escape from judicial sepration, divorce
Gaurav Nanda
(Querist) 24 September 2010
This query is : Resolved
This case is of of my uncle...........who is 59 years old,working in merchant navy, his wife is about 55 years of age. From last 13 years different cases are pending against him in different courts....like criminal case involving sections 406,498A........then civil cases of maintenance.......in criminal case even the stage of charge has not begun,seeing it a family matter the magistrate sent the case to mediation. In mediation both the parties have agreed, my uncle has fulfilled the demands of his wife, he has bought her a new flat on her name and agreed to give her maintenance of 30,000 per month..........my uncle has one more house in which he is living and the new house which he bought is on his wife's name.....now in return his wife has also agreed that she soon will apply to Delhi high court for quashing of criminal charges.
Both the parties have also agreed that after the cases are over by quashing they will not come to each others residences (they have different houses) ,further they will live separately and will not claim right in each others property.
So till now everything is going fine.........but now when the case for quashing will go to high court.... then the court will ask the parties that whether they want compromise or divorce or judicial separation? Now looking at the terms of their agreement (i.e. they will not come to each others residences,further they will live separately) it does not look that parties want compromise......further they don't want divorce because both parties think that at the age of above 55 they have lived their lives.....they don't want divorce at this point........judicial separation is also not an option because ultimately it will also gives right to one party to file for divorce after expiry of one year, which neither party wants.
In reality the parties want to maintain their present status i.e. they don't want divorce or judicial separation, further they don't want compromise in strict sense giving right to other party to sue for RCR as both parties cant tolerate each other living under one roof.
What they want is to remain husband and wife in eyes of law and society, yet living at their separate residences.
Now my question to you is what these parties should do (when court ask them at quashing proceedings) are they suppose to say compromise or is their any different legal term/section besides judicial separation, divorce which these parties can use to describe the status they want to maintain........ or compromise is the only relevant term..............Any other advice most welcome.
Devajyoti Barman
(Expert) 24 September 2010
The High Court can quash a criminal proceeding if the waring parties reach to a compromise and the compromise does not necessarily mean that both of them will have to obtain divorce to bury the hatchet. The important factor is compromise and not divorce.
So whatever they are asked, the parties should reply on the line of their comprise which should be based on their free will.
