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Profitek   16 February 2016

Admissibility of 498a and dv complaint after long separation

I married on 2012 as per Hindu marriage act in New Delhi. My marital life has been extremely painful due to the very abusive attitude of my wife and unnecessary involvement of my in-laws and their constant provocation to their daughter to kick out all relations with my aged parents (age 72, 65) who stay far in R K Puram, New Delhi in our own flat. I am posted in Mumbai on a central govt. duty and have been living separately there with my wife since marriage.

After the delivery of our only son, my wife left me with my son to her parental house in New Delhi where she has been residing since past 1 year 6 months. She has kept no contact with either me in Mumbai or my parents in New Delhi within this period. She abuses me and my parents like anything as and when we call her to return and doesn’t give any information about our son/his wellbeing. I have been sending Rs. 10000 every month for the expenses of my wife and my son despite they are residing in my wifes parental house till now (through NEFT transactions). She is not at all interested to come back to Mumbai and stay with me even after 18 months even after several requests. Recently she has been threatening me and my parents of sending to jail in false 498A and DV case if I don’t agree with all of their demeaning proposals (mainly kicking out all relations with my aged parents even when they are residing far away in Delhi and full control of my family by her mother). We have neither taken a single thing as dowry in marriage nor have we demanded anything anytime anywhere from wife/in-laws. She with her family members has left no stones unturned to socially defame and isolate us by visiting/communicating my friends/colleagues/relatives/well-wishers with every false and dirty allegation of no proof/basis.

My questions are as follows:

  1. Even after long one and half years of physical separation and no communications thereafter, is it possible for her to maintain/lodge a false case of domestic violence suddenly now? She has not kept any kind of relationship with me/my family for last 18 months and never took care of my family since marriage. She has been staying with her parents.
  2. Is it possible for her to maintain/lodge a false case under 498A in Delhi after long 18 months to extort us and in that case whether police can arrest me without any warning/preliminary investigation in Mumbai, her marital home?
  3. Can she lodge a false 498A case in Delhi where she is presently residing with her parents, although her marital house is in Mumbai?
  4. She is falsely accusing me and my parents of doing mental torture on her when there is no communication between her and my family for long years and never any such things happened in past also. Doesn’t it require proving /give evidences of mental torture in the court of law?
  5. Who will take the burden of proof of false allegations in 498A or DV case: The complainant or the respondent?
  6. Can I get secured with an anticipatory bail for myself in Mumbai and also for my aged parents in Delhi before filing her false FIR?
  7. Is it wise to visit her in her parental house now/future? Can she press complaint of false harassment with the help of false witnesses of her family members if I visit there physically?
  8. Will there be any legal implication if I stop sending her money onwards?

 



Learning

 14 Replies

Sidharth   16 February 2016

  1. Even after long one and half years of physical separation and no communications thereafter, is it possible for her to maintain/lodge a false case of domestic violence suddenly now? She has not kept any kind of relationship with me/my family for last 18 months and never took care of my family since marriage. She has been staying with her parents
  2. 1.Answer: Yes, she can file. There is provision that case should be filed within 1year                       but she may alleged that you continued mental cruelty on phone.

 

  1. Is it possible for her to maintain/lodge a false case under 498A in Delhi after long 18 months to extort us and in that case whether police can arrest me without any warning/preliminary investigation in Mumbai, her marital home?
  2. ANSWER : Yes , 498A is not time barred till yet. But police have no right to arrest you without permission of magistrate.  Read this SC Judgement.  https://www.google.co.in/url?sa=t&source=web&rct=j&url=https://judis.nic.in/supremecourt/imgs1.aspx%3Ffilename%3D41736&ved=0ahUKEwiHl5nip_zKAhVOkI4KHS9hBXEQFggiMAA&usg=AFQjCNFDNhyKOfYjlmvDpfaAJeg02N5WUg

 

  1. Can she lodge a false 498A case in Delhi where she is presently residing with her parents, although her marital house is in Mumbai?

ANSWER: Yes

  1. She is falsely accusing me and my parents of doing mental torture on her when there is no communication between her and my family for long years and never any such things happened in past also. Doesn’t it require proving /give evidences of mental torture in the court of law?
  2. ANSWER: Yes
  3. Who will take the burden of proof of false allegations in 498A or DV case: The complainant or the respondent?

