Criminal process
K*I*L*L*E*R
(Querist) 18 November 2013
This query is : Resolved
Dear experts
My fir quash under 482crpc is pending and adjourned sine die in high court by honable judge, its mentiond in the order that fir to be quashed after divorce by mutual consent
I have to pay 2 instalments one at time of 2nd motion in 13b and other at the time of quashing through dd in court as per compromise
Q1 is there any chance that my wife after taking divorce doesnot come for quashing
Q2 after divorce how much time will take to quash the fir as the petition is pending and adjourned sine die
Q3kindly tell the process after divorce how quash will be done
Thanks
Advocate M.Bhadra
(Expert) 18 November 2013
Once a case has been filed u/sec.498a IPC and an FIR has been registered it can not be withdrawn,your wife's presence is not necessary.However after mutual divorce Court may consider the quashing petition as its own discretion.
one judgment follows;Smt. Archana vs Dr. P.K. Tomar on 4 February, 2003
Equivalent citations: AIR 2003 All 214, 2003 (2) AWC 1119
Author: B Rathi
Bench: B Rathi
JUDGMENT
B.K. Rathi, J.
"The circumstances of this case do not show that the act of cruelty was ever condoned by the respondent. He has not condoned the act of the appellant in lodging false F.I.R. for demand of dowry, cruelty and assault. That matter has not been compromised and he and other members of his family are still facing trial. It cannot be accepted that the said cruelty has been condoned by the respondent. The appellant does not say that she was permitted by the respondent to live at Meerut permanently and not to come to his house. Therefore, this act of cruelty has also not been condoned.
I accordingly find that the act of cruelty has not been condoned by the respondent, therefore, the decree of divorce granted by the trial Judge cannot be disturbed."
K*I*L*L*E*R
(Querist) 18 November 2013
Ok, sir I didn't understant what u mean to say
K*I*L*L*E*R
(Querist) 18 November 2013
From what I understand is if wife doesnt come it doesnt matter court can quash based on merits
Im I right
K*I*L*L*E*R
(Querist) 18 November 2013
Nadeem bhai aap bataiyae still I need ur advise bhai
T. Kalaiselvan, Advocate
(Expert) 19 November 2013
Mr. Raja,
Advocate Mr. Bhadra's message was to convey you that though their marriage was dissolved by a decree of divorce, but the said decree of divorce itself doe not confer any status on her complaint u/s 498a and etc to state them to be false or anything to that effect which may entail privilege for quashing the same by the high court. Your wife has to condone your acts of cruelty before the court in order to facilitate the quash of the FIR/case against you though the fact is that she has already agreed to withdraw her complaint etc after receiving the entire amount agreed upon and the final decree on divorce has been passed. If she does not withdraw her complaint, you may contest the case on merits giving the facts that your your have paid the alimony amount and on the basis the amount settled, the divorce decree was passed. You stand chance of getting acquitted if you contest the case instead of pursuing the quash petition in vain.
Biswanath Roy
(Expert) 19 November 2013
Sec.498A of Indian Penal Code is a non-bailable criminal case to be dealt with AND TRIABLE by the Judicial Magistrate first class on the basis of F.I.R which is not compoundable i.e, cannot be compromised between the parties. However,it transpires from your say that the Hon'ble High Court viewed that the F.I.R to be quashed after mutual Divorce which might have been meant that F.I.R to be withdrawn by the complainant wife. The court cannot force the complainant to withdraw F.I.R. Be it noted that F.I.R cannot be quashed. After quashing the Divorce case if the wife does not withdraw her F.I.R automatically the matter will go for trial on the basis of F.I.R tO OPEN A sine-die you shall have to submit and move a motion petition before the High Court.
Biswanath Roy
(Expert) 19 November 2013
As a quaryst always bear it in mind that unless you disclose the entire order of the court we feel difficulty to opine correctly. So next time you do that.
ABDUL RAZIQUE
(Expert) 19 November 2013
Agree with Biswanath Roy,
V R SHROFF
(Expert) 22 November 2013
disclose full order / jud
