Misuse of 498 by bride & family

@ Author


Observations:

It is not very clear from your post if your son is legally hit by S. 498a read with S. 406 IPC ? It seems to me after bare reading your query that you as a parent is socially now getting aware of evils of dowry laws to be read as mental cruelties laws as per IPC the Code and feeling the heat have come before us for seeking remedies.


Remedy:

1. Above observation for the sake of observation besides the point if you and your family sensing such draconian IPC liable to be hit upon you all then suggest to read umpteen posts already here in Criminal Laws and protect yourself accordingly. And if you and yoru family are already hit under IPC (matrimonial sections thereto) then also reading and understanding past several in-depth posts reading are worth saving yourself and claiming your innocence.


2. Your son can’t get re- married with all these cases live unless a legal divorce takes place. All those thoughts can see light of the day if when a divorce case has been filed is to put it under fast track by moving appropriate application with reasoning before higher Courts and directions given to lower Courts accordingly. Any competent Advocate can do such work under your instructions.


3. Concerning return of dowry as well as istridhan articles with a list from yoru side, your side can put appropriate Application before same divorce Court of return of same with appropriate list along with your offer on sharing marriage expenses as per actuals. Let divorce Court decide if in absence of any formal IPC charges this application stands or should be disposed accordingly! Then you can approach for remedy before higher forum hence try this softer remedy first.


4. Yes Marriage Registration is made compulsory and the moment your son is through all these you should register his second marriage (if any) at that time but thinking of ‘legalising’ now is bit preposterous.


Take:

1. Calling all these ‘prostitution’ is not done word, there are better way to call all these i.e. as “economics of arrangements” and such better and safe wordings may be used in public forums under discussions.

Demand for what?  For withdrawal of 498A?  498A can only be quashed by High court it cannot be withdrawn by the complainants at their will. It is not a compoundable offense to even arrive at a negotiated settlement, so negotiating for a monetary settlement is a crime punishable under Section 389 of IPC.

@ Mr. Chandrasekher

I disagree. Half knowledge in legal forum is dangerous!


Who says S. 498a IPC is not compoundable in some parts of India?


Andhra Pradesh is doing it for now quite some time. Remember Sania Mirza’s case as recent memory recall which was from four walled city of Hyderabad and I suppose you may know that Hyderabad is in State of Andhra Pradesh itself!


I think Maharashtra State has followed inline compounding cases under S. 498a IPC.  


Also read a widely reported P & H HC judgment in re. case of Kulwiner Singh Vs. State of Punjab (annexed in PDF here) in this judgment cantina of Hon’ble SC judgments have been discussed by 5 Hon'ble member of the Bench of P & H HC and gives a new scope to S. 320 Cr.P.C. not merely S. 498 A IPC type of cases compounding in generic.


In my opinion to discuss the scope of S. 498 A IPC and compounding of cases the knowledge of this judgment is must by non-legal writers before making in public forums (legal) above quote(s). 

Also I think you missed reading our early discussion with ld. brother Prabhakar on S. 498a IPC and ld. brother Chandu, Adv. Kindly read those discussions now by heart and remove notions of forum infested with misogynist as there are members who prefer placing correct mention of Law as it is today !

tajobs tum in dono se itna kyu ghabraate ho?

be frenz with them yaar.then they will help yuo become sucesful lawyer after u finish yuor law course 

Mr. Tajobsindia, you have given a good judgment to me, but I doubt whether you have read it.  All the Apex court judgments quoted in the judgment affirm my position and High court is supposed to use its inherent powers available under Section 482 of Cr.PC and Article 226 & 227 of Constitution of India in rarest of the rare cases.  In practise if these quashings due to monetary settlements in matrimonial offenses like 498A have become daily routine it is violation of Apex court guidelines and neglect of the Apex court directions to High Courts to exercise extreme caution in using inherent powers available to them under Cr.PC and Constitution of India. 

