Wife who got married in india as per hindu law and customs got divorce degree in us as un contested since us court degree is not valid in india if oit is un contested by father on the ground that not subjecting himself to the juridiction of us court. in india father has got order from family court setting aside the us degree as well as juridictional power for this case. further father has gor family court order for restitution on congigunial rights, since since mother appeared through po holder her brother in india, since she has not filed any counter and not appeared for more than 7 hearings. father is in india with his parents. mother in us with 5 years old daughter. its now more than 32 months since father has seen his dauhter and 26 months since he spoke to his daughter through video calls. in spite of 2 family court and one hc orders. now she got married to an american without getting divorce from indian court. father has fled for the permanant custody of the child in the madras hc., for which mother has not filed vakkalathu eventhough 4 hearingS has gone. now can father can file a complaint in local police station UNDER BIGOMY ACT stating she got married even BEFORE GETTING DIVORCE FROM INDIAN COURT.? SHE IS HOLDING INDIAN PASSPORT WITH US VISA. CAN HER PASSPORT CAN BE IMPOUNDED? PLEASE ADVICE HOW TO GO FURTHER IN THIS ISSUE. THANK YOU SIR, WITH WARM REGARD, GANESAN MAHADEVAN.
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File case of bigamy against wife under section 494 of IPC as second marriage performed during subsistence of earlier marriage
2) inform US Embassy in india about criminal case filed against her
3)if any bailable or non warrants are issued against her and she fails to attend court then apply for impounding her passport
Though US decree is not valid in India but in given facts the second marriage took place in US so bigamy too is committed in US. Since it is committed in US so Indian court does not have jurisdiction to entertain the case. As child too is in US so as per guardianship and wards Act it is court within whose jurisdiction child reside has power to decide the custody or guardianship case, hence, Indian court does not have jurisdiction to entertain custody case if filed by father claiming custody if child is residing in US with wife. So far decree in RCR case is concern the husband can file execution case but no court or law can force wife to live with husband against her wishes. Under given circumstances, husband can file divorce case only.
Ganesan, these cases are very common in various Courts of India and Supreme Court of India. I can understand your concern in this regard.
As per the Section 494 of Indian Penal Code (IPC) - marrying again during lifetime of husband or wife.—Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
The power of impounding a document under Section 104 of the Cr.P.C. is available to a Court. This cannot stretch to an extent of impounding the passport. The passport coming within the purview of the Act and it being a special law would prevail over the provisions of Section 104 of the Cr.P.C. The Court can impound any document, but not the passport as it is dealt with under a special enactment. The power of impounding is available only to the Competent Authority under the Act, in terms of Section 10 of the Passports Act, 1967.
Section 10 (3) of the Passports Act, 1967 states that the Passport Authority of India may impound a passport under certain circumstances:
It is crucial here is mentioned what clause (e) says:
(e) If proceedings against the passport holder are pending before a Criminal Court in India. (Proceedings are usually not considered to be pending before a Criminal Court until the Police file a charge sheet.)
Therefore, passport can be impounded if there is criminal case. You can lodge an FIR under section 494 IPC as stated above. Detailed discussion is required in such cases.
You may contact my secretary to connect with me for clarification.
Gopal Verma
Advocate on Record
Supreme Court of India
Her spouse can file complaint for bigamy against her. The magistrate will issue process
The US court granted Exparte divorce, which of course is not valid for the marriage solemnised in India as per Indian laws.
In this it is to be noted that whether appeal was filed against such decree within the period of limitation even though it is stated that family court had passed an exparte order to set aside the divorce.
It is reported that an exparte decree was passed in the RCR case in favor of the husband.
Further it is also noted that the minor child is in the care and custody of the biological mother at USA.
Therefore it is clear that the child is safe under the custody and care with one of its parents.
It is not known if the child is an Indian citizen or US citizen.
Whatever, since the child is residing in overseas with the mother, the child custody case filed in India may be lacking geographical jurisdiction and the powers of Indian court cannot be beyond the country's limits. Besides the Indian court lacks jurisdiction to try the child custody case, since the child is not residing in India
If it is still considered as an act of bigamy for the other spouse to marry an American at USA post USA exparte divorce for the marriage solemnised in India, you can file a private criminal complaint before the jurisdictional judicial magistrate court, however since no cause of action taken place in India, it may not be entertained in India.
The husband is reported to have obtained RCR decree in his favor through an Indian court, whereas it appears he did not file an execution petition to execute the court order instead he is showing interest only to file various criminal cases against her.
Therefore no criminal complaint is maintainable against her including the husband's desire to take steps to impound her passport.
- As per law, if the matter is uncontested,and the decree of divorce is passed by the US court in the absence of other party of the case , then the divorce as granted by US Court will not be applicable in India.
- Further, as per section 17 of Bigamy Act, any marriage between two Hindus solemnised after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of Sections 494 and 495 of the Indian Penal Code shall apply accordingly.
- Hence, the said marriage with the second husband without getting divorce from the first husband is not valid and attract Bigamy as per law.
- You can file a complaint before the court under the Bigamy Act.
- Further, you can get the custody of your daughter being natural guardian after filing a petition before the court.
- Further , you can send the notice to her through the consulate of India after filing this compliant and request to impound her passport.
Dear Client,
A case of bigamy, in accordance with Section 494 of the Indian Penal Code, has been filed against the wife due to her involvement in a second marriage while her prior marriage remains legally valid. This act is deemed illegal as per the provisions of the IPC. Concurrently, it is important to notify the United States Embassy in India about this ongoing criminal proceeding that has been initiated against her.
In the event that the court issues bailable or non-bailable warrants against her and she neglects to appear before the court as required, measures will be taken to impound her passport. This step is taken in order to ensure her presence during the legal proceedings and to prevent her from potentially evading the jurisdiction of the court. It's crucial to adhere to these legal actions as they align with the due process of law and the relevant regulations pertaining to such cases.
