Here is the analysis of some of the Judgements related to 498A quashing

498A Quashed because wife failed to mention allegations of dowry demand in written statement filed by her in the Divorce Case filed by Husband

It appears that marriage of informant-opposite party No. 2 and petitioner e No. 3 was solemnised on 1.7.1998 and out of their wedlock they were blessed with a girl child on 15.6.1999. On 15.3.2000 petitioner No. 3 filed matrimonial (divorce) case on the ground of cruelty and adultery and thereafter opposite party No. 2 filed the present case under Sections 498A of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act against the entire family of petitioner No. 3, her husband leveling general and vague allegation against them. It has been stated that the allegation made in the First Information Report does not find place in the written statement filed by the informant-opposite party No. 2 in Matrimonial Case No. 49/ 2000, which was filed earlier to lodging of the FIR, which fact has not been disputed in the counter affidavit. The facts aforementioned goes to show that the present case has been maliciously instituted by the informant with ulterior motive for wreaking vengeance due to personal grudge.Thus, in my opinion, continuance of criminal proceeding against the petitioners will be sheer abuse of the process of the Court.

Sanjay Kumar and Ors. vs. State of Bihar and Ors. (19.12.2005 – PATNAHC) : MANU/BH/0429/2005

No specific time frame and allegation mentioned related to 498a FIR quashed

A bare reading of the complaint generated by respondent No. 1 reveals that there is no specific accusation, there is no exact period, during which the offence is committed and the same is at a grossly bleated stage, without a whisper about the delay under which circumstance it had occurred. The allegations prima facie, are absolutely general and vague in nature and it appears that with a view to take revenge or to secure custody of child this attempt is made by alleging the offence against the petitioner and therefore, the criminal law may not be allowed to put to motion in such a casual and cavalier way by any citizen and time and again decisions are taken to the effect that process of criminal law is precious in nature and therefore, it may not be allowed to be put in motion in a routine or casual manner. This background of facts clearly establishes that prima facie, no offence having been committed. The ultimate conclusion would lead to a situation that the Court is constrained to dispose of the petition in the foregoing background.

12. It is held by the Hon’ble Supreme Court that to put criminal law into motion in a casual manner by a litigant, the same is to be viewed seriously and not to encourage such attempt. The case on hand has, no doubt, a disheartened element under which rift has emerged between husband and wife, but to ventilate the said grievance of respondent No. 1 by way of putting criminal law in motion by filing such a casual complaint, the said attempt appears to be not genuine and therefore, it is noticed by the Court that the same is nothing but an abuse of process of law. In the background of the aforesaid fact and considering the averments of the complaint and contention raised by the respective parties the Court is of the opinion that to allow the complaint to precipitate further would tantamount to abuse of process of law and therefore, the complaint in question, viz. C.R. No. I-86 of 2013 dated 03.05.2013 registered at Gandhidham-A Police Station, Bhuj-Kachchh for the offence punishable under section 498A and 114 of the Indian Penal Code, is hereby ordered to be quashed and set aside. It is needless to say that the Court has examined the complaint only in view of the a particular offence under sections 498A and 115 of the IPC and therefore, without expressing any opinion with respect to other aspects about the dispute between the applicants and respondent No. 1 herein, the present petition is disposed of. Rule is made absolute to the aforesaid extent.

Harshad Dolatram Geariya and Ors. vs. Heenaben Harshadbhai Geraiya and Ors. (22.07.2016 – GUJHC) : MANU/GJ/1245/2016

498A filed as a counterblast to divorce proceedings.

