1) FIR can be lodged against wife and her family , under Section 3 of Dowry Prohibition Act prohibits giving or taking dowry.

2)if police do not register a case,file a private complaint in magistrate court. The court will then direct the police to investigate the case and register the offence

3) you have to deny allegations that marriage not consummated . burden of proof is on wife to prove non consummation of marriage on account of impotency of husband . you can rely upon potency test reports

4) . if no FIR lodged on husband complaint file complaint under section 156(3) to direct cops to investigate and submit report

5) you must attend meditation proceedings on next date .

6)dont file for criminal defamation now . if allegations are proved false then file for defamation

7)husband can file complaint against wife under section 406 against wife for having taken his passport . as far as husband side jwelllery if any given to wife it would be her streedhan and she can take the jewellery . if mother jewellery taken mother can file police complaint against DIL

8) during duration of marriage wife has right to stay in her matrimonial home . if house belongs to husband parents DIL has no right to stay in said house and stay order can be obtained from court

9) working wife is not entitled to maintenance

10) file for divorce on grounds of mental cruelty . making false allegations that husband is impotent amounts to mental cruelty . . alimony is at discretion of court depends upon number of factors like husband , wife income , length of marriage , standard of living etc

1) Dowry Prevention Act. Can an FIR be lodged against wife and her family for accepting that they gave dowry at the time of marraige (as mentioned in their own original 498A complaint to the CAW cell) even after they were status family, educated and wife is a CA. What is the actual practice being followed in Delhi. Is there a way to push for these charges against wife and her family. (In reality no dowry was demanded and none was given, so no documentory proof of the same):

This is as good as laying trap for one's ownself.

If you would like to lodge a complaint for having given dowry against them, it will become an admitted fact that you have accepted dowry, however on the basis of their complaint you are coming out with this complaint as an after though action to defend yourselves or to avenge them. If at all this was done with good intention, this could have either been avoided or could have made a complaint much before they came with their own complaint.

Instead of prolonging this issue in a different route and getting more fixed in the problems, better challenge her false case properly during trial and nullify her charges since you admit that there was no dowry offered nor demanded. The situation and merits are in your side hence go for challenge or quash.

Annulment: In her complaint under 498A, wife has said that "Consummation of marriage" not happened due to husband demanding dowry first. She has not alleged impotency anywhere in her 498A complaint.

Has she filed a case before family court seeking annulment o marriage due to impotency?

I dont think she has filed one till date. Her people are just sending the allegations in air that you are an impotent hence she does not like to continue the marriage. this stand is taken by them to defend themselves from their relatives and the circle of people around them.

For impotency allegation, it becomes her duty to prove it by subjecting you for medical examination and if she chooses a doctor on her own, you can refuse to get examined by that doctor stating that she may be in collusion with the particular doctor, hence you can inform court that you are ready to get examined by a government medical examiner or a doctor of a reputed hospital of the city. Their plans to ruin your life and future will get demolished this way when you rise and stand against.

In fact you may inform the court that your marriage was very well consummated on the very first night of your marriage and she may be subjected to medical examination to prove her virginity. learning about this new twist and development in the case, she will get frightened and run away from the court and even may not turn back to this case after that.

What is the solution...Should i file under 156(3) for an FIR against wife's family or should just face the trial on FIR against me

If the police has not taken cognizance of the complaint given by you or were reluctant in registering FIR, you may file a private complaint under section 156(3) cr..p.c. seeking direction to police to register FIR and initiate appropriate action.

My Next mediation date is 29th Feb, should I go there or not. If I don’t go in next mediation, what negative impact can it have. Does the above FIR in 323/341/506 impact Anticipatory Bail chances of 498A in the future.

Attend the next mediation and express your fear especially citing the previous incidence and can ask the mediator to advise them to restrain from indulging in such acts in future. Further, you may clearly state in the mediation that since she is not willing to come for any compromise and is bent upon to torture more and more for no reason, let the matter be decided in the court. This stand will not hamper the AB hearing even if the mediation fails.

Can husband file for criminal defamation charges against wife and her family for calling him impotent and Hijda (Enuch). Husband has audio recordings of both the things being said to him by mother in law and father in law.

The audio recording shall not be sufficient for filing a defamation case. She will deny it and there will be no proof to rove that beyond doubt. Hence wait for her to come with a complaint, you prove yourself as potential enough and then contemplate to file one such case.

) Husband's passport, husband side's jewellery with the wife, even some jewellery belonging to husband's mother has been taken by wife. Can husband file a counter 406 or related complaint. Does the police entertain these complaints or just return the husband by saying its an afterthought due to existing matrimony dispute. Any other counter cases for pressure tactics

Yes husband can lodge a complaint under section 406 seeking return of his property.

