• Wife has filed 498a/406/38

My wife has yesterday lodged case of ipc 498a/406/38 against me, my mother, father, and my sister.
Since marriage, we have been staying with me in Delhi and Pune and has never stayed with my parents. My mother is a school teacher and my father is a retired senior citizen with 80% disabled due to vision loss.
My sister is married and settled in her own family.

My wife had left our Pune residence with our 17 months old son on 23rd September and since then she has been staying at her parent's place.
I called, messaged her several times to come back and give a normal life to our son. 
I also came to kolkata in oct. to bring her back but she refused.
I have again come to Kolkata this time to being my family back. 
In this situation, please give me legal advice on the following:
I am in Kolkata on vacation leave for two weeks. Will I be arrested and not allowed to go back to Pune?
Do we need to apply for anticipatory bail? If yes, how?
As my wife has never stayed with my parents, is the case legally valid on them?
My sister stays separate in her family. Will she be arrested?
I request urgent genuine advice.
Asked 12 months ago in Criminal Law from Kolkata, West Bengal
Religion: Muslim
Since your wife has lodged a complaint with the local police making out the sections what yo have referred, the police on receipt of complaint shall not make any arrest directly, they are required to summon you people, make inquiry properly and if need be they may register a fir and may arrest only you or others based on the extent of the grease that has been palmed.
In the given situation, since she has already approached police, you instead of attending police station for inquiry, dodge the summons by police and simultaneously apply for AB for all those who have been listed by her in her complaint.
The involvement of others in this offence can be decided only  by court and not by police hence all are to be enlarged on bail first. 
The merits of the case can be challenged in the trial court at a later stage. 
T Kalaiselvan
Advocate, Vellore
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You should apply for anticipatory bail for yourself and your family members who have been named, failing which you may be arrested at anytime. Engage a lawyer immediately and get going. The validity of the case can be called in question in court by you subsequently. At this stage emphasize on bail.
Ashish Davessar
Advocate, Jaipur
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Police have no rights to barge into your house and seize her wardrobe without any permission or authority or a court order. 
If she has filed a complaint under section 406 along with other sections of IPC, if you want to avoid conflict in this regard, you may prepare a list of articles held in your house and hand it over to her through police, you can allow her to take them back at a time stipulated.
It is not necessary that you should accept all the items mentioned in her list, you can list out the items only those which are physically available.
T Kalaiselvan
Advocate, Vellore
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The list is to be sent to the police station. Police has the authority to conduct the search to recover her valuables. 
Ashish Davessar
Advocate, Jaipur
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1.She is certainly under legal guidance. For filing complaint u/s498A, the appropriate police station will be where the cause of action arose and in your case it should have been either Pune or Delhi where she did not lodge any police station. Since you have come to Calcutta and visited her since, she got an opportunity to lodge a false complaint that (expectedly) you have tortured her at Calcutta. You have under accessed the situation. However, as per last Supreme Court Order, there will be no police arrest without conducting investigation,

2. Apply for and avail Anticipatory Bail immediately,

3. Your wife never stayed with parents is a fact which you shall have to prove before the Court with evidence for which you shall  have to contest the case,

4. No body will be arrested without an investigation to be conducted by he Police as per the Supreme Court Order. 498A complaint has lost its teeth now.
Krishna Kishore Ganguly
Advocate, Kolkata
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1. Send a letter to her asking her to collect all her Streedhan she has left at your house giving a list of the said articles,

2. Actually, she is supposed to collect the same being accompanied by police from your residence,

3. Your offering to hand over the same to your wife voluntarily will be an evidence that she has lodged a false complaint against you stating that you have illegally refused her to take the same while leaving your house.
Krishna Kishore Ganguly
Advocate, Kolkata
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231 Consultations
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Whatever you have stated now is a matter of trial.  Nobody will listen to your narrations or statements now, the police will be bent upon to register the FIR and send the charge sheet to the court for the headache of the public prosecutor to handle the case further.  Hence you should not strain now itself, your lawyer can handle the case during trial and you can cooperate fully with him by providing him the complete information about all those that have taken place between you and your wife during the conflicts.  
The evidences what you say to be in the form of their relatives statements recorded in phone may not be useful to you however you can extract the same from their mouth during witness examination.
If you want to meet your son, you can file a child custody case and seek visitation rights as an interim relief. 
T Kalaiselvan
Advocate, Vellore
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1. First advice is to take things calmly and try to have adequate sleep. Otherwise it will further jeopardise your mental state,

