• Extra marital affair how section 498(A), 504 , 506 is applicable How to prove misuse of this Section

I am not Staying with Wife since 1 year 2 months,Staying alone separately in rented flat and wife also staying at her Moms house.
Wife seen me with some women a friend of mine & collected some Evidences like seeing me & my friend in car & having food & all.
I am not sure what all evidences Wife has but i can guarantee i am not having any physical relation & since no evidences like adultery.
Since I am staying separately some how Wife misunderstood I am staying in Livin with women friend.
She sent notice & mentioned I am cheating upon her & mentioned I am staying in Livin with same women Since 1 year.
Since 1 year i am not talking , nor SMS or no whtsup or any mail / no communication with WIFE.
Also Wife recently logged FIR against me with section 498(A), 504 , 506.
And mentioned in FIR since my husband having extra marital affair with a women & when wife inquired about same. husband(me) abused & threaten me & given Physical & mental harassment since two years.
None of these mentioned Points are true so how on this basis local station police accepted her case & loged FIR against me.
I have taken bail but since this is offence as Police & my lawyer told me I am really worried about my future.
There is no question of Dowry evidence that shows demands for dowry were made before or after the wedding. Also Adultery no longer a criminal affair, Recent Supreme Court ruling 
But in my case the Girl whom my Wife accused i am having affair with is not Married.
So how Just because Wife mentioned Husband having Extra marital affair section 498(A), 504 , 506 is applicable. I dont have any evidence against my wife like
No conversation between me or any my family member with my wife or her relatives like any SMS, emails, letters, call recordings, etc. 
Dont have any evidence that proves that my wife moved willingly out of my house. 
Immediately after FIR i have filed for Divorce & soon notice will be served to my WIFE.
I am working & as per FIR i have to visit local police every week & give attendance & in case i need to go out/ abroad have to take permission from court. This is humiliating & time consuming as i feel i am treated like a Criminal & really embarrassing me. My family is supporting me on this matter now how can take help from them. 

#As per Supreme court ruling which i found online
Mere Extra-Marital Relationship By Husband Not ‘Cruelty’ To Attract Section 498A/306 IPC
Husband's extra-marital affair does not always count as cruelty: Supreme Court

If above is true then how i get away from FIR as there is no question of mental & physical cruelty done by me.

# My questions : 
1) Will divorce petition Help me getting away from FIR or will FIR grounds can help me in Divorce ? 
2) In my case just mention of Extra marital affair how section 498(A), 504 , 506 is applicable 
3) How to Get the 498A FIR Quashed,How can i prove misuse of Section 498A, and this is wrongly mentioned section & term FIR as act of Revenge by my Wife
Asked 5 years ago in Family Law
Religion: Hindu

First answer received in 10 minutes.

Lawyers are available now to answer your questions.

11 Answers

Sir.

please understand that our judicial system works like this. If there are some allegations against someone then they are right or wrong is a matter of investigation, based on prima facie evidence the police can lodge a FIR.

Also, in light of the SC order you may go to the HC for getting the FIR quashed.

the ingredients of sections are not attracted and such you must file a petition for quashing of the FIR in the HC.

regards

Anilesh Tewari
Advocate, New Delhi
18077 Answers
377 Consultations

5.0 on 5.0

1. See file quashing petition before high court as FIR is false and frevilous and if the FIR is quashed that will help you in the divorce case.

02.Section 498(a) cannot be applied just on the acuquasition of affair but since she mentioned there was physical and mental cruelty then 498(a) isattriacted.

03. See a quashing petition has to be filed in high court on ground no primary evidence, you and your wife are staying seperately from 2 years the incident she reported never happened its all her brain child.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

First of all you must understand that the complaint under 498 A doesn't relate to dowry demand. It is complaint of beating,abusing or mental torture amounting to cruelty under the section. Section 506 has been applied on allegation that you are intimidating your wife by your conduct to get rid of her.Section 504 it appears is misconceived and there is no offence of adultery.

