Foreign Spouse in India During a Divorce or Custody Case: What Has Changed

When a marriage between an Indian citizen and a foreign national breaks down, the family case is only one part of the problem. The foreign spouse may also need to know whether they can remain in India while the case is pending, what happens to their OCI card, and how the children's custody will be decided if one parent wishes to live abroad. These questions are best answered together, at the outset.

The New Law on Foreigners: The Immigration and Foreigners Act, 2025

Since 1 September 2025, the entry, stay and exit of foreign nationals in India have been governed by the Immigration and Foreigners Act, 2025. It replaced four older laws: the Foreigners Act, 1946, the Passport (Entry into India) Act, 1920, the Registration of Foreigners Act, 1939 and the Immigration (Carriers' Liability) Act, 2000. Visas, registration with the Foreigners Regional Registration Office (FRRO) and permission to stay in India are now dealt with under this Act and the rules and orders made under it.

OCI Cards Granted on the Basis of Marriage

A foreign national married to an Indian citizen (or to an OCI cardholder) may be registered as an Overseas Citizen of India on the basis of that marriage, once the marriage has been registered and has subsisted for at least two years. Under Section 7D(f) of the Citizenship Act, 1955, the Central Government may cancel such a registration if the marriage is dissolved by a competent court or otherwise, or if, after the dissolution, the person enters into another marriage. A divorce can therefore affect the foreign spouse's right to live and work in India, and this should be considered before the divorce is filed or agreed.

Staying in India While the Case Is Pending

A family case in India can take time, and the foreign spouse may need to attend court, see the children or complete a settlement. Their visa or OCI status, FRRO registration and any permission to remain in India must be managed alongside the family case, so that the right to be present is not lost at an important stage. Where a party abroad cannot travel, courts have in appropriate cases permitted appearance by video conference or through a power of attorney holder.

Custody of Children: The Welfare of the Child Comes First

Where a child is involved, Indian courts decide custody on the welfare of the child. An order made by a foreign court is an important consideration, but it does not bind an Indian court automatically. The Supreme Court explained this in Nithya Anand Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454, where it held that the courts in India must decide, on the facts of each case, what is in the best interests of the child, treating the foreign court's order as one relevant factor. India is not a party to the Hague Convention on the Civil Aspects of International Child Abduction. See also When a Parent Takes a Child Abroad or Brings a Child to India.

Points to Consider Early

A foreign spouse, and the Indian spouse, should consider at the beginning: in which country and court the family case should be filed; whether a divorce granted abroad will be recognised in India (see Your Foreign Divorce May Not Be Valid in India); how the divorce will affect an OCI card or visa; and what arrangements are needed for the children. Advice on immigration status and on the family case together can prevent avoidable difficulty. See also NRI & Cross-Border Family Matters and International Clients.

Frequently Asked Questions