Husband commited 2nd marriage before divorce
Suraj Kumar
(Querist) 22 February 2015
This query is : Resolved
Respected Sir,
• I leave my husband’s home on 06/07/2010 due to mental torture.
• Thereafter I living in my parents’ house.
• My husband is a government servant.
• I claim maintenance u/s 125 CRPC.
• Court grants maintenance for me.
• My husband files RCR.
• In reply I disagree to live in the family of my husband but agree to live with him in somewhere else.
• My husband withdraws RCR.
• My husband forces me for mutual divorce as he is in a relationship with a girl named Priyanka.
• I disagree as he might marry that Priyanka.
• In spite of that he living together with Priyanka in his own house.
• Priyanka is now pregnant by my husband. My husband never married Priyanka legally.
Can I file any case to remove my husband’s illegal wife?
Can I file any case to remove my husband from job?
Kindly help me to send my husband in Jail for lifetime.
Advocate M.Bhadra
(Expert) 22 February 2015
Lodge a complaint against your husband to the Police Station and file a Criminal Case in Judicial Magistrate Court u/sec.156(3)Cr.P.C. charge with sections 498a,406,494 IPC for treating your complaint as an FIR. After obtaining an order serve a copy to the higher authority of your husband's office.
T. Kalaiselvan, Advocate
(Expert) 22 February 2015
You can lodge a complaint with the police against your husband for the offences of adultery.
Suraj Kumar
(Querist) 22 February 2015
Respected Sir,
Can I file 498a IPC if I have no sufficient proof of torture as I have no medical document and my husband never demand dowry?
My advocate tells allegation of adultery can be filed only by that woman’s husband who committed adultery. I believe my husband will never complain against self.
Devajyoti Barman
(Expert) 22 February 2015
This is a issue of bigamy u/s 494 IPC not adultery of he has committed 2nd marriage.
This is enough incident of troture for which you can file case u/s 498A IPC along with 494 IPC.
ajay sethi
(Expert) 22 February 2015
your husband has never married priyanka legally . so no case of bigamy is made out . you can file case of adultery against him . sending your husband to jail wont solve your problems . if he goes to jail how will he pay you maintenance . better divorce your husband on grounds of adultery and seek maintenance
Rajendra K Goyal
(Expert) 22 February 2015
If your husband agree try for Mutual Consent Divorce. If does not agree proceed as advised by the expert ajay sethi.
Suraj Kumar
(Querist) 22 February 2015
Respected Sir,
I consult with my advocate and he says bigamy u/s 494 IPC cannot be proved as my husband will never legally married with Priyanka until get divorce from me. If I file any criminal case and my husband is in jail then I may not get any maintenance and my son’s education may be interrupted as I solely depend on maintenance.
Kindly advise please.
Dr V. Nageswara Rao
(Expert) 23 February 2015
1. As your husband is not married to Priyanka, there is no bigamy.
2. If Priyanka is unmarried, there is no criminal case of adultery. Adultery is a ground for divorce but you are not in favour of it. In that scenario, Priyanka's pregnancy makes little difference.
3. You want to live with him on your terms, and want to separate him from his parents. He wants to live on his own terms.
4.Please do not adopt revengeful attitude towards your husband. You have actually created a situation where he had to live with another woman, if this is true.
5 The only decent and fair solution is to go for divorce by mutual consent.
T. Kalaiselvan, Advocate
(Expert) 25 February 2015
The last but not least advise given by expert Dr. Nageswara Rao seems to be very apt and better to the situation you face now, the ball is in your court now, decide wisely.
Biswanath Roy
(Expert) 26 February 2015
From the given facts it appears husband's alleged relation with Priyanka does not attract Sec.494 or 497 IPC because it is neither a case of Bigamy nor an Adultery.
