Criminal Defence and Marital Litigation

NRIs and PIOs: 498a FAQs

प्रवासी भारतियों तथा भारतीय मूल के व्यक्तियों हेतु ४९८अ प्रश्नावली


Introduction

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It is fairly common for highly educated men or men with technical qualifications or computer engineers aka techies and their families to get trapped in 498a cases. Many such men go abroad to seek their fortune. They –just like their brethren in India– epitomise the intelligent and educated man who wishes to rise in life through hard work and perseverance in his chosen field; the man who has no room in his life for lying or stealing to make money. It is therefore ironical –and very distressing for any justice loving person– that such men and their parents are accused of trying to get rich quick through the dowry route by the kind of women whose main common aim at the time of choosing such men is to get a comfortable life without hard work.

The usual pattern in NRI and PIO marriages is for the woman –be she India based or foreign based– to come to India on some harmless pretext, or after creating a scene as soon as she realises that this man is not going to be her puppet. When she reaches India, she approaches any unscrupulous lawyer and gets a dowry complaint drafted with a mixture of truths, half-truths, misrepresentations, and outright lies. She makes accusations of dowry torture against her husband, pertaining to the short period when they were together in India. She also adds plenty of masala about the time spent abroad.

There is also a particularly vicious kind of wife, who feels great pleasure in embellishing the vanilla dowry charges with other, wilder accusations. This may also be seen as an evolving trend in the 498a industry (read the note below about the Prince Tuli case). Such a woman may choose a few allegations out of assault, criminal intimidation, causing hurt, unnatural sex, bigamy, cheating, rape, attempted murder, outraging of modesty and domestic violence.

The illogicality of her accusations does not concern her. Sadly, society takes a very lenient view of women making outlandish accusations against the men in their lives. Very commonly it is mentioned in court judgements in India that the charges were dismissed because the judge discovered that the wife made the accusations in a fit of rage. Interestingly, men are quite often given the death penalty for crimes committed in anger. Similarly placed women usually get away scot-free despite the fact that making baseless accusations is a serious crime.

Then she approaches the local police and files the complaint.

The police write to the NRI husband's parents in India. When the NRI husband learns about the complaint, he feels amazed and shocked at the outright lies, and he starts suffering from various fears and anxieties related to his job, his parents, his eligibility to continue travelling freely between countries, and police procedures. Some of the major fears concern being declared a proclaimed offender; a red corner notice being issued by interpol against the husband; being extradited; being able to get bail and to join work in his country of usual residence. Here this writer tries to explore some of these questions –a dissertation which is doomed to be superficial due to restrictions of length to maintain readability. These questions are, in reality, legal themes requiring extensive treatment which can and does span several tomes.

Extradition of Foreign Citizens to India, in Marital Disputes: Is it a possibility?

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The short answer is no. If you are a citizen of the country where you are living, then your government has the power to extradite you only in cases where you have committed a crime which is recognised by both countries as a crime. No country other than India considers dowry harassment a crime. A variation to this rule is found in certain countries which never extradite their own citizens, regardless of the charges against them. This of course does not take into account situations where the country which wants the accused starts bombing the country which is sheltering him in his capacity as its citizen.

If the government of India wishes to extradite you from your country for other crimes mentioned in the FIR, then they have to follow a legal procedure in which the local national government has to prove to the local courts that the charges against you are prima facie true. It is a major diplomatic step for the Government of India to mobilise the engagement of lawyers in another country to plead before the local courts essentially on behalf of our sovereign state.

Further, if the result of the court proceedings is negative for the Government of India, then deterioration in diplomatic relations is pretty much inevitable, because our country suffers tremendous loss of face in such a situation. Witness the deterioration in India-Denmark entente due to the rejection of the Danish government petition in the Purulia arms drop accused Kim Davy extradition trial.

Such a risky endeavour will not be undertaken just to bring a man accused of certain marital crimes by his wife, to India. Not even if she accuses him of unnatural sex. Unless there is a media uproar here subsequent to the unnatural sex allegations. Then all bets are off. But you can count on a long long stay in that country before they are forced to send you back, because your free legal aid lawyers will raise at least ten legal points pertaining to Indian, local, and international law, which the government of that country will not be able to counter easily.

(A note on allegations of unnatural sex against husband by wife: This is a very interesting thing which this writer noted in the news recently. A former miss world accused her husband (Prince Tuli) of unnatural sex. The husband is a frequent world traveller, and has a home in at least one other country apart from India. The nature of the allegation is worth examining in a little detail. The allegation pertains to a crime which is covered under a different section of the IPC than rape. Since marital rape is not a crime in India, the Government of India will not extradite any man accused of that crime.

However, an IPC section which covers what is commonly considered to be a crime in India even if committed by a husband against his wife takes care of a number of things. Needless to mention, sexual assault of any variety is considered to be a crime in many countries even if committed by a husband against his wife, and hence extraditable. The complainant wife may be counting on a media scandal, and may have decided to cover the possibility of her husband going offshore to avoid or to prolong proceedings. She may have been advised that the man will be extradited in such a situation, since it is a crime in India as well as in a number of other countries. It is possible that such allegations against husbands may become more common in the future. This allegation, if made against a man resident in India, may be being used as a ruse to take advantage of the anonymity guaranteed by law to sexual assault complainants. The bride will be doing this with a view to avoid social ostracism which will be inevitable consequent to publicised dowry allegations.)