ow, we revert back to the allegations made in the complaint Under Section 498A and Section 3/4 of D.P. Act. Few facts have to be noticed before we look into the allegations made in the complaint in the above regard. The complaint has been filed by the Respondent No. 2 before the C.J.M., Gautam Budh Nagar on 10.05.2015, before which date, the petition for divorce has already been filed by Nayan Chopra on 23.10.2014 before the Circuit Court for the County of Kalamazoo Family Division, Michigan. It is on the record that at the time of filing of the complaint Vanishka Bobal was living at Canada whereas Nayan Chopra was living at U.S.A. Both were separately living. It was pleaded in the application for divorce that husband and wife had separated on or around November, 2013. It is on the record that on the day criminal complaint was filed on 10.05.2015 in the Court of C.J.M. Gautam Budh Nagar by Respondent No. 2, neither Vanishka was in India nor she was in India at the time when statements were recorded in complaint of complainant as well as his two witnesses. The complaint is not by Vanishka but it has been filed by father of Vanishka, Respondent No. 2. In the divorce application filed in the State of Michigan, Vanishka Bobal was represented by her attorney. The divorce was granted with orders relating to alimony, pension benefits and retirement benefits, life insurance, property settlement and provision in lieu of dower, mutual release of claims and other aspects on 24.02.2016.

23. There is nothing on the record to indicate that orders of divorce between the parties was brought into the notice of the Magistrate when he issued process against the Appellants. We, however, are in agreement with the submission of Shri Santosh Krishan that decree of divorce between Nayan Chopra and Vanshika shall not wipe out any criminal offence, which has been committed within the meaning of Indian Penal Code or D.P. Act and the criminal offence committed in jurisdictional court has to be examined despite the divorce decree having been granted.
24. Coming back to the allegations in the complaint pertaining to Section 498A and Section 3/4 of D.P. Act. A perusal of the complaint indicates that the allegations against the Appellants for offence Under Section 498A and Section 3/4 of D.P. Act are general and sweeping. No specific incident dates or details of any incident has been mentioned in the complaint. The complaint having been filed after proceeding for divorce was initiated by Nayan Chopra in State of Michigan, where Vanshika participated and divorce was ultimately granted. A few months after filing of the divorce petition, the complaint has been filed in the Court of C.J.M., Gautam Budh Nagar with the allegations as noticed above. The sequence of the events and facts and circumstances of the case leads us to conclude that the complaint Under Section 498A and Section 3/4 of D.P. Act have been filed as counter blast to divorce petition proceeding in State of Michigan by Nayan Chopra. Rashmi Chopra and Ors. vs. The State of Uttar Pradesh and Ors. (30.04.2019 – SC) : MANU/SC/0625/2019

Vague Allegations against relatives

The allegations against relatives are vague and general. No specific allegations against Mother in law, Father in Law and sister in law. FIR of 307/498a and 323 IPC was quashed

Karnataka High Court Judgement

The most common question these days for the NRI citizens is that if they come to India can their passport be impounded?

The Answer to this is neither the court nor the police has power to impound the passport..

In a recent case decided by the Delhi High Court in which the passport of a NRI was seized by the police..

The court held that under section 102 CrPC the police has power to seize the document that is to take possession of the thing for the moment and not to retain it for longer periods of time. Therefore an application of return of passport is maintainable. As it is the passport authority who has power to impound the passport under section 10(3). The impounding of passport involves civil action.

Hence, while the police may have power to seize a passport under Section
102 CrPC if it is permissible within the authority given under Section 102 CrPC,
it does not have power to retain or impound the same, because that can only be
done by the Passport Authority under Section 10(3) of the Passports Act. Hence,
if the police seizes a passport (which it has power to do under Section 102
CrPC), thereafter the police must send it along with a letter to the Passport
Authority clearly stating that the seized passport deserves to be impounded for
one of the reasons mentioned in Section 10(3) of the Act. It is thereafter for the
Passport Authority to decide whether to impound the passport or not. Since
impounding of a passport has civil consequences, the Passport Authority must
give an opportunity of hearing to the person concerned before impounding his
passport. It is well settled that any order which has civil consequences must be
passed after giving opportunity of hearing to a party (vide State of Orissa v.
Binapani Dei [MANU/SC/0332/1967 : AIR 1967 SC 1269])

The allegations of 376 and 377 are put in 498A IPC are just put in to take the case out of Arnesh Kumar. As per Arnesh Kumar 7 Years offences are exempted for automatic arrests.

so to make it more lethal allegations of 376 and 377 are put in along with 498A IPC

But court do recognize the misuse..

This Bail I argued with surrounding background that wife first entered into a settlement and then she backed out to file these cases just to harass the husband and relatives.

The husband even transferred some money into the account of the wife but she again filed false cases against the Husband and the Family members.

