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Sairamkumar (Manager)     20 April 2014

498a rules

I need some help.

I was married five years ago. We've lived together for roughly three years in US. I've trusted her and filed GC for her too and we both got it. 

The wife has been online in chat and on calls however, she was doing domestic duties. During the last time she stayed with me roughly two years ago, I realized that, she was interested in someone else and has been cheating on me and she left me roughly two years back. I don't know where she is. I was devastated. I have got some evidence to prove it. Looks like she must have come with me to US with the intention of getting GC and cheating me for money. She must be working in US and making money. I don't know contact information or whereabouts. I've sent emails a year ago asking her not to mess up my life. No response.

In laws are never co-operating in talks to legally break up. I suspect that, for a reason, they might have been waiting for me to file the case seeking divorce.

I want to file divorce petition. I don't want to wait anymore and waste my life time. I need to marry again legally and get a family. My family and I'm going through emotional torture.

Can I go ahead If I file divorce first, will they be able to slap me with a 498a misusing it? How to avoid 498a? Should I get anticipatory bail or contact police commissioner?  What are the rules of 498a? Someone told me that if I file the divorce first, she can't file 498a. Is this correct? Kindly advise.

Thanks in advance


 7 Replies

Adv Archana Deshmukh (Practicing Advocate)     20 April 2014

You cannot stop someone from filing a false case,  however, you can defend it properly. You have grounds for divorce then, you can file for the same. There is no point in imagining things about whether a 498A case will be filed or not. It will be however, better if you file your divorce case first.

Sairamkumar (Manager)     20 April 2014

Ok. You are correct. I can't imagine things right now when no actions are taken from my end. However I need to know whether talking to commissioner in advance and lodge a complaint or get a anticipatory bail for my parents would help. 498a is a national law or does it have any variations based on each state? I'm from TN.

Biswanath Roy (Advocate)     20 April 2014

My opinion is at first you file a Divorce case against your wife on desertion ground.  As revenge if your wife filed any case to cause any harm to you then you can get a legal chance to rebut the allegation claiming it as after thought.  Secondly , you need a protection against cognizance of sec.498A IPC by creating avoidance of the rigor of law.

Kanchan Madan (NA)     20 April 2014

Although our case  is settled at 17 lacs in Feb2014, initially we filed the case and  changed the lawyer. Our lawyer Prachi Mishra  told us we should  have filed NCR  in police stating that she left the house  with all movable istridhan and then file the case.

May be you can take precautions which we could not take.



Kanchan Madan

Sairamkumar (Manager)     20 April 2014

Hello If I file only on dissertation grounds initially, Will I be be able to add all other true causes later in the petition? Also, I want their family to give a polygraph test. They are made of lies. If they demand one, my family is ready to go for it. So the truth will come out. Is there any provision in the law to demand a polygraph tests in India? I want to legally find out where she is hiding and what she is doing. Do you think there's a way in our judiciary system to do it from within India? Thanks

T. Kalaiselvan, Advocate (Advocate)     21 April 2014

Mr. Sairamkumar,

As properly opined and advised by many learned advocates above, it is better first you file a divorce case against her on the grounds of desertion, infidelity and adultery.  Do not worry about her whereabouts, send the summons to her last known address, in case the summons are returned continuously for three times, with the permission of  court arrange for substituted service of summons, after which also if she is not appearing before court, you will get an exparte decree of divorce against her through court.  This is one aspect.  Suppose she turns out to the court and is ready to challenge the case, then you may conduct and prosecute the case based on the facts that you wanted to say before the the court, but make sure that the facts have been averred in the original petition.  Polygraph test or narcotics test will not be allowed for matrimonial disputes.  You can prove your case with the help of the evidences in your possession.  About 498a and anticipatory bail, it will be too early for a precaution that way. Let she lodge a complaint, based on the complaint police will summon you for enquiry, if it is found that you have already filed a divorce case and she as a retaliatory action has lodged this complaint, the police will not give much importance to her complaint, you will be having breathing time to go for AB at that time too.

Sairamkumar (Manager)     21 April 2014

Thank you much for your advise and opinions. This is giving me some level of peace of mind and courage to start my process. Appreciate your help so far.

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