Is Divorce Possible in this Case

There are judgment of some High courts, if wife file a wrong case of cruelty upon husbend, than it can become ground of divorce.  However, in your case since husbend is convicted, it will  not support his petition for divorce. This is not the ground as Hindu Marriage Act.  Adv. Khan Mumbai

Thank you for your promt reply Sir. My Sister is fearing that though my brother-in-law was convicted in 498-A case insitally in the sessions court later the higher Court i.e. the District Court acquitted my brother-in-law.

So since he is finally acquitted, can he say in High court that the 498-A case is false? Also he is contesting that on his Parents also 498-A was filed falsely just to take revenge as the initial court itself acquitted his parents.

Can he get divorce on these grounds?

Various HCs have held that if a wife files false cases on husband and in laws, it is cruelty to the husband and divorce can be granted on the ground of mental cruelty. So it depends upon the evidence on record whether the husband and the in laws were falsely implicated. Prima facie it appears that the husband has a good case.

Sir,  now you are saying that your sister wants to rejoin your husband after his acquittal from the criminal case..it lacks bonafide because ..your sister did not file any petition to restitute her conjugal rights with her husband..we cannot define what  are all the acts which amounts to cruelty..though there are decisions defining cruelty... in your case your brother in law cannot rely only on that ground i.e since criminal case was foisted u/s 498 a by my wife i want divorce..but it will be also taken in to consideration since he got acquitted by the first appellate court..on the other hand you have failed to state that  on what ground the divorce petition was dismissed by  the family court..if your brother in law had relied only on that ground ..he would be the loser...

 ......  my brother in law was convicted  ..........

.........  Now the District Court Order has come Acquitting the Husband also from the 498-A case.  .........

your both statements are contradictory. once you told - he convicted, and another time,  district court acuited. then where from he convicted?   for 498a at least 1st class magistrate required.  might be that court under the dist court, therefore appeal attended by district court.  now you have two  ways before you. either you try to convience him for reunion or go on appeal to high court.  i think you are financially weak. if so, and your case is on merit, go to high court.  there is a full posibility he will get divorce on the ground of false 498a. to resist it appeal is the only way.

Dear Members,

My Sister did not file RCR because she was advised by her lawyer that even if she files RCR her husband can still refuse the order and  then Divorce becomes more  easier. From the beginning my brother-in-law is very adamant and he is strongly looking for Divorce.

Apart from filing false 498-A his case is that there is 1.5 years of desertion from my Sister’s side and he alleged that my Sister is lazy and did not perform matrimonial duties and other silly reasons.

The family court dismissed his divorce petition  because by that time, he was not convicted by Sessions court in 498-A case and the family court judge said in the divorce order that just simply filing 498-A case cannot be considered as cruelty on wife’s side and other reasons are not enough to grant decree of divorce. The family court Judge also said that there should be 2 years of desertion to consider desertion clause

So in this case, could you please advise if  there any merits for her husband’s side.

Arup Sir,

My Brother in law is convicted in Sessions Court where-in the First class Magistrate convicted him and  acquitted his parents. Later my Brother in Law went for appeal again his conviction in 498-A case in District court which is higher than the Sessions court where-in he is acquitted by Additional district Judge.

Already my Sister’s husband went for appeal for the divorce case which was dismissed in family court. So In this case, Can my sister again go for an appeal in High Court?

On what basis my sister can file the appeal? Please suggest.

Thank you all..

Summary of your issues here:

1. Your sister filed 498 A case.

2. Your brother in law filed divorce case, rejected due to insufficent ground and 498 was pending an appeal is pending for same in HC.

3.By court or by appeal all got acquitted by court finally (trial or by appeal).

So your 498 A case was false and your brother in law to get divorce on false 498A grounds and he can bring this new reason during his appeal or he can also file revision in family court itself with new circumstances and grounds.

Your sister seems to be funny one side she wants to put her husband behind jail and other side wants to live with her. Remember husband is not pet, you can file petition to HC against aqcuital of husband but then intention of your sisters really unbeliveable to live with her husband. Also no seriousness is show from your side for rejoining as said above no RCR or any other serious effort is made.

Do one thing leave that guy on humanity basis and pray with god if he dont file cases against you.

Already my Sister’s husband went for appeal for the divorce case which was dismissed in family court. So In this case, Can my sister again go for an appeal in High Court? On what basis my sister can file the appeal? Please suggest.

-- YOUR BROTHER IN LAW ALREADY IN APPEAL AGAINST THE FAMILY COURT ORDER.I UNDERSTOOD THAT HE WILL RAISE THE RESULT OF 498 AS A REJOINDER, WHICH WILL STRENGTHEN HIS  CASE.

-- YOUR SISTER ALSO HAVE THE RIGHT TO FILE AN APPEAL, AGAINST THE ORDER OF 498A. AS HER HUSBAND'S APPEAL IS PENDING, THEREFORE SHE CAN NOT FILE - IT IS NOT THAT.SHE HAS FULL RIGHT TO GO ON APPEAL.

-- GROUNDS FOR APPEAL SHOULD HAVE TO SEARCH WITHIN

THE JUDGEMENT,

WITNESS AND;

EVIDENCES.

HIS AQUITAL MAY ALSO BE CHALLENGED ON THE GROUND THAT THE STATE NOT INVESTIGATED PROPERLY.

From your version it appears that you have alleged offence under 498-A to threaten the husband and was not serious about the same.You may not have brought out the ingregients ie 

Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical) of the woman; or

(b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or a person related to her meet such demand.

Since there has been lot of misuse of this section courts generally tend to take a leinent view. Your own actions are responsible for the case. Its better to seek for maintenance till the matyter is finally heard by the court.

In 498-A case, The State represented by the Police should shoul gor an appeal in the High Court against the acquittal of my brother-in-law in District Court . My sis cannot go as she is the defacto-complainant..

The Police people are not willing to go for an appeal. So In this case is there any remedy.

Please advise.

Thanks

The presumption that Your sister cannot go in Appeal before the High Court is not correct. The Code of Criminal Procedure specifies in  Section 417 that 

"417. (1) Subject to the provisions of Sub-section (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order or acquittal passed by any Court other than a High Court.

(3) If such an order of acquittal is passed in any case instituted upon complaint and the High Court on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.

(4) No application under Sub-section (3) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal.

Hence you can seek to file a special leave to appeal o the High Court from the order of acquittal if you are with in the period of limitation

the Acquittal order came 3 months back.. and also my sister is not inclined to file an appeal against acquittal of my brother-in-law. She is just worried if High Court believes that the 498-A case is a false case and Divorce would be granted to her husband.

Court will defenitely see the conduct of the parties and your non prosecution of your complaint will defenitely go agaisnt you. You dont have an answer to why you have not sought any further proceedings in the 498-A case. Now that the relation is strained court can certainly look into the further developements and grant an order of Divorce.

I agree with Arup that "GROUNDS FOR APPEAL SHOULD HAVE TO SEARCH WITHIN THE JUDGEMENT, WITNESS AND;EVIDENCES. HIS AQUITAL MAY ALSO BE CHALLENGED ON THE GROUND THAT THE STATE NOT INVESTIGATED PROPERLY."

Please note that 498A is a criminal case. Judges also have to give importance to Police Report in criminal cases. What does the Police Report by Investigation Officer say? What did witnesses say? etc. Hence as advised by Arup read the judgement, evidences, police report, witnesses etc. If there are grounds for appeal in the case, appeal can be done.