• False 498a NRI

Me and my ex wife got married in the UK in 2012. We are both Indian citizens. In November 2015 we performed our Nikah ceremony in India. In December 2017 we got divorced by mutual consent. In January 2018 my ex wife lodged 498a and 406 FIR in Rajasthan against me and my parents. 
My parents have never lived with us in the UK. They only came to visit us in September 2016 for 15 days.
My parents have been served with the 41a crpc notice at my Indian address. I was sent a notice via whatsapp. My father went to Jaipur and submitted all documents to IO explaining about the divorce. But he still refuses to acknowledge that and says it is the Nikah that is valid and not decree from UK. The decree from UK was acquired after the Nikah.
It has been 6 months since the FIR was lodged. The IO has said he has sent a letter to his supervisor for issuing of arrest warrant on me. 
I can't visit India anytime soon due to work commitments. What should I do?
Asked 1 year ago in Family Law from United Kingdom
Religion: Muslim

It is better you come down to India and have your statement recorded

2) apply for and obtain bail with court consent go abroad for work purposes

3) if you fail to appear before IO warrant can be issued against you

4) LOC can be issued against you and you would be detained at airport

Ajay Sethi
Advocate, Mumbai
68062 Answers
4111 Consultations

5.0 on 5.0

In this case, you should apply for anticipatory bail in sessions or high court under Section 438 of the Criminal Procedure Code.

Anticipatory bail is a direction to release a person on bail, issued even before the person is arrested.

Siddharth Jain
Advocate, New Delhi
4886 Answers
54 Consultations

5.0 on 5.0

hello,

contact a lawyer and file a writ petition against arrest in HC Jaipur bench immediately. also, reply to the police and there should be a decree of divorce with you.

regards

Rahul Mishra
Advocate, Lucknow
4732 Answers
11 Consultations

5.0 on 5.0

Hello,

Appoint a lawyer and submit a copy of the decree to the court .

Hope this helps.

Regards

Swarupananda Neogi
Advocate, Kolkata
1064 Answers
2 Consultations

4.8 on 5.0

- Under Section 13 of Code of Civil Procedure , A Foreign Decree is conclusive in India on the basis of Res Judicata- that is when a matter has been adjudicated by the court, it should not be agitated again and again- to save judicial time and expense. Therefore, a foreign divorce should be valid in India.

- A Decree passed by foreign court of competent jurisdiction is enforceable in India just like any other decree passed by the Indian Court.

- If both the spouses are residing out of India , then they can seek divorce by mutual consent under that country’s divorce laws related to foreign marriages and then will have to seek needed appropriate declarations from the Indian matrimonial forum by filing declaratory Petition.

- The Indian legal system will recognize the divorce only and only if it is the divorce by mutual consent with the consent of both the parties.

- You got married in UK in 2012 , further Nikah in India in Nov,2015, What this means? Nikah is bone of the marriage under Muslim law. Hence, it is clear that your marriage was solemnized in India and not U.K.

- However, If parties obtained divorce by mutual consent by both the parties , then neither of the parties can challenge the judgment of foreign court in an Indian court. The judgment of foreign court is final. There is no requirement of any validation of your divorce from an Indian court.

- The Supreme Court in the case of “Neeraja Sharaph vs. Jayant V. Saraph”, safeguards women, and suggested that no marriage between an NRI and an Indian woman that has taken place in India should be annulled by a foreign court. But , as your marriage was dissolved by mutual consent by both the parties ,so the divorce decree obtained from U.K.court should be valid in India judiciary.

- Your wife has lodged the said FIR after keeping the police official in dark and also due to your absence before the CWC.

- Now , you will have to move bail application .As you are out of India , you should move Anticipatory Bail Application with the help of any lawyer and in my view , certainly you will get Bail from the court in your absence.

- After getting the bail from the court , you will have much time to contest or settle the case with your wife.

Dont worry, You will get relief from the court of law.

Allah Hafiz.... and dont forget to positive rating.

Mohammed Shahzad
Advocate, Delhi
766 Answers
18 Consultations

5.0 on 5.0

- Yes , I know , how the said FIR lodged and i have already mentioned the same , pls. read carefully.

- Yes, without coming to India you can move Anticipatory Bail and as i already mentioned , you will get the same after producing the mutual divorce documents/order before the Indian Court.

- Yes, if cause of action arose in U.K. then Indian court has no jurisdiction but it will be proved in the trial of the case.

- Better, send all the documents to your family to produce before the court. Until you will not get the bail from the court , police will disturb you again and again.

Mohammed Shahzad
Advocate, Delhi
766 Answers
18 Consultations

5.0 on 5.0

Hello,

The. Reply must be sent to the io in person or by a letter addressed to the relevant ps in jaipur. As your father has already visited the ps and the IO is a adamant and is not accepting your version of the story....It is best to go for an FIR quashing before the jaipur bench.

As to the jurisdiction...your wife filed the fir in jaipur so the quashing can only be done by a hc under whose jurisdiction jaipur comes. That is jaipur bench. Anticipatory bail application is also an option.

After a recent judgment of the honble SC, THE POLICE cannot arrest you automatically without verification of the facts and when you are not cooperating with the investigation. A statement online can be given to the police.

Regards

Rahul Mishra
Advocate, Lucknow
4732 Answers
11 Consultations

5.0 on 5.0

Court insists on presence of accused before granting anticipatory bail

2) you can send your statement by email or by post

3) if no part of cause of action has arisen in Jaipur court in Jaipur would not ha e jurisdiction

4) in your application for quashing FIR mention that you were divorced in UK by mutual consent . Wife suppressed said fact

Ajay Sethi
Advocate, Mumbai
68062 Answers
4111 Consultations

5.0 on 5.0

You can call me through this same Kaanoon.com as well.

