• 498a on NRI

Hello Sir,

I filled a divorce case against my wife 1 year back and keep on requesting her to come to the court and sort the matter out. Every time her lawyer appeared and asked for next date. We have date on August 10th and my Lawyer suggested if she doesn't appeared this time round then we have a fair chance of getting "ex parte divorce". But today, I got to know she has filed a 498A against me and my parents. My parents were called to the police station and the police asked me to come to India for an investigation. I'm currently in US and coming to India for the hearing. So, below are my concern for which I need your expert advice.

1) Can the police withheld my Passport and deny travelling back to US? If yes, what all thing I can do to avoid this?
 2) I have a very strong case and all her allegation can be proved baseless, which the police also know. Can someone file a 498A after almost 1 year of divorce petition? 
3) I have a property on which me and my wife both are co-owner but i have been paying all the EMI's. I have asked her time and again to return back the ownership of the property.But she didn't? Now when the police come to seized all the belonging which i wife got can i ask them to return the property ownership? (FYI- my wife has taken all her jewelleries from my house without my permission long time back)
Asked 1 year ago in Family Law from United Kingdom
Religion: Hindu
1) you should cooperate and come to india and join investigations . your statement would be recorded . you can obtain Anticipatory bail and with permission of court leave india 

2) you can in your reply mention that 498A has been filed after filing of divorce petition and there is no continuous act of cruelty . 498A after 1 year of filing would be maintainable . it all depends upon allegations made in FIR 

3) your wife is co owner of the property . merel y because you pay EMI does not make you absolute owner of the property 

4)it is doubtful that wife would  return the property documents . 

Ajay Sethi
Advocate, Mumbai
23100 Answers
1212 Consultations
5.0 on 5.0
Hi,
 You instruct your family here to engage an advocate and file for anticipatory bail for you and if your parents and family members are implicated for them as well.
You will get anticipatory bail, support the divorce status as well.
Police cannot seize the property as they have no right. 
Your wife has to claim her belongings and share of property if it is in her name through a court order, either by filing a domestic violence petition or a civil suit.
Police had inform you about the FIR as per the procedure sec.41 of Cr.P.C., so replying to the notice is advisable, 
engage an advocate if you have not done already and take the necessary steps ,make arrangements for anticipatory bail, so that you can travel down to India.
The court will not impound your passport if you abide by the procedure, it is advisable to face the legal procedure by taking safe legal steps .
Entrust someone to go and meet the Inspector and let him know that your practical difficulty in coming down due to your job commitments, you can buy time. A good rapport with the inspector can help you favourably
Instruct your divorce lawyer to press for Ex-parte order.Surely our wife will come up with petition to set aside the order and a domestic violence petition to  get her maintenance  and other reliefs.
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
5.0 on 5.0
1. Without the order passed by a court of law your passport cannot be confiscated. 

2. You and your parents should immediately seek bail lest you arrested. Before you land in India make sure that you have been granted bail.

3. It is permissible to file 498A even after a year has passed since the commencement of divorce proceedings.

4. Your wife is the joint owner of the property. Police has no authority to transfer the ownership to you. It can be transferred by your wife alone. 
Ashish Davessar
Advocate, Jaipur
18055 Answers
445 Consultations
5.0 on 5.0
1) Can the police withheld my Passport and deny travelling back to US? If yes, what all thing I can do to avoid this?
Police Has got no power or right to seize of withhold your passport, they may insist on submission of passport to them, you keep dodging the submission because once submitted, they will deposit it in the court which will become difficult for you to retrieve  it.




2) I have a very strong case and all her allegation can be proved baseless, which the police also know. Can someone file a 498A after almost 1 year of divorce petition? 
Yes there is nothing wrong in filing a case after one year too because it is  a continuous offence. 



3) I have a property on which me and my wife both are co-owner but i have been paying all the EMI's. I have asked her time and again to return back the ownership of the property.But she didn't? Now when the police come to seized all the belonging which i wife got can i ask them to return the property ownership? (FYI- my wife has taken all her jewelleries from my house without my permission long time back)
There is nothing  wrong in she taking her jewels back, it is legal and valid, and  she doesn't have to  inform you or take your permission for doing so. But in the property jointly owned by you and her, you cannot force her to give it back to you because the fifty percent share in the property belongs to her and she is the absolute owner of the same  which you cannot deny and  it would be illegal and offendable. 




T Kalaiselvan
Advocate, Vellore
13910 Answers
127 Consultations
5.0 on 5.0
Dear Querist
My opinion on your queries are as under:
) 1. Can the police withheld my Passport and deny travelling back to US? If yes, what all thing I can do to avoid this?

Opinion: file an anticipatory bail petition before high court or session court under section 438of criminal procedure code and get the same with the help of lawyer.

 2) I have a very strong case and all her allegation can be proved baseless, which the police also know. Can someone file a 498A after almost 1 year of divorce petition? 
Opinion; if you may prove her case baseless then file a quashing petition before high court under section 482 of criminal procedure code along with an application for stay on arrest.

3) I have a property on which me and my wife both are co-owner but i have been paying all the EMI's. I have asked her time and again to return back the ownership of the property.But she didn't? Now when the police come to seized all the belonging which i wife got can i ask them to return the property ownership? (FYI- my wife has taken all her jewelleries from my house without my permission long time back)

Yes you can claim.
Nadeem Qureshi
Advocate, New Delhi
3517 Answers
129 Consultations
4.9 on 5.0
1. Police acts as per Court order. There is no chance of your passport being seized since your place of work is in US. However, since 498A case has been filed against you and your parents, all of you should avail AB. After that contest the case fittingly claiming that it is a retaliatory complaint after you filed divorce suit,

2. You can not stop anybody in filing cases. What you shall have to do is to contest those cases fittingly,

3. No. As per record, she is the joint owner of the property. You shall have to file a declaratory suit before the Civil Court praying for direction that you are the sole owner of the said property since you had paid the entire consideration while buying the property and also pray for direction upon the registrar to cancel the name of your wife as 50% owner of the said property by replacing your name.
Krishna Kishore Ganguly
Advocate, Kolkata
12034 Answers
227 Consultations
5.0 on 5.0
1) gift deed has to be stamped and registered in bangalore where the property is situated 

2)in the consent terms for mutual consent divorce it can be mentioned that wife shall execute all documents as may be necessary for transfer of property in your name 
Ajay Sethi
Advocate, Mumbai
23100 Answers
1212 Consultations
5.0 on 5.0
The transfer of property can be done only in the registrar office falling within the jurisdiction where the property situate and not from any other place.
She should be present before the registrar to execute and register the said transfer deed which can be either a release deed or gift deed.  The original title document should be held in your possession.
T Kalaiselvan
Advocate, Vellore
13910 Answers
127 Consultations
5.0 on 5.0
The document of transfer has to be registered at the place where the property is situated. A deed of relinquishment is required to be executed by her. 
Ashish Davessar
Advocate, Jaipur
18055 Answers
445 Consultations
5.0 on 5.0
1. The Deed of conveyance of the Property shall have to be registered before the Registration office having jurisdiction on the area where the property is situated,

2. Both of you shall have to be present before the said registrar at Bangalore while registering the said Conveyance Deed.
Krishna Kishore Ganguly
Advocate, Kolkata
12034 Answers
227 Consultations
5.0 on 5.0

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