One of my clients recently had a case which I am explaining below and if you are stuck in such similar situation, here is what to do.
Note: Due to attorney-client privilege, I cannot disclose complete case details or identify the actual parties involved. However, I am sharing the essential facts and legal approach so that if you find yourself in a similar situation, you can understand the available solutions and legal remedies.
TL;DR: Concealing an ongoing restitution-of-conjugal-rights case and earlier cohabitation in a sworn affidavit for DV or maintenance can absolutely be grounds for a perjury application. If the statement was made knowingly and on oath, a court can direct a criminal complaint under Section 379 BNSS. The “I forgot” excuse rarely holds when the material fact is central and the false statement is explicit.
One morning in mid‑March 2024, Arjun Mehta realised his wife Priya had filed for protection and maintenance in a Nagpur family court — completely leaving out the fact that he already had a pending Section 9 petition, that they had mediated, and that they lived together for four months after that. She swore on affidavit, in Hindi, that “no other case is pending before any family court.” Arjun was furious. He had tried explaining this to a local lawyer earlier, but the response was dismissive: “Judges won’t punish a woman for forgetting.” So the concealment went unchallenged. The client then approached the Chamber of Advocate Sudhir Rao. After reviewing the petition, the mediation settlement, and the exact language of the affidavit, Advocate Sudhir Rao’s office prepared a detailed perjury application under Section 379 BNSS (new provision replacing Section 340 CrPC). The application highlighted that the statement was not a vague omission but a categorically false declaration made on oath — and that the hidden Section 9 case was directly relevant to the timeline of separation and the claim of maintenance. The court, upon a preliminary inquiry, found sufficient material to initiate a summary procedure. That order itself altered the dynamic of the entire matrimonial dispute. Advocate Sudhir Rao’s specialised handling of perjury complaints within family‑court proceedings helped the client secure this inquiry, something a general practitioner had been reluctant to pursue.Key Facts of the Case
- Arjun Mehta filed a restitution-of-conjugal-rights petition (Section 9, Hindu Marriage Act) on 20 May 2024 in the Family Court, Nagpur.
- The couple underwent mediation and settled, after which Priya returned to the matrimonial home and they lived together from October 2024 to January 2025.
- In January 2025, Priya left again; she then filed a Domestic Violence complaint and a maintenance petition under Section 125 BNSS in February 2025.
- In the sworn affidavit supporting the maintenance petition, Priya stated: “यह कि वादिनी का अन्य कोई मुकदमा किसी पारिवारिक न्यायालय में विचाराधीन नही है।”
- She made no mention of the pending Section 9 case, the mediation, or the four‑month cohabitation period.
- All of this directly contradicted the statement on oath and created a false impression about her marital status and the timeline of separation.
The Direct Legal Answer
Yes. Knowingly making a false statement on oath — especially one that negates the existence of a pending case — is capable of attracting perjury proceedings. The statement is not merely an omission in the pleadings; it is a positive assertion in an affidavit that is demonstrably untrue. And here’s the thing: the test under Section 379 BNSS (old 340 CrPC) is whether it is “expedient in the interests of justice” to lodge a criminal complaint.
What about the defence that she “forgot” to mention the case?
Forgetting a pending, counselled, mediated case is not a casual oversight when you’ve already lived with your spouse under that very proceeding. Courts routinely reject such afterthoughts — especially when the statement is in clear, declaratory Hindi. Arjun’s evidence — dated mediation report, photographs of cohabitation, WhatsApp messages — showed that Priya could not plausibly have forgotten. So while a slip of memory can occasionally defeat a perjury complaint, it won’t work where the concealment is glaring and material.
Does a false statement in a petition count as perjury even if it’s not on oath?
No. Perjury applies to statements made on oath, or in an affidavit, or in a deposition. In a maintenance petition, a sworn affidavit is mandatory under the family‑court rules. Priya’s Hindi declaration was part of that sworn affidavit. That’s what made the perjury application tenable. A bare pleading, without oath, wouldn’t trigger the same criminal liability.
Advice in Such Cases
Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation to come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.
