RaviSK (engineer) 15 June 2011

Divorce sec 304 and 302......

my cousin having problem with sec 304 and 302......

My cousin was been married 4 years back.Before marrying his wife is working for call-center .After marriage my cousin asked her to do a better proffesional job as she had a engineering degree.For two years she has been trying for the jobs and survied to get 6 months job in the two years time.But still continued in having trails for acquiring a job.

In the third year she was pregnant which is unwanted. My brother asked her to get aborted .Unwillingly she got aborted within 8 weeks of pregency by using a table prescribed by the doctor.

After 5 months she acquired the job and been working nearly for 2 years but at a different location .

Three months back she resigned the job purposely and file a case with sec498a
and sec's 304 and 302, she also submit photo copy of passport of my brother to stop him to go any where out of the country.

she is asking for maintanince and assests of my brother.
She also claimed that she was mentally tortured not to be pregnent as my brother used contraceptives

she done abortion under her own willingness as she told my brother as his prime motto to acquire a good job first for his better living and not to depend upon husband's income.

But now there are saying the husband had forced to get aborted to make much stronger on the section sec 304 and 302

My brother is very afraid about the sec 304 and 302

Please can any one help me in counter this situation

Thanks

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5 Replies

Dibakar Ray (Advocate.) 15 June 2011

Hi,

There is a clear contradiction of statement by you. For Example, in the 3rd Para you stated that:- "Unwillingly she got aborted within 8 weeks of pregency by using a table prescribed by the doctor."

and in the 7th Para, you stated that:- "she done abortion under her own willingness as she told my brother as his prime motto to acquire a good job first for his better living and not to depend upon husband's income."

Please state the true line to get professional help. and for the case under 498A, please get in touch with Criminal Lawyer.

And last but not the least:- If your cousin have problem with section 302 & 304, I hope no body can help you by deleting the section. (of which Act, you did not mention)

Adv. Chandrasekhar (Advocate) 15 June 2011

quote from your own post:

In the third year she was pregnant which is unwanted. My brother asked her to get aborted .Unwillingly she got aborted within 8 weeks of pregency by using a table prescribed by the doctor.

If that is so, he is guilty of offence under Section 312 amnd 313 of IPC and not under Section 302 and 304 IPC. If the charge is framed under Section 313 of IPC and after the trial, it is proved that he cannot be convicted under Section 313 IPC, the court has got the power to convict him under Section 312, if the prosecution succeeds to prove (1) she was pregnant. (2) it was unwanted. (3) he asked her to get aborted. (4) it was aborted. If all these points are proved, then he can be convicted.

As she was forced (appears to be) to change her job on the ground she was overqualified to her job and forced her not to become mother are the acts come within the definition of "mental harassment" as defined under Section 498-A. If he is guilty of these things, he is liable to be punished according to law.

Regarding to maintenance, if she files the case under approrpirate law, she will be entitled to the same. My answer may not give you any assurance, but the principle of law is that guilty should be punished and innocent should be acquitted.

RaviSK (engineer) 16 June 2011

Thanks Chanduji Dibakar

Actually the abortion was done by mutal understanding between my brother and his wife. But his wife cleverly collected all evidence of pregnency,and the messages which my brother sent to her regarding doctor appointment for abortion etc..

My brother is so innocent as he had no ideas of divorce at all.But his wife collected this evidence having plans for divorce..

We are worried regarding the Section 312 amnd 313 of IPC.

Though the divorce is given ,does this sec's will continue till he get convicted/jailed.

Is abortion that much serious..????

Thanks

Adv. Chandrasekhar (Advocate) 16 June 2011

Primarily, she has to prove that he forced her for abortion. If she fails to prove and if he proves that happened without his knowledge, he will get acquitted.

Ambika (NA) 16 June 2011

Yes, forced abortion is that much serious...you have not explained about the contradiction in your first post. If the first version is beleived, this forced abortion was an criminal act, pure and simple.