• How to protect from false 498a case

Hello, my elder brother got married 4 years ago. Both couples have disease which can be genetic because of which we counsulted from doctor before to plan family..doctor told us that my brother has low sperm count an he can not become a father..after one month his wife got pregnant. Since this instense we have faced so many problems..Now she is thretning us for false cases. How i can protect us from 498A section before she lodged it for us.
Asked 8 years ago in Family Law
Religion: Hindu

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10 Answers

1) who is the father of the un born child ?

2) did his wife have any extra marital affair

3) engage detective agency and gather evidence of his wife adultery

4)record all threats received from wife

5) you cannot stop your brother wife from failing 498A case

6) you have to fight case on merits

Ajay Sethi
Advocate, Mumbai
94402 Answers
7468 Consultations

5.0 on 5.0

Hi, As per the latest Supreme Court Judgement the Police will not arrest your brother immediately when wife has filed a complaint under section 498/A IPC. The police has to verify the genuineness of the Complaint and thereafter they have to issue a notice to your brother.

2. As and when you receive the notice you can apply for anticipatory bail and court will normally grant bail in offence under section 498/A IPC.

Pradeep Bharathipura
Advocate, Bangalore
5604 Answers
335 Consultations

4.5 on 5.0

1) your father should move and obtain orders restraining his daughter in law from disturbing his peaceful possession of the house

2) mention about threats received from daughter in law

3) daughter in law has no rights on property owned by in laws

Ajay Sethi
Advocate, Mumbai
94402 Answers
7468 Consultations

5.0 on 5.0

1. You have nothing to worry. 498A is no more such threatening case anymore and getting bail is an easy job.

2. If you think that the child is not your brother;s then lodge complaint with police in this regard but do not cower under threat.

3. Since the lady is a working person she can not file maintenance case which will work in your brother's advantage.

4. Apply for stay on arrest once FIR is registered.

Devajyoti Barman
Advocate, Kolkata
22732 Answers
480 Consultations

5.0 on 5.0

1. Do not let his wife enter your parents' house. Seek an injunction, if required, from the court to stop her from entering it. If she succeeds in entering the house of your parents she will be able to take your parents also within the sweep of her nefarious design i,e to launch the false prosecution.

2. Your brother and all his family members should file for anticipatory bail to avoid being arrested.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

If you apprehend troubles if she would reside in your house instead of opting to reside with her husband in his house, you may better not allow her entry in the house, let she make any complaint with the police, you may even video record the incidences that takes place when she is forcing her entry in you house. Also, if the property belongs to your mother or parents, let them take an injunction against her restraining her entry into the house stating that it is not her matrimonial house nor her husband has any share in it and she intends to create evidences to foist false criminal cases against all the household members by opting to reside in the house.

Despite that if she still manages to lodge a criminal complaint under cruelty and dowry harassment offences, against all of you people, it will be better to obtain anticipatory bail and challenge her false cases.

T Kalaiselvan
Advocate, Vellore
84602 Answers
2155 Consultations

5.0 on 5.0

1. It is not understood why your brother's wife's pregnancy has triggered your facing problem,

2. Pregnancy may take place even with lower sperm count or the medical test may be faulty. If you doubt the fatherhood of the child, you can conduct DNA tst,

3.However, audio tape her threat about filing false 498A complaint and lodge a police complaint against her for her giving such threat,

4. apply for and avail anticipatory bail with he support of your said police complaint, if she lodges any 498A complaint and contest the case fittingly.

Krishna Kishore Ganguly
Advocate, Kolkata
27132 Answers
726 Consultations

5.0 on 5.0

1.Lodge the police complaint as advised in my earlier post and after that file an application under order 39 rule 1 & 2 praying for an order up on her restraining her to enter in o your house,

2. Lodge a police complain or her giving threat for trespassing in to our house also.

Krishna Kishore Ganguly
Advocate, Kolkata
27132 Answers
726 Consultations

5.0 on 5.0

IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT : CODE OF CIVIL PROCEDURE

Date of Reserve: September 05, 2008

Date of Order : September 30, 2008

CM(M) 105/2006

Neetu Mittal ...Petitioner

Through: Ms. Radhika Chandrasekhar, Adv.

