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Raktim Kundu (Manager)     01 March 2015

498a query (urgent)

PART 1:
 
Me and my ex-wife dissolved our marriage in 2010 and got mutually divorced in Kolkata. We both agreed upon a few pointers one of which was TO WITHDRAW ALL PENDING CHARGES against each other (including a false 498A case). My ex-wife also agreed that she won't take any maintenance as she is already a salaried person.
 
PART 2:
 
In the mean time she silently got married and I was informed by her in laws last year that she has already started mentally torturing his new husband. She may have already filed a false 498A.
 
My lawyer contacted them and asked to come to court. He on numerous occasions plead to the judge of the lower court to dissolve the 498A charges. She once agreed but didn't appear in court. Summon was issued.
 
She did come but changed her version completely. She recited all the false alligations filled earlier during filling of 498A. The public prosicutor asked her a few questions and she answered them with ease (it seemed both reharsed multiple times).
 
PART 3:
 
We approached Kolkata High Court and appealed for quashing under the MCD agreement passed by the Senior Divisional Magistrate. The honorable justice of Kolkata HC heard our petition and passed an order on Aug 2014 staying all lower court proceedings irrespective of whether the charge sheet has been submitted or not. We also appealed to file a joint compromise petition to quash 498A which was granted too.
 
However when contacted, the other party sought Rs. 10 lakh (blackmailing) to file the joint petition which we disagreed. I spoke to their lawyer who is pretty reputed and experienced. He too seemed frustrated with the girl and his family but his hands are tied.
 
Copy of the order was served via speed post but they returned undelivered.
 
What is the right thing to do now?
 
Please suggest and advise urgently. Its been 7 years now I am fighting and I am sick and tired! My dad is very sick!!
 
Thanks.


Learning

 12 Replies

Q Slinger (NA)     01 March 2015

So your query is about serving summons from HC, correct? Well, the next time they come to the lower court, ask your lawyer to serve the summons to them in front of the judge and get the signature. 


Raktim Kundu (Manager)     01 March 2015

Originally posted by : Q Slinger

So your query is about serving summons from HC, correct? Well, the next time they come to the lower court, ask your lawyer to serve the summons to them in front of the judge and get the signature. 

ABSOLUTELY NOT. I have given all the details to ask for better options! How to get the case quashed without contesting?

Kapil Chandna (Lawyer at Supreme Court of India)     01 March 2015

Dear, On the basis of the settlement deed u must have entered while taking mutual consent .... Tell court that she is demanding money and mentally harassing you .... Rather an action be taken against her .... Send her a legal notice telling if she Don't come to court she will be prosecuted for other offences as well and she will mend her ways possibly .... Kapil Chandna Adv 9899011450

Raktim Kundu (Manager)     02 March 2015

Originally posted by : Kapil Chandna
Dear,

On the basis of the settlement deed u must have entered while taking mutual consent .... Tell court that she is demanding money and mentally harassing you .... Rather an action be taken against her .... Send her a legal notice telling if she
Don't come to court she will be prosecuted for other offences as well and she will mend her ways possibly ....

Kapil Chandna Adv 9899011450

Thanks Sir, but how to prove her lame demand? Conversation was held between adv and the girl via mob. Does that count as evidence?

Q Slinger (NA)     02 March 2015

you want the case quashed without the opposite party knowing!!?? NOT POSSIBLE! Part of the quash procedures is that the opposite party has to be notified...if not, the case will be pending and judge won't take action on it!


Raktim Kundu (Manager)     02 March 2015

We have intimated them via speed post which they didn't accept. Is that my fault??? Did I ever implicate that I want the case quashed without notifying them??? How to prove her lame demand of 10 lakhs? Conversation was held between adv and the girl via mob. Does that count as evidence?

Q Slinger (NA)     02 March 2015

Its not your fault..but the court procedure is the court procedure. HC judge won't entertain the case till the opposite party has been notified.

