• Domestic violence and dowry

I want to file a case against my wife for divorce. But Someone suggested me that if she will file a case of domestic violence and dowry then you and your family have to go to jail, because a non bailable warrant will be issued against me and my family. And i will be arrested within 24 hours and i will not have any chance to defend myself. I have some proofs against her. But is it really the case that for a husband to file a case against his wife will land him and his parents in jail. If so how i can prevent such actions?
Asked 2 years ago in Family Law from New, Delhi
Religion: Hindu
1) best option is to go for divorce by mutual consent . 

2) second option is to visit a family counsellor to save your marriage . 

3) if situation is beyond control then only file for contested divorce . 

4) your wife may as counter attack file DV case / 498A case against you and your family members 

5) in DV case you dont go to jail . even in 498A case the SC has laid down detailed guidelines to prevent harassment of husband and his family members  . only if prima facie case is made out would you be arrested . 

6)contact a local lawyer and based on his advice only take legal steps for filing divorce case 

6) you can also obtain Anticipatory bail if you so desire
Ajay Sethi
Advocate, Mumbai
23184 Answers
1218 Consultations
5.0 on 5.0
1) audio recordings are admissible in evidence . but it has to be proved that it is the voice of your father in law and no tampering has taken place in the recording 

2) you can also rely upon sms proofs . 

3) please note that more than 80%of 498A cases are false . 

4) you can fight  the case if any filed by your wife on merits
Ajay Sethi
Advocate, Mumbai
23184 Answers
1218 Consultations
5.0 on 5.0
1. The gentleman who suggested you that you will go to jail in the event that your better half files a DV or dowry case against you seems to be lacking, with all due deference,the practical legal experience of courts. Gone are the days when filing of a dowry case meant an instant and inevitable arrest of the husband and his family. Sufficient If she files a dowry case you can immediately apply for anticipatory bail, which once granted will obviate the possibility of your arrest. The courts are now more liberal than ever before in giving bail to the husband and his family members as the rampant misuse of anti-dowry laws is an open secret. 

2. If there are any legal ground to file for divorce then you can go ahead and file for divorce without being cowed down by such hearsay. Apply for bail in the event she files a case of dowry against you. The proofs that you have against her can be used against her in the court in the manner laid down under the law. It goes without saying that you will need a good lawyer to sail over smoothly.
Ashish Davessar
Advocate, Jaipur
18088 Answers
447 Consultations
5.0 on 5.0
Hi, even if your wife lodge a police complaint or petition under domestic violence act the police will not arrest you immediately  and supreme court has given guidelines for dealing in the matter under 498(a) and domestic violence act.........if you are not willing to continue the relationship with your wife then you can go for divorce, you need not bother about other proceedings...... Now police will not arrest you and your parents immediately and you have sufficient time to get anticipatory bail.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
Since you have all the proof in the world against her there is nothing you need to worry about. The recording wherein her father accepted that you never sought dowry from them is a conclusive evidence of your innocence. All these proofs can be submitted to the court if she files a false dowry case against you as they will have a repelling effect on her case. You are in a position where you can call the shots.
Ashish Davessar
Advocate, Jaipur
18088 Answers
447 Consultations
5.0 on 5.0
First you should try to file a Suit for Divorce on mutual consent,failing which you can file a Divorce Suit on contest.But your wife after getting the notice can file a case u/sec.498a IPC or a Maintenance Case then you can defend it.
Minansu Bhadra
Advocate, Kolkata
266 Answers
23 Consultations
4.8 on 5.0
as sugfilere going to gested rigtly you should not afraid of dowery case etc. but either yuo file MCD Or think on which grounds you are going to file divorce as you have to prove them in court for brief you may call
Avdhesh Chaudhary
Advocate, Greater Noida
565 Answers
20 Consultations
3.9 on 5.0
You can produce those recordings are proof in evidence.you can file a divorce case on the ground of cruelty.now according the recent decision the accused won't be arrested in such cases.only if magistrate passes orders you will be arrested
Jeshma Mohandas KP
Advocate, Kozhikode
567 Answers
1 Consultations
3.5 on 5.0
1. Those days are over when police used to arrest everybody of the family of the husband based on false complaints of wives,

2. Recently thge Apex Court has passed order against such act of blindly arresting the accused husband,

3. If you have collected evidence of her cruelty, file a divorce suit agsint him,

4. It will be better if you talk to her and go for mutual consent divorce which is fast and hassle free.
Krishna Kishore Ganguly
Advocate, Kolkata
12092 Answers
229 Consultations
5.0 on 5.0
Dear Querist
no need to worry for jail and cases, if it is your final decision then file a divorce before family court against your wife. the police can not registered FIR against you or your family without CAW Cell proceedings and if after failing the mediation the police got registered FIR against you and your family then the police can not arrest you or your family members directly.
Supreme Court of India decieded recently in the matter of Arnesh Kumar v/s State of Bihar, on 2nd of July
read below care fully
IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1277 OF 2014

(@SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013)

ARNESH KUMAR ..... APPELLANT

VERSUS

STATE OF BIHAR & ANR. .... RESPONDENTS

J U D G M E N T

Chandramauli Kr. Prasad

The petitioner apprehends his arrest in a case under Section 498-A of the Indian Penal Code, 1860 (hereinafter called as IPC) and Section 4 of the Dowry Prohibition Act, 1961. The maximum sentence provided under Section 498-A IPC is imprisonment for a term which may extend to three years and fine whereas the maximum sentence provided under Section 4 of the Dowry Prohibition Act is two years and with fine.

