Context
Understanding succession rights within the legal framework of India pose significant challenges for non-resident Indians (NRIs) married to foreign nationals.
- Legal Complexities of Financial Entitlements of Children and Spouses: Questions regarding the financial entitlements of children and spouses of NRIs whose marriages were not solemnized in India frequently emerge
| Non-Resident Indian (NRI): An Indian citizen who is ordinarily residing outside India and holds an Indian Passport.
Overseas Citizen of India (OCI): A Person registered as an Overseas Citizen of India (OCI) Cardholder under the Citizenship Act, 1955. |
Succession Rights in India
Succession is currently governed by the Indian Succession Act (ISA), 1925, the Hindu Succession Act (HSA), 1956; and the uncodified Muslim personal law.
- Hindu Inheritance law is governed by the Hindu Succession Act, 1956. This Act does not apply to any property succession, which is regulated by the Indian Succession Act, 1925
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Property Inheritance Under Hindu Law: It is divided into the following:
- Testamentary Succession: The property is distributed when an individual dies by making a will.
- Intestate Succession: It involves the distribution of property by the Operation of Law when an individual dies without making a will.
Legal Provisions for NRIs’ Marriage and Inheritance Rights
- Marriage Registration Requirements for NRIs: According to Legal experts, 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.
- Entitlements in Divorce or Death: 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.
- Even children born out of live-in relationships or adopted by Indians abroad are entitled to succession in India.
- Inheritance rights Regardless of Residential status: They are entitled to inheritance in India regardless of whether both parties are resident Indians or NRIs, or one is a foreign citizen married to an NRI.
| Foreign Marriage Act, 1969: Under this, 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. |
- Foreign Spouse Entitlement: 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. Succession Laws for NRIs: The laws of succession do not bar anyone from receiving property in India through succession, which includes NRIs and their next of kin.
- A child born out of such a wedlock is automatically entitled to receive properties in India through succession.
- A marriage that is duly registered abroad as per local laws is valid in India for claiming succession.
- 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.
| Hindu Marriage Act, 1955: It amends and codifies the law relating to marriage among Hindus.
Special Marriage Act (SMA), 1954: It has the provision for civil marriage for people of India and all Indian nationals in foreign countries, irrespective of religion or faith followed by either party. |
Legal Steps for Succession Rights in India
- 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.
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Registration of Marriage of Non-Resident Indian Bill, 2019:
- It 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.
- This bill aims to protect women from being deserted by their NRI spouses.
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- Need for OCI Card: 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.
- Need for Marriage Certificate: Beyond succession, a marriage certificate is crucial for obtaining visas, passports, insurance, bank accounts and other documents for foreign spouses and children in India.
May 22, 2024
