Madam,
High court judgment
1 WP2249.11.sxw
JPP
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CIVIL JURISDICTION
WRIT PETITION NO. 2249 OF 2011
Mr. Sukhvinder Gill & Anr. ... Petitioners.
V/s.
Mrs. Kanwal Toor. ... Respondent.
Mr. H.D. Buch i/b. S.B. Shetty for the Petitioners.
Mrs. S. Jayakar Lalwani for the Respondent.
CORAM : R.Y. GANOO, J.
DATED : 01st APRIL 2011.
P.C. :-
Rule. Rule made returnable forthwith. Learned Counsel
for the Respondent waives service. Looking to the nature of
the relief sought in the impugned order, by consent, the
Petition is taken up for hearing and is being disposed of by
this order.
2. The Petitioner has filed Petition No.A-2254 of 2010 under
Hindu Marriage Act in the Family Court at Bombay. The
learned Judge of the Family Court is seized of the said Petition.
In the said Petition the Respondent – wife filed an application
for injunction and for other reliefs against the Petitioner being
application dated 10th November 2010.
2 WP2249.11.sxw
3. By prayer clause (a) it was prayed that the Petitioner be
restrained from taking away daughter Sundari outside the
country. By prayer clause (b) it was prayed that the Petitioner
be directed to deposit pass-port and PIO Card of daughter
Sundari in the Court and issue order directing the Senior
Inspector of Police, Look Out Cell, S.B.II, C.I.D., CSI Airport,
Sahar, Mumbai – 99 to place look out in the system at the
International Airport in India to prevent the Petitioner from
leaving the country and/or taking away the daughter Sundari.
This application came to be decided by the learned Judge of
the Family Court by order dated 4th December 2010. This
order is challenged in this Petition.
4. I have heard learned Counsels on both sides. So far as
prayer clause (a) is concerned, the Petitioner had given an
undertaking to the Court that the daughter Sundari is in the
custody of the Respondent and passport of daughter Sundari
is also in the custody of the Respondent.
5. The learned Judge of the Family Court has, by order
dated 4th December 2010 ordered that the Petitioner should
seek prior permission from the Court whenever he is required
to go out of the country. This order is under challenge.
6. It is admitted by the Respondent that the Petitioner is a
British citizen and holds a British Passport. The Petitioner is
working in India for last 6 to 7 years. The Petitioner has
3 WP2249.11.sxw
mother aged about 68 years and the Petitioner is required to
see her from time to time.
7. The application at Exhibit 13 as mentioned aforesaid
appears to have been filed on the ground that if the Petitioner
leaves India, the Respondent would be left with no remedy
particularly because the Respondent has a child aged about
three years. According to the Respondent, the Petitioner may
move out of India and leave the Respondent without any
recourse.
8. The Petitioner has placed before the learned Judge of the
Family Court that he is required to go out of India to meet his
mother.
9. The learned Judge of the Family Court has, in 1st part of
paragraph 8 of the impugned order, recorded following
observations :-
“ So far as prayer clause (b) is concerned,
admittedly, the Petitioner is working in India and he
would not leave India unless and until there is an
emergency relating to the ailment of his mother”.
after observing this in favour of the Petitioner, the learned
Judge of the Family Court has observed in the later part of
para 8 as under :-
4 WP2249.11.sxw
“ So, in my view, if the Petitioner is required to go
out of the Country for any reason either for official
or personal, I think it just and proper to direct him
to seek the prior permission of the Court while
leaving the country. With these observations, the
following order is passed.”
10. After recording these observations, the learned Judge
has passed the final order directing the Petitioner to take
permission from the Court to leave India. It is required to be
mentioned that the learned Judge has not given any reason
much less cogent reasons for arriving at the conclusion which
the learned Judge has mentioned in the later part of
paragraph 8. A reading of paragraph 8 in the two portions as
mentioned aforesaid, it is required to be noted that the
learned Judge gave a finding in favour of the Petitioner and
had taken a reasonable view that the Petitioner may have to
leave India for the personal reasons. In the later part of
paragraph 8 the learned Judge has asked the Petitioner to
take permission of the Court whenever he is required to go out
of the Country. No specific reasons are given by the learned
Judge as to why such a permission is required. The learned
Judge has observed “I think it just and proper to direct him.”
These are no reasons for giving final order dated 4th December
2010.