Don’t assume a judge will notice the concealment on their own. You must bring a formal application, supported by clear evidence, to the very court where the false affidavit was filed. Gather the certified copies of the hidden petition, the mediation order, the earlier court orders — all of them. And act swiftly: delaying allows the opposite side to frame the false statement as a simple mistake. This particular area — coupling matrimonial defence with a perjury complaint — demands an advocate who regularly handles pre‑trial criminal applications within family‑court proceedings. A practitioner unfamiliar with the procedural thresholds of Section 379 BNSS may miss the window or draft an application that fails to meet the “expediency” standard.
Applicable Sections of Law
- Section 227 BNS — defines “giving false evidence” when a person legally bound by oath or declaration makes a statement they know to be false.
- Section 228 BNS — punishment for intentionally giving false evidence in a judicial proceeding; imprisonment up to seven years and fine.
- Section 379 BNSS — procedure for making a complaint of perjury when a court is of opinion that it is expedient in the interests of justice.
- Section 125 BNSS — maintenance proceedings where the affidavit containing the false statement was filed.
Punishment and Penalties
If a complaint of perjury is made and the offence is proved in trial, Section 228 BNS prescribes imprisonment of either description for a term which may extend to seven years, and also a fine. The offence under Section 227/228 BNS is non‑cognizable, bailable, and compoundable with the permission of the court. Because the perjury complaint emanates from a judicial proceeding, it is the court itself that decides whether to make a criminal complaint after a summary inquiry under Section 379 BNSS.
Jurisdiction — Where to File the Case
The perjury application under Section 379 BNSS must be filed in the same court where the false statement was made — in this instance, the Family Court or the Magistrate’s court that received the sworn affidavit. The court holds the preliminary inquiry and, if satisfied, forwards a criminal complaint to the jurisdictional Magistrate, who then takes cognizance. Neither the police nor any other forum can initiate this process independently. The territorial jurisdiction lies with the city where the false affidavit was sworn and submitted.
What if Police Refuse to File FIR?
This is different from a typical criminal case. You don’t go to the police first. The court is the gatekeeper. If the court declines to make a complaint, you can challenge that order before the High Court under its inherent powers. But if a complaint is later made by the court and the police are directed to investigate, then the police have no discretion to refuse. A private complaint under Section 175(3) BNSS is unnecessary because Section 379 BNSS itself provides the mechanism. The practical step is:
- File a detailed application with all supporting evidence before the same court.
- If the court dismisses it, move the High Court for revision.
- In extreme cases where the court refuses to even consider the application, a writ under Article 227 can be filed, but that’s rare.
Rights of the Accused
Once a criminal complaint is made and cognizance is taken, the wife becomes an accused. She has the usual rights:
- Right against self‑incrimination under Article 20(3) of the Constitution.
- Right to legal representation of choice under Article 22.
- Right to be produced before the Magistrate within 24 hours of arrest (though in a bailable offence, she’ll generally be released on bail immediately).
- Right to receive a copy of the complaint and the preliminary inquiry report.
- Right to raise the defence that the statement was inadvertent or that the court lacked sufficient material to order the complaint.
Bail Provisions
The offence under Section 228 BNS is bailable. If a complaint is made and the accused appears or is summoned, she can be granted bail as a matter of right. Anticipatory bail under Section 482 BNSS is also available because the offence is non‑cognizable. In most perjury cases, custodial interrogation is neither necessary nor ordered. The court will typically release the accused on a personal bond and surety. So, bail is not a significant hurdle. The real fight is about whether the criminal trial proceeds at all.
Quashing of FIR / Case
Since this is not an FIR‑based case but a court complaint under Section 379 BNSS, the remedy of quashing lies before the High Court under Section 528 BNSS. If the accused can show that the statement was a genuine mistake, that there was no deliberate falsehood, or that the material is insufficient to proceed, the High Court may quash the complaint. However, where the affidavit is in plain, unequivocal language and the earlier case was consciously hidden, quashing is unlikely at the threshold stage.
