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Troubled Husband   17 June 2018

Impound of passport

Good Day to All,

I am undergoing a divorce proceeding since 2 years against my wife (I have filed for a divorce). Immediately she has put up many cases against me for domestic violence & Civil case for maintenance. DV is not a 498 case as our marriage was more than 7 years. During the proceedings Court ordered 15000 as interim maintenance in DV case. And 35000 as interim maintenance in marriage case. I’m a jobless since the whole problem started and am unable to pay such a huge interim maintenance. 

We tried to have a settlement out of court but she is asking for huge sums of money, nearly Eighty lacs and a house to stay. I am in no position to pay such amounts.

I have put up an appeal in the high court as I’m unable to pay such huge amount. But as per the high court I have to pay the arrears before they can proceed with my request. The arrears have piled up to nearly 1450000. I can not pay such big amount. My lawyer has advised me to go absconding and find a job and live in privacy until she comes to reasonable terms.

The local court has issued summons for recovery of maintenance against me. And soon there may be a distress warrant issued as well. 

If I go absconding, and search for a job out of India can My passport be impounded or revoked by the passport authorities? If yes how easy is the procedure to request the same. Will the passport authorities consider distress warrant and summons against me a reason to impound my passport? As me and my lawyer are hoping that in a years time we may be able to break the ice and have a compromise outside court. 

Please advuse.



Learning

 18 Replies

Vijay Raj Mahajan (Advocate)     17 June 2018

Very great advocate you engaged for your case, soon he'll land you from where your agreeing to her terms and conditions rather breaking ice from her side. Don't worry sooner the wife will not only seek court order for impounding passport may even try getting look out notice issued against you that get you arrested at immigration of any international port in India whenever you try escaping the country. Highly misguided person by advocate calling for lots of trouble, this what I can tell now.
1 Like

Kumar Doab (FIN)     17 June 2018

Yours and your lawyer’s strategy, IT’s finesse, nuances and the recourse sought from the strategy is possible or not, is known to you alone.

The un-conventional, un-orthodox approach (of your said lawyer) is to be understood by you alone since you are the OP for your estranged spouse, client (cash cow for some) for your lawyer, and may be currently or in times to come accused/judgment debtor/absconder /PO etc etc …….for state/courts…

IT is you whose present, future is at stakes..SO IT is your call.

As per you if your current lawyer is a maverick with law then be assured he/she is not alone there must be others (even more competent) LOCAL Senior counsels of unshakable repute and integrity specializing in Family/criminal matters and well versed with latest citations, LOCAL applicable rules/laws/ … and having successful track record…. and worth his/her salt…..at your location…or even at jurisdictional HC and SC…

You have the simple recourse to approach such counsels….and ascertain if you are in right direction or not.

The 2nd, 3rd and even next opinion can make everything clear to you…

Thereafter IT is your call to realize if the approach or your Lawyer is self invented, without any merit and scope for you and your case, and thus you should stick any more with your lawyer or change the lawyer….ASAP.

 

Pls post the opinion of senior LOCAL counsels in this thread for everyone’s benefit……

1 Like

Kumar Doab (FIN)     17 June 2018

Originally posted by : Troubled Husband
Good Day to All,

I am undergoing a divorce proceeding since 2 years against my wife (I have filed for a divorce). Immediately she has put up many cases against me for domestic violence & Civil case for maintenance. DV is not a 498 case as our marriage was more than 7 years. During the proceedings Court ordered 15000 as interim maintenance in DV case. And 35000 as interim maintenance in marriage case. I’m a jobless since the whole problem started and am unable to pay such a huge interim maintenance. 

We tried to have a settlement out of court but she is asking for huge sums of money, nearly Eighty lacs and a house to stay. I am in no position to pay such amounts.

I have put up an appeal in the high court as I’m unable to pay such huge amount. But as per the high court I have to pay the arrears before they can proceed with my request. The arrears have piled up to nearly 1450000. I can not pay such big amount. My lawyer has advised me to go absconding and find a job and live in privacy until she comes to reasonable terms.

The local court has issued summons for recovery of maintenance against me. And soon there may be a distress warrant issued as well. 