Now answering your questions:

Divorce petition is not going to help you at this stage. Rather it supports the allegation of cruelty and intimidation in order to riggle out of this marriage  

As said above there is no offence on adultery made out but it is mentioned to explain the reasons for alleged cruelty and intimidation. 

As a fair opinion I dont think High Court will exercise its powers to quash the FIR. I will advise you to cooperate with investigation and and let police come to a conclusion that no charge is made out. It will be then advantageous in your divorce petition also. Since you are staying apart for over one year and have no contact with each other, incidents of your recent beating etc can not be substantiated and any incident having past reference would be considered an afterthought.

 

H. S. Thukral
Advocate, New Delhi
620 Answers
204 Consultations

5.0 on 5.0

1) FIR grounds will help you in divorce case 

 

2) if in FIR there is no allegations of dowry harassment no case under said section is applicable 

 

3) case under section 504, 506 IPC is made out if you threatened her in case she confronted you for having extra marital affair 

 

4) wait for police investigations to be completed then based on legal advice file for discharge before trial court 

 

5) quashing is to be done only in exceptional circumstances 

Ajay Sethi
Advocate, Mumbai
94520 Answers
7485 Consultations

5.0 on 5.0

Dear Client,

Mere on the ground of adultery, no case u/s 498a made out neither abatement to suicide and Criminal Intidimation, fille petition in HC to quash FIR.

And adultery is valid ground for divorce, if she applies for.

 

Yogendra Singh Rajawat
Advocate, Jaipur
22596 Answers
31 Consultations

4.4 on 5.0

1) Yes, FIR will help you for getting divorce on grounds of evidence if you prove in the family court that whatsoever allegations are raised by your wife are all false.

2) Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. 498a is a criminal offense. It is cognizable, non-bailable, and non-compoundable offense.

  • If 498a is imminent, start collecting proofs in forms of letters, audios and videos, 
  •  If 498a is imminent - to save your parent, brother, sister, etc from 498a, you may ask your parent to legally disown you, your parent need to contact a lawyer to file affidavit in court.
  • Once your wife files 498a, just go underground, do not get arrested at any cost, make your lawyer apply for bail for all those people who have been named in the FIR, surrender to court after bail is denied. 
  • Ideally Police should not register FIR if your wife is living separately from you , so make sure that you have got some solid proof for the same as example you can send legal notice to your wife to her address asking her to come back. On the basis of the notice file the Divorce immediately. 

3) One should apply in the High Court for quashing 498a.

Ganesh Kadam
Advocate, Pune
12910 Answers
253 Consultations

4.9 on 5.0

First if all its a criminal case you don’t have to prove you are innocent but deny any allegations made on you. Wife has to prove that you are criminal.

Police cannot arrest any person without sufficient proof in 498a case you can also apply for Anticipatory bail,  after granting bail you have to wait for next hearing until police file chargesheet. 

Mohammed Mujeeb
Advocate, Hyderabad
19299 Answers
32 Consultations

4.7 on 5.0

1) it is difficult to prove you are having extra marital affair 

 

2) photographs of you in compromising position with lady would be sufficient to prove you were having extra marital affair 

 

3) if you have stayed in same hotel room with lady it is sufficient to prove you are having extra marital affair 

 

4) for dowry harassment bank statements of funds transfers , sms messages , chat messages wherein you demanded dowry would be sufficient to prove cas under section 498A 

 

5) burden of proof is upon prosecution to prove allegations beyond reasonable doubt 

 

6) dowry harassment cases take 10 years to be disposed of 

 

7) after getting bail wait for police investigation to be completed and charge sheet filed 

 

8) you can seek expedited hearing from HC 

 

9) wife filing false FIR against husband amounts to mental cruelty and is ground for divorce

Ajay Sethi
Advocate, Mumbai
94520 Answers
7485 Consultations

5.0 on 5.0

1. See even if there is extra marital affair that doesnot amount to cruelty and in your case firstly it is not there secondly she need to substantiate her claim with the help of evidences like photgraph or any recordings or statement of the neighbours.