Versus

Kanta Mittal and Ors. ...Respondents

Through: Ms. Nandni Sahni, Adv. for R.1 and 2

Mr. Devendra Singh, Adv. for R.3

JUSTICE SHIV NARAYAN DHINGRA

JUDGMENT:

1. The petitioner is aggrieved by an order dated 4th January, 2006 passed by

the learned Additional Senior Judge allowing an appeal of the respondent

against order dated 24.5.2005 of Civil Judge dismissing an application under

Order 39 Rule 1 and 2 CPC.

2. The respondents had filed a suit making petitioner, their son and in-laws

of the son as defendants wherein they prayed for permanent injunction. An

application under Order 39 Rule 1 and 2 was made that the petitioner and

other respondents be restrained from forcibly and illegally entering into their

house No. B-2/23, Phase-II, Ashok Vihar and from interfering with their

peaceful living. The petitioner is wife of Sh. Vikas Mittal son of

respondents, Smt. Kanta Mittal and Sh. Ram Kishan Mittal.

3. The learned Senior Civil Judge while allowing appeal observed that wife

has a right to live in the matrimonial home after marriage but there was no

specific definition of matrimonial home. However, matrimonial home was

not just a building made of bricks and walls. It was a home/place comprising

of sweetness of relations of family members and elders, full of blessing. In

the matrimonial home, matrimonial rights and obligations are to be equally

observed. Practically speaking, the residence of husband should be the home

of the wife where both the spouses have equal right to reside.

4. The learned Senior Civil Jude found that in this case, the respondents

were parents of Sh. Vikas Mittal and in-laws of Neetu Mittal (petitioner).

They had separated from their son. The son had taken a flat in Rohini for his

own residence and residence of his wife. The son and his wife had agreed to

shift there on 10th May, 2005 under a compromise arrived at Police Station.

However, the wife did not stay in the flat at Rohini. Her grievance was that

flat was not habitable due to deficiency of fan, cooler, etc. Thereafter, she

asserted that she had a right to live in her in-laws' house in Ashok Vihar and

she wanted to forcibly live there which compelled respondents no. 1 and 2 to

file the suit. The learned Senior Civil Judge found that the respondents were

aged parents. They had shown by filing medical record that they were

suffering from various ailments and at this age of their life they have a right

to live peacefully at their home. Since the relations of petitioner were not

cordial with them, there was every likelihood of breach of peace to the

detriment to their mental and physical health. Due regards have to be given

to their rights. It was a admitted fact that the respondents and petitioner

could not live together under one roof with peace and harmony. The

common use of dining and one kitchen would create further problems and a

situation may come when parties may everyday land up at Police station or

in the Court, fighting on minor issues.

5. Learned Sr. Civil Judge also observed that the respondents(parents) even

apprehend danger to their lives and dignity, as per the complaint made by

them to the Police. Under these circumstances, the learned Senior Civil

Judge allowed the application under Order 39 Rule 1 and 2 CPC and

restrained the defendants (petitioner herein) from forcibly entering into their

house and disturbing the peaceful possession of the respondents.

6. Counsel for the petitioner argued that the petitioner being wife of son of

respondents no. 1 and 2 has a right to live in the matrimonial home and no

injunction could legally have been issued by the learned Civil Judge. She

referred to Protection of Women from Domestic Violence Act, 2005 and

argued that the right of women to live in the shared household was to be

protected by every Court and the house of in-laws was a shared household

and a matrimonial home and she had a right to live there.

