Upgrad
LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

Kashish Shah   28 March 2018

498a lodged during the divorce proceedings

Hi, 

My brother have filed for divorce in Aug 2015 on grounds of Cruelty and Non-Consummation of marriage. Whereas his wife has filed for RCR in Nov 2015.

Both (Divorce and RCR) cases are running together in the same Family Court but are not merged yet. Since "Issues" are framed separately in both cases they are not merged yet.

My brother's Cross-examination was over around Oct. 2017. On 19/02/18 the cross-examination of his wife was also completed and his wife's lawyer had requested for an adjournment to produce a witness of defence and the matter was listed on 13/03/18. 

During the civil case proceedings, he discovered his wife's many affairs and managed to get one of his wife's boyfriend with whom she had a short affair (in 2015) after their separation (Separated in Jun 2014) to the court as a witness. The cross-examination of this ex-boyfriend is also complete.

All the time during civil proceedings, his wife would cry constantly requesting an honourable court to re-unite them.

Upon the completion of her Cross-examination, the court proceedings and evidence we put (her handwritten suicide notes, confessing non-consummation in her own cross-examination etc.) had made it very clear that she was on brink of losing the case. 

To counterblast this, his wife lodged an FIR on 21/02/18 accusing my brother, my dad and her ex-boyfriend under sections 498A, 323, 354(A), (C), (D) and 509r/w 114 of IPC (This is stated on the FIR copy he received). A couple of days later, i.e. on 23/02/18, articles were published in 3 of the leading newspapers with all sorts of rubbish picked up from this FIR along with their additional fancy touches to the story. FIR accuses him of being a wife-beater, impotency etc. My dad is accused of s*xually harassing her and her ex-boyfriend is accused of being my brother's friend and plotting the affair and stalking her etc.

Now, as a matter of fact, all the allegations under this FIR are false. As per The Hon. Supreme Court new 498a guidelines, this FIR is now listed under "Family Welfare Committee, District Court". The committee had sent a notice to them to appear before them on 05/04/18.

Upon discussing with his lawyer and many others, he was told that the committee "may" close the case there itself on knowing the truth and merits of the civil case. He obtained the certified copies of cross-examinations of all three along with his divorce petition and her RCR petition. 

He was advised to apply for Quashing of the FIR in the High Court and we filed it by attaching both the divorce as well as RCR petitions along with copies of cross-examination of all 3 and copy of "Issues" framed by Family court and we were successful to receive the stay on the arrest from the high court. Also, a notice is issued against his wife and others but yet not delivered to them. The hearing in high court is on 17/04/2018. 

Additionally we also observed from the FIR that the allegations she made were practically impossible to occur. Because in the FIR, Time of Crime is mentioned as "2014 onwards" and Place of crime mentioned is my brother's residence. In the same FIR, she has also mentioned that she is staying with her parents at their residence from 2014 onwards. This very clearly raises a question that if she was not even staying with me after June 2014 then how could all the alleged torture happened to her at a place where she wasn't even staying? (FIR accuses him of being a wife-beater, impotency etc. My dad is accused of s*xually harassing her etc.) But this error came to our notice after filing for Quashing in High Court. (we have come across a judgement where the husband has acquitted cos no satisfactory explanation by the wife for a delay in filing the complaint. Refer State of AP vs M. Madhusudan Rao on 24 October 2008)

During the divorce case hearing on 13/03/2018, his wife's lawyer submitted an application stating that they have filed an FIR and so adjourn the proceedings of divorce case to after 05/04/18 i.e. after the hearing of the "Family Welfare Committee". Though the copy of the FIR is not attached by her lawyer with this application. We discussed with his lawyer if we could somehow link this false FIR to the Divorce petition but he said that our stages of admitting evidence or witnesses are already over.

My questions are:

1. Is there a provision in the law to club both cases i.e. Divorce Case and RCR case, to avoid repetition of stages? And also is there any provision to club this freshly framed FIR case to his divorce case?

2. Is his action for application for Quashing the FIR in High court a right step? Or should he have waited for Family Welfare Committee's report and then apply for quashing the fir?

3. If he get a positive report from Family Welfare Committee that the FIR is false, will it close the FIR altogether or would there be more investigation from Police Dept. and trial thereof?

4. How can he now benefit from this false FIR to get the Divorce quicker (assuming she may press more false charges in future)?

5. What are the implications of false fir on maintenance? Can he deny maintenance on this grounds?

6. Also, he is paying an interim maintenance as per the "Order" from the Family court. Will this false FIR help him in reversing this order?

7. Since all of his stages to submit evidence and witnesses are closed and the fact that an application by them mentions that the FIR is lodged by them, is already put up by his wife's lawyer, can he somehow request for the report by Family Welfare Committee of the same FIR to be submitted in the current divorce petition? This can help him prove cruelty.

8. Can he plea for the divorce to be granted to him just on the grounds of false 498a if committee puts up a report stating that the FIR is false? I am asking this because if the committee gives him positive report then the Cruelty is proved so he need not be waiting for the subsequent stages of the Divorce case i.e Arguments and Judgement stages or would he still have to go through argument stage in divorce proceedings?

10. When a person files an FIR, how important is the question - "Time or period" when the crime took place and "Location of crime"? (Refer above para "Additionally we also.... Quashing petition"). Can this minor finding help us prove that the FIR lodged is false in front of the Family welfare committee or The Honourable High Court in his future hearings? 

11. He is already paying her interim maintenance. What would happen after the divorce is granted? Will she have to apply for maintenance case?

12. We are aware that 498a case can be filed anytime. After researching online extensively, Mostly what we have come across of 498a cases is that it is slapped after a divorce petition is filed or slapped first if at all genuine etc. But I couldn't find anything relevant to my brother's situation as his divorce case is on edge of closure and then 498a is lodged. Her RCR and FIR are 2 different versions of her approach towards the court and the law. Wouldn't the committee or hon' HC or Hon' Family Court Judge take all this into consideration?

13. She took almost 4 years to realise she had been through an ordeal and torture (everything is false) after fighting for RCR for 3 years. Will this delay be taken into an consideration?

Please help.



Learning

 3 Replies

Srajadvo460 (Advocate)     28 March 2018

Ans 1. No you cannot club all the cases since all of them arises out of different cause of action and provision of law

Ans 2. If prima facie there is no cognizable offence made out from reading FIR/trial will lead to hardship/prima facie false complaint/civil in nature then quash is better 

Ans 3. go through this judgement of Madras High Court might be helpful https://indiankanoon.org/doc/158574598/

Ans 4. The family court can take cognizance of the subsequent events and pass orders accordingly since false complaints also amounts to cruelty but that one ground alone is not enough it has to be proved that great loss and prejudice has been caused to husband due to the action of the wife

Ans 5. No

Ans 6. No 

Ans 7. Reopen evidence if advised since courts cannot presume, assume and take things from here and there 

Ans 8. same as Ans 4

Ans 10. Delay is a good ground for trial not for quash

Ans 11. Court will decide but any maintenance is untill her re-marriage

Ans 12. Unless it is brought to courts knowledge

Ans 13. same as Ans 2 & 12 

Online.498a.DV.Act.Crusader   28 March 2018

You can contact me through pm.

Online.498a.DV.Act.Crusader   29 March 2018

Replied.  Check.


Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register  


Related Threads


Loading