• Is seeking constitutional remedy is crime ?

I filed a divorce case in 2017, cause was cruelty from wife, after 2 months she filed a 498a with bias allegations, I provided all my evidence against her allegations, police have registered the FIR stating that divorce filed by me is mental cruelty to her . My question : 
Is this not violation of my fundamental Right to Constitutional Remedy as per Article 32 ? 
Can I file any writ in Supreme Court ?
Asked 3 years ago in Constitutional Law

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14 Answers

You are at liberty to file for divorce 

 

2) it does not amount to mental cruelty 

 

3) you are at liberty to file petition in HC for quashing FIR 

Ajay Sethi
Advocate, Mumbai
94518 Answers
7485 Consultations

5.0 on 5.0

Filling FIR is all legal. 

If it is frivolous or made with malafide intentions clearly evident,  on the face of it writ can be filed in high court for quashing the FIR. 

Kallol Majumdar
Advocate, Kolkata
2837 Answers
14 Consultations

5.0 on 5.0

1. This is a peculiar and perverse logic.

 

2. Everybody has the fundamental and constitutional right to seek justice against the alleged improper acts of the Opposite Party for which the said Opposite Party can not call it as an act of cruelty.

 

3. Avail anticipatory bail first and then contest the case fittingly.

Krishna Kishore Ganguly
Advocate, Kolkata
27191 Answers
726 Consultations

5.0 on 5.0

Well, her written complaint giving rise to registration of FIR needs to be seen first.  If her complaint doesn't disclose any cognizable offence except filing of divorce suit then it's fi case for quashing. 

Otherwise it's fine to mention this along with disclosure of other cognizable offence committed against her.

Devajyoti Barman
Advocate, Kolkata
22774 Answers
484 Consultations

5.0 on 5.0

1. You may file a quashing petition before the high court praying for quashing of FIR on ground same is false and wrongly registered against you.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

As of now first you can file for Quashing of 498a in the High Court and later on you can go for you fundamental rights because she can may defend as well by using same point of fundamental rights.

Ganesh Kadam
Advocate, Pune
12910 Answers
253 Consultations

4.9 on 5.0

Dear Querist

You cannot file a writ petition in this regard but you may file a quashing petition before the High Court of the area where the FIR has been registered under Article 226/227 of the Constitution of India.

if the High court is not allowing your writ then you may file the SLP before the Hon'ble Supreme Court under article 136 read with Article 142 of The Constitution of India.

 

Feel Free to Call

Nadeem Qureshi
Advocate, New Delhi
6307 Answers
302 Consultations

4.9 on 5.0

Sir, 

This is sheer abuse of process of law on part of the police. Given the fact that you had filed Divorce Petition way back in 2017, and the police has registered FIR stating that filing divorce petition is mental cruelty to your wife then this is violation of Article 14, 15, and 21 of the Constitution of India and your right under Sec. 13(1) of the Hindu Marriage Act,1955. 

 

You should approach Hon'ble High Court of your State under sec 482 of CrPC for quashing of such FIR and to enlarge the scope of your litigation, file Special Criminal Application under Article 226 of the Constitution of India against actions of police in registering such FIR abridging your fundamental rights and request Hon'ble High Court to issue writ of prohibition against entertainment of any FIR on such grounds alleging filing of divorce petition as mental cruelty to wife.  

 

Approaching directly to the Hon'ble Supreme Court under Article 32 of the Constitution of India, won't be advisable in your case. For immediate relief and recourse it is advisable to approach Hon'ble High Court in above suggested ways.     

Pooja Ashar
Advocate, Ahmedabad
232 Answers
4 Consultations

5.0 on 5.0

Hi, you need to file petition under Section 482 of the Cr.P.C before the Hon'ble High Court for quashing the FIR. Filing a Divorce case is not amount to cruelty. 

Pradeep Bharathipura
Advocate, Bangalore
5604 Answers
335 Consultations

4.5 on 5.0

It is not a violation of constitutional rights.

You have filed a case against her on your own rights and she also has the rights to sue you.

The next thing what you may have to do in this is to challenge her false case in the trial proceedings and get it dismissed.

There is no point in discussing or arguing over the non maintainable legal issue.

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

No this will not be violation of fundamental rights. Your writ will not be maintainable. You can at the most counter her cases and later after proving ger false file proceedings against her for defamation, false prosecution etc

Prashant Nayak
Advocate, Mumbai
31802 Answers
175 Consultations

4.1 on 5.0

- A wife can lodge her complaint under section 498a on the ground of cruelty for dowry demand .

- Further , a divorce case filed by husband is not amounts to cruelty and he is having his right to file the same legally.

- You can approach High court for quashing /cancelling the said FIR lodged against you , if you having proof that the said case has been filed without any merit. 

Mohammed Shahzad
Advocate, Delhi
13095 Answers
195 Consultations

5.0 on 5.0

You cannot file a writ petition directly under Article 32 before the SC because you have an alternate remedy available under Article 226 before the High Court. 

If the FIR is baseless and you have a strong case, you can try getting it quashed from the High Court in the State where the FIR is registered. 

Also, for your academic knowledge - Filing a divorce case is not a "constitutional remedy". It is a statutory remedy.  

Agam Sharma
Advocate, New Delhi
617 Answers
6 Consultations

5.0 on 5.0

Dear Sir,

The said action by police is totally biased and you are suggested to take the IO to task for such an investigation. 

Ganesh Singh
Advocate, New Delhi
6757 Answers
16 Consultations

4.5 on 5.0

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