I got married in Feb '15 and went to Illinois, USA soon after marriage. Due to my wife's behavioral issue towards my family, I had to send her back to India in Jan '16 after serving a legal divorce notice through the family court of Chicago. My intention was that she will improve her behavior by staying in her maternal home for some weeks and seeing the divorce notice. Once she landed in India, her behavior became worse towards my family due to which I went ahead with ex-parte divorce request to the court of chicago. The USA court granted me divorce in Mar '16. In the meanwhile in June '16, my ex-wife went to Delhi Police CAW cell filing a false 498a and other cooked up dowry related charges. Although, I got the ex-parte divorce, still I came back to India to resolve issues by mutual discussion which failed. There was no written reconciliation agreement reached. After staying in India for 2 weeks and attending multiple counseling session with Delhi Police with no fruitful results, I went back to Chicago. Few days later, my ex-wife also turned up in Chicago without my knowledge at my doorstep. Seeing her as an Indian female in a distant country with no one around for help, I agreed to let her stay at my house for helping her for some weeks. After staying for 6 weeks in Chicago, she came back to India on her own and now filed a FIR case of IPC 376 against me in Delhi. She claimed that I never told her about ex-parte divorce and she went to Chicago considering me as her husband. My questions: - a) Can a rape FIR be filed in this case at all when the so called crime didn't happen in India? I never booked her flight tickets for To or From journey to USA. My ex-wife has no proofs about where she stayed or whether she met me at all in USA. Still, an FIR has been filed. b) Can the Delhi Police complete the investigation in this case and file a chargesheet against me for rape when the so called crime didn't happen in India. c) What are my possible options - Should I approach session court to review its order to Delhi Police for filing FIR against me or Should I directly approach High Court with FIR quash request? Any other legal option and help is highly appreciated.
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1)no part of cause of ction ha arisen in india . rape case if any ought to have been filed in USA
2) wait for police investigations to be completed . deny all allegations made by wife
3) then file for quashing in HC as no cause of action has arisen in India
1. Yes, complaint can be filed in India also even if the crime is committed in overseas though for which a special permission is required to be taken from the Central Government.
2. Yes the Delhi Police can complete the investigation and file charge sheet in your absence.
3. Go for quashing. If the complaint is silent on the date of commission of offence or you were in abroad when the crime is alleged to have been committed then you should go for quashing.
4. Yes you can go for quashing though I advise people to wait till submission of chargesheet as during FIR stage investigation is still going on.
1. It seems that it was a premeditated move by your wife to stay with you in order to create base to file a FIR for rape. Be that as it may, if your wife is a subject of Indian law she can file a FIR for rape in the competent police station within the jurisdiction of which she has allegedly suffered the consequences of the crime. An alleged crime does not necessarily have to be committed in India to give jurisdiction to the courts in India to try the alleged offender.
2. You should apply for and obtain anticipatory bail at the earliest and then move the High Court for quashing of FIR. Obtain AB before applying for quashing.
1. What has been mentioned in her complaint which has been converted in to FIR? Has she mentioned that the said rape occurred in USA or in India? If the complaint is that you have raped her in USA, then she should have lodged a police complaint in USA first and then also allege that you had done the same in India also while staying here and in that case Delhi police would have got the jurisdiction to investigate and act on the said complaint. this case has no merit to stand on its own leg.
2.No. Delhi Police has no jurisdiction to investigate in to the matter which did not take place in their territory.
3. I shall suggest you to contest the case at the trial court itself first trying to dismiss the case there itself since no quash petition will be entertained by the high court until charge sheet has been filed by the police.
Dear Querist
My opinion on your queries are as under:
a) Can a rape FIR be filed in this case at all when the so called crime didn't happen in India? I never booked her flight tickets for To or From journey to USA. My ex-wife has no proofs about where she stayed or whether she met me at all in USA. Still, an FIR has been filed.
Opinion: If she herself admitted that there is no divorce between you and her then there is no case of rape has been made out. the husband can not rape his own wife hence FIR U/s 376 of IPC is not apply in your case and you may file a quashing petition before High Court on this Point Under Section 482 of Cr.P.C. read with Article 226/227 of Constitution of India.
b) Can the Delhi Police complete the investigation in this case and file a chargesheet against me for rape when the so called crime didn't happen in India.
Opinion:-Yes, the Delhi police have right to investigate the matter and may file the charge sheet if there is any evidence against you as per section 3 of IPC.
c) What are my possible options - Should I approach session court to review its order to Delhi Police for filing FIR against me or
Opinion: immediately file a Quashing petition before High Court.
Should I directly approach High Court with FIR quash request?
as above.
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1. Women these days turn out to be vindictive, cruel and manipulative and craftily use the very laws meant to protect them, to their unfair advantage.Her criminal complaint is an after-thought and that she intentionally filed a false complaint, just to embarrass you and avenge you.
The brainless police has registered the complaint as a routine or due to some pressure from top or any other reason without inquiring or applying their mind.
You can challenge the same properly before court during trial or can even file a quash petition before high court.
2. The police should not have entertained the complaint if the incidence is reported or alleged to have taken place in a foreign country.
They may go to any extent for the sake of money or gratification received.
3. You may obtain anticipatory bail and then challenge the charge sheet by filing a quash petition before high court or even can decide about challenging the false complaint before trial court.
