TRIAL OF NRI MATRIMONIAL CRIMINAL OFFENCES


Vexed jurisdictional question for seeking relief in split NRI marriages for criminal wrongs has been set at rest by Apex Court Judgment of 2 September in Thota Venkateswarlu, wherein it has been held that Indian Courts, with prior consent of the Central Government, can try offences committed by an Indian citizen in a foreign country. 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.


Allegations of cruelty by 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. 32 million NRIs in 208 countries abroad makes their occurrence a high risk number. However, 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 has culled out a clear mandate of law providing an authoritative import to be followed by all Indian Courts as law of land.



In terms of Section 4 of 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 Indian citizen may be found. However, no such offence shall be inquired into or tried in India except with previous sanction of Central Government.


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


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


Ø Alleged offences of matrimonial cruelty and criminal breach of trust committed by an Indian spouse outside India, where couple resided, may be dealt with as if they had been committed in India. Previous sanction of 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 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 decision to try offenders in India was felt necessary, sanction would be required for trial to commence. Upto stage taking cognizance, no previous sanction is necessary.


Ø Magistrates are 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.


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


Vivid, erudite and meaningful pronouncement will enable 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 Magistrates in India after investigating authorities present charge sheets 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, a different breath, in another previous decision, Supreme Court, in Fatima Bibi had earlier come to 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 IPC in respect of physical and mental cruelty faced at hands of her husband while residing with him in Kuwait. Apex Court allowing her appeal had quashed the 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.


Thus, marriages in vain abroad cannot be remedied or dissolved in India if they are not within the ambit of Indian law. 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, 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 the 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.


*Anil Malhotra - Author, Legal Commentator & Analyst, Alumni of SOAS, University of London Senior Partner, Malhotra and Malhotra Associates. anilmalhotra1960@gmail.com, https://www.anilmalhotra.co.in