2. Send the latter by speed post or Registered post and collect postal delivery track report from the internet,

3. Do not be  emotional and address the problems/allegations with head and not with heart,

4. You have fare chance of coming out of the adverse situation since she will not be able to prove any thing in support of her allegation/complaint,

5. It is a strange advise on you suggesting you not to meet your own son. I find no bases for this act. If she wants to involve you, she can do it even if you stop meeting your son. 
Krishna Kishore Ganguly
Advocate, Kolkata
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The conversation is a clinching proof which must be produced in the court, but at this stage emphasis should be on getting AB to escape arrest. Your lawyer is right as it will not be wise on your part to meet your son unless there is a court order to this effect.
Ashish Davessar
Advocate, Jaipur
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Your lawyer has suggested the right steps.
You may file a judicial separation case or even divorce case itself. 
You can agree before police to allow her to take all her articles kept in her wardrobe under supervision.
The police have no right to enter your house to take or seize her items from your house. 
They can help her to take her items by herself by giving her protection if she makes a request with the police for that.
The bail and the criminal cases has no relationship with child custody case.
T Kalaiselvan
Advocate, Vellore
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Yes you are at liberty to file for divorce. Police has the authority to conduct search and seize the stridhan of the complainant. It is true that the return of articles makes it smoother to get bail. Child custody should also be filed after bail if you want the custody to be given to you.
Ashish Davessar
Advocate, Jaipur
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448 Consultations
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Should I file for divorce immediately? If yes, should I do it from Kolkata or Pune? Will it aggrevate the 498a case on me? If yes, then how will it aggrevate? What should I do?
You can file divorce case from Pune itself because that was the last place you both resided together.  The divorce case will not have any impact on the 498a case, that will be conducted on the basis of the complaint already given and the new facts cannot be included in it at this stage, hence there is no reason to be afraid about the 498a case getting aggravated due to this divorce case.  If she is stubborn and adamant and if you dont have any option to save your marriage, you may file divorce case on the grounds of cruelty.




Should I go for judicial divorce or talaq? Which will be better and help me in getting joint custody of my child later? 
Judicial divorce will be in the form of a suit and for talaq you need not approach court.  The current situation is that the talaq cannot be given on mere and vague grounds, you will be required to substantiate the reasons for pronouncing talaq or else it may be held invalid, as per the latest supreme court judgement on it.  
Filing for child custody and divorce by talaq or through court will not have any impact on each other, that is a different subject and this will be dealt with separately.  Please be informed about the provisions of law for custody of child under Muslim personal law which is reproduced below:
The first and foremost right to have the custody of children belongs to the mother and she cannot be deprived of her right so long as she is not found guilty of misconduct. Mother has the right of custody so long as she is not disqualified. This right is known as right of hizanat and it can be enforced against the father or any other person. The mother's right of hizanat was solely recognized in the interest of the children and in no sense it is an absolute right''.  It is an established rule that mother's right of hizanat over her son terminates on the latter's completing the age of 7 years and for daughters  the mother is entitled to the custody of her daughters till the age of puberty.
Therefore in your child custody case, you may get the relief of just visitation rights alone, however you can file a custody case, but remember that such cases can be filed in the place only where the child is currently residing. 




If I do it from Pune, will my wife be able to transfer it to Kolkata?
For divorce by pronouncing talaq, it can be done from any place and should be communicated to her properly. 
T Kalaiselvan
Advocate, Vellore
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127 Consultations
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1. Whether you will file a divorce petition or not will solely depend on your decision whether to stay in matrimonial relationship with your wife or not. Your current problem is filing of 498A & 406  complaint by your wife and your child visitation right,

2. Have you taken acknowledgement of your handing over the list to the police? The police is expected to visit your place to take possession of the Streedhan of your wife lying with you. Do not forget to collect signature and rubber stamp of the IO who will collect those items from you. The police may play trick by putting illegible signature stating that he has forgotten the stamp. take video recording of visit and collection,

