Appeal
2. Very important issues arise in the appeal. The first issue is about the conduct of the advocate-on-record who filed the Special Leave Petition (for short, ‘SLP’) out of which the present appeal arises. The second issue concerns the conduct of the advocate who appeared in this case as a counsel and was later designated as a senior advocate. Two consequential issues arise. The first consequential issue is about the need to formulate a code of conduct for the advocates-on-record. The second one is whether the decisions of this Court in the case of Indira Jaising v Supreme Court of India (hereafter referred to as ‘Indira Jaising-I’) and Indira Singh v Supreme Court of India (hereafter referred as ‘Indira Jaising-II’) need reconsideration. The question of taking action against the appellant for making false statements will be considered in a separate IA on which a notice has been issued.
Factual aspects
3. First, we are setting out a few factual aspects. The trial court convicted the appellant for the offences punishable under Sections 302 and 307 of the Indian Penal Code (for short, ‘the IPC’) by the judgment dated 1st July 2013. He was sentenced to undergo rigorous imprisonment for life with a direction that his case for a grant of remission shall not be considered until he undergoes a sentence of thirty years. The appellant preferred an appeal before the High Court. While confirming the conviction, the High Court was of the view that the punishment imposed on the appellant was excessive and modified the same by removing the cap of thirty years. The appellant was let off on a sentence of 16 years, 10 months already undergone. By the judgment dated 25th October 2018, in Jitendra @ Kalla v. State of Govt. of NCT of Delhi, this Court interfered with the view taken by the High Court and restored the order of sentence of the trial court. This Court held that the appellant’s sentence shall be thirty years of rigorous imprisonment and that the appellant shall have no right to seek remission till he completes the full sentence of thirty years.
FIR registered and passport impounded
6. In view of the aforesaid cases registered against the appellant, his passport was impounded by the concerned authorities on 3rd October, 2018. Between 2018 and 2020, the respondent resided in the same house with her mother-in-law, i.e., the appellant’s mother. As per the appellant, during this period, the respondent had subjected his mother to severe physical and mental torture, ultimately forcing her to leave the house and seek shelter at her daughter’s residence on 14th September, 2020. Consequently, a Complaint Case No. 446C of 2020 was filed by the mother of the appellant against the respondent for the offences punishable under Sections 323, 341, 342, 379, 403, 504, 506, and 120B IPC.
Petition under section 26 DV filed, appellant failed to appear, hence extradition process initiated against him
7. As a counterblast, the respondent also filed an application under Section 26 of the DV Act against the appellant, his mother, and five other close relatives, which came to be registered as Miscellaneous Case No. 440 of 2022 in Complaint Case No. 446C of 2020. The application filed by the respondent was proceeded with, and vide order dated 11th August 2022, the appellant was directed to personally appear before the Court on the scheduled date, i.e., 15th September 2022. However, when the appellant failed to appear before the trial court on the notified date, the competent authorities were instructed to initiate the extradition process against him.
Hon’ble High Court dismissed appellant’s petitioner and hence preferred this appeal
8. Being aggrieved by the direction to commence the extradition process, the appellant, through his authorized representative i.e., his sister, filed Criminal Revision being CRR No. 135 of 2023 before the High Court of Calcutta, which came to be dismissed vide the judgment and order dated 25th January, 2023, which is impugned in this appeal by special leave.
Analysis
14. We have heard the learned counsels appearing for the parties and have given our thoughtful consideration to the submissions advanced and perused the pleadings.
Whether initiation of extradition process is justified?
15. Taking note of the facts and circumstances narrated above, the first question that arises for consideration is whether the initiation of the extradition process against the appellant vide order dated 15th September 2022 is justified in the eyes of the law.
16. It is undisputed that the appellant returned to the USA on 19th May, 2018, and his passport was impounded under Section 10 of the Passport Act, 1967, by the concerned authorities on 3rd October, 2018 because of numerous matrimonial and other cases filed against him by the respondent.