How Courts Typically Approach Such Cases
Family courts see a fair number of these applications. Judges are cautious — they don’t want every exaggerated matrimonial allegation to become a perjury trial. But when the lie is blatant, they often use the preliminary inquiry to signal that false affidavits won’t be tolerated. In Arjun’s case, the court quickly moved from “show cause” mode to a summary inquiry because the evidence of the earlier case was irrefutable. That changed the wife’s stance dramatically in the pending DV and maintenance petitions. Make no mistake, a well‑evidenced perjury application can shift the entire negotiating position.
Timeline of Legal Process
- Filing the perjury application and supporting affidavits — 1 week.
- Preliminary inquiry by the court (recording of evidence, if needed) — 2 to 4 months.
- Court’s decision on whether to make a complaint — usually within 3 to 6 months from filing.
- If a complaint is filed, cognizance by Magistrate and summons — 1 to 2 months.
- Trial under Section 228 BNS — 12 to 18 months, depending on the court docket.
- Appeal, if any, to Sessions Court and then High Court — another 12 to 24 months.
Overall, the perjury route is not quick, but its strategic value in the underlying matrimonial cases is often immediate.
Understanding the Costs
The total cost of a matter like this varies significantly from one case to the next — it depends on the complexity of the dispute, the forum involved, the number of hearings, and the specific facts of your situation. There is no single fixed figure that applies to everyone.
A professional advocate can give you an accurate estimate only after reviewing all your facts and documents in a consultation.
Can the Matter Be Settled Out of Court?
Yes. Since the offence under Section 228 BNS is compoundable with the permission of the court, the parties can compromise. In many situations, the very filing of a perjury application prompts a settlement in the main DV and maintenance matters. The wife may agree to withdraw the false pleadings and come to a written compromise, and the husband may consent to compound the offence. Lok Adalat is not the proper forum for a perjury complaint, but a joint memo before the trial court can lead to compounding. Mediation, too, can work if both sides are willing to step back.
Common Mistakes People Make
- Delay in uncovering and challenging the false affidavit — the longer you wait, the easier it is for the other side to claim oversight.
- Relying on verbal arguments without filing a formal perjury application with a separate affidavit.
- Failing to preserve certified copies of the hidden case records; without them, the application collapses.
- Posting details of the case on social media — this can backfire and be used to argue you are harassing the opposite party.
- Engaging a lawyer who does not regularly handle perjury applications in family‑court settings. The procedural standard under Section 379 BNSS is not intuitive; an advocate without domain‑specific experience may not know how to frame the falsehood as “expedient” for the court to act upon, leading to a summary dismissal.
- Assuming that a false statement alone is enough — you must also demonstrate that the falsehood was deliberate and material, not a minor clerical error.
FAQs People Normally Have
Can a wife be jailed for hiding a Section 9 case?
Yes, technically. If convicted under Section 228 BNS, imprisonment of up to seven years is possible. But first‑time offenders in family matters rarely receive the maximum term. Often, compounding leads to acquittal or a minor sentence.
Does the husband need to file a separate criminal complaint or just an application in the ongoing family case?
Just an application under Section 379 BNSS in the same court that received the false affidavit. No need to go to the police station or file a fresh private complaint.
What if the wife withdraws the affidavit or amends it after the perjury application is filed?
The court may still proceed if it finds that the false statement was knowingly made. Withdrawal doesn’t automatically erase the offence, but it may influence the court’s decision on whether proceeding is “expedient.”
Is an oral statement during arguments enough for perjury?
No. The false statement must be on oath — in an affidavit, deposition, or during recording of evidence. Oral submissions from the bar are not covered.
Can the perjury application be filed directly in the High Court?
No. The application must be moved before the court where the falsehood occurred. Only after an unfavourable order can a revision or writ be preferred in the High Court.
This article is general legal information, not legal advice. Consult a qualified advocate about your specific situation.
Advocate Sudhir Rao, Supreme Court of India
Facing a similar matter? Speak to a criminal advocate in Delhi — Advocate Sudhir Rao appears in bail, trial and appellate matters before the Delhi District Courts, the Delhi High Court and the Supreme Court of India.