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MK (K)     08 October 2013

Quash/dismiss/close the case 498a in lower court/high court

To
Legal Experts.

Sub:
1) Dismissing/Quash/Closing the case 498a in lower Court/high court.
2) Another case Divorce Petition filed in Family Court.
3) Family Court now Dismissed the Petition stating has Not-Maintainable and Marriage between two is not valid.
4) How to dismiss/close this 498a, 506b case. What is the procedure.
5) We taken certified copies of the dismiss divorce petition


Matter:

The Boy (Muslim) was student in 12th std. In the year 2003, the boy (Muslim) used to go to tuitions. In the tuition, a Girl (Hindu) had became friend with him. Even she was coming for 12th std tuition but from other college. The Boy family background is good. His father is well respected Educationist and Mother is also Professor. The Girl family background is not good. His father is a Mestri (Contractor) and Mother is Housewife cum Dancer. They resided in very bad area in
Bangalore were people mentally and quality of living is not good & famous for dirty things.

During there tuitions, her friends used to meet the boy’s friends and the same way this Muslim Boy and Hindu Girl became friends. The Hindu Girl came to know about the Boy’s family status, he used to go in Car and bike. Firstly the Boy tried to avoid, but off sudden many times she used to come to Boy with flattering talks and emotion and ask the boy to help her.

Then this relation went further on, she started telling that she is in love with Muslim Boy. Then, she was always trying to woo and attract him. One day, she told that she cannot stay away from him. So she told that they shall runaway from their houses.

The Boy was also became emotional with her. So, one day they ran away from their homes. Now, she forced the Muslim Boy to marry her. Firstly the Boy got scared and avoid but she pressurized saying everything she and her friends has arrange. The boy was in dilemma.

She took him to one
Sri Ganesha Temple in the outskirts of the city and made some rituals and also she told to the Priest that Muslim Boy name is Rajesh(Hindu Name). But the Boy has not changed is Name legally (Still present he is a Muslim with his muslim name only). They taken photo of the pooja and both of them standing together. Some 8 photos have been taken. Then, the boy was afraid. They went back to their homes without informing anything to their parents.

Later on, the Hindu Girl started blackmailing him. The Boy never made contact with her again. He told to his parents that he want to studies further in abroad. So, they sent him for studies. Now after some period of time that girl with her mother started blackmailing the boy's parents. This is how it happened.

Now, I have given all the facts and details about the incident.
1. Its inter-religion.
2. No marriage documents.
3. She never lived at Boy’s parents house.
4. Change of Name.
5. No religious conversion taken place on both sides.



** Now the Case,
1. After longtime, in 2006 the Girl Registered a Complaint in the Police station as 498A under DP Act.

2. She now in 2012 registered a Divorce Petition u/s 13 in Family court also.

3. She stated they are married as per Hindu Rituals. Photos in
Temple taken. (But No Proof of Marriage Certificate or affidavit or any legal document issued from the government or court authority).

4. She filed Divorce Petition u/s 13 of
HMA in Family court also now in 2012.


* * * * * * * * * * * * * * * * *

+++ Present Status:--

1) In the 498 case, this case is running still in the court. Now its in Statements, Further Chief/Steps. (But the PP is taking next dates always).

2) In the Divorce case in Family court, we have submitted the Supreme Court decision that 'Inter-Religion Marriages are invalid under HMA'.
We have submitted Application under 151 to Dismiss the petition, has the case is not maintainable.

3) Hence, now Family Court ordered and Dismissed the Petition stating has "Not-Maintainable and Marriage between two is not valid".


##### Questions:-

1) How to immediately Quash/Dismiss/Close this 498a case in this lower court or even High Court. What is the procedure.

Thank You



Learning

 4 Replies

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     09 October 2013

It is a complicated scenerio, courts have held differently on 498a in void marriages.

 

Some HC have taken a view that as there is no relation of husband and wife in annulled/ void marriage, no 498a can be made out.

However, other HC has taken the view that as the intent was to create a relation and even during the subsistance of the relationship, if any cruelty is meted out, it would come within the purview of 498a.

 

Better get in touch with a good counsel in your area, know the law of your HC in such scenerios and approach HC with a quash petition.

 

Regards,

 
Shonee Kapoor

If you don't fight for what you want, don't cry for what you LOST.

R.P.Chugh (Lawyer Supreme Court)     09 October 2013

Quashing a False 498a FIR !

