• Divorce

Hello sir, 
We belong to Muslim religion. My brother got married to a girl in september 2016 and tha marriage lasted only for 12 days because the girl's family is a fraudster. My brother and that girl found each other on a matrimonial site wherein our family communicated their family, saw the girl's pictures which were photoshopped and editted on a large scale but which we had no knowledge about and so a first meeting was arranged at girl's own residence. At the meeting my brother along with my mother and one aunt and uncle were present. As per our culture there was a seperate seating arrangements for men and women and initially for a long time the girl did not appear infrint of anybody. All of us started introducing one another, food was served long talks and discussions took place and much time later the girl showed up infront of my mother just for a minute or so . She was extremely shy and hesitant n didnt even talk much , my mother just saw a glimpse of her and later my she went infront of all men and there also she stayed for a minute or so with the same shyness , so my brother could see her hardly. But however since they had seen some pics and also they liked her family so in a hurry they thought she is same as picture. And actually she appeared in a heavy make up which nobody vould identify at that time. 
Finally their marriage was fixed 5 months later and in that period my brother went to their house to fix the venue and other things but the girl hardly came in front or had any conversation with him. They used to have text conversation but the girl would say that she would not come or talk with my brother as feels under confident and shy , so my brother also never forced to do so. Also there was no engagement or any such occasion where in our family could see the girl actually or for a long time , the girls family did not allow so and said they believe in direct marriage.
Finally on the wedding day I as the only sister of groom wanted to see the girl and exchange some gifts before wedding ceremony(nikah) as I stay abroad and did not see the girl till now but the girl's mother made some excuse amd said that she will give it yo het on my behalf. So at the time of nikah which was late in the evening again there was seperate seating arrangement of men and women and still they said they will not let see  the bride to anyone till nikah and its their family tradition they added. Finally we saw the bride only after nikah and again she was heavily dresses and with a whole kot of make up. My brother saw her in the same way on their wedding night and she said she is not feeling well so they did not consummate marriage. They both slept early as they were tired and the very next afternoon there was reception ceremony on the same venue. On the reception day she woke up early and her mother and other ladies from her family came to collect her to ready her even before my brother woke up. So by the time my brother could wake up she was again already heavily dressed and had a make over because the reception ceremony had to take place since 11:30 am or 12:00 noon. Soon after the reception ceremony we had to travel by train to our city which 12 hours apart so we were all busy in packing our belongings and vacating the hotel and till we left for our home the girl was continously accompanied by her mother, sister and other ladies from her family. Finally we arrived at our home next day following the reception and this is when we actually saw her in her real condition , she was completely different in looks than her pictures and also what they had described about her. She was completely dark in complexion and had patches in her face and skin. Very malformed teeth and every thing else was scary. But still we were confused and did not beleive it instantly , we thought its may because of long journey or tiring wedding celebrations. But day by day we realized her true face and still we were very good with her. My brother asked my mother to ask her that why is looking so different than we first time saw her . She got completely panic and could not answer. She did not bring her phone with her so would use my brother's phone for calling at her home, in that phone there was a call recording application which recorded all her converstaions. After my mother asked her about the difference in looks she mentioned the same to her mother and said to her mother " that the boy and his family are feeling that they have been cheated , and in a low voice she said which is true. Although at the home also I am continuously applying make up but still my skin has given up and and not able to withstand make up. I am feeling very scared but these people are behaving very nicely with me. " her mother said dont worry and continue doing the makeup we will come in a week to pick u up as your sister is also travelling abroad so tell them you want to spend time with her." And there 2/3 such conversations recorded which confirmed that they cheated us .Finally within 12 days of wedding her parents came to pick her up and asked my brother to come to their house within a month to get her back . Till then my brother made his mind of divorcing that girl and in a month called a family meeting involving 2/3 elder men from each family giving them all the background and that his plan of divorce . They said they will let this happen this mutually if my brother signed a stamp paper prepared by them and also that this is between two families and no third party is involved so whatever is written will only be limited upto them. So my brother agreed and signed that on which it was written that due to my brother's inability to fulfill his responsibility as a husband and all the mistakes done by him n his family he is giving divorce(triple talaq) to his wife. They had said that after my brother signing it they will get it signed by the girl and that the marriage will be dissolved mutually.
   Now after my brother signing it they took the papers and disappeared and stopped receiving our phone calls and never showed up. My family waited for a month to catch them but nothing happened. Finally my brother consulted a practicing lawyer who prepared a legal divorce notice stating all what really happened and how they procured my brother's signature on false affidavit. After that they waited for another two months and filed a false dowry harassment and DV case against my brother, my mother n me(groom's sister) n I (groom's sister lives in US with my husband , my husband is working here) , they know my contact details of US and the company my husband is working in. However as I told earlier the girl lived in our house only for 12 days and we did not take or ask a single penny from them. So what are the possibilities in this case , will I be called to India to appear for the case and how can I get rid of this. How can my brother and my family be saved ? The girl does not want to come back either but they are sure that they want to take revenge from us . Please advice, thanks.
Asked 7 years ago in Family Law
Religion: Muslim

2 answers received in 30 minutes.

