Mr. Rebates

Wednesday, January 20, 2010

NRI fails to follow case, fined Rs 1.5L

Smriti Singh, TNN, 18 January 2010, 02:49am IST

NEW DELHI: Seeking repeated adjournments and not appearing before the court to follow up his own complaint has landed an NRI in trouble. Irked by the conduct of a Canada-based NRI, who had filed a civil suit in the capital two years ago, a trial court has slapped a fine of Rs 1.5 lakh on him while dismissing his case for non-appearance.

"A person who has no respect for law and has abused the repeated accommodation given by this court deserves no further indulgence. The plaintiff does not appear to be taking the directions of Indian courts rather seriously and perhaps entertains an impression that come what may, he can get away, which impression requires to be dispelled," additional district judge Kamini Lau said.

ADJ Lau asked the chief metropolitan magistrate to look into the matter for registration of a criminal case against the litigant for committing the offences of perjury, cheating and forgery.

The court's directions came after litigant Gurbax Singh failed to appear before the court despite repeated notices. The matter had even reached the Delhi High Court, which also slapped fine on Singh but he did not pay the amount. Singh, who flew to Canada soon after filing the suit in December 2008, has sought the declaration of his legal rights over a disputed property in Greater Kailash-I and a restraint order against the persons currently in possession of it.

While the court was constantly kept informed to the compromise reached between the parties and a change of Singh's lawyer in the course of the case, ADJ Lau had sought the litigant's presence to clarify the situation for proper adjudication of the case.

Singh failed to fly to India even as his former counsel told the judge that the petitioner had handed over forged property documents. Countering these allegations, Singh's newly-appointed counsel requested the court to adjourn the matter on medical grounds. The court took strong exception to the fact that Singh was evading appearance even though he had filed the suit.

"For the last more than 10 months sufficient indulgence has been given to the plaintiff... He has misused and abused the platform of this court firstly to secure favourable orders at the initial stage and later by not placing on record the original documents and evading appearance before this court due to which reasons all interim orders were revoked," the judge said.

Stating that the conduct of Singh has been "deliberate", the court directed the ministry of external affairs to recover the amount within 60 days. It also asked the ministry to take "coercive steps" like "confiscation of his travel documents, property in Canada or issuance of a look-out circular" through the Canadian government.

Sunday, January 17, 2010

Excellent Discussion forum for 498a and DV act

This is a good self help forum for 498a and DV act inquires.

SC: Petty matrimonial spats not covered by section 498A, IPC


The Supreme Court has ruled that petty quarrels between husband and wife do not amount to cruelty under Section 498A, IPC (cruelty and harassment for dowry).

A bench comprising Justices Mukundakam Sharma and B S Chauhan, dropping the charges of cruelty and harassment against a husband, noted, ‘Petty quarrels cannot be termed as cruelty to attract the provisions of Section 498A, IPC.

Causing mental torture to the extent that it becomes unbearable may be termed as cruelty. Cruelty, for the purpose of Section 498A, IPC, is to be established in the context of Section 498A as it may be different from other statutory provisions.’ The 15-page judgment added, ‘It is to be determined/inferred by considering the conduct of the man, weighing the gravity or seriousness of his acts and to find out whether it is likely to drive the woman to commit suicide etc.

It is to be established that the woman has been subjected to cruelty continuously/persistently or at least in close proximity of the time of lodging of the complaint.’ Justice Chauhan spoke for the bench while upholding the charges of bigamy against the husband Manju Ram Kalita who got married for the second time to one Ranju Sarma despite the fact that he had not divorced his first wife Minati Das Kalita.

The couple got married on February 5, 1992 and started living separately since March 1993 while a male child was born out of the wedlock.

The first wife lodged an FIR against the husband on May 23, 1997 when she came to know of his second marriage. The husband was charged and convicted for offences under Section 498A and 494 (bigamy), IPC. The trial court sentenced him to three years imprisonment for offence of bigamy and to two years for the offence of cruelty. Both sentences were to run concurrently.

Sessions Court and Gauhati High Court dismissed the appeals of the husband.

The apex court, however, maintained the conviction and sentence for the offence of bigamy but dropped the conviction and sentence for 498A.

The apex court, in its judgment, also noted, ‘Undoubtedly, there had been a complaint by the wife of physical and mental torture upto 1993 when she left the matrimonial home and started living with her father.

The complaint of cruelty was lodged by filing an FIR on May 23, 1997 that is after four years of leaving the matrimonial home. More so, the mental or physical torture was not continuous on the part of the appellant as there is no complaint against him between 1993 to 1997 that is leaving of the matrimonial home by the wife and performing of the second marriage by the husband.

Thus in our opinion, all the three courts below erred in not considering the case in the correct perspective. The findings so recorded by the courts below may be relevant for granting relief in a matrimonial dispute like divorce etc but could not bring home the charge under Section 498A, IPC.’


