498a and custody of child
Nilesh
(Querist) 06 December 2015
This query is : Resolved
Dear sir, my wife left in March 2014 with my then 1.5 years old son. She has filed DV case in April 15. After 2-3 dates she asked for mediator for negotiations.now if negotiations fail can she file 498A against me and my family after this much long time?How would I come to know?When would I opt for AB?Also can I get the access to my son in same case or I should file it separately.I was not allowed to see my son for last 1 year.please help.
Devajyoti Barman
(Expert) 06 December 2015
There is no time limit to file 498A case. However since there is a mediation proceeding I would suggest you to participate in the same and try for amicable resolution of the dispute.
If the dispute is resolved you will stay with your wife and child. Go for it.
Nilesh
(Querist) 06 December 2015
Thanks for the reply sir.mediation is taken by them for alimony negotiations only.however 3 sessions are done.in first and second I tried to convince her and mediator that I don't want divorce.but after 2 sittings I realized nothing can be done now.so I decided to go with the divorce in 3rd sitting.now she has taken time for maintainance amount.but i know that negotiations will fail.so what should be my stand?
Rajendra K Goyal
(Expert) 07 December 2015
Try for amicable settlement to save marriage.
If not possible explore possibility for the mutual consent divorce.
If negotiation fails, you have to defend yourself in the cases against you, take help of your lawyer for each step.
For such a small child, you may not be given custody. You should move for the visitation rights.
Nilesh
(Querist) 08 December 2015
How would I come to know about 498a?will police arrest us without notice?and should i give application seperately for visitation rights?or its possible to request verbally during DV case?Does they (Judge) even let defender to speak or his advocate does all talking?
K.S.Srinivas
(Expert) 11 December 2015
"No automatic arrest in 498a" sids Supreme Court.
In the Arnesh Kumar SC judgment, the 6 points at end of the judgment give all the steps which police needs to follow in line with CrPC 41 and 41A; those 6 points are reproduced verbatim below:
(1) All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;
(2) All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);
(3) The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
(4) The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;
(5) The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;
(6) Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;
Nilesh
(Querist) 12 December 2015
Thanks for the help.very well explained by Srinivas sir.
Nilesh
(Querist) 09 March 2016
Dear sir,its been around 5-6 months.my wife has filed dv and maintainance case against me.during this period she also opt for mediator for maintenance n divorce negotiations.but it wasn't fruitful. nothing has happened in court after that.i want to know that will i have to file different case for custody or visitation rights for my 3.5 years old son.becoz my lawyer said so.he also said that i will have to file it in civil court.whats the difference between family court and civil court? Cant i request judge for visitation rights/custody during hearing of ongoing case.also educate me about share parenting. thanks in advance
T. Kalaiselvan, Advocate 
(Expert) 14 December 2015
