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Anil Kr Garg (Business)     11 March 2012

Maintability of 498a after divorce petition

I need some advice about a case where a husband filed for divorce at Gurgaon. Both husband and wife were living in Gurgaon for more than 1 year. Earlier, they married in Pune and lived there for 4 months before shifting to Gurgaon.

Now, husband filed for divorce in Gurgaon and 3 months after this date, wife lodged FIR under 498a and several other related sections at Pune. Police arrested the husband at Gurgaon and brought to Pune where bail was granted to him. Several family members have been implicated who are now fearing for arrest.

I understand there is an MP highcourt judgement stating that 498A complaint is NOT MAINTAINABILITY after receiving notice of filing of divorce petition by husband. It is because wife's counter blast and malafide intention of harassing husband and his familiy is evident.

We need to defend in Pune and hence, case law binding on Pune court is required.

Kindly advise.

Incidentally, before filing this FIR at Pune, she also filed domestic violence at Ahmednagar during this intervening period. The girl is officially employed at Gurgaon but probably keeps moving to her hometown at Ahmednagar.

Kindly advise.



Learning

 10 Replies

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     11 March 2012

I don't know which MP HC Judgment you are referring to.

 

However, 498a is maintainable even after filing of divorce petition. If it were not to be maintainable after divorce petition, every husband would file for divorce on first signs and avoid 498a.

 

Please share the judgement, to get better view.

 

 

Regards,

 

Shonee Kapoor

harassed.by.498a@gmail.com

2 Like

Sanjeev (Lawyer)     11 March 2012

there is no such bar on filing 498A it can be filed anytime. The other members booked in the case would need to secure AB or regular bail from Pune to avoid arrest.

1 Like

Lifeisgreat (None)     11 March 2012

There is such judgement where JHARKHAND HC where citation mention that "TORTURE ON COMPLAINTANT WIFE WAS ALLEDGED TO BE STARTED RIGHT FROM 1983 - 2000 - NO CASE WAS FILLED FOR THEESE YEARS - COMPLAINT CASE WAS FILLED AFTER HUSBAND FILED FOR DIVORCE"

 

Hence case was quoshed however same may not be considered by other HC. Guj. HC did not paid attention to this judgement in quosh application.

 

2004-CRI. L.J . 2898

Arjun ram V/s state of jharkhand

Lifeisgreat (None)     11 March 2012

Probably another similar judgement is this one https://indiankanoon.org/doc/1238460/

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     11 March 2012

Wholly missing the point in the second judgement


The above Magisterial Court at Lucknow has no territorial jurisdiction to deal with the offences alleged to have been committed in Tadwa (Pilkichha), District Jaunpur, Sultanpur, Gorakhpur and Moradabad.

 

Regards,

 

Shonee Kapoor

harassed.by.498a@gmail.com

1 Like

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     11 March 2012

 

I did not see the quoted citation as that of quash
 
Regards,
 
Shonee Kapoor
harassed.by.498a@gmail.com

Kesarben Wd/O Dalpatbhai ... vs State Of Gujarat on 11 February, 2004
Equivalent citations: 2004 CriLJ 2898
Author: C Buch
Bench: C Buch

JUDGMENT

C.K. Buch, J.

1. Heard learned counsel appearing for the petitioner and learned APP Ms. Nandini Joshi appearing on behalf of respondent No.1.

2. This revision application is filed against the order passed by the learned Additional Sessions Judge, Rajkot dated 4.3.2003 in Misc. Criminal Application No. 130 of 2003. The application was preferred by the petitioner-widow of deceased Dalpathbhai Rajabhai Harijan, R/o of Kaliyar, District Bhavnagar for the custody of the muddamal articles at the termination of trial of Sessions Case No. 62 of 1998. The learned Additional Sessions Judge, Rajkot, by the judgement and order dated 19.10.2002, has convicted the two accused persons for the offences punishable under Section 302 IPC etc. and both the convicts have preferred appeal against the order of conviction and sentence being Criminal Appeal No. 1035 of 2002 which is pending before this Court. After lapse of reasonable period of time, from the date of order of conviction and appeal period in the month of March, 2003 the petitioner-widow applied for custody of muddamal articles as the same were recovered by Police during investigation from the body of the person deceased. Undisputedly, nobodyelse has claimed this muddamal. The learned Additional Sessions Judge has also not said in the order under challenge that the petitioner is not entitled to the muddamal articles but, it is observed while rejecting the application that an appeal is pending in the High Court against the order of conviction and therefore, the Court cannot pass order as to custody of muddamal. This finding is erroneous especially when, while disposing of the Sessions case, the learned Presiding Judge has held that the muddamal articles requires to be returned to the heirs of the deceased. Undisputedly, widow is the heir and nobodyelse has claimed the muddamal articles from the family of the person deceased. This order of disposal of muddamal passed by the learned Sessions Judge has not been challenged by the accused even in the memo as submitted by Mr. H.S.Tolia, the order of conviction has been challenged. It is rightly argued that the order passed by the learned Sessions Judge as to disposal of the muddamal is an order under Section 452 of the Code of Criminal Procedure and the same is made appealable independently under Section 454 of Cr.P.C. and there is no appeal under Section 454 by anybodyelse till date. The learned Sessions Judge ought to have directed the office to hand over the muddamal on proper identification of the petitioner. Pendency of appeal against conviction has no relevance.

