• My wife jailed for entering India from Bangladesh border

Hi,
   I am married to a Bangladeshi girl for last more than 3 years. Since she didn't had legal Indian documents the marriage was just an formality without any documentation in a Temple. We were leaving happily since then but did not tried to register or make any documents of her to prove she is Indian citizen. Even we don't have marriage certificate. Whenever she wanted to visit Bangladesh we used to hire a agent who used to cross her over to Bangladesh illegally and bring her back in a month same way illegally.
   Now 2 days before she was caught by BSF while crossing back to India from West Bengal border. They shifted her to the local Police station nearby the border. I stay in Mumbai but am in touch with the Agent and local lawyer who is looking after the matter. The lawyer does not seem to be intelligent enough to handle this case so I thought to get some expert advise here. Today she was taken to court. The lawyer said since she did not have any documents to prove she is Indian and she has also given her Bangladesh address to the police it has become a problem to get her out from there. The court has given next date of 17th October 2015 where the lawyer will again try to get her out from jail.
   So now I am totally confused about how would I get her out of it. 
What would be the courts decision?
If she is jailed then what will be period? 
Is it possible I make some documents here in Mumbai like Pan card, Adhaar card of hers and get her out later on if she is jailed?
Is there a bail type that I ask my lawyer to apply now?

I know that we have broken the law but I don't want to loose her now after so many years of our successful married life just because she is from other country and crossed in illegally.

Thanks,
Jiten
Asked 1 year ago in Criminal Law from Mumbai, Maharashtra
Religion: Hindu
In the first place you have no valid proof that she is your legally wedded wife, and thereafter she has been staying with you probably on an expired visa if she had come into India legally that is three years back. If you have your marriage photographs taken after your marriage at the temple, send it to lawyer who is attempting to bail out your wife with an affidavit duly sworn to by you that she is your legally wedded wife and that she has been staying with you in India from the time of your marriage and that due to paucity of time you have not formally registered your marriage till now and will do so immediately on her release. Provide your credentials as an Indian Citizen to the lawyer and if possible be present at the hearing on 17-10-2015 with all your original documents. 
Kiran N. Murthy
Advocate, Bangalore
765 Answers
50 Consultations
5.0 on 5.0
Any foreigner who might have left his or her country of origin without due authorisation from the authorities concerned, both in the country of origin as well as the country of destination, solely to improve his or her economic prospects, is not a refugee. After all, there is no element of persecution or coercion compelling the individual to leave the country of origin. Illegal migrants from Bangladesh are examples of this category. Such persons have to be treated as illegal and unauthorised entrants into the country and dealt with under the appropriate laws applicable to foreigners like Foreigners Act, Indian Passport Act etc. besides the IPC, Cr.PC etc.
The established principle of rule of law in India is that no person, whether a citizen or an alien shall be deprived of his life, liberty or property without the authority of law. The Constitution of India expressly incorporates the common law precept and the Courts have gone further to raise it to the status of one of the basic features of the Constitution which cannot be amended.  The person will have to be ultimately handed over to the local police who will exercise their powers under relevant provisions of the Criminal Procedure Code (Cr.PC). 
It goes without saying that there will be circumstances and occasions when the authorities may have to be satisfied about the bona fides of the person concerned. It is part of the duty and responsibility of the authorities to rule out any criminal or anti-national taking the plea of a ‘refugee’ and entering the country for mala fide purposes.
Release of a refugee from detention is often fraught with legalities. Courts are sometimes reluctant to direct release of the refugee without ensuring about securing his/her presence in a specific place.  The refugee on release from prison after serving his/her sentence may still not be having valid travel documents. In such circumstances, the refugee may face the risk of re-arrest while commuting from the prison to secure residential permit/refugee certificate etc., Hence the authorities are often requested to provide police escort to the refugee to enable him to reach the authorised place safely and to secure documents for valid stay in India. This measure would help speed up to regularise the stay in India, which is desirable from both the point of view of security as well as humanitarian considerations.


The above information is for the status of  refugee entering inside the country.  In your case, the law is favorable because you are an Indian citizen and can be vouched upon for her, so with your own identity and other influence as a relative to her, you can help rescue her from the jail by applying bail for her.
T Kalaiselvan
Advocate, Vellore
13932 Answers
127 Consultations
5.0 on 5.0
1. Nobody can tell what the order of the court will be. The greatest hallmark of a proceeding in a court of law is the uncertainty of its outcome.

2. At this stage your priority should be to get bail for her. Considering the gravity of offence it is most unlikely that the local court would grant bail to her. She may eventually have to move the High Court and possibly the Supreme Court.

3. What she has done is a serious offence. If the court were to hold her guilty of the offence she may have to spend 10 years in jail. 

4. By making forged documents such as adhar and pan card you will make it even more difficult for her to wriggle out of this as this would be a declaration of a mind which is perpetually guilty. Engage a competent lawyer for her defence.
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
5.0 on 5.0
1. The matter has been made complicated now by giving her actual address of Bangladesh to BSF,

2. Because of our current excellent relationship with Bangladesh Govt and its law enforcing authorities, BSF/Police  may get proof of her Bangladeshi Nationality which will establish her crime of trespassing in to  India without any authority,

3. Get a marriage certificate from temple with back date and also other documents to prove that she is in India since long to get over the problem. 
Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
5.0 on 5.0
This seems to be quite surprising that in 3 years you have not created any document.

In case you have any family pictures together. Bank account, phone/ mobile  connection on her name or what ever document which have something to show that she has been here with you from years can get her out on bail.

Either ways you need to travel to WB. and go to the court and give the facts of your marriage on affidavit to get her out on bail. Any picture(s) of you together will do the work. 



Atulay Nehra
Advocate, Noida
424 Answers
15 Consultations
4.7 on 5.0
1.Verify from where he will arrange the asylum and also to whom the application will be filed?

2. For seeking asylum reason shall have to be cited.
Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
5.0 on 5.0
She may apply for and even get asylum but this will not by itself grant her any protection from the prosecution launched by the state against her for illegally entering India before the grant of asylum. Unless the GOI decides to withdraw the case against her the asylum will have no bearing on the prosecution.
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
5.0 on 5.0
You are right in your views about asylum to Hindus from few neighboring countries. The government is planning to amend the Citizenship Act, 1955 to grant citizenship to Hindus from Pakistan, Afghanistan and Bangladesh seeking asylum in India. The Centre proposes to change the definition of "illegal migrants" in the law and relax it for Hindus who came to India without valid documents on the grounds of "religious persecution". The move to grant citizenship rights to minority Hindus is in consonance with BJP's declared aim of positioning India as a refuge for Hindus fleeing persecution anywhere in the world, much like Israel's stance towards Jews.
But  the government has not passed any act on it yet for granting asylum, it is on the board. You may be in touch with the lawyer who has promised to get her out on bail. 
T Kalaiselvan
Advocate, Vellore
13932 Answers
127 Consultations
5.0 on 5.0

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