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Legal procedure to file a case of harassment u/s 498 IPC


20-Jan-2023 (In Criminal Law)
For the past 15 yrs in my marriage ,My husband has been continously maintaining affairs which was pre marital and now its postmarital and is also highly alcoholic..somehow following the society norms I have been stretching this failed marriage and has son of 10 yrs..Neither he gave me emotional support nor enough of financial .I am living in his parents house and in joint family you are always on mode of comprising.I am working and have come up my new starting business but is not capable enough to run the house on my own or seek separation.His dramas goes on ..he sleeps in separate room besides it affects my child's psyche.If I oppose his actions ,his family blames me for everything .But I want to give him a jerk as a case of harassment as I have gone through lot of emotional traumas over the years.Still he has no fears..meets up that woman and supports her children like father.Till date he has not purchased a single property for us , no bank balance for me. Please explain me the procedure of a case under Section 498A of IPC.
Answers (2)

Answer #1
391 votes

The first thing to understand before detailing the procedure to file a case of harassment under Section 498A of the Indian Penal Code is who can file a complaint under this provision of law.

As per Section 198A of the Code of Criminal Procedure, a court cannot take cognizance of an offence punishable under Section 498A of the IPC unless a police report is filed reporting the facts which constitute the offence, or upon a complaint made by the aggrieved wife or by her father, mother, brother, sister, her father’s or mother’s brother or sister or with the leave of the court, by any other person related to her by blood, marriage or adoption
 

FIR under Section 498A

If a woman has been subjected to either physical or mental or sexual cruelty, she should not shy away from approaching the authorities to not just seek justice, but also ensure punishment for the wrongdoers and to save the victim from any future infliction of harm from such husband or relatives of the husband. Thus, the first step to ensure justice delivery, after hiring the services of a qualified and expert criminal lawyer, is to approach the local police station and file a First Information Report i.e., FIR.

If the victim has been hurt or is not in a mental / physical position to approach the police and go to the local police station herself, then in such situations, a friend or relative can also approach the police on her behalf. Also, a call can be made on the police helpline number, 100. Filing a complaint or FIR is the first step in the legal procedure to seek justice under Section 498A.

The following is the trial / court procedure which is initiated upon filing of the FIR with the police authorities:

  1. FIR (First Information Report) / Police complaint: the primary step is filing a Police Complaint or a First Information Report. This is covered under Section 154 of the Code of Criminal Procedure. An FIR sets into motion the entire legal process. 

  2. Investigation and Report by Officer: Upon recording of the FIR, an investigation into the matter is carried out by the Investigation Officer. After the examination of the facts and circumstances, collection of evidence, and examination of persons and other necessary steps, the officer completes the investigation. 

  3. Charge-sheet before Magistrate: The next step is filing of the charge sheet before the concerned magistrate. Such charge-sheet consists of all the criminal charges against the persons accused of the crime by the complainant.

  4. Arguments before Court and Framing of Charges: On a date fixed for hearing the matter, the Magistrate hears the arguments advanced by all parties and on the basis of the same, frames the charges. 

  5. Plea of guilty: Section 241 of the Code of Criminal Procedure, 1973 talks about the plea of guilty. Once the charges have been framed by the magistrate, the accused persons are given an opportunity to plead guilty, and the responsibility lies with the judge to ensure that the plea of guilt was made voluntarily. Upon such a plea, the magistrate may convict the accused and pass a sentence in this regard.

  6. Evidence by Prosecution: After the framing of the charges and the accused pleading ‘not guilty’, the evidence is first given by the Prosecution, upon whom the burden of proof initially (generally) lies. Both oral and documentary evidence can be produced. The magistrate has the power to issue summons to any person as a witness or order him to produce any document. 

  7. Cross Examination of Witnesses by Accused/Counsel: when the witnesses of the prosecution are produced before the court, they are subjected to cross examination by the accused or his/her counsel. 

  8. Evidence by Accused if any, in defence: If the accused has any evidence, it is presented to the Courts at this stage. He/she is given this opportunity to make his/her case stronger. However, since the burden of proof is on the prosecution i.e. the alleged victim, the accused is not required to present evidence. 

  9. Cross Examination of Witness by Prosecution: If witnesses are produced by the defence, they will be cross-examined by the Prosecution. 

  10. Conclusion of Evidence: Upon presentation of evidence by both sides to the trial, the Court/Judge concludes the evidence. 

  11. Oral / Final Arguments: upon conclusion of evidence by the parties, the next stage which marks the final part of the proceedings before the court is leading of final oral arguments. Either sides take turns and lead arguments before the judge enabling him to make a decision on the merits of the case.

  12. Judgement by the Court: Based upon the facts and circumstances of each case, and upon on the strength of the oral arguments made and evidence produced by the parties to the trial, the Court gives its final judgement on the case. The Court also gives its detailed reasons in support of either the acquittal or conviction of the accused and pronounces its final order. 

  13. Acquittal or Conviction: If the accused is held guilty by judgment of the court, he/she is convicted and if held ‘not-guilty’, the accused is acquitted in the final judgement. 

  14. If Convicted, Hearing on Quantum of Sentence: If the accused is held guilty of the charges framed and thus convicted of the offences made out, a hearing will take place to decide the quantum or extent of the sentence or jail time of the accused. 

  15. Appeal to Higher Courts: An appeal to Higher Courts can be made if the scenario allows it. From Sessions court, an appeal can be made to the High Court and from High Court, to the Supreme Court. 


Answer #2
689 votes
Ma'am first you have to lodge a First Information Report (FIR) with the nearest Police Station.
The FIR would be for offences punishable u/s 498A (Cruelty to wife), 497(Adultery) and 509 (Act intended to insult the modesty of a woman).
After lodging the FIR, the criminal law process would start.
In the event of police not lodging the FIR or not taking any action after lodging of the same, you can file a complaint with the court.

With the above you may also file for divorce as you are in a failed marriage.

Disclaimer: The above query and its response is NOT a legal opinion in any way whatsoever as this is based on the information shared by the person posting the query at lawrato.com and has been responded by one of the Divorce Lawyers at lawrato.com to address the specific facts and details.

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