There can be a situation where the wife tries to forcefully enter husband's house and create a scene or push for additional framed charges. How can husband's family stop wife and her family to forcefully enter the matrimonial home

If the house property is not in husband's name, let the husband shift his residence to some other place and in the meantime let the owner (his father or mother) obtain a restrain order assistant his wife from entering into the house.

I (CA) earn 45000 per month, wife's (CA) salary is 30000 per month. If in future there is a DV/125 case, are there any chances of monthly maintainence to wife

She may file a maintenance case, but you can defend it properly on the basis of evidences of her income and earnings using them to your support.

Is quashing of FIR in 498A/406 practically possible in High Court by husband.

It will be on merits.

If along with 498A case trial, should I file a divorce from my side (cruelty being calling me impotent and Hijdah -Enuch, have audio recordings) or should I wait for wife to file a divorce (she might say consummation of marriage not happened, husband used to deny sex, she might not call me impotent). Does a contested divorce attract alimony specially if both husband and wife CA and earning.

Alimony is a different subject to that of the divorce proceedings. You can file a divorce case against her on the grounds of mental cruelty citing the false criminal cases as evidence. This will be sufficient to file a divorce case.

1). First registring an FIR for giving dowry is not a smart move as on the other accepting the same is also an offence, and you didn't complaint at the time of incident.

2).Proving impotency is possible on medical grounds if one is impotent, and it has nothing to do with less frequency of sex and compatibility issues. If hymen is not broken it may be due to various reasons need medical check for it. Annulment is a matter of trial and need a good lawyer for this to prove that charges raised against you are malicious and baseless. If reports proves that there is impotency then she has a good ground for asking divorce.

3). You may file under 156(3) for an FIR against the person who slapped you mentioning that you have life threat from him and he always use to threat you for the serious consequences, or just face the trial on FIR against you and mention the incident in your answer application along with the MLC report in the Hon'ble trial court asking to take the necessary legal action against the accused.

4). You should go in the mediation, may be you are able to settle this in mediation on that date or next date(s), negative effect could be that the case may be sent back to court for trial in your absence mentioning that you are not interested in mediation. Taking anticipatory bail in 498A is not a big task, any good lawyer can do it for you.

498a had become one of the biggest weapons of disgruntled wife to put her in laws and husband behind bars to take revenge. in last decade more than 1-2 millions 498a cases were filed and till date conviction rate is only 2%. Lawmakers and other men activist organizations have realized that 498a is being misused and as a result of this supreme court has instructed all the states that automatic arrest should not be practiced anymore by the police.

I suggest that when you come to know that your wife and her family members have filed 498a case against you then you should apply for anticipatory bail and safeguard yourself from the arrest.

5).Yes you may file for criminal defamation charges against wife and her family for calling you impotent and Hijda (Enuch). Good you have audio recordings as evidence, keep it safe till required.

6). Yes it may be treated as counter blast against the ongoing case and will not be of much help as difficult to prove in court. However legal papers which belongs to you like passport, pan card, voter ID, etc can be asked to be returned before the judge requesting the court and get them back.

7). Give an application to your concerned police station mentioning the whole incident and workings going in mediation and CW cell, and informing them that this incident could happen in future, and asking them for your family and your protection. In future if something like this happens you need to call on 100 immidiately.

8).There are chances of monthly maintainence to wife till the case is decided.

9). Here are the conditions under which an FIR can be quashed:

Quashing of F.I.R under section 498-A-IPC when parties settled their disputes mutually.

OR

A Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

B Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Sec.156(1) of the Code except under an order of a Magistrate within the purview of Sec.155(2) of the Code.

C Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

D Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Sec. 155 (2) of the Code.

E Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

F Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

G Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

10).In July 2014, a Gandhinagar family court ordered a woman, Rajvinder Kaur, to pay alimony to her husband Dalbir Singh, who had accused her of physical and mental torture.

HOW ALIMONY IS DECIDED

Wife is earning:

Court looks into husband's financial status. If his income is very high, wife will get some alimony.

Wife is not earning:

Wife will get alimony that allows her to maintain a standard of living that is similar to that of her husband.

Wife remarries:

Wife will not get anything. Husband will have to continue to pay for children, if any.

Husband is disabled and unable to earn:

Wife can be asked to pay alimony.

legal potency is totally different from medical potency. If husband's sex organ and mental condition is capable for intercourse he is potent in the eyes of law. If his sex organ is capable but mentally he is reluctant to have sex he is called impotent. So no medical examination is necessary to prove unless it alleged by opposite party.

