• Please guide 498A "burden of proof" in general allegations

In 498A case if the girl and her family members make so called very general and lawyer dictated alleagtions that after marriage she was asked to bring a lakh rupees as dowry, she was beaten by all the accused and thrown out of house by the accused to bring more dowry both in the FIR as well as during the trial (since such a few one line sentences are easy to read and remember). Whether these are enough to conviction.

If YES then what is the meaning of "Bruden of Proof" since these are simple statements and no proofs and OR since the statement is being made by the girl as well as her parents and brothers hence it becomes a proof.

Since as per my understanding these are general statements and if I do cross for these than actally those cross may backfire on me, as example if I ask who asked a lakh rupees or who beat her and if she mentions my name then with my cross eventually I am proving her allegations.

Please Experts in the forum please guide me if I am wrong.

Also please guide me if I need to do a cross for such things or my burden would just be to proof the reasons (WHY) she has filled the case.
Asked 2 years ago in Family Law from Korba, Chhattisgarh
Religion: Hindu
1. Yes, you're absolutely right as to burden of proof which primarily lies on prosecution/wife's side.
2. However if she makes statements on these you have confront her on those topics as the onus then shifts on you.
3. In cross examination you have to decide very judiciously as which questions to put and which questions not.
4. Only such questions is to be put which contradicts her statements , not those which may mad her an opportunity to give explanation of her statements .
5. Burden is always on prosecution but onus shifts once to you once she states on the line of allegations and here comes the role of a seasoned lawyer to choose questions in cross examination.
Devajyoti Barman
Advocate, Kolkata
5181 Answers
54 Consultations
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Hi, in your case burden lies on your wife to prove her allegations.

2. Normally better you must engage the advocate and he will cross examine the witness in a such a way that it will not harm to your interest.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
1) burden of proof is on prosecution . 

2) if wife makes statement that she was beaten up in your cross examination you should ask her whether she filed any police complaint  in this regard 

3) did   she visit any doctor for medical treatment . 

4)if wife alleges dowry was demanded whether any police complaint was filed of dowry harassment ? ho was alleged sum of Rs 1 lakh given ? any emails / letters on record wherein such demands were made . ? 

5) if you dont cross examine on these issues evidence would go in uncontroverted
Ajay Sethi
Advocate, Mumbai
23155 Answers
1216 Consultations
5.0 on 5.0
1. Cross-examination is an expert task and has to be performed in a very deft manner. Leave it entirely to your lawyer I would say as it can turn the tables one way or other.

2. You are right in saying that she has to prove the allegations leveled by her. Some questions are to be deliberately omitted in cross as they can backfire. She has to be crossed only on those facts which can contradict her allegations. Nobody knows what the witness is going to say in response to a question is cross, and there lies the uncertainty of cross. 

3. Any vague statement made by her cannot be the proof in support of her allegations. She may not be required to be crossed on it. The burden to prove is fluctuating in view of the allegations. 

4. Engage a lawyer if you dont have one.
Ashish Davessar
Advocate, Jaipur
18083 Answers
447 Consultations
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Hi,
1. Mostly in the court the allegations made in the 498A are proved false as the witnesses are interested witness.
2. Your advocate will have to examine all the witnesses to prove your case and disprove her allegations.
3. mere allegations of asking money/dowry will not suffice, there should be incidents where witnesses can state that she was forced out of house, if she was beaten up any treatment or medical consultancy papers, NC lodged of the incidents etc.
4. 498a is a criminal trial so the circumstantial evidence leading to the incidents of allegations are to be proved, so questions are usually asked accordingly to disprove wife  claims.
trust your advocate's ability allow him/her to do their work.
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
5.0 on 5.0
Hello,
1) It is true that the burden of proof is primarily on the complainant. Mere statements made and corroborated by prosecution witnesses won't substantiate the truth of it.

2) You have rightly understood the importance of cross examination in this context. Cross examination is an art that makes the burden of proof shift back to the complainant a second time.

3) You need to engage a lawyer if you already have not hired one to conduct the case for you. Depending on the complaint he/she will frame appropriate questions in cross examination eliciting answers that will support your cause and leave no opportunity to put the burden of proof back on you.
S J Mathew
Advocate, Mumbai
1950 Answers
65 Consultations
5.0 on 5.0
For the conviction the burdan of prove lies on prosecution and the prosecution have to proved their case without any doubt.

Cross examination is depend on the allegations and examination in chief of the witnesses, so it will be better to contact a lawyer personally with all the documents or state detail facts and statement here to get best advise.
Nadeem Qureshi
Advocate, New Delhi
3523 Answers
129 Consultations
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1. Conviction does not take place based on the petition only,

2. A trail has to be conducted wherein the accused also will be given opportunity to defend himself,

3. Both sides will be allowed to submit evidence, 

4. During the trail, the burden of proof will be on the prosecution,
 
5. The draft questions which you have stated in the query are not asked by lawyers in this type of cases,

6. The questions should be how was she beated? By hand or by stick, What was the date and approximate time of such beating? Were you hurt, Did you visit any doctor for treatment? Did you lodge any police complaint? Did you ring your parents to inform them about such beating? and all such questions,

7. You may find out later on that the date she has told was not correct since you were at outstation on that date or nthat there was no call record in her phone evidencing that she had rung her parents, etc,

9. Engage a local lawyer having expertise in this field in your own interest since it is a specialised job.
Krishna Kishore Ganguly
Advocate, Kolkata
12084 Answers
228 Consultations
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her statement recorded under section 164 is valuable evidence don't take it general allegation, now burden of proof shifted upon you to dislodge all allegations. you should collect all evidence regarding her behavior in matrimonial home, her desires to live separately, her carelessness and attitude of her parents towards your family and try to prove that after getting refusal to accept her all demands she is trying to book all family members in false case.  it will be better for you to consult with local lawyer with full details like FIR, her statement, police challan etc.
Shivendra Pratap Singh
Advocate, Lucknow
2731 Answers
41 Consultations
4.9 on 5.0

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