Mother-in-law of respondent filed a complaint under several section of IPC against respondent
17. The respondent and her mother-in-law had been residing under the same roof since 2018. The motherin-law had alleged that she was brutally assaulted, and her modesty was outraged by the respondent, compelling her to file Complaint Case No. 446C of 2020 before the Ld. JMFC, Howrah, under Sections 323, 341, 342, 379, 403, 504, 506, and 120B IPC against the respondent. It is further claimed that, despite her old age, she was forced to leave her own home to ensure the safety of her property and dignity from the vicious design of the respondent.
Passport of appellant already impounded
18. In the afore-mentioned complaint case, an application was filed by the respondent under Section 26 of the DV Act against the appellant, her mother-inlaw, and their five other relatives. A notice was issued to the appellant vide order dated 21st July 2022. Subsequently, on 11th August 2022, the learned JMFC passed an interim order in favour of the respondent, prohibiting her eviction from the matrimonial home and directing the personal appearance of the appellant (respondent therein) and other respondents on the next hearing date. However, when the matter was listed again, the Court noticed that the appellant had not returned to India, and the concerned authorities were directed to initiate the extradition process against him. We may observe that as the proceedings under the DV Act are quasi-criminal in nature, thus, there cannot be any justification to require the personal presence of the appellant in these proceedings. Thus, the learned Magistrate grossly erred while directing the appellant to remain personally present in the Court.
19. At this juncture, it is pertinent to note that while passing the order dated 15th September 2022, the learned JMFC took into account the fact that the passport of the appellant was impounded by the concerned authorities on 3rd October, 2018 and when the appellant lay challenge to this act of impounding before the High Court of Calcutta by filing a Writ Petition being WPA No. 4743 of 2020, the same was also dismissed by the High Court vide judgment and order dated 15th January, 2021, while affirming the revocation and barring the appellant herein from filing any appeal under Section 11 of the Passport Act, 1967. The relevant observations from the order passed by the JMFC dated 15th September, 2022 are as follows:-
“Finally, the Govt of India, on its motion, revoked/impounded his passport (J1863634) on 03.10.2018 u/s 10 of the Passport Act, 1967, and this, the letter no. 17(1249)18/PSK/RPO/KOL (CALA07137810) dr. 04.10.2018 suggests. Against such revocation, he had approached the Hon’ble Calcutta High Court through WPA 4743 of 2020. The order dated 15.01.2021 of that action suggests that the Hon’ble High Court not merely dismissed his writ petition but has debarred him from any appeal u/s 11 of the said Act of 1967 while affirming the revocation.” (emphasis supplied)
Without examining the circumstance of the appellant’s failure to appear in the court is liable to set aside
20. It is apparent that the appellant’s inability to travel to India and appear in Miscellaneous Case No. 440 of 2022, filed by the respondent under Section 26 of the DV Act, stemmed from the impoundment of his passport, a circumstance beyond his control. Consequently, the order of the learned JMFC directing the initiation of extradition proceedings against the appellant as a consequence of his non-appearance, despite being aware of the fact of impounding of the passport of the appellant, is untenable and unsustainable in the eyes of the law. Otherwise also, as noted above, there is no requirement for the personal presence of any party in the proceedings under the DV Act, because they are quasi-criminal in nature and do not entail any penal consequences except when there is a breach of a protection order, which is the only offence provided under Section 31 of the DV Act.
21. The appellant challenged the order dated 15th September, 2022, passed by the learned JMFC by filing Criminal Revision being CRR No. 135 of 2023 before the High Court of Calcutta. However, the High Court vide a non-speaking order dated 25th January, 2023, dismissed the revision petition, stating that no grounds for interference were made out. This Court is of the considered opinion that the High Court could have examined the record of the case, particularly the reasons for the appellant’s failure to appear due to circumstances beyond his control, and hence, a reasoned decision addressing the merits of the matter was expected in these circumstances.
22. In the wake of the above discussion, the order dated 15th September, 2022, passed by the trial Court, and the order dated 25th January, 2023, passed by the High Court of Calcutta, are liable to be quashed and set aside.
