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1987 Supreme(All) 584
IN THE HIGH COURT OF ALLAHABAD
RAVI S. DHAVAN
AKLESH KUMAR JAIN - Appellant
Versus
STATE OF U.P. - Respondents
CRI. MISC. APPLN. 9389 Of 1987
Decided On : 12/18/1987
G.S.Chaturvedi, K.K.Arora
A Magistrate cannot impose a condition requiring a person to take his wife and children with him when traveling abroad, unless there is a conviction against the person under Section 498A of the Penal Code or other relevant provisions of the Passport Act, 1967.
Headnote:
PASSPORT ACT - SECTION 10(7) - PASSPORT REVOCATION - CONVICTION REQUIREMENT - JUDICIAL DISCRETION - SPOUSAL ACCOMPANIMENT CONDITION - INCOMPATIBILITY OF TEMPERAMENTS - MAINTENANCE CLAIM - DIVORCE PROCEEDINGS - STAY OF PROCEEDINGS - CONDITIONS FOR FOREIGN STUDY PERMISSION.
Fact of the Case:
Aklesh Kumar Jain, a Nehru Fellow pursuing advanced studies in Geology at Cambridge University, England, faced a charge under Section 498A of the Penal Code for alleged dowry demand and harassment of his wife, Chitra Jain. While the criminal case was pending, Aklesh sought permission to travel to England to resume his studies. The Magistrate initially allowed him to go with his wife and children, but later evaded the order of remand from the High Court to reconsider the matter.
Finding of the Court:
The High Court found that the Magistrate's order requiring Aklesh to take his wife and children to England was illegal and beyond his jurisdiction. The Court held that the Magistrate failed to provide any reason why Aklesh's wife and children must accompany him, and that the only restraint on Aklesh's liberty to leave India could be under the Passport Act, 1967.
Issues: 1. Whether the Magistrate's order requiring Aklesh to take his wife and children to England was legal and within his jurisdiction. 2. Whether Aklesh could be restrained from leaving India in the absence of a conviction under Section 498A of the Penal Code. 3. Whether the Magistrate could impose conditions on Aklesh's departure, such as requiring him to provide maintenance for his wife during his absence.
Ratio Decidendi: 1. The Magistrate's order was illegal and beyond his jurisdiction because it was not based on any provision of the Passport Act, 1967, and there was no conviction against Aklesh under Section 498A of the Penal Code. 2. Aklesh could not be restrained from leaving India in the absence of a conviction under Section 498A of the Penal Code. 3. The Magistrate could impose conditions on Aklesh's departure, such as requiring him to provide maintenance for his wife during his absence, but these conditions had to be reasonable and proportionate.
Final Decision: The High Court allowed Aklesh's petition under Section 482 of the Code of Criminal Procedure, 1973, and permitted him to join Cambridge University to complete his studies in England. The Court imposed certain conditions on Aklesh, including reporting to the Legal Adviser at the Indian High Commission in London every two weeks and providing maintenance for his wife during his absence.
( 1 ) THIS matter had been before this Court earlier when an order of remand was made directing the Munsif Magistrate, Ghaziabad to reconsider the matter in the light of guidelines and observations of this Court in the order of 5 August, 1987 by which two petitions under S. 482 of the Criminal Procedure Code, 1973, were deckled. The learned Magistrate, it may be set on record, did not follow the order of remand and evaded the direction of the High Court. The urgency of the situation thus warrants that this Court may now look into the matter and consider it on merits.
( 2 ) AKLESH Kumar Jain is the husband. He is married to Chitra Jain. They have twins, who are not three years of age as yet. Aklesh Kumar Jain, the applicant in the present petition, holds a Nehru Fellowship for advanced studies in Geology, at the Cambridge University, England. He had already begun this pursuit in the field of Geology at Darwin College, Cambridge. He contends that the terms of the Fellowship require that his travel expenses to and from England will be borne by the Jawaharlal Nehru Memorial Trust which has arranged for the Fellowship. The expenses for his wife are not paid by the Fellowship. The applicant had to return to India for some field work. He could not go back to Cambridge University as he had medical problems. He condends that his kidneys were malfunctioning. His wife had stayed behind in England. He asked her to return to India. She did not. He was back in England on 1st September, 1986. The relations between them were beginning to get strained. They returned to India with the twins on 6 November, 1986.
( 3 ) ON the day they arrived i. e. 6-11-1986 a first information report was instituted by the petitioners father-in-law, Kampta Prasad Jain, not by the petitioners wife. An allegation was made under S. 498a of the Penal Code. The allegation in the first information report, in effect, suggests a demand for dowry and harassment to the petitioners wife Chitra Jain.
( 4 ) THE time for the petitioner to get back and resume and pursue his Fellowship at Cambridge is drawing near, but, as he was facing a charge under S. 498a, Cr. P. C. he was virtually on bail consequent upon an amount against sureties which was not light. While the charge under S. 498a of the Penal Code was pending consideration before the Munsif Magistrate, Ghaziabad, the petitioner instituted proceedings for divorce against his wife. His allegations in effect were incompatibility of temperament.
( 5 ) THE wife Chitra Jain also instituted proceedings for maintenance under S. 125 of the Code of Criminal Procedure. Thus, three proceedings entangled the husband and wife, one initiated by the wife under S. 498 A of the Penal Code, the other proceedings for divorce instituted by the husband and the third for maintenance sought by the wife.
( 6 ) THE trial under S. 498a of the Penal Code was to proceed and as it was unlikely to conclude expeditiously. One of the matters which was engaging the attention of the learned Magistrate was the plea of the petitioner that he ought to be permitted to go to England to resume his studies at Cambridge University. It was suggested by his wife that the petitioner must not be permitted to go alone and indeed if he must go then she ought to accompany him. The petitioner resisted this suggestion.
( 7 ) THE petitioner contended that his Fellowship was such that it can only support a single person and it was not possible for him to take his wife and further relations between them were strained as she had made allegations against his honour.
( 8 ) THE Magistrate found it difficult to deny permission to the petitioner not to pursue his studies at the Cambridge University and had permitted the petitioner to go to England, but upon a condition that he would take his wife. He made it clear that in case the petitioner does not intend to take his wife with him, he cannot go to England. Against this order, the petitioner Aklesh Kumar Jain f
