• Case 498 and 377

My husband's first wife has filed a FIR against him for case 498 A and 377.all her allegations are false.My husband has not had physical relation wih her for past 1 and half year due to personal issues in between them.how easy or difficult it is to get an anticipatory bail for 377 and how can we prove her wrong
Asked 2 years ago in Family Law from Mumbai, Maharashtra
Religion: Muslim

Hi

Maam it would be quite a difficult for getting anticipatory bail for these sections. You could get anticipatory bail in 498A IPC but it is next to impossible for 377IPC.

If you have strong proofs to prove your husband as not guilty then I would suggest you to file a quash of FIR petition in High Court. If you have strong evidences of your favour then go for FIR quash.

Thank You

Rahul Jatain
Advocate, Rohtak
951 Answers
3 Consultations

4.9 on 5.0

Please read Arnesh Kumar VS State of Bihar and Anr Supreme Court of India passed this judgement on 2nd July 2014. (2014) 8 SCC 273. The ratio says that Police should justify their arrest and should not arrest without reason.

Chander Bhan VS State of Delhi. Delhi High Court. The ratio in that are the "Guidelines for 498A cases"

Damanpreet Kaur VS Indermeet Juneja and Anr. Delhi High Court Passed this judgement. Well educated earning wife, resigned on her own will, maint declined.

Gurudev Gurav vs Jayshree. Karnataka High Court passed this judgment. Limitation of DV is one year from cause of Action.

The case of K.Srinivas v. K.Sunita[3] where the Apex Court held that it is a settled point of law that if either spouse lodges a false complaint, it would invariably amount to cruelty and would enable the other spouse to file a petition for divorce. The Court said that whenever a complaint filed by the wife against her husband under Section 498A, IPC is rejected, and the husband and his family members are subsequently acquitted; then it can be said that the complaint filed by the wife is fraudulent. This is contrary to the judgement of the Patna High Court in Bhola Kumar v. Seema Devi[4] where the court said any criminal complaint filed by the wife would not constitute cruelty as a ground for seeking a divorce. Justice R.D. Dhanuka made a distinction holding that in the said case, the petition by the wife against her husband was still pending before the Criminal Court when the petition for divorce was heard by the Family Court. However in instant case, the husband and his family members were acquitted.

Yugal Anjana Bhatia
Advocate, Mumbai
47 Answers

4.9 on 5.0

Hello,

Instead of taking AB file a petition for quashing the FIR in the HC. There has been an increasing tendency of invoking sec 377 and court has a lenient view for the same.

You will get relief easily.

Regards

Anilesh Tewari
Advocate, New Delhi
17268 Answers
267 Consultations

5.0 on 5.0

In this case chances of anticipatory bail is about 70%

And so far as concerned about the false allegation made by the first wife then it will be decide on merit that your husband will be acquittal in that case

Anis Momin
Advocate, Pune
6 Answers

4.0 on 5.0

Maam I have advised you according to law and present situation.

You rated AVERAGE that's ok but this is truth.

Be Brave and bold to face this situation. It is a hard time for you Ma'am , face it bravely

May God Bless you and your husband.

Thank You

Rahul Jatain
Advocate, Rohtak
951 Answers
3 Consultations

4.9 on 5.0

1)husband should apply for AB from sessions court

2) take the plea that he did not physical relationship with first wife for last 18 months

3) allegations are concocted to extort money from husband

4) husband should get AB from sessions court

Ajay Sethi
Advocate, Mumbai
69020 Answers
4153 Consultations

5.0 on 5.0

You have to prove before the Hon'ble court deciding ABA that there is no primafacie case under sections 498A and 377 IPC in your matter. You have to produce some primafacie evidence if you have with you to show the same. You have to further show that your police custody is not required in the said matter and you can put on terms for the said ABA for attending the police station and cooperating with the investigation machinery in the said matter. You may be granted ABA if you do the aforesaid.

Prashant Nayak
Advocate, Mumbai
14516 Answers
24 Consultations

4.6 on 5.0

There are various things which are taken into consideration:

Delay in lodging the FIR ,

medical reports

Allegation levelled in the FIR

AND other things too,

there are high chances of getting Anticipatory bail,

Kindly contact a local lawyer

Atul Shahi
Advocate, Allahabad
110 Answers
1 Consultation

4.0 on 5.0

1. Is the first marriage of your husband not dissolved through a decree of divorce? If it is dissolved then has she filed the cases after the passing of decree of divorce? You need to answer these questions.

2. In so far as getting AB is concerned it depends entirely on the allegations made in the FIR, coupled with answers to above questions.