This was the main ground I argued and on this only I got anticipatory bail to all the relatives as well as the Husband.

This thing i have done in single day only and no mediation or status report was called however state did filed the reply to oppose the Bail.

The Bail application came late at Night and next morning it was filed and next day bail was argued and order granted.

This is how fast you have to work when it comes to anticipatory bail…

Facts:

Wife filed belated 498a complainant after 3 years of separation.

The police were disturbing the parents they approached Hon’ble High Court and High court had directed that the police must do preliminary enquiry and refer the matter to the family court in case there is matrimonial dispute.

But instead of doing that the police registered the FIR and taken statements of interested witnesses in a single day.

Grounds of quashing

No explanation of delay in filing FIR

No specific allegations in FIR

The police acted malafidely.

Even if you get successful in divorce case on merits there is always when the wife is not working the court can grant a permanent alimony to the tune of 10 lakh-15 lakhs or may be more in a divorce case at the time of passing of the decree.

The ambit of alimony comes under the section 25 of The HMA.

The important point to keep in mind is to first analyse the order.

Whether the court has applied its mind while fixing the alimony.

The quantum of alimony must be as per the the financial status of the husband and proper explanation must be given by the court before fixing permanent alimony to the wife.

The problem with such an order will be Husband even if he wins the case goes bankrupt.

Therefore you must first analyse the order

In the Judgement of Jalendra Padhiary Vs. pragati chhotray

16. In our view, mere perusal of the order of the Family Court and the High Court quoted supra,
    would go to show that both the Courts failed to apply their judicial mind to the factual and legal
    controversy insofar as award of permanent alimony to the respondent(wife) is concerned. Both the
    Courts did not even mention the factual narration of the case set up by the parties on the question of
    award of permanent alimony and without there being any discussion, appreciation, reasoning and
    categorical findings on the material issues such as, financial earning capacity of husband to pay the
    alimony and also the financial earning capacity of wife, a direction to pay Rs.15,00,000/- by way of
    permanent alimony to the wife was given. In our opinion, such direction is wholly unsustainable in
    law.

The Bail is the discretionary relief and there is no prediction whether a bail is to be given or not.

With so much of un predictability there comes something from the Judge side.

Now in 498a bail case sometimes judge may ask you to settle the case and may ask for an offer from your end.

Now the issue is some clients may get offended as they do not wish to settle the matter so easily or does not wish to give anything to the wife side.

They don’t understand that the Judge is giving you a favor if he is offering this to you or even asking.

You have to understand as to why he is asking you the same.

He could have simply dismissed the bail application

Then you will run around for higher courts or face arrest.

At the stage of bail if judge is offering you this then you should not refuse and give some reasonable offer to settle the dispute.

There may be chances that the judge may ask you to deposit some amount or give wife maintenance, again it is a favor to you.

If you completely refuse then the judge may dismiss your application…

How to Fight False 498a-A complete Guide

498a is filed by wife just to harass you.

False 498a cases are very common in the society and lot of steps has been taken by Hon’ble Apex court also to prevent its misuse. Quashing of false 498a is possible but first you need to know the reason for false 498a

These days false 498a cases gropes all the relatives father, mother sister who may be staying away from the matrimonial home still they become party to 498a.

Here are the reasons wife has filed false 498a cases on your family.

1.Money

Your wife may be after your money wants to harass you and your family in false 498a cases. Because mental harassment can cause you settle at a very handsome amount.

2.You refused to give her divorce

If you have refused to give him/her divorce then you may definitely face proceedings under false 498a and 406 and now 377 IPC are common.

 3. Pressure from her relatives

Matrimonial discords are common in marriages sometimes relatives make it a bigger issue. Negative relatives can lead to false 498a cases.

4. She has an affair

if wife having an affair somewhere else and you got to know then also wife can put these  false cases for only reason called harassment so that you may not be able prosecute her for adultery.

What happens in false 498a cases

Police calls in false 498a cases

You receive a call from the police station and on the other line there is an Investigating officer is on the  other side of the line.For one moment panic strikes you and you come to know that your wife has lodged a false 498a case against you and your family.