India: A Safe Haven for International Child Abduction

India: A Safe Haven for International Child Abduction

Jeremy D. Morley

For several reasons, India has become a safe haven for child abductors.

First, India is not a party to the Hague Convention on the Civil Aspects of International Child Abduction. The Convention is the fundamental international treaty that protects the rights of abducted children and serves to have them returned promptly to the country of their habitual residence.

Second, the court system in India is extremely slow so that an abductor has ample time to create “facts on the ground” in terms of getting the child sufficiently settled into life in India as to justify an Indian court in ultimately deeming that it is best to keep the child in India.

Third, the law in India was previously settled that foreign children taken by a parent to India without the consent of the other parent would normally be returned to their country of residence or nationality. However recent decisions of courts in India have changed that rule and have held that foreign custody orders are merely items to consider as part of an overall custody review. Thus in a decision dated March 3, 2006 the Bombay High Court at Goa refused to issue a writ of habeas corpus on behalf of a British mother from Ireland whose eight-year-old daughter had allegedly been abducted to Goa by the child’s American father. The High Court dismissed the mother’s application on the ground that normal custody hearings should be undertaken and completed in Goa.

Fourth, no Indian legislation sets forth helpful law on this issue.

As a consequence, courts outside India should be extremely wary about allowing parents to take children for temporary visits to India over the objections of the other parents since there is a great likelihood that parents who wrongfully retain children in India will get away with their wrongful conduct scot-free in India.

Thus in Katare v. Katare, 125 Wn. App. 813, 105 P.3d 44 (Wash. 2004) the Court of Appeals in Washington State upheld in relevant part the trial court’s ruling in a case involving an American mother and an Indian father. The trial court held that it was not convinced that there was a serious threat that the father would abduct their children to India. However, the potential consequences of any abduction to India were severe and “irreversible.” Accordingly the court was warranted in imposing severe limitations on the husband's residential time with the children, including strict restrictions on the locations of such visitation, surrender of his passport, notification of any change of his citizenship status, and prohibition of his holding or obtaining certain documents (i.e. passports, birth certificates) for the children.
How to Win a Hague Convention Child Abduction Case

Press by Jeremy D. Morley (1)

Here are some tips for attorneys and clients faced with instituting or defending child abduction proceedings under the Hague Convention on the Civil Aspects of International Child Abduction, whether in the United States or internationally.

In a nutshell, a Hague Convention application may be made when a child is taken or retained across an international border, away from his or her habitual residence, without the consent of a parent who has rights of custody, if the two countries are parties to the Convention. The child must be promptly returned to the habitual residence unless the return will create a grave risk of harm to the child.


An attorney must be ready to file a Hague Convention application and institute or defend a Hague Convention lawsuit on extremely short notice.

Prompt action may be critical. The Convention specifically requires that hearings be conducted expeditiously. A Hague case can theoretically be instituted more than a year after the abduction but a defense will then arise that the child has become settled in the new environment and, in practice, the longer a child is in a new place the more likely it is that a court will be reluctant to send the child away.

Fast action by the left-behind parent is also necessary to help prevent a claim that the parent has acquiesced in the child's relocation.

Clients must move quickly to obtain the documents needed to file the initial application and then to collect the documents needed for the hearing. They should normally be asked to prepare a detailed family history and to assist the attorney to develop evidence as rapidly as possible.

In addition to the Hague application and lawsuit itself, counsel for the left-behind parent should take many other steps.

First, counsel should enlist the support of the U.S. State Department's Office of Children's Issues. Second, the left-behind parent should institute civil proceedings. If there is no custody order in place from a court in the jurisdiction of the habitual residence, an application should immediately be made for such an order.

Third, counsel should consider putting the abducting parent on immediate written and formal notice of the dire consequences, civil, criminal and financial, that the abduction will cause to that parent personally, and, possibly to others conspiring with the parent. It may be appropriate to provide an extremely short time for the abducting parent to cure the problem by returning the child.

Fourth, the parent should consider requesting the federal and state prosecutors to institute both federal and state criminal proceedings. The federal crime of international parental kidnapping is a felony with a penalty of up to three years in prison. In addition, many states including New York have provisions that also provide criminal penalties for parental child abduction. It will occasionally be possible to seek extradition based on a federal warrant.


Hague Convention cases are often extremely fact-intensive. They frequently hinge on the ability of one party to convince the court of matters such as the habitual residence of a child, the extent to which a parent actually exercised custody rights and whether or not a parent consented to or acquiesced in a new residency. For a court to resolve these matters it must analyze the relevant facts.

A successful Hague proceeding requires the attorney, working closely with the client, to marshal as much evidence as possible, in as many forms as possible, to support the client's position.

