Domestic Violence committed against Indian National abroad can be tried by Courts in India: Bombay HC

Omkar Gokhale

The Bombay High Court recently held that the courts in India may have jurisdiction to try cases of domestic violence allegedly committed against Indian nationals abroad.

Relying on the Supreme Court’s decision in Rupali Devi Vs. State of Uttar Pradesh this year, Justice SS Shinde observed,

 “The Courts at the place where the wife takes shelter after leaving or driven away from the matrimonial home on account of acts of cruelty committed by the husband or his relatives, would, dependent on the factual  situation, also have jurisdiction to entertain a complaint alleging commission of offences under Section 498A of the Indian Penal Code.”

Justice Shinde passed the order while dismissing a plea filed by one Mohammad Zuber Farooqi, an employee of the US government who had challenged an order of a Mumbai Sessions Court.

The Magistrate and Sessions Court had directed him to pay interim maintenance to his wife (respondent) who had complained of domestic violence by Farooqi.

The couple had gotten married in Lucknow in 2008 and shifted to the United States next year. In 2014, a year after their son’s birth, Farooqi filed a plea for divorce and custody of the child before the Superior Court in California. In 2015, he gave divorce to the respondent in India.

The respondent woman subsequently filed for permanent custody of their child in a Family Court at Mumbai in 2016. Thereafter, she filed a domestic violence complaint before a Magistrate Court in Mumbai under Section 12 of Protection of Women from Domestic Violence Act, 2005.

The Magistrate, in turn, passed an order in March 2017, directing Farooqi to pay Rs. 30,000 and Rs. 15,000 per month as maintenance to his wife and child respectively. In June 2017, the Mumbai Sessions Court dismissed a criminal appeal filed by the Farooqi, prompting him to move the Bombay High Court.

On behalf of Farooqi, it was contended that the Magistrate order ought to have been dismissed considering a two-year delay in filing the complaint alleging domestic violence. Moreover, it was argued that the Magistrate had no jurisdiction to entertain the respondent’s complaint since the alleged domestic violence was not committed in India. Additionally, the Magistrate’s territorial jurisdiction was also challenged on the ground that the respondent was staying in Mumbai only on a temporary basis. The allegations of domestic violence were also denied by Farooqi.

In response, however, the respondent woman asserted that Farooqi had forced her to discontinue the Master’s program and made her work hard during the pregnancy period. She added that Farooqi had constantly threatened her with divorce.

On the aspect of territorial jurisdiction, the respondent submitted that she had been residing in Mumbai with her brother, and therefore she is entitled to institute proceedings before Magistrate in the city.

An additional grievance raised was that Farooqi had failed to deposit over 60 per cent of the maintenance arrears he had undertaken to pay before the High Court. In view of these grounds, the respondent woman urged that the High Court reject Farooqi’s petition.

The High Court, in turn, did not delve into the facts of the matter. However, the judge found no merit in the arguments challenging the maintainability of the domestic complaint case before the Mumbai courts.

On the question of whether the complaint was barred by limitation for the inordinate delay, the Court relied on the Supreme Court’s observations in Krishna Bhatacharjee v Sarathi Choudhary. In that case, the Supreme Court held that an application made by a wife under Section 12 of the Domestic Violence Act after two years of judicial separation was not barred by limitation, particular since the act of domestic violence was in the nature of a “continuing offence.”

As for the question of territorial jurisdiction, the Court took note of the position laid down in Rupali Devi’s case before concluding,

“Respondent No. 2 has stated in the affidavit that, she is residing with her brother at Mumbai. The said aspect has been considered by the Sessions Court. In the light of the judgment of Hon’ble Supreme Court in the aforesaid case (Rupali Devi’s case), and also observations made by both the Courts below, there is no substance in the contention of learned counsel for the Petitioner that, Magistrate’s Court at Mumbai has no jurisdiction to entertain the complaint.”

Further, Justice Shinde also observed that the lower courts at Mumbai had only made prima facie observations about alleged domestic violence and that the petitioner would have the opportunity to contest these allegations during the pending trial. As a result, the High Court proceeded to reject Farooqi’s plea.

The petitioner Farooqi was represented by advocates Prashant Pandey, Vijayalxmi Shetty, Darshit Jain, Irfan Unwala and MA Khan.

The respondent woman was represented by advocate Shaheen. Additional Public Prosecutor GP Mulekar appeared for the State Government.

[Read Judgement dated September 25, 2019]

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