Red Corner Notices and related questions

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If you are a foreign citizen living in a country which is not your own country (i.e. a third country) OR planning to arrive in such a country, then that government has the right to extradite you to the country which got the red corner notice issued, but normally will not start extradition proceedings unless there is a red corner notice duly issued by interpol in your name. A red corner notice is a guarantee to instant global notoriety or fame, and rest assured that if the Government of India manages to get one issued for your arrest, then your name will be taken in the same breath as Hafiz Saeed, Ottavio Quattrochi, and Julian Assange.

Letters Rogatory in Marital Disputes

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A letter rogatory may be organised by your wife against you if she is extremely influential within India, and has made allegations pertaining to her stay with you in your country of residence. This sort of letter is a formal request or a set of requests made by India to that country to prosecute you or to take your deposition or to gather material / evidence against you. Each of these requests made under any particular LR have to be in consonance with Indian procedure, Indian law, commonly accepted international procedure OR procedure as established over time between the two countries, international law, the law of that country, and the procedure of that country in order to cause legal action against you. On top of all this there is the interference and procedural delays of the two foreign ministries of the countries involved. Plus there are all the levels of courts where you can appeal in that country, and all the levels of courts where the Indian government can appeal against your wife's petition in India, if it so desires, and if it is not a co-petitioner with her. An attempt by her to organise an LR in order to hurt you is pretty much a futile exercise except if she wishes to generate publicity against you. Even in that situation she faces the risk of her being laughed out of court, and the subsequent media humiliation.

Extradition of Indian Citizens to India in Marital Disputes

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If you are a citizen of India, then the government of India cannot extradite you in situations where it cannot extradite non-citizens. However, it can cancel or revoke your passport and get you sent back home if you are in a country where the government can exert diplomatic pressure. India has the second largest diplomatic corps in the world, and many of them are very professional, with a reputation that matches their skills. However, the Gulshan Kumar / Nadeem Saifi case shows that even Indian citizens may be able to successfully resist extradition. Readers might also be aware that Lalit Modi and Sangeeta Richard (the maid in the Khobragade case in America) have both had their passports cancelled by the Government of India in separate bids to extradite them. Both the actions resulted in varying amounts of bad publicity, with the latter case in particular boomeranging in an exceptionally strong manner on the Khobragade woman –who still cannot make out what hit her, by all accounts.

Proclaimed Offender Status

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If an accused person does not come to India, or does not surrender before the court or the police even after getting repeated summonses or warnings to do so, then a competent court may declare such a person a proclaimed offender. Getting proclaimed offender status is a surefire guarantee that such a person will find it impossible to get bail after being caught and arrested if he ever decides to return to India. A red corner notice means that the P.O. is internationally recognised as such.

Deportation of Proclaimed Offenders to India

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Another thing that has happened sometimes is that a person has been deported to India by the local authorities on some pretext, without waiting for the local judiciary to scrutinise the extradition request. This writer is not aware of the different ways in which local citizens, citizens of India, and foreigners have been historically treated or classified for the purpose of differential treatment in such situations, although logic and international law dictates that a foreigner should be deported to his own country, not to India.

Lookout Notice/Alert

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Lookout notices or alerts are issued to airports and various points of entry at international borders to arrest a particular person who may or may not be a proclaimed offender upon an attempt to enter or to leave India. Or to not permit a particular person to enter or to leave India. Husbands accused in 498a cases do not normally need to worry about this sort of treatment, unless they refused to come to India for a long time after being accused.

Do not get confused if you see the acronym LOC in the context of lookout notices. It means Look-Out Circular –a circular being the same thing as an internal notice or a memo. This language is used due to the limited circulation of some such notices, which is to say that the notice may not be publicised to the general public in certain cases and may be viewable only by a limited audience.

In Conclusion

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Further note that the number of accused persons extradited from the rest of the world to India in the last 10 years –including foreign citizens as well as Indians– is not more than 40 to 50.

Exemption from Personal Appearance in Court Proceedings for NRIs/PIOs

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As soon as an NRI gets a notice of a complaint against him u/s 498a/406/34, he should ask his lawyer in India to apply for anticipatory bail, and should get anticipatory or interim bail of a long duration, while continuing to remain in the country where he works. Section 205 of CrPC enables him to do so. Upon getting relief from a competent court, the NRI should fly to India, and execute the bail bond for security in front of a competent officer. Then he should apply for exemption from personal appearance in further proceedings, before a competent court. After getting this relief in full or in part, he can fly back and continue his job. It is also not a bad idea for an NRI/PIO husband to be mentally prepared to face jail for a short time in extreme situations.

Criminal Defence and Marital Litigation




Written by
Published by Manish Udar

Page Created on
Last Updated on 28th September 2014


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