Clients are frequently shocked that matters that to them are obvious and indisputable turn out to be disputed and to require them to produce clear and convincing proof. They may well be insulted that their word alone is insufficient to convince the court that they are truthful and that the other parent is lying.

In one case, the parents had moved permanently with their young child from the mother's native country to the U.S. Two years later, the mother took the child back to her country for a vacation and then refused to return to the States. In supporting her claim that the child was never habitually resident in the States she claimed that the original move to America had been only temporary and that she and the father had agreed that they would return to the mother's native country after a year or two. The mother had planned the move well in advance and had amassed -- and even created -- evidence that tended to support her claims. Additionally, she had removed evidence from the parties' home that would have disproved her claims.

To win the case, we interviewed neighbors, friends, family members, schoolteachers, real estate salespeople, fellow office workers and an array of other people who had had some connection with the family. We checked into any and all areas of the mother's life for anything that might indicate her intention to stay in the States. We obtained emails, notes, invoices, and other documents. We searched old household bills for evidence of the purchase of items that inferred a degree of permanency. At the hearing, the mother was shocked that her husband had collected so much written evidence to disprove her claims and undercut her credibility. The courts ultimately -- and with great reluctance, since they were going against a local national -- found in favor of our client.

Since Hague cases are tried quickly, there is usually only one chance to present the case and it needs to be done well at the very outset. An attorney must embark on a quick campaign of collecting mounds of relevant evidence to support the client's positions, and must expect the other parent to lie, cheat, and distort the facts in a desperate attempt to avoid losing the case.

Just as a current military strategy is to employ overwhelming force to create shock and awe, so too in a Hague Convention case it is often advisable to use overwhelming amounts of evidence to win the case. Such a campaign in a Hague proceeding may yield a capitulation by the other parent even before the hearing actually commences.

Hague Convention hearings sometimes take the form of "he said, she said" disputes in which each side makes verbal accusations against the other. Documentary evidence is usually far better than the mere word of one parent. Thus, if you want to claim that a parent applied for an immigration visa, you must be prepared to do more than simply have the parent tell the court that this was done. You should do whatever you can to get hold of the actual application papers that the parent signed in applying for the visa, which may mean contacting the lawyer who handled the immigration matter originally.

While it is helpful if documents are supported by sworn statements, it is not essential. Both the Convention and the International Child Abduction Remedies Act ("ICARA") provide that authentication of documents is not required in a Convention proceeding.


Hague Convention cases raise unusual international law, foreign law and treaty law questions. They involve the courts in matters of a kind that they are usually not used to handling. In many jurisdictions the court may be entirely unfamiliar with Hague cases. Accordingly it is usually essential for the lawyers to help the court to an unusual extent. Certainly a well-reasoned memorandum of law is essential.

The matters in dispute in most Hague cases raise difficult legal issues that must be thoroughly briefed. Thus, the Convention requires the left-behind parent to establish that the child was taken from the "habitual residence" and that the parent had "rights of custody" under the law of that jurisdiction. However, neither of those fundamental terms is defined in the Convention and substantial jurisprudence has grown domestically and internationally setting forth often-contradictory determinations concerning their scope and meaning. Moreover, courts have held that, while they must determine under international law whether the left-behind parent possesses Hague Convention "custody rights," they must first examine the law of the child's habitual residence in order to ascertain the extent of the rights that such parent possesses under that law. In this regard, it is often essential to use foreign law experts to establish the existence and scope of such rights.

A Hague Convention attorney may " and should " cite cases not only from the domestic jurisdiction but also from other jurisdictions if they support the client's position. It has become more usual to cite cases from other jurisdictions in this area of the law than perhaps in any other. Courts around the world recognize that it is best to coordinate their decisions with those of other courts internationally and, for that very reason, the Hague Conference on Private International Law has established a database of significant Hague cases from courts around the world.


In representing the left-behind parent in a Hague proceeding, it is necessary to keep the court focused on the narrow issues that the Convention requires an applicant to establish and the narrow defenses that a respondent can assert. Whenever the hearing strays into any areas that might be considered as constituting an analysis of the child's best interests, the applicant should vehemently object.

However, a party opposing a return should do his or her utmost to assert any and all relevant issues under the rubric of one of the defenses specified in the Convention and should be armed with case law to establish that similar claims were permitted in other cases.


In Hague cases evidence rules are usually relaxed, so evidence should be submitted in any possible format. Live testimony is invariably the best and normally everything should be done to get the left-behind parent into the courtroom. (An exception is if that parent would be a poor witness and his or her presence would create an opportunity for embarrassing cross-examination). If a witness cannot be brought to the courthouse, consider testimony by video conferencing or otherwise by telephone conference. As a last resort, submit affidavits.


Hague Convention cases happen too fast, and too much is at stake for the client, for an attorney to learn about this area of law at the last minute. It is extremely important to locate counsel with knowledge and experience in Hague proceedings.

