Fight for justice (manager) 07 July 2015
Hi,
I am considering settlement with wife for full and final settlement in 498a case (pending in court) along with DV and Divorce cases. Please advise on what I need to caution for and what clauses / conditions I should insist on along with the final amount and instalments to be given?
What should be the breakup of the settlement amount i.e. milestones and what should I obtain in return for this settlement in terms of current and future obligations of wife and self?
Thanks for your help.
Manoj Choudhary (Advocate) 07 July 2015
If you have decided to settle all disputes with your wife then there should be deed of settlement, both parties should sign it so that any of you could not back out. Pay the amount in the form of DD. Breakup for the same should be according to the cases pending before the court. 498 A would be quashed by High court on the basis of that written settlement. then you can give some amount while quashing 498 A, then some on first motion of divorce (if divorce is mutual consent), and final instalment on second motion of divorce
Rocky Smith (Instructor @ Calcutta (rockysmith4calcutta@gmail.com)) 07 July 2015
Dear Friends and all great members,
Despite of my lot of posts, people are not understanding that 498A in non-compoundable.
Speedy trial is only the solution. We should not go for any mutual settlement unless 498A is completely disposed off. In my following links I have given lot of sample petitions, clues to fight against it.
Still I am seeing people are asking almost same queries in cyclic way.
Please help me how can I convince victims?
Is there anything wrong in my approach ?
Please read each of my posts carefully in the following links for sample petitions and other necessary clues.
https://www.lawyersclubindia.com/forum/Fight-against-misuse-of-498a-ipc--103100.asp#.U6gslUCm9dg
https://www.lawyersclubindia.com/forum/Best-way-to-fight-against-false-498a-103111.asp#.U6gsRkCm9dg
https://www.lawyersclubindia.com/forum/details.asp?mod_id=104564&offset=1
Fight for justice (manager) 07 July 2015
Dear Mr. Manoj,
Thanks for quick reply. Can 498a be quashed before Divorce motions?
I have a 3 year old son who lives with the mother. How do I ensure that I get visitation? How do I ensure that the settlement amount goes maximum to the future maintenance and welfare of the child? Also, can she withdraw the DV case during the pendency of the Divorce case - i.e. between the 2 motions?
Also, what happens if she withdraws from the Settlement after signing it? How easy/difficult is it for me to enforce the settlement deed in court?
Fight for justice (manager) 07 July 2015
Dear Mr. Rocky,
Thank you for the suggestions. I will discuss to see about taking the fast track route. It is very useful and eye opener.
Q Slinger (NA) 08 July 2015
Rocky Smith: 498a is compoundable in some states like Telangana and Andhra Pradesh.
If its not compoundable in some states, then the parties can move to High Court for quashing under mutual understanding.
My main reason why I usually don't answer to people wanting to compromise in 498a cases is because they are making it worse for everyone else. If eveyone, who had a 498a case on them fought till then end, 498a would have probably ended 10 years back.
Not only this, the people who compromise are also sending a wrong message to future 498a woman, who just greedy for money will file a false case against the husband and the family members.
Men with 498a who compromise with the wife who filed the 498a, is just as bad as the wife is!
Shame on you Harmony for promoting more and more false cases!
Rocky Smith (Instructor @ Calcutta (rockysmith4calcutta@gmail.com)) 08 July 2015
I partially agree with Mr. Q Slinger.
If High Court ordered for expeditious trial by making time frame of 6 months as per 21-B of Hindu Marriage Act or 40-B clause 2 of Special Marriage Act then 498A will not take 10 years. It will be disposed of within 6 months only.
Compromising passes wrong messages not only to the wrong women but also the corrupted Advocates and Judges. They are the actual creature of these corruptions.
Nitish Banka (lawyer) 21 January 2018
1. IPC 498A, CrPC 125, DV Act are applicable to all Indians, so marrying under some other marriage act won’t save a man. Changing religion to Islam won’t help either.
2. Pre-nuptial not valid in India. Marriage is considered a sacrament under Hindu laws. But one can try nevertheless as a future insurance assuming things go wrong.
3. Adultery is already covered as a ground of ground under HMA, which will still take many years if wife decides to contest the divorce. Regarding that pre-marital contract, in which court and how will you enforce that contract?
