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Siddharth (IT Consultant)     18 September 2013

Urgently need help on section 498a and 125


Myself SK Gupta from delhi. I got married in June 2013 and we have no children. My wife left home in Jul2013 without any major reason. I had immediately submitted an information letter in police station that she has left home with all her belongings with her brother and they are threatening us that they will file false allegations against us. After one week we had filed an RCR as we were expecting that she will file 498A. She made a false complain to police from her hometown Uttarakhand that my entire family was torturing her for a dowary of 15 Lakh. We came to know that the complain is not yet converted into FIR and is pending with Women cell. She had also filed a case under section 125 from Uttarakhand. The filing date of complain and section 125 was after she received notice for RCR. In the first hearing for RCR she neither refused nor agreed to come home. 

Now I want suggestion on following points:

1. What should I do for the complain filed by her. There is no provision for AB in Uttarakhand..

2. She is a Post Graduate and was working as dietician in delhi. After leaving home she has joined full time BEd course in delhi and is staying in Hostel. Is she still entitled for maintainance as she was capable of earning but resigned from job after leaving home. Also, I want to know if maintainance can be granted before judgement of RCR. If it can be granted what can be the approx amount considering my salary as 80K pm with liabilities of 40K pm. Need suggestions.

I would like to clarify that I don't want to live with her anymore.



SK Gupta


 14 Replies

Siddharth (IT Consultant)     18 September 2013

Also, i will be highly obliged if you can let me know the procedure to quash fir for 498.


Do not file for Divorce. it will make worse for you. 

U filed RCR for her before she filed the cases. It proves that you never left her. It is she who left you. 

rather you fight for the cases it is the best way to go for. 

try to get regular bail for the cases. you can only file for quash in high court. 

chances are bleak in order to get maintenance with no children. even if granted it wont be more if you could show more liabilities and responsibilities on you. 

Dr J C Vashista (Advocate)     18 September 2013

I agree with expert advice of neededadvice498a. There are ways and means to contest in Women Cell followed by cases registered against you in Court, which you have no option but to contest.RCR will help you to prove her desertion and mintenance can be denied. Similarly when she is qualified and talented but not working again, no maintenance can be granted. Engage somematrimonial expert local lawyer.

I am surprised to know that there is no provision fro AB in Uttrakhand, is it correct?

Manoj Kumar Jain (abc)     18 September 2013

File RCR from your hometown. If you get RCR decree it may leads to No Maintenance. RCR is useful to getting regular bail. Fight all cases on merits

Jatin Sapra 9312223345,Delhi (Advocate)     18 September 2013

Hi, Mr.Gupta,

Yes, There is state amendment in Uttarakhand so no Anticipatory Bail but in such  cases 482 CrPC petition for quashing of FIR can be filed and stay on the arrest will be sought from Nainital High court.

Further on maintenance aspect it will be seen as per documents and case filed by her.


Jatin Sapra, Advocate

T. Kalaiselvan, Advocate (Advocate)     18 September 2013

Mr. Gupta,

If Advocate Jatin Sapra is taken to be relied upon, you may proceed accordingly but before that how did you come to know that your wife has lodged a complaint u/s 498A before the police, did the police send you a notice for inquiry on the basis of complaint, if so, visit the police station accompanied by your lawyer, explain them that you have filed a case asking her to come back and continue the marital voyage which is pending for want of her appearance and filing of counter before the concerned court, hence to avoid her presence in the court that she has designed a new plan to torture and put pressure on you, despite this if police are not inclined to listen to the natural justice then you may proceed for either quashing of FIR or with a petition to not to arrest before the high court.  As far as maintenance grant is concerned if court is satisfied that she is not employed and is in need of money to maintain her, there is no bar in ordering for the maintenance amount to her.  

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     18 September 2013

RCR is a waste of a case, in the same forum you can read my article, why it is of no use. You would realise that your sending RCR notice has hastened her filing of CrPC 125 and 498a from her hometown. If she is smart, she can get the RCR transferred to Uttrakhand.


It is true that there is no provision of AB in Uttrakhand, but you can still apply for stay on arrest at the High Court.


As for how to proceed the matter, don't be in any haste in withdrawing and filing fresh cases. It just shows that you don't know what you want. Sit with a competent counsel of your trust and define the further course of action. Right now, securing bail is the highest priority.




