• Issues faced in serving notice to husband since he is not traceable

I've been married for  2 years now, currently pregnant. My husband on coming to know that iam pregnant, beated me up to get the abortion done. Upon refusing to do so, he left the house for few days, when I started enquiring from his office and other frens, came to know of his parents place in same city( I was aware that his parents live n remote area in south). I reached there and came to know that my husband is married to someone else also. I've filed a police complaint under 494, 498a and 506. 

Police is not helping much saying we can only investigate if your husband is traceable. After few days it was found that my husband has left for australua with his first wife. A dv case has also been filed, and now its stagnating that no notice has been served to husband since he is not traceable. Police has issued a look out notice though. 

Please advise what to do. I don't even have his Australian address to get the notice served there.
Asked 1 year ago in Criminal Law from Mumbai, Maharashtra
Religion: Hindu
1. Police complaint under 494 is not made out. The legal recourse adopted by you is flawed. The look out notice issued against him can be quashed by the HC on his petition if police has set in motion the process of his prosecution under 494.

2. You should launch his prosecution for bigamy directly in the court by filing the criminal case. If the court decides to summon him he can be summoned through Indian High Commission in Australia. 
Ashish Davessar
Advocate, Jaipur
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448 Consultations
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1. Try to get the case started on the basis of Indian address.
2. Get a red corned notice issued by the court and served it through MEA to Indian Consulate in Australia.
Devajyoti Barman
Advocate, Kolkata
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54 Consultations
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Are you the second wife?(it was found that my husband has left for australua with his first wife. )

Second marriage, during the subsistence of the first marriage, is illegal in India and the relationship arising from the same does not have any validity.S 17 of the Hindu Marriage Act makes a second marriage void. If so file a case against for cheating  under section 415 of IPC in case the person hides the fact of first marriage, other wise file bigamy .Under Section 17 of the Hindu Marriage Act, bigamy is punishable u/s 494 & 495 of the Indian Penal Code. Section 494 prescribes for imprisonment, which may extend to 7 years and fine. So a complaint be lodged against the husband with the police.The offence of bigamy is made out only when the second marriage is rendered void by reason of its taking place during the life of the first wife or husband. It has no application to cases where a second marriage is permitted under the personal laws governing the parties.


The notice can served through Indian embassy in Australia .
Ajay N S
Advocate, Ernakulam
1915 Answers
19 Consultations
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If you dont have his Australian address, you may try to obtain it through his office where he was working earlier. It is for certain that his parents will be in touch with him through phone contacts, you may pressurise the police to enquire them and get his phone number.  If the police has already issued look out notice, what else do you think the local police can do about it?
You cannot say that the police is not helping you because they have done their duty to trace him, but when he flew to some other country, the police with limited resources or access cannot go beyond certain stage on such complaints.  Then it becomes your duty to trace him out either by producing his passport number and writing to Indian Embassy directly or through court to serve summons to him. 
T Kalaiselvan
Advocate, Vellore
14008 Answers
127 Consultations
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1 what can be the next course of action from my end.
Dont give up the DV case in between.  You may file an application for residential rights in his parents house claiming it to be your matrimonial house and you can barge into the house, if need be, you can take the help of local police to protect you from possible assaults by your in-laws side.


2. legsllyCan I use my husband name on my child birth certificate, which I'm about to deliver in few days, since my marriage is bigamous now.
The marriage only is bigamus but your children are not illegitimate. They are entitled to be named after their biological father.  You have to register the child's biological father's name only.



3. If I take my case back will it amount to defamation case against me although I have all proofs backing my statements and claims.
No defamation case can be filed on this, but why do you want to withdraw, let the case go on. Dont lose your rights by withdrawing the case.


It is just that husband has ran away to live a nice life and both the kids are my responsibility and somewhere I'm feeling that. M losing my time and money on case where I don't see anything happening
It does not means that you have lost everything, you fight the case and get an exparte decree which may help you anytime  in future.
T Kalaiselvan
Advocate, Vellore
14008 Answers
127 Consultations
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1. The HC can and should be moved to bring the chargesheet on record. Unless the chargesheet comes on record the case will not proceed to the stage of determination of guilt or innocence.

2. You are liberty to use your hubby's name as your child's father. 

3. If you withdraw the case it will be a declaration of your malice. 
Ashish Davessar
Advocate, Jaipur
18102 Answers
448 Consultations
5.0 on 5.0

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