4. Contrary to often claimed assertion by MRAs, onus of proving guilt is still on prosecution, except in IPC 304B (dowry death). It’s just that people think if police is not listening to them, it must be that onus of proving innocence is on them.
What other contingencies? You can’t. Don’t marry if your marriage seems to be holding itself together based on a bunch of pre-marital contracts. They won’t carry much weight anyway.
For more info, go to Men Rights India – Men Rights, Man Sense! which is my site on men’s rights issues. I thought of answering some questions about men’s rights on Quora myself, since I saw that others are referring to my site in their answers.
In Delhi, the police follows the below procedure in normal circumstances for arrest under 498a/ 406 Cases:
However, the above procedure is not followed, if the complainant has suffered grave injury/ attempted suicide/ there are other henious sections like 328, 377, 376/511, 354 etc are part of the FIR. Also, if the complainant/ her family is influential, there can be foul play as well.
To be on the safe side, it is always advised that one seek Notice Bail (A kind of Anticipatory Bail which has been granted following Delhi HC practise) to secure oneself fully.
Though it is right that it is for the prosecution to prove that there was demand for dowry but in Indian courts as per current practice it is difficult to get bail or anticipatory bail without some kind of proof.
First proof will be non user of the dowry items by the husband. If there are dowry items like car or something specially for the husband and he is usually that exclusively then that must be returned or price of a new vehicle must be returned to prove or give weight to the bail application that he never intended to enrich himself out of marriage.
Second the husband can offer to give security deposit to the satisfaction of the court.
Third evidence can be given of other marriage in the same family say sisters and brothers and their spouses.
Fourth evidence can be given of neighbours of the nature of the family and members in general.
Fifth evidence can be given of the bank accounts – that there was no cash which exchanged hands during marriage or any time close.
Sixth evidence can be given of expenses incurred by the girl after marriage and how lavish and extravagant she is. The trips made after marriage can also help.
Seventh the pics of the couple together at various outings will also help in securing bail.
Once bail is there – relax.
You do not have to prove anything. Let the prosecution prove everything. If there is not sufficient proof by them you need not even give a statement that you did not demand dowry. Though giving a statement will be better option in most of the cases.
DOWRY LAWS MISUSED
WHAT IS SECTION 498-A
Section 498-A is contained in the IPC(Indian penal code).it contains provisions related to dowery & empower women to fight aginst it menace.
Dowry is the money,goods,or estate that a women brings to a marriage.under the dowry prohibition act of 1961,dowery is illegal in india,under which both giving and accepting dowery Indian Penal Code, Offence definition, Offences in Indiathis law the punishment for violating is 5 years imprisonment + RS15000 fine or the value of the dowry given,whichever is more.
DOWRY THE MENACE
Dowery is a big menace in Indian society. people are afraid to complain to the police regarding dowery, due to which there is an increase in dowry-related crimes.
DOWRY AND IPC(INDIAN PENAL CODE)
According to the IPC dowery prohibition (DP) ACT 1961, the menace of dowery has been covered in three sections.first is section 406, second is section 304-B & third is section 498-A.However, there are some major issues with these laws as discussed under.
In order to stop dowery related crimes, a dowery pro act 1961 was enacted to prevent atrocities against women.act of dowery is a punishable offence under ipc.;
SUPREME COURT INTERPRETATION
The IPC of section 498A deals with if the husband or a relative of the husband of women, subjects the woman to cruelty, he shall be punished with imprisonment to three years and shall also be liable to fine.here considered to be non-compoundable or non-bailable.this means they once the case is lodged, there cannot be compromised.
SECTION 498 -A IS BEING MIS-USED
Chandrabhan vs state
In 2008,after prolonged dispute and multiple cases the Delhi high court came to the conclusion that most of the complaints are filed in the of the moment over trifling and ego https://clashes.it is also a matter of common knowledge that in the tussle between the couple and ongoing hostility, the hapless children are the most victims.
FALSE COMPLAINTS
The verification of the complaints shall be carried out by a special police officer and a district level family welfare committee.which will preferably be comprised of three members, who can be ‘’paralegal volunteers/social workers/other citizens who may be found suitable and willing’’.
The court also assured that gave physical injury on the death of the aggrieved would be an exception to the directive.
