P.C.

Heard. This is an application under Section 438 of the Criminal Procedure Code, 1973.

2. The applicant herein takes exception to the order passed by the Additional Sessions Judge, Pune, in Criminal Miscellaneous Application No.804/2013 dated 02/04/2013. The applicant herein submits that she was residing in New Jersey, United States of America with her husband. The couple is blessed with a son. The applicant was harassed by her husband and she was left with no alternative but to return to India along with her son. The counsel for the applicant has drawn the attention of this Court to a communication sent to the applicant through e-mail by a lawyer of her husband informing her about an order passed by New Jersey Chancery Division Family Part, Manmouth, calling upon the applicant to show cause to enforce prior order dated 21/02/2013 should not be confirmed and also to hold her in violation of Litigants Rights. On 22/03/2013 Superior Court has passed an order by which the applicant has been restrained from filing any suit outside the jurisdiction of United States of America. She is further restrained from enforcing the order passed by Family Court at Pune, India by clause (E), it is further stated that the defendant be incarcerated for her failure to comply with the provisions of the order dated 21.02.2013. The order dated 21.02.2013 reads as follows :

"That Defendant, Dimple Ravindra Parmar be ordered to bring the child of the marriage, Reyansh Parmar to the United States of America at an Embassy or Consulate in Mumbai, India within seven (7) days of the date of execution of this Order and be delivered to the Plaintiff, Ravindra Harshad Parmar."

3. This Court had granted interim relief by order dated 29th April, 2013.

4. The learned Counsel for the applicant has placed reliance upon the Judgment of the Apex Court in the case of Bhavesh Jayanti Lakhani vs. State of Maharashtra & Ors. reported in 2009 ALL MR (Cri) 3417 (S.C.). The Apex Court has held that matrimonial dispute as such does not constitute an extraditable offence and, thus, no effect could be given thereto. However, whether this case concerns an extraditable offence or not has to be determined by the Magistrate under the Extradition Act, 1962. The Apex Court has further held that "the arrest of a person must be effected in terms of the provisions of the Act. A person wanted for an offence in a foreign jurisdiction may be arrested on fulfillment of the following conditions:

"(i) That the offence should be counted as one by Indian Law as well, and

(ii) The person must be liable to be arrested in India - either under any law relating to extradition, or otherwise."

In para 67 of the judgment, the Apex Court has held as follows :-

"67. Indisputably where there exists any reciprocal arrangement, the following are required to be complied with :-

(i) The Court, Judge or Magistrate is required to be specified by the Central Government to whom a request can be made.

(ii) The form in which such a request is to be made is again required to be specified by the Central Government.

(iii) A transfer of a person out of India must precede upon due application of mind on the part of the Magistrate subject again to the condition that either the Court or the Central Government may impose such conditions as they may seem fit and proper."

It appears from the said Judgment of the Apex Court that the United States has enacted the International Parental Kidnapping Crime Act of 1993. However, the law in India shall be governed by the provisions of the Indian Penal Code, 1860. The Apex Court has also held that recognition of the request as the basis for an arrest operate as an internationalization or trans-nationalization of a foreign administrative decision. Section 166B of the Code of Civil (sic Criminal) Procedure, 1973 reads thus :-

"166B. Letter of request from a country or place outside India to a Court or an authority for investigation in India - (1) Upon receipt of a letter of request from a Court or an authority in a country or place outside India competent to issue such letter in that country or place for the examination of any person or production of any document or thing in relation to an offence under investigation in that country or place, the Central Government may, if it thinks fit-

(i) forward the same to the Chief Metropolitan Magistrate or Chief Judicial Magistrate or such Metropolitan Magistrate or Judicial Magistrate as he may appoint in this behalf, who shall thereupon summon the person before him and record his statement or cause the document or thing to be produced, or

(ii) send the letter to any police officer for investigation, who shall thereupon investigate into the offence in the same manner, as if the offence had been committed within India.

(2) All the evidence taken o collected under sub-section (1), or authenticated copies thereof or the thing so collected, shall be forwarded by the Magistrate or police officer, as the case may be, to the Central Government for transmission to the Court or the authority issuing the letter of request, in such manner as the Central Government may deem fit."

5. For the aforementioned reasons, the interim relief granted in favour of the applicant by an order dated 29th April, 2013 stands confirmed.

6. It is informed at the Bar that the husband of the applicant has appeared before the Family Court, Pune. The proceeding pending before the Family Court, Pune is a subject matter of this Application. Hence, it need not be taken into consideration. The said proceeding would be decided in accordance with law.

Application is allowed in terms of prayer clauses (a) and (c).