304b, 498a
Rahul
(Querist) 10 February 2014
This query is : Resolved
Dear Sir,
I want to know about the u.s. 304B,498A,34IPC
My cousin brother's wife committed suicide 1 years after marriage. His in-laws have filed false 498a & 304B case on his family.
His wife have committed suicide self burn in her statement which is taken by SDM. All family members are on bail after six months.
Case was registered in Dec,2011. Still Evidences is under processing.
Now, Please confirm My cousin can do marriage?? If any documents required please suggest. If no then tell me can we go ahead ?
Devajyoti Barman
(Expert) 10 February 2014
Yes, he can marry. Pendency of case is no bar for him to remarry.
T. Kalaiselvan, Advocate
(Expert) 10 February 2014
He can very well marry, there is no restriction to that. The 304B & 498a has got nothing to do with his marriage.
Biswanath Roy
(Expert) 11 February 2014
Your COUSIN CAN REMARRY pending disposal of cases u/s. 498a and 304B ipc.
Rahul
(Querist) 11 February 2014
Thanks to All of you for your suggestions.
Please suggest me 1 more thing..
My cousin's in-laws demanding 20 lac rupees but they invest only 2 lac rupees in marriage. They don't have any proofs of any payment,clothes,jewelry and all things. because my cousins had arranged all marriage expenses like marriage home, dinner, decorating and all that.
May i know how long time will take it this case already more than 2 years of this case. after that they can take some breath in open air.
Sudhir Kumar, Advocate
(Expert) 11 February 2014
sorry this 20 lakh is not the cost of marriage which they are demanding
this is their demand to cooperate in saving your cousin family from collectively going to jail.
It is 304b case where accused is not on strong position.
Devajyoti Barman
(Expert) 11 February 2014
The case will take time..should be another five years.
malipeddi jaggarao
(Expert) 12 February 2014
The family should fight out the case on merits and it will take its own time. Nobody can specifically say anything about the time frame.
R.V.RAO
(Expert) 12 February 2014
agree with experts
Sudhir Kumar, Advocate
(Expert) 12 February 2014
Mr Barman said that
"The case will take time..should be another five years. "
I will add that if the accused are not bale to prove innosence then another 7 years in Jail. (whole family of course)
T. Kalaiselvan, Advocate
(Expert) 12 February 2014
Sudhir Kumar sir, please donot terrorize the author, poor chap, he is worried about the given situation. Let the law take its own course of action and let us refrain from making discouraging comments this way namely"I will add that if the accused are not bale to prove innosence then another 7 years in Jail. (whole family of course)"
Biswanath Roy
(Expert) 12 February 2014
The author is seeking for expertise opinion that led him to put his query before the experts how he can get relief. IT IS NOT HIS QUERY that how many years he and his family will be behind the bar. So any comment relating to jail custody is irrelevant and unwanted. Sec.304B is the offense of Dowry death. It's a serious offense besides it appears from the query death statement of the victim took before SDM, So possibility of winning the case depends upon good advocacy that may turn the case to 'BENEFIT OF DOUBT' In this context I say in all dowry death case, the standard of appreciation of evidence has to be in the light of the provsions contained in sec.113-A EVIDENCE ACT.
R.V.RAO
(Expert) 13 February 2014
agree with sri B.Roy and sri kalaiselvan
Sudhir Kumar, Advocate
(Expert) 13 February 2014
unfortunately onus a of proof in such cases is on accused and the complainant has no discretion to withdraw the case. The complainant can only favour him in evidence at trial.
It is he who has to prove that there was no dowry demand as the following facts are matter of record:-
(i) death
(ii) death within 7 years
(iii) death unnatural within 7years
So buying sympathy of complainant is an assets for him
Biswanath Roy
(Expert) 13 February 2014
The query does not disclose the factum of this case, Buying sympathy of the complainant will be of no use as the victim herself made a death statement before SDM which may establish DOWRY DEATH. So maximum relief will be possible by turning the case towards 'BENEFIT OF DOUBT ' ALTHOUGH POSSIBILITY OF PUNISHMENT OF 1 OR 2 CANNOT BE RULED OUT.
