FAQ's

498a

Section 498A of the Indian Penal Code (IPC), now replaced by Section 85 of the Bharatiya Nyaya Sanhita (BNS), deals with cruelty against women by their husbands or their relatives, particularly in the context of dowry demands.
Section 498A/ BNS 85 is a cognizable and non-bailable offense, meaning the police can arrest without a warrant and the accused may not be released on bail by a police officer. However, a recent Supreme Court order has mandated a "cooling-off" period and Family Welfare Committee screening before arrest to allow for reconciliation and reduce the likelihood of false accusations.
Section 498A of the Indian Penal Code (IPC) is a non-bailable offense. This means that upon arrest for an offense under this section, the accused does not have an automatic right to be released on bail. Bail is at the discretion of the court, and the court may remand the accused to judicial or police custody. However, recently Supreme Court backed Allahabad High Court's Guidelines for No Immediate Arrest In 498A Cases with a 2 month cooling-off period.
A cognizable offense is a serious crime for which a police officer can arrest a suspect without a warrant and can initiate an investigation without prior permission from a magistrate. These offenses are typically grave in nature and warrant immediate police action.
Consult one of our counselors immediately or get in touch with a criminal lawyer experienced in matrimonial matters. The lawyer will help you draft an application for anticipatory bail under Section 438 of the CrPC, which should be filed in the Sessions Court or High Court. The application should include an affidavit and relevant documents like the FIR.
No, in a 498a case, the accused cannot be automatically arrested. The Supreme Court has directed that police officers should not automatically arrest individuals when a case under Section 498A/ of the Indian Penal Code (IPC) or the new BNS 85  is registered. Instead, they should first conduct a preliminary investigation to assess the genuineness of the allegations.  Read - Arnesh Kumar v. State of Bihar: The Supreme Court, in this landmark judgment, has emphasized that arrest should not be the first step in every 498A case.
Yes, a 498A/ BNS 85 (cruelty by husband or his relatives) can be filed even after 7 years of marriage. There's no specific time limit.
A chargesheet is a formal report filed by the police to the court, outlining the results of their investigation into a criminal case. It serves as a summary of the evidence collected against an accused person, essentially informing the court that the police believe there's enough evidence to proceed with a trial. It's a crucial document in the criminal justice process, initiating the formal prosecution of the accused.
A discharge petition in a 498a case is a legal application filed by the accused to request the court to drop the charges against them under Section 498A of the Indian Penal Code (IPC) or the new BNS 85. The discharge petition argues that there is insufficient evidence to proceed with the trial, and the accused should be discharged from the case.
A Quash petition in a 498a/ BNS 85 case is a legal request filed in the High Court to dismiss or cancel the First Information Report (FIR) and any subsequent proceedings related to the case. This is typically done when the accused believes the FIR is baseless, fabricated, or an abuse of the legal process. The High Court has the discretion to decide whether or not to quash the FIR. 
Yes, voice recordings and chats can be used as evidence in court in India, but they must meet specific criteria for admissibility. The Indian Evidence Act, specifically Section 65B, deals with electronic evidence like voice recordings. Contact one of our counselors to know more about presenting evidence in the court.
Section 406 of the Indian Penal Code (IPC) deals with criminal breach of trust, while Stridhan refers to the property a woman receives before, during, or after her marriage, which she has sole ownership and control over. If a husband or his family members misappropriate or refuse to return a woman's Stridhan, they can be prosecuted under Section 406, which provides for punishment with imprisonment or fine or both.
Typically, police must issue a notice (under Section 41A of the Criminal Procedure Code (CrPC)) before making an arrest, especially for offenses where the punishment is less than seven years. However, there are exceptions where a warrant or immediate arrest without a warrant is permissible, such as when a person is caught committing a cognizable offense in the presence of a police officer, or when there's a reasonable suspicion of involvement in a serious crime.
A notice under Section 41A of the CrPC (Criminal Procedure Code) is a legal notice issued by a police officer to a person against whom a reasonable complaint or suspicion exists for a cognizable offense, but whose arrest is not deemed necessary. It directs the person to appear before the police officer for investigation purposes. While not always mandatory, it's generally required in cases where arrest isn't deemed necessary, and failing to comply can lead to arrest.
If your anticipatory bail petition is denied, you have a few options: consult your lawyer, consider applying for regular bail, or appeal to a higher court. You can also explore the possibility of filing a Special Leave Petition (SLP) in the Supreme Court under exceptional circumstances. Contact one of our counselors for assistance if anticipatory bail has been denied.
Write to the Investigation Officer and present a written statement with evidence of non-involvement and non-cohabitation, where applicable. You can also move a Discharge petition or a Quash petition. Contact one of our counselors for assistance with this step.
Yes, in India, a husband can file counter-cases against his wife, particularly when facing false allegations. The best time to file such cases is usually after the wife has initiated legal proceedings against him. Example : Perjury (Section 340 IPC/CrPC): If the wife has made false statements under oath, a perjury case can be filed. Defamation (Section 499 IPC/BNS): If the false accusations have damaged the husband's reputation, a defamation suit can be filed. Criminal Intimidation (Section 506 IPC/BNS): If the wife threatened to file a false case, this counter-case can be initiated.
Yes, your wife can still file a 498a case against you, even if your marriage was without dowry and conducted under Muslim or Christian rituals.
Section 406 IPC (Criminal Breach of Trust). Section 504 (Intentional insult with intent to provoke breach of peace), 506 IPC (Criminal Intimidation).  Section 323 (Voluntarily causing hurt). Section 307 (Attempt to Murder). Section 312 (Causing Miscarriage).  Domestic Violence Act. Dowry Protection Act 3/4. There are other Sections that can be filed as well.
No, the police do not have the power to directly close a 498A complaint.
Yes, in a 498a case, you can apply for exemption from personal appearance, and a stay order can temporarily halt the legal proceedings. You can apply for exemption under Section 205 or Section 317 of the CrPC, citing reasons like hardship or the need to appear through a lawyer. A stay order, often obtained by filing a quashing petition, can halt the trial or specific proceedings in the 498a case, providing temporary relief.

