• 498A & Muslim Divorce & Section 12 DV

Hi There, I am a Sunni Hanafi Muslim. I had given Talaq-e-Bain to my wife after she filed false 498a case alledging non-consummation of marriage saying I was not made to establish relations with her until payment of money, demanding 5 Lakh Rupees money for visa, mental torture in the form of taunts, false promises and 20 Lakh for marriage expenses.
She accepted it on 1 December 2018 from Darul Qaza with 3 month Iddat money along with Meher amount by signing on the declaration.

 I then received a 'Notice of appearance' under section 12 of PWDV act recently. My SIL accepted it for my parents and brother, but rejected mine. This is a false 498a case and I have WhatsApp chat and photographs in my phone as proof 

I stayed in India from 16 July 2017 (Day of marriage) till 1 August 2017 (Day of departure from India). 

I currently hold citizenship of a Western country and an OCI. My parents, brothers and SIL's all stay in a Western country. 

What options are there for me and how long will this both these cases take for completion?.
Asked 9 months ago in Family Law from Australia
Religion: Muslim

1. Well, since FIR is registered you have only option of appearing in the case and taking bail first.

2. Once bail is granted you can freely move around and your day to day appearance in the case is not necessary.

3. Your citizenship in the dispute will play no role.

4. Once submission of charge sheet is done go for quashing.

5. In DV case your regular appearance is not required.

Devajyoti Barman
Advocate, Kolkata
19515 Answers
277 Consultations

5.0 on 5.0

Dear Concerned, 

 

As you are already based i.e citizen in the Western Country hence need not to worry, YOu mention of summons received by SIL - In your western country ??? 

 

Just remember stay back Home   - till these cases get over. Through a lawyer get these cases quashed on the basis of the facts as detailed above. 

 

 

 

 

Atulay Nehra
Advocate, Noida
1244 Answers
51 Consultations

4.7 on 5.0

If you don't reply to her summons than court may give Exparte order and ask to impound your passport to passport authority and ministry of external affairs.

Now either you can apply for quashing the 498a in the high court or assign poa to some one from your family to run the case and prove that whatever the allegations are raised all are false.

Ganesh Kadam
Advocate, Pune
9590 Answers
80 Consultations

4.9 on 5.0

DV cases take 6 years to be disposed of 

 

2) dowry harassment cases 10 years 

 

3) DV case is not maintainable after divorce as there is no domestic relationship 

 

4) file for discharge in DV case 

 

5) Anticipatory bail from sessions court in dowry harassment case 

Ajay Sethi
Advocate, Mumbai
74388 Answers
4450 Consultations

5.0 on 5.0

You need to contest the same on merits if there are no chances of settlement. You can go got quashing in high court also if the case is false. 

Prashant Nayak
Advocate, Mumbai
18517 Answers
34 Consultations

4.6 on 5.0

- You must take the seriously as it may cause of your other country citizenship if court gives ex-parte order against you

- Time period on closure of case depends upon the promptness all submissions. However it may take around 2-3 years

- With POA, you must move your application for Anticipatory bail immediately through your lawyer.

 

Regards

 

Vivek Arya

Vivek Arya
Advocate, Gurgaon
682 Answers
4 Consultations

5.0 on 5.0

See at this stage you can avoid going to India can appoint a power of attorney to file quashing before high court on your behalf . In case the matter below is stayed or matter is quashed it is good otherwise you need to appear before the trial court.

Also since you are not Indian citizen even you fail to appear the court can only attach your property in India you cannot be arrested in foreign nation.

Shubham Jhajharia
Advocate, Ahmedabad
24271 Answers
96 Consultations

5.0 on 5.0

Dear Client,

As per facts, it is a criminal proceeding so you have to present if court needs, otherwise, no need to present before the court. 

Therefore, you can appoint a good family lawyer for it.

 

You may call me through KAANOON for more detail.

Mukesh Kumar
Advocate, Jaipur
88 Answers

Not rated

Section 12 of PWDV act is civil in nature. If you will not appear, court will pass ex parte order. Any local lawyer can represent you in the court. You personal presence not required.
SC declared triple talaq unconstitutional and Talaq-e-Bain is another form of it, hence she can prosecute you as triple talaaq is illegal now. IF you are never visiting India, than you are safe.
But if you not represented by lawyer in court and any order passed agasint you and not complied by you, warrant of arrest will issue against you,
Case take year to decide.

Yogendra Singh Rajawat
Advocate, Jaipur
18433 Answers
22 Consultations

4.6 on 5.0

1. your wife first filed a 498a against you

2. let us have a look at that section

376 [498A. Husband or relative of husband of a woman subjecting her to cruelty.—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. Explanation.—For the purpose of this section, “cruelty” means—

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.]

 

3. since the 498a was filed when the husband -wife relationship was subsisting, your wife had a right to file that case and you have a right to defend yourself if the allegations against you are false

 

4. thereafter you divorced your wife by pronouncing talaq-e-bain. Now this is an illegal form of talaq. 