Guest
(Expert) 13 February 2014
Mr. Roy seems to be correct in his observation, "IT IS NOT HIS QUERY that how many years he and his family will be behind the bar," as against the reply of Mr. Sudhir, where he has replied, "I will add that if the accused are not bale to prove innosence then another 7 years in Jail. (whole family of course)." The querist simply wanted to know how long time will the case take to enable them to take some breath in open air. His query for knowing estimated time in the case did not mean that he desired to know how much punishment he could expect for himself and his family, for which the first part of Mr. Sudhir's reply, "the case will take time, should be another five years," would have been sufficient to denote his guess.
However, I would like to differ a bit with the opinion of Mr. Roy that "buying sympathy of the complainant will be of no use." I don't think the proposal of opposite side, as buying sympathy of the opposite side. Rather that can be a bargain to buy mental peace and sense of freedom at a cost from the side of the complainants side for the family of the defendant (cousin of the querist).
I am sure, so far as a legal battle is concerned, Mr. Roy, by virtue of his vast experience, would like to agree with me that there is a lot of difference between silence or neutrality in evidence and vigorous persuation in the case from the complainant's side. Only silence and neutral evidence of the opposite side can be of sone benefit to the defendants.
So, the querist, Mr. Rahul and his cousin, if like, can enter in to the proposed bargain with the opposite side in consultation with their own lawyer. If they think that fit to do, they should have to weigh all the pros & cons of the proposal to settle by mutual discussion between both of the families in front of some impartial third party elders and lawyers by taking due precautions.
Biswanath Roy
(Expert) 13 February 2014
In this context I need to refer the views of LORD DENNING,Ex-Chief Justice of Calcutta High Court and Lord Justice of ENGLAND who in his book ' DISCIPLINE IN LAW' stated a Judge when gives his Judgement he relies upon two things namely 1. Legality of the dispute rests upon the rules and provisions of law and 2. What he thinks as a man of the society and his personal experience. IN THE CASE UNDER THIS QUERY it will follow the same principle.
Guest
(Expert) 13 February 2014
Mr. Roy,
To be frank, theoretical opinions and beliefs of certain individual writers conceived in certain restricted environments cannot always be imposed on or expected to be taken to be the commandment of law by all the judges of the world. They are always expected to apply their own minds keeping in view of the circumstances, environments and the evidence addued before them.
Even otherwise also, if you think seriously over the two axioms, you will find a total contrast in both of them. Both of them, i.e., (1) legality of the dispute resting upon the rules and provisions of law; and (2) that what he thinks as a man of the society and his personal experience, cannot both be applied at the same time in any type of case, barring a very few exceptions. The judge can be expected to apply at any given time, either the principle of (1) legality of the dispute resting upon the rules and provisions of law; or (2) that what he thinks as a man of the society and his personal experience.
Naturally, if he depends upon his personal experience in giving any judgment, as an individual, he can well be expected to use his own personal bias and individual conceptions, but not as a rational and impartial judge in the spirit of law based upon legality of the dispute resting upon the rules and provisions of law.
Biswanath Roy
(Expert) 13 February 2014
SORRY, I DIFFER WITH YOU. APART FROM THE VIEWS OF LORD DENNING AN ENGLISH CASE AS REPORTED IN 'ALL ENGLAND LAW REPORT'I.E., SQUIRE VS. SQUIRE FOLLOWED THE SAME PRINCIPLE IN DISPOSING A CASE OF MENTAL CRUELTY WHICH WAS FURTHER FOLLOWED IN A PATNA HIGH COURT CASE SUBSEQUENTLY. IN ONE OF MY CASE ON THE QUESTION OF MENTAL CRUELTY I MYSELF AS PROSECUTION LAWYER RAISED THE SAME VIEW AS PRINCIPAL FOR DETERMINING CRUELTY UPON THE HUSBAND BEFORE THE LEARNED DISTRICT JUDGE AT CHINSURAH IN WEST BENGAL AND COULD ABLE TO WON THE CASE IN THE YEAR 1976.
Guest
(Expert) 13 February 2014
Dear Shri Roy,
In other words, you believe that once some judge has said something in his book, that should be adopted as a cardinal to be applied universally and everybody should follow that blindly without applying their minds.
But, if you are the believer of the this particular concept of Lord Denning, or the judge of Patna HC or District Court of Chinsurah were also in agreement with you, that does not mean that I or everyone else in the world should also tow the same line.
