After the death of my mom, dad married another women who is divorcee with her 1st husband. she had 2 children with her 1st husband. She doesn't given any dowry at the time of marriage but in petition she mentioned that she had given 3 lakhs of cash and much of gold. My dad had 3 daughters and 2 sons with his 1st wife(my mom) and no children with his 2nd wife(divorcee of her 1st husband). i opposed that 2nd marriage of my dad and made him live else where from my home. he does it and made his own home else where in the same city. After 2 years of marriage, Due to some financial issues dad have to change his house which is suitable to his earnings then the divorcee left my dad for not earning much and made a false 498A against the whole family including us stating that me and my sisters thrown her outside the home after snatching all her gold ornaments from her. in fact we live separate but she mentioned the false statements in police station and filed FIR on 27-6-2016. she mentioned the names of whole family in FIR. Please suggest me how to handle this.
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First all of you should get enlarged on bail.
After that when the police file charge sheet you may have to attend the court and defend yourselves properly agaisnt the false allegations.
During trial and cross examination you can bring out the facts with the help of a skilled advocate.Challenge her case properly during trial proceedings with the support and help of merits and documentary evidences in your side.
Since the FIR has been filed the first thing which every accused should so is to apply for and obtain anticipatory bail. Thereafter, the case has to be contested on merits. The onus to prove the allegations of demand of and harassment for dowry is stacked heavily on her. It is a tendency to name all or as many members of husband's family as possible.
1) on FIR being filed police would issue you notice under section 41 A of Cr PC to record your statement
2) mention that after marriage lady has never stayed in same house but was staying separate after marriage and that you hardly met her after marriage .
3) obtain AB from sessions court
4) lady has to prove the allegations made by her in 498A case that 3 lakhs cash and gold given at time of marriage
5) 80 per cent of cases are false and end in acquittal
Hi
When it is a second marriage, then there is no 498A. You need to move to the high court to get the 498A case quashed u/s 482 of Cr.P.C
All the more when there are 5 children from the husband's first marriage and 2 children from the wife's first marriage, the question of 498 A does not even arise.
all the more since your father was living separately with his second wife and away from the children from first wife, there is NO SHARED HOUSE HOLD.
A 498A case survives only if there is a SHARED House Hold. In the absence of a shared house hold there is no question of 498A.
Supreme Court in the case of Pawan Kumar Vs. State of Haryana, AIR 1998 SC 958 has cautioned the Courts to act with circumspection. In the words of the Supreme Court "often innocent persons are also
trapped or brought in with ulterior motives and therefore this places an arduous duty on the Court to separate such individuals from the offenders. Hence, the Courts have to deal such cases with circumspection,
sift through the evidence with caution, scrutinize the circumstances with utmost care.
The Judgment o Gaurangbhai Avinashbhai Vyas vs State Of Gujarat & on 16 April, 2015 can be help for you to understand the approach of the various courts in treating false 498A cases
Hope this helps.
thanks
She has also proceeded with section 3 and 4 of dowry prohibition act making false allegations. Like sir rajgopalan said, i had tried to talk on the base of your words to my lawyer. May he is not capable of pleading such quash with the reference of previous case laws. Then in those tensed situations like Sir kalaiselvan, Sir Ashish and sir Ajay sethi said, I had applied for Anticipatory Bail for all my family yesterday. Today i received a MC notice from Spl. magistrate of first class stating for the presence of my dad under the petition of that divorce for maintenance under section 125 CrPC. Please suggest me the best way to handle this sir. Please help me out with your valuable answers.
1) appear in court on date mentioned in notice
2)if wife is not working your father will have to pay her maintenance
3) however your father is not required to maintain children of wife earlier marriage
First obtain anticipatory bail in other police complaints and then think about challenging them or going for quash of FIR at a later stage. The high courts do not entertain quash petitions in a routine manner so if you fail in that effort you may challenge the false allegations properly in the trial court during trial proceedings.
In the maintenance case under section 125 cr.p.c., she cannot implead your father and seek maintenance from him especially when her spouse is living. It may be under domestic violence act. Verify. However, once he has received the summons.notice, it becomes his duty to appear before the court on the specified either in person or accompanied by an advocate. Let the petition copy be served, see what additional allegations she has made and prepare to defend yourselves accordingly.
Have faith in your lawyer. Cases can be won even without citing a single judicial precedent. The maintenance case filed by her can be contested fittingly on merits.