If I go absconding, and search for a job out of India can My passport be impounded or revoked by the passport authorities? If yes how easy is the procedure to request the same. Will the passport authorities consider distress warrant and summons against me a reason to impound my passport? As me and my lawyer are hoping that in a years time we may be able to break the ice and have a compromise outside court. 

Please advuse.

 

If you were jobless while the whole problem started then how come court arrives at such high figures?

If you had termination order then did you produce IT before your lawyer and court?

Or your spouse placed before the court the list of your assets and that you are hale and healthy and can work and earn to maintain the family.

The court must have awarded after considering al rival contentions and facts on record.

IT is felt that based on points in your query as above you and your lawyer must have not failed to convince the court to not to award such high amount of maintenance.

The demand of high sum for out of court settlement also is probably pointer to your assets… known to your spouse or……………the person that can come forwards and bail you out from situation by making the payment awarded by court or demanded out of court!

1 Like

Kumar Doab (FIN)     17 June 2018

 

GO thru and understand;

 

 

 

 

 

 

 

 

 

THE PASSPORTS ACT, 1967 [Act No. 15 of 1967 dated 24th. June, 1967]; 10

https://portal1.passportindia.gov.in/AppOnlineProject/pdf/passports_act.pdf

The Code Of Criminal Procedure, 1973; 82, 83, 125

{ More so 125(3) ………………………..

If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month' s allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

 

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: ‘}

 

https://indiankanoon.org/doc/445276/

1 Like

Kumar Doab (FIN)     17 June 2018

 

 

GO thru judgments on matters of A.B.A (Anticipatory Bail Applications) to start with jurisdictional HC

e.g;

 

Jharkhand High Court

Mahendra Kumar Ruiya vs The State Of Jharkhand And Another

14. Now coming to the facts of this case and the orders passed in P.C.R. No. 416 of 2006 I find that proclamation as required under Section 82 Cr.P.C. has properly not been done and no statement as required under sub-section (3) of Section 82 Cr.P.C. has been recorded. The issuance of process under Section 83 Cr.P.C. vide order dated 22.11.2012 also do not appear to be in accordance with law because the requirement of Section 82 Cr.P.C. has not properly been complied with.

15. Let us come to the facts of the case from which it is clear that the complainant instead of filing any application before the Hon'ble Calcutta High Court informing about the agreement executed between the complainant and the accused persons for seeking any relief, lodged the present criminal case. The complainant has failed to bring on record that the petitioner had received earnest money in cash from him. So far as demand draft is concerned it was submitted that the petitioner had not deposited the same for its encashment.

16. In the aforesaid circumstances, the petitioner is directed to surrender before the court-below within three weeks from today and if he does so he shall be released on bail on furnishing bail bond of Rs. 10,000/- ( Ten thousand) with two sureties of like amount each to the satisfaction of the Chief Judicial Magistrate, Deoghar in connection with P.C.R. Case No. 416 of 2006, corresponding to T.R. No. 991 of 2012, subject to the conditions as laid down under Section 438(2) of the Code of Criminal Procedure.

 

 

https://indiankanoon.org/doc/159929043/

Kumar Doab (FIN)     17 June 2018

Relate your matter with stance taken by courts from time to time;

Allahabad High Court

Ganga Prasad vs Smt. Gomti on 14 February, 2000

Equivalent citations: 2000 CriLJ 3914, I (2001) DMC 241

Author: S Agarwal

Bench: S Agarwal

 

2. I have perused the judgment and order dated 2.5.1996 by which the warrant for realisation of arrears as well as warrant of arrest against the opposite party-applicant was issued.

 

5. The only flaw in passing the above said order prima facie apparent is that the Court has not taken care of complying with the proviso to Sub-section (3) of Section 125, Cr.P.C. According to the proviso no arrears beyond a period of twelve months from the date it falls due can be recovered. As a matter of fact an application for the recovery of arrears of maintenance amount beyond one year is barred by the proviso. Thus the above order stands modified to this extent. Learned Magistrate is directed to issue fresh recovery warrants for the period of one year alone. Arrest warrant may be issued only if the applicant fails to satisfy the recovery. Arrest warrants cannot be issued until applicant fails to pay the arrears so claimed on him by the recovery warrant.