Law is not science nor it is calculator. If we give 2+2 in a calculator we get 4.  But in a legal proceeding every case has a unique set of facts and circumstances.  Hence the case law which is applicable to one set of facts and circumstances may not be applicable to another case where the facts and circumstances may bear some resemblance but may carry subtle differences.  So when I say, a compoundable offense is not negotiable it is right.  In matrimonial cases, if you are aware, the negotiation between parties is presumed to have been taken place for MCD and other civil proceedings.  But if any party reports to the court that I have been paying money / receiving money purely to get rid of criminal proceedings under section 498A, then court has every reason to be cautious about such parties and I am confident High Courts are aware of implications of such settlements relating to non-compoundable offenses.  In a country where a life is so cheap in terms of money if FIRs/Complaints in non-compoundable offenses can be quashed using inherent powers then the murderers will reach a compromise settlement with every family of victim that will be satisfied with a settlement amount of Rs.5.00 lacs for the lost life of their family members because of poverty.

In matrimonial cases due to pendency of multiple proceedings HC decides to quash all proceedings (including criminal proceedings under 498A) following compromise between parties under civil laws.  But let them say to the HC, we have reached a compromise mainly to get red of criminal proceedings under 498A, and see the reaction thereof of HC. Please give me a case law where HC had quashed an exclusive 498A case between petitioners wherein no other case was filed for maintenance or for divorce or for any other relief but settlement was reached following which HC quashed FIR/Complaint. 

I am aware High courts are not cautious these days and not using their inherent powers meticulously but that does not mean that it is to be construed as having become the norm of the day.  And the presumption regarding monetary settlement is that the compromise is reached between concerned parties under the provisions available under Civil laws, not with the presumption that there are HC orders where when settlement is reached HC quashes proceedings using inherent powers available under Cr.PC and Constitution of India. 

Legal luminaries like you must be aware of the difference between these presumptions before passing comments on laymen like us.

"And the presumption regarding monetary settlement is that the compromise is reached between concerned parties under the provisions available under Civil laws, not with the presumption that there are HC orders where when settlement is reached HC quashes proceedings using inherent powers available under Cr.PC and Constitution of India."

May be read as :

And the presumption regarding monetary settlement is that the compromise is reached between concerned parties under the provisions available under Civil laws, not with the presumption that there are HC orders where when monetary settlement is reached HC quashes criminal proceedings under Section 498A using inherent powers available under Cr.PC and Constitution of India.  It is not the compounding of offense of Section 498A but the compromise reached under Civil/Family laws which becomes the basis for settlement and in view of it, to avoid multiple legal proceedings pending in different courts, HC quashes 498A also using inherent powers.  This should not be viewed as power of High court making non-compoundable offenses into compoundable offenses.  No doubt it has such powers, but in matrimonial cases it is not true to say that the HC views the monetary settlments reached between various parties involved in matrimonial disputes as part of compoundability of 498A.

@ Mr. Chandrasekhar


We have read / understood the classic Judgment and have used it few times as part of arguments. Well, my point of view is directed only towards 'compounding' of S. 498a IPC and not on your wise advise on 'demand read with penalizing' which in great details you have again produced as your last message. I appreciate your caution on 'demand' for expectations to get over with matrimonial cases and your second large piece of writing itself is appreciable. However do acknowledge that in Sate of AP S. 498a IPC is compounding as of date.

However, believe me the journey in practice even from HC the day 'bail' hearing goes is not that rosy and to test my stark ground reality statement I suggest you to accompany any S. 498a IPC hit husband to any of the State's HC as observer and see 'what reverse negotiation right in Court room' just for simple righteous 'bail' happens. Or I invite you to Delhi and be my guest and come with me to D HC if that is what may assure you to see through light behind my direct reply to you in my above post.


We are aware of all these but classic text book Law is what I wanted to review here which unfortunately is not the norm as in day today practice and even if we know all these then let allow we to speak on Law than laymen and @ time passers as is quite happens!

Dear All,

At the outset let me apologise for not putting the facts before you and working on my own partial knowledge.

Please find attached herewith our Divorce Petition Case No.331 of 2011 and our precautionary measure taken at Asansol for your precise understanding of the facts.

Thanks

Shashi Mimani - Bhuj

+91 99099 20137

@Shashi Mimani.  You have not mentioned 3 suicide attempts by your DIL in broad daylight in public places in your divorce petition.  Any reason?