Husband has simply a sex relation with an unmarried girl. Only remedy in this situation is to lodge a complaint by the wife u/s. 498-A IPC against the husband i.e., complaining harassment and cruelty on the ground of illegal sex relation and live together with a girl and to report the same to the higher officials of the Government
In the present scenario I shall not advice to go for Divorce because of the fact to get relief from headache one cannot decide to cut off his head instead he goes to a good doctor who can prescribe proper medicine for relief. The situation in this case is similar. So my prescription in this case is to file a complaint in the local Police Station against the husband u/s.498-A IPC complaining mental cruelty and harassment caused for keeping illegal sex relation with Priyanka, an unmarried girl who became pregnant. But such complaint must be made by the wife or her father otherwise law will not take any cognizance and to treat such complaint as F.I.R. If the P.S. does not treat it as F.I.R. in that event complainant wife can file an application before the Judicial Magistrate u/s. 156 (3) Cr.P.C. for a direction upon P.S. to treat the complaint as F.I.R and proceed with an enquiry and to submit report in the court. Sec.498-A ipc is a cognizable offence and non-bailable and non-compoundable. If upon an enquiry it reveals that the allegation is true then the husband will be arrested and shall be jailed. The husband as a Government employee may face such a situation which will call peril.
Dr V. Nageswara Rao
(Expert) 26 February 2015
The husband allegedly had relationship with Priyanka, AFTER the wife stopped living with her husband. So, the allegation of cruelty by a wife who left her husband will not stand in the Court.
Biswanath Roy
(Expert) 26 February 2015
I differ with the views of Learned Dr. V. Nageswara Rao. The author categorically stated that in reply to the RCR petition filed by her husband she expressed her desire to live with the husband at a separate place which significantly discloses her desire to continue married life. Besides,facts narrated by the author sufficiently comes under the purview of sec.498-A IPC
Suraj Kumar
(Querist) 05 March 2015
Respected Sir, Thanks for valuable advise,Maintenance granted u/s 125 CRPC stayed by High Court and the stay order extended. I have file execution case as per lower court order although my husband pays as per HC order.He may file 340 CRPC.
Devajyoti Barman
(Expert) 07 March 2015
Bigamy applied to illegal marriage only. I wonder if he marries legally then how bigamy applies.
Once a person already married marries another lady then he comes under the purview of bigamy.
Dr V. Nageswara Rao
(Expert) 07 March 2015
Mr. Biswanath Roy: The issue relates only to what the husband has done AFTER the wife left him. If the wife says that she will not live with her husband UNLESS he leaves his parents, may amount to desertion and cruelty on her part.
Mr. Devajyoti Barman: Your two propositions appear to be contradictory.
Guest
(Expert) 07 March 2015
Ms. Arunima,
It is quite strange that you don't want to ive with your husband, you have got maintenance also for living separately, still, you want that the lady should be ousted out of zealousy. You cant dictate terms, while living separately.
I m not a supporter of illicit relations. But when you are living your life with your own style and getting appropriate compensation, why your husband should feel any bondage with you?
However, your queries are replied as follows:
(1) First of all, as against your perception, when not married with your husband, Priyanka cannot be treated as wife of your husband. Secondly, when you are living separately with maintenance and dclined proposal of RCR, you have lost your right to file any case to remove your husband’s girl friend (NOT illegal wife), may she be reiding with him?
(2) Since your husband has not remarried so far, you can't file any case to remove your husband from job?
(3) You should not have expected the experts to help you to send your husband in Jail for lifetime without any reason and rhyme. Moreover, it seems you can't digest the maintenance amount being paid by your husband. If by hook or crook you manage to send him in jail for life, you will have to spend a beggar's life by becoming a sole burden on your siblings, if not employed, as your maintenance would be stopped due to nil income of your husband on being dismissed from service.
BETTER THINK WITH COOL HEAD. YOU WILL BE LOSER FROM ALL ANGLES ON THE BASIS OF YOUR UNETHICAL IDEAS. SO, THROW THE CRIMINAL OUT OF YOUR MIND. THINK ON THE LINES & ETHICS OF A NOBLE FAMILY MANNER.
Biswanath Roy
(Expert) 07 March 2015
@ Learned Dr. V. Nageswara Rao,
I am sorry to say that the questions newly raised by you an hour before are not in consonance to the queries made by the author. Hence said questions are aparrently irrelevant and unwanted.
Dr V. Nageswara Rao
(Expert) 07 March 2015
Mr. Biswanath Roy: No, I have not raised it for the first time.
****This is what Ms Arunima raised: Can I file 498a IPC if I have no sufficient proof of torture as I have no medical document and my husband never demand dowry?