ANSWER : In Dv burden of proof is on complaint and in 498a on police. 

  1. Can I get secured with an anticipatory bail for myself in Mumbai and also for my aged parents in Delhi before filing her false FIR?

ANSWER: NO Anticipatory bail can be obtained before FIR. 

  1. Is it wise to visit her in her parental house now/future? Can she press complaint of false harassment with the help of false witnesses of her family members if I visit there physically?

ANSWER.  NO, It won't be wise . Try writing email or WhatsApp. 

  1. Will there be any legal implication if I stop sending her money onwards?

Yes, You can stop sending money, There will be no implications

 

Krish   16 February 2016

Hi Sidharth, Your answers for all the questions sound perfect. But one query I have here. Kindly clarify. I heard DV act is retrospective. Case can be filed at any time even after 2 or 5 years of seperation as well.It has no time limit.

Sidharth   16 February 2016

@krish

@TGK Reddi

As I wrote above time limit to file DV Case is one year after separation. There are many judgements available regarding this.  But we all know mostly cases of DV are fictitious. My point is complainant will easily alleged that she has gone through mental cruelty on phone by the respondent/s and because there is continuity of cruelty DV is maintainable. 

Regrading 498a Quriest has asked weather police in Delhi can register FIR . Then I said YES.

As TGK said it will be not maintainable,  it will depend what allegations she will alleged in FIR. We all know 98% of FIRs are false. 

 

I hope I cleared my point. 

 

Sidharth   16 February 2016

Dear TGK Reddi

Definition of Domestic violence point

4. otherwise injures or causes harm, whether physical or mental, to the aggrieved person.”

 

Sidharth   16 February 2016

Moreover,  parents of quriest resides in Delhi,  she can use them to prove continuity of cruelty.  Basically all will depend how clever her lawyer is and what allegations she alleged. 

Augustine Chatterjee,New Delhi (Advocate & Solicitor at Law)     17 February 2016

Mr Siddharth has addressed this aspect perfectly. However I would also like to add that the judgement which states that there can be no complaint filed after one year since the cessation of the domestic relationship nowhere states that the same is an absolute rule and in fact to be followed as bar in taking taking cognizance in the matter . The said judgement was a very case specific judgement and hence has no application universally . The delay in lodging the FIR as well as the complaint can in fact be used by the querist to his benefit to show that the case was delayed and hence a false and fabricated one . The best approach for the querist would be to file a case of divorce against her at Delhi . He may also file for child custody if he wants . Maintenance shall have to be paid but that was being paid anyway . But the sooner the boy files he divorce , the better it is . In my experience it has always helped my clients . Don't worry about 498a and domestic violence . They are not as harsh provisions as they are Made out to be
1 Like

Sidharth   17 February 2016

@TGK Reddi

Domestic violence is cruelty.

Cruelty has further classified whether it comes under 498a which is punishable or whether comes only under civil case and can be ground for divorce only and not punishable. 

DV Act deals with both type of cruelty. 

shirin   17 February 2016

Dear sir.

my husband had extramarital affair i came to know it and asked about it than he started saying that u only had affair with other males to  close my mouth , his parents also knows about him that he also had affair with a married women even before my marriage but still they supported him saying that he is male he can do anything ,  after my son birth he started saying that i am not satiesfied with me nd said that his friends were   going for other womens etc i got hurt and tolerated all his deeds but at one point i  came to know that he doesnt need me anymore by his rude behaviour etc  moreover i suffered a lot due to repeated direction and encouragment from my inlaws to harass me,  my inlaws doesnt like since from the beginning as iam from different caste, they just got me married due to their sons complusion..he had harassed and negleted  me completely i was just treated like slave . once he tried to push me in front of rashly driven auto, he left me alone in the theatre during second show and harassed me in several ways . in april 2015 he went to newzealand  after that i came to chennai (moms) place and filed  domestic violence case against them because  my in laws had created the story saying that she had boy friend in chennai thats y she went there and visted thrice to take away my son  etc and tortured me with their voice., with  power of attorney from my husband for his appearance before Protection officer my inlaws appeared  for one hearing and than they filed a counter dv against me  to harass me by draging me to their place.  they are very intelligent my mother in law is also advocate please suggest me.

shirin   17 February 2016

kindly adjust my typos and mistakes

 

Sidharth   17 February 2016

Dear TGK Reddi,

I think you are not getting legal meaning of "Domestic ".

