Mutual consent divorce and 498a case quash
Harish
(Querist) 09 July 2014
This query is : Resolved
My wife's side has agreed for a MCD and quashing of 498a, 504 case. The case charge sheet has been filed and I have a hearing this month end. The wife's side are saying that they will come for quash only after second motion i.e. after 6 months. My questions are:
1. Can the case be quashed before the second motion is complete? If yes, then what is the procedure.
2. Can the wife reject to quash the case after second motion i.e. can she turn her back and say that she was forced.
I would like to get the case quashed at the same time of filing the MCD petition. Please advise.
Advocate M.Bhadra
(Expert) 09 July 2014
Trial court have no power to quash the case u/sec.498a IPC if official F.I.R registered and case is pending.Only High Court can quash it under section 482 Cr.P.C. on either jointly moved application of both parties (this is most advisable) otherwise there should be no objection from the wife (either by her own presence or/and through her lawyer in the High Court) to this application moved by the husband. The High Court under its inherent powers will to quash the FIR & you will be free from this matter.
Raj Kumar Makkad
(Expert) 09 July 2014
It shall be better if both the cases are decided on the same day means at the time of second motion. A memorendum/Agreement can be got drafted and it can be produced before family court.
Harish
(Querist) 09 July 2014
Since the case charge sheet has already been filed, I want to know what should be done after first motion. I will have to go to the court or ask my lawyer to produce 205. Can the case be quashed in the first motion?
I'm more interested in getting the case closed, rather than worry about the divorce. I understand that a joint petition to HC (482) should be filed, however the case in the lower court will continue. For me it makes more sense to quash the case in the first motion itself. Please advise as to what should be done to the pending case after the first motion.
ajay sethi
(Expert) 10 July 2014
you can inform trial court that parties have agreed to go for divorce by mutual consent . as per consent terms wife has agreed not to proceed with 498A case .
your wife will not agree for quashing before the divorce decree is granted . even if she does not coperate on basis of consent terms you can move Hc for quashing
Harish
(Querist) 10 July 2014
Thanks Ajay, this makes things a little clear; now if I file for quash in HC after the first motion and my wife is not present, will the quash be accepted?
When I let the trial court know about the MCD, what would be the action taken from trial court? Will they give me a date after 6 months or just another date?
My intention is not to proceed with the trial and I'm little concerned because the charge sheet has already been filed.
Raj Kumar Makkad
(Expert) 10 July 2014
After getting information from your side about the MCD, the court shall fix the case for the recording of evidence and your wife is required to come present and become a hostile witness thereto along-with other private witnesses for that the case may be got decided on the second motion.
You cannot absolve yourself from attending the hearings in the criminal case/
T. Kalaiselvan, Advocate
(Expert) 10 July 2014
Instead of going for quashing the case before the high court,as expert Mr. Makkad Sir has suggested, your lawyer can represent before the trial court that you both have arrived at a compromise and the mutual consent divorce is already in progress hence she is not willing to prosecute the case any further and is willing to turn hostile, the court will then examine her, record her hostility with the reasons for doing so and after examination of IO, the case will be dismissed by the court on the basis of the stand taken by the defacto complainant i.e., your wife, consult your advocate and proceed in this route.