7. In S.R. Batra vs. Taruna Batra AIR 2007 SC 1118, Supreme Court

observed as under: “16. There is no such law in India, like the British

Matrimonial Homes Act, 1967 and in any case, the rights which may be

available under any law can only be as against the husband and not against

the father-in-law or mother-in-law. 17. Here, the house in question belongs

to the mother-in-law of Smt. Taruna Batra and it does not belong to her

husband Amit Batra. Hence, Smt. Taruna Batra cannot claim any right to

live in the said house. xxxxx xxxxx xxxxx 27. Learned counsel for the

respondent Smt. Taruna Batra has relied upon Section 19(1)(f) of the Act

and claimed that she should be given an alternative accommodation. In our

opinion, the claim for alternative accommodation can only be made against

the husband and not against the husband's in-laws or other relatives. 28. As

regards Section 17(1) of the Act, in our opinion the wife is only entitled to

claim a right to residence in a shared household, and a 'shared household'

would only mean the house belonging to or taken on rent by the husband, or

the house which belongs to the joint family of which the husband is a

member. The property in question in the present case neither belongs to

Amit Batra nor was it taken on rent by him nor is it a joint family property of

which the husband Amit Batra is a member. It is the exclusive property of

appellant no.2, mother of Amit Batra. Hence it cannot be called a 'shared

household'.”

8. As observed by the Supreme Court, 'Matrimonial home' is not defined in

any of the statutory provisions. However, phrase “Matrimonial home” refers

to the place which is dwelling house used by the parties, i.e., husband and

wife or a place which was being used by husband and wife as the family

residence. Matrimonial home is not necessarily the house of the parents of

the husband. In fact the parents of the husband may allow him to live with

them so long as their relations with the son (husband) are cordial and full of

love and affection. But if the relations of the son or daughter-in-law with the

parents of husband turn sour and are not cordial, the parents can turn them

out of their house. The son can live in the house of parents as a matter of

right only if the house is an ancestral house in which the son has a share and

he can enforce the partition. Where the house is self-acquired house of the

parents, son, whether married or unmarried, has no legal right to live in that

house and he can live in that house only at the mercy of his parents upto the

time the parents allow. Merely because the parents have allowed him to live

in the house so long as his relations with the parents were cordial, does not

mean that the parents have to bear his burden throughout the life.

9. Once a person gains majority, he becomes independent and parents have

no liability to maintain him. It is different thing that out of love and

affection, the parents may continue to support him even when he becomes

financially independent or continue to help him even after his marriage. This

help and support of parents to the son is available only out of their love and

affection and out of mutual trust and understanding. There is no legal

liability on the parents to continue to support a dis-obedient son or a son

which becomes liability on them or a son who dis-respects or dis-regards

them or becomes a source of nuisance for them or trouble for them. The

parents can always forsake such a son and daughter-in-law and tell them to

leave their house and lead their own life and let them live in peace. It is

because of love, affection, mutual trust, respect and support that members of

a joint family gain from each other that the parents keep supporting their

sons and families of sons. In turn, the parents get equal support, love,

affection and care. Where this mutual relationship of love, care, trust and

support goes, the parents cannot be forced to keep a son or daughter in law

with them nor there is any statutory provision which compels parents to

suffer because of the acts of residence and his son or daughter in law. A

woman has her rights of maintenance against her husband or sons/daughters.

She can assert her rights, if any, against the property of her husband, but she

cannot thrust herself against the parents of her husband, nor can claim a right

to live in the house of parents of her husband, against their consult and

wishes.

10. I therefore consider that the order passed by the learned Senior Civil

Jude granting injunction does not suffer from any illegality and the petition

is hereby dismissed.

SHIV NARAYAN DHINGRA J.

Ajay Sethi
Advocate, Mumbai
94402 Answers
7468 Consultations

5.0 on 5.0

Lodge a police complaint against her and inform the police that she's threatening you all for filing 498 a case. You may also file for mental harassment case against her.

Regds,

Adv. Payal

Payal Arora
Advocate, Pune
379 Answers
18 Consultations

4.5 on 5.0

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