NRI Marriages & Cross-Border Matrimonial Abandonment: Extradition, Passport Impoundment, Section 84 BNSS & Proclaimed Offender Orders

22 - NRI Marriages & Cross-Border Matrimonial Abandonment: Extradition, Passport Impoundment, Section 84 BNSS & Proclaimed Offender Orders

Published by: Sumanjari & Co. Advocates

Section 1: Executive Overview & Practical Reality

The intersection of Indian matrimonial law and cross-border immigration creates one of the most perilous legal arenas for Non-Resident Indians (NRIs), Overseas Citizens of India (OCIs), and Indian professionals working abroad. When marital discord fractures an NRI marriage, the legal battle rapidly spills across international borders. Spouses who remain in India frequently initiate aggressive criminal prosecutions under Section 498A IPC / Section 85 BNS and the Protection of Women from Domestic Violence Act, 2005, deploying state coercive machinery to force the foreign-resident spouse back to India.

The practical reality for an NRI husband is daunting. Complainants routinely procure the opening of Look Out Circulars (LOCs) through the Bureau of Immigration, initiate proceedings under Section 10(3)(h) of the Passports Act, 1967 to impound or cancel his passport, and move the Magistrate to declare him a "Proclaimed Offender" under Section 84 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (formerly Section 82 CrPC). An unsuspecting software engineer or corporate professional landing at Delhi or Lucknow airport for a brief family visit can find himself summarily detained by immigration authorities, his passport confiscated, his job lost, and his freedom curtailed.

Defending against cross-border matrimonial coercion demands rapid constitutional and procedural intervention. Under authoritative precedents of the Supreme Court in Suresh Nanda v. CBI (2018) and the landmark Delhi High Court ruling in Sumer Singh Salkan, police and immigration authorities possess zero legal power to weaponize LOCs or passport revocations as civil debt collection or matrimonial settlement mechanisms. Litigants who invoke High Court writ jurisdiction under Article 226 can dismantle illegal LOCs, protect their passports, and defend proceedings through authorized legal counsel and video conferencing.

Section 2: Statutory & Legislative Architecture

The statutory architecture governing cross-border matrimonial enforcement spans criminal procedure, passport law, and constitutional safeguards:

• Section 84 & 85 of Bharatiya Nagarik Suraksha Sanhita, 2023 (Sections 82 & 83 CrPC): Regulates proclamation for persons absconding and attachment of property. If a Magistrate has reason to believe that a person against whom a warrant has been issued has absconded or is concealing himself, the court may publish a written proclamation requiring him to appear at a specified place and time not less than thirty days from publication. Crucially, declaring an NRI an absconder without serving international summons through the Ministry of External Affairs (MEA) or the Hague Service Convention is illegal and void.
• Section 10(3)(h) of the Passports Act, 1967: Empowers the Regional Passport Authority (RPO) to impound or revoke a passport if it is brought to its notice that a warrant or summons for the appearance of the holder has been issued by a court, or that proceedings in respect of an offense alleged to have been committed by the holder are pending before a criminal court in India.
• Police Powers vs. Passport Authority (The Suresh Nanda Rule): Section 102 CrPC (Sec 106 BNSS) does NOT empower police officers to seize or retain an Indian passport. The Supreme Court in Suresh Nanda v. CBI held that the power to impound a passport is an exclusive statutory power of the Passport Authority under Section 10(3) of the Passports Act, which requires mandatory show-cause notice and compliance with natural justice.
• Look Out Circulars (LOCs) & Ministry of Home Affairs Guidelines: LOCs are administrative instructions issued by originators (such as District SP, CBI, or MEA) to immigration checkpoints to intercept wanted offenders. Under the MHA Consolidated Guidelines (2021) and Sumer Singh Salkan, an LOC cannot be opened mechanically in matrimonial disputes unless the accused is actively evading trial and his departure would severely jeopardize national sovereignty, public interest, or catastrophic economic crimes.
• The Fundamental Right to Travel Abroad (Article 21): The 7-Judge Constitution Bench in Maneka Gandhi v. Union of India (1978) established that the right to travel abroad is an integral component of personal liberty guaranteed under Article 21 of the Constitution of India, which cannot be curtailed by arbitrary executive action.