Petitioner happens to be the husband of respondent no.2 Sweta Kiran. The marriage between them was solemnized on 1st July, 2007. His attempt to secure anticipatory bail has failed and hence he has knocked the door of this Court by way of this Special Leave Petition.

Leave granted.

In sum and substance, allegation levelled by the wife against the appellant is that demand of Rupees eight lacs, a maruti car, an air-conditioner, television set etc. was made by her mother-in-law and father-in-law and when this fact was brought to the appellant’s notice, he supported his mother and threatened to marry another woman. It has been alleged that she was driven out of the matrimonial home due to non- fulfilment of the demand of dowry.

Denying these allegations, the appellant preferred an application for anticipatory bail which was earlier rejected by the learned Sessions Judge and thereafter by the High Court.

There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested. “Crime in India 2012 Statistics� published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for offence under Section 498-A of the IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt. The rate of charge-sheeting in cases under Section 498A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal.

Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police. There is a battle between the law makers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in the Cr.PC. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive.

Law Commissions, Police Commissions and this Court in a large number of judgments emphasized the need to maintain a balance between individual liberty and societal order while exercising the power of arrest. Police officers make arrest as they believe that they possess the power to do so. As the arrest curtails freedom, brings humiliation and casts scars forever, we feel differently. We believe that no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify the reasons thereof. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation. Despite this legal position, the Legislature did not find any improvement. Numbers of arrest have not decreased. Ultimately, the Parliament had to intervene and on the recommendation of the 177th Report of the Law Commission submitted in the year 2001, Section 41 of the Code of Criminal Procedure (for short ‘Cr.PC), in the present form came to be enacted. It is interesting to note that such a recommendation was made by the Law Commission in its 152nd and 154th Report submitted as back in the year 1994. The value of the proportionality permeates the amendment relating to arrest. As the offence with which we are concerned in the present appeal, provides for a maximum punishment of imprisonment which may extend to seven years and fine, Section 41(1)(b), Cr.PC which is relevant for the purpose reads as follows:

“41. When police may arrest without warrant.-(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person –

(a)x x x x x x

(b)against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely :-

(i) x x x x x

(ii) the police officer is satisfied that such arrest is necessary –

to prevent such person from committing any further offence; or

for proper investigation of the offence; or

to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or

to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or

as unless such person is arrested, his presence in the Court whenever required cannot be ensured,

and the police officer shall record while making such arrest, his reasons in writing:

Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.

X x x x x x

From a plain reading of the aforesaid provision, it is evident that a person accused of offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on its satisfaction that such person had committed the offence punishable as aforesaid. Police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the Court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts. Law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. Law further requires the police officers to record the reasons in writing for not making the arrest. In pith and core, the police office before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 of Cr.PC.

An accused arrested without warrant by the police has the constitutional right under Article 22(2) of the Constitution of India and Section 57, Cr.PC to be produced before the Magistrate without unnecessary delay and in no circumstances beyond 24 hours excluding the time necessary for the journey. During the course of investigation of a case, an accused can be kept in detention beyond a period of 24 hours only when it is authorised by the Magistrate in exercise of power under Section 167 Cr.PC. The power to authorise detention is a very solemn function. It affects the liberty and freedom of citizens and needs to be exercised with great care and caution. Our experience tells us that it is not exercised with the seriousness it deserves. In many of the cases, detention is authorised in a routine, casual and cavalier manner. Before a Magistrate authorises detention under Section 167, Cr.PC, he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested is satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty bound not to authorise his further detention
Nadeem Qureshi
Advocate, New Delhi
3523 Answers
130 Consultations
4.9 on 5.0
You should not be afraid of her filing 498A case or DV case.It is not that once case id filed you and your family members will go to jail.Recently, Supreme Court has given rulings about such matters so police will not arrest you straight away unless some strong grounds are there and are satisfied.You can obtain anticipatory bail.
If she agrees, go for mutual consent divorce if not then file contested divorce.
S.P. Srivastava
Advocate, New Delhi
703 Answers
13 Consultations
4.8 on 5.0
Recently Supreme Court has passed a judgement wherein the Police authorities cannot arrest the husband and his family without any evidence.
If you have relevant evidence, then you can file a Divorce petition  under Section 13(1)(a) i.e cruelty which includes mental and physical cruelty .However it is suggested that you should go for divorce by mutual consent as it is faster process.
Sudershani Ray
Advocate, New Delhi
192 Answers
25 Consultations
4.9 on 5.0

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