5 WP2249.11.sxw
11. In my view, the impugned order is arbitrary. In my view,
it was necessary for the learned Judge of the Family Court to
give detailed reasons as to why the learned Judge wanted to
impose restrictions on the Petitioner to go abroad.
12. The attitude on part of the Respondent seems to be to
pin down the Petitioner in this Country. In my view, the
impugned order is passed without any justification. It was not
necessary to impose restrictions on the Petitioner to go
abroad.
13. It appears that the Respondent is under an impression
that if the Petitioner goes out of India, she will be left with no
remedy. It is to be noted that the Petitioner has filed a Petition
for divorce being Petition No. A-2254 of 2010. Needless to
mention that if the Petitioner remains absent before the
learned Judge for whatever reasons, surely it would be open
for the learned Judge to take appropriate steps and pass
appropriate orders. Merely because the Petitioner happens to
be British Citizen and has British pass-port, he cannot be
restrained from leaving India.
14. The apprehension was expressed by the Respondent that
if the Petitioner goes out of India, the Respondent would not
be able to have maintenance from the Petitioner. I am not
very much impressed by this submission. If the Respondent is
entitled to recover from the Petitioner maintenance on the
basis of an order passed by the Court surely the provisions of
6 WP2249.11.sxw
law as are prevailing today in India can be used by the
Respondent for the purposes of recovering maintenance. It is
also required to be noted that the main petition is filed by the
Petitioner and he would be interested in getting the final relief
in the said Petition. In order to get final relief in the Petition,
the Petitioner will have to be attend the said proceedings and
therefore, there are very few chances that the Petitioner
would go out of India solely to see that the Respondent is left
without money.
15. In my view, the restriction imposed by the impugned
order ought not to have been done. It violates the right of the
Petitioner to go out of India being a British national and the
person holding British Pass-port.
16. Before I part with this Judgment, it is required to be
mentioned that while this Exhibit 13 was before the learned
Principal Judge in his capacity as I/c. Judge for Court Room No.
4, an order was passed on 10th November 2010 directing
Senior Inspector of Police, Look Out Cell, S.B.II, C.I.D., CSI
Airport, Sahar, Mumbai – 99 to put a look out on the Petitioner.
It will mean that by order dated 10th November 2010, Police
were justified in stopping the Petitioner to go out of India. It is
to be noted that order dated 10th November 2010 was passed
during the pendency of final decision on application at Exhibit
13. The learned Judge of the Family Court has finally decided
application at Exhibit 13 and has imposed a restriction viz. the
Petitioner would not leave India without obtaining permission
7 WP2249.11.sxw
from the Court. On account of passing of order dated 4th
December 2010, order dated 10th November 2010 merged into
the order dated 4th December 2010. As said order dated 4th
December 2010 is being set aside by this Judgment, there is
no question of the Petitioner being kept “under look out” as is
sought to be done in accordance with the order dated 10th
November 2010. Hence, it is necessary that an appropriate
direction is required to be issued to Senior Inspector of Police,
Look Out Cell, S.B.II, C.I.D., CSI Airport, Sahar, Mumbai – 99 to
remove the look out notice which was issued pursuant to
order passed by the Family Court on 10th November 2010.
17. Hence, following order is passed :-
(i) The Petition is made absolute.
(ii) Impugned order dated 4th December 2010 below
Exhibit 13 in Petition No.A-2254 of 2010 is set
aside.
(iii) The Petitioner is free to leave India and it is not
necessary for him to obtain permission from the
learned Judge of the Family Court.
(iv) The order of look out issued pursuant to order
dated 10th November 2010 passed by the learned
Judge of the Family Court imposing look out on the
Petitioner is hereby set aside.
8 WP2249.11.sxw
(v) Senior Inspector of Police, Look Out Cell, S.B.II,
C.I.D., CSI Airport, Sahar, Mumbai – 99 shall not
impose look out notice on the Petitioner on account
of the order dated 10th November 2010.
(vi) The Petitioner to serve authenticated copy of this
order upon Senior Inspector of Police, Look Out Cell,
S.B.II, C.I.D., CSI Airport, Sahar, Mumbai – 99 so
that the concerned Officer shall take steps to
vacate the look out imposed on the Petitioner on
account of the order passed by the Family Court,
Bombay.
(vii) There shall be no order as to costs.
(R.Y. GANOO, J.)
