Indian Court Has Jurisdiction Over Domestic Violence Committed Against Indian Abroad: Bombay HC [Read Judgment]

The Bombay High Court has held that Indian court will have jurisdiction over a complaint under Section 498-A IPC for domestic violence committed abroad.

Justice SS Shinde was hearing a writ petition filed by one Md.Zuber Farooqi who sought quashing of an order of maintenance passed by Metropolitan Magistrate, Mulund in favour of his wife Neelima. Court concluded that Neelima had prima facie made out a case of domestic violence against the petitioner.

Case Background

According to the petitioner, he married Neelima on December 26, 2008 in Lucknow as per Muslim Law. Thereafter, in January 2009, the couple migrated to North Carolina, USA and shifted to California in 2012. They have a 6-year-old son named Zayan.

On August 19, 2014, Neelima left her matrimonial home and went to her brother's place in Columbus, Indiana. In September, the couple met and the petitioner filed for divorce and a child custody petition in California.

Petitioner alleged that between January 14 and 20, 2015 several attempts were made to serve summons to Neelima but she deliberately evaded service.

On January 21, 2015, Neelima came to India and started residing in Meerut. In May, the petitioner granted divorce to Neelima in India and a year later in July 2016 she filed a permanent custody petition before the Family Court in Bandra. She filed an FIR against the petitioner in October, 2016.

Following this, in November 2016, the Superior Court of California passed the order granting custody of Zayan to the petitioner. On November 18, 2016, California Superior Court served a warrant of arrest to the petitioner.

Neelima filed a case under Section 12 of Protection of Women from Domestic Violence Act, 2005 before the Metropolitan Magistrate Court, Mulund. The Metropolitan Magistrate passed the maintenance order on March 18, 2017. On June 23, 2017, the Sessions Court dismissed the Criminal Appeal filed by Petitioner.

Submissions

Advocate Prashant Pandey appeared on behalf of the petitioner and submitted was more than two years delay in filing the complaint before the Magistrate Court. When there was delay, on the said ground alone, magistrate ought to have dismissed the complaint, Pandey argued.

He further argued that the magistrate had no jurisdiction to entertain the complaint, since the alleged domestic violence is not committed in India. Neelima's stay in Mumbai is temporary, and therefore, magistrate has no jurisdiction to entertain the complaint.

Pandey also refuted the allegations that the petitioner forced Neelima to discontinue her Masters' program and told her to join him in California, and that she was made to work hard during the pregnancy.

On the other hand, Advocate Shaheen submitted on behalf of the respondent wife (Neelima) that she is financially dependent upon the petitioner who is employed with the Government of the United States with salary of more than $100,000.

Pointing out how the maintenance amount of Rs.30,000 was inadequate, Shaheen submitted that her husband constantly threatened her with divorce and in 2015 when she asked the petitioner about renewal of visa, he flatly refused.

Even till date, the petitioner has only paid 60% of the maintenance amount despite giving an undertaking to pay the arrears in full, Neelima's counsel said.

Advocate Shaheen then relied upon the judgement of Supreme Court in the case of Nikita Versus Yadwinder Singh & Ors in order to substantiate her case.

Judgement

In the above judgement, it was held that, Courts at the place where the wife takes shelter after leaving or driven away from the matrimonial home on account of acts of cruelty committed by the husband or his relatives, would, dependent on the factual situation, also have jurisdiction to entertain a complaint alleging commission of offences under Section 498A of the Indian Penal Code.

Court noted that the above judgement was passed relying on a previous judgement in Rupali Devi Vs. State of Uttar Pradesh & Ors.

Thus, Justice Shinde said-

"Respondent No. 2 has stated in the affidavit that, she is residing with her brother at Mumbai. The said aspect has been considered by the Sessions Court. In the light of judgment of Hon'ble Supreme Court in the aforesaid case, and also observations made by both the Courts below, there is no substance in the contention of learned counsel for the Petitioner that, Magistrate's Court at Mumbai has no jurisdiction to entertain the complaint."

Court refused to Advocate Pandey's contention that there was inordinate delay in filing the complaint and observed-

"So far question of limitation for filing the proceedings under Section 12 is concerned, the Hon'ble Supreme Court in the case of Krishna Bhattacharjee Versus Sarathi Choudhary And Another held that regard being had to concept of "continuing offence" and demands made by wife, application made by appellant wife under Section 12, 2005 Act after about 2 years of judicial separation, not barred by limitation."

Court noted that despite giving an undertaking in April 2018, the petitioner is yet to pay the arrears of maintenance amount and refused to interfere with the Magistrate's order-

"There are concurrent findings of facts recorded by the courts below that Respondent No.2 is entitled for interim maintenance. Those findings appear to be in consonance with the material placed on record. In that view of the matter, no case is made out to cause interference in the impugned order. Hence, writ Petition stands rejected."

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