While high profile cases like Choksi, Mallya, Nirav Modi, Abu Salem, Christian Michel hog the limelight and rightly so, numerous others do not get either the attention or the treatment which they ought to legally deserve. The process of international cooperation in criminal matters is time consuming and expensive and prioritisation is imperative. However, while prioritising, some cases cannot be left off the radar. These could be assigned as low priority, but cannot be left unattended or un-treated.
Cases of marital discord are often accompanied by physical abuse, demands of dowry, coercion or even labelled criminal misappropriation.
Other gender-related crimes like bigamy, cohabitation caused by a man deceitfully inducing a belief of lawful marriage, criminal elopement, and cruelty by husband or relatives of the husband are punishable for periods ranging from two to ten years.
Offences going under the radar, include stalking and 'sextortion' (punishable by up to three years), cyber-crimes and social media fraud where victims are Indian citizens or located within India’s jurisdiction also invites punishment of over a year.
Parental Kidnapping, Fraud, Desertion
In cyber crimes involving money, the sums involved may appear insignificant. However, law currently does not distinguish petty thefts from big, thus necessitating equal treatment.
Some incidents of frauds and forgery can be categorised either as civil disputes or criminal. However, when the intent is malafide, these would clearly qualify as crimes. Numerous such cases are left unreported and unattended.
Cases of parental kidnapping are also taking place, due to marital discord between partners and enhanced mobility in society in general, including international travel. Spouses are not hesitant to walk away from a marriage and take their minor child along resulting in the other spouse filing a case of abduction or ‘parental kidnapping’.
Indian spouses abroad wilfully cheating and deserting their partners, especially where the wife is in India, are not infrequent. Sometimes there may not be bigamy nor cruelty per se always, but definitely fraudulent in intent. Current laws fail to address these peculiar cases adequately.
Extradition and International Cooperation in Such Cases
Except cyber crimes and usual fraud, much investigation may not be required in cases of marital discord, parental kidnapping or stalking. If other evidence is overwhelming, even interrogation of the accused may not be required.
Cyber crimes and fraud may require detailed LRs or mutual legal assistance treaty (MLAT) requests to get to the root of the crimes, and nail down perpetrators based on digital evidence which may be based outside India.
Extradition is the crux – being the final and ultimate test of the resolve of the State to bring fugitives to book.
For extradition to be requested, there are four essential pre-requisites:
offence having been committed
sufficient evidence linking accused/suspect to the offence/crime
crime is an extraditable offence and
What Offences Qualify as Extradition Offences
Extradition offences, in the Indian Extradition Act 1962 (Section 2 (c )) mean offences listed in the treaties or offences that are punishable with imprisonment of not less than one year.
Most offences of marital discord or parental kidnapping or even stalking would qualify as extradition offences. Petty cyber crimes of fraud and/ or extortion would be extradition offences too. The law does not distinguish between petty discord or fraud or theft and serious ones. Strictly legally, all these crimes deserve similar treatment.
In some cases where part of the offence/crime may have been committed outside India’s territorial limits or jurisdiction, are covered by the Indian Extradition Act as ‘Composite Offences’ constituting extradition offences in India or in a foreign state.
Applying these tests, there is little doubt that some of the cases which we do not address deserve attention.
Lastly, the test of dual criminality is not difficult to establish - dowry can be equated with extortion, cruelty during marriage would be cruelty under the laws of most civilised societies.
Cases of marital discord are in the thousands every year. Pragmatically, each case may not warrant extradition, but it is essential to establish the supremacy of the law and curtail the impunity which lack of action fuels. Pursuing a decent bunch of cases of crimes for extradition, could help drive home the message that escaping Indian territory and/ or jurisdiction does not pay.
Some successful extraditions in marital discord or even cyber crimes like cyber fraud would be sufficient to send appropriate signals.
Prosecution in Lieu of Extradition
Sometimes, where pragmatism outweighs legality, the tactic of submitting evidence to foreign states, requesting them to undertake prosecution of criminals in their jurisdictions/ territories too, could be a viable alternative. This would help in extending the long arm of law to reach the accused and hold them accountable for their actions.
The manner of submission of evidence, the examination of evidence and witnesses could be worked out mutually too.
In some countries, the speed and pace of legal proceedings and taking of evidence are better than our own, probably sending a chill down the spines of the criminals, were prosecution to be initiated there.
Last but not the least, the governments perhaps need to make additional budgetary allocations only for the purpose of investigations abroad or for extradition or prosecution - prosecution of criminals is a sovereign responsibility.
Loopholes in the Divorce Law Need Fixing
The aspect of ‘no-fault divorce’ or even ex-parte divorce requires redressal. Sometimes, a spouse quietly initiates divorce proceedings abroad, fully cognisant of the fact that the spouse in India would not be able to appear or contest such proceedings.
This is an oft-used tactic to evade Indian laws, jurisdiction and courts and this loophole needs plugging. Such tactics could be equated with and considered indicative of deliberate/malafide intent to evade the criminal processes by subterfuge. Sanctity associated with having obtained such ‘orders’ needs to be questioned - inadequate participation in proceedings abroad could be equated with deliberate attempts to escape justice and criminalised.
Some measures suggested here could bring much-needed succour to Indian women and also protect them against harassment. By doing so for extradition offences, the supremacy of the law would be established too.
(Rupin Sharma is a 1992-batch IPS officer. He tweets @rupin1992. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)