 

Its a standard practice for the opp party to refuse notification just so they can delay the case. In that case you can serve a copy to his lawyer as well...maybe this time you can fim them secretly when the mail man goes there to deliver the letter to show that she is refusing to take the notice.

Or, as mentioned previously, serve them the notice when they attend the dates in the lower court. 

 

As per the conversation between your advocate and her, I am not sure if you can use that as evidence. But am sure the experts can comment on that. 

Raktim Kundu (Manager)     03 March 2015

Ok Q Slinger... understood. Can you or the seniors kindly confirm that is there any chance of the HC judge taking cognisance of the matter and delivering an exparte judgement? She is clearly trying to delay which is her primary motive.

Augustine Chatterjee,New Delhi (Advocate & Solicitor at Law)     04 March 2015

There is no reason for you to be worried. The petition for quashing before the HC was agreed to be filed mutually. Now that she is not co operating, she is barred by estoppel from retracting from her previous undertaking. Have her summoned before the HC. There will be two pissiblities:

1. She agrees to have it quashed. In that case all well

2. She disagrees to co operate. In that scenario ask your lawyers to argue on the aspect of why the trial is no longer required to be conducted keeping in view the settlement arrived between you two. Remember quashing can be exercised by the HC suo moto and its nt always with the intervention of both parties mandatorily. If you can convince the judge, that the trial is being carried out despite there being a written undertaking betwene you both to quash it mutually, th judge would appreciate that the trial continuing shall be violation of justice and he can quash the FIR on his own motion too

 

Augustine Chatterjee

9999931153

Raktim Kundu (Manager)     05 March 2015

Originally posted by : Augustine Chatterjee

There is no reason for you to be worried. The petition for quashing before the HC was agreed to be filed mutually. Now that she is not co operating, she is barred by estoppel from retracting from her previous undertaking. Have her summoned before the HC. There will be two pissiblities:

1. She agrees to have it quashed. In that case all well

2. She disagrees to co operate. In that scenario ask your lawyers to argue on the aspect of why the trial is no longer required to be conducted keeping in view the settlement arrived between you two. Remember quashing can be exercised by the HC suo moto and its nt always with the intervention of both parties mandatorily. If you can convince the judge, that the trial is being carried out despite there being a written undertaking betwene you both to quash it mutually, th judge would appreciate that the trial continuing shall be violation of justice and he can quash the FIR on his own motion too

 

Augustine Chatterjee

9999931153

Sir, how to prove she is married? 200% she is.


Raktim Kundu (Manager)     13 October 2015

Originally posted by : Augustine Chatterjee

There is no reason for you to be worried. The petition for quashing before the HC was agreed to be filed mutually. Now that she is not co operating, she is barred by estoppel from retracting from her previous undertaking. Have her summoned before the HC. There will be two pissiblities:

1. She agrees to have it quashed. In that case all well

2. She disagrees to co operate. In that scenario ask your lawyers to argue on the aspect of why the trial is no longer required to be conducted keeping in view the settlement arrived between you two. Remember quashing can be exercised by the HC suo moto and its nt always with the intervention of both parties mandatorily. If you can convince the judge, that the trial is being carried out despite there being a written undertaking betwene you both to quash it mutually, th judge would appreciate that the trial continuing shall be violation of justice and he can quash the FIR on his own motion too

 

Augustine Chatterjee

9999931153

After 4 orders the case stands as it is. Every HC judge is extending the stay on proceedings in the LC for 3-4 months (that was the first interim order) but not doing final hearing. All the orders say, "Let the matter appear next time under Contested applications" but the case doesn't appear under Contested applications in the cause list. My lawyer appeals for extension of interim order and the judges extend it. 

So I am going round and round.I am tired, frustrated and demoralized. Please suggest and advice.

Raktim Kundu (Manager)     13 October 2015

Also I have been successful in contacting her next/second husband. The girl has also filed a domestic violence case against him and family members. Their marriage was only 4 months old.

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