Legal Issues NRI face when they fight Matrimonial issues.

Passport Impound and Seizure

This is the most common issue NRIs face when they encounter matrimonial cases in India. What wives do in such cases is file false dowry harassment cases in India. Many times, both the husband and wife are residents of other countries such as the UK, US, or Australia. The wife intentionally involves the elderly and ailing parents in India to exert maximum pressure on the husband, forcing him to comply with the demands of the wife and her family members. The demand in such cases is simple: maximum alimony. Furthermore, in such cases, the police call the husband and family members to join the investigation. If the husband fails to join the investigation, the investigating officer writes to the passport authority to impound the passport. The passport authority then issues notice to the husband to file a reply.

Under section 6f of passport act (f) that proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal court in India;

The passport authority can issue notice under section 10 of the passport act and ask the holder of the passport to deliver the passport.

However there are various judgements on the point that the passport cannot be impounded by the police officer directly.

Solution

These notices must be challenged before the High Court as soon as one receives such notice.

There is a precedence that merely pendency of legal proceedings in matrimonial cases is not a ground to impound passport.

The pendency of matrimonial cases alone cannot be a ground to decline renewal of passport. The gazette notification aforesaid cannot be a ground for not renewing the passport for a period of ten years or for impounding it or restricting it for a period of one year only. 

In absence of any report of Investigating Officer to the contrary and in absence of any other legal impediment, respondents were not justified in impounding the passport. The action of respondents certainly affects right of livelihood of a travel blogger who keeps body and soul together by travelling abroad and earning his livelihood therefrom.

Hardik Shah vs. Union of India and Ors. (07.12.2021 – MPHC) : MANU/MP/1559/2021

Renewal of Passport

The second issue many NRI face is that the aspect of renewal of the passport, which is restricted to just one year period now this is because of a notification.

The Central Government has issued a notification purportedly under Section 22 of the Act, being G.S.R. 570(E) dated 25 August 1993, exempting citizens of India against whom proceedings in respect of an offence alleged to have been committed by them are pending before a Criminal Court in India and who produce orders from the concerned court permitting them to depart from India, from the operation of Clause (f) of Sub-section (2) of Section 6 of the Act subject to the conditions specified in the notification. The conditions inter alia require issuance of passport to such citizens for the period specified in the order of the court referred to above if the court specifies such period. Alternatively, if there is no period prescribed either for issuance of the passport or for travel abroad in such order, the passport may be issued for a period of one year.

The problem is that they are issued passport for the period of one year only and for the persons working abroad this one year period is short. Specially when their employment demands more than one year of passport expiry. 

One of our clients faced similar issue as he was from Dubai he needed atleast 5 years of passport otherwise he would have lost his job.

Solution

In Roshan Lawrence Menezes v. Union of India 16 of the Bombay High Court, but as is evident from the paragraphs-5 and 6 of the judgment of the Bombay High Court, as quoted, that, what was under consideration there was, the period for which there should be renewal, if the passport authority is to renew it, whether for a period of one year, if there is no period prescribed by the Court concerned, or for a period of 10 years as was the direction issued by the Division Benches of the Bombay High court, previously, in various cases. The Bombay High Court, had held that the renewal of the passport should be for 10 years, as per the law declared by it and the passport authorities could not have renewed the passport for any period less than 10 years.

Look Out Circular

This is the most important aspect. The Lookout circular is a notice issued to the immigration authorities so that as soon as husband land at the airport he may face arrests. There are also instances where red corner notices are issued in matrimonial cases which are surprising.

The issues with the lookout circular is this that the husband side do not know unless and until you get information from court or IO or from other sources.

Solution

Anticipatory Bail

It is advisable to take anticipatory bail in such cases and if LOC is issued then directions from the court is must to enable authorities to cancel any LOC is issued.

On undertaking by the husband that he will attend the hearing these LOC can be quashed easily. Further the recourse of red cornor notice is for offences 10 years and above.

There are various guidelines issued by Delhi High Court with respect to LOC

A. Recourse to LOC can be taken by investigating agency in cognizable offences under IPC or other penal laws, where the accused was deliberately evading arrest or not appearing in the trial court despite NBWs and other coercive measures and there was likelihood of the accused leaving the country to evade trial/arrest.

B. The Investigating Officer shall make a written request for LOC to the officer as notified by the circular of Ministry of Home Affairs, giving details & reasons for seeking LOC. The competent officer alone shall give directions for opening LOC by passing an order in this respect.

C. The person against whom LOC is issued must join investigation by appearing before I.O. or should surrender before the court concerned or should satisfy the court that LOC was wrongly issued against him. He may also approach the officer who ordered issuance of LOC & explain that LOC was wrongly issued against him. LOC can be withdrawn by the authority that issued and can also be rescinded by the trial court where case is pending or having jurisdiction over concerned police station on an application by the person concerned.

D. LOC is a coercive measure to make a person surrender to the investigating agency or Court of law. The subordinate courts’ jurisdiction in affirming or cancelling LOC is commensurate with the jurisdiction of cancellation of NBWs or affirming NBWs.

