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Manoj   29 December 2015

Summons cannot be issued to husband in 498

Hi , 

My Wife is a Psycho patient(Behavioral Disorder diagnosed by Doctor) and has been harassing me for the last 2 years since married. After giving her multiple chances, she reverts back to old self and starts abusing and becomes violent with everyone in family including me. Now I have been living away from her and she was with her parents. Now, she filed 498, 406, 34 in police station and alongside talking about mutual divorce but wants me to come and file(Which is not necessary) so that she can issue the summon for maintenance etc. I am away from country and my family is also safely away in another location. Police called my family and told that they cannot issue summon to primary accused, hence they will report to the court accordingly and they do not have much against my family as the girl could not give any proof. 

What according to esteemed lawyers/ legal professionals are the next logical steps from the legal side. I know certain instances when summons could not be issued, the case dies it's natual death and the girl's family comes to mutual divorce as case cannot be established due to police not able to investigate under section 41.

Basically, I do not want to fight the case in court and pay her maintenance and lawyer fees while she goes on fighting her entire life - primarily becasue she and her family is a cheat, she has done immence damage to my reputation as I had to leave my job of 10 years as she kept complaining to office and because of her, my old mother who is not well had to leave her house and stay somewhere else facing immense hardships. If she comes to one time settlement, I am fine and ready to leave her but these lawyers are giving her wrong advice as this type of cases are a good business for some. Psyco cases cannot be proven in court and the court takes linient view in such matters.



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 3 Replies

saravanan s (legal advisor)     29 December 2015

mutual divorce needs you and wife to jointly present the petition before the court.before presenting the petition work out a mou where your wife accepts to withdraw the cases filed over you and also agree not to file any cases in future.

if there is nothing to show to prove that you had committed the offences  the police might file a closure report in the court

SAINATH DEVALLA (LEGAL CONSULTANT)     29 December 2015

As long as the chargesheet is not filed in the criminal cases filed by UR wife, the police cannot arrest U.They can do so only if prima facie is established against U.other things as suggested by Adv Saravanan.

Manoj   29 December 2015

Thanks Adv Saravanan and Sainath for your replies.  Just to mention here that presence is not required during filing in  District court in my state , presence is required in the 2nd hearing which is after 6 months( For Mutual Divorce). The other problem is along with 498A which is for dowry, mental harassment etc, she filed 406 which is for returning her stree dhan eetc incl some clothes - Not sure how to resolve this as other cases might be closed except this one.  We have told the police that they would be returned through court as I am not planning to send my mother back to that house for her to come back and harass them and I am also outside the country. The reason some clothes of her remains in my mother's house is because my mother had to literally run for away from the house when she went to her parent's place some 11 months back - she had come to stay with my mom forcibly when I was not there and started harassing them so that I would come back/ create a messy situation. 

I suggested her to send a draft of the mutual divorce petition and she simply gives stories and insists me to be present in person as she wants to file the petition in some other district court where it is mandatory to be present while signing the petition.

I will try to make the MOU but I am sure her lawyer would advise otherwise and my wife is also very revengeful as I caught her lies. I am not worried about the arrest as I can get bail but once I do that, the case will start and she will start enjoying on my maintenance and this is what I do not want her to do, also I do not want to travel now and then to appear as it is a criminal case and may go on for years. I understand that her lawyer suggested her to file the case to extract maxium money from me/ harass me but I do not want to paly according to her game although I am ok with one time setttlement to close the marriage i.e.mutual consent. 

Can the lawyer convince the court to issue non bailable warrant/ PO etc without chargesheet being filed - but even if they do that, they cannot issue summons to me as I am outside the country. According to you, prima face case has to be established and the police needs to investigate under section 42 before filing chargesheet. What happens when the police reports that the person is absconding which is in my case as they do not know my whereabouts.


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