「 ✦ Content ✦ 」

How to Avoid Arrest in Matrimonial Cases? - Know here

 

-Kishan Dutt Kalaskar

 

Usually, when a marriage goes downhill and the parties do not find it possible to live together, divorce is the most suitable option to end the unwanted ties. However, there are recent trends in India wherein misuse of laws genuinely curated to help women in distress being treated with cruelty by husband and/or relatives, demanding dowry, or facing domestic violence, to protect their interests. Since laws seek to protect women, and things take a turn towards criminal provisions, arrest is expected. In such cases, how to avoid arrest in matrimonial cases? - This is a common query by husband and his family members who apprehend the worst scenarios while fighting legal recourse by avenging wife/daughter-in-law. People often rely upon anticipatory bail in matrimonial case, but that’s not as easily available. One should know the procedural and legal technicalities if they are facing similar cases and seek to protect their own as well as family interests. The related aspects of arrest in matrimonial cases have been addressed below.

 

Police Procedure in Cruelty Case

A woman may file a complaint for cruelty under Section 498A of IPC - Now Sections 85 and 86 of the Bharatiya Nyaya Sanhita at the nearest Women Cell or the Local Police Station, as the case may be. The complainant woman is handed over a receipt for the complaint and accompanying documents by the Police. Thereafter, the Investigating Officer calls the in-laws and informs the woman when her presence may be required. The in-laws will be given summon/notice, and informed about the allegations of cruelty by the wife, seeking their response/representation. If the Investigating Officer deems it fit, they may proceed with counselling to aim at reconciliation and settle the matter amicably in matrimonial cases. If it succeeds, the IO suggests the parties to make a settlement deed stating the terms of compromise, which shall be signed by the parties and witnesses and submitted with the Police. If the matter is not settled amicably, FIR is registered, and the woman may seek possession of her Stridhan from the in-laws. The IO proceeds with investigation and a chargesheet is filed with the Court.

 

 

Arnesh Kumar Guidelines

Initially when the provision regarding cruelty under Section 498A was introduced in 1983, the following years witnessed an increase in cases where women would file FIRs against her husband, his parents, siblings, and even the spouses of husband’s siblings or cousins, etc. The Police in the name of investigation would arrest all those nears and dears along with the husband, the matter would go on for years, and at the end, it would end in acquittal unveiling that the charges were false. False cases in matrimonial disputes became a trend, which would result in unnecessary arrests and harassment for the husband’s family. To stop all of this, the Supreme Court in 2014 came up with certain guidelines regarding arrest in 498A cases in Arnesh Kumar v. State of Bihar. Since then, the Police have to explain their stand before arresting anyone in matrimonial cases, particularly in cruelty cases. 

 

Arrest in 498A IPC case (Now Sections 85 and 86 of BNS)

While the general rule is that Police shall not readily arrest the husband or his family in matrimonial disputes, if the allegations involve other serious crimes along with Section 498A, arrest may not be avoided. Also, if a person is a Non-Resident Indian (NRI) or anyone who is not appearing for counselling or investigation whenever required, the person may be arrested. In another scenario, if a chargesheet is filed and the person does not appear before the Court, nor seeks bail, which leads to issuance of non-bailable warrant, in such cases, avoiding arrest in matrimonial cases gets challenging.

 

Anticipatory Bail in 498A Case

People are very much acquainted with the term anticipatory bail, but don’t understand the technicalities in most of the cases. If a person apprehends arrest by the Police since wife has sent a legal notice reflecting relatable allegations for a non-bailable case which he/she knows to be false, such a person may approach the Court with an application for anticipatory bail. It may be noted that only Sessions Court or High Court are empowered to grant anticipatory bail. In case of cruelty cases, the Court looks at the prima facie case, and well founded in cases where FIR is lodged, since the allegations can be counted for a false story. It is challenging to establish grounds for anticipatory bail in matters wherein FIR is yet to be lodged, as the Courts usually reject such applications. In such cases, your lawyer may at least argue and request the Court to pass orders for the police to at least give a notice in advance before arrest in 498A case, if an FIR is lodged in future. If allowed, such a pre-arrest notice will give a chance to apply for anticipatory bail later.

 

Can police arrest in a dowry case?

While initially, the provisions under the Dowry Prohibition Act were non-cognizable, bailable and non-compoundable, the amendment in 1984 made the offences cognizable, and 1986 amendment made them non-bailable. This led to serious consequences for the husband and in-laws. However, pertaining to the misuse of like provisions, the Courts have time and again issued several guidelines which helps husband and his family to avoid arrest in matrimonial cases. They have to prepare a checklist on whether arrest is a must, or can be avoided. 

 

 

Inference - How to avoid arrest in matrimonial cases?

While maintenance is the major focus in domestic violence cases, other provisions like cruelty case, dowry case, and other serious allegations like unnatural cases, molestation, etc. are used by women to harass the husband and his family. Since it has become a trend these days, Courts and even the Police know the strategy and tend to be strict against arrests. If you are still stuck with some influential people and need to know how to avoid arrest in matrimonial cases, it is important to connect with a lawyer who would suggested the way out based on specific facts of the matter. 

*****