3. Returning Streedhan as per allegation filed u/s406 of IPC is important to get AB against 498A case,

4. After that file an application for your child visitation right praying for a direction upon your wife to bring your child to the nearest park (or police station if you want to play safe) at your desired frequency for a specified period of time.
Krishna Kishore Ganguly
Advocate, Kolkata
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231 Consultations
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1.You should file the divorce petition at Kolkata since if you file it at Pune, she will certainly file an application before the Supreme Court praying for transfer of the said case to Kolkata and her such prayer will be granted by the Supreme Court since she is a lady. In this process your valuable time will be lost and you shall have to contest the case at Kolkata. Your filing the divorce case will in no way affect the 498A case filed against you,

2.You can go for talaq also strictly following the procedure laid down in Shariat getting and sending the Quazinama for the Talaq.You will not get the custody of your child now since he is a minor. He will be in her custody till he is 7 years old as per Islamic law. If you file the Divorce case at Pune, it will get transferred to Kolkata for reason narrated above.
Krishna Kishore Ganguly
Advocate, Kolkata
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231 Consultations
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You can proceed with getting anticipatory bail for all the accused persons including yourself.
The given situations and the grounds for pleading bail will be sufficient to get enlarged on bail. 
You may even be obliged to comply with the conditions that may be imposed for grant of bail.
T Kalaiselvan
Advocate, Vellore
14010 Answers
127 Consultations
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1. Your steps so far is correct,

2. However, do not ever trust the OC or IC or even the DCP. They do change without giving any notice. You should strictly follow the legal provision. The DCP's instruction to the OC not to arrest is an eyewash since as per last Supreme Court order, police can not arrest anybody against 498A complaint without conducting an investigation about the complaint,

3. Avail AB first for all of you and contest the case fittingly,

4. When did I tell you "giving talaq will create problem in getting custody"? What was the context? I am repeatedly informing you that you will not get the custody of your son now since he is a minor. The question of joint custody of your son does not arise at all since your wife is not staying with you jointly. "Wife will be the natural guardian of a minor child for his welfare" is the well settled proposition of law. 
Krishna Kishore Ganguly
Advocate, Kolkata
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231 Consultations
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You people want everything in black and white on these forums which is not possible as unlike your lawyer we do not have the privilege of perusing all the documents related to your case. Be that as it may, you have seemingly done all that you should have done. Talaq has no nexus with child custody as a claim for child custody is substantive and is to te tried substantively by the court.
Ashish Davessar
Advocate, Jaipur
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448 Consultations
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1. After the grant of AB you have to defend yourself on merits in the court to prove your innocence. You are free to file for divorce which will be adjudicated by the court irrespective of the case which has been filed against you. Divorce and 498A are two substantive proceedings. In divorce case the presence of your lawyer alone in the court will suffice regardless of whether you file it in Pune or she gets it transferred to her place. 

2. The pendency of criminal case against you does not affect your claim to child custody. This is settled law now.

3. You can launch your wife's prosecution for defamation after you have been held not guilty by the court. To publish the FIR on social network sites and invite public opinion thereon will not only make you liable to be prosecuted for defamation but also for contempt of court. 

4. Your strategy should be built by your lawyer and not any of us here on this portal.
Ashish Davessar
Advocate, Jaipur
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448 Consultations
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I read somewhere that filing for divorce sometimes jeopardizes the 498a. Is it true? WIll it instigate her to file additional cases against me? Pls advise.
If you have decided to file divorce you can do it in Pune itself, dont conclude that she will try to get it transferred to her place. If she does it, you can challenge it in supreme court.
She has already filed criminal complaint against you, she has got nothing more to torture you.  If she does it ,it may be considered as double jeopardy which will benefit you, so just dont worry about it so soon. 




 I would like to now engage the best 'child custody' lawyer in kolkata to get at least 'joint custody' of my now 20 months old son. Will these criminal charges be held against me in matter of child custody and visitation rights? Pls. suggest me the best lawyer for this. Also, I would like to meet my son as much as possible at a nearby place (not at my wife's place).
In the child custody case you can file an application for visitation rights of your child as an interim relief, in that you can mention the common place where you intend to meet your child and the timing as well as the time to be allotted for meeting your child. 