My advocate tells allegation of adultery can be filed only by that woman’s husband who committed adultery. I believe my husband will never complain against self.
****This was your advice: "Husband has simply a sex relation with an unmarried girl. Only remedy in this situation is to lodge a complaint by the wife u/s. 498-A IPC against the husband i.e., complaining harassment and cruelty on the ground of illegal sex relation and live together with a girl and to report the same to the higher officials of the Government."
When she has no proof of harassment, how can she file a case of S. 498A for living with his girl-friend after the wife deserted him?
Biswanath Roy
(Expert) 08 March 2015
@ Learned Dr. V. Nageswar Rao,
On the question of application of Sec.498-A IPC i opined " Besides, facts narrated by the author sufficiently comes under the purview of Sec.498-A IPC". Here I used the word FACTS which means an act or condition of things, assumed as happening or existing. It also means a primary fact which can be established by direct testimony and from which inferences are made leading to ultimate facts.
Guest
(Expert) 08 March 2015
Dear Dr. V. Nageswara Rao,
I endorse your views that the case does not fall within the purview of Sec. 498A. Ms. Arunima has no proof of cruelty, what to say of sufficient proof of torture. In view of description made by the querist, torture or cruelty can safely be alleged only on her part, not on her husband.
Guest
(Expert) 08 March 2015
Dear Shri Biswanath Roy,
If you please don't mind, desertion at her own (not expulsion by husband or his relatives), her disagreement (refusal) to live in the family of her husband at his place, her desire to live somewhere else, despite RCR by husband, her disagreement for mutual consent divorce, all such events are indicative of her total unwillingness to live with her husband's place on one or the other pretext or to take divorce from him. In my views, that tends towards dictating her own arbitrary terms to his husband tending to total distress of his husband and other family members intending to break the existing family of the husband.
RCR is meant for reunion with mutual consent by making compromise with each other's terms, as far as possible, but not a one sided affair of arbitrary terms.
You would like to appreciate that a boy is not married by his parents to get cut off forever. So, according to my views, her acts can be termed as cruelty on her part towards her husband and his family, rather than on the part of her husband.
So, Sec. 498A has no relevance in her case, when she has no problem, rather her intention seems to create an undue problem for her husband and her family out of cruelty or vendetta on her part. Even her desire to see her husband in jail for the whole life, in spite of her maintenance problem having been solved for living her own life style separately.
Further, as against her statement, her husband has not made second marriage pending divorce. If she choses her own life style, his husband can also fee free to live his own life style, may with some other girl with live-in relation by having no marital relations. What I guess, her husband has resorted to such course of action just for making her envious of another girl on account of her unagreeable stiff terms.
Guest
(Expert) 08 March 2015
Dear Shri Devajyoti and Bhadra ji,
You may also like to make a review of your reply, as sec. 494 IPC has no role to play, as the husband has not remarried pending divorce, as against the contention of the querist. In fact, neither her husband made second marriage, as per her own statement, nor any case of divorce is pending, as she stated to have disagreed for divorce.
FOR KIND ATTENTION OF SHRI M. BHADRA: Similarly, Sec. 406 IPC has also no role to play, as in my views, her husband has not indulged in breach of trust. Rather, from the sequence of events, as referred to in my post addressed to Shri Biswanath ji, breach of trust seems to have been committed by the querist. She could have complained about breach of trust only if her husband indulged in to the act of illicite relations during her stay with her husband. The event of live-in relation has happened only after she deserted her husband, that too when she is not able to budge from her dictatorial terms.
So, in nutshell, the querist can only have the opportunity of getting divorce from her husband on account of his illicite relations with anther girl. Bbut she is not ready even to do that.
Biswanath Roy
(Expert) 08 March 2015
Learned Dhingraji,
I differ with your views and observations based on mere a guess work. It is true that the author left her in-laws house voluntarily and had to return back to her parents house but why? From the given facts it appears that she is reluctant to live with the family members of her husband but ready to live with the husband at some other place which raised sufficient apprehension and doubt that she was mentally tortured and harassed by the family members of her husband and when such situation became to an extreme point she left the matrimonial house.
