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?.
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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.
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.
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.
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
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.
- 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
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.
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.
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.
1. your wife first filed a 498a against you
2. let us have a look at that section
(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
Thanks all for your reply. However, will her acceptance of Talaq-e-Bain affect 498a case even though false allegations upon us of taking her jewellery (even though it is ours) and her lying that she gave us 5 Lakh Rupees of dowry are still present in the FIR?. She has also declared that she doesn't need counselling in the 498a FIR in April 2018.
Her false statements can be proved false by you through effective cross examination. She needs to prove all her allegations in court
Divorce and sec 498a are independent, only contrary statement can be used in defense.
Acceptance of talaq would not affect dowry case
burden of proof is upon prosecution to prove allegations beyond reasonable doubt
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.
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.
It takes around two to three years for each case. But not less than that if you don't go for compromise.
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.
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.
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.
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.
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.