TRIAL OF NRI MATRIMONIAL CRIMINAL OFFENCES

The vexed jurisdictional question for seeking relief in split NRI marriages for criminal wrongs has been set at rest by the Apex Court Judgment of 2 September in Thota Venkateswarlu Vs. State of A.P., wherein it has been held that Indian Courts, with the prior consent of the 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 the 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.

Allegations of cruelty by the husband or his 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 180 countries abroad makes their occurrence a high risk number. However, the 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, the Supreme Court judgment provides succor to unfortunate victims in dire straits on Indian Soil. Interpreting these provisions, the Apex Court has culled out a clear mandate of law providing an authoritative import to be followed by all Indian Courts as the law of the land.

In terms of Section 4 of the Indian Penal Code (IPC), Indian criminal courts can try an accused Indian citizen even if the offence was committed outside India. Under Section 188 of The Code of Criminal Procedure (CrPC), 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 the Central Government.

Considering a mixed bag of criminal wrongs of matrimonial cruelty, the 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 the Central Government as envisaged under Section 188 Cr.P.C. Having done so, the salutary verdict of the Supreme Court, proceeds to conclusively decide the issue and an analysis of the settled law on the proposition can be interpreted to lay down the following conclusions:

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

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

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

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

Ø    As the 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 will enable criminal courts in India to proceed within clarity in the dispensation of justice to wronged NRI marriages. The jurisdiction of the Indian courts in respect of NRI marital offences will no longer be lost by reason of the venue of the offence. Clearly, the object of prior sanction of the Central Government is only to prevent the accused from being tried over again in two different places for the same offence and not to escape the noose by jurisdictional immunity. Logically, the phrase “dealt with” for being proceeded with in India under criminal law  does not impede or infringe the process of investigation into marital wrongs committed abroad. Axiomatically, the bar of sanction operates before the Magistrate in India after the investigating authority presents the charge sheet for the 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, a different breath, in another previous decision, The Supreme Court, in Fatima Bibi vs State of Gujarat  (All India Reporter 2008 SC  2392) had earlier come to the rescue of a mother-in-law, a Mauritius national, who was accused by her Indian daughter-in-law in Gujarat of torture, intimidation and instigation, as offences under the IPC in respect of physical and mental cruelty faced at the hands of her husband while residing with him in Kuwait. The Apex Court allowing her appeal had quashed the criminal proceedings holding that since the offences were said to have been committed in Kuwait, the IPC or CrPC would have no application. Further, as a citizen of Mauritius, the mother-in-law was not liable for prosecution under the IPC in India for offences committed outside India. Substantial justice resulted thereupon.

Thus, marriages in vain abroad cannot  be remedied or dissolved in India if they are not within the ambit of Indian law. The courts have drawn a well defined dividing line. But then, such fractured and fragmented human relationships need to be resolved. If Indian law is beyond the scope and purview of application, the solutions and answers may lie elsewhere. Seeing to the 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 the respective countries who face these global family law problems. This needs urgent  and immediate deliberation at international platforms for common unified humane solutions. The Apex Court judgments point to this much needed path of resolution.