Physical Presence Not Necessary In Domestic Violence Act Proceedings : Supreme Court Quashes Magistrate's Order To Extradite Husband From US

In the present case, several proceedings were lodged against the appellant (husband) and the respondent (wife) against each other. As a result of such proceedings, the appellant's passport, who was residing in the USA, was impounded.

In one such case of domestic violence filed by the respondent against the appellant, her mother-in-law and five other relatives, a notice was issued to the appellant. However, when the matter was listed again, as the appellant was not present, the court directed authorities to initiate the extradition process. When challenged, the High Court affirmed this order. Thus, the present appeal.

At the very outset, the Court noted that the Trial Court had grossly erred in directing the physical presence of the appellant. "We may observe that as the proceedings under the DV Act are quasi-criminal in nature, thus, there cannot be any justification to require the personal presence of the appellant in these proceedings.", the Bench of Justices Pankaj Mithal and Sandeep Mehta said.

Apart from this, the Court also pointed out the appellant's inability to travel to India because of the impoundment of his passport. Taking a cue from this, the Court said:

“Consequently, the order of the learned JMFC directing the initiation of extradition proceedings against the appellant as a consequence of his non-appearance, despite being aware of the fact of impounding of the passport of the appellant, is untenable and unsustainable in the eyes of the law.”

The Court also said that the High Court should have considered this and passed a reasoned order. Imperatively, the Court made another important observation that the impounding of the appellant's passport was ex-facie illegal. Referring to a landmark judgment in this regard, Maneka Gandhi v. Union of India and Anr., the Court said that the appellant was not given an opportunity to be heard.

“This clear violation of the principles of natural justice renders the act of impounding the passport ex-facie illegal. Consequently, we hold that the concerned authorities should release the appellant's passport within a period of one week from today.,” the Court directed.

It is pertinent to note that, during the proceedings, the appellants had also filed a petition, invoking the Court's inherent power, to seek dissolution of marriage on the grounds of irretrievable breakdown. To examine the same, the Court reproduced the factors discussed in Shilpa Sailesh v. Varun Sreenivasan and Kiran Jyot Maini v. Anish Pramod Patel, for determining irretrievable breakdown including the period of cohabitation after marriage; the gravity of allegations made by parties and impact on the personal relationship.

Adverting to the facts of the case, the Court observed that the parties resided together for a short duration of 80 days in the USA and have been living separately ever since. Apart from this, multiple cases have been filed by them against each other, which include cases related to criminal cruelty, restitution of conjugal rights and domestic violence. In addition, the Court noted that attempts to resolve the dispute between the parties have been unsuccessful.

“The aforesaid facts give us the impression that there was hardly any cordiality or meaningful marital relationship that flowed from the marriage between the parties. It is evident that the relationship between the parties appears to be strained from the beginning and has further soured over the years.''

Based on this, the Court concluded that the present case is of irretrievable breakdown of marriage. As far as alimony is considered, the Court relied upon several cases including Parvin Kumar Jain v. Anju Jain, to highlight a list of factors while deciding the same. After scrutinising everything, the Court directed the appellant to pay Rs. 25 Lakhs as a one-time settlement for alimony.

Thus, while quashing the impugned judgment, the Court also passed a direction that all the criminal cases and civil cases pending between the respondent and the appellant shall stand closed.

Case Name: VISHAL SHAH v. MONALISHA GUPTA & ORS., Arising out of SLP(Crl.) No(s). 4297 of 2023

Citation : 2025 LiveLaw (SC) 240

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