO/OCI can be applied by him.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

in custody welfare of child is paramount consideration

2) court generally awards custody of minor child to mother

3) court would award you visitation rights

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

See residential status doesn't mean in the case of custody of children as in custody of children welfare and care of child is paramount issue and any court shall decide on basis of that.

The OCI status is just to give economic financial benefits along with other like education in India it does not concern for custody of child,

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Firstly remember that OCI is not an Indian citizen.

He will be the citizen of that country where he is residing or having got citizenship

Can Minor children apply for registration as OCI Cardholder?

Yes. However, if either of the child’s parents or grandparents or great grandparents is or had been a citizen of Pakistan, Bangladesh or such other country as the Central Government may, by notification in the Official Gazette, specify, the child will not be eligible for registration as an Overseas Citizen of India Cardholder.

Evidence of relationship as parent/grandparent/ great grandparent, if their Indian origin is claimed as basis for

registration as OCI Cardholder:

The document of relationship could be “Birth Certificate” issued from competent authority mentioning both

parents’ name. In case the birth certificate is issued by a foreign authority, it is to be Apostled or endorsed by the

concerned Indian Mission abroad.

In case of minor child whose both parents are citizens of India or one of the parents is a citizen of India –

(i) Copy of child’s birth certificate

(ii) Copy of Indian passport of the parents / one of the parents or copy of the Domicile Certificate or Nativity Certificate issued by the Competent Authority in respect of the parents/ one of the parents or any other proof substantiating the status of the parents/ one of the parents as being Indian citizen(s).

(iii) If the parents are divorced, court order of dissolution of marriage, which specifically mentions that the legal custody of the child is with the parent who is applying for the OCI card.

Evidence as spouse of foreign origin of a citizen of India or spouse of foreign origin of an OCI Cardholder –

(i) Registered marriage certificate; and

(ii) In the case of spouse of an Indian citizen - copy of the Indian Passport of the spouse or copy of the Domicile Certificate or Nativity Certificate issued by the Competent Authority in respect of the Indian spouse or any other proof substantiating the status of the spouse as being an Indian citizen.

(iii) In the case of spouse of an OCI Cardholder - Copy of the present valid Passport of the spouse and copy of the OCI Card of the spouse and copies of the documents upon which the OCI Card was issued to the spouse.

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

1. No. The child might have the OCI status but he/she will have the status of a citizen of Romania first, then only his/her OCI citizen will come in to consideration.

2. There is Supreme Court Judgement where custody of the child born in USA having US Citizenship has been given to the USA Citizen father on the ground that no child can be forced to stay out of his Country.

Krishna Kishore Ganguly
Advocate, Kolkata
26603 Answers
726 Consultations

5.0 on 5.0

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