Even if there was a forcible sex, the husband cannot be booked for the offences of raping his wife.
Thanks to all for replies and advise. My current situation and follow up questions: - My ex-wife's lawyer filed 2 more cases against me apart from FIR u/s 376. One FIR is in u/s 498a/406/34 and other case is a petition under DV Act 2005 section 12. My AB application has been rejected by Lower court and Delhi High court because of this rape case and LOC issuance by Delhi Police. My petition to quash the rape FIR is rejected by lower court and accepted by the Delhi Hight court which gave me next hearing date for Oct 15, 2017 and currently the petition is pending there. Simultaneously, my ex-wife lawyer pursued DV Act section 12 case and 498a/406/34 case in court against me in which I could not appear due to this Rape FIR in action in Delhi and LOC issuance. The court issued NBW against me for not appearing in person for the Dowry case u/s 498a/406/34. If I come to India to attend the case u/s 498a, the police can immediately arrest me and put me in jail because of FIR u/s 376. What are my options here so that I would not have to go to jail or police custody for a day, please guide me as I am thinking of these options: - Option 1: Pay a hefty settlement amount of Rs. 1 crore which is being demanded by my ex-wife. My parents already paid the Rs.30 lacs by taking huge personal bank loan as first installment as they don't want me to get arrested and currently pursuing the settlement way. The settlement document clearly says my ex-wife will file a joint petition to quash IPC 498a/406/34 FIR and IPC 376 FIR once she gets the remaining money. The remaining amount is itself a huge amount for which we may have to sell our house in Delhi. Option 2: To quash Rape FIR, can I quote Supreme Court and High Court judgements regarding invalidity of foreign divorce decree if it is not obtained by satisfying the conditions in Hindu Marriage Act? I got ex-parte divorce by giving the reason as 'Irrevocable differences' which is not a condition in HMA. This way, the court would make my divorce void and should quash my rape FIR on the plea - When divorce decree is void and not considered, this means, the couple is still married so rape FIR is no longer valid. Option 3: I come to India by next week to attend the court proceedings which may result into my immediate arrest for 15-30 days minimum and face the trial and apply for bail then. Can I use the settlement document showing the blackmailing being done (in which first installment is paid and clearly mentioned about settlement money required to quash 376 FIR, 498a FIR)? The court would consider this blackmailing and would grant me relief hopefully. Also, as per CrPC 188, central government permission is necessary for investigation and filing charge sheet for a crime occured outside India. Can I use it as a basis of my plea to quash FIR's. Me and my family is in big trouble facing this blackmailing and extortion racket at present. Please help and guide most respected lawyers.
1) option 2 is better . quashing of rape is best solution as divorc e decree is not valid in India
2) you should come down to india face trial
3) you should refuse to pay 1 crore .. Rs 25 lakhs was maximum you should have agreed to pay
In my opinion it would be better if you avoid visiting India now.
You are right that the procedure to prosecute a person in India for an offence committed in a foreign country is different to that of regular prosecution procedures.
The police cannot go beyond LOC till you are physically available in India.
You don't have to even settle any amount henceforth, don't think of even going for quashing the pending criminal case
They will become fed-up after few years when they are not able to progress in their evil design.
Stop becoming worried or afraid about developments, they would vanish soon.
1. in marital dispute of this sort I never advice husband to cower under threat and compromise on exorbitant amount. If you out up a fight you will win all the front including monetary demand. Do not in marriage no rape is applicable . So the cse u.s376 can be quashed for sure.
2.The decree of divorce has no bearing on the merit of the criminal case. So I find no benefit in this.
3. In 498A cases nowadays arrests are hardly made. i would advise you to apply for AB from supreme court in which i can ender all possible help. I wonder why bail in your 376 was rejected as marital rape has no applicability in indian jurisprudence.if you e-mail me the FIR then I can advise further on this. i find no merit in this case prima facie.
Permission u/s 188 crpc is required later. In absence of it FIR can very well registered. So do not bank upon this point alone.
1. The offence u/s498A and 376 are non -compoundable which means that sahe can not withdraw her said complaints against you. She cannot jointly file a petition before the High court alongwith you praying for quashing the said FIR registered based on her own compolaint. However, she can execute an affidavit affirming that she had lodged tyhe said complaints out of domestic rage based on which you can get the case dismissed at tyhe lower court or get the FIR by the High Court. You shopuld also think what will you do if she refuses to co-operate with you to get the FIR quashed after receiving the entire amount? You can apply for a surrender bail.
2. Wife also can complaint about rape by husband. However, you are still her husband as per Indian Law for which your lawyer should argue accordingly. Actually you should have got bail based on this ground.
3. You should apply for the surrender bail from the Court and argue that she is still your wife as per law and also that yher complaint is for blackmailing you to extort money from you illegally which is evident from the settlement agreem,ent you have and also dcue to tyhe fact that you have already paid her Rs.30 Lakhs on this account.
4. You can argue that no Central Govt permission has been obtained for inquiring in to and for trying the purported offence complained to have committed outside India.
You can go to the High Court and challenge these FIR at once as these are false and vexatious and are being filed to harass You. You have ample of grounds apart from those that you have mentioned to challenge the FIR.
regards
