Passport Impounding in Matrimonial Cases

Introduction:-

With the raise of matrimonial litigation involving Non-Resident Indians (NRIs), foreign-based professionals and spouses employed overseas, Indian Courts are gradually more confronted with requests seeking impounding of passports, issuance of Look-Out Circulars (LOCs) and restrictions on international travel. Such requests commonly arise in proceedings under Section 498A IPC (now section 85 of the Bharatiya Nyaya Sanhita, 2023), Dowry Prohibition Act, maintenance proceedings, domestic violence cases, child custody disputes and divorce proceedings. The issue raises an important constitutional question that:

Can the pendency of matrimonial litigation justify deprivation of an individual's right to travel abroad?

The mere pendency of matrimonial litigation does not justify deprivation of an individual's right to travel abroad. The Supreme Court has consistently held that the right to travel abroad forms an integral part of the right to personal liberty guaranteed under Article 21 of the Constitution. Consequently, the existence of matrimonial proceedings, whether relating to divorce, maintenance, domestic violence, child custody, or criminal complaints under Section 498A IPC, cannot by itself constitute a valid ground for impounding a passport or imposing restrictions on foreign travel. Any such restriction must be authorized by law, supported by compelling reasons, and satisfy the constitutional requirements of fairness, reasonableness and proportionality. Courts have therefore emphasized that travel restrictions cannot be employed as a coercive measure in matrimonial disputes and may be justified only in exceptional circumstances where there is a genuine apprehension of absconding, evasion of judicial proceedings, or interference with the administration of justice.

Passport Impounding in Matrimonial Litigation:-

In recent years, spouses involved in matrimonial disputes have increasingly sought directions for impounding passports of the opposite party. Such requests are generally founded on apprehensions that the accused spouse may leave India and avoid participation in judicial proceedings. Particularly in cases involving NRIs, wives often seek impounding of passports alleging that the husband may evade criminal proceedings, maintenance obligations or custody litigation. Conversely, husbands contend that travel restrictions adversely affect their employment, livelihood and ability to discharge financial obligations.

Right to Travel Abroad covered under Fundamental Right:-

The foundation of Indian passport jurisprudence lies in the landmark judgment of the Supreme Court in Maneka Gandhi v. Union of India (1978) 1 SCC 248. The Court held that the right to travel abroad forms an integral component of "personal liberty" under Article 21 of the Constitution. Any restriction upon such liberty must satisfy the test of fairness, reasonableness, and non-arbitrariness. The judgment is particularly relevant in matrimonial disputes because courts are often called upon to determine whether a spouse facing criminal prosecution can be prevented from travelling overseas.

Statutory Scheme Governing Impounding of Passports:-

The power to impound a passport is governed exclusively by the Passports Act, 1967. Section 10(3) empowers the Passport Authority to impound or revoke a passport under specified circumstances, including when criminal proceedings are pending before a court. Importantly, the statute employs the expression "may impound," thereby indicating that the power is discretionary rather than mandatory. Mere pendency of criminal proceedings arising out of matrimonial discord does not automatically warrant impounding of a passport. The authority must independently assess the necessity and proportionality of such action.

Can Criminal Courts Impound Passports Directly?.

The Supreme Court in the case of Suresh Nanda v. CBI, (2008) 3 SCC 674, categorically held that the Passports Act is a special statute governing passports and that the power to impound a passport vests exclusively in the Passport Authority. Criminal Courts cannot exercise such powers independently. The Court observed that while investigating agencies may seize a passport during investigation, they cannot retain or impound it indefinitely. The matter must be referred to the Passport Authority for appropriate action under the Act. The principle assumes particular significance in matrimonial disputes where surrender of passports is often sought as a routine condition.

Impounding of passport Cannot use as a Tool in Matrimonial cases:

One of the concerning trends noticed by courts is the use of passport impounding as a means of exerting pressure in matrimonial disputes. Requests are often made not because there is a genuine apprehension of absconding but to compel desired settlement, increase bargaining leverage or create employment difficulties for the opposite spouse. The Supreme Court has repeatedly cautioned that legal processes cannot be used as instruments of harassment. In a recent matrimonial dispute, the Court disapproved the impounding of a husband's passport merely because several proceedings had been instituted by the wife. The Court observed that the statutory requirements under the Passports Act must be independently satisfied and cannot be presumed from the existence of matrimonial litigation alone.

Travel Restrictions and Employment in Abroad:

The issue assumes greater significance where the spouse is employed overseas. For many NRIs and foreign-based professionals, continued employment depends upon international travel and maintenance of valid immigration status. Courts have recognized that preventing a person from travelling abroad may effectively deprive him or her of livelihood. Such consequences are directly linked to Article 21 of the Constitution. Accordingly, Courts have increasingly adopted a balanced approach by permitting foreign travel subject to conditions such as furnishing itineraries, providing contact details, executing bonds, or undertaking to appear before the court whenever required.

Look-Out Circulars in Matrimonial Cases:

Another mechanism frequently employed in matrimonial disputes is the issuance of Look-Out Circulars (LOCs). LOCs are intended to prevent individuals from leaving the country when their presence is required for investigation or trial. However, Courts have repeatedly held that LOCs cannot be issued mechanically in matrimonial cases. The mere pendency of a complaint under Section 498A IPC or allied offences does not justify curtailment of international travel. The Bombay High Court recently observed that matrimonial prosecutions often continue for years and that indefinite restrictions on travel would amount to disproportionate interference with personal liberty. The Court therefore quashed a Look-Out Circular issued against a husband in a matrimonial dispute.

Judicial Principles:

The judicial precedents on passport impounding and travel restrictions in matrimonial disputes reveal certain well-established principles. The right to travel abroad is a facet of personal liberty protected under Article 21 of the Constitution. The power to impound a passport is vested exclusively in the Passport Authority under the Passports Act, 1967 and cannot ordinarily be exercised by criminal courts or investigating agencies. The mere pendency of matrimonial proceedings, including cases under Section 498A IPC, the Domestic Violence Act, maintenance proceedings or divorce petitions, does not automatically justify impounding of a passport or restriction on foreign travel. Courts have further held that Look-Out Circulars and other travel restraints must satisfy the tests of necessity, proportionality, and fairness. The consistent judicial approach has been that matrimonial litigation cannot be used as a tool to curtail personal liberty, professional mobility, or employment opportunities, except in exceptional circumstances where such restrictions are legally justified.

Conclusion:

The evolving judicial approach reflects a strong commitment to constitutional values. Courts have consistently recognized that matrimonial disputes, however acrimonious, do not diminish the fundamental rights of either spouse. While judicial proceedings must be protected from abuse, restrictions on international travel can be imposed only in exceptional circumstances supported by law and necessity. The jurisprudence developed by the Supreme Court and various High Courts underscores that passport impounding, travel restrictions and Look-Out Circulars cannot be employed as tools of matrimonial warfare. Instead, they must remain carefully regulated measures used only where compelling reasons exist. The law, therefore, seeks to preserve both the integrity of judicial proceedings and the constitutional guarantee of personal liberty.

*****Mahesh Tiwari Adv. Supreme Court of India