SUSHIL KUMAR SHARMA VS UNION OF INDIA
IN 2005, the supreme court observed that complaints under section 498-A of the IPC were being filed on the basis of personal by misuse of the provision.this was seen as a new legal terrorism. It also observed that the legislature should find out the way in which makers of frivolous complaints can be appropriately dealt with.
RAJESH SHARMA AND OTHERS VS STATE OF UP
Supreme court states that there is an underlying assumption the judgement that women misuse the law and for this reason, the law itself must be emasculated.
SUPREME COURT GUIDELINES
Under section 498-A all complaints received by the police or the magistrate shall be looked into by such committees and no arrest will be made unless the committee report is received by the police.in case of a bail application, the committee shall look into it on the same day as far as possible.The court also made it easier for possible residing abroad and directed that no passport shall be impounded or issuance of red corner notice should not be a routine.
The Supreme Court 2014 and 2017 Judgements on Dowry Law
2014 Judgment
In the
Arnesh Kumar v State of Bihar,
a wife had alleged that her father-in-law and the mother-in law had demanded Rs 8 lakhs, a car, an air conditioner etc. in the form of dowry. When her family failed to pay this, she was threatened by her husband for a second marriage and drove her out of the house. The Supreme Court, however, observed that
there were several frivolous complaints lodged by women to falsely implicate their in-laws and thus laid down a checklist of nine criteria which must be complied with before arresting a person under Section 498A of IPC.
2017 Judgement
In the recent
Rajesh Sharma and Ors. v State of UP
case also, a woman had complained of dowry demand by her in-laws subsequent to which she was dropped at her matrimonial home when she was pregnant. She had to go through trauma and had a miscarriage followed by her in-laws taking away her
stridhan
. The Court, in this case, gave further stringent criteria for determination of case under Section 498A.
·
It mandates the setting up of a family welfare committee in every district for scrutinizing the dowry harassment cases.
·
The members of this committee shall be social workers or persons interested in the subject.
·
The members shall be paid an honorarium.
·
The police has to look into the recommendations of these committees before making any arrests
.
The focus here is thus mainly the accused and not the women who may genuinely seek relief from the court. In this way, the court has overlooked the main objective of a penal provision to give full protection to the victim while reviewing it. The provision has not been able to control dowry deaths which have been at the rate of 20 per day from 2012 to 2014. Thus, the judgments in this manner have eroded the interests of the large groups of women and taken a step back in the achievement of gender equality.
Posted by: nitish788 Categories: Uncategorized
498a Quashing-How to Quash?
These days its quite an easy tasks for women to register a FIR by attributing allegations of cruelty and a case is registered and thereby the husband and his family members has to go harassment and torture. Now one remedy is available for them which can relieve them from all the harassment and torture and that is quashing of FIR under 482 CrPC. But this remedy is generally very sparingly and rarely exercised by the courts. Generally allegations of cruelty are mentioned in the FIR and based on this FIR is lodged but sometimes police forgets that in the cases of 498a general allegations of cruelty does not stand, the allegation must qualify either of the two parts as envisaged in section 498a.
First part is that the harassment which can be physical or mental is of such a nature that it could cause women to put her under grievous hurt or she may even commit suicide based on such harassment, therefore only gravest form of harassment are covered, but less graver form of harassment can be used in civil suit for divorce. if the FIR does not satisfy this ingredient the Fir can be quashed as held
In Nagawwa v. Veeranna Shivalingappa Konjalgi, (1976) 3 SCC 736, it was held that the Magistrate while issuing process against the accused should satisfy himself as to whether the allegations made in the complaint, if proved, would ultimately end in the conviction of the accused. It was held that the order of Magistrate for issuing process against the accused could be quashed under the following circumstances: (SCC p. 741, para 5) “(1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;
(3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or
inadmissible; and (4) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.”
Shakson Belthissor vs State Of Kerala & Anr on 6 July, 2009
In order to understand the meaning of the expression `cruelty’ as envisaged under Section 498A, there must be such a conduct on the part of the husband or relatives of the husband of woman which is of such a nature as to cause the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical of the woman.
Therefore if prima facie the charge sheet or FIR does not disclose an offence under section 498a the court can quash
the proceedings.
Warm Regards,
Adv.Nitish Banka
Advocate Supreme Court of India
nitish@lexspeak.in
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…
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