• Can I get anticipatory bail even before my wife files any case under 498A

I have caught my wife having an affair.. Now I want to divorce her..She also wants divorce me..

At first we both wanted Mutual divorce.. Now she is threatening me for Contested divorce & threatening me to give a police case like 498A .. 

She is telling me I am doing mental cruelty to her for the last few months as I am accusing her continuously about the affair.. She sometimes denying about the affair also..
But I have the proof of whatapp message between us where she admitted twice that she was having an affair..

Still she is threatening me with 498A as I questioned her about her character, how she could do this affair.. But I have not done any physical assult, I have not used any slang... Only I have done Mental cruelty as she is saying this.. I don't know this is mental cruelty or not..

But she has not filed any case till now.. Can I take anticipatory bail before she files any case under sec 498/A? Or I can only take anticipatory bail only after filling any case against me..? Which one is correct?
Asked 2 months ago in Family Law
Religion: Hindu

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10 Answers

Before FIR is registered you can not apply for anticipatory bail. 

So wait till it is done.

To avoid facing such prosecution it is advisable to go for mutual divorce at the earliest. 

Devajyoti Barman
Advocate, Kolkata
22817 Answers
488 Consultations

5.0 on 5.0

You can apply for anticipatory bail only after FIR is filed 

 

file for divorce on grounds of mental cruelty and adultery 

 

make her lover co respondent in divorce case 

Ajay Sethi
Advocate, Mumbai
94702 Answers
7528 Consultations

5.0 on 5.0

You cannot file any application for anticipatory bail when there is no complaint lodged by her yet.

If you file one, then  no doubt your application will be dismissed but the repercussion will be that  on coming to know about the application you moved for AB, on being provoked, she may really lodge a criminal complaint agaisnt you in this regard.

please remember that your allegations against her is agaisnt her illicit affairs or adultery, but her complaint against you would be on the grounds of cruelty.  The former is not a criminal offence but the latter is.

In the given situation, it would be better to patch up the differences and proceed with the original proposal for mutual consent divorce without putting constant pressure on her to take any adverse action against you. 

T Kalaiselvan
Advocate, Vellore
84896 Answers
2192 Consultations

5.0 on 5.0

The contents what you have mentioned here that you have uttered against her that too constantly amounts to mental cruelty.

You have no rights to insult her that too in this manner.

She is also a human being hence how long you think that she can withstand the insults that you are throwing against her.

Your wordings to her would cause hurt feelings or deep resentment,"

It may be considered as an act of deliberate humiliation, hurt pride, or shame. 

If the same situation continues then she will pushed by you to take decisions against you to wreak vengeance agaisnt you utilising the women favoring laws  which would bring great harm and disaster to you as well as your future.

If you do not want to continue the married life with her anymore, you may better look for the ways to part with her permanently and adopt legal process to get separated in the legally valid manner.

Take a wise and proper decision before it is too late

T Kalaiselvan
Advocate, Vellore
84896 Answers
2192 Consultations

5.0 on 5.0

Only if you are been called by police before filing complaint. You need to show the court that you have apprehension of arrest then they will grant ABA

Prashant Nayak
Advocate, Mumbai
31935 Answers
179 Consultations

4.1 on 5.0

Your wufe has admitted of her affair 

 

what’s app messages are admissible on evidence 

 

it does not amount to mental cruelty 

Ajay Sethi
Advocate, Mumbai
94702 Answers
7528 Consultations

5.0 on 5.0

Hello - My Friend - The Harsh Reality is that WOMEN are EMPOWERED to an EXTENT that women empowerment is a TOOL to HARASS MEN legally. 

 

In your matter 

 

A. NEED NOT TO FILE ANTICIPATORY BAIL - DONOT FALL into LEGAL trap laid by your wife and may be some legal counsel you engage. There is no need for Anticipatory Bail in 498 A unless FIR is registered and Chargesheet is filed. There are catena of judgements around this. SO dont fall in trap of being told that Anticipatory bail is compulsory (This does not mean that you cannot apply - you can apply you can get BUT NO NEED).

 

B. Whats app message are secondary evidence and are accepted only with certificate u/s 65B of evidence act and also keep the original source intact - get an order from court under section 91 to get whatsapp archives of phone number of you wife from the service provider believe META own whatsapp. 

 

File divorce on the ground of adultery and hence cruelty against your wife along with available documents, anything she file after the divorce case filed by you will be considered Retaliation. 

 

 

Best of Luck 

 

 

 

 

 

 

 

Atulay Nehra
Advocate, Noida
1308 Answers
58 Consultations

5.0 on 5.0

In 498 A , proof of guilt is very difficult to establish. 

Devajyoti Barman
Advocate, Kolkata
22817 Answers
488 Consultations

5.0 on 5.0

1. Anticipatory Bail cannot be filed unless a complaint is lodged.

2.As both of you want to divorce, it is always advisable to go for a mutual consent divorce as the legal complications are less.

3. You can also file for divorce on ground of adultery and add the other person as Respondent No.2. If the adultery is proven in court, the court may grant for divorce.  

  

Ayantika Mondal
Advocate, Bangalore
27 Answers
9 Consultations

4.0 on 5.0

- Since, no complaint /Case is filed by her , then the anticipatory bail will not granted in anticipation , however for your safety you can lodge a complaint as information to the police against her after giving her extra marital affairs and threatening for implicating in false cases. 

- Further, extra marital affairs is a ground for divorce , and hence as you have said proofs then you can submit the same before the court. 

- Further, as per Section 125 (4), CrPC , No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

Mohammed Shahzad
Advocate, Delhi
13211 Answers
198 Consultations

5.0 on 5.0

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