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Rakesh Mehata (sw engg)     06 August 2012

Anticipated 498a comes true, need assessment in quashing

Hi all,


I had shared my problem in the Experts section some 6 months back when I was getting the inkling that my bitter half will file a 498a on me at some point of time. My apprehension has come true, and I was slapped with a 498a in first week of july.

 

For the back ground, please check the following link from Experts section where I have explained on the details.

https://www.lawyersclubindia.com/experts/Abusive-wife-and-inlaws-need-help--278611.asp#.UB7AC6N8R3s

 

>>Current State:

 

  • Wife files FIR, only 498a IPC, no other IPC - on me , my parents, my elder sis
  • DCP removes elder sis name from complaint and gives arrest order for rest of the 3
  • Parents abscond, AB applied, granted
  • I am arrested, got bail in 4 days


>>The FIR :

 

I dont know what standards qualify for an FIR to be made in to 498a , but the following are the points in the  10 liner complaint from my wife which led to toppling an entire family, spending 2 lacks in 3 weeks on lawyer, bail and police :

1) She claims we were leading a happy life for 6 months. Until she discovers my past love affair with one of my relatives. - True - i did have a love affair before marriage

2) She claims that I still have affair with her .  - Grossly untrue, she cant prove anything

3) That when she challenged me this, I protested and threatened to cut off relationship with her parents and others - Untrue -I never made such statements

4) Because of the above I started physically and mentally harassing her - Untrue

5) That because of the above, I threw her out of the house - Untrue- she left me to stay in a hostel for 2 months

6) I demanded 20000 from her every month from her salary of 40000 - Untrue

 

My question to the respected lawyers here ,

1) Should I go for quashing

2) what are my chances of getting this quashed ?

thanks

RK



Learning

 9 Replies

Manoj Choudhary (Advocate)     06 August 2012

Is there any physical harrasment from your side?? 498A can be filed when there is a demand of dowry articles and torturing regarding that, have you gone to marriage councelling as you were advised before.

for free advice can call me. number is on profile.

MADURAI LAWYER (LEGAL CONSULTANT)     06 August 2012

You will have to face the trial. You can apply for the discharge before the trial Court after filing of charge-sheet.  Chances of getting the F.I.R. quashed by High Court are very less in your case.

 

https://jeevaganadvocate.com/contact.php

Albert Shaw (Advocate)     06 August 2012

F. I. R. quashing in High Court is not easy. Would suggest you to go for mediation if you are still willing to work out the relationship. You need to convince her that You are honest to her and that there is no link with the past. 

You can face the trail with ample evidences that there was no harrassment related to dowry demands. it is time taking though and you need to keep patience. 

You can file for RCR is you are ready to resume your married life with her. Else, you both can discuss and agree upon mutual consent divorce with the help of counselling or mediation centres. 


(Guest)

Why to do compromise with 498a bi**h? If the case is false she will herself get trapped during trials.

Rakesh Mehata (sw engg)     07 August 2012

There is no physical harassment from me, rather she has physically abused me a number of times for whch I have evidences.

I have audio recording of her admitting to do all this infront of me and her parents.

In the same recording she has also admitted that I have never physicaly harassed her at any point of time. And that she does not doubt my character, and she believes that I have never cheated her for any other girl during marriage.

With all the above evidences, cant I go for some offensive like filing for defamation or any other counter cases ?

JANAK RAJ VATSA (ADVOCATE)     07 August 2012

at this stage , the quash petitioin in the high court is unlikely to bring in dividends. better file RCR and if it fails, go for trial. she has to prove everything which will be difficult and she will be on the losing spree.


(Guest)

Dear Querist,

 

Understand that quashing does not take place as a matter of routine. The power to quash the proceedings is an extraordinary power vested in the HC which ought to be exercised in exceptional cases with great care and circumspection to ensure that law is not used as a vehicle of oppression. The inherent power cannot be exercised in a manner which circumvents the trial.  Guilt or innocence, in the first instance has to be proved before the trial court and not the HC. The HC does not act as a court of appeal while hearing a quash petition. It, therefore, cannot appreciate evidence on both the sides, except irreproachable evidence.The enquiry in quash proceedings is confined to finding out if a prima facie case is made out against the accused on the basis of the FIR/complaint. Quashing is not the pill for every FIR.

 

No conclusive opinion can, therefore, be given unless one reads the FIR and is cognizant of the attending circumstances. Unless the FIR itself manifests a mala fide intent, the HC will not quash the same.

2 Like

Evan (0)     10 August 2012

The charges you are facing is very very similar to the charge levelled against me by my wife.so listen patiently.

1)Even if you have any 'affair' that doesn't attract U/S.498A.If before marriage, then in no way.as per S.C Judgement ,'affair' in the worst case scenario can be construed as 'Cruelty for Divorce purpose' only NOT for u/s.498A purpose.

2)Face the Charges valiantly.for u/s.498A invocation..in the FIR there has to be ingredient of  (1)demand for dowry etc.(2)mental/physical cruelty of such grave nature which can cause her to commit suicide or cause of grievous harm to her life and limb.It is s very strict criteria.even mere slapping of wife doesn't attract u/s.498A (there are Judgements),every mental/physical cruelty doesn't attract u/s.498A.

You fight back and slap Divorce case u/s.13 1 (ia) of HMA for levelling false charge of Affair against you and sullying ur reputation in society.there are umpteen number of Judgements of Hon'bl S.C and various high court which says such unproved allegations are Cruelty of highest order and you will WIN.

Now what are the options in front of her......

She may file u/s.24 of HMA case ,once you file for Divorce ,but since she is working,she will get nothing as relief. she may also file u/s.125Crpc and PWDVA case.But be rest assued,quickly file the Divorce case and up the ante.It will shatter and devastate her.drag the cases against you by taking adjounments and wear her out .

Never go for RCR,a woman who can file criminal case u/s.498A,u can never live peacefully with her.She will torment you time and again.

Furnish all the Audio recordings and other proof in the case to the hilt to prove your innocence.Once you are acquitted in the 498A case then only you can file case against her for "malicious prosecution" and may be even "defamation"...not before that.If you have your wife's Jewellery,surrender them with due listing to Police/Court,even if she has not asked for it now.

FIGHT BACK.RETALIATE.Don't go for quashing in the H.C.If H.C doesn't then it will have effect at the Trial Court during Trial.Take help of a good lawyer.be patient.

1 Like

(Guest)

@ Evan

Dismissal of a quash petition doesn't adversely affect the trial as in quashing the HC doesn't go beyond evaluating a prima facie case against the accused.

1 Like

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