• 498a after getting divorce decree in Canada

My ex wife had applied for, initiated and obtained a divorce in Canada against me, to which I had consented. The Divorce order was released on Mar 29, 2016 and took effect on Apr 29, 2016. 

After getting the divorce in Canada, she went back to India, concealed her divorced status, and filed an FIR against me, which initiated a 498A case against me on May 23, 2016. She is still pursuing another case here in Canada on claims. She had concealed that information to Howrah police too. 

I live in Canada. I have not received any letter or summon from the Police yet, but came to know about this when I visited Indian Consulate to exclude my ex spouse's name from my passport. 

Given that she had applied for the divorce, willfully submitting to Canadian Jurisdiction, and still pursuing another case on claims, how can I squash 498A against me without me travelling to India?
Asked 4 months ago in Family Law from Canada
Religion: Hindu
1)in the event police issue you notice under section 41 A of Cr Pc you have to in your statement mention that marriage has been dissolved by mutual consent in canada

2) obtain Anticipatory bail from sessions court 

3)for filing quashing proceedings under section 498A you have to move HC in Calcutta 

4)you will have to personally travel   t o obtain AB 
Ajay Sethi
Advocate, Mumbai
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This is a fit case to apply for quashing of 498A as it has been filed by concealing the matrimonial status. Shs herself is liable to be prosecuted for perjury. So apply for and obtain AB and then move the HC for quashing.
Ashish Davessar
Advocate, Jaipur
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Contact a lawyer and consult with him about the quashing the petition, you may also file an objection in Canadian courts regarding the same.

you may signed a vakalatnama in Canada, notarized it and also signed the quashing petition and affidavit and notarized it in Canada and send it to India along with a photograph of your and an Identity and address proof, the lawyer may filed the quashing petition on behalf of you and fight the case on merit, your personal appearance before the court is not mandatory.

Feel Free to Call
Nadeem Qureshi
Advocate, New Delhi
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You have to file petition in family court for declaration that marriage is dissolved by consent decree passed by courts on Canada 

2) it cannot be obtained from SC in India 

3) if you are unable to come to India you can execute specific power of attorney in favour of family member for filing petition in India 

4) your lawyer can send petition for your signature . It has to be attested before Indian consulate 
Ajay Sethi
Advocate, Mumbai
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1. You may file a suit for declaration of your divorce decree as kegal in the court of District Judge in India.  It cannot be directly filed in the SC.

2. Engage a lawyer in India who can draft and send you the quashing petition which you can sign and post to him.
Ashish Davessar
Advocate, Jaipur
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449 Consultations
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When both of you were appear before the court and fight the case then it is clear that both of you accept the jurisdiction of Canadian court hence this divorce decree is legal in India too as conclusive proof.
If you need any court order from Indian court then file a declaration suit before family court.
Nadeem Qureshi
Advocate, New Delhi
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1. She has filed 498A complaint which has been registered as FIR by the police after conducting an enquiry in connection with her said complaint,

2. She is can not lodge the 498A complaint in India if the alleged incidence of dowry harassment which purportedly triggered the said complaint took place in Canada,

3. It is strange that indian Consulate has recorded the said cases filed against you by your wife in India. has any Summons or Notice been issued against you through the Indian Consulate at Canada? ou are required to enquire about it,

4. However, your first job will be to apply for and avail anticipatory bail for all the accused  who have been named in the said FIR and then contest the case fittingly,

5. If charge sheet has been filed, you can file a quash petition before the High court after finding loopholes in the said charge sheet,

6. if her 498A complaint is found to be unfounded by the Court, you can file a criminal complaint case against her  u/s211 of IPC.
Krishna Kishore Ganguly
Advocate, Kolkata
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1. If the said decree of  divorce is based on No-Fault divorce petition which has been consented by you then it will be treated as Mutual Consent Divorce by Indian Courts,

2. You shall have to get the said foreign decree of divorce validated by local District Judge.
Krishna Kishore Ganguly
Advocate, Kolkata
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232 Consultations
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Given that she had applied for the divorce, willfully submitting to Canadian Jurisdiction, and still pursuing another case on claims, how can I squash 498A against me without me travelling to India?

Firstly confirm if she has lodged criminal complaint with police or not.
If she has done it, then the police should have sent you the summons, if not you may not be bothered about it
Dont spend money on quashing the charge sheet or FIR because the high court may not entertain since you are staying in a foreign country and has not even obtained AB etc. 
She may file an intervene petition and object grant of quash.
T Kalaiselvan
Advocate, Vellore
14076 Answers
127 Consultations
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Given that the divorce was applied by my ex wife, to which I consented, and the divorce has been already been granted by Canadian Court as stated in my first question; how can I legalize the divorce in India to enforce that the divorce has been granted in line with 13B?

You need not validate your Canadian divorce i India. There is no provision for that.. In fact the divorce on the grounds of mutual consent obtained in Canada is very much valid in India.