5. in August 2017 the Indian Supreme Court declared triple talaq as illegal

6. thereafter government promulgated two ordinances one in September 2018 and another in February 2019 declaring triple talaq as illegal

7. the talaq by you was pronounced by you prior to 1.12.18 when the above ordinance was in force

8. however your wife accepted the divorce by accepting the meher money and iddat amount and has also signed on the declaration of talaq

9. so the 498a case becomes infructuous or redundant since there is no relationship of husband and wife upon divorce

10. now coming to s.12 PWDV application filed by your wife, certain provisions are required to be seen - 

11. PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 Section 12 - Application to Magistrate

(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act:

Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.

12. definition of aggrieved person is -

(a) "aggrieved person" means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;

13. definition of domestic relationship is -

(f) "domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;

14. the above definition makes it clear that the aggrieved person [your ex wife] and the respondent [you] would have lived together in a shared household but when they are related by marriage. 

15. in your case the marriage is dissolved and the lady has also accepted the divorce by accepting the moneys as above

16. so the s.12 application under PWDV is also not maintanable. 

17. i suggest that since the marriage is already dissolved and the lady has taken the money, you make an application u/s 14 of PWDV for counselling so as not to enlarge the controversy further and to dispose of the matter amicably 

 

 

Yusuf Rampurawala
Advocate, Mumbai
5105 Answers
31 Consultations

5.0 on 5.0

Her false statements can be proved false by you through effective cross examination. She needs to prove all her allegations in court

Prashant Nayak
Advocate, Mumbai
18517 Answers
34 Consultations

4.6 on 5.0

Divorce and sec 498a are independent, only contrary statement can be used in defense.

Yogendra Singh Rajawat
Advocate, Jaipur
18433 Answers
22 Consultations

4.6 on 5.0

Acceptance of talaq would not affect dowry case 

 

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

Ajay Sethi
Advocate, Mumbai
74388 Answers
4450 Consultations

5.0 on 5.0

You have a very good ground for quashing the 498A...If 498a is filed after Talaq e Baini. it can be quashed in the HC easily..

The grounds for quashing - she filed 498a to harass the husband more...since the husband has divorce your case becomes stronger. 

Mohammed Mujeeb
Advocate, Hyderabad
15449 Answers
7 Consultations

4.5 on 5.0

See divorce has no effect on such proceedings though as per merits it can be used as ground for defence.

See you can file quashing before the high court.

Shubham Jhajharia
Advocate, Ahmedabad
24271 Answers
96 Consultations

5.0 on 5.0

It takes around two to three years for each case. But not less than that if you don't go for compromise.

 

 

Mohit Kapoor
Advocate, Rohtak
7885 Answers
2 Consultations

5.0 on 5.0

First of all you should understand that this is not a complaint under section 498a IPC, but a complaint under PWDV act, the dowry harassment complaint shall be prosecuted by police on a complaint lodged by her with the concerned police station, hence you need not be worried on this.

Moreover since the summons have not been served on you, dont worry about it until they are serving the summons on you, which will not be possible since you are residing in a foreign country and even if you are served to your address, you  need not appear before the court  because it will not be possible for you to attend each and every hearing in India  and also the danger is that she may try to implicate you in any false criminal case if you visit India for this purpose, hence you may remain silent over this and carry on with your routine works.

Even your siblings can remain silent about this since they are residing in a different country, hence even if she gets an exparte order against them she may not be able to execute the decree against them.

Also the court will not decide or dispose the case against them alone when you are also impleaded as a respondent in the case without taking any decision about you in the case.

You may consult an advocate of this forum or your native place in India and have a detailed discussion on the subject and decide next course  of action.

T Kalaiselvan
Advocate, Vellore
64348 Answers
834 Consultations

5.0 on 5.0

Dont worry about the FIR filed under section 498a also, you dont try to get bail on this matter because for that you may have to travel to India and while granting bail the court may impose condition that you deposit your passport in the court, which will hamper you career and may even prevent you to travel back to your country of residence till the case is disposed.

Hence it is advisable that you dont take any action on her complaint even though you know that it is a false case and you can win the case if you challenge the same in the trial proceedings.

T Kalaiselvan
Advocate, Vellore
64348 Answers
834 Consultations

5.0 on 5.0

Now you have to run this case under Special Marriage Act. If she has filed 498a against you than how she can deny counseling in it.

Ganesh Kadam
Advocate, Pune
9590 Answers
80 Consultations

4.9 on 5.0

1. It will be prudent on your part to arrive at India and contest the cases filed against you fittingly.

 

2. Avoiuding the cases by absenting is not a good proposition as per law.

Krishna Kishore Ganguly
Advocate, Kolkata
24025 Answers
659 Consultations

5.0 on 5.0

1. Her accepting the Talaq e Bail will in  no case affect the 498A complaint/case lodged/filed  by her.

 

2. These are two seperate matters.as per law.

Krishna Kishore Ganguly
Advocate, Kolkata
24025 Answers
659 Consultations

5.0 on 5.0

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