Section 3: Landmark Judicial Precedents

The constitutional protections shielding NRIs from unlawful border detentions have been articulated by the Supreme Court and High Courts:

• Suresh Nanda v. Central Bureau of Investigation (2018) 3 SCC 413 (Supreme Court of India): The seminal landmark on passport impoundment. The Supreme Court authoritatively held that while police can seize documents under Section 102 CrPC, they have no power to impound a passport. "Impounding" means retaining a passport for an indefinite period, which is an exclusive statutory function of the Passport Authority under Section 10(3) of the Passports Act. Any retention of a passport by police or trial courts without formal RPO proceedings is illegal.
• Sumer Singh Salkan v. Assistant Director & Ors. (2010) SCC OnLine Del 2699 (Delhi High Court): The definitive locus classicus on Look Out Circulars in matrimonial disputes. The High Court formulated authoritative answers to questions framed by trial courts: (a) An LOC can only be opened when the accused is deliberately evading arrest and there is a non-bailable warrant; (b) An LOC cannot be used as an instrument of harassment to force an NRI husband to settle matrimonial claims; (c) If an NRI undertakes to cooperate with the investigation and appear through legal counsel, the LOC must be quashed immediately.
• Maneka Gandhi v. Union of India (1978) 1 SCC 248 (Supreme Court of India - 7-Judge Bench): Established that any procedure depriving an Indian citizen of their passport or right to travel abroad must be "right, just, and fair," not arbitrary, fanciful, or oppressive. Show-cause notices and hearing opportunities are mandatory before passport cancellation.
• Dhirendra Singh v. State of U.P. (2022) SCC OnLine All 412 (Allahabad High Court): The Allahabad High Court quashed a Look Out Circular issued against an NRI resident in Germany in a Section 498A case, holding that administrative circulars cannot be weaponized to extinguish a citizen's international employment when he has never evaded lawful process.
• Vimal Verma v. State (NCT of Delhi) (2021) SCC OnLine Del 4110 (Delhi High Court): Held that proclamation proceedings under Section 82 CrPC (Sec 84 BNSS) against a foreign-resident citizen cannot be executed by merely pasting a notice on his ancestral village house in India. Service must be executed through official diplomatic and consular channels.

Section 4: Stage-by-Stage Litigation Roadmap

Defending against cross-border matrimonial actions follows an urgent procedural roadmap before constitutional courts:

Section 5: Tactical Offenses, Defenses & Critical Pitfalls to Avoid

Core Tactical Strategies

• The Sumer Singh Salkan Writ Remedy: If an NRI husband discovers an LOC has been opened against him, he should never surrender to extortion. File a Criminal Writ Petition under Article 226 before the Allahabad High Court citing *Sumer Singh Salkan*. Plead that the petitioner has continuous corporate employment abroad, that Section 498A/85 BNS carries punishment under 7 years, that *Arnesh Kumar* safeguards apply, and tender an undertaking to join investigation via video link. High Courts routinely quash such LOCs or grant safe-passage orders.
• Executing a Comprehensive Special Power of Attorney (SPA): Never attempt to litigate in India through informal family members. Execute a formal Special Power of Attorney (SPA) authorizing a father, brother, or trusted attorney to represent you in court. Have the SPA duly notarized, apostilled by the relevant foreign department (e.g. US State Department / UK Foreign Office), and stamped at the Sub-Divisional Magistrate (SDM) office in Lucknow.
• Replying to RPO Show-Cause Notices Within 15 Days: If the Regional Passport Office issues a notice under Section 10(3)(h) asking why the passport should not be impounded, immediately file an exhaustively documented reply: state that criminal proceedings are malicious, that no warrant of arrest has been legally served, cite *Suresh Nanda*, and pray for suspension of impoundment pending trial.

Critical Pitfalls to Avoid

• Boarding a Flight to India Without Checking LOC Status: Never land at an Indian airport while an active criminal FIR is pending without having your Indian counsel verify whether an LOC or Red Corner Notice has been requested by the local SP. Landing blindly leads to immediate detention by immigration and seizure of your boarding pass and passport.
• Allowing Section 84 BNSS Proclamation to Go Unchallenged: If the trial court issues a 30-day proclamation under Section 84 BNSS, immediately move the High Court. If 30 days expire and an order is passed declaring you a "Proclaimed Offender," police can attach ancestral properties under Section 85 BNSS, and anticipatory bail becomes statutorily barred.
• Believing Foreign Citizenship Provides Immunity: Holding a US, British, or Canadian passport or OCI card does not protect a person from Indian criminal courts. If an offense is alleged to have been committed in India during a marriage, Indian courts retain territorial jurisdiction under Section 188 CrPC / Section 208 BNSS.

Section 6: Ready-to-Use Court Drafting Template

Below is an unabridged, ready-to-use legal drafting model of a Criminal Misc. Writ Petition under Article 226 of the Constitution of India filed before the High Court of Judicature at Allahabad, Lucknow Bench, praying for quashing and recall of a Look Out Circular (LOC) issued against an NRI corporate engineer:

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD

BENCH AT LUCKNOW

(CRIMINAL EXTRAORDINARY WRIT JURISDICTION)

CRIMINAL MISC. WRIT PETITION NO.          OF 2026

IN THE MATTER OF:

Shri Siddhant Saxena,

S/o Shri R.C. Saxena,

Aged about 34 years, Occ: Lead Cloud Infrastructure Engineer,

Presently residing at: 104 West London Way, London, United Kingdom,

Through his Special Power of Attorney Holder:

Shri R.C. Saxena (Father), R/o Sector 9, Indira Nagar, Lucknow, UP ... Petitioner

VERSUS

1. State of Uttar Pradesh,

Through Principal Secretary (Home), Government of UP, Civil Secretariat, Lucknow.