23. The next question that arises for our consideration is whether there is an irretrievable breakdown of the marriage of the appellant and the respondent requiring this Court to exercise its extraordinary jurisdiction under Article 142 of the Constitution of India to do complete justice.
25. The Constitution Bench further laid down the factors to be considered for such determination, which were also reiterated in the case of Kiran Jyot Maini v. Anish Pramod Patel. This Court, in both these judgments, opined that the factors to be examined inter alia include the period of cohabitation between the parties after marriage; the last cohabitation among the parties; the period of separation; the nature and the gravity of allegations made by the parties against each other and their family members; the orders passed in the legal proceedings from time to time, cumulative impact on the personal relationship; whether, and how many attempts were made to settle the disputes by intervention of the court or through mediation, and such other similar factors.
26. On the issue as to grant of divorce on the ground of irretrievable breakdown of marriage in the exercise of jurisdiction under Article 142(1) of the Constitution of India, this Court, in a very recent judgment of Rinku Baheti v Sandesh Sharda, held that the factual analysis has to be undertaken in each case to determine as to what constitutes an ‘irretrievable breakdown’ while keeping in mind the non-exhaustive factors laid down in Shilpa Sailesh (supra). The relevant observations are as follows:-
“8.11 But what constitutes an irretrievable breakdown has to be determined in each case by undertaking a factual analysis of the case and using judicial discretion in light of several non-exhaustive factors laid down by this Court in the judgment of Shilpa Sailesh. This Court has to reach the conclusion that the marriage has “completely failed” of and there is no possibility of the parties cohabiting together as husband and wife, and that the continuation of the formal legal relationship of marriage is unjustified lacking in substance and content.”
Filing of cases against appellant reflects her vindictive
31. The filing of the aforesaid cases by the respondent-wife reflects her vindictive attitude towards the appellant and his family members and unambiguously reflects the bitterness that has seeped into the marital relationship. The tumultuous state of the marital relationship between the parties is quite evident, irrespective of the fate of the criminal complaints and the imputations made by the parties against each other. The passport of the appellant was also impounded by the concerned authorities, pursuant to the pending cases filed by the respondent.
36. Apart from the irreconcilable status of the relationship between the parties, in the present case, another factor that has weighed with this Court in favour of the exercise of the power under Article 142(1) of the Constitution of India is that there is no child born from the wedlock and therefore, any direction to allow the parties to part ways would only affect the parties themselves and not any innocent child.
37. Thus, this is a fit case warranting the exercise of the discretion conferred under Article 142(1) of the Constitution of India to dissolve the marriage between. the parties on the grounds of irretrievable breakdown of marriage.
38. We have to now consider the question of assessing the alimony for the respondent upon the dissolution of marriage between the parties. Learned senior counsel for the appellant has fairly submitted that the appellant is willing to pay a reasonable lump sum of money as permanent alimony to the respondent in order to assist her in starting her life afresh and to put an end to multiple protracted litigations. The respondent blatantly declined the said offer, stating that she was not interested in the money of the appellant as her sole intent was to have an opportunity to resume her marital life.
Position of law regard to the determination of permanent alimony
39. Before going into the details of the financial position of the parties, it is imperative that we highlight the position of law with regard to the determination of permanent alimony. This Court, in the cases of Rajnesh v. Neha, Kiran Jyot Maini (supra), and Parvin Kumar Jain v. Anju Jain, provided a comprehensive criterion and a list of factors to be looked into while deciding the question of permanent alimony, which are as follows:-
i. Status of the parties, social and financial.
ii. Reasonable needs of the wife and the dependent children.
iii. Parties’ individual qualifications and employment statuses.
iv. Independent income or assets owned by the party.
v. Standard of life enjoyed by the wife in the matrimonial home.
vi. Any employment sacrifices made for family responsibilities.
vii. Reasonable litigation costs for a non-working wife.
viii. Financial capacity of the husband, his income, maintenance obligations, and liabilities.