What is the quickest way of doing that? And can it be directly obtained from SC in India?

There is no provision in law to legalise or validate the divorce decree granted by a foreign country.





Also, how can I do all these, including petition in HC, without visiting India, as it would cost my job here. 

Same answer as above.









T Kalaiselvan
Advocate, Vellore
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127 Consultations
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Can you please help me with the specific section of IPC 498A or a relevant judgement which can support that if the alleged incidence of dowry harassment which purportedly triggered the said complaint took place in abroad, 498A complaint cannot be launched in India? 

This is one of a glaring case of DV Act which shows that all the alleged act of domestic violence though has been faced by the wife in USA but she preferred to lodge the complaint in India.
WHY
BECAUSE SHE KNOWS VERY WELL THAT IN USA MALE AND FEMALE ARE TREATED AT PAR AND THERE IS NO SOFT CORNER TO ANY ONE INCLUDING WOMEN SO FAR AS JUSTICE DELIVERY SYSTEM IS CONCERNED
 BUT IN INDIA ONLY STANDING WOMEN IN COURT OF LAW IS ITSELF SUFFICIENT TO PROVE HER CASE.
 
A sessions court in the city has ruled that a woman, who faced domestic violence when she was living outside the country and had come back to India, cannot get the benefit of the Protection of Women from Domestic Violence Act, 2005.
The judge dismissed an appeal filed by 35-year-old Kavitha Rajaram (name changed) from Malleswaram against her husband Ram Kumar (name changed) 37, charging him with domestic violence in California, USA, before she returned to India in October 2010.
Judge G D Mahavarkar, LI Additional City Civil and Sessions Court, said, in his judgment on March 30, “All the allegations made against the husband and his parents are within USA’s territory. Kavitha’s child was born in the US. The husband and wife have never led a marital life in India. Therefore, there is no cause of action for any legal proceedings in Indian courts.”
Kavitha had filed the appeal after her petition was dismissed by the trial court which held that she had no territorial jurisdiction to file it and seek relief under Section 12 of the Protection of Women from Domestic Violence Act, 2005.

No doubt this is regarding DV case and if you search in the internet you get such cases for 498A too. 




The FIR against me clearly states that the harassment took place in Canada and not in India, and a learned lawyer has informed me that  in that case, 498A cannot be filed.

There are cases where court has rejected actions in the situation similar to that of yours.
You can make a search.





T Kalaiselvan
Advocate, Vellore
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127 Consultations
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Read section 177/178 of Cr.P.C.which clearly informed about the jurisdiction of court.

177. Ordinary place of inquiry and trial.—
Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.

178:  Place of inquiry or trial.—
      (a) When it is uncertain in which of several local areas an offence was committed, or
      (b) where an offence is committed partly in one local area and partly in another, or
      (c) where an offence is a continuing one, and continues to be committed in more local areas than one, or
      (d) where it consists of several acts done in different local areas,
it may be inquired into or tried by a Court having jurisdiction over any of such local areas.


Nadeem Qureshi
Advocate, New Delhi
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130 Consultations
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But section 3 of Indian penal code is also necessary
Punishment of offences committed beyond, but which by law may be tried within, India.—

Any person liable, by any [Indian law] to be tried for an offence committed beyond [India] shall be dealt with according to the provisions of this Code for any act committed beyond [India] in the same manner as if such act had been committed within [India].
Nadeem Qureshi
Advocate, New Delhi
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130 Consultations
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Supreme  Court in Y. Abraham Ajith and Others vs. Inspector of Police, Chennai and Another, (2004) 8 SCC 100 in particular, paragraph 12 of the said decision which reads as under:
"12. The crucial question is whether any part of the cause of action arose within the jurisdiction of the court concerned. In terms of Section 177 of the Code, it is the place where the offence was committed. In essence it is the cause of action for initiation of the proceedings against the accused."
Ajay Sethi
Advocate, Mumbai
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1220 Consultations
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Supreme Court in Bhura Ram and Others vs. State of Rajasthan and Another, (2008) 11 SCC 103 wherein following the decision in Y.
Abraham Ajith and Others (supra), this Court held that "cause of action" having arisen within the jurisdiction of the court where the offence was committed, could not be tried by the court where no part of offence was committed. 
Ajay Sethi
Advocate, Mumbai
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1. This is a well settled proposition of law that Police stations have jurisdiction to act upon against a complaint. The Police station at Belur has its own jurisdiction and it can act upon a crime which took place within its jurisdiction and not within the jurisdiction of any other police station. A police station will not receive any complain if the incidence has not taken place within its jurisdiction.,

2. Moreover, the said incidence has purportedly taken place at Canada for which the local police station at Canada shall have to act and not any police station at Kolkata, India,

3. Police from Kolkata can not travel to Canada to arrest you since it does not fall within its jurisdiction.
Krishna Kishore Ganguly
Advocate, Kolkata
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232 Consultations
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