Ashish Davessar
Advocate, Jaipur
26710 Answers
797 Consultations

5.0 on 5.0

If the allegations in the FIR are totally false and concocted and appear to be fully cooked-up on the face of it, take your chance by challenging the same before the High Court and getting it quashed.

In case you do not receive any success, apply for anticipatory bail.

Vibhanshu Srivastava
Advocate, New Delhi
8734 Answers
144 Consultations

5.0 on 5.0

Dear Madam,

Punishing husband or maintaining a charge of under secion 377 IPC is under dilema, please see the following:

The legislation is both useful as well as capable of misuse. It is useful in the sense that since marital rape is not an offence in India, so the Indian women would have a way out to get their husbands punished when they perform unnatural sexual acts on them.

Since marital rape is not a crime in India, can a husband be punished for having "unnatural sex" with his wife under IPC's Section 377, is the question which is baffling a judge in Rewari, Haryana. The absurd legal situation in India, where marital rape is not a crime, but "unnatural sex" between homosexuals is a crime, goes a long way in creating his dilemma.

he Indian Expressreported today that a judge in Rewari has sought advice from the Punjab and Haryana High Court about a case in which a woman is accusing her husband of forcing her to have anal sex, and she has filed a complaint after ten years of marriage.

In the aftermath of the Delhi Gang Rape in December 2012, the definition of rape under IPC's S. 375 was extended to include not just peno-vaginal intercourse, but others forms of sexual violence including forced oral sex and anal sex. But S.375 does not apply to married couples.

In this scenario, the if lower court rejects bail, High Court definitely grants bail, since the complainant in this case is first wife, out of revenge she could have made such baseless allegations.

Kishan Dutt Kalaskar
Advocate, Bangalore
4686 Answers
134 Consultations

5.0 on 5.0

He may get anticipatory bail from the court.

The 498A is also available but he has to prove his innocence in 377 which may be difficult.

An exception in some cases is accepted by courts in husband and wife case.

Vimlesh Prasad Mishra
Advocate, Lucknow
5683 Answers
19 Consultations

4.9 on 5.0

1. Section 498 is a bailable section unlike section 498A for which he will get bail from the police station itself and will not be arrested.

2. He shall have to take AB for the section 377 from the Court foir which he shall have to file an application immediately.

3. He shall have to develop rapport with the IO of the police to ensure that charge sheet leaving lots of loop holes are filed by the IO for which your husband can file a petition before the High Court u/s482 of Cr.P.C. praying for quashing the FIR based on the said loop holes found in the charge sheet.

4. In any case, his 1st wife shall have to submit evidence in support of her allegation.

Krishna Kishore Ganguly
Advocate, Kolkata
22779 Answers
612 Consultations

5.0 on 5.0

See this is the case of crime against women, in the first glance it is difficult to get the anticipatory bail but if you have sufficient evidences and facts then it can become easy as well.

Rest of the things are depends on the facts mentioned in the FIR and chargesheet. Please provide the detailed facts.

Laksheyender Kumar
Advocate, Delhi
734 Answers
2 Consultations

4.8 on 5.0

1) Had your husband given talaaq and mehar, secondly the ila and zihar.

2) If an offience is bailable, police has the authority to release the accused on bail on getting the defined surety amount along with a duly filled bail bond at the concerned police station. Otherwise arrested person has to apply for bail before a magistrate or court .

3) for further query select consultation call.

Please give rating for me.

Ganesh Kadam
Advocate, Pune
8251 Answers
69 Consultations

4.9 on 5.0

You have not mentioned whether your husband has divorced his previous wife or whether she has divorce him ?

He can move an application for bail but he is unlikely to get it.

Whether she is right or wrong, is matter of evidence which has to be led in the trial court.

Parkash Chand Bhardwaj
Advocate, Hamirpur
120 Answers

4.8 on 5.0

Are they divorced?

It is the court which decides whether he had sexual intercourse for one and half year.

AB can be applied on the grounds of false allegation.

Rajaganapathy Ganesan
Advocate, Chennai
1585 Answers
8 Consultations

4.9 on 5.0

Since this is a matter of trial, the truth and falsity of the allegations can be extracted only during trial proceedings

He can assert the discontinuance of conjugal relationship from the time as mentioned in your query in the trial proceedings and she be put to strict proof of the same.

Adding section 377 in her complaint is the handiwork of her advocate or probably the police hence she may tremble in the court while deposing false evidence.

This can be a situation advantageous to your side.

T Kalaiselvan
Advocate, Vellore
58862 Answers
745 Consultations

5.0 on 5.0

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