 - Also, is there any counter cases I can start against my wife/her family? Please advise. 
On what grievance you think you can book counter cases on her, if you have any ground to support your thoughts, you can very well call on the nearest police station and lodge a complaint against her. 



- I have got an informal copy of the FIR which is utter rubbish with not an iota of truth. Is it okay if I publish the FIR copy on social network sites and build public opinion and witnesses? Will be it held against me
Please do not venture into such gimmicks.  It will become fatal to your defence and may go against you.  All those false content can be challenged during trial, so wait until then.
T Kalaiselvan
Advocate, Vellore
14010 Answers
127 Consultations
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1. Congratulations for being able to avail AB,

2. You can now file a divorce suit or pronounce tripple talaq duly following Sharia as suggested in my earlier post,

3. Each case is unique and the orders passed by Judges including Supreme Court Judges vary from case to case depending on the ground reality as felt by the Judges. It is common that cases filed against wife in some other state is directed to be shifted to the state of the wife on the bground that she is weaker both financially and physically and it may be difficult for her to travel alone to and stay at your City to attend the case filed by you which is concerned with her future life,

4. Since you two live separately miles apart, the question of joint custody is absurd and as per Muslim law, children up to 7 years of age will be in custody of his/her mother,

5. Do not post anything in the social network which may throw derogatory light on her since it may not only  jeopardise your running case but also allow her to file a defamation suit against you and get advantage in all future case to be filed by either you or her in connection with your relationship.  
    
Krishna Kishore Ganguly
Advocate, Kolkata
12112 Answers
231 Consultations
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1. This is not any bias against husband. The fact of the matter is that your wife has the custody of the child at this moment, so if you address msgs to her then it can be interpreted as an attempt to influence. This would also be true for your wife if the custody was with you and she was an accused in a criminal case.

2. The pendency of the court does not operate as a bar to reconciliation. On the next hearing both the parties can jointly apply to refer the matter to mediation cell. 

3. You are free to file a case for child custody. The delay in filing the case is most likely to reduce the vigour of your claim. Child custody has no nexus with 498A or divorce, it is a substantive claim which will be adjudicated on merits by the court.

4. Heed the advise of your lawyer.
Ashish Davessar
Advocate, Jaipur
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448 Consultations
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In my opinion, you may go by your own lawyer's opinion.  Her lawyer may look for reconciliation with real intent or trying to misguide her with carefully worded replies with an intention to scare and frighten you further so that you budge to the pressures put across the negotiation table.  Her lawyer cannot dictate terms on you, however you may analyse the situation and act judiciously because you are the actual sufferer/victim, she may be capitalising the sentimental weakness towards your child.
T Kalaiselvan
Advocate, Vellore
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127 Consultations
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1. Why do you want to communicate? Go and file a case for child custody if this is what you want. Your lawyer is right in advising you with what he has advised.

2. The grandparents have no right to seek custody during your lifetime. A POA to authorize them to claim custody will not be the foundation of any legal rights. 

3. The frequency will be decided by the court. If the frequency is set low by the court then you can challenge the order in the higher court which can increase it 100 times. 

4. The law is in consonance with the existing scenarios. The courts can award joint custody and visitation rights with a good frequency. The frequency depends on the peculiar facts and circumstances of the case. What may be the frequency in one case cannot be the frequency in other. You have not filed the case but are drawing presumptions, which will only perpetuate status quo. 
Ashish Davessar
Advocate, Jaipur
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Is there any legal way to communicate with her without being liable to the offence of trying to influence the witness/alleged victim? Is my lawyer right on advising me that I can message my son without addressing my wife?
This is another good strategy and design advised by your lawyer, you may try to do it.There is nothing wrong in doing such non-committal acts.


 Is it possible that my parents (my son's grandparents) file for the visitation rights as well? 
Your parents are not entitled for any such rights.



Is it possible for me to give them any 'power of attorney' to inquire about my child's well-being in my absence? 
Being grandparents they may do it on their own by visiting her house, but it should not create any problem to the present situation.



