Sec 498a

You have to read S/ 498a

[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 shall be pun­ished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation

For the purpose of this section, “cruelty” means—

(a) any wilful 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 any person related to her to meet such demand.]

CLASSIFICATION OF OFFENCE

Punishment—Imprisonment for 3 years and fine‑Cognizable if information relating to the commission of the offence is given to an officer in charge of a police station by the person aggrieved by the offence or by any person related to her by blood, marriage or adoption or if there is no such relative, by any public serv­ant belonging to such class or category as may be notified by the State Government in this behalf—Non-bailable—Triable by Magis­trate of the first class—Non-compoundable.

You also read section 304B

[304B. Dowry death.—(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or har­assment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.

Explanation

For the purpose of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprison­ment for a term which shall not be less than seven years but which may extend to imprisonment for life.]

CLASSIFICATION OF OFFENCE

Punishment—Imprisonment of not less than 7 years but which may extend to imprisonment for life—Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.

Also read Section 113B of Evidence Act

113B. Presumption as to dowry death.- When the question is whether a person has committed the dowry death of a women and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry; the court shall presume that such person had caused the dowry death.

Explanation

For the purposes of this section, "dowry death" shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860).

The facts narrated by you are as under:-

·         There was a marriage.

·         Marriage was less than 7 years

·         Death occurred

·         Death was not natural

·         The girls’s family has alleged dowry demand

The prosecution has not to prove the case beyond that as happens in normal circumstances.

The foreign nationality of the accused and his absence from India at the time of death,  is not prima-facie evidence of his innocence.  He has to prove innocence during trial.

If he can satisfy the court that he will not abscond and he will attend trial on all dates. May be twice a month. He can  get the passport. 

You may see another threaad at

https://www.lawyersclubindia.com/forum/304b-498a-sensational-order-or-judgement-60525.asp

if it can help you.

To make out a case under sections 498a/306 - there should be first of all cruelty which necessarily postulates living together, since they or alteast the family never lived together that is ruled out, furthermore to make out a case of abetment to suicide (S.306 IPC) they need to prove that you instigated her to commit suicide. Instigation means active persuasion. Hence in this light, the case is going to fall down sooner or later. Suicide Note being dying declaration is an important peice of evidence however is not the gospel truth. It has to pass a lot of tests, and a lot of objections can be taken tothat. S.306 can also be negatived if we can prove that she was hypersensitive to ordinary discord and problems and if that's the case the Supreme Court has said the charge has to fail. The test is whether the acts of your brother and family were such so as to induce a reasonable man to commit suicide, the gravity of instigation is important. If that is not satisfied and the FIR is an abuse of the process of law, then you can seek the quashing of the FIR/Discharge or acquittal as the case may be. Answering your question it is not theoritically required that your brother is physically present in India when she committed suicide in order to make him an accused. However there are other points where your case appears pretty strong. 

You have to see a lawyer in person alongwith all facts & circumstances for him to chalk out a good defence strategy. The passport stays and can be taken out only after moving an application to that effect. 

Good Luck !

Advocate Bharat Chugh

*Supreme Court of India

To make out a case under sections 498a/306 - there should be first of all cruelty which necessarily postulates living together, since they or alteast the family never lived together that is ruled out, furthermore to make out a case of abetment to suicide (S.306 IPC) they need to prove that you instigated her to commit suicide. Instigation means active persuasion. Hence in this light, the case is going to fall down sooner or later. Suicide Note being dying declaration is an important peice of evidence however is not the gospel truth. It has to pass a lot of tests, and a lot of objections can be taken tothat. S.306 can also be negatived if we can prove that she was hypersensitive to ordinary discord and problems and if that's the case the Supreme Court has said the charge has to fail. The test is whether the acts of your brother and family were such so as to induce a reasonable man to commit suicide, the gravity of instigation is important. If that is not satisfied and the FIR is an abuse of the process of law, then you can seek the quashing of the FIR/Discharge or acquittal as the case may be. Answering your question it is not theoritically required that your brother is physically present in India when she committed suicide in order to make him an accused. However there are other points where your case appears pretty strong. 

You have to see a lawyer in person alongwith all facts & circumstances for him to chalk out a good defence strategy. The passport stays and can be taken out only after moving an application to that effect. 

Good Luck !

Advocate Bharat Chugh

*Supreme Court of India

Mr.Chugh I really appreciate for you timely response.As there is no dying declaration made coz there is no harrassment made.According to your views on the case you mentioned that it appears strong can you briefly elaborate.Is it positive for us or negative for us.

Mr.Chugh the chargesheet is yet framed by the police.I am worried the other party may be influencing the police to lay severe charges on the charge sheet which will influence the case.