Sumer Singh Salkan and Ors. vs. Asstt. Director and Ors. (11.08.2010 – DELHC) : MANU/DE/1937/2010

Divorce Process

Many NRI take divorce abroad and they think that they are legally divorced. While it is true that they are legally divorced as per the laws of the country but that decree is not valid in India as per Indian laws as laws are not similar and ground of divorce are also not recognized by Indian law.

Since marriage in such cases happen in India they should ideally be taking divorce in india and settle everything in India. This is another issue

In. Rupak Rathi Vs Anita Chaudhary 

These principles are summarized for guidance of matrimonial courts functioning within the territories over which this court exercises jurisdiction but with a word of caution that they should be applied on a case to case basis while dealing with applications under Order VII Rule 11, CPC in the context of HMA and section 13 CPC as it is not prudent to lay down any strait jacket formula of universal application and some free play in the joints of matrimonial courts should be left while dealing with different fact situations presented before them:-

(i) If the spouse aggrieved by the foreign matrimonial decree has not submitted to the jurisdiction of the foreign court or consented to the passing of the foreign Court judgment, it ought not to be recognised being unenforceable under Section 13 CPC. This position of law ought to be applied to the facts of the individual case.

(ii) There may be occasions that a spouse relying upon the judgment of a foreign matrimonial court, upon receipt of a summon or notice from a court of competent jurisdiction under CR-3130-2013 (O&M) the HMA, may not choose to file a written statement in response to a petition seeking a matrimonial cause under HMA in Punjab, Haryana or Chandigarh. Instead, the contesting spouse may prefer to move an application under Order VII Rule 11 CPC seeking to rely upon or invoke the provisions of Section 13 CPC. Thus, it may be contended before the court of competent jurisdiction under the HMA that since the matrimonial action between the parties has already been decided and concluded by a Court in the foreign jurisdiction, the adjudication in the matter in issue between the same spouses based on the same matrimonial cause of action is barred by the principle of res judicata and spouses are estopped in law from agitating the same again.

(iii) It is respectfully contended that wherever both or any spouse arrayed in a matrimonial cause in a matrimonial action under HMA contest, dispute, question or oppose any above such application under Order VII Rule 11, CPC involving interpretation of the principles laid down under Section 13 CPC thereby necessitating requirement of detailed pleadings and evidence of spouses, no summary decision may seem possible to decide the matter in the preliminary stage.

(iv) In the above situation, there may also be circumstances involving application of issues of domicile as also applicability of Sections 1 and 2 of the HMA regarding extra territorial application of the provisions of HMA. Determination of these issues may also require parties to put their pleadings and testimony as well on the record of the Court of competent CR-3130-2013 (O&M) jurisdiction under the HMA.

(v) The application of the provisions of the CPC finding mention under Section 21 HMA, the Court of Competent jurisdiction under the HMA in Punjab, Haryana or Chandigarh may then be guided by the procedural law of pleadings contained in the Orders and Rules of the CPC and Punjab & Haryana High Court amendments, if any, for further proceedings in the matter.

Accordingly, filing of a written statement, counter claim, rejoinder and/or other pleadings may be necessitated for having the factual matrix on record leading to the settlement of issues under Order XIV CPC which can only be framed upon allegations made by parties to be read along with the contents of documents produced by spouses. Hence, this procedure may be necessary to be adopted to decide upon the warring claims of spouses relying on averments in support or against the judgment of the foreign matrimonial court between the parties.

(vi) Based on the above procedural requirements, the Court of competent jurisdiction under the HMA may then examine the process, pleadings, grounds and other details in the passing of the judgment/decree of the matrimonial court of foreign jurisdiction to test it on the anvil of Section 13 CPC and based on the principles laid down by the Apex Court in Y. Narasimha Rao v. Y. Venkata Lakshmi, 1991 (3) SCC 451 and exception (iii) as understood in the present opinion. Hence, in the event of a contest, dispute, opposition to the applicability of the foreign matrimonial judgment in the Indian jurisdiction, a summary CR-3130-2013 (O&M) disposal may not be possible. To do complete justice to both the spouses and to ensure that prejudice has not been caused to either of them as also that issues of maintenance, settlement of matrimonial property, child custody etc. arising in India have been completely settled between spouses based on provisions of HMA, the Court of competent jurisdiction under the HMA may examine the matter on the lines suggested above.

(vii)Thereafter, if the issue relating to the jurisdiction of Competent Court under the HMA as also any bar to the matrimonial cause created by any existing law appears to be established, the matrimonial court in Punjab, Haryana or Chandigarh may upon the facts and circumstances of the case take an appropriate decision under Order XIV Rule 2 CPC whether it needs to pronounce judgment on all issues or decide the issue of jurisdiction or maintainability as a preliminary issue. In such circumstances, the Competent Court under the HMA may after forming an opinion take an appropriate decision on the facts of the case as to whether the issue of jurisdiction or maintainability is to be decided as a preliminary issue or pronounce judgment together on all the issues. Accordingly, based on the individual facts and circumstances, the Court ought to take a decision whether to decide the preliminary issue of jurisdiction or maintainability or postpone the settlement of other issues after such preliminary issues has been determined.

  By Adv. Nitish Banka

  Supreme court of India

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