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AryaVrat (Executive)     26 August 2015

498a: forced marriage 12(c) filed - Any Expert in 498a ?

Dear Experts,

 

I have filed a 12(c)  - Nullification as it was a forced marriage under duress of filing rape case and making video of me in a closed room admitting to marriage. I have all proofs which i collected in 6 months to prove that it was indeed done under duress, in form of audio, text, sms recordings. I have never lived with that women. I filed 12(C) - and she is response filed 498a. She is using it as a tool of negotition on emails to agree to mutual and withdraw 12(c).

 

1. Police filed 498a FIR but since police already knew that a case is filed in court under 12(c) and marriage was never registered, , was it legal to take a 498a FIR?

2. I have put Quash petition 482 in HC but date keeps on jumping and there has been no hearing even once as case is in pre-admittance state, can I somehow ask court to do a hearing for the same, if so how?

3. Can I seek stay on grounds that 12(C) was filed and immediately after 4 days a 498a was filed even though i wasn't in contact with her for 2 months ? I mean if a marriage is done case is pending, how can someone file a FIR if marriage itself is challenged beforehand?

 

Advise urgently according to expertise.

 

Humble Regards.



 10 Replies

Rocky Smith (Instructor @ Calcutta (rockysmith4calcutta@gmail.com))     26 August 2015

1.Police filed 498a FIR but since police already knew that a case is filed in court under 12(c) and marriage was never registered, , was it legal to take a 498a FIR?

498A can be registered if you are lawfully her husband, else not. Read the IPC 498A carefully.

2.I have put Quash petition 482 in HC but date keeps on jumping and there has been no hearing even once as case is in pre-admittance state, can I somehow ask court to do a hearing for the same, if so how?

 

  1. Since lawyer slithering it, it is so. Put your case in daily cause list in first hours (By asking any court clerk) and appear in-person(Without Advocate) and plead.
  2. Or, make a fresh petition, since only quashing may not work. File quashing with speedy trial. Or criminal writ with speedy trial.

3.Can I seek stay on grounds that 12(C) was filed and immediately after 4 days a 498a was filed even though i wasn't in contact with her for 2 months ? I mean if a marriage is done case is pending, how can someone file a FIR if marriage itself is challenged beforehand?

 

If there is not legal proof of marriage then it is a very good ground of quashing. If you stay it then it will be graded to your funeral. smiley Better file quashing with speedy trial. Don’t apply for stay.

Please read each of my posts carefully in the following links for sample petitions and other necessary clues.

 

https://www.lawyersclubindia.com/forum/Fight-against-misuse-of-498a-ipc--103100.asp#.U6gslUCm9dg

 

https://www.lawyersclubindia.com/forum/Best-way-to-fight-against-false-498a-103111.asp#.U6gsRkCm9dg

 

https://www.lawyersclubindia.com/forum/details.asp?mod_id=104564&offset=1

 

https://www.lawyersclubindia.com/forum/Why-speedy-trial-amp-perjury--124819.asp#.VbzWibOqqkp

 

https://www.lawyersclubindia.com/forum/Why-speedy-trial-and-perjury--124820.asp#.VbzWx7Oqqko

1 Like

AryaVrat (Executive)     26 August 2015

Thanks.

 

Can you please shed more light on the part if you are lawfully wedded?

 

They forced me to marry in some temple where they issued some temple certificate in which ot was written in some language which i didnt understand to register it within 1 month in court which of course i didn't even after so much force. Does this marriage count as legal?

saravanan s (legal advisor)     26 August 2015

dear aryavat whatever marriage that was done in the temple is legally valid till it is nullified by the court.so till that time you are lawful husband of that women and so she can file 498a on you

Aryan Renaisaance (Fighter)     26 August 2015

In that case.. What do you suggest seek stay stating that matter is before law and ask court or request court to give stay or fight case. Assuming that if I get stay, in any case on solution to nullification problem., it will somehow have impact the 498a case. Advise what's best, getting confused.

Rocky Smith (Instructor @ Calcutta (rockysmith4calcutta@gmail.com))     27 August 2015

The conditions of Hindu Marriage Act is quite clear : - 

5. Condition for a Hindu Marriage.- A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely: (i) neither party has a spouse living at the time of the marriage; (ii) at the time of the marriage, neither party,- (a) is incapable of giving a valid consent of it in consequence of unsoundness of mind; or (b) though capable of giving a valid consent has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or (c) has been subject to recurrent attacks of insanity or epilepsy; (iii) the bridegroom has completed the age of twenty one years and the bride the age of eighteen years at the time of the marriage; (iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two; (v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;

https://bokakhat.gov.in/pdf/The_hindu_marriage_act.pdf

If these conditions are not valid (i.e. Sec 5 of HMA) this the marriage is null and void.

Now, whether they have any proof of the above section ?

Specially, (c) has been subject to recurrent attacks of insanity or epilepsy; (Circular rotation around fire)

I guess not.

Moreover the marriage is forceful and not solemnized before any lawful authority hence what ever documents they have are not valid evidence of marriage as per Indian Evidence Act.

Please apply quashing with speedy trial (i.e. 1st prayer is quashing, it not granted the 2nd prayer is speedy trial to dispose of the matter within 6 months as per sec 21-B of HMA) with the said ground. 

Please do this in-person (Without Advocate).

1 Like

prabhakar advocate (advocate)     27 August 2015

Saravanan S. has given correct advice. Your marriage is not void but voidable. So, you put all your efforts in S.12(C) case to prove before the court that the marriage was solemnized under force. Once marriage will be annuled and you prove there is no cohabitation, then automatically S.498-A case will become ineffective. The High Court has got a long backlog and it will take time for the court either to quash or to uphold FIR. So, if necessity arises take bail in S.498-A and pursue HC case to get stay order in S.498-A proceedings.
1 Like

AryaVrat (Executive)     27 August 2015

Lawyer is saying do not come back to India and no need to take anticipatory bail either unless the police says he wants to arrest you. Earier the AB was cancelled cos cos of breach of condition so I was planning to get bail from HC as the breach condition was related to job and I had merits since magistrate in lower court kept giving dates. The police IO has entered that remand is needed of accused in his report. But when my brother went to him and asked him what if I come back to India, will there be any action? He said No. But can't trust him.

 

Is advise correct, I mean not taking AB if I am not in India?

Rocky Smith (Instructor @ Calcutta (rockysmith4calcutta@gmail.com))     27 August 2015

Unless you have AB please don't land to India. You are safe there. 

Lower court takes long time to dispose of cases so interference of HC & SC is always recommended.

In the same quashing with speedy trial petition you can pray for speedy trial / proceeding for both 2(c) HMA case and 498A. 

Your brother or any of your relative can appear the HC and represent you as your council (in-person). Please make petition U/S 205 CrPC (permanent exemption) for 498A case and make your brother or any family member as power of attorney in 12(c) HMA case. You need not come. Be safe there. Also don’t disclose your passport and visa information to anybody.

AryaVrat (Executive)     27 August 2015

Passport infomration is already with police when i was in india as i have already gone to police for interrogation 10 times and he took a statement and said he was done but after I came to NL, he started bothering again and stated in court that i wasn't cooperating with investigation. Judge cancelled AB on that ground.

Rocky Smith (Instructor @ Calcutta (rockysmith4calcutta@gmail.com))     27 August 2015

Still no problem if you don't come to India. They can't force you to come.

Moreover, no NBW or BW is pending against you.

Apply speedy trial as advised by your brother.


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