Quashing of FIR is a tough matter ! Courts generally are reluctant to interfere at the stage of investigation and only very strong grounds + persuasive arguments can make a bench sit up and taking a 482 matter seriously. FIR’s can be quashed if they an abuse of process of law/prima facie don’t disclose any offence or are inherently improbable – If you are thinking about quashing of FIR u/s 498a/406. These are the grounds/list of judgments of quashing that would help bolster your plea :

GROUNDS FOR QUASHING IN A 498a/406/34 IPC MATTER

• BECAUSE Section 482 of the Cr.PC categorically saves the inherent power of High Court to make such orders as may be necessary to give effect to any order this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice. In the instant case it is pertinent in the ends of justice and to prevent an abuse of the process of law that the impugned FIR be quashed.

• BECAUSE the High Court is empowered to quash a criminal proceeding where it is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. The Courts are also empowered to quash in case where the allegations in the FIR even if taken at their face value do not satisfy the ingredients of offence complained therein. Reliance in this regard is placed on the decision of State of Haryana v. Bhajan Lal (1992 AIR 604).

• Reliance in this regard is placed on the landmark decision of the Hon’ble Supreme Court in the case of Geeta Mehrotra & Anr. V. State of UP (Criminal Appeal No.1674 of 2012 (Arising out of SLP(Crl) No. 10547/2010) Decided on 17.10.2012, wherein the court categorically observed that “mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specially if it happens soon after the wedding.”

The Hon’ble Court further went on to hold “20. It would be relevant at this stage to take note of an apt observation of this Court recorded in the matter of G.V. Rao vs. L.H.V. Prasad & Ors. reported in (2000) 3 SCC 693 wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that: “there has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate the disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their “young” days in chasing their cases in different courts.”

Court further held “if the FIR as it stands does not disclose specific allegation against accused more so against the co-accused specially in a matter arising out of matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the named accused in the FIR to undergo the trial unless of course the FIR discloses specific allegations which would persuade the court to take cognisance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of the complainant-wife. It is the well settled principle laid down in cases too numerous to mention, that if the FIR did not disclose the commission of an offence, the court would be justified in quashing the proceedings preventing the abuse of the process of law”.

*BECAUSE the Courts at X place have no jurisdiction as per the mandate of S.177 CrpC. Reliance in this regard is placed on following decisions :-

• Y.Abraham Ajith V. Inspector of Police [(2004) SCC (Cri.) 2134]. In this case, the Madras High Court refused to interfere under Section 482 CrPC when the issue of territorial jurisdiction of the Magistrate concerned to take cognizance of the offence was raised. This Court did not endorse the approach of the High Court for not recording the finding on the question of jurisdiction. On reading the allegations in the complaint, the Court came to the conclusion that no part of the cause of action arose in Chennai and therefore the Metropolitan Magistrate at Chennai could not have taken cognizance and issued summons. On this ground, the criminal proceedings were quashed and the complaint was directed to be returned to the respondent who was given liberty to file the same in an appropriate court. That was also a case of complaint for an offence under Sections 498-A and 406 IPC filed by the wife against the appellant therein.

• Delhi High Court in Niraj Trivedi v. State of Bihar [ WP’s - Crl. ] 235 & 415/04 Decided on 4.1.08, The Delhi High Court categorically held “Crime cannot be registered on the basis of residence of the complainant, or the effect of the crime…..but only at the place of crime”. Justice S.N Dhingra directed the Patna Police to transfer the FIR No. 0188/02 PS Digh, Patna, Bihar to their counterpart in Delhi. As no part of the alleged offence was committed in Patna and all allegations of atrocity were restricted to Delhi.

• Delhi High Court in Rajesh Dhingra & Ors./State of Rajasthan WP (Crl.) No.976/03 Quashed on.22.10.07 FIR No.98/2003 U/s.498 AIPC of PS. Mahila Thana, Alwar Gate Ajmer(Rajasthan). The Court held that no part of the offence as alleged in FIR registered at Police Station Ajmer had been committed within the jurisdiction of PS Mahila Thana Alwar Gate, Ajmer, Rajasthan. The wife has misused the process of law. FIR Quashed.

• Delhi High Court in Rajinder Kumar Sharma and Another vs. State and Another HON’BLE JUSTICE S.N. DHINGRA DHC – 26/02/2007 CASE NO: Crl.M.C. 1216-17 of 2006, held that the Courts have been allowing quashing of proceedings under Section 498A /406 Indian Penal Code, 1860 because in such cases the FIRs are result of matrimonial discord and more often the effort of the Court is that either the parties should settle for a compromise for living together or they should part their company peacefully, so that, there is peace and amity in the society. In cases resulting from matrimonial discord, the Court is not dealing with criminal but dealing with broken marriages and broken homes where resort is more often made to Sections 498A/406 Indian Penal Code.

• BECAUSE the present FIR has been lodged to wreak personal vendetta and as a counter blast to the divorce/RCR case filed by the husband.

