How to Fight False 498a?

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.

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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….

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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)

Quash false 498a -Vague allegations in Fir The case of 498a can be quashed when there are vague the allegations in the FIR. A FIR is a first document on which whole investigation and chargesheet is based.

Stages of 498a

Chargesheet Stage in 498a and Framing of charge as well as Discharge.

After completion of investigation police will file charge sheet at this stage evidence of the police has to be seen. If there is no evidence or contradictory evidence then you can seek discharge.

Argument on discharge is an important stage in fighting false 498a.

If there is no statements of witnesses or no medical evidence then you may argue on discharge.

Prosecution Evidence and Defence Evidence as well as Cross examination

Evidence-based prosecution’ (sometimes termed “victimless prosecution”) refers to a collection of techniques utilized by prosecutors in domestic violence cases to convict abusers without the cooperation of an alleged victim. It is widely practiced within the American legal system by specialized prosecutors and state’s attorneys and relies on utilizing a variety of evidence to prove the guilt of an abuser with limited or adverse participation by the abuser’s victim, or even no participation at all.

Cross-examination of a person called to produce a document (S. 139):

A person summoned to produce a document does not become a witness, by the mere fact that he produces it, and cannot be cross-examined, unless and until he is called as a witness.

A witness summoned merely to produce a document does not become a witness for purposes of cross-examination, since he may either attend the Court personally or may even depute any person to produce the document in Court.

A witness may be cross-examined as to previous statements made by him in writing (or reduced into writing), and relevant to matters in question, without such writing being shown to him, or being proved. However, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

Final Arguments and Judgement Stage

concluding statement of each party’s counsel reiterating the important arguments for the trier of fact, often the jury, in a court case. A closing argument occurs after the presentation of evidence. A closing argument may not contain any new information and may only use evidence introduced at trial. It is not customary to raise objections during closing arguments, except for egregious behavior.[1] However, such objections, when made, can prove critical later in order to preserve appellate issues.

 

 

 

498a Misuse Supreme court recent Judgement

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

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In Arnesh Kumar vs State Of Bihar & Anr

We are of the opinion that if the provisions of Section 41Cr.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 41Cr.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

Quash 498a -Vague allegations in Fir The case of 498a can be quashed when there are vague the allegations in the FIR. A FIR is a first document on which whole investigation and chargesheet is based.

 

 

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A FIR is bible for getting evidence and eventually to secure conviction of an accused based on the evidence, therefore a FIR must contain all the material facts related to an offence. It also must contain all the specific ingredient needed for satisfying an offence and material through which investigation may proceed. if a FIR misses material facts then it is a vague FIR which can be quashed by invoking the jurisdiction of 482 CrPC. Image result for 498a quash Some believe that if a FIR satisfies the ingredients of an offence it is not the case for being fit for quashing but this preposition is untrue under the light of the judgement In R.P. Kapur v. State of Punjab (AIR 1960 SC 866) the apex Court summarized some categories of cases where inherent power can, and should be exercised to quash the proceedings. (i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction; ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged; (iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. so lack of evidence is another ground for quashing proceedings. A FIR containing quite vague, general and sweeping, specifying no instances of criminal conduct can be quashed even if the FIR constitutes and satisfy the ingredients of an offence. It is held in Vishalbhai Niranjanbhai Adatiya … vs State Of Gujarat & on 9 December 2015 It is a matter of common experience that most of these complaints under section 498A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.

Quashing of 498a happens in very rare occasions may be 5% cases are eligible for quash 498a. The 498a case can be quashed on the basis of vague allegations on relatives.

But mostly on the quashing of 498a happens on the basis of Jurisdiction.

Test if FIR can be quashed on basis of Jurisdiction

To quash 498a the most common test is if the FIR is filed in parental home and she alleges allegations in the matrimonial home. Then there are good chances to quash 498a based on such facts.

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Judgments to quash 498a on grounds of Jurisdiction

Territorial Jurisdiction under section 177 Crpc

In Manish Ratan V state of MP 2007 (1) SCC 262 Merely wife was forced to leave home to Datia from Jabalpur, the courts at Datia will have no jurisdiction. In this case, the case was transferred to Datia from Jabalpur.

In Manoj Kumar Sharma Vs, State of Chattisgarh 2016 (9)SCC 1

The offense of dowry death happened in Ambala but Fir was lodged in Chattisgarh there was no allegation of continuing cruelty, therefore, registration of FIR in Durg was without jurisdiction and hence it was quashed.