The above facts definitely attracts Sec.498-A IPC because the acts of the husband's family members and husband's silent support to that and thereafter living with another girl created anguish and affected mental health.
Advocate M.Bhadra
(Expert) 08 March 2015
Illicit relation with other women is also causes mental cruelty.
Ingredients of Section 498 A
“498A. Husband or relative of husband of a woman subjecting her to cruelty–Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty
The basic essentials to attract this section are: a) The woman must be married b) She must be subjected to cruelty or harassment; physical and mental c) Such cruelty or harassment must have been shown either by husband of the woman or by the relative of her husband.
T. Kalaiselvan, Advocate
(Expert) 08 March 2015
The author has not come with her answers on the subsequent doubts/queries raised by experts despite there had been heated debates among experts on all the possibilities and improbable issues. My opinion is similar to that of expert Mr.Dhingra who has very clearly clarified the intention and stand taken by the author and his opinion appears to be more suitable because from the query it appears that the author is trying to extract ideas from experts here to achieve her wrongful or ill motives she may be planning to execute. This is not to justify the husband's illicit affairs with some other woman but to bring to light the author's plans/intention behind her query.
Biswanath Roy
(Expert) 08 March 2015
Ld. Mr. Kalaiselvan,
Look at your opinion posted 14 days ago wherein you advised the author to file a complaint against her husband in the Police Station for adultery.
Also look at your post made about 11 days ago wherein you accepted the opinion of Expert Dr. Nageswara Rao and commented that the ball is in the court of the author.
Now you accepted the opinion of Mr. Dhingra.
How many times an Expert can change his views on the same subject and opine contrarily?
Guest
(Expert) 08 March 2015
Biswanath ji,
I hope you would like to agree with me that every one of the experts have to make his opinion on some guess work, as per his vision and interpretation, as the replies are based merely on the too little version of the querist, not on the basis of his/her case related papers. The crux of the problem is that she has put wrong information before the experts about second marriage pending divorce. Most of the replies are based merely on her wrong version of the facts, while as per her own description, neither her husband has made 2nd marriage, not any divorce case is pending in the court.
As regards your contention that my views and observations are based on mere a guess work, if you don't mind, your views and observations are also based on mere a guess work when you say, "IT APPEARS that she is reluctant to live with the family members of her husband but ready to live with the husband at some other place which raised sufficient APPREHENSION and DOUBT that she was mentally tortured and harassed by the family members of her husband and when such situation became to an extreme point she left the matrimonial house." Contrarily, she has never described the background history, the nature of mental torture and by whom.
So, your guess is to a much greater extent than mine, as based without seeing any background history, while my contentions are based only on the facts narrated by her and her refusals, non cooperation, non-co,promise and the worst of that her ill-intention to see her husband in jail for the whole life, when as per her own statement she does not have any reason or proof with her against the husband for his cruelty or torture, except that she minds about his keeping another woman.
To be frank, my interpretation of the case was based solely on her own description of facts, not on any guess work. You must have observed, I do not immediately try to jump upon my judgment and wherever I get any dount, I ask various questions to the querist.
Guest
(Expert) 08 March 2015
Bhadra ji,
I have already given cogent reasons of my belief that too, as based on her own description of the problem/intention. Rather I believe, if she ventures to file a 498A case merely on the ground of keeping one lady with her husband, that is likely to bounce upon her only. When she has the intention to ruin her husband, naturally, why she should expect her husband not to retalliate her move to ruin her also.
However, if willing, she is quite free to launce a 498A case against her husband and take the taste of her venture.
Guest
(Expert) 09 March 2015
Dr Nageswara Rao,
Thanks for agreeing with me.
Biswanath Roy
(Expert) 09 March 2015
@ Learned Dhingraji,
My opinion and observation related to was not based upon guess work as alleged or at all in as much as you quoted the body of my say neglecting its head on it i.e.,the word " FROM THE GIVEN FACTS " which means an act or condition of things assumed as happening or existing it also means a primary fact which has been established by the author's own statement from which inference were drawn up as such.
Guest
(Expert) 10 March 2015
Dear Shri Biswanathh ji,
Leaving aside everthing else, I wonder, how you would prefer to justify case of 498A on her clear admission statement, "if I have no sufficient proof of torture as I have no medical document and my husband never demand dowry?"
