Dear Learned Counsels, a) My wife and I have been separated for 2 years now and have a 2 year old daughter. we all live in hyderabad. b) we filed for mutual consent divorce in April and the second motion was in october which i did not attend. c) My wife had complained in the CAW cell in march and i too came under pressure to heed to their demands and agreed for a mutual consent divorce. d) My only grouse in the MOU was with respect to the child custody clause which i thought was unfair (visitation once a week, name change etc) and i tried to negotiate for more visitation and joint custody as we live in the same residential complex. e) So owing to this my wife has filed a 498a against me and my parents. f) The inspector has issued a 41(1) notice and has asked me to be present with my parents for the investigation at the CAW cell on saturday. The inspector and my in laws are known to each other. They are also well connected to the ex-DIG. g) i have already filed a case for joint custody and have asked for interim visitation (meeting alternate days) couple of weeks back (which wife is still not aware) My questions: 1) Will i get arrested? Is it necessary to obtain an anticipatory bail? (When i spoke to my lawyer he said it is not necessary, but everywhere on the net it mentions procuring an ACB is necessary) 2) Can i sign on the second motion agreeing to the adverse clause on child custody to escape 498a and then proceed normally with child custody case? will my agreement to the mutual consent will anyway hinder my now recently filed petition of asking more visits and possible joint custody? Thanks in advance for your time and guidance. Regards
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1) AB is not required in Andhra Pradesh as 498A is bailable offence in AP
2) once you agree in consent terms to give custody of child to your wife it would adversely affect your application for joint custody
3) it can be mentioned in consent terms that you would have visitation rights for child
1. Do not worry and apply for anticipatory bail. The anticipatory bail in 498A cases is mostly allowed. So you can safely apply for the same.
2. Yes, you can later on file suit for custody of child as welfare of child is most important and no parent can waive his legal right to custody of the child which is beneficial for him.
1. If you have been issued the 41A notice then apply for and obtain anticipatory bail immediately, failing which you can be arrested. Your lawyer alone can explain why he said it is not required.
2. You are free to sign the second motion but the mere pendency of mutual consent divorce will not put on hold the proceedings in the 498A case. Once the MCD is granted and the marriage is dissolved then the divorce decree becomes a charter of rights and liabilities of ex-spouses and it cannot be departed from.
Dear Sirs, 1) If 498 A is a bailable offence in AP, does it mean i wont be arrested if complied with the summons issued by the IO? But will i still require a bail? 2) When asked casually to the IO of CAW cell, he passingly said you and your family will be sent to the station. Could not decipher his sentence nor did i prod him more. Have been summoned tomorrow at 11 for giving my version for the claims mentioned. regards
1) Bailable offences are offences for which the accused has a right to be released on bail.
2) Cash Bail: The accused is required to deposit a cash amount specified by the Court (Cr.P.C., section 445). If he fails to appear, the bail amount may be forfeited.
Surety Bail: The accused is required to produce a person (or persons) called surety (or sureties) who will guarantee his appearance in Court on the dates of hearing
4) you can go to police station for having your statement recorded
1.No, you shall not be arrested. As per Supreme court direction, police will not make any arrest against the 498A complaint filed by the wife without making an investigation against the said complaint.If the said complaint is converted by the police to FIR after conducting the investigation for which it has called you to the police station, all the accused including you are required to take AB immediately.
2. Once you agree for the child custody clause under affidavit, it will be difficult for you to disown your own acceptance of the clause and prefer your claim for your child's custody.
1. It is advisable to take AB in this matter to play safe and stay out of the clutches of the police.
2. Visit the police station as asked by the police and explain your points carefully.
3. develop rapport with the IO to ensure that he does not concert the complaint to FIR.
1) Will i get arrested? Is it necessary to obtain an anticipatory bail? (When i spoke to my lawyer he said it is not necessary, but everywhere on the net it mentions procuring an ACB is necessary)
It would be a safe passage if you procure anticipatory bail before visiing the police station.
2) Can i sign on the second motion agreeing to the adverse clause on child custody to escape 498a and then proceed normally with child custody case? will my agreement to the mutual consent will anyway hinder my now recently filed petition of asking more visits and possible joint custody?
Mutual consent divorce, child custody case and the 498a cases are different to each other.
None of them have relevance to each other, hence dont mix up everything and get confused.
1) If 498 A is a bailable offence in AP, does it mean i wont be arrested if complied with the summons issued by the IO? But will i still require a bail?
You can get bail in the police station also
2) When asked casually to the IO of CAW cell, he passingly said you and your family will be sent to the station. Could not decipher his sentence nor did i prod him more. Have been summoned tomorrow at 11 for giving my version for the claims mentioned.
Attend the inquiry session, dont skip it, you can get police station bail also or can get bail immediately if produced before magistrate.