In Dharam Raj V state of UP.2006(2) ADJ 403

The allegation of dowry demand and harassment as per the FIR alleged to have happened in Tadwa, Jaunpur Sultan pur and Gorakhpur the courts in Lucknow was held to have no Jurisdiction.

Hiralal Agarwal Vs. State of Orissa 2006 Cri LH 3809

Complainant stayed in Talcher and FIR was lodged in Bargarh demand of dowry alleged to have taken place in Talcher and no allegation in FIR to suggest that the demand of dowry took place in Bargarh the proceedings pending in Bargarh court was quashed.

Debabrata Saha V. State of Jharkhand.

The demand of dowry and harassment was confined to matrimonial home at Kolkata and no demand of dowry took place in Dhanbad. Acceptance of dowry articles in Dhanbad also does not constitute an offense or part of the cause of action.

Regards,

Advocate Nitish Banka

(Practicing in Supreme Court of India)

[email protected]

Quash 498a FIR registered at wrong place

Quash 498a

Quashing of 498a happens in very rare occasions may be 5% cases are eligible for quash 498a. The 498a case can be quashed on the basis of vague allegations on relatives.

But mostly on the quashing of 498a happens on the basis of Jurisdiction.

Test if FIR can be quashed on basis of Jurisdiction

To quash 498a the most common test is if the FIR is filed in parental home and she alleges allegations in the matrimonial home. Then there are good chances to quash 498a based on such facts.

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Judgments to quash 498a on grounds of Jurisdiction

Territorial Jurisdiction under section 177 Crpc

In Manish Ratan V state of MP 2007 (1) SCC 262 Merely wife was forced to leave home to Datia from Jabalpur, the courts at Datia will have no jurisdiction. In this case, the case was transferred to Datia from Jabalpur.

In Manoj Kumar Sharma Vs, State of Chattisgarh 2016 (9)SCC 1

The offense of dowry death happened in Ambala but Fir was lodged in Chattisgarh there was no allegation of continuing cruelty, therefore, registration of FIR in Durg was without jurisdiction and hence it was quashed.

In Dharam Raj V state of UP.2006(2) ADJ 403

The allegation of dowry demand and harassment as per the FIR alleged to have happened in Tadwa, Jaunpur Sultan pur and Gorakhpur the courts in Lucknow was held to have no Jurisdiction.

Hiralal Agarwal Vs. State of Orissa 2006 Cri LH 3809

Complainant stayed in Talcher and FIR was lodged in Bargarh demand of dowry alleged to have taken place in Talcher and no allegation in FIR to suggest that the demand of dowry took place in Bargarh the proceedings pending in Bargarh court was quashed.

Debabrata Saha V. State of Jharkhand.

The demand of dowry and harassment was confined to matrimonial home at Kolkata and no demand of dowry took place in Dhanbad. Acceptance of dowry articles in Dhanbad also does not constitute an offense or part of the cause of action.

By Adv.Nitish Banka

[email protected]

Enhancement of Maintenance under DV act in favor of wife

Enhancement of Maintenance under DV act in favor of wife

The enhancement of maintenance under the domestic violence Act is entertained under Section 25 of the domestic violence act, 2005.

Section 25(2) is the particular section that deals with the enhancement of maintenance under the Act.

The only requirement under section 25(2) is change in circumstances for enhancement of maintainance.

What are change in circumstances

Enhancement in maintenance for wife-Change in circumstances

Gen really the maintenance amount is awarded keeping in mind the status enjoyed by husband family.

The court grants maintenance under the DV act in such a way that the maintenance granted to the wife is neither too luxurious nor too penurious.

If a wife is able to show that the status of the family of a husband has increased significantly then she is entitled to enhancement of maintenance.

As held in Bhagwan Dutt Vs. Kamla Devi

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Husband earning more

if the husband starts earning more then that also leads to change in circumstances and enhancement of maintenance.

The plain import of Sub-section (1) of Section 127 is that a provision is made therein for an increase or decrease of the allowance consequent on a change in the circumstance of either party at the time of application for alteration.

Here, the allegation is that the source of income of the husband had increased. Therefore, the proper course to be adopted in this case is to remit the matter to the Magistrate for inquiry afresh on the petition filed by the petitioner.

As held in Meenakshi Ammal

In Punn Deb 51 Cr Lj 961 In domestic relation law change of circumstances includes post order circumstances which would include post order circumstances which justify the need of modification of the order.

By-: Adv. Nitish Banka