• False FIR 406 and 498A,False lookout notice and Adamant behavior of girl's father not ready for MOU

My brother in law is permanent citizen of States. Parents green card holder and living with him in States.
The boy got married in Nov 2017 with an Indian resident in India (Chandigarh). After spending a fortnight with the girl, boy came to know that she is not of sound mind and health. He left India after a fortnight and girl was with parents for next two months wherein it was felt by parents also and then parents left for USA in Feb 2018. Since intentions were good and marriage was solemnized to live happily after, therefore no evidences were collected. 
In Aug 2018 girl lodged a false fir under section 406, 498A at NRI cell , Police Station Mohali. Since then lot of efforts have been made to do an out of court settlement. However to no avail, girl's father is adamant to reach a mutual agreement and divorce with reasonable fulfillment of demands. 
He has pressurized police and a look out notice against boy and her parents has been served. The boy and parents are in USA and due to restriction on movement and co-morbid condition of parents, they are under stress with this look out notice.
Request to clarify the following;
1. What is the course of action they should take to quash the false FIR and in which court?
2. Do any anticipatory bail needs to be taken and is the presence of family mandatory to take anticipatory bail?
3. Since the girl's father is adamant to reach any MoU, what legal course should be adopted as of now?
Asked 6 days ago in Family Law
Religion: Hindu

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9 Answers

File writ petition in HC to set aside look out circular issued 

 

2) mention on account of restrictions in international travel unable to come down to India 

 

3) also apply for anticipatory bail from sessions court

 

4) personal presence is insisted upon 

 

5) file for divorce on grounds of mental cruelty 

 

6) wife filing false cases amounts to mental cruelty 

Ajay Sethi
Advocate, Mumbai
81793 Answers
5120 Consultations

5.0 on 5.0

1. Since the boy is an US citizen and also his parents are green card holders,  they need not be worried about the LOC.

 Instead of visiting India,  let them remain there itself. 

2. AB also may not be necessary. 

3. Ignore him and don't entertain him anymore. 

He will tumble down afterwards due to frustration. 

T Kalaiselvan
Advocate, Vellore
71857 Answers
1057 Consultations

5.0 on 5.0

Do not worry in 498A cases immediate arrest has been stayed by the Honble Supreme Court in its judgement in Arneesh vs State of Bihar.You can approach the High Court for quashing the FIR under section 482 CRPCwhich gives powers to High Courts for quashing FIRs.Before filling FIR it is advisable to send a legal notice of divorce stating the grounds of misconcealment of facts that the girl was not of sound mind and therefore the marriage was conducted on grounds of fraud committed on the boy.Section 12 Hindu Marriage Act lays down provisions to declare any marriages solomnized void  on these grounds.You can file a petition of annulment of marriage on this ground .Yes for anticipatory bail the person's affidavit is necessary and he will have to execute the affidavit .

Ashutosh Patel
Advocate, Jabalpur
3 Answers

Not rated

Dear Sir, Mam

1. You can file an application u/s 482 of Crpc for quashing frivolous FIR in High Court.

A writ petition under Art 226 of Constitution, Mandamus writ can be against police officer who lodged and a prohibition writ to subordinate court which is conducting a trial.

You can also sue them under section 211 of Ipc for false charges against your brother in law.

2. You can only apply anticipatory bail in case of non-bailable and cognizable cases so under section 406 and 498A you can apply for this also but court while granting bail will impose conditions on him as according to all facts and circumstances wile taking all allegation made.

3.  You can also sue them for defamation of brother in law and family members and against false FIR stated above.

Thank you

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Anik Miu
Advocate, Bangalore
926 Answers
7 Consultations

5.0 on 5.0

1. Quashing is an exception , not the rule. Therefore first take bail and then go for discourage after submission of charge sheet.

2. Without taking bail the Police can harass te accused persons.

3. File a mutual divorce petition and on this basis go for quashing with the consent of the party.

Devajyoti Barman
Advocate, Kolkata
22279 Answers
338 Consultations

5.0 on 5.0

Hi, As the FIR has been lodged, first you have to obtain Anticipatory bail  from the Session Court and thereafter, you can file a Petition before the High Court  for quashing the same under Section 482 of the Code of Criminal Procedure.

Pradeep Bharathipura
Advocate, Bangalore
5020 Answers
265 Consultations

4.5 on 5.0

Your fears are unfounded. In 498A cases police no more has any power to arrest directly particularly senior citizens/parents of husband. Supreme Court  in Rajesh Sharma v. State of U.P. issued following directions :-

  1. i) In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities. Every complaint under Section 498Areceived by the police or the Magistrate be referred to and looked into by such committee. Such committee may have interaction with the parties personally or by means of telephone or any other mode of communication including electronic communication.

(e) Report of such committee be given to the Authority by whom the complaint is referred to it latest within one month from the date of receipt of complaint.

(f) The committee may give its brief report about the factual aspects and its opinion in the matter.

(g) Till report of the committee is received, no arrest should normally be effected.

(h) The report may be then considered by the Investigating Officer or the Magistrate on its own merit.

(i) Members of the committee may be given such basic minimum training as may be considered necessary by the Legal Services Authority from time to time.

(j) The Members of the committee may be given such honorarium as may be considered viable.

(k) It will be open to the District and Sessions Judge to utilize the cost fund wherever considered necessary and proper.

  1. ii) Complaints under Section 498Aand other connected offences may be investigated only by a designated Investigating Officer of the area. Such designations may be made within one month from today. Such designated officer may be required to undergo training for such duration (not less than one week) as may be considered appropriate. The training may be completed within four months from today;

iii) In cases where a settlement is reached, it will be open to the District and Sessions Judge or any other senior Judicial Officer nominated by him in the district to dispose of the proceedings including closing of the criminal case if dispute primarily relates to matrimonial discord;

  1. iv) If a bail application is filed with at least one clear day’s notice to the Public Prosecutor/complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected. Needless to say that in dealing with bail matters, individual roles, prima facie truth of the allegations, requirement of further arrest/ custody and interest of justice must be carefully weighed;
  2. v) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine;
  3. vi) It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of matrimonial disputes so that a holistic view is taken by the Court to whom all such cases are entrusted; and

vii) Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting progress of the trial.

 

Ravi Shinde
Advocate, Hyderabad
642 Answers
7 Consultations

5.0 on 5.0

A quashing of the fir and subsequently the charge sheet has to be filed before the high court.

If you want to come back and settle the matter anticipatory bail has to be taken from the district court. If he is ready for an agreement then talk to him through friends and relatives and settle the matter.

Otherwise case has to be fought in the district court.

Rahul Mishra
Advocate, Lucknow
12142 Answers
29 Consultations

5.0 on 5.0

1. yes they can go for quashing in HC or also can go for discharge in lower court.

2. yes its mandatory if you dont want to get arrested

3.The same as above if its not getting settled.

4. you can approach me on linkedln for further course of action.

Prashant Nayak
Advocate, Mumbai
23214 Answers
49 Consultations

4.4 on 5.0

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