AN OVERVIEW OF PERSONAL LAWS AFFECTING

NON RESIDENT INDIANS

MR. MADHURENDRA NATH JHA,

SENIOR PARTNER,

PARAS KUHAD & ASSOCIATES, ADVOCATES

WHO IS ELIGIBLE?

• NRI - A person resident outside India who is a citizen of India or is a Person of Indian Origin

• PIO - A person resident outside India, not considered a citizen of India.

• OCI – Overseas Citizen of India, a foreign national, who was eligible to become a citizen of India on 26.01.1950

ACQUIRING IMMOVABLE PROPERTY

• Residential/ commercial property –No permission required for purchasing residential/ commercial property in India by NRI’s and PIOs

• Agricultural/ plantation land - PIOs & OCIs cannot acquire

agricultural land/plantation property/farm house in India by way of purchase

ACQUISITION BY GIFT/ INHERITANCE OF IMMOVABLE PROPERTY

• By way of inheritance: Immovable property can be acquired by a PIO provided such property has been acquired in accordance with Foreign Exchange Law/ Regulations

• By way of gift: PIO can acquire any immovable property other than agricultural land/ farm house/ plantation property

TRANSFER/SALE OF IMMOVABLE PROPERTY

General permission is available for transfer of any immovable property (other than agriculture land, plantation property and farm house) to:

i. Person resident in India;

ii. Person resident outside India, who is an Indian citizen; or

iii. Person resident outside India, who is a foreign citizen of Indian origin.

MARRIAGE & DIVORCE

Personal Laws apply to Marriage The law under which the marriage is solemnized,

whether customary or statutory law, then the same law shall be applicable.

Divorce In case of matrimonial disputes, the law under which the

marriage was solemnized, shall be applicable.Custody of Children No straitjacket formula available under Indian Law. Best interest of the child is the penultimate deciding

criterion

ADOPTIONAdoption is carried out in accordance with the Guidelines

for Adoption from India, 2006

The process begins when:1. The applicants register with an Enlisted Foreign

Adoption Agency (EFAA)/Central Authority/Govt. Deptt. in their  country of residence

2. A Home Study Report (HSR) is prepared by the authority for a period of 2 years.

If permission is obtained based on the HSR, then a child is cleared for adoption.

CRITERIONS FOR A FOREIGN PROSPECTIVE ADOPTIVE PARENT

(FPAP)

1. Married couple with 5 years of a stable relationship.

2. Single persons (never married, widowed, divorced) up to 45 years can also adopt.

3. A FPAP in no case should be less than 30 years and more than

55 years. 4. Same sex couples are not eligible to adopt.

DISPUTE RESOLUTION

• No different/separate mechanism for dispute resolution exist.

• The Indian Criminal Laws are applicable to OCI’s and PIO’s as long as they reside in India.

• Civil Litigation may be initiated depending upon the Proper Law of Contracts as applicable in the contract itself.

Legal & Consular Advise

• Any Indian Advocate can represent a Parvasi.

• A Parvasi can engage any lawyer who is registered with the bar council of the state where jurisdiction lies.

• NRI’s/PIO’s/OCI’s may institute proceedings in India by authorising a person in India to institute a suit on their behalf. Such authorisation is given by executing a Power of Attorney (PoA) in favour of the agent.