2. Sir for that either you to face trial or a quashing petition or settlment and mutal divorce with your wife.

3.FIR cannot be taken back it can be quashed fromHC on ground of consent, it will be good if third party can influence.

4.The matter can be expidite through the high court direction, for same either interim order in Quashing can be prayed or seperate petition can be filed.

It can take 1 to 2 year in local court if police delay for matter to come on hearing.

5. The hearing will start once the police files the FIR.

 

6. You can mention that wife has file false FIR agaisnt you, but she no benifit till FIR is quashed.

 

7.  See she has to support her case by evidence as onus is on her.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

# My questions : 

1) Will divorce petition Help me getting away from FIR or will FIR grounds can help me in Divorce ?

Filing a divorce case against your wife may be a relief to you for staying away from her but this case will not absolve you from the charges framed through FIR, that is totally a different case to that of this diovorce case. You have to fight each case separately as per law.




2) In my case just mention of Extra marital affair how section 498(A), 504 , 506 is applicable

First of all understand the underlying fact behind this criminal case against you, she might have made grounds for criminal cruelty against her based on your reactions to her enquiry about your extra marital affairs, hence the extra marital affairs cannot be a ground for cruelty but the allied activity is the casue for cruelty hence the sections mentioned therein are maintainable.






3) How to Get the 498A FIR Quashed,How can i prove misuse of Section 498A, and this is wrongly mentioned section & term FIR as act of Revenge by my Wife

If you have strong and substantial evidence to prove that this complaint by her is false and she has lodged the same only to wreak vengeance against you, then you may wait for the charge sheet to be filed and file the proposed quash petition under section 482 cr.p.c. before high court.

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

My questions 

1) Which types of evidences court will treat as Fair point if its true when my wife FIR(498(A),504,506), charge-sheet comes for hearing in local court?


As you rightly observed the apex court's observation in this regard i.e., Mere Extra-Marital Relationship By Husband Not ‘Cruelty’ To Attract Section 498A/306 IPC

Husband's extra-marital affair does not always count as cruelty:
you have a fair chance of fighting the case appropriately and winning it, because the fact is that you have been living separately away from her for the last one year or more, this has to be established before court.
Hence her mental cruelty on this is not maintainable.






2) How to get Away from FIR(498(A), 504 , 506) as of now so that i am free to handle Divorce case

As opined earlier that the divorce case is different to the crimnal case, you may have to handle them accordingly without being bothered about the pendency of each other case.







3) How safe is to mediate through some third person & request to take back FIR or can my Lawyer do this ?

Dont be in a hurry to that, she may take advantage over the situation and it may cause you more harm.









4) How i expedite FIR for hearing in local court & try & close the FIR which can help me in Divorce.

You cannot do anything about it. It is a state prosecuted case, hence police will take its own time for filing the charge sheet itself, once again I mention that the divorce case is different to this.




5) What is the next step after getting bail from FIR & how long it takes for actual hearing in local court of such case ? in who's hand it is to expedite the case for hearing ?

After obtaining Bail you may have to wait for the charge sheet to be filed by police.
Altogether it may take at least two to three years to get disposed, the court only has to decide about expediting the case if it is delayed inordinately due to the fault of police to produce the witness before court.











6) Can i mentioned FIR while fighting for Divorce as string point due to which my career as at stake since i am private working professional ?

You can file the divorce case on the grounds of cruelty and include this unnecessary torture by filing false criminal case agaisnt you is the root cause for cruelty in your pleadings in the divorce petition.







7) How much strong her point of Mantle cruelty

It depends on how you rebut the charges and nullify her claim for mental cruelty.

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

Ask a Lawyer

Get legal answers from lawyers in 1 hour. It's quick, easy, and anonymous!
  Ask a lawyer