• NRI need guidance on Divorce in India and 498A

I'm NRI living in Canada and Canadian Citizen. My wife is Canadian permanent resident and Citizen of India. We have been married since 6 years and from last 1 year our marriage is in trouble. This trouble started when my mother moved here with us. Since then my wife is constantly picking up fights with me on small things. She just hates my mother and doesn't want to talk to her and neither of my family members. Me and my wife are not on talking terms 99% of the time. My wife is going to India in 2 weeks and I'm sure she along with her parents have decided to file complaint/case against us or file divorce. I have heard about people filing for false 498A or something. I can still choose not to travel to India but my mother is Indian citizen and need to travel and stay in India frequently. If my wife files 498A against our family, what are my options of fighting in the court. How can I get bail in advance if court issues warrant or something. Is there anything I can do in advance so that I don't face all these troubles.
Asked 7 years ago in Family Law
Religion: Hindu

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6 Answers

1) if wife files false 498A case obtain Ainticpatory bail from sessions court

2) on FIR being filed notice would be issued to you to record your statement

3) you can then apply for AB

4) in view of SC judgment there is no automatic arrest in 498A cases

5) no warrant would be issued against you if you cooperate in investigations

Ajay Sethi
Advocate, Mumbai
95168 Answers
7604 Consultations

5.0 on 5.0

1.498A cases are so misused in India that it is hardly a deared alw anymore and getting bail becomes routine affair.

2. There is a provision u/s 438 crpc for Anticipatory bail but for this you wil have to wait till registration of FIR.

3. However unless your wife ahs permanent plan to leave Canada and stay in India there is little chance of filing such cases.

4. So if your wife comes back after 2 weeks you can relax a bit on this count.

5.So I find there is no immediate chance of issuance of warrant.

Good luck.

Devajyoti Barman
Advocate, Kolkata
22917 Answers
497 Consultations

5.0 on 5.0

Dear Concerned,

Yes - girls / women file false complaints here in India to trap husbands. As your mother is in Canada with you and your would be travelling in two weeks she may choose to file a false complaint - however as your mother is with you , and she would have to mention any or some of the insatnces to have happened in India - i assume she would fail hence entire complaint has to be filed on false grounds.

In this case its better you stay away from India - if your wife travels - you never know she files false complaints and you are restrained from travelling. It is advised that in her presence only dicuss with her the fisibility of filing a mutual divorce and separation terms.

Also you need not to come to India and consider Anticipatory Bail as it would create more trouble for you.

As if unnecessary cases are filed things will get dragged for no reason. Hence better to sort out mutually.

Best of luck

Atulay Nehra
Advocate, Noida
1309 Answers
58 Consultations

5.0 on 5.0

Dear Querist

No need to worry, presently, the arresting in the dowry demand case(498A) cases is not mandatory as per Supreme Court Judgment.

if she filed any case U/s 498A of IPC against you and your family members then the Police shall not registered the FIR Directly, first of all, after receiving the complaint from her, the police refer the matter before CAW/Women Cell and they tried to settled the matter amicably, if settlement is not possible, and she is adamant to registration of FIR then the police registered the Case as FIR.

after registering the FIR, then written permission of the DCP/ACP of Police is mandatory, presently, arresting permission for In-laws is not given by the superior Police officers, hence there is no question of arrest of your mother.

when you got the information regarding the registration of FIR, then immediately file an anticipatory bail U/s 438 of Cr.P.C. before Session court or High Court through your counsel and your personal presence is not required for that.

Apart from this you may file a divorce case against her before the Family Court in India through Power of Attorney Holder who may fight the divorce case on behalf of you.

Apart from the above, if you want to take precaution then you may send some information cum complaint(non-actionable) before the police officials and other govt. departments with all your apprehension and her attitude and cruel behavior.

Feel Free to Call

Nadeem Qureshi
Advocate, New Delhi
6307 Answers
302 Consultations

4.9 on 5.0

1. Ensure that she does not file any complaint at Canadian Court so hat she can drag the issue fro Canada to India. For lodging criminal complain like 498A complaint, it shall have to be filed at he police station having jurisdiction on the location where the alleged dowry harassment (498A complaint) took place. So, if it is at Canada only, no police station in India can fIR based on the said complaint alleging that the offence had taken place at Canada. She shall have to lodge the said complaint at Canada.

2 Before her leaving, your mother can lodge a police complaint at Canada as an shield to her any future police complaint at India.

3. Send an email/letter at the police station having jurisdiction on he area where her house and your house is located in India alleging that she has threatened you all to lodge false 498A complaint. This might immunise you to a great extent later on, if she files any such FIR.

4. Even after taking all the above protection, if she manages to file the FIR against you, you shall have to avail anticipatory bail and then contest the case fittingly. There will be no arrest for her said false complaint u/s498A since there has been a supreme Court order for not making any arrest against 498A complain of wife without conducting an investigation in connection with the aid complaint.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

You cannot take anticipatory bail in advance.

There has to be a case or fir registered against the accused in order to apply for AB.

If she has planned to file false case through police, let she do it, you can fight it out on merits.

T Kalaiselvan
Advocate, Vellore
85369 Answers
2231 Consultations

5.0 on 5.0

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