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Do NRI marriages abroad impact succession rights in India?
Summary
- For NRIs married to foreign nationals, understanding the implications of their overseas nuptials on succession rights in India can be as complex as it is crucial.
NEW DELHI : Navigating the legal landscape of succession rights in India can be particularly challenging for non-resident Indians (NRIs) married to foreign nationals. Questions about the financial rights of offspring and spouses of NRIs whose marriages aren't solemnized in India often arise, creating a maze of legal intricacies.
While the short answer is that there are no immediate issues, the longer answer uncovers several legal nuances.
Legal experts say that couples involving NRIs who marry abroad don’t need to register their marriage in India, provided it is duly registered in the country where they wed. A marriage certificate from India is unnecessary for their spouses’ and children’s inheritance rights.
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“The laws of succession do not bar anyone from receiving property in India through succession, which includes NRIs and their next of kin," explained Wilson Mathew, an advocate in the Supreme Court and the Bombay High Court.
“There is no mandate for an Indian marrying anyone across the globe to mandatorily register their marriage in India. A child born out of such a wedlock is automatically entitled to receive properties in India through succession. Even if such a couple divorces or if one of the spouses dies, the surviving spouse and their children are entitled to receive properties in India through will or succession," Mathew added.
He noted that even children born out of live-in relationships or adopted by Indians abroad are entitled to succession in India.
Inheritance rights for NRIs, foreign spouses
Regardless of whether both parties are resident Indians or NRIs, or one is a foreign citizen married to an NRI, they are entitled to inheritance in India.
“The foreigner spouse is also entitled to inherit the assets of a late NRI spouse in India as being a foreigner does not exclude them from the line of succession. This was ruled in an important judgement passed by the Supreme Court in 2018," said Amit Kumar Nag, a partner at AQUILAW, a full-service law firm.
A marriage that is duly registered abroad as per local laws is valid in India for claiming succession.
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NRIs have two options to make this process smoother: They can either register their marriage under the civil laws of the country they got married in and obtain an apostille, or they can register their marriage under the Foreign Marriage Act.
“Under the Foreign Marriage Act, 1969, diplomatic or consular officers are appointed as marriage officers, and after registration of the marriage, they issue a certificate of marriage, which is proof of valid marriage in India," noted Nag.
Legal steps for succession
For an NRI who is an Indian citizen, no further action is needed to safeguard succession rights in India post-marriage. However, NRIs who are citizens of another country must process an Overseas Citizen of India (OCI) card for faster processing of their rights under personal succession laws based on their religion, according to Mathew.
Beyond succession, a marriage certificate is crucial for obtaining visas, passports, insurance, bank accounts and other documents for foreign spouses and children in India.
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Nag highlighted a pending Indian law that would require NRIs to register their marriages in India within 30 days of the marriage, whether solemnized within India or abroad. Non-compliance would attract penalties.
“However, this bill, known as the Registration of Marriage of Non-Resident Indian Bill, 2019, has not been passed in either house of Parliament," he said. This bill aims to protect women from being deserted by their NRI spouses.
NRIs marrying foreign citizens in India must register their marriage under the Special Marriage Act. In such marriages, succession rights are governed by the Indian Succession Act, 1925, rather than the personal laws of the Indian spouse.
“However, if both parties are Hindus, despite being from different countries, the Hindu Succession Act, 1956, and its 2005 amendment apply," added Smita Paliwal, a partner at King Stubb & Kasiva, Advocates and Attorneys.