Domestic Violence

The Domestic Violence Act 2005 is meant to provide protection to the wife or female live-in partner from acts of domestic violence at the hands of her husband or male live-in partner. The laws within the act also extend to protect women who are  'widow, mother or sister' from acts of domestic violence.
A married woman can file a complaint of domestic abuse under the concerned law against her husband even after their separation.
Under the Protection of Women from Domestic Violence Act (DV Act), 2005, a wife can seek monetary compensation and maintenance. Additionally, the Act grants her the "right to residence" in a shared household. 
 No, under the Protection of Women from Domestic Violence Act (PWDVA), 2005, only women can file a case.
Domestic violence is defined in a comprehensive way in Section 3 of the DV Act, comprising: - Physical, mental, verbal, emotional, sexual and economic abuse.
Yes, a mother-in-law (MIL) can file a case against her daughter-in-law (DIL) under the Protection of Women from Domestic Violence Act, 2005 (DV Act).
Yes, a daughter-in-law can file a case of domestic violence against her in-laws under the Protection of Women from Domestic Violence Act, 2005, in India.
Interim maintenance refers to temporary financial support provided by a court to a dependent spouse or child during the pendency of legal proceedings, such as divorce or separation.
You do not need bail under the PWDV Act 2005. There is only one penal section and that is Section 31. Under which if you violate any order (protection order) or interim protection order then you will be arrested and it is a Cognizable and non-bailable offense.
Yes, a wife can seek maintenance for her children, and a husband can seek visitation rights even if the wife is denying access. The court will consider the child's welfare is paramount when deciding on both maintenance and visitation matters.
In India, a husband can be sent to jail for willful non-payment of maintenance ordered by the court, under the Domestic Violence Act. If a husband fails to comply with a maintenance order, the wife can file an application to the court, and the court may issue a warrant for his arrest. This is a coercive measure to ensure compliance with the court's order.
Yes, your mother can file a Domestic Violence (DV) case against your wife and her immediate family, even in a different city, under the DV Act.