6. In view of the above discussions the order dated 2.5.1996 stands modified to the extent that arrears for one year alone may be recovered from the applicant i.e., from 2.5.1995 to 1.5.1996.

7. With this modification this revision application is dispored of.

https://indiankanoon.org/doc/444025/

Kumar Doab (FIN)     17 June 2018

 

Orissa High Court

Sabita Kumari Nayak And 3 Ors. vs Satrughan Nayak And Anr. on 24 December, 1997

Equivalent citations: 1998 CriLJ 2713

Author: A Pasayat

Bench: A Pasayat, A Deb

1. Scope and ambit of Section 125(3) of the Code of Criminal Procedure, 1973 (in short, the 'Code') is the subject-matter of this writ application.

5. It has to be noticed that the proviso to Sub-section (3) of Section 125 of the Code in clear and categorical terms put an embargo on the power of the Magistrate to issue any warrant for recovery of the amount due unless the application is made to the Court within a period of one year from the date on which it became due. The first proviso to Sub-section (3) of Section 125 prescribes the period of limitation for an application for recovery of any amount of maintenance from the date from which it became due. 

6. In the peculiar circumstances, we are of the view that opposite party No. 1 is liable to pay for the period from 21-7-1982 to 15-11-1989. The subsequent memorandum dated 13-12-1990 being not in accordance with law, same has been rightly not acted upon by the learned Judge, Family Court. We direct opposite party No. 1 to pay the arrear maintenance after adjustment of payment if any made within two months from today. This order is being passed in the peculiar facts and circumstances of the case, particularly taking note of the claim by minors who are petitioners 2,3 and 4 who in a given case may be entitled to extension of the period of limitation in terms of Section 4 of the Indian Limitation Act, 1963 read with Section 29(2) thereof.

The writ application is disposed of accordingly.

 

https://indiankanoon.org/doc/41284/

 

Kumar Doab (FIN)     17 June 2018

Delhi High Court

Manjeet Kaur vs Tej Pratap Singh on 20 February, 2007

Author: A Sikri

Bench: A Sikri

 

2. It is the contention of the petitioner that the execution was filed on 12.8.1991, which was well within the period of limitation as the maintenance application was decided on 3.6.1991. In this petition warrants of attachment were passed, which were sought to be executed through SHO repeatedly. However, these warrants could not be executed as the whereabouts of the judgment debtor were not known. Only in 2001 when the present address of the petitioner was found, further warrants of attachment were issued

 

3. Perusal of the order of the learned ASJ would show that he has referred to Section 125(3) of the Cr.P.C. as per which application for recovery of amount under Section 125 is to be filed within a period of one year from the date on which it became due. Relying on the judgments of the Supreme Court in the case of Ganga Prasad v. Gomti 2003 Cr.L.J. 2394 and Savita Kumari Nayak v. Satrughan Nayak1998 Crl.L.J. 2713, he held that claiming of maintenance beyond a period of one year was, therefore, time-barred. The operative part of the order reads as under:

 

9…………………….3. I am afraid, the learned Sessions Judge has not correctly applied the provision of law; though apparently he has stuck to the strict terminology used in the section. This Court (A.M. Ahmadi, J.) in parmar Chimanbhai Ghemabhai v. Pasiben 19 G.L.R. 983, has specifically observed that the provisionis (first proviso to Sub-section (3) of Section 125 of the Code) are not in the nature of penal provisions but are welfare provisions and hence the rule of strict construction cannot be invoked. The first proviso, Page 0888 which enacts a rule of maintenance must, therefore, receive a liberal construction as it is not intended to come to the rescue of a defaulting husband who neglects to honour his obligations and seeks to avoid payment of maintenance to his wife, though ordered by a competent Court. It is of course true that the facts in that case were different, but the principles enunciated would be applicable.

10. In the present case, stated at the cost of repetition, the petitioner had been diligently pursuing her remedy by filing execution petition well in time. If due to deliberate default and omission on the part of the respondent/husband she could not realise this amount earlier, that would not mean that the petitioner is to suffer and if such a course of action is taken, it would give premium to the respondent for his faults. The impugned order is accordingly set aside. The entire claim of the petitioner for arrears is held to be within time. The trial court may initiate necessary process while issuing attachment orders.