3. It is pertinent to note that there is no resistance on merit by the State or by the convict accused persons otherwise they would have preferred appeal under Section 454 of Cr.P.C. So, the revision application shall have to be allowed and therefore, allowed. The impugned order passed by learned Sessions Judge is hereby quashed and the learned Sessions Judge is directed to hand over the muddamal articles claimed by the petitioner-widow on proper identification at the earliest. However, in the interest of justice and by way of abundant caution, one condition requires to be imposed that the petitioner-widow should be asked to keep the muddamal articles as it is, for some reasonable period and, same is quantified as six months. Order accordingly. Rule is made absolute accordingly.

Direct service is permitted.

1 Like

Raj (fr)     07 January 2013

But one thing is accepted by court that 498a is a counter action to D petiton and wll help the case.It is better to do something rather than waiting that some thing good will happen one day...Time is precious..

Rgds,

Raj


Attached File : 377076480 498a quashed after dvorce pettion arjun ram vs state of jharkhand and anr. on 13 may, 2004.pdf, 377076480 498a quashed vengence dharm raj yadav and others vs state of u.p. and others on 10 january, 2006.pdf downloaded: 1745 times

VICTIM2015 (NA)     09 October 2015

Hello Shonee Sir,

I am also facing the 498a, DV & 125. what should be my ground during MEDIATION court which helps me to fight cases further as i dont want to live with her cruelity anymore. I have a KID of 1 year which is with her and she is in her native from last 10 months.

Request your view Thanks in advance

 

naren goud   26 December 2015

hello sir , im married in the year 18th june 1995 and in 1996 i got job in govt education department and we are blessed with two children a girl in the year 22nd  march 1997 and a boy in the year 25th may 1999 since as im govt employee my earnins and with my dowry we purchased a house in the year 2004 through bank loan as im coapplicant and my husband regisisterd the property on his name in the loan im coapplicant. as regular emi's my husband did not pay he emi's regularly,, the bank had sent legal notices to us , as i asked him he did not reply me but he said that is not your bussiness . my salary was regularly given to my husband and when i stopped giving the salary he stopped coming house and he was irregular to my house ... the maintainence of house and children was mine. As school vacation i went to my mothers home in the year 2011 may 30 he sent me a notice for divorce foir which i replied to his noticeon tne week ie is on 07/06/2011 after th reply to his notice i returned to my home which we live together . after that he never talk with me regrding notice when he comes to home.in the year 2012 august 28 my husband preclosed the bank loan of our house with out my notice after that he registerd the same hose on the name of my co-sister who is none other then his own younger brother wife in the year 2013 feb 01. the registeration was also not in my notice. At registration time i and my two children are living in the same house. in the same year on when im in school vacation to my mothers hous on 26/05/2013 he vacatedthe house with all hosehold articles with him without intimating me . The same was informed bu our tenanats to me on the same day . I returned to my home ther is nothing in the house ..i took the help of mediation and approached my husband regarding the issue he said me to leave the house and go  for that he oferd me to 5 lakhs. AKTER a week i lodged a complaint on my husband  and had  FIR on the day 07/7/2013 498aDVC .I GOT PROTECTION ORDER TO RETAINED IN THE SAME HOUSE  WE ARE STAYING IN THE SAME HOUSE . AND I FILED A CVIL SUIT ON  MY HUSBAND ,HIS BROTHER AND HIS BROTHERS WIFE MAKING THE BANKER AS PARTY TO CANCELLED THE REGISTRATION.. WITH THIS THEY STOPPED REPAYING THE LOAN AMOUNT WHICH THEY AVAILED FROM THE BANK,, THE BANK PEOPLE SERVED A NOTICE UNDER SARFESIA ACT AND THEY CAME WITH VACATE ORDER UNDER SARFESIA ACT.. I WENT TO HIGH COURT I GOT STAY ORDER FOR TWO WEEKS...NOW 3HAT WILL BE THE COSEQUENCES FROM THE BANK,,, as my DVC AND PROPERTY CAES ARE PENDING,,,, PLZZZZ ADVICE ME

Hari Ram Anthala (Advocate (Research Scholar Ph.D in Law ) PU CHD)     12 June 2017

Under SARFAISIEthe Banks have  vide powers to enforce security interest they can give notice for possession to vacate the house within 60 DAYS OR  repay the amount failing which they will seal the house and sell the same through auction for recovery of Bank's dues  and repay the excess amount to the borrowers. Please go through the Act properly. It is supported by the Government even Supreme Court cannot interrupt in failure of repayment. Please go throvijay Malaya case. News are published in daily news regarding recovery from the the assests/security  created by banks  either from the borrowers or guarantor and your case is of co borrowing.

(H.R.Anthala)

Advocate


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