Maintenance/ 125 CrPC

Section 125 of the Criminal Procedure Code (CrPC) deals with the maintenance of wives, children, and parents. While the proceedings are governed by the CrPC, which is a criminal law statute, the nature of the proceedings is civil. The Supreme Court has clarified that even though non-compliance with a maintenance order can lead to penal consequences, the core purpose of Section 125 is to provide financial support and is therefore civil in nature.
Yes, an educated wife can claim maintenance from her husband, even if she is employed or capable of earning a living. The courts have consistently held that a wife's education or employment status alone does not disqualify her from receiving maintenance. The key factor is her inability to maintain herself adequately.
Alimony is typically a one-time payment or a series of payments made after a divorce is finalized, while maintenance can refer to support provided during the marriage (interim maintenance) or after divorce (permanent maintenance).
Yes, generally, an unemployed husband is still bound to maintain his wife. Even if the husband is not currently employed, he has a responsibility to provide for his wife's maintenance, and courts may consider his potential earning capacity when determining maintenance. Husband may seek temporary relief against any maintenance order if he can prove extreme financial hardship.
An Income affidavit must include a detailed disclosure of income, expenditures, movable and immovable properties, liabilities, and other financial particulars, forming a part of the legally required assets and liabilities affidavit. The judgment of Rajnish vs. Neha solved the issue of getting this confidential information about the parties by ordering the mandatory disclosure of the true financial status of the parties.
A wife may not be entitled to maintenance if she is living in adultery, refuses to live with her husband without sufficient reason, or if they are living separately by mutual consent. Additionally, if the wife has remarried or is earning a substantial income and is financially independent, maintenance may be denied or reduced.
Yes, a working woman in India can be eligible for maintenance, even if she is employed. The key factor is not whether she is working, but whether her income is sufficient to maintain the standard of living she enjoyed during the marriage and to meet her financial needs. If her income is inadequate, she can seek maintenance from her husband.
Yes, a wife can claim maintenance from her husband even without filing for divorce. This right is established under Section 125 of the Criminal Procedure Code (CrPC).
In Section 125 of the CrPC, the maintenance amount can be awarded either from the date of the order or from the date of the application, at the discretion of the Magistrate. While the general practice is to award maintenance from the date of the order, the Magistrate can choose to make it effective from the date of the application.
Yes, a husband can be arrested for not paying maintenance if he defaults on a court-ordered maintenance payment. The court can issue a warrant for his arrest and potentially sentence him to imprisonment for up to one month, or until the maintenance is paid, whichever comes first.