So I don't think mere use of words, "from the given facts," can make the opinion as representative of all the facts.
Moreover, her desire to see her husband to be jailed for life if nothing but is representative of her vindictive and absolutely negative attitude on all other aspects also, in spite of her husband continuing to pay the maintenance even after the stay by the HC to live her own life style.
However, I wish her success in 498A case, if she prefers to file as per your advice.
Biswanath Roy
(Expert) 15 March 2015
Respected Dhingra ji,
I recognize you as a senior consultant dealing with various facets of law with some repute but sorry to say your views on this problematic issues are one sided and partial leaving aside entirety of the causes lying behind. In this context I must say that the girls of the present days are being married in between the ages of 25 to 36 years when they acquired self consciousness and become sensitive about self respect, moreover they are educated too. Maladies lying behind all such mal adjustment are aggressive and untollerable behavior of the husband's family and objectionable comments towards the bride's parents. That is why in such cases brides are being tortured mentally which ultimately led them to decide separate living with the husband. But sometimes husbands are so arrogant and egoistic that they care little about the grievance of their wives and are reluctant to reside separately with their wives.
Now let me deal with the legal aspect of this problem. The statement of the author is such that it can cover the ingredients of sec.498-A IPC off course by adopting explanatory method of argument. Sec.498-A is applicable in the case of harassment and cruelty. The term cruelty covers both mental and physical cruelty. Our present grievance falls under mental cruelty for which medical report is not necessary.
Thirdly, I am afraid to say that due to biological reason and its impact upon human body and mind all human beings cannot tolerate third party's appearance in their sex life, if it happens in any occasion the affected spouse become furious and even can murder the intruder or can commit suicide.
Guest
(Expert) 15 March 2015
Respected Biswanath ji,
It is a matter of individual interpretation. As an impartial person, I base my opinion on facts provided, circumstances, intentions of the party, etc., but not on mere presumptions, like, they "become sensitive about self respect, ......... educated too," or "sometimes husbands are so arrogant and egoistic." Only arrogance on both sides tend to cause separation, not mutual understanding, which is a must in matrimonial life. Moreover, if based merely on these reasons, only false petitions can be expected from any party against each other. That is why I suggested her to think with cool head before taking any initiative.
Anyway, she is quite free to file a suit against her husband based on your advice, if she has the proof, whereas she has already admitted, she does not have any such. I can only wish her success in her venturesome experiment.
Biswanath Roy
(Expert) 15 March 2015
Law is always debatable and Judicial pronouncement also reversible.
Guest
(Expert) 15 March 2015
Respected Biswanath ji,
Of course, law is debatable and judicial pronuncements also reversible, but as a very experienced lawyer, you would also like to appreciate that sentiments or emotions of a petitioner have no locus-standi in pronouncements in the absence of any vital proof.
Moreover, false cases often lead towards ruin of both the parties monetarily and morally also for life, besides loss of mental peace, on account of resultant revengeful chain reactions from each side. So, I am NOT in the habit of earning cheap popularity by giving false hopes to any party by misguiding any person. I express frank opinion in a bid to make him/her aware of the expected results of his/her desires and intentions.
Rest all depends upon the wisdom of the concerned party, if he/ she prefers to proceed otherwise.
Biswanath Roy
(Expert) 15 March 2015
Respected Dhingra ji,
Petitioners are laymen naturally they possess emotion and sentiments. They can state the facts of the case and may claim some odd relief. I personally faced such situation many times in my professional life even while I conducted some high profile cases where client acted as a supreme command. To be frank to you even Mr. Nani Palkhiwala the eminent Barrister also faced the same situation while he moved Appeal petition of our Late Prime Minister Smt. Indira Gandhi in her election case in the year 1975 before the Supreme Court. While our Late Prime Minister P.V. Narashimah Rao apprehended arrest in some criminal cases I opined him to file counter cases against the O.P. as a strategic measure to frustrate possible arrest, at that time I found him emotional. In recent time my friend Mr. Kapil Sibbal had to accept the case of State of West Bengal vs. C.B.I to move the same before the Apex Court he also faced emotions and sentiments of his client. But under such circumstances we the Senior Counsels without displeasing our clients cooked up strategic planning within the purview of law to obtain desired relief for our clients.