Shonee Kapoor


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

Divya (nil)     18 September 2013



i am also a female victim of false entire family was getting threats for 3-4 years about 498a in the middle we maintained diplomacy wid the girl & parallel we approached local Sessions Court and filed application for anticipatory bail....Court didnt grant us anticipatory bail but issued an order of "72 hours pre arrest notice & this was without any limitation of time""


a year later my bhabhi filed 498a, police quietly took entire family to police station & they told us about the 498a FIR.....but we also acted smart by god's grace...We had readied a big file against my bhabhi which comprised of many letters sent to police, etc about my bhabhi & all legal notices exchanged....Police came across court's order of 72 hours pre-arrest notice and hence none of my family members could be those 3 days, we applied for bail...we got a protection bail & not a proper bail....and bhabhi's husband was refused bail and he had to approach high court & we filed in high court all correspondences.....believe me no effort will go waste, dont give up.....498a is an extortion tool thatz it.....


high court granted bail to my brother on condition depositing in the name of child some lakhs....and then usual trial of 498a started.

Siddharth (IT Consultant)     18 September 2013

Dear Shonee Sir,


I am very clear from my mind that I don't want to continue with my wife anymore. I came to know about the police complain made by her when during counselling for RCR, counseller asked my wife if they have filed any case against me. She told she had logged an FIR from Uttarakhand. I send someone to find out the FIR details and came to know it was in complaint status and is pending with women cell. we haven't received any notice yet. In complain myself, my mother and my sister were named for dowary and domestic voilence and father was named for criminal conspiracy. My sister is married and she stays in another city while my father was not involved in marriage and we dont have any communication as he was not happy with our marraiage. Yesterday we received notice for section 125 and are asked to come to nainital family court in October.

Now I want to know if i can apply for stay against arrest in complain stage only or it can be done after fir is logged. Would require your suggestion in my case.



Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     19 September 2013

If you don't want to bring her back, why RCR?


Also, the Uttranchal HC does not grant any stay during complaint stage, it is only after FIR the stay on arrest can be obtained.





Shonee Kapoor


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


@ Author,


1. Don't panic as it is in complaint stage right now along with your RCR still going through mediation.


2. Ask your wife to rejoin you and withdraw her 125 crpc.


3. If she doesn't agree then continue with your RCR and get the decree against her.


4. She is well educated and have work experience with still doing B.ed. So,No maintenance will be awarded if you hire and expert lawyer for matrimonial cases.


5. Your marriage is of short duration,so wait for atleast completion of one year to think for divorce.


6. If she is not eager to live with you then better talk in mediation to part away amicably via MCD.


7. Keep eye on her complaint which can be turn into FIR at anytime,better consult a local lawyer and seek for notice bail based on the CAW cell complaint.

Dr J C Vashista (Advocate)     22 September 2013

Engage a local lawyer and contest the case(s)

Nitish Banka (lawyer)     09 January 2018



Anticipatory bail in 498a /406 offences.

The Supreme court quoted that the sections under 498a and 406 under the Indian penal code are widely misused and for no reason the husband and family members are prosecuted and jailed thereby tarnishing the reputation of the family the sections are exactly termed as “legal terrorism”.

Image result for 498a


The supreme court in recent judgement of Arnesh Kumar Vs. State of Bihar has made mandatory compliance of guidelines

All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;

All police officers be provided with a check list containing specified sub- clauses under Section 41(1)(b)(ii);

The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;

Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;

Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.

But once FIR under 498a/406 is registered the apprehension of arrests looms even with the guidelines and safeguards as to be mandatory implemented by police. The police can follow the guidelines and can arrest the person . still the offences are non-bailable and possibility of an arrest looms on the person.

But generally the trend in court is that the anticipatory bail is granted in the cases of matrimonial offences under the penal code but very strict conditions are imposed these are-:


  1. Return of dowry articles

As held in Vijender sharma v. state Anticpatory Bail was granted subject to the conditions that the petitioner will return all the gold/silver jewelry articles still in his possession to the complainant before the concerned SHO.  petitioner will deposit a sum of Rs.1 lakh additionally with the Registrar General of this Court in the name of the complainant, which amount shall be disbursed subject to the outcome of the trial of this case. The petitioner will join investigation as and when required and would not intimidate the witnesses.