She has never allege that you are impotent. Act of cruelty and domestic violence could't be arise in only 2 months of stay in matrimonial home. [Jayakrishna Panigrahi and Basavannappa vs State AIR 1997]

You should file an application under section 482 crpc before the high court for quashing her 498 A complaint. In Anresh Kumar's case it is held by the supreme court that preliminary investigation is necessary before registering FIR u/s 498 A. Proceeding before CAW is mainly reconciliation proceeding. If you refuse to attained it no legal action can be taken against you. There is no preliminary investigation is carried out so you should file an application under section 482 crpc. Maintenance shall not be granted because she is earning well.

1. Since giving of dowry is also an offence the criminal prosecution can be launched also against the wife.

2. The test reports obtained from the hospital coupled with the audio recordings can be used to prove that he is not impotent.

3. The husband should move the magistrate's court to seek registration of FIR against the wife and her family. Alternatively, the doors of the HC can also be knocked for the failure of the police to perform its duty.

4. Mediation should be attended, failing which the court may draw adverse inference at the time of deciding whether to grant AB or not.

5. He is free to criminally prosecute them for defamation.

6. The complaint for theft of passport and the jewellery of husband's mother ought to have been filed a long ago. The delay in filing it would indicate it is an afterthought.

7. During the subsistence of marriage the wife has the right to reside in her matrimonial home, which cannot be curtailed except with an order of injunction passed by the court. So to restrain the wife from entering the home the husband may file a lawsuit to claim injunction.

8. Your wife is earning and your salary is not towering as compared to your wife's salary, so she may not get any maintenance.

9. Yes it is.

10. You are free to file for divorce which will be adjudicated irrespective of 498A filed against you. Maintenance is a substantive claim which does not have a nexus with divorce.

1) it is the wife case in complaint filed under section 498A that husband refused to have sex on account of failure of wife to accede to husband dowry demands

2) wife is alleging continuous acts of cruelty by husband

3) in your anticipatory bail application you have to take the stand that marriage was duly consummated and no dowry demands were made .

4) had the husband been impotent and marriage not consummated on account of impotency of husband then wife would have filed petition for annullment of marriage within period of 1 year of marriage

5) further take the stand that husband wanted to have sex regularly immediately after marriage but wife refused to have sex on regular basis and only agreed to have sex once a month or so after great deal of persuasion

6) file for divorce on grounds of mental cruelty . refusal to have sex by wife amounts to mental cruelty . you can enclose your potency test reports

1) in case wife wants to file petition for divorce by mutual consent at her paternal home jurisdiction you should agree to do so . if wife is residing in said home she can file a case within jurisdiction of said court

2) it is joint petition for MCD . it is immaterial who is the first petitioner .

3) you should not supress material information that wife has filed complaint under section IPC 323/341/506/34. it should be mentioned that compromise was arrived at and offence compounded . it can be treated as akin to honorable acquittal . it should not affect your employment prospects

Rajasthan High Court - Jodhpur

Rai Sahab vs State (Personnel) & Anr on 27 April, 2013

[1]

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JODHPUR

JUDGMENT

Rai Sahab V/s. State of Rajasthan & Anr.

S.B. CIVIL WRIT PETITION NO.4229 OF 2012

Writ Petition under Article 226 of the

Constitution of India.

***

Date of Judgment:: April 27, 2013

PRESENT

HON'BLE MR. JUSTICE P.K. LOHRA

Mr. Raman Deep Singh Kharlia, for the petitioner.

Mr. I.S. Pareek, Addl. Govt. Counsel, for the respondents.

Reportable

BY THE COURT:

(material extracts of judgment)

Now adverting to the offences for which the petitioner was tried, suffice it to say that these offences are not of serious nature so as to categorize them as offences involving "moral turpitude". "Moral turpitude" as defined in Law Lexicon, means - "Moral turpitude means, in general, shameful wickedness - so extreme a departure from ordinary standards of honest, good morals, justice, or ethics as to be shocking to the moral sense of the community. It has also been defined as an act of baseness, vileness, or depravity in the private and social duties which one person owes to another, or to society in general, contrary to the [22] accepted and customary rule of right and duty between people".

Apart from the fact that offences are not of the nature involving moral turpitude, one more significant feature of the case is that the petitioner was acquitted for all the offences by way of compromise. The compromise was recorded by a competent criminal court in adherence of the provisions of the Code of Criminal Procedure 1973 (for short, 'Cr.P.C.') as all the offences were compoundable. At this stage, it is significant to ascertain the actual meaning of the term "compromise". As per Webster's Encyclopedic Unabridged Dictionary, the term "compromise" means -

"A settlement of differences by mutual concessions; an agreement reached by adjustment of conflicting or opposing claims, principles etc by reciprocal modification of demands."