Guest
(Expert) 15 March 2015
Respected Biswanath ji,
There is no doubt, almost all petitioners are laymen and possess emotion and sentiments, but side by side, unlike the high profile power & prestige hungry resourceful politicians and other effluent celebrites, they have very little resources to face the outcome of their emotions and sentiments. The high profile politicians and other effluent celebrites can afford well to flow funds like water to maintain their positions and ego, but not common folks, who have to repent later, if they resort to undue litigations. That is the reason that the eminent lawyers also charge their huge fee only to help keep the emotion led high profile celebrites to gamble with truth and falsehood. Contrarily, the querist, who come here for charity advice mostly are unable to bear with even the most moderate fee of the lawyers.
As such, the querists here at LCI cannot equate themselves with Smt. Indira Gandhi and Shri Narsimha Rao and also the querist lady in the present case would also not have preferred to seek free advice here at the LCI, had she been so effluent to afford hiring of services of eminent barristers, like Nani Palkhiwala or Kapil Sibbal. Had she been capable to afford, she could well have gone straight to such renowned advocates. We have to show them the right way not to falsely get flooded out due to their emotions and sentiments.
So, if we cannot show them the right way, we should not be so rude to mislead them to the path of their ruin.
Dr V. Nageswara Rao
(Expert) 15 March 2015
Mr. Dhingra: I agree when you say: "So, if we cannot show them the right way, we should not be so rude to mislead them to the path of their ruin." In LCI, our duty is to correctly advise the querists who may not be affluent. LCI does public service. We have to advise them on the basis of law as it stands now. If we lead them on a path of speculative litigation, parties who are already hapless will become helpless.
Biswanath Roy
(Expert) 15 March 2015
Respected Dhingra ji,
It appears that you might have been influenced by Holy Bhagbat Gita to show the right path to avoid unnecessary (according to you) litigation.Litigation itself is a legal speculation We the legal experts of LCI are concerned to give reply to the queries of the authors but not otherwise as professional. I disagree with your views that querists are not monetarily sound that led them to seek for charity advice. Firstly because it is a kind of insult to querists and secondly, it is quite untrue in as much as some querists privately took my opinion and consulted personally by paying me my usual fees which is a fat sum and even they appointed me in their cases as Senior Counsel paying 5000 Gms.= Rs.85,000/- per appearance plus other amenities which comes to another one lac of rupees to win the case and they won.
Guest
(Expert) 16 March 2015
Respected Biswanath ji,
Not only to say of Bhagwat Gita, I always try to follow rational & noble ideas contained even in epics of Ramayana, Bible, Quran, Guru Granth Sahib, etc. and even if ideas come from individuals (may be you or someone else) that convince me and are beneficial to serve interest of common masses.
I know litigations in most cases are legal speculations, but only when proof is wanting or not presented intentionally by any party. Naturally, when some litigant party has specific proof in his favour scope of speculation becomes absent or remain to be the barest minimal.
Biswanath Roy
(Expert) 16 March 2015
My dear friend Dhingra Sahib,
I really pleased to learn that you are being motivated by religious cocktail but I am bit different being brought up under British discipline from my childhood and up to my College life, thereafter, I was assistant to some eminent English Barristers who were known as legal luminary and as such I was motivated by hard reality of continental cocktail.
In the context of the subject query I need add here that in a same similar and identical case I opined a lady querist in this portal who had no proof of bigamy u/s.494 IPC and mental cruelty u/s.498-A IPC. She being hopeful by my opinion came at Kolkata from Mumbai by flight and sat with me in a conference with her parents, when I advised them to engage a Private Detective Agency to collect photography of her husband and his female partner when they will be in a close mood together. My client sought my help to find out an expert Detective Agency at Mumbai which I complied with. Within 15 days said Detective Agency could able to bring photographs of my client's husband while he was in close mood with his partner compleatly in naked position. Ultimately my client engaged me to lead this case at Mumbai as a Senior Counsel on usual professional terms and I won that case.Although my client was from a middle class family but they spent three lakhs for me with a sweet remark that" God sent me to them."