11. The petition is disposed in the aforesaid terms.

 

https://indiankanoon.org/doc/1507889/

Kumar Doab (FIN)     17 June 2018

 

 

Karnataka High Court

Dhareppa vs Smt. Renuka on 18 November, 2004

Equivalent citations: I (2005) DMC 684, 2005 (1) KarLJ 469

Author: S Majage

Bench: S Majage

3. Heard the learned Counsel for the parties. It was vehemently argued for the petitioner - husband that in view of the proviso to Section 125(3) of Cr.P.C, the arrears of maintenance cannot be recovered for the period beyond one year i.e., the amount of arrears accrued for more than one year up to the date of filing recovery petition cannot be recovered. 

13. Be that as it may, the impugned order requires to be interfered with so far as the recovery of arrears of maintenance for the period from 05.07.1996 to 26.10.2000 is concerned and not for the period from 26.10.2000 to 27.10.2001 i.e., for the period of one year earlier to the filing of petition to recover arrears of maintenance accrued till then.

No other point has been raised nor arises for consideration.

In the result and for the foregoing reasons, the petition is allowed in part, holding that the respondent - wife is entitled to claim arrears of maintenance for the period from 26.10.2000 to 27.10.2001 and not for the period from 05 07.1996 to 26.10.2000.

 

 

https://indiankanoon.org/doc/480670/

Kumar Doab (FIN)     17 June 2018

 

 

Supreme Court of India

Shantha @ Ushadevi & Anr vs B.G.Shivananjappa on 6 May, 2005

Author: A Mathur

Bench: P. Venkatarama Reddi, A.K. Mathur

It was submitted before the learned Single Judge of the High Court that under proviso to sub-section (3) of Section 125 of the Code of Criminal Procedure no warrant can be issued to levy the amount due beyond a period of one year. Therefore, the application i.e. I.A.No.1 filed in Crl. Misc. Petition No.47 of 1993 is barred by limitation.

 

We are, therefore, of the view that in the peculiar circumstances of the case, the bar under Section 125(3) cannot be applied and the High Court has erred in reversing the order of Sessions Judge. It must be borne in mind that Section 125 Cr. P.C. is a measure of social legislation and it has to be construed liberally for the welfare and benefit of the wife and daughter. It is unreasonable to insist on filing successive applications when the liability to pay the maintenance as per the order passed under Section 125(1) is a continuing liability. For the above reasons, we set aside the impugned order of the High Court and restore the order passed by the Additional District Judge, Tumkur in Crl. R.P. No. 194 of 2000. The learned Magistrate shall take appropriate steps under Section 125 (3) in case the arrears of maintenance is not paid within three months.

https://indiankanoon.org/doc/1928800/

Kerala High Court

Op (Fc).No. 1513 Of 2011 (R) vs By Adv. Sri.Babu S. Nair on 24 July, 2010

 

 

 

Under challenge in this Original Petition led under Arti Constitution led by the petitioner who has nally suer hands of the Family Court and this Court to pay mainten respondent, his wife, is Ext.P4 order passed by the Famil down his plea that Execution Petition No.996/2010 in wh passed by the Family Court is barred by limitation. The r remains absent notwithstanding the service of notice by K.Rakesh, learned counsel for the petitioner, relies on th Section 125(3) of the Code of Criminal Procedure.

 

The submission of M us is that the order of stay passed by this Court was a con as the petitioner failed to comply with the conditions, the stood vacated automatically and nothing prevented the r continuing with the execution. According to us, the petiti be and cannot be allowed to take advantage of his own w complying with the conditions imposed by this Court wh relief at his behest. At any rate, the issue is squarely cove the respondent by judgment of the Supreme Court in Sha Nanjappa (2005(4) SCC 468). It has been laid down there limitation period of one year provided in the proviso to S Cr.P.C. is applicable only as regards the rst execution pe we nd that the two earlier execution petitions were not They were only closed for statistical purpose. In either v Ext.P4 is a perfectly correct order. We dismiss this O.P.(FC).

