Gurjinder 20 July 2016

Should i file hindumarriage act case or go on with caw fir

Hello Experts,

My wife has filed for a false CAW case against me with IPC Act 1860 Section 498A/406/34

I have always lived in Mumbai and even after marriage..

Whatever claims she has mentioned in the FIR I have details evidences to prove that incorrect however the problem is she has filed it in Delhi since thats where she lives. As per previous advices given I understand I can only file for Transfer petition once challan for the case has been issued and can only be done via Supreme court (I am willing to do that)

She has only mentioned one point that her father paid for our hotel stay a deposit of 10000/- in Delhi to book hotel for marriage accomodation (however I had actually send her sister an amount of 20000/- since I didnt want anything to be paid by them - I simply dont like taking anyones assistance)

Apart from that whatever points she has mentioned are for the things that happened in Mumbai.. so at times I wonder if such a CAW case can be transferred to Mumbai from Delhi or not..

My marriage has been nothing else but a Mental harrassment not just to me but to my parents as well.. (thanks for guiding me on this one esteemed experts)

Since the case is still in CAW cell not yet with court .. I am again wondering should I file Anticipatory bail or wait for what happens .. also the FIR is against my mom and sister however both happen to be staying in US currently.. so what should I do in this regard

She has been staying with her parents since the past 2 years now hence initially when I had contacted my lawyer he suggested to file an HMA ( Hindu Marriage Act ) case.. since we wanted precaution didnt actually filed it yet is still in pending stage..

Hence I keep thinking all the time since am confused as to what next and it keeps to coming to my mind again and again should I wait for CAW to be converted into court case or should I file HMP before that happens. Please suggest..

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1 Replies

Augustine Chatterjee,New Delhi (Advocate & Solicitor at Law) 20 July 2016

Sir having a criminal case transferred is not something which is done as per the convenience of either party, unlike civil cases. SInce 498A has been declared to be a continuing offence, as per numerous citations of the Supreme Court, It wont be feasible for you to file a transfer petition seeking transfer of the criminal case. Even if one of the allegations are stated to have been committed in Delhi, the Delhi court shall have jurisdiction.

As far as filing the divorce case in Mumbai is concerned, you could try that. However let me tell you that she will immediately move to Supreme COurt to have the same transferred, and the SC shall transfer it in all probabilitiues, based on the fact that the convenience of the female petitioner is given preference generally. SO you shall have to end up paying hefty money for the supreme court transfer matter as well .

You have been rightly advised by your lawyer to file an HMA petition as the same ensures that you take prompt action against her cruelty. Plus the further you push initiation of proceedings back, the harder are the chances of you managing to get divorce as the delay shall render you to have condoned her cruelty. A false criminal case is the strongest form of cruelty and hence you must act promptly. However I strongly advise you to file the petition in Delhi and appoint any person as a power of attorney to appear and contest on your behalf. That way she wont be able to claim additional maintenance or travelling charges as maintenance, which she will in case you file for divorce in Mumbai. SHe will allege that she needs to travel to Mumbai to attend the court proceedings and hence you are liable to pay her maintenance as well as travelling/lodging expenses for her trips to Mumbai. Same has happened in another case of mine where the wife travels from Bhopal to Delhi to attend the court proceedings,

Dont apply for anticipatory right now, as the same is bound to be dismissed as pre mature. Apply for it only after there is an FIR. Dont worry about your mother and sister. Arrest is a very rare phenomenon in 498a cases and that too is only possible after permission from higher authorities. So relax regarding that aspect. But bail is important at the right time. However not right now.

Remember you cannot control her actions or predict what she will do next. But then you can take the required steps that might ensure that you are in a better situation, while availing bail andf also while sitting across the table for any prospective negotiation

My suggestion is to file a divorce petition in Delhi immediately. She is anyway going to file for maintenance, whether you intiiate proceedings or not. Filing for divorce first ensures that you have a slight upper hand .

Give me a call in case you want to pursue the matrimonial matter in Delhi

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