NATWAR SINGH
Asked August 21, 2016

Pressure exerted by Police

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My wife had filed a case under 498A in august 2013 on instigation of her father but later she reconciled and lived with me for a year. The police had submiited its report where they did not find any evidence of dowry harrassment from our side. In october 2014 she took transfer to her paternal place without my knowledge and left my home on the pretext of visit in dussehra and since has not returned. In May 2015, she filed a divorce case which is still going on. Meanwhile, in order to put pressure for divorce and to extort money, they have file a domestic violence and case under 498a again in May 2016 against me and my parents although we have not been staying together for almost two years. The police is putting pressure in order to extort money and intimidating us of which we have all the telephone records. What should we do? Kindly suggest.

Answer 1

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Shreya Mishra

Section 9 of the Hindu Marriage Act provides for Restitution of Conjugal Rights (RCR) whereby if one of the spouses has withdrawn from the company of the other, the person who has been deprived of the company of his/her spouse can file for RCR. You can thus file for RCR. Although you would be better off if you had done it before your wife filed for divorce. Under RCR, your wife would need to prove that she withdrew from your company because of a reasonable excuse.

The easiest ground on which a divorce petition is filed is cruelty. For this she would need to prove that she had been subjected to extreme forms of cruelty by you or your family. However since she had filed a case under 498a once and it was dismissed, you can show that she is in the habit of filing false cases against you. In the case of ARNESH KUMAR v. State of Bihar[1], the Supreme Court ruled that no automatic arrests should be made in the case of 498A. The police should satisfy themselves that about the necessity for arrest and duly fill a checklist of parameters including the reasons for the arrest. This observation was made in light of the unlawful arrests made with respect to Section 498A. Since such a case has already been dismissed against you, you can easily prove that this is a malicious case too.

Non compliance with this order will attract contempt of Court and disciplinary proceedings against the Police officers. They have to present to the Magistrate the facts of the case and the reasons for arresting, in writing.

Further filing false 498a cases can be a valid ground for divorce. [2] therefore if it can be proven that your wife has filed a false case, you can seek divorce from her, however if you want her to live with you, you can file RCR.

 

[1] (2014) 8 SCC 273

[2] http://timesofindia.indiatimes.com/india/False-cruelty-cases-under-Section-498A-ruining-marriages-SC-says/articleshow/45424532.cms

 

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