It is also frequently valuable for a client whose child has been abducted to retain Hague counsel in his or her home country who can coordinate with the Hague counsel in the country to which the child has been taken. Indeed, it will often be the local Hague lawyer who will recommend the overseas lawyer, based on his knowledge of such lawyers in other jurisdictions.

(1) Jeremy D. Morley, a member of this publication's Editorial Board, may be reached at 212-372-3425 and through his website, With local counsel, he has handled Hague cases in jurisdictions as far afield as New Zealand, Australia, England, Germany, France, Hungary, Spain, Portugal, Poland, South Africa and Alaska.

Contact Us
Jeremy D. Morley

International Family Law
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New York, NY 10169
Tel: (212) 372-3425
Fax: (815) 301-6742
'Wife can't level charge against hubby at whim'

Rakesh Bhatnagar / DNAFriday, July 10, 2009 1:06 IST Email

New Delhi: A man or his relatives cannot be charged with causing cruelty to his wife unless his or his relatives' conduct towards the woman is such that can "cause the woman to commit suicide", the Supreme Courthas held.

The observation came in an SC order quashing a charge-sheet filed under section 498A of the Indian Penal Code (IPC), which relates to causing cruelty and harassment over dowry, against a man from Kerala who works in the Gulf.

The implication for courts trying cases under the section is to examine whether the complaints specify the allegations categorically.

The trial court had initiated action against Shakson Belthissor on the complaint of his wife, who was a widow from her first marriage and had two kids. Her marriage to Belthissor was in 1997.

In 2002, she filed an FIR against Belthissor saying that after marriage, conducted during his four-month leave from the Gulf, he stayed at her house for sometime before leaving for his place of work. For two-three months, he sent her money, spoke to her over the phone and sent her letters from Saudi Arabia. Her parents had given him a gift of Rs5 lakh, which her in-laws used to buy a house.

But, the FIR said, the in-laws started maligning her and spoke ill about her to Belthissor, who, believing his family members, stopped communicating with and sending money to her.

When she telephoned him, he "behaved without affection" and disconnected the phone, due to which she became "mentally weak".

The FIR said that whenever he came on leave, he would not visit her house, but stay with his brother.

The bench said there was no prima facie case to attract a case of cruelty.

Signing Hague convention is correct thing to do for the right reasons, but not to protect vengful NRI brides

NCW asks govt to sign international convention of Hague

 Sat, Jan 9 06:42 PM

New Delhi, Jan 9 (PTI) The National Commission for Women today asked the Indian government to sign the international convention of Hague on laws of marriage as well as safety of women to help protect NRI brides. Speaking at a seminar on women''s issues at the Pravasi Bhartiya Divas here, NCW Chairperson Girija Vyas said, most of the cases of divorce and separation of NRI brides create problems as the laws of the land are different in India and in the country where these women live.

India should sign the international laws like-- the convention of judicial and extra judicial documents in civil and commercial matters, convention on civil aspects of international child abduction and the divorce and legal separation convention, she said. Observing that complaints were coming from across the globe on harassment of Indian brides, Vyas urged the Indian diaspora to help in managing cases like these in their respective countries.

Minister of State for External Affairs Preneet Kaur said the Government would look into the issues concerning signing such a convention. Asserting that the gender problem was universal, Kaur said, there is a need for the dispora to engage in this aspect.

"Educating the would-be NRI bride and their families about the different lifestyle would ensure a knowledge of the future in such alliances," she said. Minister for Women and Child development Krishna Tirath said efforts should be made to set up an advisory board with the diaspora and Indian women to help tackle such issues.



Only problem with above statement is that justice is quick and transparent in foreign countries... Only in India a divorce can take 17 years and still Supreme court judge will condescendingly advise the husband to wait for a few more months since he has waited for 17 years.

The real story is that signing the Hague convention is the right thing to do, and better to do it late than never. It has been triggered by the fact of recent cases coming to Supreme court where SC had to send the parties back to foreign courts since India is not signatory to Hague convention. For example, recently there was a recent high profile case which went to Supreme Court, about a child Aditya Vora whose joint custody granted by US courts to NRI father was violated by mother who had come with child to India and had gone missing with the child. Eventually the Supreme Court had to ask CBI to trace the child. Read here.

If India was signatory to Hague convention, the mother would not have been able to violate US court orders with such impunity. And the child will not unnecessarily have to travel to US and then back to India, just because Indian supreme court is helpless!

Former SC Judge and chairman of the Law Commission of India A.R.Lakshmanan has strongly recommended that India should sign the Hague Convention at the earliest. Signing Hague Convention will strongly discourage either of the warring spouses from indulging in cross border parental child abduction. Read here.

Courtesy of Nyaya Bharat blog