• NRI 498a and 406

Hello there, team.
First and foremost, thank you in advance for assisting everyone else who has been in a similar situation.
So here's the deal.
In 2017, I moved to Canada, and in 2018, I married in India. I married and brought her to Canada on PR. I am not yet a Canadian citizen, but I am a permanent resident.
However, in 2019, she fled the house while I was away, taking all of my gold, cash, and other assets with her.
Long story short, she filed a case in Canada, and the court rejected all of the complaints and ordered a mutual divorce in Canada. Divorce was granted, but she was also duplicating the same thing happened in India. Despite this, she never returned to India after her marriage. Her current residency status is also in Canada. She filed a case online through the National Commission for Women in New Delhi. Her family encouraged her to pursue her goals.
I have been open and honest with the Indian police, sending them all of the reports from Canada stating that nothing happened here and that the divorce has been granted. In any case, they still filed a FIR against me. According to them, the National Women Commission is pressuring them to file a FIR.
I only lived with her in India for a month before returning to Canada, and she only lived with my family for 6 months before moving to Canada.
What are your options now?
 I am from Delhi, and she was living in Calcutta with her family before marriage, despite the fact that her family home is in Punjab, and I have never visited or married in Punjab. The wedding took place in Delhi.
I'm still baffled as to how the police could file a FIR in this case.
The lawyer we hired keeps telling us that this is a non-issue and that he has filed a quashing motion, but I'm not convinced. In India, the police continue to harass my family. Is there any way to finish this? I am extremely upset about the harassment my 70-year-old mother is subjected to. Please give me clear advice because I have several lawyers.I'd like to know what the actual law says, assuming that there is one in India.
Your responses will be greatly appreciated.
Asked 3 years ago in Family Law
Religion: Hindu

2 answers received in 1 hour.

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11 Answers

The police in India will not entertain any explanation that you may give them. instead they will proceed in the manner prescribed by law,  that is assuming everything is true whatever stated in the complaint. They cannot think beyond that for the reason that they do not want to go against the influential people or for some other reason. 

However based on the contents of your post it is evident that this case can be properly challenged and get it dismissed provided your advocate fights it properly and strongly. 

Law is equal to all but it depends upon the advocacy.

You be in constant touch with your advocate. 

T Kalaiselvan
Advocate, Vellore
89978 Answers
2492 Consultations

Dear Client,

On what basis was the case filed? What were the allegations?

If the allegations are absurd and do not have any valid ground you don't need to worry the FIR can be quashed. But if the allegations are serious then to protect yourself and your family members you can apply for anticipatory bail.

Anik Miu
Advocate, Bangalore
11014 Answers
125 Consultations

The case filed in India may not be under the provisions of DVAct, may be it is a criminal complaint through police. 

In any case,  since you have the records of her similar false case in Canada,  you can use them as documentary evidence to nullify her allegations and get the case dismissed. 

T Kalaiselvan
Advocate, Vellore
89978 Answers
2492 Consultations

You need to contest her false case filed in India against you and ger it quashed on merits from high court

Prashant Nayak
Advocate, Mumbai
34514 Answers
249 Consultations

If nothing like that happened and she doesn't have any evidence to substantiate her allegations even court can't help her. Being a senior citizen your mother can file petition before the appropriate court of law and also file petition against daughter-in-law in Domestic violence Act .

Anik Miu
Advocate, Bangalore
11014 Answers
125 Consultations

On complaint by wife police would lodge an FIR 

 

2) notice would be issued to you to record your statement 

 

3) if upon investigations police find that there is no evidence against you police can file closure report 

 

4) if prima facie case is made out then charge sheet would be filed 

 

5) quashing is to be done only in exceptional circumstances 

Ajay Sethi
Advocate, Mumbai
99776 Answers
8145 Consultations

 

You can file petition for quashing of FIR 

 

2) rely upon settlement arrived at with wife in Canada 

Ajay Sethi
Advocate, Mumbai
99776 Answers
8145 Consultations

  1. SC has issued guidelines with regard to 498A in Rajesh Sharma’s case not to harass old parents of husband particularly when they are not residing in matrimonial home. Though she stayed with parents for six months, she did not file any cases against them in India. You can seek a direction from High Court not to harass parents unless there is a complaint filed against them and on the  basis of such complaint  a FIR is registered and if any FIR is registered, you can seek quash of FIR from High Court relaying guidelines issued by SC.
  2. Divorce obtained in Canada is valid only if it is…
  3. Contested divorce
  4. Divorce obtained on merit of case.
  5. Decree of divorce is not based on law not recognized in India .
  6. As Court in Canada has no power to grant under Hindu Marriage, it is difficult to enforce such divorce in India .
  7. Any citizen residing abroad is liable in India for an offence committed under Indian Penal Code. Therefore, criminal cases filed by her are cognizable here.
  8. Submit a petition in High Court seeking quash of FIR against you and if quash is rejected, seek anticipatory bail as secondary relief. FIR may be quashed but you will certainly get AB avoiding possibility of notification of LOC.

You need to fight criminal complaints filed by her on merit. Dismissal of her complaints in Canada is not binding on Indian Court but it will certainly weaken here cases.

Ravi Shinde
Advocate, Hyderabad
5126 Answers
42 Consultations

1. What case she has filed in Delhi?  Is it a DV case or a complaint u/s498a of IPC? 

 

2. If DV case then you shall have to contest it fittingly. If it is a FIR u/s498a of IPC, then all the accused shall have to avail anticipatory bail or production bail (if production bail is allowed in Delhi unlike Jharkhand and Bihar). and then contest the case on merit,

 

3. If it is a 498a case, there will be an order for reconciliation as per huidel ines of the Supreme Court and your advocate shall have to apply for  providing you the facility for online proceeding.

 

4. Your parents can file an application praying for waiving their attendance on account of old age and ailment.

 

 

Krishna Kishore Ganguly
Advocate, Kolkata
27703 Answers
726 Consultations

1. In DV case, there will be no FIR to be registered by Police.  Make sure it is not against a complaint lodged by your wife u/s498a of IPC alleging dowry harassment.

 

2. There will be no arrest in DV case but in case there has been a FIR registered, then the accused persons shall have to avail anticipatory bail as suggested in my earlier post.

Krishna Kishore Ganguly
Advocate, Kolkata
27703 Answers
726 Consultations

- As per Supreme Court judgment, wife is expected to move in with the relatives of their husbands, follow the rules and customs of their home, and ideally, blend in seamlessly as a new daughter. 

- Further, the court granted divorce to a man on the grounds of “cruelty” after his wife refused to share a home with her in-laws.

- Further, If wife is not supporting her husband for the enjoyment of life and denying relation, then the husband can get divorce after filing a divorce petition before the court on this ground.

- Further , if both the parties have given their joint statement before the court for mutual divorce in Canadian Court, then only the said decree of divorce is valid in INDIA. 

- Further, if she has not passed her life with you mother and other family members , then they cannot be implicated in the 498A FIR or in any other offence. 

- Further, your mother being a woman can file a compliant before the court under the provision of DV Act , against the harassments of her daughter-in-law. 

- Further, if she files a compliant before the police or any other authority , then you can participate in the investigation and also submit your reply accordingly , so that no FIR can be lodged against you . 

Mohammed Shahzad
Advocate, Delhi
15814 Answers
242 Consultations

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