help_divorce (SC) 14 July 2011

Help on 498

Estranged wife left marital home in May'2010 and filed for divorce under 13(ia) in July'2010. She left the house on flimsy grounds and never returned inspite of several requests and pleas. I filed for RCR in Aug'2010. Both these cases are going on in the family court and I am even paying her maintenance. We have a small kid who is 2 yrs old.

Now the lady has lodged a 498 complaint aginast me and old parents (both above 70 yrs). The police arrested us without even giving us a copy of the FIR. No attempt was made to have any kind of counselling session. We got bail the next day, however we had to go through all this for no fault of our's. The lady is desparate for a divorce and has filed this complaint in order to expedite the divorce. I am not aware of exact details of her complaints in her FIR, but with all probability she has made false stories of we haressing her for dowry.

Another aspect is that the lady never mentioned any dowry related complaint in her divorce petition. She however had claimed that I used to beat her( which again is false)

I have the following questions

1) When and from where can we get a copy of the FIR?

2) What will be the next course of action by the police as far as 498 goes? Will they file a chargesheet? They have not taken our statements till date.

3) Can the false 498 complaint be quashed? What is the procedure to do so?

4) If the trial starts, on whom does the onus lie to give evidence of the complaints? For e.g. if the lady says she paid the family 20 lac cash, doesn't she have to prove it?

5) She has misused the law and put me and my parents under arrest to fast track her divorce. Isn't there any section on which I can file a complaint stating that her 498 complaint is false?

Please advise me as soon as possible

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7 Replies

Adv. Chandrasekhar (Advocate) 14 July 2011

1) When and from where can we get a copy of the FIR?

Unofficially you can get it from Police Station or Magistrate's court, where S.498-A case is pending. Officially, by RTI you can get it, by moving application to the PIO of the court or PIO of the police department. Otherwise, along with the charge sheet, you will get FIR copy as and when the prosecution files the charge sheet, which is not less than 90 days.

2) What will be the next course of action by the police as far as 498 goes? Will they file a chargesheet? They have not taken our statements till date.

Yes. They file the charge sheet. They take statements from the complainant and other prosecution witnesses. There is no mandatory provision that they should take your statements. Further, your statements before the police are not bounding upon you before the court.

3) Can the false 498 complaint be quashed? What is the procedure to do so?

Difficult at this stage. But meet an expert and honest advocate along with the complaint/FIR and after perusal, he will give a definite reply.

4) If the trial starts, on whom does the onus lie to give evidence of the complaints? For e.g. if the lady says she paid the family 20 lac cash, doesn't she have to prove it?

On the wife.

5) She has misused the law and put me and my parents under arrest to fast track her divorce. Isn't there any section on which I can file a complaint stating that her 498 complaint is false?

Not now. Once, if you will be acquitted honourably in S. 498-A case you can file a case against her for malicious prosecution, but the results so far in those cases are not encouraging.

Doveson (advocate) 14 July 2011

The copy of the FIR must be there in the bail proceedings. Ask the lawyer who conducted the bail proceedings. Without it the magistrate wont hear the bail proceedings. The only main thing was the arrest which u have underwent. Now the trial will be conducted in the normal course. U can have the proceedings quashed through the high court. But the chances are less. They will most probably order u to face the trial and put ur defences there. But if u can justify the same then u may even get a favourable order. My advice is to face the trial. Take exemptions for yourselves.

help_divorce (SC) 14 July 2011

I was given no details of the FIR at the time of arrest. I was only informed that the lady has filed a complaint and I have to be arrested. My lawyer also didnt give me any immediate solution to prevent arrest. For no fault i and my old parents were put in PC. What kind of justice is this? Please let me know what should I do.

aftab (manager distribution) 01 September 2011

I am a Sunni Muslim. I have married with a divorced women. We married on 10 Jan 2006. Have two baby kids3&4 Years.on last 13 april 2010 her parents visited my home and asked for take her with them for 3-4 days. I have allowed them. After that she refused to came back. Then i have divorce her verbaly after 6 months i have give written talaq on 15th jan 2011. She has filed 498a against me and my family, in which we have got bail. After that she has filed 125crpc and demanding Rs. 11000/- pm .

I am working with a private company. My pm salary is Rs. 18000/-.

There is no security of my job.

Still i have not filled reply of crpc 125.

Kindly suggest what to do ?

Some people is telling go to high court for quashing 498a FIR. Is it possible?

also there is no maintanace after divorce.

galsober@yahoo.co.in (def) 01 September 2011

@Aftab

Why do not u start ur own thread rather than poking here?

aftab (manager distribution) 01 September 2011

Dear

Kindly know me how i can start new thread from where i can ?

Shonee Kapoor (Legal Evangelist - TRIPAKSHA) 02 September 2011

1) When and from where can we get a copy of the FIR?

You had a right to get the copy of FIR on arrest. However, now the same can be gotten from PS or from court.

2) What will be the next course of action by the police as far as 498 goes? Will they file a chargesheet? They have not taken our statements till date.

It does not matter, accused statements are nor necessary nor relevant.

3) Can the false 498 complaint be quashed? What is the procedure to do so?

Quash happens only on legal grounds based on the contents of FIR only. Check with your lawyer if such grounds are made out in your FIR

4) If the trial starts, on whom does the onus lie to give evidence of the complaints? For e.g. if the lady says she paid the family 20 lac cash, doesn't she have to prove it?

The onus of proof is on her only.

5) She has misused the law and put me and my parents under arrest to fast track her divorce. Isn't there any section on which I can file a complaint stating that her 498 complaint is false?

Not at this stage

Regards,

Shonee Kapoor

harassed.by.498a@gmail.com