Natural justice must be followed before impounding passport under section 10(3) Passports Act, 1967
43. The law regarding the impounding of a passport of an individual has been settled by this Court in the case of Maneka Gandhi v. Union of India and Anr., wherein it was held that the rules of natural justice must be followed before impounding a passport under Section 10(3) of the Passports Act, 1967. Justice Bhagwati, speaking for the majority, held as follows: –
“40. …………. Now it is obvious that on a plain natural construction of Section 10(3)(c), it is left to the Passport Authority to determine whether it is necessary to impound a passport in the interests of the general public. But an order made by the Passport Authority impounding a passport is subject to judicial review on the ground that the order is mala fide, or that the reasons for making the order are extraneous, or they have no relevance to the interests of the general public or they cannot possibly support the making of the order in the interests of the general public. It was not disputed on behalf of the Union, and indeed, it could not be in view of Section 10 sub-section (5) that, save in certain exceptional cases, of which this was admittedly not one, the Passport Authority is bound to give reasons for making an order impounding a passport……”
45. “……..We, however, wish to utter a word of caution to the Passport Authority while exercising the power of refusing or impounding, or cancelling a passport. The Passport Authority would do well to remember that it is a basic human right recognised in Article 13 of the Universal Declaration of Human Rights with which the Passport Authority is interfering when it refuses or impounds, or cancels a passport. It is a highly valuable right which is a part of personal liberty, an aspect of the spiritual dimension of man, and it should not be lightly interfered with. Cases are not unknown where people have not been allowed to go abroad because of the views held, opinions expressed, or political beliefs, or economic ideologies entertained by them. It is hoped that such cases will not recur under a Government constitutionally committed to uphold freedom and liberty but it is well to remember, at all times, that eternal vigilance is the price of liberty, for history shows that it is always subtle and insidious encroachments made ostensibly for a good cause that imperceptibly but surely corrode the foundations of liberty.” (emphasis supplied)
46. Applying the afore-mentioned legal principles to the present case, we find that the act of impounding the appellant’s passport under Section 10 of the Passport Act, 1967, was carried out without granting the appellant an opportunity to be heard. This clear violation of the principles of natural justice renders the act of impounding the passport ex-facie illegal. Consequently, we hold that the concerned authorities should release the appellant’s passport within a period of one week from today.
Conclusion
47. Resultantly, we conclude as below: –
a. The judgments/orders dated 15th September, 2022 passed by the learned Judicial Magistrate, Howrah and 25th January, 2023 passed by the High Court are quashed and set aside.
b. The application filed by the appellant/husband, under Article 142(1) of the Constitution of India, is allowed and the marriage between the appellant and the respondent is dissolved on the ground of irretrievable breakdown of marriage. –The Registry to draw a decree accordingly.
c. Consequently, all the criminal cases/DV Act complaints and civil cases pending between the respondent and the appellant and his family members shall stand closed.
d. The appellant shall deposit a sum of Rs.25,00,000/- (Rupees Twenty-Five Lakhs only) in the Registry of this Court as the amount of permanent alimony payable to the respondent within two months from today. This amount shall be disbursed to the respondent within a period of two weeks thereafter. An undertaking to that effect shall be filed before this Court within two weeks from today. We also make it clear that if the respondent refuses to accept the aforesaid amount and fails to draw the same from the Registry within the aforesaid period, the same shall be repaid to the appellant.
e. The passport of the appellant shall be released by the authorities concerned within a period of one week from today.
List of Judgments Cited or Relied Upon
1.Shilpa Sailesh v. Varun Sreenivasan – 2023 SCC OnLine SC 544
2. Kiran Jyot Maini v. Anish Pramod Patel – 2024 SCC OnLine SC 1724
3. Rinku Baheti v. Sandesh Sharda – 2024 SCC OnLine SC 3801
4. Maneka Gandhi v. Union of India and Anr – (1978) 1 SCC 248
5. Rajesh Sharma v. State of U.P – (2018) 10 SCC 472
Party
Vishal Shah – Monalisha Gupta & Others – Criminal Appeal No. 870 of 2025 (Arising out of SLP(Crl.) No. 4297 of 2023) – 2025 INSC 254 – February 20, 2025.