Guest
(Expert) 16 March 2015
Dear Biswanath ji,
I consider biagamy (Sect. 494 case) and mental cruely (sec. 498A case) at entirely different footing. Bigamy can be termed as breach of trust btween both the husband and wife, but most of the 498A cases are found to be fabricated and false tending towards blackmailing of husband and his parents by misuse of the law. Where smart literate women approach the court, only in few cases 498A can be said to be justified. Contrarily, in the cases of the innocent and illiterate/ semi-literate women, in whose case cruelty happens in reality don't come forward for justice, as nobody tries to help them.
So, in my view, both the types of cases can not at all be equated in any way.
Falseness in rare cases can be said to be fair only when bare truth has to be exposed, not otherwise.
Biswanath Roy
(Expert) 16 March 2015
My dear friend Dhingra Sahib,
Misuse of law is being practiced all over the world. So also misusing sec.498-A IPC in our country is an established fact now a days which is being practiced by some scrupulous and man haunted wives. This material fact also admitted by the Hon'ble Chief Justice of the Apex Court. But that is not the cause for failure in most of the cases u/s.498-A IPC. the real hindrances lying behind such failure are lack of knowledge in Evidence Act and failure in highlighting intricate points of law in consonance to the legal issues relating to the ingredients of that particular provision and to place the same before the court following appropriate legal reasoning to establish the fact of harassment and cruelty in consonance to the material facts related to and more particularly emphasizing upon its mens rea. Now a days what I noticed our professional brothers are following the principle "committing from books and vomiting on the paper."
Guest
(Expert) 16 March 2015
If misuse of 498A is being practised, it is not our compulsion that we should also support. Injustice in the name of justice is a must to be avoided, as far as possible, so that people may not lose faith in judicial system that may lead to anarchy at some stage. NIP THE EVIL IS THE NEED OF PRESENT TIMES.
In fact, there is a dire need to add a proviso along with sec.498A to make a provision of stringent punishment for the persons filing any false case. Only that can discourage misuse of sec.498A
Biswanath Roy
(Expert) 17 March 2015
May be the legal rights of males who are a section of our society are essentially needed to be protected by inserting a proviso in sec.498-A IPC within the framework of our Constitution yet as to the ethics of our legal profession we must not refrain from giving advice to the women to invoke sec.498-A against the harassment and cruelty caused due to bigamy of the husband.
Guest
(Expert) 17 March 2015
I consider giving of undue and unwarranted advice to the women to invoke sec.498-A, if not justified, is merely an unethical exploitation of the women folk. Any law expert should be expected be honest, sincere and impartial in giving advice at least at this charitable site. However, if a woman is pertinent to use 498A, she should hire a paid lawyer to pay the price for fulfilling her desires and ego, instead of seeking free advice by unduly expecting the experts to be partial to her opposit party without allowing him to defend his position.
However, if you believe merely in ex-parte decisions, nobody can stop you. That all depends upon your own volition and ethics. In that case there is no need for useless extended discussions.
Dr V. Nageswara Rao
(Expert) 17 March 2015
That was why I stopped participation in the discussion.
Biswanath Roy
(Expert) 17 March 2015
This is unfortunate to learn your decision Learned Dr.Nageswara Rao. Because in this platform we the experts exchange our legal views on certain topics among us and share it to enrich our knowledge other than advising authors from which we have been debarred to learn something from your end due to your non-participation.
In fact I follow legal ethics (which are being followed by ENGLISH and AMERICAN counsels) and principles of 'Jurisprudentia generalis' in my professional services which is dissimilar and conflicting with religious philosophy.
Guest
(Expert) 17 March 2015
Had you been following legal ethics followed by ENGLISH and AMERICAN counsels and principles of 'Jurisprudentia generalis' in your professional services, you would not have advised the lady for resorting to 498A without knowing the background of his husband, who would get harmed by your advice, more so when the lady had not met with any incident of cruelty. Had she been your paid client, I could have understood your compulsion. So, in my views, your advice about 498A to that lady on one-sided version of things did not match with ethics in any manner.
