• Ex in-laws filed a case against me and my mother

My ex and her family filed case against me and my mother. I'm NRI from Australia. It's 498a and 406. I married her February  2011. We never lived together for more than a month at a time and four times in total. I applied for her visa In 2011 but She is suffering from tuberculosis so she didnt get it. she and her mother tried there best to separate me from my family. I have a nearly a year old son. He is with her mother. She took him away from me when he was only three days old. Her mother blackmailed me to leave my family if I wanna see them again( my baby and my ex). I refused to do so she filled a FIR against me and my mother. My question is that she never lived with me or my family. Why 406? We didn't get even a single penny from her as dowary or as anything even I have proof of 8 lakh INR sent to her through western union in first three years of marriage. When my ex in laws saw that I'm sending them big chunk of money and she doesn't  even have to live with me or my family then they started exploting me. There plan was to break me from my family so they can have all of it. Please help. It's very depressing. I won't be able to trust anyone else.
Asked 2 years ago in Family Law from Australia
Religion: Sikh
1. Well unfortunately under current legal scenario the police or court take cognizance of offence u/s 498A, 406 merely on the statement of the wife alone and no semblance of investigation is done to know the truth.
2. Now since the case is already registered then there is no point to crib on it and per contra the decisive line of action will have to be taken.
3. First take bail of the cases as once you get the bail , half the battle would be won. Do not worry the bail nowadays in similar offences si liberally granted by court and no restriction is imposed on foreign travel afterwards.
4. Since in this case I find the wife to have been largely misled by her mother I may recommend you to convince her to reunite. if this is not possible then mutual divorce is best bet albeit in lieu of some money as permanent alimony.
5. Do include your right of visitation of the child in the said petition for mutual divorce.
6. if mutual divorce is not possible then  you may file contested divorce suit and do file custody suit to get back your child or at least to get your right to see him regualrly.
Devajyoti Barman
Advocate, Kolkata
5217 Answers
54 Consultations
4.9 on 5.0
1. On what basis are you referring to your wife as your ''ex''? Has divorce taken place? At least your query does not point towards termination of the matrimonial tie through divorce. If divorce has not been granted to you by the court then she continues to be your legally wedded wife for all practical and legal purposes, as a corollary to which she can exercise all legal rights which are available to a legally wedded wife. 

2. Since the case has been filed against you and your mother the first thing you should do is to immediately apply for anticipatory bail, failing which you may be arrested in Australia and brought to India. If you are brought to the court under arrest you may not be granted bail for weeks, coupled with the restriction on travelling outside the country. So it is imperative that you apply for pre-arrest bail.

3. The mere statement of your wife is sufficient for the court to initiate the legal process against you and your family members. However, you will be given complete opportunity to defend yourself.

4. If the allegations levelled by your wife are false then you may move to High Court for quashing of the case.

5. You may also file a case for getting the custody of your child.
Ashish Davessar
Advocate, Jaipur
18151 Answers
448 Consultations
5.0 on 5.0
Hi, from your narration the dispute is between husband and wife and in the normal course the movement wife lodge a complaint police will register the case as per section 498/a of the IPC.

(2) First get the bail from the court and then go through the complaint if the alleged offence i.e 406 ipc will not constitute the offence then  filed a petition for quashing under section 482 Cr.p.c before the Hon'ble High Court.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
1. Did your wife participate in divorce proceedings in Australia? Was she issued notice by the Australian court to which you applied for divorce?

2. The courts in India do not award recognition to divorce granted by the foreign court when it has been granted on grounds which are alien to Indian law. Your wife may challenge the judgment of the Australian court in an Indian court which may refuse to recognize the the judgment of the Australian court, in which event the marriage between you and your wife will revive for all legal reasons. Instead of filing for divorce in Australia you should have filed it in India.

3. Your wife may take recourse to her remedies under the framework of Indian law despite the fact that you have divorced her in Australia.

4. You ought to file for bail in India as the case has been registered against you in India, albeit you do not have to personally appear in the court to apply for bail as your lawyer's presence will suffice. Proceed swiftly lest a warrant is issued against you.
Ashish Davessar
Advocate, Jaipur
18151 Answers
448 Consultations
5.0 on 5.0
1. If the divorce decree was passed ex parte then the same may not be enforceable on her unless she admits it.

2. The grant of divorce even if is admitted has no connection with 498A case and hence you have take bail in default of which warrant of arrest would be pending against you warranting even your extradition.

3. For the purpose of getting bail, your presence is required after which you may not be required physically for some time till rial commences.
Devajyoti Barman
Advocate, Kolkata
5217 Answers
54 Consultations
4.9 on 5.0
1) if your ex wife has filed 498A case you have to obtain anticipatory bail and contest case on merits .

2) if you dont appear before court court may issue non bailable warrant against you .  wife will make an application for issue of proclamation against you for attachment of your property . look out notice will be issued against you .


3) your wife may apply for impounding of your passport .

4) it is in your interest to contact local lawyer and act as per his advice
Ajay Sethi
Advocate, Mumbai
23264 Answers
1219 Consultations
5.0 on 5.0
1) you have stated that you applied for divorce in australia and court has granted you divorce 

2) what were the grounds on which divorce was granted? 

3) is it on grounds recognised under HMA? 

4) did your wife participate in divorce proceedings in Australia ?

5) your wife can contest the divorce granted in Australia in india if she has not participated in divorce proceedings

6) you cannot apply for bail from Australia in 498A proceedings
Ajay Sethi
Advocate, Mumbai
23264 Answers
1219 Consultations
5.0 on 5.0
1. You are calling her as 'Ex' when she has not been divorced by you with a decree of divorce by Indian Court,

2. However, you should come to India and avail anticipatory bail otherwise warrant of arrest mightbe issued against you calling for your extradiction,

3. Prefix a lawyer from Australia and come to India while applying for AB,

4. Now a days it is not difficult to get AB against charges u/s498A of IPC,

5. Once you get AB, contest the case filed against you fittingly through your lawyer,

6. Afterwards you can also file a petition before the High Court to quash the FIR filed against you.
Krishna Kishore Ganguly
Advocate, Kolkata
12113 Answers
231 Consultations
5.0 on 5.0
Hi, in the divorce proceedings if the wife is not participate in the proceedings and she remain ex-party then the judgement passed in Australian court is not binding unless and until wife is consulted for the same.
(2) Proceedings under 498/a is pending in Indian court so your presence is required for getting bail.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
1. Decree of divorce availed abroad on grounds not acceptable as per HMA is not valid in India,

2. 'No-Fault Divorce' is most popular in USA but is not a ground acceptable as per HMA to grant a decree of divorce,

3. Since it is Ex-Parte divorce in Australia, it is not valid in India,

4. File a divorce petition in India India on acceptable grounds.
Krishna Kishore Ganguly
Advocate, Kolkata
12113 Answers
231 Consultations
5.0 on 5.0
Dear Querist
No need to worry, you may file an anticipatory bail before session court or High Court u/s 438 of Cr.P.C with the help of the lawyer without appear before the court in person.

divorce is challenge able in India if divorce is ex-party.

you may contact a lawyer personally or over the phone.
Nadeem Qureshi
Advocate, New Delhi
3534 Answers
130 Consultations
4.9 on 5.0
At present your wife is not accepting the order of Australian court and it is an exparty decree then legally you are not divorced your wife under Indian laws.  

Depression never gives a solution and it will kill your life and health.  If your ex wife has filed 498A case, you have to obtain anticipatory bail and contest case on merits. You cannot apply for bail from Australia in 498A proceedings.

IPC 406 provide Punishment for criminal breach of trust
Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
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