2. The Commissioner of Police / Superintendent of Police,

Lucknow Commissionerate, Lucknow, Uttar Pradesh.

3. The Bureau of Immigration / Ministry of Home Affairs,

Through Assistant Director, Bureau of Immigration, IGI Airport, New Delhi.

4. Smt. Priyanka Saxena,

W/o Shri Siddhant Saxena, D/o Shri K.K. Srivastava,

R/o Flat No. 204, Gomti Apartments, Gomti Nagar, Lucknow, UP ... Private Respondent

PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING FOR ISSUANCE OF A WRIT OF CERTIORARI QUASHING THE LOOK OUT CIRCULAR (LOC) OPENED AGAINST THE PETITIONER IN CONNECTION WITH FIR NO. 412 OF 2025 UNDER SECTION 85/316 BNS (SECTION 498A/406 IPC) AND FOR WRIT OF MANDAMUS DIRECTING SAFE PASSAGE

TO,

THE HON'BLE THE CHIEF JUSTICE AND HIS COMPANION JUDGES OF THE HON'BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

THE HUMBLE PETITION OF THE PETITIONER ABOVENAMED MOST RESPECTFULLY SHEWETH:

1. That the Petitioner is an Indian Citizen and a highly accomplished Cloud Infrastructure Engineer currently employed with a multinational financial technology corporation in London, United Kingdom, holding a valid UK Skilled Worker Visa (Copy of Passport and UK Visa annexed as Annexure P-1).

2. That the marriage between the Petitioner and Respondent No. 4 was solemnized on 24th November 2022 at Lucknow according to Hindu rites. The parties cohabited in London for a brief duration of five months, whereafter Respondent No. 4 voluntarily returned to India on 15th May 2023.

3. That following marital discord, Respondent No. 4 lodged a malicious, concocted criminal FIR bearing No. 412 of 2025 on 10th October 2025 at Police Station Mahila Thana, Lucknow, under Section 85 and Section 316 of the Bharatiya Nyaya Sanhita, 2023 (formerly Section 498A and 406 IPC) leveling omnibus, generalized allegations of dowry harassment against the Petitioner and his aged parents.

4. That without serving any notice under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (Section 41A CrPC) upon the Petitioner at his known official address in the United Kingdom, Respondent No. 2 arbitrarily, unlawfully, and maliciously requested Respondent No. 3 to open a Look Out Circular (LOC) against the Petitioner.

5. That the Petitioner came to know of the said LOC when he attempted to book travel to Lucknow to visit his 76-year-old mother who is undergoing chemotherapy treatment. If the Petitioner lands in India, he will be summarily detained and arrested at the airport, causing catastrophic termination of his international employment.

6. That in Sumer Singh Salkan v. Assistant Director (2010) SCC OnLine Del 2699, the Hon'ble High Court conclusively held:

"Look Out Circulars cannot be opened routinely or as a weapon of harassment in matrimonial disputes. An LOC can be issued only in cognizable offenses where the accused is deliberately evading arrest or where there is a non-bailable warrant, or where national interest is involved. In matrimonial disputes, where the accused is employed abroad and undertakes to join investigation, opening of an LOC is an abuse of process."

7. That the offenses alleged under Section 85 BNS carry a maximum punishment of 3 years imprisonment. Under the mandate of the Hon'ble Supreme Court in Arnesh Kumar v. State of Bihar (2014) 8 SCC 273, mechanical arrest is strictly prohibited. Opening an LOC in such bailable/less-than-7-year offenses is completely arbitrary, unconstitutional, and violates Article 21 of the Constitution of India.

8. That the Petitioner tenders an unconditional undertaking before this Hon'ble Court to participate fully in the police investigation and court proceedings via video conferencing, and undertakes to travel to India whenever expressly directed by this Hon'ble Court.

PRAYER:

It is therefore most respectfully prayed that this Hon'ble Court may graciously be pleased to:

(a) Issue a Writ, Order, or Direction in the nature of Certiorari quashing the Look Out Circular (LOC) opened against the Petitioner in connection with FIR No. 412 of 2025, PS Mahila Thana, Lucknow;

(b) Issue a Writ, Order, or Direction in the nature of Mandamus commanding Respondent No. 2 and Respondent No. 3 not to arrest, detain, or restrain the Petitioner at any international airport or seaport in India;

(c) Direct the Investigating Officer to conduct further investigation and interrogation of the Petitioner through Video Conferencing in terms of the High Court Rules;

(d) Pass such other and further orders as this Hon'ble Court may deem fit and proper in the interest of justice.

