A family is no longer confined to one legal system. A marriage may be solemnised in India, a home built abroad and a child born in a third country, while parents and siblings still live here. When the marriage breaks down, two sets of laws apply at once, and each has its own view of what is permitted.
The consequences of the conflict of laws are always practical. An order obtained overseas is not automatically recognised in India; an Indian court will examine it under Indian law. A custody order made abroad does not, by itself, entitle a parent to take a child out of India. An adoption valid under Indian personal law may still not secure the child a passport or a visa. A couple who have lived abroad for years may find that Indian law, and not the law of their country of residence, decides whether they can have a child through surrogacy.
At RFKN, our family law practice handles matters of this kind, where the dispute is tied up with immigration, regulatory approvals and the recognition of foreign orders. In these matters, the sequence of steps matters as much as the law.
Mutual consent divorce without repeated travel to India: A spouse living abroad and holding foreign citizenship wished to end an Indian marriage by mutual consent but could not return for each stage of the proceedings. Divorce by mutual consent contemplates the personal presence of both parties at both motions, and courts are careful about relaxing that requirement. We prepared a special power of attorney for the proceedings, had it executed and attested abroad in the manner Indian courts accept, and applied for exemption from personal appearance, supported by identification and video-conferencing. The court allowed the party to be represented through the attorney holder, the settlement terms were recorded and the decree of divorce by mutual consent was granted.
Advice and opinions on cross-border matrimonial disputes: We often advise on whether a foreign order can be acted upon in India, or whether an Indian order will be upheld abroad. The questions arise when a parent wishes to relocate a child to or from India after a foreign court has ruled on custody. A foreign decree of divorce or order of maintenance has to be enforced in India. And since India is not a party to the Hague Convention on the Civil Aspects of International Child Abduction, Indian courts do not treat a foreign custody order as binding. Comity is respected, but the welfare of the child is paramount and the Indian court forms its own view. Immigration consequences sit over all of this: visa status that depends on a subsisting marriage, a child’s travel documents, and consent requirements for taking a minor abroad.
Inter-country adoption between relatives: Adoptions within an extended family are common. Where the parties are governed by Hindu personal law, that law applies to them whatever passport they hold. Families often assume that a valid adoption under personal law ends the matter. However, if the child is to live abroad, it does not. Where the adoptive parents are non-resident or foreign nationals, taking the child out of India engages the inter-country regime administered by the Central Adoption Resource Authority, requirsing: a sponsorship or study report through an authorised foreign adoption agency, verification and an order from the District Magistrate, and a no objection certificate from the Authority. We advise families at the outset, structure the adoption so that the personal law position and the regulatory record are consistent, and pursue the approvals until the child can lawfully travel and be recognised in the country of residence.
We start with the documents that have to travel: Powers of attorney, affidavits, consents and certificates are of use only if they are executed, attested and legalised in the form the receiving authority accepts. Getting this right at the start avoids a court or authority refusing a document months later, which is far more expensive to repair.
We plan for both jurisdictions together: A step that is convenient in one country can damage a client’s position in the other, on custody, immigration status or the later recognition of an order. We work through the consequences in both systems before advising on the first move, and coordinate with counsel abroad where required.
We keep the child at the centre: In relocation, custody and adoption matters, Indian courts and authorities test everything against the welfare of the child. We build our cases on that footing, with the practical arrangements (schooling, care, access for the other parent) worked out and supported by evidence, not merely asserted.
We state regulatory limits plainly: Some things the law does not permit, however sympathetic the facts. Where that is the position, we say so early and turn to what can be achieved, so that a family does not spend years and money on a route that would never be approved.
Divorce and matrimonial relief – divorce by mutual consent and contested proceedings, judicial separation, nullity, and settlement agreements that hold in more than one jurisdiction.
Cross-border and non-resident matrimonial disputes – proceedings where one or both spouses live abroad, representation through duly constituted attorneys, exemption from personal appearance and appearance by video conferencing.
Recognition and enforcement of foreign orders – the conclusiveness of foreign judgments, ex parte decrees, execution of foreign maintenance and custody orders, and opinions on whether an Indian order will be given effect abroad.
Child custody, guardianship and relocation – guardianship petitions, permission to remove a child from the jurisdiction, parental child removal and return applications, and access and visitation arrangements across countries.
Adoption – domestic adoptions, adoptions within the family under personal law, and inter-country adoption, including the sponsorship, District Magistrate and no objection certificate stages of the Central Adoption Resource Authority process.
Surrogacy and assisted reproduction – eligibility and certification under the Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology legislation, clinic and agreement compliance, and parentage and documentation for the child.
Maintenance, alimony and financial arrangements – interim and permanent maintenance, division of assets held across countries, and enforcement against a spouse resident abroad.
Immigration-adjacent family issues – visa and residence status affected by the breakdown of a marriage, travel documents and consents for minors, and citizenship questions arising out of adoption or surrogacy.
Family matters are rarely confined to legal questions, and cross-border family matters even less so. We bring together matrimonial and child law with the regulatory, immigration and cross-border considerations these matters involve, and give clients one coherent strategy, not fragmented advice from different specialists that may not align.