I think Mr. zeeshan specifically elobrate all the practical situations.
Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com) 25 February 2017
I think Mr. zeeshan specifically elobrate all the practical situations.
Dinesh 19 October 2017
Hello sir - need some advise on my situation. Can you please let me know your views.
1. Can a husband file 498a against wife - I have mail from her father (before all the FIR, case etc happened) asking for money
2. Wife has made a false OBC cert (she is general category)
3. Her brother has made false marriage certificate.
4. 498a on me is in progress. Court has denied maintenance as she is working, but fixed for my son who is with the mother.
Ajay sharma 19 October 2017
Dear Rani Jain
a girl left her fathers house after marriage, join a new family , where lots of "Daanavas" waiting for her to mentaly torcher her, beat her , why she left her father home , just be their why eagar to marriage , girls live their should stay in their parentals home guy needs to stay alone at their home and be cheer , why marriage is necessary , girls and guys are fullfilling there phisical needs in modern socity before marriage ,if is it complsury
sasuraal jana hai ye soch hi hata do ,saari problem khatm , why need law ? guy just say bye bye this thought " shadi karni hai , stay out of fake faminim
Rima 10 March 2018
Rima 10 March 2018
Nitish Banka (lawyer) 24 April 2018
Nitish Banka (lawyer) 24 April 2018
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….
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.
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 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 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 498a
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 498a/406
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.
(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…
Nitish Banka (lawyer) 20 June 2018
https://www.youtube.com/watch?v=ICe0JYNbKv8
Divorce on Adultery
Under the Hindu Marraige Act, 1955 adultery word is not used in the Section 13 1(i) of the HMA 1955
13. Divorce- (1) Any marriage solemnized, whether before or after the
commencement of the Act, may, on a petition presented by either the husband or
the wife, be dissolved by a decree of divorce on the ground that the other party-
(i) has, after the solemnization of the marriage had voluntary s*xual intercourse
with any person other than his or her spouse;
Divorce on Adultery
Now How to prove Adultery in Indian Courts?
The courts in India puts heavy burden on the person who is saying that his estranged spouse and invoked the provision of section 13 1(i) of the HMA 1955. Anything short may come under the cruelty ground and petition of divorce can be dismissed, therefore it very important to consider whether constitute adultery or not.
Though direct evidence of adultery is rarely adduced but largely the evidence is circumstantial.
What are the facts that can prove adultery?
Since circumstantial evidence is the basis of proving adultery, the circumstance like wife and her paramour lived in a Hotel for 1 night and no explanation is given by the wife to this effect then adultery is presumed for this entry in Hotel register, CCTV footage with certificate under section 65B of IT act. It is important to make paramour also a party to the suit though no decree can be sought against the paramour. it is important the evidence of witnesses in are of equal weight age like A Husband brings his girlfriend to house in absence of wife and take her into bedroom. the witnesses can be grown up children, neighbors, maid etc. These are the circumstances where adultery can be presumed.
But a mere suspicion that wife was not home whole night is not enough to prove adultery. There should be voluntary s*xual intercourse and if husband tries to create a situation wherein a wife is left alone with male person not his husband under such circumstances it is not adultery. A rape on wife is not adultery.
Even if the paramour of the wife writes filthy letter that too also does not come into an ambit of adultery. what adultery is in the eyes of a reasonable man? that circumstances are such that a reasonable man would think its adultery. like wife is living with paramour for more than 7 months . Another thing is merely having flirtatious conversation with a person not his/her husband/wife does not mean adultery, though it can come under mental cruelty. Wife conceiving a child and husband was away for 365 days is a conclusive proof.
Conclusion
The ingredients for proving adultery are like the facts in which the intimacy is such that in the eyes of the reasonable man, such intimacy is there, credible evidence needs to be produced before the court to prove adultery merely on the basis of whims fancies suspicion the same cannot be proved. The court also put the heavy burden of proof on the person alleging. Divorce on adultery is difficult.
Advocate Nitish Banka
9891549997
nitish@lexspeak.in
Nitish Banka (lawyer) 05 July 2018
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.
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.
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.
Matrimonial discords are common in marriages sometimes relatives make it a bigger issue. Negative relatives can lead to false 498a cases.
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.
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….
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.
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 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 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 498a
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 498a/406
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.
(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…
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.
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.
Regards,
Advocate Nitish Banka
(Practicing in Supreme Court of India)
nitish@lexspeak.in
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