Even if I file for custody case and the court gives me visitation/custody rights, what is the usual frequency? If I get one a week visitation, I may not be able to utilize that at this moment as it will be difficult to go to Kolkata every week. In that case, will my parents be able to visit my son in my absence?
Visitation rights is for the parent and not for the grandparent during the parent's life time.If you are not able to avail the opportunity, you may have to lose the chance.  Please be aware that the visitation is for satisfying your feelings and it cannot be satisfied of somebody is utilising the opportunity 



Otherwise, how is it possible for me to be happy with just meeting him once and then again come back? In that case, can the court direct her to send me a photo of my son everyday on Whatsapp? 
You make a request to court, let it decide about it.



T Kalaiselvan
Advocate, Vellore
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Now, coming to the main point, now that I need to return ithe streedhan, what is the procedure to give the streedhan articles back? Is it better that the police come and seize them? What is the precaution I should take? Shall I videotape the seizure process? Will my wife accompany them? If she comes, she might create a big mess. Pls. Advise.
If the police wants to take the items from your house, ask them to inform your wife to accompany them, let she take all those items in the presence of police, one can make out a list of all those items being taken away by her and ask her to sign the paper containing the list before leaving and without fail ask the accompanying police to sign the paper as a witness.  She will not create any problem in the presence of police, and you may ask somebody to to video of the incidences if at all she is creating a problem despite the police presence. 





Now, what should I do next? Is there any precaution 
I should take? Can you make out anything from her motif? I can only take her back if she gives in writing that it was a false case and she will not lodge any such false case in future. Is there any legal option for that? Please advise.
Since your matter is already in the court, it is better you wind up all your such extracurricular activities so that you dont complicate or mess up the whole issue. For the preset silence or patience would be best solution. 
T Kalaiselvan
Advocate, Vellore
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127 Consultations
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Let the police come and recover them. You are at liberty to video record the process. Your wife is also free to accompany the police. Your lawyer sounds right, heed him. Nobody can speak about her motive, if any.
Ashish Davessar
Advocate, Jaipur
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448 Consultations
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1. What was the earthly idea for sending whatsapp messages to your wife's account addressing your 1.10 years old son? What did you try to achieve out of it when court cases are going on against you?

2. She have rightly picked your said act as a signal for reconciliation,

3. It will be difficult for you to convince the judge the reason for sending a message to your 1.10 year old son in your wife's whatsapp account,

4. Please desist from taking such unreasonable steps.
Krishna Kishore Ganguly
Advocate, Kolkata
12112 Answers
231 Consultations
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1. I do not agree with the ideal of sending message to your son of 1.10 years in your wife's whatsapp account,

2. You and your parents can file a child visitation petition,

3. the frequency can be even once in a week,

4. You can file a petition for taking your son for a day or two when you will be at Kolkata and act as per direction of the Court.
Krishna Kishore Ganguly
Advocate, Kolkata
12112 Answers
231 Consultations
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1. The right procedure is that the Police will come to your house and collect/seize the Sreedhan of your wife found at your house,

2. You shall have to decide whether you want to reconcile and take your wife back or continue this legal fight,

3. Please keep in mind that divorce is the 2nd most stressful event in one's life,

4. If you decide to reconcile, talk to her directly and settle the dispute amicably. 
Krishna Kishore Ganguly
Advocate, Kolkata
12112 Answers
231 Consultations
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1. When she has filed the complaint which resulted in to registering the FIR by the police, it is she who shall have to withdraw her complaint. There is no scope for any joint petition for withdrawing her complaint. She might be trying to get one affidavit executed by both of you affirming that you also did some thing for which she lodged the said police complaint. She shall have to submit an affidavit to the police affirming that she had lodged the said complaint out of rage,

2. After that you can file the quash petition submitting her said Affidavit before the High Court wherein she also should support you in giving same statement as affirmed by her in her affidavit, if asked by the court.
Krishna Kishore Ganguly
Advocate, Kolkata
12112 Answers
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What are the 'legal' pros and cons of jointly filing the affidavit? Will it prove that I indirectly accept the allegations?

In the quash petition filed before the high court under section 482 cr.p.c.,the respondent i.e., the wife who is a defacto complainant shall be served with a notice to express her objection, she can either after receiving the summons or even before that file an affidavit stating that she has no objection to quash the FIR  in view of the out of court compromise settlement held between both. The high court may on the basis of this affidavit shall quash the FIR.
Therefore there is no question of joint affidavit and hence there is pros and cons on it. 