Divorce

Filing for divorce in India involves a specific legal process, which can be either - mutual consent or contested.
A mutual divorce, also known as divorce by mutual consent, occurs when both spouses agree to end their marriage and settle the terms of the divorce amicably. A contested divorce, on the other hand, happens when one spouse disagrees with the divorce or the terms of the divorce settlement, leading to a legal battle in court.
An ex parte order is a legal order issued by a court based on the request of one party, without the presence or participation of the other party. This typically happens when one party needs urgent relief and the other party is absent or hasn't had a chance to respond.
RCR (Restitution of Conjugal Rights), often referred to as Section 9, is a legal provision in India's Hindu Marriage Act, 1955 that allows a spouse to petition a district court if the other has withdrawn from the marriage without reasonable cause. If the court is satisfied, it can pass a decree compelling the defaulting spouse to resume cohabitation with the other, aiming to preserve the marriage and encourage reconciliation.
 As per Delhi Dispute Resolution Society, NCT Delhi : Mediation is a voluntary process in which an impartial and neutral mediator tries to bring together the disputant parties to arrive at a mutually agreeable solution. The parties to the dispute have an opportunity to ventilate their grievances and feelings and thereafter work out the solutions to meet their interests. The mediator neither decides nor imposes any solution on the parties, but creates a favourable environment to enable them to reach an amicable settlement.
The minimum separation period for divorce in India depends on the type of divorce and the governing law. For a divorce by mutual consent under the Hindu Marriage Act, a separation period of at least one year is generally required, while other grounds like desertion typically demand a two-year separation period. However, specific grounds under personal laws, such as the Indian Divorce Act for Christians, can have different requirements, with a two-year separation period for mutual consent divorce. The separation period varies based on the personal law applicable to the couple's marriage (e.g., Hindu Marriage Act, Special Marriage Act, Indian Divorce Act).
No, a divorce or separation decree granted by a foreign country is not automatically legally valid in India for NRIs/OCIs/Work Visa holders; it must be recognized by an Indian court, which requires the ground for divorce to be recognized under Indian law. A declaratory suit in India or an application by a lawyer can be filed to confirm the marital status, and even if recognized, separate proceedings might be needed in India for issues like child custody or property.
Adultery, Cruelty (physical, mental, or emotional), Desertion for at least two years, Mental Disorder, Conversion to another religion, Communicable Disease (like virulent leprosy or venereal disease), Renunciation of the World (becoming a monk or nun), and Presumption of Death (spouse not heard from for seven years). Divorce can also be sought through mutual consent of both parties.
An annulment is a legal process that declares a marriage invalid from its beginning, treating it as if it never existed, while a divorce is a legal process that dissolves a valid, existing marriage. Annulments are granted for reasons that existed at the time of the marriage, such as fraud, force, or bigamy, making the marriage void or voidable under the law. A divorce is based on the breakdown of a now-existing, valid marriage.
A judicial or legal separation is a court-approved formal separation where a couple lives apart but remains legally married, with the potential for reconciliation, whereas a divorce completely and permanently ends the marriage, legally dissolving all marital ties and making the individuals free to remarry.
If mutual consent divorce fails due to one party's non-appearance, the other spouse has only two options: try to reconcile and/ or re-start mutual consent process, or file a contested divorce petition on available legal grounds like cruelty, desertion etc and seek an ex-parte order.
The factors that the court considers while deciding the amount of the alimony include income, financial status, standard of living, duration of the marriage, health conditions, dependents, earning capacity, etc.
Jurisdiction is typically decided based on the Indian personal law that applies to the parties, such as the Hindu Marriage Act, determining the court location where the marriage was solemnized, the respondent's residence, the last shared residence, or in some cases, the petitioner's residence.

Child Custody

In India, the child's parents are the primary persons who can seek custody. If both parents are unavailable, maternal or paternal grandparents and other close relatives may be considered, especially out of compassion to raise the child. In certain situations, the court can also appoint a third-party guardian for the child.
The Guardians and Wards Act of 1890 is a secular Indian law that establishes the legal procedures for appointing a guardian for a minor, prioritizing the minor's welfare. It grants courts the power to appoint guardians for the person or property of a minor, and it provides a framework for determining custody and managing the ward's interests.
In India, joint custody of a child, while not explicitly defined in all personal laws, allows both parents to share in the child's upbringing and decision-making responsibilities, even after separation or divorce
The primary difference is that sole custody grants one parent exclusive decision-making authority and the child's primary residence, while joint/shared custody involves both parents sharing decision-making rights and responsibilities for the child's upbringing, which can also include sharing time with the child. Joint custody can be split between legal custody, where parents share big decisions, and physical custody, where parents share the child's living arrangements.
In India, a parent's obligation to support their child financially, known as child maintenance, is established under Section 125 of the Criminal Procedure Code (CrPC), which is applicable to all citizens regardless of religion. Other laws, such as the Hindu Marriage Act and the Guardians and Wards Act, also address child maintenance, particularly during divorce or separation proceedings. Courts prioritize the child's best interests and will order maintenance to cover expenses for education, healthcare, and daily living.
Yes, a father can get custody of a child under 5 years old in India, but it is the mother's right by default under the Hindu Minority and Guardianship Act. The court will grant the father custody only if the mother is proven unfit to provide a safe, stable, and nurturing environment for the child, as the child's welfare is the paramount consideration.
For girls above five, the law grants custody to the mother, with the father only being the natural guardian for older boys and an unmarried girl of the same age, unless circumstances prove otherwise. For other personal laws, the welfare of the child is the paramount consideration, so there is no absolute denial based on gender and age, but mothers are often preferred for young children, especially girls.

