If you are stuck in such a situation, here is what to do.
Consider the case of Mr. Sameer Joshi, an IT professional, who relocated to a European nation for his career around 2009. A year later, in 2010, he returned to India to marry Ms. Anjali in a traditional ceremony. The couple then moved to Europe together. However, their marital life was fraught with difficulties.
By 2018, the differences became irreconcilable, and Sameer filed for a contested divorce in an Indian family court. For the initial two years, he voluntarily paid a substantial amount for Anjali’s maintenance while she had moved back to India. Sameer continued to reside and work abroad.
In 2020, the situation escalated when Anjali demanded a significantly higher maintenance amount and began employing delay tactics in the divorce proceedings. Frustrated, Sameer ceased the regular payments, although he made some intermittent payments until late 2021. During this period, Sameer and his mother, who had moved in with him after his father’s passing, both acquired the citizenship of the European country they resided in.
In 2021, Anjali initiated legal action by filing a criminal complaint under the provisions for cruelty by a husband and his relatives, and a case under the Domestic Violence Act. Sameer, on the advice of his then-lawyer, did not return to India to face these charges. He was never formally served the summons overseas as his exact whereabouts were unknown to his wife at the time. His mother was also named as a co-accused in the cases.
From 2022 to the present, Anjali has filed execution petitions for the recovery of maintenance arrears, leading to the issuance of multiple warrants against Sameer for non-payment. His former legal counsel advised him that as long as he remained abroad, no direct action could be taken against him, but returning to India would almost certainly lead to his arrest.
Despite attempts at mediation through mutual acquaintances, a resolution remains elusive. Sameer offered what he considered a fair one-time settlement, amounting to roughly one-third of his assets, but Anjali and her family rejected it, demanding a larger share. This ongoing legal battle, coupled with the fear of extradition and arrest, has taken a severe mental toll on both Sameer and his elderly mother, who have not been able to visit India since 2020.
Advice in such cases
Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.
Do Not Ignore Legal Notices: Ignoring court summons or warrants is a serious mistake. It leads to graver consequences like the issuance of a Non-Bailable Warrant (NBW) and being declared a Proclaimed Offender.
Engage in the Legal Process: Even if you are residing abroad, you must engage a lawyer in India to represent you in all legal proceedings. Your absence can be interpreted as an admission of guilt.
Comply with Court Orders: It is crucial to comply with court orders, especially those concerning maintenance payments. Non-compliance leads to execution proceedings and potential arrest warrants.
Explore Settlement: A one-time settlement (alimony) is often the most practical way to end all litigation. It is better to negotiate a reasonable amount than to let legal battles drag on for years, causing immense financial and mental distress.
Applicable Sections of Law
Bharatiya Nyaya Sanhita, 2023 (BNS): Section 85 and 86 of the BNS, which have replaced Section 498A of the IPC, deal with cruelty inflicted by a husband or his relatives. These are criminal offenses and can be a basis for arrest.
Protection of Women from Domestic Violence Act, 2005: This is a civil law that provides for remedies like protection orders, residence orders, and monetary relief for victims of domestic abuse.
Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS): Section 144 of the BNSS (corresponding to Section 125 CrPC) provides for the maintenance of wives, children, and parents. Failure to pay maintenance ordered under this section can lead to a warrant of arrest and imprisonment.
Extradition Act, 1962: Extradition is the formal process of one state surrendering an individual to another state for prosecution or punishment. It is governed by treaties between countries. While typically reserved for serious crimes, pending criminal cases like those under BNS can potentially trigger extradition requests if the conditions of the treaty are met.
If you are the complainant
Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.
Apply for Anticipatory Bail: If you fear arrest upon returning to India, your lawyer can file for anticipatory bail on your behalf before you travel.
Challenge the FIR: Your lawyer can file a petition under Section 528 of the BNSS (equivalent to Section 482 CrPC) before the High Court to quash the FIR if it is found to be malicious or without merit.
Negotiate a Settlement: Proactively work towards a full and final settlement to close all cases, both civil and criminal. This provides closure and allows you to move on without the constant threat of legal action.
If you are the victim
Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.
File Execution Petitions: If maintenance is not being paid, immediately file an execution petition in the court that passed the order. The court can then issue warrants for recovery.
Provide Information: Furnish the police and the court with all available information about the accused’s whereabouts, including their overseas address, employer details, and social media profiles.
Request for Proclamation: If the accused is evading warrants, you can request the court to declare them a Proclaimed Offender. This can lead to the attachment of their properties in India.
How the police behave in such cases
In cases where the accused is abroad, the police initially serve summons at their last known Indian address. If the accused fails to appear, the court issues bailable and then non-bailable warrants (NBWs). The police will report to the court that the accused is untraceable. Following this, upon the complainant’s application, the court may initiate proceedings to declare the person a Proclaimed Offender under Section 84 of the BNSS. For extradition, a Red Corner Notice may be issued through Interpol, but this is a lengthy and complex process that requires coordination between the courts, local police, and central government agencies.
FAQs people normally have
Can my foreign citizenship protect me from Indian laws?
No. The offense was committed when you were subject to Indian jurisdiction. Acquiring foreign citizenship does not grant immunity from prosecution for past actions. It complicates the process but does not absolve you of liability.
Will I definitely be arrested if I land in India?
If there is an active Non-Bailable Warrant (NBW) against you, the immigration authorities will be alerted, and you are very likely to be detained upon arrival at any Indian airport.
Is extradition common for matrimonial cases?
Extradition for purely matrimonial disputes is rare. However, if the case involves serious criminal charges like those under Section 85/86 of the BNS, and there is an extradition treaty between India and the country you reside in, the possibility exists. The process is political and legal, and depends on the principle of ‘dual criminality’ (the act being a crime in both countries).
What evidence is required?
For the wife (victim), evidence includes the marriage certificate, photographs, proof of domestic violence (emails, messages, medical reports, witness testimony), and documents proving the husband’s income and assets for maintenance claims. For the husband (accused), evidence to counter the allegations is needed, such as proof of payments made, communication records showing a lack of cruelty, and documents to contest the wife’s financial claims.
How long will the investigation take?
Matrimonial litigation in India is notoriously slow and can take many years to conclude. When one party is residing abroad and is non-cooperative, the timeline gets extended significantly. The process of getting someone declared a Proclaimed Offender and initiating extradition can itself take several years, with no guarantee of success.
Advocate Sudhir Rao, Supreme Court of India