The Io asks you to visit police station so called CAW cell.

When you go and visit CAW cell harassment starts poring in the IO and other mediators starts pressurizing you to settle the matter. You gain strength and refuse to settle the matter and comes back to your home.

Then again you receive the call from the CAW cell to come and join then again then again….

Reasons for harrasment

These calls from CAW cell are against the law and just meant to harass you. Even if you join the mediation  process and attend N number of dates present defence evidence to the IO. Still the CAW complaint gets converted into FIR and these calls fails to stop…

The reason for such calls is done with clear motive of harassment and put pressure to settle the issue with estranged wife and if you fail to settle then FIR is converted.

How to deal with police harassment.

As per the Delhi High Court Judgement they have prescribed certain guidelines which is envisaged under Section 41A of CrPC that a written notice with prescribed format has to be sent to the accused while summoning him to appear before IO. So if IO calls the accused i.e husband and relatives of the husband by making a mobile call that is impermissible as per law.

Anticipatory bail in 498a

Anticipatory bail in 498a is advisable and recommended

A family comes under pressure when they come to know that a FIR under section 498a has been lodged in police station.

The first cause of stress is call be Investigating Officer to join investigation to old parents, husband, husband sister or brother.

The trauma is whether they can be arrested or not.

It is not advisable to visit investigating officer without protection from the court this protection is termed as Anticipatory Bail.

The process of getting Anticipatory Bail in 498a

The chances of getting bail under 498a is quite high as I have already discussed in detail in one of my articles

chances of getting anticipatory bail 

The conditions of anticipatory bail are not very stringent but if they are stringent it can always be challenged. I have discussed in detail the conditions Conditional Anticipatory Bail

Now as per the judgement of 498a under Rajesh Sharma versus State of Uttar Pradesh. there is a stay on automatic arrest in the cases of 498a. But this judgement is challenge in higher bench and revisit the judgement.

Judgement on 41A by Delhi High Court

(i) Police officers should be mandatorily required to issue notices under Section 41A Cr.P.C (in the prescribed format) formally to be served in the manner and in accordance with the terms of the provisions contained in Chapter VI of the Code. Model…

 http://www.livelaw.in/delhi-hc-lays-procedure-issuance-notice-appearance-police-officers-u-s-41a-cr-p-c-read-judgment/

Dismissal of false 498a cases(Quashing)

498a Misuse Supreme court recent Judgement

The judgement of Rajesh sharma Vs. state of Uttar pradesh had a detailed guidelines to check the 498a misuse by married women against the husband and relatives of the husband. Even the apex court has recognized the misuse of 498a a tool to harass innocent people so the Supreme Court went ahead and formed a committee called family welfare committee in all the district courts to examine the veracity of complaint/FIR and the committee had to come back with a report whether the allegation are true or not and also give an opinion to arrest or not based on which the police would act in 498a cases.

The formation of committee was relief to many innocent people and there was a drop in arrests in the cases of 498a IPC.

The recent Judgement of Apex Court in Social Action Forum for Manav Adhikar Vs. Union of India

The Hon’ble supreme court scrapped the family welfare committee and held that the safeguard mechanisms can only be incorporated either by legislature or under existing mechanisms.

What will happen after the Judgement?

On Arrest

Now since family welfare committees are not there so police is the only body left to take an opinion of arrest of those accused in 498a.

Now police first has to comply with 41A CrPC and give a notice to the accused to appear

w1“““““`

In Arnesh Kumar vs State Of Bihar & Anr

We are of the opinion that if the provisions of Section 41, Cr.PC which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce. We would like to emphasise that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 Cr.PC for effecting arrest be discouraged and discontinued.

Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:

All the State Governments to instruct its police officers not to automatically arrest when a case under

Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;

Anticipatory Bail in 498a

The provision of pre arrest bail is open

1. Return of dowry articles

As held in Vijender sharma v. state Anticpatory Bail was granted subject to the conditions that the petitioner will return all the gold/silver jewelry articles still in his possession to the complainant before the concerned SHO.  petitioner will deposit a sum of Rs.1 lakh additionally with the Registrar General of this Court in the name of the complainant, which amount shall be disbursed subject to the outcome of the trial of this case. The petitioner will join investigation as and when required and would not intimidate the witnesses.