Mohammed Shahzad
Advocate, Delhi
766 Answers
18 Consultations

5.0 on 5.0

1. Yes you can file a petition for quashing of the FIR .

2. Yes it is possible .

3 . No need for now .

4 . Please go through section 4 of the IPC .

Hope this helps.

Regards

Swarupananda Neogi
Advocate, Kolkata
1064 Answers
2 Consultations

4.8 on 5.0

1. If the divorce is mutually is done and she has not disputed this fact as yet then clearly the case under 498A IPC does not lie. So filing a quashing petition and praying for stay on investigation is an appropriate option.

2. Now once yoou have time you can apply for bail and the same would be granted in routine manner. it does not make any difference whether warrant is issued or not.

3. in 498A cases restraint on foreign travel is generally no more imposed.

4. Offence committed in abroad can give rise to case in India. There is no illegality in it.

Devajyoti Barman
Advocate, Kolkata
17955 Answers
256 Consultations

5.0 on 5.0

Firstly, for your safety ,it shall be good that you move an application for anticipatory bail and after that file quashing before the high court.

Shitanshu Kumar Gaur
Advocate, New Delhi
44 Answers

Not rated

Firslty, the case is in itself a case having not even a single present of credibility in it.

Secondly, the decree got in UK is as valid as it was hit in India.

Thirdly, no, it ya not be possible to go for Anticipatory bail withou even be in India.

Sanjay Baniwal
Advocate, South Delhi
4923 Answers
11 Consultations

5.0 on 5.0

1. The police is right in stating that olrdinarily the decree of divorce passed by the UK Court is not valid in India and that you have married her in India following Islamic rites and rule. However, he is wrong not to inform you that you shall have to file an application before the District Court praying for validating the MCD passed by the UK Court since MCD passed by foreign Court on grounds accepted by Indian Court is considered as valid in India. You have got the MCD decree against the application jointly filed by both of you after your Nikah. So, your application for MCD filed by both of you covers your Nikah also.

2. So, she is legally still married to you as per law till you get your MCD decree passed by the UK Court validated by Indian Court.

3. Now you shall have to avail anticipatory bail by filing an application before the Court.

4. Get the AB petition sent to you for your signing the same before local Indian Consulate and getting the signature notarised by its appropriate officer.

5. Then return the said notarise AB application to your Indian lawyer for his filing the same before the Court for availing AB.

6. If NBW is issued, you shall have no other chance to avail AB and in that case you shall have to take bail after surrendering before the Court.

7. The Court might, in extreme case, pass order to impound your passport for which it will not be prudent on your part to allow the matter to reach such stage where NBW is issued against you.

Krishna Kishore Ganguly
Advocate, Kolkata
22690 Answers
606 Consultations

5.0 on 5.0

1. Indian High Courts accept the quash petition only after charge sheet is filed. You can file the quash petition after charge sheet is filed finding loopholes in the charge sheet. She has registered a criminal charge against you for which her not mentioning the MCd decree passed by UK Court is of not much relevance. Even after getting divorce, 498A complaint can be lodged by the ex-wife.

2. Yes, you can get AB with out coming to India by filing the AB application from UK as suggested in my earlier post.

3. In the same way as suggested for getting AB, you can get your Written Objection notarised by Indian Consulate at UK and send it to your Indian Lawyer for filing. You shall have to appear in person while giving evidence, if asked by the Court.

4. Some Courts in India has stretched the jurisdiction to the P.S. where the wife resided on the ground that the dowry harassment might caused out of the jurisdiction of the said police station but continued till now at the residence of the wife falling under the present police station. However, there are counter arguments to this logic which your Advocate shall have to forward before the Court. during the hearing challenging the maintainability of the FIR/case.

Krishna Kishore Ganguly
Advocate, Kolkata
22690 Answers
606 Consultations

5.0 on 5.0

1. Yes. As MCD had already been done as well as no cause of action has arisen in India.

2. Yes. Your lawyer can help you with the same. You would just need send send over documents attested from Indian Consulate.

3. Yes. But, physical delivery of reply should be done with due acknowledgement.

4.You can disprove her allegations during trial.

Siddharth Jain
Advocate, New Delhi
4886 Answers
54 Consultations

5.0 on 5.0

You appoint a lawyer and validate the divorce decree in India. File writ petition in HC and get directions for quashing of the fir.

Prashant Nayak
Advocate, Mumbai
13729 Answers
23 Consultations

4.6 on 5.0

Dont worry about it, you dont visit India for a long time, let them split the case .

Then the case against your parents may run separately and your case will be kept in abeyance

Dont try to take AB because the opposite party may file an intervene petition objecting to your AB and also may ask the court to get your passport deposited in the court till the disposal of the case.

Once the passport is held by court you cannot travel back to abroad and your future or career may be ruined.

Hence remain in abroad itself for a very long time.

T Kalaiselvan
Advocate, Vellore
57773 Answers
730 Consultations

5.0 on 5.0

1. Yes you can apply for quash on the basis of divorce obtained in UK.

You dont have to go to IO for that.

2. About obtaining AB without you visiting India is not possible because the order have to be executed by first surrendering you before court.

3. No, there is no provision in law for that. There is no requirement for your written statement in the criminal complaint filed by police.

4. This is a matter of challenge to be done during trial proceedings.

T Kalaiselvan
Advocate, Vellore
57773 Answers
730 Consultations

5.0 on 5.0

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