498a after divroce
Anil Malik
(Querist) 19 August 2011
This query is : Resolved
Resp. Experts
I have a history of 10 years of harassment in matrimonial cases. The recent being very serious, I am explaining the facts in brief.
1. I got a decree of divorce on the grounds of Desertion and Cruelty on 31st July 2007 by the order of ADJ, Tis Hazari, Delhi. The judgment was given after full trial(not ex partee). The only thing is that my wife appeared before the court and stated that she did not want to lead evidence.(Her statement is recorded in the order sheet).
2. Immediately, after pronouncement of judgment she filed an application in Delhi High Court seeking stay. The High court order clearly stated "The respondent shall not marry till next date." No order regarding stay on lower court's judgment was made. Reply to her appeal was duly filed within time. Her appeal was admitted due to non appearance of my counsel on few dates.
3. In second week of April a person came to my home and to my astonishment told me that An FIR was registered u/s 498a, 307, 323,506, 504,IPC and 3/4 of DP act at Meerut against myself, my aged parents, my sister and her husband residing at Amristar, my sister at Delhi and her minor daughter showing all of them to be residents of Delhi. In FIR my wife created a fake incident stating that my husband along with his family fixed a meeting with us at her father's house(add. not known to me) and demanded dowry in order to take back cases. When they failed to our demands, me with my family tried to kill her by strangulating her and attacking her with knife. She also got a false medical report done at Govt. hospital at meerut and filed FIR one week later citing the reason that she was getting treatment.
I sent somebody to verify about the authenticity of FIR and found it to be true. Me and my family had to went underground due to police harassment. After one month I went personally with all my documents to Meerut and met SSP Meerut. He heard my version and directed the IO to investigate the matter properly without any harassment. After Investigation the IO filed closure report mentioning the non occurrence of any such incident, as place was a barren piece of land having no construction and when the divorce is already granted to the husband why would he come for any compromise.
My wife file a protest petition which was accepted except section 307 which was deleted by the magistrate citing the reason that injuries were not that much.He summoned us for the rest of the sections.
I went to High court for the quashing of summoning orders. I got stay orders on proceedings but after two years my petition got dismissed.
I then filed an SLP in the Supreme Court. At first, my own SLP got dismissed but orders to issue notice to the other petitioners was made. The counsels for govt. asked the time to file reply but never filed and suddenly on next date the SLP got dismissed by the Supreme Court with a one line order "SLP stands dismissed"
I went to meerut for bail and got the same after spending two days in jail. Rest of the family members have also secured bail. Now the charges are to be framed.
Now in 2011, in my wife's divorce appeal at Delhi High Court notices to fix date of final hearing has been sent 4 times. Notice is served to her advocate but none appeared. The registrar has sent the matter to the court. The stay is regarding my remarriage is still in operation.
I have few questions which I discussed with so many legal experts. All of them having different views but no concrete opinion. Through this forum I wish I could get answers.
QUESTIONS:
1. According to the status of Divorce appeal of my wife, does the stay on my remarriage equals to stay on divorce judgment?
2. If divorce judgment stands, are we still considered as husband and wife for the purpose of justifying 489a? (As it is against the husband and his relatives)
3. Should we go for discharge application or should we start trial and go for framing of charges?
4. Should we kill time in 498a case and wait till the high court judgment comes in Divorce appeal?
If anybody has got record of relevant authorities or cases, please tell. I shall be highly obliged for the same.
Devajyoti Barman
(Expert) 19 August 2011
1. Yes
2.Yes
3.the criminal case would go one as decree of divorce has got nothing to do with the offence allegedly committed prior to divorce.
4. What for? Fate of the Appeal would not change the course of the trial.
Rajarshi Bhowmik
(Expert) 20 August 2011
Dear Anil, I can understand your mental condition .It has become very common in this days that many wife and there in laws are using this 498A as a weapon to harass their husband and other matrimonial in-laws. And due to such things this section has lost its sublimity in the society. Now coming to your query I most humbly beg to differ from Mr Devajyoti Barman.
According to me the answer of your 1st question is NO as the Honorable High Court had only pass an order against you to not to get married it does not mean that you can claim to be the husband of your wife any more or the vice verse you booth are also forbidden to claiming any rights against the status of husband and wife But if the Honorable High Court would have pleased to pass an order of staying the order of the trial court then the scenario would have been different in that case it would stand unless the adjudication of appeal you stands husband and wife.
In answer to your second question I would again differ from Mr. Devajyoti Barman.and make it clear that you have not mentioned the momentous point that is the real keystone of the criminal case i.e. in the said FIR of your wife what is the date and time of occurrence. Please note if it is prior to the order of the trial Court then I would have no other option but to hold the same view of Mr Devajyoti Barman. and if the occurrence alleged is later then instantly 498A and provisions of domestic violence will fall in its face as according to the order of the trial court and as the Honorable High Court had not passed any stay order you are not a husband and wife now.
In reply to your third question I would say this cant be answered instantly with going through the case record of your present case as at this stage it could be presumed at best if the 498A and DV act goes for a walk then also there would be 323,506, 504,IPC and as I don't know what sort of materiel is submitted by your wife before the Court it will not be appropriate to give you any confirm suggestion.
In reply to your forth question also I would say with out the date and time of the alleged incident it cant be opined appropriately. Reasons stated above. For any further details Please visit www.rajarshibhowmik.webs.com
sibasish pattanayak
(Expert) 21 August 2011
HI ANIL JI,
please mention the date of filling of criminal case as filed by ur wife ,bcoz if the 498A case has bn filed prior to file the DIVORCE CASE BY U, and the allegations as alleged by ur wife against u & ur parents during ur conjugal life then there is a ground to proceed the criminal case.
The q of JURISDICTION as mentioned by u is VITAL ONE IN CRIMINAL CASE. IF all the allegations as alleged by ur wife in THE JURISDICTION OF DELHI COURT, In that case ur pending case at MEERUT SHALL BE TRANSFER AT DELHI COURT( PL rely HON BLE SUPREME COURT JUDGEMENTS e.g.INSPECTOR AJITH {TAMILNADU} .again i shd say pl mail me the FIR(498A),DIVORCE PETITION,DECREE for proper SUGGESTION/ADVICE, REGARDS
SIBASISH PATTANAYAK,ADVOCATE,09874854594/09231668664
e-mail:sibasish_adv@yahoo.co.in
