New Delhi: On November 13, the Supreme Court issued a notice to the Centre to file a reply within six weeks on the feasibility of having a policy on the issue of bringing to book Non-Resident Indian husbands who abandon their wives.
The apex court issued the notice while hearing a joint petition filed by eight such women seeking guidelines to be followed by the police, the immigration services and embassies to ensure speedy justice.
The lead petitioner in this case (name withheld on request) got married to a permanent resident of Australia. Her husband abandoned her when she was two months pregnant. Her visas were unilaterally cancelled. Due to trauma, she suffered a miscarriage. Her husband evaded all court summons and police notices. His passport was kept on hold for renewal by Consulate General, India, Sydney and he was advised to use emergency services to travel to India to sort out the matter. But her husband has allegedly breached that advise to avoid coming to India. Her application for issuing a non-bailable warrant against him has not yet met with success.
Meanwhile, the first petitioner met seven other abandoned women on twitter while tweeting to the Union minister for external affairs, Sushma Swaraj or each other to find out if any action had been taken in such cases. Three of them became volunteers at the Regional Passport Office, Chandigarh. That is when they realised that the problem had reached epidemic levels. Finding that the present laws are inadequate to deal with the issue, they decided to file a Public Interest Litigation petition jointly in the Supreme Court.
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The petition makes startling allegations about the apathy of the Centre, the National Commission for Women and its officials towards them. Here is a sample:
- Abandoned brides repeatedly write to the embassies requesting them to find out where their husbands are, and responses are rarely received.
- When the women contact the police of the foreign country directly, they are informed that privacy laws do not permit the police to give away the location of their husbands.
- In the absence of statutory rules, the authorities adopt arbitrary approaches. In Chennai, the authorities demand a copy of the charge sheet and refuse to impound passports even if there is a court summons or a non-bailable warrant.
- Some of the members of the NCW engage in victim shaming. When some of the abandoned women met the Chairperson of the NCW in March 2018, her first caustic remark was “Who asked you to marry an NRI?” “This is typical of the attitude of the Indian government, but it is shameful for a statutory body established for the defence of women’s rights to take the same negative approach.
- When discussions were held with officials of the MEA and women asked them as to how they could possibly recover their money and assets (given as dowry) from their abandoned husbands, they were told that the women should consider their husbands as dead and move on. “Callousness and insensitivity on the issue prevails in the Union administration”, says the petition.
- No legal aid is provided to the NRI abandoned brides by National Legal Services Authority (NALSA) or the State authorities.
Impounding of passports
The petition draws attention to Section 10(3)(h) of the Passport Act, 1967, dealing with variation, impounding, and revocation of passports and travel documents as follows:
“(3) The Passport Authority may impound or cause to be impounded or revoke a passport or travel document –
(h) if it is brought to the notice of the passport authority that a warrant or summons for the appearance, or a warrant for the arrest, of the holder of the passport or travel document has been issued by a court under any law for the time being in force or if an order prohibiting the departure from India of the holder of the passport or other travel document has been made by any such court and the passport authority is satisfied that a warrant or summons has been so issued or an order has been so made.”
Before June 2011, passports of such abandoned husbands were never impounded or revoked. When the women got together and protested the non-implementation of the above provision of law, the Chandigarh Regional Passport Office began impounding passports.
The petition reveals that 14 passports were initially impounded, when the petitioners began volunteering at the RPO, Chandigarh. Now, the number of such impounded passports is about 100. All RPOs have the power to impound passports, but they don’t. Only the Chandigarh RPO understood the problem, and empathised with the girls. The petitioners were told that the government did not have adequate human resources to follow up with this work.
The petition further reveals that there are about 12,000 complaints regarding NRI abandoned brides in Punjab alone, but the number of passports impounded so far is disproportionately small. Petitioners claim that abandoned brides have been rebuffed by passport authorities in Delhi, Chennai, Hyderabad, Ghaziabad and Mumbai, when they sought penal action against their husbands.
Revocation of passports is resorted to in the face of repeated refusal to respond to successive summons/non-bailable warrants issued by the Courts. It is the strongest possible measure for the enforcement of the rule of law. As the result of revocation, the legal justification for the stay of the husbands in foreign countries vanishes. According to the petition, out of 40,000 cases, only eight passports have been revoked and some of the men surrendered in India in May 2018.
When spouses are taken abroad, it is usually on a tourist visa/spouse visa. The latter are typically sponsored by the spouse, who then attains full control over his wife. The husband withdraws his support for his wife unilaterally, resulting in her deportation. The usual strategy, the petition claims, is for the husband to inform the authorities in the country where he is residing, that his marriage has irretrievably broken down and on receiving this information, the authorities treat the visa as cancelled and deport the wife.
The petition makes MEA, the ministries of home affairs, law and justice, women and child development, National Commission for Women, the Delhi Commission for Women and the Maharashtra Women’s Commission, as respondents.
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Apart from filling the gaps in Section 498A of the Indian Penal Code, dealing with punishment for cruelty to married women to enable to extradition and deportation of NRI husbands who abandon their wives, the petitioners also seek application of Sections 420 (dealing with cheating and dishonestly inducing delivery of property) and 376 (punishment for rape) in such cases.
If men run away after getting the women pregnant, it tantamounts to rape, as the men had entered into physical relations with a malafide intention, the petitioners argue. Applying Sections 420 and 376 would also make extradition of such husbands easy, and the government can approach the Interpol in that case, they suggest. Interpol does not consider offences under Section 498A as grounds for taking action, because they are matrimonial in nature. NRI marriage fraud, in reality, is a mix of offences such as assault, rape, and cruelty.
Therefore, the MEA guidelines for Indian law enforcement agencies for extradition of fugitives from abroad must apply, the petitioners argue.
The petition understandably does not touch the issue of divorce, as not giving divorce is the only way to keep the woman’s legal rights, at least on paper. Abandoned women do not want to divorce for the simple reason that divorce is what the husband actually wants in order to absolve himself of any responsibility. Therefore, abandoned women consider divorce as literally setting their husbands free. Even if the husband files for an ex parte divorce in the foreign country, the woman sees merit in challenging it in India.
The petition prays for suitable directions from the Apex Court to the Indian embassies and High Commissions to play a proactive and compassionate role in coming to the aid of abandoned NRI women by locating the whereabouts of the husbands, engaging legal counsel abroad to represent the women and to take other steps to secure the arrest and deportation/extradition of the husbands to India.
A similar petition, filed by Delhi Sikh Gurudwara Management Committee, which also makes the National Human Rights Commission a respondent, is pending in the Delhi high court, and is slated for further hearing in January next year.