• Misuse of 498a

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.
Asked 5 months ago in Family Law from Rajahmundry, Andhra Pradesh
Religion: Muslim
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.
T Kalaiselvan
Advocate, Vellore
13972 Answers
127 Consultations
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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.
Ashish Davessar
Advocate, Jaipur
18088 Answers
447 Consultations
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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 
Ajay Sethi
Advocate, Mumbai
23184 Answers
1218 Consultations
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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
Rajgopalan Sripathi
Advocate, Hyderabad
868 Answers
43 Consultations
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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 
Ajay Sethi
Advocate, Mumbai
23184 Answers
1218 Consultations
5.0 on 5.0
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.
T Kalaiselvan
Advocate, Vellore
13972 Answers
127 Consultations
5.0 on 5.0
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. 
Ashish Davessar
Advocate, Jaipur
18088 Answers
447 Consultations
5.0 on 5.0

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