• 498a + divorce

I am a Muslim US citizen and have been married for 3 years now. My wife got into a huge argument with me and wanted to get a divorce from me. Then under pressure from her family changed her mind. Now I want to get a divorce from her but she is now refusing. 

She has a marriage visa (conditional green card) which will expire in 6 months if I don't give permission for renewal. Currently she is in India and I am in the USA. 

My questions are-
1. If she files for a 498a, will the police come and jail my parents without any inquiry or have rules changed since 2014 supreme court ruling, and the police will first make an enquiry/seek magistrate's order etc? My parents reside in Hyderabad so I would like answers from lawyers residing in this city too. I need an absolute CLEAR and HONEST answer for this question because my old parents cannot go through this trauma and embarrassment. 
2. If she files a 498a, how long do I need to avoid coming to India? I had read 1 year, is it true?
3. Can I send talaq notification to wife from US instead of having to come to India? If yes, I have to contact the qazi?
4. Our marriage was registered in Karnataka. Can I send talaq papers from Hyderabad?
5. Can wife file a false harassment or abuse/violence case on ME at the US consulate?
6. Is it a good idea NOT to renew her greencard in 6 months so that she at least can be barred from bothering me in the US?

Thanks!
Asked 4 months ago in Family Law from United States
Religion: Muslim
1) your parents can obtain Anticipatory bail in case FIR is filed 

2) on FIR being filed police will issue notice to your parents under section 41 A of Cr PC   fo recording their statement 

3) police will conduct investigations and submit report to magistrate 

4) your aprents can obtain AB which would be granted to your parents 

5) before filing for talaq you have to send her arbitration notice .

6) if arbitration fails then only can you proceed with talaq 

7) reasons for talaq has to be mentioned . 

8) meher amount paid to wife and also maintenance during iddat period 

9) wife can file DV  case against you 

10) renew her green card 

Ajay Sethi
Advocate, Mumbai
23206 Answers
1218 Consultations
5.0 on 5.0
1. In 498A cases the police nowadays hardly arrest the in alws. So if the case is filed your parents can get easily get bail.
2. In 498A case you can wait at least till the filing of charge sheet. Once that is submitted then do not waste much time as the court may declare you absconder in which eventuality you may face difficulty to get bail.
3. If there is registered Quazi ,you can pronounce Talaq and intimate your wife along with sending her Mehr amount.
4. Yes
5. No. US Consulate is not an adjudicatory body.
6.Yes.
Devajyoti Barman
Advocate, Kolkata
5192 Answers
54 Consultations
4.9 on 5.0
1. Police does not arrest at the throw of a hat anymore in view of the SC ruling. It will issue you a notice for appearance, which is when you should apply for and obtain anticipatory bail. However, no warrant or order from the magistrate is required to be obtained by police before proceeding to arrest. 

2. You should come to India after you have secured anticipatory bail.

3. If you are a citizen of US, where sharia law does not exist, you cannot give triple talaq to her, but you are free to file a petition for dissolution of marriage in US or India.

4. You are free to not to renew her green card.

5. If she files a DV case seeking compensation and maintenance then you may contest it.
Ashish Davessar
Advocate, Jaipur
18093 Answers
448 Consultations
5.0 on 5.0
1. Yes, it will help them to get bail.
2.If you are not named in FIR then there is no requirement for you to come to India or to seek bail.
Once legal proceeding is initiated against you you can not avoid it unless you decide to never land on your motherland in rest of your life.
Devajyoti Barman
Advocate, Kolkata
5192 Answers
54 Consultations
4.9 on 5.0
1. There has to be some basis to file the complaint against her. In the event of 498A being filed against you it will nonetheless be imperative for you to apply for anticipatory bail.

2. A notice would be issued to you requiring you to appear in India within 2 weeks or thereabout, which should be sufficient for you to apply for AB. 
Ashish Davessar
Advocate, Jaipur
18093 Answers
448 Consultations
5.0 on 5.0
1) your parents can file NC before local police station if they are harassed by daughter in law 

2)if wife names you In 498A and you want to contest you can come to india and obtain AB . court will impose conditions on your travel  abroad 

3) if you are US citizen wait for your parents to obtain AB then come down to india 
Ajay Sethi
Advocate, Mumbai
23206 Answers
1218 Consultations
5.0 on 5.0
1. If she files for a 498a, will the police come and jail my parents without any inquiry or have rules changed since 2014 supreme court ruling, and the police will first make an enquiry/seek magistrate's order etc? My parents reside in Hyderabad so I would like answers from lawyers residing in this city too. I need an absolute CLEAR and HONEST answer for this question because my old parents cannot go through this trauma and embarrassment. 

In the event of she lodging a criminal complaint for dowry demand against your parents, the police, if she has taken care of them by bribing them, then the police will terrorise your parents initially to show their loyalty towards the graft received.  But they cannot arrest your parents without conducting formal inquiry, however they may prepare report stating they have conducted inquiry and found prima facie a cognisable offence for justifying their act. Hence, sooner your parents receive a call from police, let them first contact a good local lawyer and arrange for AB before visiting police station for attending the inquiry session.  The rules on papers will be different, but the police are popularly known for flouting rules in their favor.






2. If she files a 498a, how long do I need to avoid coming to India? I had read 1 year, is it true?

Legally you are supposed to appear before the investigating officer immediately on receiving notice,but you keep avoiding the receipt of notice.    The one year limitation period is not an exemption.






3. Can I send talaq notification to wife from US instead of having to come to India? If yes, I have to contact the qazi?

Yes you can send a talaq notification from US itself, by having it witnessed and sent by a registered post.  Qazi has no role to play in it. 





4. Our marriage was registered in Karnataka. Can I send talaq papers from Hyderabad?

Yes.







5. Can wife file a false harassment or abuse/violence case on ME at the US consulate?

No.  Her complaint will not be entertained by the US consulate in India.






6. Is it a good idea NOT to renew her greencard in 6 months so that she at least can be barred from bothering me in the US?

It is your decision.  If you do not want to live with her anymore, you can decide not to renew the same anymore in the future. 
T Kalaiselvan
Advocate, Vellore
13985 Answers
127 Consultations
5.0 on 5.0
1. If my parents file a legal complaint against her before she proceeds with 498a, will it add additional protection from them getting arrested?

If your parents feel that they are being intimidated or threatened by her, then they can lodge a complaint against her or otherwise they do not have any reason to do so. 






2. Just to clarify, if she does name me on the 498a, then I HAVE to come to India for court proceedings? Do I have to come ASAP or is there a time period given? Also, isn't it better to avoid coming to India and getting stuck in legal battles since I am a US citizen?

You can decide to not to visit India under such circumstances because once you register your presence then you will not be allowed to travel back especially during the pendency of a criminal case against you.
Hence you may decide to not to participate in the criminal case be remaining non-responsive to the notice or information received about it in US.

T Kalaiselvan
Advocate, Vellore
13985 Answers
127 Consultations
5.0 on 5.0

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