Sorry, views of everyone can differ with every other, but that does not bind others to stop using their own minds. Let me make clear, instead of following some one blindly, I use my own mind. SORRY TO SAY AGAIN, I SEE A MARKED CONTRAST IN BOTH THE SAYINGS OF LORD DENNING, WHICH I BELIEVE CANNOT BE APPLIED TOGETHER IN ANY CASE AT A TIME.
Biswanath Roy
(Expert) 13 February 2014
In continuation to my above post I need to state further to resolve a dispute the court must create a new rule or modify an old one that is law creation, Judges defending themselves from accusations of judicial activism, sometimes say they do not make law, they only apply it. It is true that in our system Judges are not supposed to and generally do not make new law with the same freedom that legislatures can and do, they are, in Oliver Wendell Holmes's phrase, confined from molar to molicular motions, The qualification is important, but the fact remains that Judges make and do, not just find and apply, law.
Guest
(Expert) 13 February 2014
No law can be taken as complete, in itself, in all respects. It cannot be expected to contain micro level details. Subordinate legislation in keeping pace with the spirit of the main statute is an integral part of law until the main statute is made to cover something that has not already been covered.
Any law does not say that the judge should not use his mind. Making law and applying in right spirit, of course, are different from each other. Even law makers falter in making the law perfect and fool-proof, which results in several launae of which the law breakers try to take maximum advantage through effective presentation made by their smart lawyers.
So, even the concepts of Lord Denning can also not be taken as 100% perfect.
In nutshell, in my views application of mind is an integral part of any legal process, if the judge has to act rationally, sincerly and effectively. A judge actually needs to base his judgment on the right spirit of law, not merely by the word of law in the statutes. For that, it is the moral duty of a lawyer to assist him to promote justice and effective operation of the judicial system, not to distract him.
Biswanath Roy
(Expert) 13 February 2014
I AGREE, BUT IN CONSONANCE TO MY VIEWS WHICH ARE IN VOGUE NOW A DAYS.
Guest
(Expert) 13 February 2014
Quite strange, even your present post is contradictory, as you agree with me, but still say that your views are in vogue, on which I have already expressed my difference.
Anyway, I won't think we are serving any useful purpose to the querist by dragging our discussion too far just to sidetrack the main issue of the querist's problem.
Rahul
(Querist) 14 February 2014
Thanks a lot for all of You for suggestions and as per your suggestions we are going to FIX my cousin marriage ASAP.
Because his younger sister(29) and younger brother(27) is ready for marriage. So we have decide to fix my elder cousin's marriage and after that his sister & brother marriage.
We hope we don't have any problem in marriages as per law.
May we know which evidence is most important in this case Like his wife,in-laws,in-laws and SDM,I.O. etc.
Guest
(Expert) 14 February 2014
Mr. Rahul,
You are welcome.
Marriage of your cousin cannot be a problem.
About your other query, the statement of your cousin's wife is the most crucial to face, as has been made before the SDM. That can virtually be treated as dying declaration of the victim and cannot be overlooked or treated false by the judge.
Biswanath Roy
(Expert) 14 February 2014
@ Mr. Dhingra,
I am glad to learn that ultimately you have agreed with my views " Buying sympathy of the complainant will be of no use as the victim herself made a death statement before SDM which may establish DOWRY DEATH "
Advocate. Arunagiri
(Expert) 14 February 2014
What is the content of the dying declaration?
What is the allegation on the husband and his relatives?
There is no legal bar for the remarriage.
prabhakar singh
(Expert) 14 February 2014
Such a huge controversy for a simple query compels my presence even when i am enjoying fever triggered due to cold.
1.Once one spouse is dead,no matter how,the other can marry.
\
2.Her own statement before SDM that she burnt herself is a valuable evidence in your favor.
3.India is country where saying'justice delayed justice denied'most often fits.
4. Do not bow down to undue demands.Doing so would encourage these kind of people.
prabhakar singh
(Expert) 14 February 2014
Such a huge controversy for a simple query compels my presence even when i am enjoying fever triggered due to cold.
1.Once one spouse is dead,no matter how,the other can marry.
\
2.Her own statement before SDM that she burnt herself is a valuable evidence in your favor.