1. Fantastic material question by Mr. Chandrasekhar.
2. Early movers advantage U/s. 107 CrPC ‘as advise’ {Un-conventional} given by your side’s Advocate.
3. Next time hide parties name while scanning documents for public view.
4. I find Divorce petition lacks the punch (mental cruelty). However your side's advocate may be in better position to sail your son through by this vision drafting.

@tajobsindia.  I agree with that that S.498a is compoundable in Andhra Pradesh but it is an exception and not applicable to the present querier who belongs to Asansol. The correct legal position relating to compoundability of offense under S.498A where the State government amendments (making S.498a compoundable) are not there is as follows:  

2003 (2) KLT 1062 (SC)

Hon'ble Mr. Justice Y.K. Sabharwal & Hon'ble Mr.Justice H.K. Sema 

Joshi v. State of Haryana 

Crl. A. No. 383 of 2003

Decided on 13th March, 2003.

Criminal P.C. 1973, Ss. 482 and 320 - Exercise of inherent powers by High Court - Quashing of criminal proceedings or FIR or complaint - S. 320 does not limit or affect the powers of High Court.

The decision of Supreme Court in Madhu Limaye v. State of Maharashtra, AIR 1978 SC 47, does not lay down any general proposition limiting power of quashing the criminal proceedings or FIR or complaint as vested in S. 482 of the code or extraordinary power under Art. 226 of the Constitution of India.  Therefore, if for the purpose of securing the ends of justice, quashing of FIR becomes necessary.  S. 320 would not be a bar to the exercise of power of quashing.  It is however, a different matter depending upon the facts and circumstances of each case whether Penal Code 1860, S.498A - Criminal P.C. 1973, S.482 - Conviction and sentence u/S.498A can, and definetely, be set aside, by the High Court, where settlement is reached between rival parties - However no directions can be given to Sessions Court to permit the parties to compound an offence u/S.498A since the offence is non-compoundable.

Summary

Questions raised are:

(i) Whether a sentence and conviction u/S.498A, while pending in appeal before a Sessions Court, can be quashed u/S.482 Crl. P.C. in view of the settlement reached between parties ?

(ii) Whether a direction can be given to a Sessions Judge to permit the parties to compound an offence u/S.498A?

While pending appeal, the petitioner, a convict u/S.498A, settled the issues with his wife, and in such circumstances the present petition u/S.482 is filed for setting aside the conviction and sentence. While allowing the petition the High Court observed that, since the offence u/S.498A is not a compoundable offence, no direction can be issued to the Sessions Court to permit the parties to compound the offence, but, the High Court can, and definitely, set aside conviction and quash proceedings in such circumstances.

Held: An offence under S.498A of Indian Penal Code is not a compoundable offence. In such circumstances, learned Sessions Judge cannot be directed to permit the parties to compound the offence in Crl.A. No.57/2009. It is not in the interest of justice to continue the prosecution. Therefore, though the Sessions Judge cannot set aside the conviction based on the settlement arrived at between the parties, this Court, exercising the extraordinary inherent power under S.482 of Code of Criminal Procedure, could, definitely, set aside the conviction and quash the proceedings, when due to the settlement of all the matrimonial disputes, conviction passed by the learned Magistrate under Annexure-Al, is necessarily to be interfered with, to secure justice, exercising the powers under S.482 of Code of Criminal Procedure. (para. 5)

2003 (2) KLT 1062 (SC) = (2003) 4 SCC 675 Followed

@ Chandrasekhar,


1. Yes, I am aware this is not a fit case and I am also aware of plaints geographical locations too.
2. I only pointed to compounding part (which State it is compounded) which could have been added as addendum just after your first 4 line reply leaving me not much scope to rebut on compounding part in that manner. 


Are we savy!
Reasoning:
Your approach and my approach are same on this query the printers devil rests in our presentation. Thanks for tweaking on a persons approach.

ego, i go, u go...we go...

simply go for divorce... she attempted three suicides... r u waiting for something disastrous for your family?

3 suicide attempts is a perfect case... for divorce...

Clarification wanted

Someone (a lawyer) told me that attempt or threat of suicide is automatic grounds for ex-parte divorce. Is ths right?

Thanks in advance.