2. By giving maintenance amount and returning jewelry

As held in Dr. Sunil Kumar V. State

With consent of parties, afore-noted applications are disposed of with the following directions:

(a) Rajesh would replace all the cheques which he has issued in the name of Shalini Arya pursuant to orders passed by learned Metropolitan Magistrate in the proceedings under Protection of Women against Domestic Violence Act, 2005 by issuing cheques in the name of ‘Shalini’. This would be done within a week from today.

(b) Photocopies of the medical treatment of Baby Bhavishika would be handed over to Rajesh. Rajesh would be entitled to consult a reputed cardiologist and future medical treatment of Baby Bhavishika would be borne by Rajesh.

(c) Future medical of Shalini pertaining to treatment for tuberculosis by her would be reimbursed by Rajesh on the bills being furnished by Shalini to Rajesh.

(d) Rajesh would continue to pay to Shalini Rs. 10,000/- per month or such other amount as may be directed to be paid by the learned Metropolitan Magistrate in the proceedings under Protection of Women against Domestic Violence Act, 2005 by means of a cheque payable in the name of ‘Shalini’.

(e) Rajesh would facilitate visit by the I.O. in company of Shalini to his house for opening the almirah in which cloths and jewellery of Shalini are stated to be kept. Shalini would be permitted to take possession of the same after an inventory is prepared.

(f) All the petitioners would cooperate with the I.O. in the conduct of investigation.

On compliance of afore-noted consent directions, in the event of arrest, petitioners would be released on bail by the I.O. on their furnishing a personal bond in the sum of Rs. 10,000/- each with one surety each in the like amount to the satisfaction of I.O.

18. It is made clear to Rajesh Arya that any violation of the terms of the consent directions would render liable to be withdrawn the benefit of the present order.

3. Bail without any condition of return of dowry items

In Vishal Arora V. state 

In my opinion, the petitioner cannot be denied bail on the ground that dowry and jewellery of the complainant has not been returned so far. The learned counsel appearing on behalf of the petitioner has taken a stand that the entire dowry and jewellery has already been returned to her. There seems to be a dispute between the parties on this aspect. If her dowry and jewellery is not returned, then she may take proper proceedings before the competent Court for return of dowry and jewellery as per law.

In the facts and circumstances of the case stated above, it is ordered that the petitioner may be released on bail in the event of his arrest on his furnishing bail bonds in the sum of Rs.20,000/- with one surety in the like amount to the satisfaction of the arresting officer. Thepetitioner is directed that he shall participate in the investigation as and when called by the Investigating Officer. In the event the petitioner fails to participate in the investigation, then the State will be at liberty to apply for cancellation of his bail.

4. Bail as contents of FIR are vague

In the present case of Pavitra Uraon And Ors. vs State Of Chhattisgarh, if we consider the contents of the FIR, lodged by the complainant on 24-1-2007, it shows that she was being treated with cruelty by the applicant on account of demand of dowry. However, the specifications regarding dowry are vague and general pertaining to the items etc.

5. Complainant residing in matrimonial home

 Proceedings under Section 498A/406/34 IPC are not to be converted into recovery proceedings. However, it is the desire of a Court to try and ensure that matrimonial disputes are resolved. Attempts were made in the present case in this direction, but unfortunately have failed.

Considering the fact that the complainant is still residing in the matrimonial house, but in a separate portion thereof and the fact that she and her children are otherwise being provided with maintenance by the petitioner No. 1, I am inclined to admit the petitioners to anticipatory bail as prayed for. It has to be additionally noted that the petitioners have cooperated with the investigating officer during enquiry. Since 6.2.2004 petitioners are under interim protection.

Petition stands disposed of with the direction that in the event of arrest, on petitioners furnishing a personal bond in the sum of Rs. 5,000 with one surety in the like amount to the satisfaction of the Arresting Officer, petitioner would be released on bail


Generally the bail in matrimonial proceedings are easy but may come with stringent conditions. the Anticipatory bail in cases of 498a/406 are granted easily these days and conditions depends on facts of each case.

Adv. Nitish Banka

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Rocky Smith (Instructor @ Calcutta (     11 January 2018

RCR is a useless suit. Please withdraw it as soon as possible. RCR is compoundable can be withdrawn anytime. You can appear party-in-person and submit a withdrawal petition else it you create big extortion later.

As per section 101 and 102 of Indian Evidence act. Burden of poof her asserted facts lies on her. 

Please apply for Speedy Trial in HC else the case will drage long.

Please also file perjury and defamation in parallel.

You can get sample petition and other tips on my FB page below and this profile.

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