FLIGHTS OF FANCY AND THE LAW



This Article is authored by Advocate Anil Malhotra.


On April 6, the Supreme Court directed CBI to issue a red corner notice against an Egyptian citizen and secure his presence, as he had spirited away his son to Egypt violating the orders of the Bombay High Court after attempts at Abu Dhabi and Cairo to contact him were unsuccessful. Earlier, upon unsuccessful attempts of compliance of Supreme Court mirror orders pertaining to an Indian child in Kenya, the main judgment was recalled since the mother’s shared custody rights in India were not honored. Parental child removal stalemates across borders continue to escalate.


Vexed jurisdictional question for seeking relief in split NRI marriages for criminal wrongs had been settled by Supreme Court in 2011 in Thota Venkateswarlu, wherein it was held that Indian Courts, with prior consent of Central Government, can try offences committed by an Indian citizen in a foreign country. The case related to a Hindu traditional marriage solemnized in Andhra Pradesh with allegations of torture meted out to wife in Botswana. Accordingly, abandoned brides, jilted spouses, destitute children and offended families back home can now find solace with Indian Courts under criminal law. But, child removal cases remain deadlocked.


Allegations of cruelty against husband or relatives, criminal breach of trust by misappropriation of a woman’s personal property, dowry wrongs, criminal neglect to maintain spouse, children or parents, bigamous marriages and commission of adultery are commonly cited criminal offences in NRI marriages. Thirty million NRIs in 200 countries abroad make their occurrence a high risk number. Process of criminal investigation and trial in India can be tardy and hedged with jurisdictional objections to thwart and delay award of punishment. In this bleak scenario, Supreme Court judgment provides succor to unfortunate victims in dire straits on Indian Soil. Interpreting these provisions, Apex Court tries to cull out solutions by judicial innovation in individual cases.


Under Indian Penal Code (IPC), Indian criminal courts can try an accused Indian citizen even if the offence was committed outside India. Under Code of Criminal Procedure (Cr.P.C.), if a criminal offence is committed by an Indian citizen outside India, he may be dealt with in respect of such an offence as if it had been committed at any place within India at which the Indian citizen may be found. However, no such offence shall be inquired into or tried in India except with the previous sanction of Central Government.


Considering a mixed bag of criminal matrimonial offences, Apex Court had crystallized the crux question whether in respect of a series of such offences, some of which were committed within India and some outside India, could such offences be tried together without the previous sanction of Central Government as envisaged under Cr.P.C. Supreme Court conclusively holds:

  • Stated offences under the Dowry Prohibition Act occurring within territorial jurisdiction of criminal courts in India can be tried without having to obtain previous sanction of Central Government.

  • Alleged offences of matrimonial cruelty and criminal breach of trust committed by an Indian spouse outside India, where parties resided, may be dealt with as if they had been committed in India. Previous sanction of Central Government would be necessary in such cases.

  • In respect of offences alleged to be committed outside India, previous sanction is required to be taken by prosecuting agency before trial can commence. However, this fetter is imposed only when stage of trial is reached and no sanction is required till commencement of trial. It is only after decision to try offender in India was felt necessary, sanction would be required for trial to commence. Upto stage taking cognizance, no previous sanction is necessary.

  • Magistrate is free to proceed against accused in respect of offences allegedly committed in India, complete their trial and pass judgment therein, without being inhibited by other alleged offences for which sanction would be required.

  • As IPC extends to extra-territorial offences, Indian citizens would be amenable to Indian criminal law subject to limitations of sanction required under law.

The vivid, erudite and meaningful pronouncement enables criminal courts in India to proceed within clarity in dispensation of justice to wronged NRI marriages. Jurisdiction of Indian courts in respect of NRI marital offences will no longer be lost by reason of venue of offence. Clearly, object of prior sanction of Central Government is only to prevent accused from being tried over again in two different places for same offence and not to escape noose by jurisdictional immunity. Logically, phrase “dealt with” for being proceeded with in India under criminal law does not impede or infringe process of investigation into marital wrongs committed abroad. Axiomatically, bar of sanction operates before Magistrate in India after investigating authority presents charge sheet for alleged offences. However, it can also be stated that for all overt criminal acts committed in India, in furtherance of a conspiracy and confabulation with NRIs abroad, sanction of Central Government of prosecution in India may not be necessary.


In 2008, Supreme Court in Fatima Bibi, had come to rescue of a Mauritius national, who was accused by her Indian daughter-in-law in Gujarat of torture, intimidation and instigation. These were offences under IPC in respect of physical and mental cruelty faced at hands of her husband while residing in Kuwait. Apex Court allowing her appeal had quashed criminal proceedings holding that since offences were said to have been committed in Kuwait, IPC or CrPC would have no application. Further, as a citizen of Mauritius, mother-in-law was not liable for prosecution under IPC in India for offences committed outside India. Substantial justice resulted thereupon.


Marriages in vain abroad cannot be remedied or dissolved in India if they are not within ambit of Indian law. Courts have drawn a well-defined dividing line. Such fractured and fragmented human relationships need to be resolved. If Indian law is beyond scope and purview of application, solutions and answers may lie elsewhere. Seeing to phenomenal number of increasing Indian diaspora abroad, principles of private international family law seriously need to be debated to assemble mechanisms within legal frameworks of respective countries who face these global family law problems. This needs urgent and immediate deliberation at international platforms for common unified humane solutions. Apex Court judgments point to this much needed path of resolution.