I live abroad. I got married several years ago, and we immediately moved to our home abroad. Pretty soon thereafter my wife returned to India and filed for divorce. The matter has been in court. I have requested court to allow me to submit evidence by videoconferencing, because of my weak financial situation. The court has not passed an order on this application for 2.5 years. Soon after filing for divorce, my wife filed for interim maintenance under CrPC 125 based on lies. The summons were sent to my paternal home, where I haven't lived for decades, and hence I never received them. The family court passed an ex parte order favoring my wife for a large amount of maintenance based on the lies my wife told the court. The fact is that I have a low-level job and I earn a small salary, and can not afford to pay even a fraction of the ordered maintenance. Once my lawyer found out about the order, we filed a CrPC 126(2) application to restore. That was 2.5 years ago - the court has still not passed an order on my restoration application. In the meantime, maintenance arrears keep growing - I haven' paid any maintenance yet...as I can't and have been waiting for order on my CrPC 126(2). Two recovery orders have been passed for very large sums. Now the family court has said if I don't present myself physically on the next date, it will send recovery order to the embassy and order the cancellation of my passport. I am quite worried. If I do scrape together the money to present myself physically in the court on the next date, I do not have the means to pay the ordered large interim maintenance or indeed the vast sum per the recovery orders covering about 3 years worth. So sounds like I would end up in the lockup. What's my recourse here? QUESTIONS 1. Does the family court have the authority to order the Ministry of Foreign Affairs, Passport Authority or Indian Embassy to impound or cancel my passport? If not, can you please share relevant citations or legal clauses? 2. If the family court does order MFA/ Passport Authority or Indian Embassy to impound of cancel my passport, can I appeal that order in the High Court? If so, while my appeal is pending, would the MFA/ Passport Authority/ Indian Embassy wait to enact the order on my word that the matter is sub-judice, or will I have to explicitly request an interim stay from the High Court? 3. I am applying to the High Court requesting it to order the family court to immediately pass an order in my 126(2) restoration case. If the High Court rules in my favor, and then the family court restores the case, am I correct in assuming that any outstanding recovery warrants are null and void?
You can appeal against impugned order of cancellation of your passport before HC
2) you need stay order from HC
3) HC would not pass any stay order unless 50 per cent of arrears of maintenance are paid
4) you should immediately file appeal against present family court order to remain present on next date . Take the plea that your application under section 126(2) is pending but has not been decided by family court . It is not possible for you to come down to india due to work commitments
1. Impoundiing will not be done by court. The power is only with passport authority
2. Yes only passport authority will so so by giving you prior notice to reply.
3. If the HC setasides the order then it's null and void
1. Yes, the family court is competent to pass such an order.
2. You may appeal to the high court and obtain stay. Unless the stay is obtained, the authority concerned will act on the family court's order.
3. It does not automatically mean so. You still have to fight it out.
1. The family court or even the supreme court cannot impound or p[ass an order to cancel the passport without following the provisions of law under Indian passport act.
2. The family court do not have powers to cancel or impound passport neither it can pass an order to the ministry of external affairs to do so.
3. The arrears cannot be waived just because your petitioin under section 126 cr.p.c. has been allowed.
That is a different subject to the orders passed in the maintenance application.
1. Yes. a Court has its power to call the husband from abroad under the following provisions, i.e.
The Ministry of External Affairs, has, on the basis of Look Out Circulars/Non-Bailable Warrants/Summons/Court Notices, suspended passports under Section 10A of the Passports Act, 1967 and impounded/revoked under Section 10(3) of the Passports Act, 1967, of Non Resident Indians (NRI) husbands for deserting their wives.
2 You can move an application for setting aside the ex-parte decree passed against you, and if already filed then due to being delay , you can approach the Higher court to stay the maintenance order till the final decision of the moved application .
3. Legally , a wife is entitled to get maintenance from her husband , hence after restoration of the case you can produce your evidence against her .
Normally the family court cannot impound or pass an order to cancel the passport. They will issue to surrender before the court. The court can send summons through the external affairs ministry.
Maintenance means appropriate food, clothing and lodging that are necessary for one's sustenance. But in an extended meaning, it includes also the expenditures that are incurred towards health and education. In the case of children, mere maintenance of the body is not sufficient. Maintenance is not merely a legal right. It is part and parcel of basic human rights. For weaker sections, it is a problem in the sense that their very survival rest on the maintenance. The object behind the provision is two-fold: first, to prevent vagrancy resulting from stained relations between the husband and wife, and secondly, to ensure that the indigent litigating spouse is not handicapped in defending or prosecuting the case due to want of money.
you can approach the Higher court to stay the maintenance order until the final decision of the moved application.
This is a follow up to my OP about authority of family court to direct MOA/PA to impound/cancel passport for not physically appearing for evidence in HMA 13 https://www.kaanoon.com/372141/can-family-court-order-impounding-or-cancellation-of-passport Per The Passport Act 1967 > https://www.indiacode.nic.in/bitstream/123456789/1372/1/196715.pdf > > clause 10 > > 3 The passport authority may impound or revoke a passport > (d) if the holder has, at any time after the issue of the passport, been convicted by a court in India for any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than two years; > (e) if proceedings in respect of an offence alleged to have been committed by the holder of the passport are pending before a criminal court in India > (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 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. > > 7 A court convicting the holder of a passport of any offence under this Act or the rules made thereunder may also revoke the passport or travel document: Provided that if the conviction is set aside on appeal or otherwise the revocation shall become void. I have 2 questions: 1. Am I correct that 10(3)(d) does not apply as non payment of maintenance or not appearing physically for HMA13 evidence is not moral turpitude. 10(3)(e) does not apply as CrPC 125(3) is not a criminal statute & family court is not criminal court. 10(7) does not apply as it relates only to conviction for offences under Passport Act 2. Further, does recovery "warrant" under 125(3) satisfy 10(3)(h) ?
1. The question is whether the court can impound the passport or not?
The court cannot do it.
The courts do not have power to impound passport.
The passport authority only has that power under section 10 of the passport act.
2. No.
1. If any warrant or summons pending then it will be applicable.
2. It will lead to attachment
1) You are correct that section 103 (d) is not applicable
2) further section 103 (e) is not applicable
3) section 10 (7) is not applicable in your case
Dear client,
1) yes, you are correct.
2) yes, it does
thank you