Domestic relationship means aggrieved person living or lived at any point under same roof with the respondent/s

Profitek   17 February 2016

Dear members, really thanks a lot for your enlightenment. I have few confusions. It will be helpful if you can kindly clarify them.

(1) Regarding my wifes allegation that I have continued mental cruelty on phone: I want to clarify that I have never abused her on phone. I always behaved gently and cool headed despite her every provocation. The opposite is rather true. Each and every time I called her to get the news of well-being of her and my son, she behaved roguely like anything and verbally abused me and also my parents. She denied information about my son. Due to her such nature, since last three months I have restrained talking with her on mobile. There is no telephonic communication between my wife with my parents at present.

I have recorded the mobile conversations between myself and my wife which contains extreme bullying, abuse and threatening tone of her. 

With all these proofs (mobile conversations and CDR of mobile nos.) am I still eligible to be alleged of mental cruelty towards her when I am the real victim?????? She is not in any kind of domestic relationship since last one and half year. So, how is DV allegation fitting me? Doesn't police make any prima facie enquiry before lodging any complaint??

(2) As I have already transferred a hefty sum of Rs. 3,35,000.00 to her bank account in Delhi towards the various expenses of her and my son in installment last 18 months, will it give some advantage point for me if she falsely alleges of dowry extortion under 498A???? I have all the bank transaction receipts with me.

(3) As I have completely stopped communication with my wife and also not going to meet her in her parental house, may I be charged of negligence towards my matrimonial obiligations to my family?? In that case what should be my safeguard?

(4) If she lodges FIR 498A/DV in New Delhi, then how much time will I get to safeguard my aged parents with AB in Delhi before getting arrested? Will it be wise for them to appear before police for interrogation with all the proofs we are having in hand??

(5) Is there any exact strict boundary of the meaning of "Mental cruelty/injury" which comes under the perview of 498A?? We never demanded dowry. Which types of proofs are generally required to prove mental cruelty in the court of law?

 

 

Sidharth   18 February 2016

Dear Profitek

 

(1) Regarding my wifes allegation that I have continued mental cruelty on phone: I want to clarify that I have never abused her on phone. I always behaved gently and cool headed despite her every provocation. The opposite is rather true. Each and every time I called her to get the news of well-being of her and my son, she behaved roguely like anything and verbally abused me and also my parents. She denied information about my son. Due to her such nature, since last three months I have restrained talking with her on mobile. There is no telephonic communication between my wife with my parents at present. I have recorded the mobile conversations between myself and my wife which contains extreme bullying, abuse and threatening tone of her. With all these proofs (mobile conversations and CDR of mobile nos.) am I still eligible to be alleged of mental cruelty towards her when I am the real victim?????? She is not in any kind of domestic relationship since last one and half year. So, how is DV allegation fitting me? Doesn't police make any prima facie enquiry before lodging any complaint??

 

ANSWER: Domestic Violence is Court Complaint case, hence no role of police exist and no need of prior investigation. This is the main reason for so many false cases. No doubt at the end court will give decision on the basis of evidence but it took so many years. Moreover, Complainant get benefit at stage of interim relifs if you don't handle case carefully

 

(2) As I have already transferred a hefty sum of Rs. 3,35,000.00 to her bank account in Delhi towards the various expenses of her and my son in installment last 18 months, will it give some advantage point for me if she falsely alleges of dowry extortion under 498A??

 

ANSWER: Of courses! It will benefit you but only in case of 498A.and against allegations regarding cruelty for dowry in DV Act. But you will not able to deny maintenance as it shows you admitted that your wife is not capable to maintain herself. 

Born Fighter (xxx)     18 February 2016

Post seperation there is no domestic relation beween husband and wife and hence whatever that happens after seperation the wife cannot put it under DV. The wife has to be either at husbands house (own/rented) or house of husbands parents and any clashes/arguments/violence - physical or mental then can be included in DV is my understanding.

 

Case under DV can get admitted even after a year of seperation if wife gives sufficient reasons for delay in filing the same, and women come up with all kind of lies to get the case admitted.

 

 

Sidharth   18 February 2016

To end a domestic relation between husband and wife a mandatory procedure is Divorce. 


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