Will it create any problem in future?

What type of problem do you expect on this when there is no case at all.




Will it be better if my wife alone files the affidavit to High Court? Or, can she give the affidavit to the P.S or Dy. Commissioner the before charge-sheet is filed? Will it be beneficial for me? What is the procedure?

She cannot do it even before you have filed a quash petition. 
For not pressing her complaint, she may give in writing to police who will refer the case to the court with a note and seek permission of court to pass an order to close the FIR as compromised. 







I came to know from a source that my wife has not attended any investigation summon till date and not cooperating in the investigation. She is also not going to my house to recover the 406 streedhan. When I asked this to that 'common friend', he said she wants to buy some time as she is willing for reconciliation.
I don't know how to interpret this as complying with 406 is important for my benefit in the case. In this situation, can I propose that either she takes her streedhan or withdraw the 406? If yes, how?

What is your botheration when she has not attended the investigation session or given a statement before police in connection with her complaint. As far as 406 IPC, it is an offence or not shall be decided by court alone, you cannot force her to take back all her items, let it be decided by court  In fact she cannot barge into your house to retrieve her items, it can be held as an illegal act, so let she go by the law.  
If she wants to reconcile the matter she has to initiate the process. 


T Kalaiselvan
Advocate, Vellore
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A joint affidavit does not create any future legal right unless the terminology therein is such that it contains admission. Your wife alone cannot move the HC through an affidavit for quashing. Get the proposed affidavit drafted by a lawyer, if at all you intend to go ahead with it, as it would be the charter of rights and liabilities.
Ashish Davessar
Advocate, Jaipur
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448 Consultations
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The IO can file a closure report on the basis of this application.
Ashish Davessar
Advocate, Jaipur
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1. the letter is alright but it is not enough to get you released from the charge since section 498A is not compoundable,

2. Develop rapport with the IO to ensure that he gives favourable report on receipt of the said affidavit affirmed by your wife based on which you get released from the 498A case,

3. Simultaneously you can file a quash petition now before the High Court based on the said affidavit and in such case the Court may ask your wife questions when she should also confirm that she had filed the complaint out of rage.
Krishna Kishore Ganguly
Advocate, Kolkata
12112 Answers
231 Consultations
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She is initiating the process for reconciliation and settling the issues amicably.  
The letter or affidavit given before police reveals no bad intention hence it can be relied upon.
Now since she has come down to this extent, you may have to decide about the next course of action to solve the problems without stretching it any further.
T Kalaiselvan
Advocate, Vellore
14010 Answers
127 Consultations
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The people around you will be telling thousand things and most of them will be misguidances only.
They will not be losers if their advises fail to fetch the desired results.
They will again blame you for the debacles saying that you did not follow the instructions properly.
What can you do when your wife resorts to her old nature of torturing you or again holds your son and emotionally blackmails you taking advantage the affection and weakness for your son? 
The written assurance is not an agreement enforceable by law even  if she violates or breaches her promise, so there is no validity for the written assurances. 
Moreover she can demand the same thing in writing from you that you will not indulge in such activities against her in the future, will be do that?
The said offences are continuous in nature, hence it cannot be said that she cannot lodge a similar case with the police at a later stage mentioning fresh incidences though her previous complaints were dismissed or withdrawn. 
Now the ball is in your court hence the decision to drop or aggravate the crisis shall depend on you.
First get out of the present crisis, create a circumstance conducive for a peaceful and happy married life, get them back by forgetting the past, do not allow her to think of the past by replaying anything resembling the past incidences.  
Tolerate and ignore minor and petty issues, at least considering your child's welfare and future.
You can adopt patience to a tolerable level, then see the changes.

T Kalaiselvan
Advocate, Vellore
14010 Answers
127 Consultations
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Look if you want to contest the case but do not want to turn up in the court then apply for exemption from personal appearance. Exemption may not be granted by the trial court but you can move the Sessions Court/High Court. If you want your son then apply for child custody.
Ashish Davessar
Advocate, Jaipur
18102 Answers
448 Consultations
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