Generic

You can check FIR details on the website of the respective state police department or the national portal - https://services.india.gov.in/ You can check Case details online in India by visiting the eCourts Services website - https://services.ecourts.gov.in/ or using the eCourts Services mobile application.
Online : Access the Portal: Go to the official online portal: rtionline.gov.in. Offline : Submit the application either in person at the Public Information Officer's office or by mail.
Courts decide the jurisdiction to file a case based on factors like the case's financial value (pecuniary jurisdiction), the geographical area where the dispute occurred or where the parties are located (territorial jurisdiction), the specific type of legal issue (subject-matter jurisdiction), and the nature of the court's role, such as deciding cases for the first time or reviewing lower court decisions (original and appellate jurisdiction), and the specific laws that give a court the power to hear a case.
To verify an impending Look Out Circular (LOC) and get it closed, you should immediately contact a lawyer to file a representation for withdrawal with the issuing officer or a court for cancellation. If the threat is from the police, go to the specific police station or the officer on whose behest the LOC was issued to present your case for withdrawal. For verification and potential judicial review of the LOC's validity, you can file a writ petition in the High Court, which is the most reliable method if direct contact fails or isn't possible.
Yes, you can typically travel abroad with a pending case, but it's crucial to get explicit permission from the court first. While a case doesn't automatically ban you from traveling, restrictions depend on the case's severity and your bail conditions. Always inform the court of your travel plans and provide details like your itinerary and dates.
You are not automatically required to surrender your passport for anticipatory bail, but a court may order it as a condition if there's a risk of you fleeing the country. Courts can impose various conditions, and passport surrender is one such condition, but it's discretionary and depends on the specific facts and circumstances of your case.
If the old lawyer refuses to give an NOC, your new lawyer can file an application to the court, requesting permission to replace the old advocate. Courts usually allow the change unless there's a strong reason not to. It's your fundamental right to choose and appoint a lawyer of your choice.

Rape, Outraging of Modesty of a Woman, POSH

Rape is defined under Section 375 of the Indian Penal Code (IPC), 1860 as sexual intercourse by a man with a woman under specific circumstances without her consent. This definition includes situations where intercourse is against her will, without her consent, or with her consent obtained through fear, misrepresentation, or when she is unable to consent due to factors like intoxication or mental incapacity.
Yes, it is possible for an accused to get bail after a rape complaint is filed, as rape is generally a non-bailable offense, meaning bail is not a matter of right and must be granted by a court.
1 Date rape · 2 Gang rape · 4 Rape of children · 5 Shamanic rape · 6 Statutory rape · 7 Prison rape · 8 Serial rape 9. War Rape
The age of consent for engaging in legal sexual activity as of right now in India is 18.
Whoever commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine. Rape by a police officer or a public servant or member of armed forces or a person being on the management or on the staff of a jail, remand home or other place of custody or women’s or children’s institution or by a person on the management or on the staff of a hospital, and rape committed by a person in a position of trust or authority towards the person raped or by a near relative of the person raped. Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine.
No, marital rape is not a crime in India. The Indian Penal Code does not recognize sexual intercourse by a husband with his wife, where the wife is not under 18 years of age, as rape. This exception is rooted in the idea that marriage confers conjugal rights and that a husband cannot be charged with raping his wife.
In India, outraging a woman's modesty is an offense under Section 354 of the Indian Penal Code (IPC) which criminalizes assaulting or using criminal force against a woman with the intent or knowledge of outraging her modesty. The punishment for this offense is imprisonment for a term that is not less than one year but may extend to five years, along with a fine. Under Section 74 of BNS which replaces the corresponding section of the previous Indian Penal Code (IPC), deals with the crime of stalking. First Conviction: Imprisonment of either description for a term that may extend to three years, along with a fine. Second or subsequent convictions: Imprisonment of either description for a term that may extend to five years, and also liable to a fine.
The offence of 'rape' is covered under Section 63 of the Bharatiya Nyaya Sanhita, which does not provide any protection to a male against sexual assault.
POSH stands for the Prevention of Sexual Harassment of Women at the Workplace Act. POSH mandates organizations to prevent, prohibit, and provide redressal for sexual harassment at the workplace. Its purpose is to ensure women have the right to a workplace free from intimidation, discrimination, and harassment, creating a safe and supportive environment where they can work with dignity and equality.