 

https://indiankanoon.org/doc/9882902/

Kumar Doab (FIN)     17 June 2018

 

Madras High Court

Muthuvel vs Nalini on 8 September, 2015

The revision petitioner was directed to undergo imprisonment for one month for the arrears of each one month or until payment of arrears of maintenance, by the order dated 14.02.2012 in CMP No.40 of 2010 in M.C.No.50 of 2008 on the file of Chief Judicial Magistrate, Ramanathapuram. Challenging the same, the revision petition is filed in Crl.RC.(MD)No.123 of 2012.

2.The revision petitioner was directed to undergo imprisonment for one month for the arrears of each one month or until payment of arrears of maintenance, by the order dated 14.02.2011 in CMP No.94 of 2012 in M.C.No.50 of 2008 on the file of Chief Judicial Magistrate, Ramanathapuram. Challenging the same, the revision petition is filed in Crl.RC.(MD)No.124 of 2012.

3.These revision petitions, challenging the enforcement of the order of maintenance, is pending from the year 2012, for want of service of notice on the part of the respondent.

3.1. The respondent is not served for the past 3 years. The grounds of revision reveal that the issues raised are purely pertaining to questions of law and therefore, the non-appearance of the respondent will not cause any prejudice to the respondent. Therefore, orders are passed in these revision petitions, only by hearing the learned counsel for the petitioner.

 

17.In the light of the legal position indicated above, the contention of the learned counsel for the revision petitioner that the claim is barred by limitation is not acceptable. Hence, these revision petitions are devoid of merits and both the revision petitions are dismissed.

 

       

https://indiankanoon.org/doc/126398161/

 

Kumar Doab (FIN)     17 June 2018

Once again go thru from another perspective;

THE PASSPORTS ACT, 1967 [Act No. 15 of 1967 dated 24th. June, 1967]; 10  and more so sub sec;(3)

https://portal1.passportindia.gov.in/AppOnlineProject/pdf/passports_act.pdf

Judgment of the Hon'ble Supreme Court in the case of Suresh Nanda (Supra) has been referred and relied upon in many cases..

 

Andhra High Court

K.Sowmya vs The Regional Passport Officer And ... on 16 August, 2016

It is the case of the petitioner that she filed Domestic Violence Case No.9 of 2012 against her husband/2nd respondent on the file of XI Metropolitan Magistrate Court, L.B.Nagar, R.R.District. The Court below, after considering the oral and documentary evidence adduced on either side, awarded an amount of Rs.20,00,000/- towards compensation to the petitioner and Rs.30,000/- per month towards maintenance against the husband/2nd respondent, by an order dated 09.12.2013. Aggrieved by the same, the husband/2nd respondent filed appeal before the Additional Metropolitan Sessions Judge-cum-II Additional District and Sessions Judge, along with stay petition. Upon which, the II Additional Metropolitan Sessions Court partly allowed the appeal by staying the execution of the order for realization of compensation of Rs.20,00,000/- upon furnishing third party security, within a period of two weeks thereafter. As regards the maintenance and costs are concerned, no stay was granted by the appellate Court. However, the 2nd respondent failed to pay the same. When the 2nd respondent had not attended the Court proceedings and failed to comply the orders dated 09.12.2013, Non Bailable Warrant was issued against the 2nd respondent by the XI Metropolitan Magistrate on 14.03.2014 in Crl.M.P.No.502 of 2014 in DVC No.9 of 2012. Thereafter, the petitioner filed petition in SR No.5624 under Section 10 (3) (h) of the Passports Act for revocation/impounding the passport of the 2nd respondent. But the said petition was returned on the ground that the said petition is not maintainable as Passports Act, 1967 (for short the Act of 1967) has no application to the domestic violence cases under DVC Act.