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13 Answers

1. Well,there is no thing to0 worry about the 498A or DV case.

2.it si very easy to get bail in 498A case and in DV case nothing serious happens.

3. In DV case he would be asked to provide monthly maintenance to his wife if she is unemployed.The amount varies from 1/3 to 1/5th .This is the worst order which can be passed therein.

4.Give her triple talaq in presence 2 witnesses and registred Quazi.

Devajyoti Barman
Advocate, Kolkata
22921 Answers
498 Consultations

5.0 on 5.0

1) apply for and obtain anticipatory bail from sessions court

2) wait for investigations to be completed and charge sheet filed

3) then based on legal advice take call whether to file for quashing in HC or not

4) as far as DV case is concerned no DV case is maintainable against you as there is no shared household

5) you are staying separate in USA with your husband

6) apply for discharge in DV case before magistrate court

Ajay Sethi
Advocate, Mumbai
95217 Answers
7612 Consultations

5.0 on 5.0

1) quashing is to be done only in exceptional circumstances

2) if allegations made in FIR do nto disclose commission of cognisable offence HC can quash the FIR

3) HC would be reluctant to quash FIR pending investigations .

4) hence wait for investigations to be completed and charge sheet filed

5) police may on their own drop your name and that of your mother from charge sheet

6) if your name is included in charge sheet then based on legal advice file for quashing in HC

7) for filing DV case it is necessary to satisfy twin test of domestic relationship and shared household

8) after marriage you are not staying in same household as your brother and his wife . so no DV case is maintainable against you

9) file for discharge before trial court in DV case

10) once quashing is done you are at liberty to travel overseas

11) even after AB is obtained you are at liberty to travel overseas after obtaining court permission

Ajay Sethi
Advocate, Mumbai
95217 Answers
7612 Consultations

5.0 on 5.0

1. Yes,they would get bail easily.

2. You should also apply for anticipatory bail.

3. The US Consulate ahs nothing to do on this and nor you can be forced to come India unless you have not taken bail.

4. Since you are visiting India apply for bail and unless court imposes any condition on your foreign ravel which is unlikely you can return to USA like before.

Devajyoti Barman
Advocate, Kolkata
22921 Answers
498 Consultations

5.0 on 5.0

1. Why did your brother agree to sign the paper which put the blame for separation on him? Be that as it may, as 498A has been lodged against you it is incumbent on all of you to apply for and obtain anticipatory bail lest you find yourself behind bars.

2. Apply for quashing only after AB is obtained. Quashing is the end of the criminal case and all consequential proceedings arising therefrom.

3. Once AB is granted by the court you will have to appear in the court at least once to execute the bail bond. If you keep evading the court, as a consequence of which a warrant is issued against you, your passport may be impounded, which may result in your deportation to India.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

1. It will be difficult to convince the court that your brother and his entire family agreed for the marrriage without seeing the bride.

2. It also will be difficult to convince the court that your brother has signed the said declaration written on the stamp paper without understanding as to what he is writing thereupon.

3. DV and 498A case can be filed even after staying for less than an hour with the inlaws and husband.

4. You can be summoned at your place abroad and you shall have to contest the case filed against you. You can execute a POA in favour of relative in India to represent you while contesting the cases filed by her.

5. Engage a lawyer having expertise in this field to defend you all in the cases filed against you.

6. Since your brother is a Muslim, he can take give tripple talaq to his wife strcly following Islamic rule and procedure.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

1. If a FIR u/s498A of IPC has been registered against you, all the accused shall have to obtain AB from the local court.

2. No High Court will entertain Quash petition against FIR till charge sheet is filed in connection with the said FIR. So, you shall have to wait till the said charge sheet is filed by the police. Develop rapport with the IO of the police station.

3. For availing AB, you shall have to arrive at India for signing the petition and the Vakalatnama. After you get AB, you can file an application before the Court praying for waiving your personal appearance and also leave to travel abroad for earning your livelihood. It is not a fact that you will not be allowed to travel abroad if they come to know your passport details.

