• 498A, 406, 313 filed by my wife

On Oct 2017 my wife filed 498A, 406, 313 against me at Orrisa. Am living with my 5 yrs single daughter in Delhi, since her leave on Mar 2016. She filed the case just before completion of 7yrs of our marriage. Initially my Anti Bail was turned down by Dist Court. Now got bail from HC in May 18. She verbally agreed to leave our child with me, as she is more attached to me since her birth. Now she wants her back, I believe she will not look after her properly. In between the police produced false report of 313 from her described Hospital at AB at HC. Initially after FIR I was not present at home, so the Police shown me absconding, but no charge sheet was filed. How should I contend?
Asked 4 years ago in Criminal Law
Religion: Hindu

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7 Answers


The FIR needs to be perused.

You may also challenge the FIR before the HC.

If you are on bail then I would not advise you to playing with the conditions of the bail.

Police without serving a notice of 41A can not declare you as absconder.

Welfare of the child is of paramount importance while deciding the custody of the child.


Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

In custody cases the Welfare of the child is of Paramount importance as per law. The custody of your child is normally given to the parent who has spent maximum time with the child which in your case is you.

The court normally doesn't disturb the surroundings of the child and in all likelihood you will be given the custody as your baby girl is already living with you after your wife left you both.

As per the recent Supreme Court guidelines the nuisance of 498 cases has gone down significantly, so you should not worry about her concoctions which can be disproved in court by you later.

For any doubts, feel free to call.


Siddharth Jain
Advocate, New Delhi
5930 Answers
101 Consultations

5.0 on 5.0

1)wait for police investigations to be completed and charge sheet filed

2)then based on legal advice file for discharge before trial court or quashing before HC

3) please note that only in exceptional circumstances is quashing done

Ajay Sethi
Advocate, Mumbai
87955 Answers
6207 Consultations

5.0 on 5.0

1. If the police is showing you as absconding then perhaps Non-Bailable Warrant (NBW) may have been issued already against you, in which event you should apply for cancellation of it.

2. In so far as the issue of your daughter is concerned your wife will have to file a petition for child custody to get the custody, which you can fittingly contest on merits. In order to uproot the custody from you she will have to prove that she is better placed than you to secure the welfare of child.

Ashish Davessar
Advocate, Jaipur
30761 Answers
971 Consultations

5.0 on 5.0

1. If the child is with you now then do not part with her physical custody.

2. If you ensure her physical custody so your wife can not forcefully take her away there is no nothing to wory.

3. Since your child is more attached with you and has been living with you after leaving of her mother even if your wife files custody suit the chance of changing her custody through court is very bleak.

So rest assured.

4. As you have already got AB , surrender in the lower court and apply for regular bail.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0


As you mentioned your daughter is 5 years of age,so now it's up to court.

Court first annalise both of your earning capacity and living standard,and

after that they decide,that in whose custody,the child is in good condition

and after that pass the order.

In your second query deny her allegations in court and demand FSL report.

Tarun Agarwal
Advocate, Jaipur
769 Answers
3 Consultations

4.9 on 5.0

You have already obtained AB, hence now the police cannot arrest you anymore till you jump bail or the disposal of the case.

You can challenge the case on merits.

Since the child is in your custody, you dont let her go to her mother, if your wife wants the child, let she file a separate case for custody which can be challenged in the grounds you rely upon.

T Kalaiselvan
Advocate, Vellore
78113 Answers
1543 Consultations

5.0 on 5.0

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