Reliance is placed on the landmark decision on Sushil Kumar Sharma vs. Union of India and others, JT 2005(6) 26 observed as : “The object of the provision is prevention of the dowry menace. But as has been rightly contented by the petitioner that many instances have come to light where the complaints are not bonafide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial.

• BECAUSE recently the Hon’ble Supreme Court in Preeti Gupta & Anr. V. State of Jharkhand – AIR 2010 SC 3363 - their lordships Hon’ble J. DALVEER BHANDARI & K.S. RADHAKRISHNAN, JJ while directing the Law Commission to have a relook at the provisions, went on to hold : “30. It is a matter of common experience that most of these complaints under section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.

32. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.

33.…The allegations of harassment of husband’s close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband’s relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful.

34. Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislation. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases.

 
1 Like

ashoksrivastava (scientist)     09 October 2013

@ querist IPC 498a is categorical that 498a can be filed only against husband or his relatives. You have a good case for quash in HC under 482 crpc.When you are not husband under any law ,

IPC498a can not be charged on you.  They may be allowed to make charges under different sections of IPC but not under 498a. I suggest hire a good HC lawyer and go for quash.

regards ASHOK

Nitish Banka (lawyer)     02 November 2017

How to quash 498a??

These days its quite an easy tasks for women to register a FIR by attributing allegations of cruelty and a case is registered and thereby the husband and his family members has to go harassment and torture. Now one remedy is available for them which can relieve them from all the harassment and torture and that is quashing of FIR under 482 CrPC. But this remedy is generally very sparingly and rarely exercised by the courts. Generally allegations of cruelty are mentioned in the FIR and based on this FIR is lodged but sometimes police forgets that in the cases of 498a general allegations of cruelty does not stand, the allegation must qualify either of the two parts as envisaged in section 498a.

 

Here are some of the valid grounds.

Vague allegation-498a quashed

The case of 498a can be quashed when there are vague the allegations in the FIR. A FIR is a first document on which whole investigation and chargesheet is based.

 

A FIR is bible for getting evidence and eventually to secure conviction of an accused based on the evidence, therefore a FIR must contain all the material facts related to an offence. It also must contain all the specific ingredient needed for satisfying an offence and material through which investigation may proceed. if a FIR misses material facts then it is a vague FIR which can be quashed by invoking the jurisdiction of 482 CrPC. Image result for 498a quash Some believe that if a FIR satisfies the ingredients of an offence it is not the case for being fit for quashing but this preposition is untrue under the light of the judgement In R.P. Kapur v. State of Punjab (AIR 1960 SC 866) the apex Court summarized some categories of cases where inherent power can, and should be exercised to quash the proceedings. (i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction; ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged; (iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. so lack of evidence is another ground for quashing proceedings. A FIR containing quite vague, general and sweeping, specifying no instances of criminal conduct can be quashed even if the FIR constitutes and satisfy the ingredients of an offence. It is held in Vishalbhai Niranjanbhai Adatiya … vs State Of Gujarat & on 9 December 2015 It is a matter of common experience that most of these complaints under section 498A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.

False allegations against relatives

Mukesh Rani V. State of Haryana, 2002 MLR 175=2002 (2) Cr.CC 123= 2002 (1) RCR (Cr) 163= 2002 (1) CC Cases (HC) 48 (Pb. & Har.)      

In the instant case respondent No.2 is the husband of respondent No.3 and respondent No.3 is the sister of husband of the complainant. In the FIR, it has not been specifically mentioned what dowry articles were entrusted to respondents 2 and 3 at the time of the marriage. If no article has been entrusted to respondents 2 and 3, then no case under section 406 is made out. It is also not the case of the complainant that respondents2 and 3 are residing with the husband of the complainant. The respondents have placed on record the documents showing that they are employed as teachers and are living separately in village Bamble from the complainant and her husband Satyadev. Even on the date when the alleged occurrence took place respondents were present in their school i.e. on 07.01.1994.

If on the face of the compliant it shows that complaint is false, charge should not be framed. In the instant case, there is evidence that respondent No.3 who is the sister of the husband of the complainant was living separate with her husband-respondent No.2 in a different village and were employed as teacher, the learned trial court has rightly discharged respondents 2 and 3.

For the reasons mentioned above, there is no ground to interfere in the well reasoned orders passed by the learned courts below. Hence this petition is dismissed.

Quashing of false FIR against relatives is much easier

Delay in chargesheet/condonation

Delay in filing chargesheet by police is also a good ground followed by wife conduct in condoning the cruelty thru conduct.

By.

Adv Nitish Banka

Advocate Supreme Court

lexspeak.in

nitish@lexspeak.in


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