Legal Question in Family Law in India

The Section 10 (3)(e) & (h) of the Act the validity of which is under challenge in this petition reads as follows:-

�10.Variation, impounding and revocation of passports and travel documents._

(e) if proceedings in respect of an offense alleged to have been committed by the holder of the passport or travel document are pending before a criminal court in India;

(h) if it is brought to the notice of the passport authority that a warrant or summons for the appearance, or a warrant for the arrest, of the holder of the passport or travel document has been issued by a court under any law for the time being in force or if an order prohibiting the departure from India of the holder of the passport or other travel document has been made by any such court and the passport authority is satisfied that a warrant or summons has been so issued or an order has been so made.�

In the present case it is not in dispute that at present a complaint vide FIR No ......... under Section 406/498A IPC is pending against the petitioner and the charge sheet has been filed. The said complaint is pending before the Metropolitan Magistrate....., wherein the petitioner has also been declared as `Proclaimed Offender' by the order dated ............ impugned in this writ petition.

This action of summoning the petitioner violates the Articles 14, 19 and 21 of the Constitution because the petitioner is a person who is abroad for gainful employment. The effect of the petitioner's answering the summons would be to disrupt his employment in USA and may militate against the immigrant status sought by him. He submitted that insistence on his presence in the Court of the Metropolitan Magistrate violates his rights under Article 14, 19.

A person merely by going abroad cannot claim a status superior to that of a citizen of India. Since any citizen accused in India of a similar offense would also have to obey the summons and appear before the Magistrate, mere stationing of the petitioner in the USA cannot give him any rights superior to those of an Indian citizen. Thus there is no violation of Article.

Even if the restriction which emanates from the effect of the summons by the Magistrate may affect the petitioner's right to movement under Article 19(1)(d) such restriction certainly falls within Article 19(5) and is a reasonable restriction imposed by a law made by the State. Similarly even if the petitioner's employment guaranteed by Article 19 (1)(9) is affected by the impugned order under the Passport Act, such an order has been passed under the Passport Act which imposes a reasonable restriction on the petitioner's right under Article 19(6) of the Constitution. Similarly the restrictions complained of in the writ petition emanate from a procedure established by law i.e., Passport Act & the IPC and Cr.P.C., and Article 21 thus cannot be said to be violated. There is thus no merit in the petitioner's plea as to the invalidity of Section 10(e) & (h) of the Act as being violative of Articles 14, 19 and 21 of the Constitution and the plea of constitutional validity thus stands rejected.

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It is also not in dispute that a warrant of arrest emanating from the above complaint exists at present against the petitioner.

As advised before, you should surrender in court in India and defend yourself. The impounding of legal and justified in the given situation.