 

 

As per Section 10(8) of the Act of 1967, an order of revocation under sub-section (7) may also be made by an appellate court or by the High Court when exercising its powers of revision. But in the present case, there is no conviction against 2nd respondent. However, non-Bailable Warrant was issued against him on 14.03.2014 but still 2nd respondent is not appearing, which is a serious matter and thus evading the arrest. In the instant case, since petitioners case falls under Section 10(3)(h) of the Act of 1967 as non-Bailable Warrant is pending against the 2nd respondent, it is for the 1st respondent to consider the case of the petitioner in terms of Section 10 (3) (h) of the Act and pass orders on the application of the petitioner. The Joint Secretary (CPV), Ministry of External Affairs issued Circular No.VI/401/1/1/2006, dated 04.06.2007 covering the issue. In the circumstances, the 1st respondent cannot direct the petitioner to obtain specific orders from the Court for impounding the passport of the 2nd respondent.

 

The 1st respondent has not properly applied his mind when serious issue was brought to his notice, abdicating his power. The counter filed by the respondent in D.Surendernath Reddys case also supports the petitioners case. However, the facts in D.Surendernath Reddys case and in the present case are different. Accordingly, letter No.30(454) Pol/2014, dated 20.10.2014 issued by the 1st respondent is set aside.

Following the principle laid down in the aforesaid decision of the Honble Apex Court, this writ petition is disposed of directing the 1st respondent authority to reconsider the application of the petitioner for impounding the passport of the 2nd respondent by taking into account Section 10(3)(h) of the Passports Act, 1967, pass appropriate orders, in accordance with the law, and communicate the same to the petitioner.

 

https://indiankanoon.org/doc/42793995/

Kumar Doab (FIN)     17 June 2018

Bombay High Court

Jignesh Prakash Shah vs Central Bureau Of Investigation ... on 4 June, 2018

Bench: Prakash Deu Naik

 

The illegality cannot continue in perpetuity. It is within the domain of the Passport Authority to initiate action under Section 10(3)(e) of the Passport Act. In the light of the observations of the Supreme Court in the case of Suresh Nanda (Supra), the decision can be taken by such Authority after hearing the passport holder. The illegal impounding therefore cannot be continued by handing over the passport by the respondents to the Passport Authority after a lapse of more than three years. However, it would be open to the Passport Authority to initiate any action under Section 10(3)(e) of the Passport Act. The passport, however, is required to be returned to the applicant. This order is without prejudice to the rights and contentions of the respondents any other Competent Authority, Passport Authority to initiate action and of impounding under the provisions of the Passport Act. It may not be understood that this Court has made any observations on the merits of the action to be initiated under the Passport Act. It may not be also understood that this Court has made any observations on the right of the petitioner to travel abroad, which has to be in consonance with the conditions imposed by the trial Court while rpa 38/39 revn-59-18.doc granting bail. The applicant shall strictly adhere to the conditions of bail imposed by the trial Court.

23 In view of the above, I pass the following order:

:: O R D E R ::

(i) Criminal Revision Application No.59 of 2018, is allowed;

(ii) The impugned order dated 28th September, 2017, is set aside and the respondent is directed to return the passport of the applicant within a period of three weeks from today;

(iii) The respondents / Passport Authority will be at liberty to initiate the proceedings for impounding the passport in accordance with Section 10(3)(e) of the Passport Act, 1967, and, in the event, such proceedings are initiated, the Passport Authority shall deal with the same in accordance with law, without being influenced by the observations made in this order;

https://indiankanoon.org/doc/35037449/

Kumar Doab (FIN)     17 June 2018

Madras High Court

Sankaranarayanan vs The Regional Passport Officer on 12 July, 2016

29….Before parting with the case, this Court, in view of the legal position that mere pendency of criminal cases would not operate as a bar or to process the Petitioner's application by the First Respondent, at this stage,simpliciter, directs the Petitioner to approach the concerned Criminal Court within a period of one week from the date of receipt of a copy of this order and to file necessary Miscellaneous Petition seeking permission to travel abroad. If such a petition is filed by the Petitioner, then the concerned Criminal Court is directed to take the same on file and to dispose of the same on merits(of course after affording adequate opportunity to other side in the manner known to Law and in accordance with Law). After obtaining necessary permission from the concerned Criminal Court for travelling abroad, it is open to the Petitioner to submit a copy of the said order before the First Respondent/The Regional Passport Officer, Madurai for redressal of his grievance and the Officer is directed to act in accordance with the said order, subject to the notification of the Central Government, as the case may be.

https://indiankanoon.org/doc/135451771/


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