4. Get the AB petition sent by your lawyer to USA and sign it before the local Indian consulate duly notarising the same and then send it to your lawyer at India to file AB for you.

5. AB petition for all the accused should be filed separately and not together since in that case if AB for one is refused, all will suffer.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

However as I told earlier the girl lived in our house only for 12 days and we did not take or ask a single penny from them. So what are the possibilities in this case , will I be called to India to appear for the case and how can I get rid of this. How can my brother and my family be saved ? The girl does not want to come back either but they are sure that they want to take revenge from us

They have filed DV case only and not dowry demand or harassment case, hence if you and others are implicated falsely in this case, if you feel it worth enough to fight back, you may ask your lawyer to file a petition under section 205 cr.p.c. to dispense with your personal appearance owing to the reasons that reside abroad and would make yourself available when the court would direct you to appear.

Or else you may leave it to become exparte because the relief sought is chiefly agaisnt your brother as her husband, hence his presence and participation shall be enough to rebut her charges and to get the case dismissed if contested on merits.

Their case is devoid of merits and not sustainable, which fact is known to them but they have filed it only to harass and mentally torture all others to wreak vengeance and may be to extort money.

T Kalaiselvan
Advocate, Vellore
85420 Answers
2239 Consultations

5.0 on 5.0

You are not divulging the correct details, because in DV case you dont need to obtain AB and dowry harassment wont find place in DV case.

It should be a police complaint for dowry harassment under section 3 and 4 of DP act besides 498a IPC, confirm this.

In my opinion, you should not entertain any phone call or message sent by police summoning you to appear before them with regard to the complaint in this regard because it will not be possible for police to travel to foreign country to fetch you for presenting before court for this case, thus dont put any efforts even for obtaining AB at this stage because it may prove disaster to you since you will not be able to travel back to US once you have appeared before court for obtaining AB.

The police will not or cannot approach any authority in US or India to obtain your details in abroad nor they are empowered to do so.

For a crime involving a very serious offence, the police would approach ministry of home affairs and ministry of external affairs through proper channel and court order for procuring the offender, but in such matrimonial disputes, no authority would entertain any such application including court.

Therefore you may decide based on the prevailing circumstances or on the best advises of your own lawyer or by the second opinion of an expert lawyer.

T Kalaiselvan
Advocate, Vellore
85420 Answers
2239 Consultations

5.0 on 5.0

The proper pronouncement of triple talaq makes the married dissolved as per Muslim personal law.

There is no law yet in the country to make this triple talaq illegal or unlawful.

In my opinion you may not visit the police station in her home town becasue they may have laid a trap to arrest you and remand to custody once you are there in the police station on the pretext of taking cognizance of the complaint.

There is nothing wrong in not attending the police station, you can fly back to abroad, let them make frantic efforts for the bribe money they have taken, legally they cannot aproach you at US directly and here is no provision in law to pursue the matter beyond Indian territory other than by treaties and no government will take interest to extradite anyone over such matrimonial disputes. .

T Kalaiselvan
Advocate, Vellore
85420 Answers
2239 Consultations

5.0 on 5.0

1)muslim personal law is valid in india

2) since your brother has given divorce to his wife as per muslim personal law and the girl has accepted the talaq your brother can remarry

3)you can take printout of the girl profile on matrimonial website to prove thaat girl after divorce is pllanning to remarry

4) you dont need to record the conversation on phone

Ajay Sethi
Advocate, Mumbai
95217 Answers
7612 Consultations

5.0 on 5.0

1. It is not tre duty of the police to act as a mediator in case of domestic matters.

2. Since the girl's father is not willing to bring his daughter for mediation and demands that talaq has already take place then the scope for any mediation has vanished.

3. Islamic Law is very much valid and enforceable on Muslims in India.

4. It is a good idea to save the screen shot of her marriage advertisement and also approach them from a third party number/ID and save all the information they provide about the girl. if they say thet she is already divorced, the boy gets an opportunity to claim that she had already accepted the talaq given by her to his wife.

5. As such the boy can marry four times strictly following Sharaiat. however the advertisement released by the girl for marriage and information provided to the third party confirming that she is divorced, will act in favour of your brother if his said wife files any case against him claiming compensation.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

1. Your brother is free to remarry if he has divorced his wife in accordance with Shariah. Muslim males can have upto 4 wives at a time.

2. Appear before police for investigation. If FIR is filed then apply for AB.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

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