Facts

• Mr. A, a person of Indian origin, migrated to the UK in 2015 and acquired UK citizenship in 2020.
• Mr. A married Ms. Lilly (a UK national) on 15-03-2021.
• Ms. Lilly wishes to purchase a house jointly with Mr. A in India on 17-04-2022, using her income earned in the UK.

Legal Position

As per Rule 25 of the Foreign Exchange Management (Non-Debt Instruments) Rules, 2019:

• A person resident outside India, who is not an NRI or OCI but is a spouse of an NRI or OCI, may jointly acquire one immovable property (except agricultural land, farmhouse, or plantation property) with their NRI/OCI spouse subject to the following conditions:
  1. Source of Funds:
     • Payment for the property must be made either by inward remittance through banking channels from abroad, or
     • Out of funds held in a non-resident account (NRE/NRO/FCNR) in India.
  2. Mode of Payment:
     • Payment cannot be made via traveller’s cheques, foreign currency notes, or any unauthorized modes.
  3. Marriage Duration:
     • The marriage must be registered and must have subsisted continuously for at least 2 years immediately preceding the acquisition.
  4. No FEMA Prohibition:
     • The non-resident spouse must not be otherwise prohibited from acquiring immovable property under FEMA.

Conclusion and Advice

• Mrs. Lilly, as a non-resident spouse of an NRI, is allowed to jointly acquire immovable property in India (other than agricultural land/farmhouse/plantation property) with Mr. A provided the marriage has subsisted continuously for at least 2 years immediately before the property acquisition date.
• Since Mrs. Lilly and Mr. A married on 15-03-2021 and intend to acquire the property on 17-04-2022, the 2-year continuous marriage condition is not met.
• Therefore, Mrs. Lilly cannot jointly acquire the house in India with Mr. A on 17-04-2022 as per the current law.