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raghuraman (Mangager)     08 February 2012

498a(no dowry caluse), 506 & 406 seeking clarification

Hello

Just to straight to the concerns :

My wife left me 1 year ago & filled CRPC 125 which is currently in the court . she was caliming that i neglected her & she need maitenece .

After 10 months i made several attempts to return back her but  b*st*rds in laws are tweeking the scene .

WIth no other choice i applied divorce (curelty) & returned to abroad . I am NRI .

After i landed to abroad they must have received court summon for my divorce .Then they filed 498a,506 ,406.FIR is filed and submitted to the court not sure there is a warrant or not .

Questions :

Priotiry to close the 498a : But the thing is there is no dowry harrasement mentioned anywhere in the FIR . They basically compliant curelty , Asking back their sethanam 

What should be next step ? My plan is to quash the FIR with the ground stating its a false allegation against me & its pure retaliate to my divorce petition . More over the compliant was given in June in police station by my X but the FIR filed in Septemeber (after 3 Months + after they see my divorce) . I am willing to throw back her things but where & how ?.Police station would be right place ?or court?  The car is in my name can i also throw it back or should i keep it since its a gift for marriage given by her .In the interm she took several gold items of her from my home and served acknowledgement for it but it is not mentioned in FIR can i make use of the point for quash?

With the above would my divorce case become stronger in favour of me ?

Her maintence case i countring her that she is one left me & i have not neglected her .There were some email proof for it. Would the court consider it or since i opted for divorce they will see the case together ?

Would there be any look out notice for my name for the FIR ? can i take antibail before landing india?

Would my passport get blocked ? or its good idea just to quash FIR directly?

What is validity period of anticipatory bail ie 6 months or 1 year?

 

 

 

 

 

 

 

 

 

 

 

 

 



 23 Replies

Sanjeev (Lawyer)     08 February 2012

498a cannot be quashed if you apply for quash that may stay thr trial court proceedings for sometime but ultimately that will be sent back. For quashingthere should be very strong reasons or if there is a compromise with wife. 

 

you need to get AB or regular bail as you can be arrested anytime and if the other side monitors your moves they can get you arrested at the airport even once you land and the bail conditions can be that you should not leave the country and your passport may be deposited in court so in case you can avoid visiting india then stay away.

 

**Vikram** (Managing Partner)     08 February 2012

File for quashing immediately...u.s 482 CrPC..for 498a to be applicable, the harassment/cruelty should be because of dowry and nothing else...

If 406 is included, then it means that something was given to you from your wifes side and you have them with you...now it has to be dicided, whether the things given to you was "dowry" or not..if 406 was not there, then it would have been quashed, 100%...

To decide, whether the things given to you (if at all given) was dowry or not (see what is dowry in IPC, DP Act)..trial would be necessary...

 

There are various judgements available, where the cases have been quashed/accused acquitted because the harassment was not becuse of dowry...

 

But of there is a single point mentioned about any monetary issues, gifts etc etc.. in the complaint...the will not be quashed..

 

It case in the lower court may not be stayed...the judge will hear it..both sides and decide...hire a very good lawyer..with excellent knowledge of 498a...

 

Vikram

dr.pawan rajyan (member and secretory)     08 February 2012

Take AB for you and for other family members who have name in fir, before coming to india by hiring a good criminal lawyer.AS NO DOWARY HARASSEMENT IS MENTIONED,STARTS TRIALS AND HANDOVER GIFT ARTICLES TO HER BACK EITHER AT P.S. OR AT COURT SO THAT 406 IS OMITTED.NOW YOU PROCEED TO HIGHCOURT FOR QUASH UNDER SEC 482 MENTIONING THAT IT IS A COUNTERBLAST TO YOUR DIVORCE CASE..............................................................................join S.I.I.F. AND VISIT 498A.BLOGSPOT.REGARDS

Chaitanya_Lawyer_Mumbai (Lawyer)     08 February 2012

Things gifted to you during marriage by wife or in-laws,car in your case are legally yours.

Return her remaining valuables in PS or court with acknowledgement.

File for 498a & 406 quash,if 406 is not quashed considering you have her valuables with you,at least 498a should get quashed,considering there is no dowry allegation.

Try not to come to india before having AB/Quash.

bail498 (Junior Advocate)     08 February 2012

DEAR VIKRAM,

IN MY 498A CASE IPC 406 IS NOT APPLIED BY HER.

IN DV CASE SHE DEMANDED HER STRIDHAN BACK.LIST OF STRIDHAN ALSO ATTACHED IN DV CASE.

CAN MY 498A BE QUASHED?

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     08 February 2012

Most of the citations are there after decison of lower courts very few only after filing of cases.

 

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1735 OF 2011

ARISING OUT OF S.L.P. (CRL.) NO. 10005 OF 2009

 

Court also referred to the decision of this Court in

State of Haryana v. Bhajan Lal  reported in 1992 Suppl. 1

SCC 335 and also to the settled position of law that

genuineness of the allegations/charge is an issue to be

tried and the Court in exercise of its jurisdiction under

Section 482 of the Code of Criminal Procedure cannot

delve into such factual controversy so as to quash the

proceedings.

 

Chaitanya_Lawyer_Mumbai (Lawyer)     08 February 2012

@bail498,

498a will not get quashed, just because there is not allegations of stridhan being kep with the husband.406 can get quashed on that basis.

If there is no mention of any demand for dowry in FIR,498a may get quashed.

**Vikram** (Managing Partner)     08 February 2012

Only if the complaint, does not bring out a prima facie offence under 498A, it wili be quashed.

 

If not a single word mentioned about dowry in the FIR, then it can be quashed..because to bring about an offence u.s 498A, the component of dowry is a must have....

 

You may fight and harass your wife, but if it is not for dowry, but for some other reason, will will call for some other section but not 498A.

 

So the primay question is - has your wife mentioned the word "dowry" in the complaint?

 

VIKRAM

raghuraman (Mangager)     08 February 2012

Thanks for All .

Vikram .there is no single word has dowry . All mentioned is sethanam .

Can i disagree to give the car given to me has it is a gift from my inlaws ? 

**Victim** (job)     08 February 2012

@ Raghuram,


Seems you are still having anger i suggest you try to work this out without loosing your temper when something like this happens no matter how true you are no one is going to listen until you attend trial in court. Just be careful and get prepared they will try to harass you sending papers via ministry of external affairs/Indian embassy abroad as well.

Chaitanya_Lawyer_Mumbai (Lawyer)     09 February 2012

The car is a gift received by you during marriage,it is legally yours.

Aishwarya (Teacher)     09 February 2012

 

But if she complains that you demanded the car, in consideration for the marriage, then it will be considered as dowry and remember that in most of the marriages car is demanded as dowry...

 You may consider it as a gift, but if she in the complaint, says that it was demanded by the husband and family, it will be considered as dowry and IPC 406 will remain as long as you do not give back the car....

Chaitanya_Lawyer_Mumbai (Lawyer)     09 February 2012

Yes.It is difficult to prove whether the gift received by the husband was voluntarily given or it was demanded.

People should start maintaining list of gifts exchanged during marriage as per Dowry Prohibition Act,1961.

bail498 (Junior Advocate)     10 February 2012

Dear All,

In my 498a FIR she had mentioned only physical & mental harrasment but not regading dowry.

In DV case she had admitted regarding "Demand of Car" as dowry from my side in DV form No.I.

I have a own car.How,can i prove her false allegations?


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