As per Law Lexicon, the term "compromise means -

"A compromise is always bilateral and means a mutual adjustment.

According to New Standard Dictionary, a compromise means agreement or adjustment for the settlement of a controversy by mutual concessions, often involving partial surrender."

Now, this Court is required to see the legal implications of compounding of offence. Section 320 [23] Cr.P.C. envisages the provision for compounding offences in specified cases. Compounding of offence operates as an acquittal even if no acquittal order is recorded and not a discharge. So a prosecution of the accused for the same offence or offences involved in the compounded offence is barred. It is also clear from bare perusal of Section 320 Cr.P.C. that if the offence is within sub-section (1), the Court is bound to accept the compromise if it is legal. The legal position is no more res-integra that compounding of offences permitted by Section 320 Cr.P.C. cannot be opposed to public policy.

In this view of the matter, a distinction between honourable acquittal and acquittal by compounding of offence is wafer thin. Its proximity with the honourable acquittal is much closer than discharge and acquittal by extending benefit of doubt. Even otherwise, a compromise is bilateral act involving the complainant and accused both. There are fair chances wherein the complainant is apprehensive about sufficiency of evidence to bring home guilt against the accused tempting him for compromise. Thus, in totality, construing the acquittal of the petitioner on the touch stone of memorandum dated 29th April 1995, in my considered opinion, it can be treated akin to honourable acquittal. This sort of purposeful and benevolent [24] interpretation of the memorandum in the peculiar facts and circumstances of this case is also desirable. From a bare perusal of the memorandum dated 29th April 1995, it is amply clear that although the author of the memorandum has used the phraseology "acquitted honourably" but no endeavour is made to explain the said term. Moreover, from the recital contained in the memorandum it is crystal clear that acquittal of an individual as a consequence of compounding of offence has not been dealt with and therefore the same cannot be construed as an embargo for consideration of his case for recruitment. Thus, the submission of the learned counsel for the respondents, that the petitioner has not been acquitted honourably in the given circumstances, cannot be accepted and this sort of ambitious contention amounts to overstretching the requirements envisaged in the memorandum. At this stage, it has become imperative for this Court to overrule the argument of the learned counsel for the respondents that acquittal of the petitioner by way of compromise means that the petitioner has admitted his guilt. On the face of it, this argument is preposterous.

1. The FIR can easily show up in background verification if it is conducted in an intelligent manner irrespective of where it was lodged.

2. Where did you read 'squaring off'? It is not applicable to criminal law. You can only compound and not square off.

3. You have adopted a theoretical and verbose approach which is not required. If there is an agreement between the spouses the case can be filed in any court. In MCD the choice of both spouses and not a single spouse prevails.

4. Heed the advice of your engaged lawyer.

Query - As I am in private sector job, would this FIR (IPC 323/341/506/34 and arrest record would be shown if an employer verification is done at job change or otherwise at a local police station of my permanent residence even after compounding/squaring off of FIR. However, the original FIR was lodged at a different police station in Delhi, but 2 days back, a constable from my local police station (husband residence) came at my house to collect my ID proof as he had received some parcha/information from the other concerned police station where this FIR was originally lodged

Is there a way to come out clean in this police verification due to this false FIR/arrest record.

The FIR registered under a crime number will remain as a record in the police station and if it is disposed the details of disposal shall be endorsed against the record in the police station. Therefore in the event of any verification reports called for the police shall submit the records as per the details of disposal in their records.

2) What is the difference between Compounding and Squaring off in respect to FIR under IPC 323/341/506/34. Which would be more beneficial from a husband's point of view.

There is no term called squaring off of FIR. It is only compounding. Certain offences can be compounded.

In this case compounding of the case is always a better choice.

3) In the petition of Mutual consent divorce, which court jurisdiction should we follow. Ideally, HMA suggests it should be last place of residence of husband and wife (matrimonial home) or place of marriage. However, in my case the wife and her family wants to file this petition at a court which is at wife's parental home jurisdiction. Does this jurisdiction affect in any way. Both places in Delhi only. Matrimony house in Laxmi Nagar (Karkardooma court) and wife parental house (Rohini). Marriage took place somewhere outside Delhi. Please suggest, if the jurisdiction needs to be followed strictly as per HMA or in practicality, the court accepts any jurisdiction at the choice of wife.

The place where a divorce case can be filed is 1) place of marriage or 2) place where both last resided together or 3) place where she is currently residing.

4) Does this make a difference who becomes the first petitioner in the application of Mutual Consent Divorce. As a husband should i avoid being the first petitioner.

The question of 1st petitioner or second will hardly matter in the case.