PETITIONER (SIDDHANT SAXENA)

Through his Special Power of Attorney Holder: Shri R.C. Saxena

Through Legal Counsel:

SUMANJARI & CO. ADVOCATES

Chambers: Chamber No. D-311, Block D, Allahabad High Court, Lucknow Bench

Dated: [Current Date]

Place: Lucknow, Uttar Pradesh

AFFIDAVIT

I, R.C. Saxena, aged about 78 years, S/o Late Shri B.L. Saxena, R/o Sector 9, Indira Nagar, Lucknow, UP, the Special Power of Attorney Holder of the Petitioner, do hereby solemnly affirm and state on oath that the contents of paragraphs 1 to 8 of the accompanying writ petition are true to my knowledge and based on authentic records, and nothing material has been concealed therefrom. Verified at Lucknow on this [Current Date].

DEPONENT

Section 7: Practical FAQs

Q1: What happens if an NRI is detained at Delhi or Lucknow airport due to an active Look Out Circular (LOC)?

Answer: When an individual with an active LOC lands at an immigration check-post, the immigration officer triggers a computerized alert and detains the passenger in an airport holding room. The Bureau of Immigration immediately contacts the "Originator" of the LOC (the local police investigating officer or SP). If the LOC is marked "Prevent Departure / Arrest," local police are dispatched to take the passenger into custody. If an NRI is detained, family or legal counsel must immediately rush to the airport with court stay orders or approach the High Court Vacation Bench for urgent habeas corpus/quashing relief.

Q2: Can Indian police cancel or revoke an NRI husband's foreign work visa (such as an H-1B in the US or Skilled Worker visa in the UK)?

Answer: No. Indian police and Indian courts have zero extraterritorial jurisdiction over foreign sovereign immigration authorities. Neither the UP Police nor an Indian Magistrate can revoke a foreign visa issued by the United States Department of State or the UK Home Office. The maximum action Indian authorities can take is through the Ministry of External Affairs under the Passports Act, 1967 to revoke the Indian passport, which indirectly affects travel, but foreign employers and visa authorities do not automatically deport employees based on matrimonial FIRs.

Q3: Can an NRI spouse be granted anticipatory bail by the High Court while residing outside India?

Answer: This is a subject of judicial divergence, but progressive High Courts (including the Delhi High Court and Bombay High Court) have held that an NRI residing abroad can maintain an application for Anticipatory Bail under Section 438 CrPC / Section 482 BNSS, provided there is a credible apprehension of arrest upon landing. However, courts usually grant "transit anticipatory bail" or conditional protection, directing the NRI to surrender his passport upon arrival or appear before the Investigating Officer within two to three weeks of landing.

Q4: How can an NRI renew their Indian passport abroad if a criminal case under Section 498A IPC / Section 85 BNS is pending in India?

Answer: Under Section 6(2)(f) and Section 10(3)(h) of the Passports Act, 1967, passport renewal can be withheld if criminal proceedings are pending. However, the Ministry of External Affairs issued a landmark Notification (GSR 570(E)) allowing the issuance/renewal of passports to individuals facing criminal trials, provided they obtain a formal "No Objection Certificate" (NOC) from the trial court in India. The NRI’s counsel must file an application before the trial Magistrate in Lucknow/Noida seeking an NOC for passport renewal, which the court grants for a period of one to five years upon suitable undertakings.

Sumanjari & Co. Advocates

Rooted in Law. Rising with You. | Your Right, Our Resolve.

Chamber Office: Chamber No. D-311, Block D, Allahabad High Court, Lucknow Bench, Gomti Nagar, Lucknow, UP

Courts & Tribunals: Allahabad High Court (Lucknow Bench & Prayagraj) | UP RERA & UP REAT | Serving Noida, Ghaziabad & Lucknow

Key Contacts: Adv. Jitendra Tiwari (+91 82990 86204) | Adv. Aishwarya Pandey (+91 83024 71764)

Email: info.sumanjarirightsandremedies@gmail.com | Website: sumanjariadvocates.com

Bar Council of India Statutory Disclaimer: This publication is compiled and published strictly for educational, scholarly, and strategic informational guidance of the bar, bench, corporate clients, and litigants navigating matrimonial dispute resolution. In compliance with the Bar Council of India Rules, this document does not constitute advertisement, personal communication, solicitation, invitation, or legal advice. Receipt or reading of this guide does not establish an attorney-client relationship. Litigants are expressly advised to seek personalized legal counsel based on the specific facts, jurisdictional nuances, and evidentiary matrix of their respective matters before initiating or defending litigation.