3.India is country where saying'justice delayed justice denied'most often fits.
4. Do not bow down to undue demands.Doing so would encourage these kind of people.
prabhakar singh
(Expert) 14 February 2014
Such a huge controversy for a simple query compels my presence even when i am enjoying fever triggered due to cold.
1.Once one spouse is dead,no matter how,the other can marry.
\
2.Her own statement before SDM that she burnt herself is a valuable evidence in your favor.
3.India is country where saying'justice delayed justice denied'most often fits.
4. Do not bow down to undue demands.Doing so would encourage these kind of people.
Guest
(Expert) 14 February 2014
Mr. Roy,
Probably you are using your lifelong gained lawyer's trick to give a cleaver twist in your favour by saying, "you have agreed with my views 'Buying sympathy of the complainant will be of no use as the victim herself made a death statement before SDM which may establish DOWRY DEATH."
Contrarily, I have been very clear in my yesterday's statements, where I have stated, "I would like to differ a bit with the opinion of Mr. Roy that 'buying sympathy' of the complainant will be of no use. I don't think the proposal of opposite side, as buying sympathy of the opposite side."
Further, I have never said that "death statement before SDM ...... may establish DOWRY DEATH."
Contrary to your presumption about "dowry death", the querist has stated, "his wife have committed suicide SELF BURN in her statement which is taken by SDM."
For your information, I do not base my opinion merely on presumptions. Whether the death is treated as a dowry death or otherwise, that depends solely on the contents of the statement before the SDM. My statement, "the statement of your cousin's wife is the most crucial to face, as has been made before the SDM. That can virtually be treated as dying declaration of the victim and cannot be overlooked or treated false by the judge," does not give any indication of dowry death. Dying declaration can also be in favour of the in-laws, if she has confirmed self burn before the SDM.
By dint of your own long experience, I hope you must be knowing that either the parents of the woman or the police on its own puts the draconian section of 304B to nake the case of some serious offence, irrespective of whether the reasons of death could have been attributed to the lady or someone else.
Sorry, Mr. Rao, I did not expect from you, a very senior member, to use such like trick in order to justify your statements.
However, if your own notion makes you glad, I would be happy with that also.
R.V.RAO
(Expert) 15 February 2014
i wish our senior member sri prabhakarji early recovery from fever and cold.
Biswanath Roy
(Expert) 15 February 2014
Thanks to Mr. Dhingra for further clarification of his views and pray for early recovery of Mr. Prabhakarji.
Guest
(Expert) 15 February 2014
I Pray God for early recovery of Prabhakar ji. Also wish Probahkar ji a very healthy, happy and long purposeful life.
Guest
(Expert) 15 February 2014
You are welcome Shri Biswanath Roy.
Wish you also a very happy, healthy and purposeful long life to serve the humanity in a very impartial manner with the help of your vast experience.
Rahul
(Querist) 17 February 2014
Thanks to all of you again.
Very Important things.....
If we will do my cousin marriage and after that his in-laws will come at his home for fight, abusing or objections for his marriage.
Then what we can do for in laws ?? how can we fight with in-laws according to laws.
ajay sethi
(Expert) 17 February 2014
why should they come home and fight with you . they have no business to object . if they threaten you or abuse you record the conversations . lodge police complaint against them for criminal intimidation .also install CCTV cameras outside your house . the video footage will help you in your case
Rahul
(Querist) 17 February 2014
Dear Sir,
They are asking to our relatives via phone calls. where you have fix his sister and brother marriage? then we are thinking about this.
R.V.RAO
(Expert) 17 February 2014
take police help as you apprehend public nuisance and disturbance on the occasion of marriage.
Rahul
(Querist) 27 February 2014
Thanks to all of you. As discussed good news for all of you we have done my cousin's marriage last Sunday without any problems :) :)
Many many thanks to all of you.
Biswanath Roy
(Expert) 27 February 2014
@ Mr. RAHUL,
Dry thanks will not be sufficient to us it must be SWEET THANKS.
Sudhir Kumar, Advocate
(Expert) 28 February 2014
Marriage stands dissolved due to death of wife (whatever be the cause and circumstances and whatever may be consequences on husband) the husband is not deprived of marriage second time.