2. By giving maintenance amount and returning jewelry

As held in Dr. Sunil Kumar V. State

With consent of parties, afore-noted applications are disposed of with the following directions:

(a) Rajesh would replace all the cheques which he has issued in the name of Shalini Arya pursuant to orders passed by learned Metropolitan Magistrate in the proceedings under Protection of Women against Domestic Violence Act, 2005 by issuing cheques in the name of ‘Shalini’. This would be done within a week from today.

(b) Photocopies of the medical treatment of Baby Bhavishika would be handed over to Rajesh. Rajesh would be entitled to consult a reputed cardiologist and future medical treatment of Baby Bhavishika would be borne by Rajesh.

(c) Future medical of Shalini pertaining to treatment for tuberculosis by her would be reimbursed by Rajesh on the bills being furnished by Shalini to Rajesh.

(d) Rajesh would continue to pay to Shalini Rs. 10,000/- per month or such other amount as may be directed to be paid by the learned Metropolitan Magistrate in the proceedings under Protection of Women against Domestic Violence Act, 2005 by means of a cheque payable in the name of ‘Shalini’.

(e) Rajesh would facilitate visit by the I.O. in company of Shalini to his house for opening the almirah in which cloths and jewellery of Shalini are stated to be kept. Shalini would be permitted to take possession of the same after an inventory is prepared.

(f) All the petitioners would cooperate with the I.O. in the conduct of investigation.

On compliance of afore-noted consent directions, in the event of arrest, petitioners would be released on bail by the I.O. on their furnishing a personal bond in the sum of Rs. 10,000/- each with one surety each in the like amount to the satisfaction of I.O.

18. It is made clear to Rajesh Arya that any violation of the terms of the consent directions would render liable to be withdrawn the benefit of the present order.

3. Bail without any condition of return of dowry items

In Vishal Arora V. state 

In my opinion, the petitioner cannot be denied bail on the ground that dowry and jewellery of the complainant has not been returned so far. The learned counsel appearing on behalf of the petitioner has taken a stand that the entire dowry and jewellery has already been returned to her. There seems to be a dispute between the parties on this aspect. If her dowry and jewellery is not returned, then she may take proper proceedings before the competent Court for return of dowry and jewellery as per law.

In the facts and circumstances of the case stated above, it is ordered that the petitioner may be released on bail in the event of his arrest on his furnishing bail bonds in the sum of Rs.20,000/- with one surety in the like amount to the satisfaction of the arresting officer. Thepetitioner is directed that he shall participate in the investigation as and when called by the Investigating Officer. In the event the petitioner fails to participate in the investigation, then the State will be at liberty to apply for cancellation of his bail.

4. Bail as contents of FIR are vague

In the present case of Pavitra Uraon And Ors. vs State Of Chhattisgarh, if we consider the contents of the FIR, lodged by the complainant on 24-1-2007, it shows that she was being treated with cruelty by the applicant on account of demand of dowry. However, the specifications regarding dowry are vague and general pertaining to the items etc.

5. Complainant residing in matrimonial home

 Proceedings under Section 498A/406/34 IPC are not to be converted into recovery proceedings. However, it is the desire of a Court to try and ensure that matrimonial disputes are resolved. Attempts were made in the present case in this direction, but unfortunately have failed.

Considering the fact that the complainant is still residing in the matrimonial house, but in a separate portion thereof and the fact that she and her children are otherwise being provided with maintenance by the petitioner No. 1, I am inclined to admit the petitioners to anticipatory bail as prayed for. It has to be additionally noted that the petitioners have cooperated with the investigating officer during enquiry. Since 6.2.2004 petitioners are under interim protection.

Petition stands disposed of with the direction that in the event of arrest, on petitioners furnishing a personal bond in the sum of Rs. 5,000 with one surety in the like amount to the satisfaction of the Arresting Officer, petitioner would be released on bail

Conclusion

Generally the bail in matrimonial proceedings are easy but may come with stringent conditions. the Anticipatory bail in cases of 498a/406 are granted easily these days and conditions depends on facts of each case.

Quashing of 498a