Contrary to your following, I don't follow any one. I follow my own set path of life & profession and prefer to set my own principles & precedents. For your information, I am not an orthodox person to follow any particular religion, as against your presumption, nor that has any role to play in law & justice. I do take some cues of ethics from any or every religion just to lead my general life in rational manner, not my professional life. I believe that any profession should not be allowed to be influenced by religion, caste or creed, as justice gets biased, rather tends to take form of injustice.
Biswanath Roy
(Expert) 17 March 2015
Thanks a lot to you Learned Dhingraji for your philosophy of thinking. With my best regards.
Guest
(Expert) 18 March 2015
You are welcome.
Biswanath Roy
(Expert) 18 March 2015
Learned Dhingra ji,
Taking an opportunity I remind you that some times trial Magistrates make inclusion of some offenses suo-moto in the charge sheet if he finds the alleged accused might have committed that particular offence without knowing his back ground or the entirety of the facts lying behind the curtain. Further I am ashamed to remind you THE BROADER MEANING OF LEGAL ETHICS & LEGAL JURISPRUDENCE which you might have overlooked. Therefore, I request you to read the following books to enrich your knowledge further before making any comment on the subject.
1. Legal Ethics 3 vol (1992) by Deborah L Publisher -Rhode & David Luban.
2. Jurisprudence --3 vol, by-John Salmond
Publisher- Glanville L.williams ed., 10th Ed.(1947) also read 'Precedent in English Law 2 vol'by Rupert Cross & J.W. Harris
Guest
(Expert) 18 March 2015
Respected Shri Biswanath ji,
With reference to your statement (extracted below) and recommending me to read the books with theoretical assumptions of writers and also the precident in English Law, I really wonder to know as if we are debating in a court of law for and on behalf of the querist and her husband as their lawyers:
EXTRACT:
"some times trial Magistrates make inclusion of some offenses suo-moto in the charge sheet if he finds the alleged accused might have committed that particular offence without knowing his back ground or the entirety of the facts lying behind the curtain."
About your aforesaid statement, I don't think I have the need to remind you, being such a senior and experience lawyer, that there is a vast difference between "offence committed" and "offence presumed to have been committed", as well as the "full length charge sheet" filed in the court of law and the "12 sentence statement" of the querist made at the LCI.
Moreover, I don't think the trial magistrate can be considered to be so ignorant person about criminal law to include any offence in the charge sheet even when he is informed and convinced with the confession of the petitioner that she does not have any proof and also that his "husband never demanded dowry". It need no emphsis, if the judge is biased, there is no limit for him to include any and every offence included in the law books of the whole of the world to see the husband hang him to death on several assumed offences. So, there must be some logic behind any argument with no place there for presumptions.
However, had you been her lawyer in real life, I would not have raised any objection to your making any presumption on any concocted ground.
So, I don't know where is need for extending thread too far merely on making one after the other illogical presumptions, when the lady herself has confessed about non-involvement of his husband to justify the need of making him prey of 498A case?
Biswanath Roy
(Expert) 19 March 2015
Thank you Learned friend Dhingra ji for your co-operation to participate in the long debate that made it convenient to ascertain the statistics of your legal knowledge and to measure your superb legal acumen by "chi-square method". THANK YOU ONCE AGAIN.
Guest
(Expert) 19 March 2015
Respected Shri Biswanath ji,
Should I think that you were testing my knowledge? Can I know if I have passed the test or not?
Biswanath Roy
(Expert) 19 March 2015
My Dear Friend Learned Dhingra ji,
I do recognize you as one of my beloved junior professional brother, how can I do your merit rating? But the fact is that I have taken up a laudable task of researching "Present Indian Judiciary and active role and participation of Advocates in it", for which I am noting down some aspects of mental sides of Juniors, Mid-Seniors and Seniors while they deal with their legal problems. Hope you will not take it otherwise.
Guest
(Expert) 19 March 2015
To call spade a spade is a part of my practice and I don't hesitate to say frankly. Anyone likes or not that is his discretion or problem, whatever we may prefer to call.
Biswanath Roy
(Expert) 19 March 2015
My dear friend likes, dislikes,or discretion are not the required ingredients in my research work. When I shall complete my paper I shall give you a copy.
Guest
(Expert) 19 March 2015
I hope your insights through the reseacrh paper would enhance my knowledge.
