(Guest)

498a, 323, 504, 506

One of my friend did Love marriage from Arya Samaj without the consent of 'her' parents. Subsequently registered the same with the Registrar of Marriage Office. After 3 years of marriage his wife filed a baseless case against him and his parents. FIR already registered (323, 504,506, 498A, 3/4 D.P Act) Mediation process already failed. & investigation started. Mine friend has filed Sec 9 RCR (after FIR) as he was not aware that petty quarrel will turned like this and Also a case against his wife & in laws is already registered in form of 'Complaint case' for extorting Rs 10 lac. CrPC Sec 200 has already been done now Sec 202 examination of witnesses is left. Chargesheet has not been filed yet under FIR registered. He has applied for staying of arrest order from the H.C. at this stage. I advised him to move u/s/ 482 for quashing of FIR with all proof and documents he has in his possession but most of lawyers advised that HC will not allow quashing. Your valuable advise is solicited on below:-

1.can he apply for discharge application before chargesheet? or can apply for 482 CrPc??

2. Also can I/o arrest him and his parents at the time of presentation of chargesheet?

3. His wife has filed Sec 125 against Sec 9 not to mention she is a registered Insurance agent of IRDA as well a Chartered Accountant by qualification.

4. Interesting Point to mention: He has a CCTV footage when I/O came to his shop for Sec 41A CrPc Notice and I/O said as well offered to shut the case if the boy will pay Rs 10 lac to his wife and settle the issue amicably and out of the Court. The same matter has been already complained to SSP & DIG of city.

5. One more important point to mention that his wife lodge another case u/s 156(3) against him consequently he also filed the 156(3) in same Court as counter attack and both cases turned into an FIR.

From his side:- 380, 323,147, 504, 506, 452 of IPC

from her side-323,504,506,452 of IPC

investigation is pending in above cases.

Advise is he on right track in fighting 498A case?

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4 Replies

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com) 09 December 2013

may be he is on right track but how can we tell that he is on right trace or not without detail facts.

(Guest)

His wife medical states - complain of pain, right arm shoulder, back. No mark of injury seen.

Doc Opinion - Could not be given.

NCR dated 21 June'13, Medical at 12:35 am on same day. (Sec 323, 504, 506)

FIR regsd:- On 23rd June (more than 48hrs after NCR & Medical)

Moreover in NCR his wife stated that his husband beaten her and she is not supposed to visit her father place as well not talk with him.

and in FIR she stated that her husband demanded Dowry of Rs 10 lac. No witnesses name in FIR as well no evidence in support of statement, only false and baseless allegations only. With the help of police she and her family fabricated a case.

Not to mention on basis of NCR dated 21 june, S.I. challaned both parties under 107/116 of CrPc on the basis of investagion report submitted to District Magistrate on 25th June.

Anirudh Arora (sales executive) 09 December 2013

Dear .its the right strategy to fight. you are on right track . Also nail them influensive person from wife side. gud luck

(Guest)

An application to the trial court can be made, for the discharge furnishing documents in support of the case. The Magistrate on being satisfied with the arguments, will, if the case is found to be prima facie baseless against your friend, discharged him. If the complaint is frivolous and false, it may be challenged in the High Court by filing a petition under Section 482 of Criminal Procedure Code for quashing the proceedings.

Quashing of an FIR in a 498A and Domestic Violence case, would be difficult, since the powers vested with the High Court under Section 482 is used sparingly and only to secure the ends of justice. It would be recommended that your friend should applies for a discharge petition and presents his arguments along with the evidences he has (the CCTV footage etc.), before the Magistrate. The Investigating officer can make the arrest at the time of presentation of the chargesheet. On granting maintenance under Section 125, the Court looks into various factors. The Court takes into consideration the income on the spouses.

Even a working and earning woman is entitled to maintenance under Section 125 of CrPC, if in spite of her earnings, she is unable to maintain herself. Initially, a misconception existed that a working woman is not entitled to claim maintenance as she is earning and is thus able to maintain herself. Now, based on several judgments of Supreme Court and High Court, it is evident that a working woman can claim maintenance even though she is earning. An estranged woman can claim maintenance from her husband in spite of her efforts to earn a monthly income if that is not enough for her maintenance. The term 'Unable to maintain herself’ does not require a wife to be absolute destitute before she can apply for maintenance.

The Supreme Court of India has ruled that a woman is entitled to claim maintenance from her husband if her independent income or earnings as a single woman are insufficient to maintain the standard of living she was accustomed to whilst living with her husband. Thus, if the wife is unable to maintain herself to the same status as she was maintain herself during the subsistence of her marriage, she is entitled to maintenance from her husband under Section 125. When applying for the discharge petition, the evidences like the CCTV footage and the copies of the complaints made to the DIG and SSP can be attached.

You should consult an expert in this regard. You can call me at 09555 507 507 or send me a mail at info@lawkonect.com

-Regards

Advocate Pooja

www.lawkonect.com