Legal Question in Family Law in India
---Need urgent help.pls pls reply.........
I am an NRI working on work permit in australia. I am still indian citizen.I got married in india as per hindu marraige act. my wife filed 498 a case against me, my parents and my brother in india 2 years ago. my brother and parents were arrested and obtained bail. later my brother went to USA with out taking permission from the court. in his bail petition , there is no such condition stating that he should not leave india and he has to take permission from the court to leave India.So he went to US on work permit. as I and my brother reside abroad and not coming to court, the criminal proceedings and NBW's are pending against us since 2years. as we both are not coming to india, the magistrate directed passport officer to impound my and my brother passports . my brother passport was expired after he went to USA.So he obtained a new/renewed passport from Indian consulate in USA. The passport officer impounded only my brother's expired passport. he did not impound my brother new passport(magistrate mentioned old passport number .by that time it was not expired). passport officer sent impounding order to my brothers indian address (in his old passport indian address was mentioned. in the new passport US address is mentioned). I have not received any intimation from passport officer to my indain address or US address. but my passport was impounded.
we both filed writ petitions in the high court to cancel the passport officer impounding order. I have mentioned in the writ that the passport officer did not intimate me before impounding my passport. my brother mentioned that he is residing in US but passport officer intimated to his indian address. high court granted interium saty on the passport office impounding order for both of us . as NBW's and proceedings are pending against us, passport officer impounded our passports. we both are still abroad and So we gave GPA to our father and filed recall petitions in the lower court. the lower court dismissed our recall petitions.
our lawyer who filed writ petiitons in high court is saying that we can appeal in the high court. the high court will recall the NBW's issued by lower court.
I have a question .
1) does the high court recall the NBW's pending against us since 2 years? is it posssible.
2) my lawyer is misleading us?
3) what happens if my wife request the high court to implead her as a party in our writ petitions(filed for cancelling impounding order)?
4) in my passport( which i got it in the year 2000 from passport office, banglore)my indian address is mentioned. it has one more year to expire.I came to Australia 4 years ago and living in AUstralia. is it mandatory to passport officer to intimate me to my australia, as I am living in austraile now? or is it ok if he intimate to my indian address what is mentione din my passport?
pls advise us. Thanks in advance.
3 Answers from Attorneys
It is better for you and your brother to surrender before court and get regular bail thereafter.
In such cases, it is better to settle the matter amicably with your wife through mediation, so that all litigation are withdrawn.
your lawyer is not misleading you and he has rightly suggested you to file a writ petition in the high court under article 227 of the constitution of india against the order of the magistrate. you also have to implead your wife in your petition as she is a necessary party and there is no harm impleading her a party in your writ. to impound your passport, the passport has to be physically here in india and that is not the case. so the order needs to be executed through ministry of external affairs or department of indian overseas....and till the time, the order is not executed, you may refrain from filing the writ petition.
(1) the high court is not likely to withdraw the NBWs merely because of 2 years have passed; there has to be legal basis for cancellation of NBWs which does not appear in your case.
I do not see any chance of high court withdrawing NBWs in your case.
(2) The lawyers may differ in their opinion; a cross-check may not be proper; you need to engage a lawyer as per your choice - either you follow or do not follow your lawyer's advice;
(3) yes, she may be impleaded as a party to the case.
(4) The passport officer is not required to track your current address; it is o.k. for the authorities to effect service on you on the permanent address in India as given in your passport application.
the passport obtained by your brother in USA, without giving Indian address, is illegal as he might have concealed vital information in his application; the new/renewed passport is issued on the basis of old passport and on same particulars; there is a column in the application if your previous passport has been impounded; the new passport is apparently a result of fraud and your brother may face separate criminal prosecution for giving false information.
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