AN OVERVIEW OF PERSONAL LAWS AFFECTING NON RESIDENT INDIANS

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AN OVERVIEW OF PERSONAL LAWS AFFECTING NON
RESIDENT INDIANS

• MR. MADHURENDRA NATH JHA,
• SENIOR PARTNER,
• PARAS KUHAD ASSOCIATES, ADVOCATES

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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

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ACQUIRING IMMOVABLE PROPERTY

• Residential/ commercial property No permission
  required for purchasing residential/ commercial
  property in India by NRIs and PIOs
• Agricultural/ plantation land - PIOs OCIs
  cannot acquire agricultural land/plantation
  property/farm house in India by way of purchase

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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

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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
• Person resident in India
• Person resident outside India, who is an Indian
  citizen or
• Person resident outside India, who is a foreign
  citizen of Indian origin.

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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

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ADOPTION

• Adoption is carried out in accordance with the
  Guidelines for Adoption from India, 2006
• The process begins when
• The applicants register with an Enlisted Foreign
  Adoption Agency (EFAA)/Central Authority/Govt.
  Deptt. in their  country of residence
• 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.

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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.

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DISPUTE RESOLUTION

• No different/separate mechanism for dispute
  resolution exist.
• The Indian Criminal Laws are applicable to OCIs
  and PIOs 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.

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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.
• NRIs/PIOs/OCIs 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.

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