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.)