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498a victim (NA)     02 February 2013

Divorce before 498a judgement

Dear All,

I need your input over my query.

Recently my in-laws came to us for a settlement offer saying that the case will take 4 years atleast to get resolved and they are in rush to get the divorce the case is also filed in a family court. They wanted money in exchange for withdrawal of the case, although i am in a position to settle this financially, i refused blatantly because if i do so it means i am admitting to the accusations made against me and on principle i refused and told them to go screw themselves up.

After that incident, in the recent divorce court date, the opponents lawyer asked to judge to accord his client divorce because there is no scope to save the marraige. So my query is

1) Will the judge approve his request and confer divorce to her without my consent, or without her proving the accusations she made against me?

2)Will the judge wait till the 498a and DV case are solved, where also again she has to prove any wrong doings on my part that she claimed in her FIR report?

3)If the judge bestows divorce, then she will be off the hook and she will never withdraw the 498a and DV case against me, and lead a happy life while pushing me to the abyss, which will be total unfair and injustice on my part, how can i see that she does not get divorce before the 498a and DV case are resolved?

I asked my lawyer but he is not giving me any substantial answer. I know he is busy with other cases but, i am paying for my service and i feel he is not giving me any strategy of how to proceed with the case, i cannot switch the lawyers because he is best local lawyer available there.

Expert inputs will be much appreciated, please help me.



Learning

 27 Replies

Vijay Raj Mahajan (Advocate)     02 February 2013

The two matters one the civil matter of divorce in the Family Court and other the criminal complaint u/s 498A IPC in the court of Magistrate 1st class are different from each other as far their decision is concerned and both matters are to be decided on the basis of the evidence produced to prove the charges as levied in each of these matters.

The Family Court will grant divorce either if both parties agree for it by filling the joint petition for divorce by mutual consent or if one of them has filled it against the other on the ground available to her, than let her prove with sufficient evidence the said ground, it is not just that her counsel makes his speach in the court room about broken marriage and the District Judge of the Family Court will put his stamp of approval on this.

The Criminal case against you will continue even after the divorce is granted by the family court if you both agree for it and if you want that it should not be allowed make this prior condition that she should withdraw her charges made against you in the criminal case, get the FIR quashed by the High Court of the concerned State at her cost, only after that you will agree for divorce by mutual consent, otherwise let both matters be decided as per the process of law.

Alok Tholiya (self employed)     02 February 2013

While sold out judges and half heartedly working advocates do not give justice to suffering women and hence they prefer out of court settlement. Otherwise technically it is correct and morally imprtant to get rid of bad husband as fast as possible and continue the case under 498A and get justice and punish the culprit. 

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     02 February 2013

Dear Querist

if the divorce case is also filed along with 498 A iPC before the court then without proving and follow the proper procedure the court can not pass any order for grant the divorce to any party of the case.

feel Free to Call

 

 

Nadeem Qureshi (Advocate)

email : nadeemqureshi1@gmail.com

web:    nadeemqureshi498a.webs.com

Mob: +91  9953809956

          +91 8802305262

Sudhir Kumar, Advocate (Advocate)     02 February 2013

Your questions :-

 

1) Will the judge approve his request and confer divorce to her without my consent, or without her proving the accusations she made against me?

 

Ans :depends on the discretion of judge.

2)Will the judge wait till the 498a and DV case are solved, where also again she has to prove any wrong doings on my part that she claimed in her FIR report?

 

Ans : He need not wait.

3)If the judge bestows divorce, then she will be off the hook and she will never withdraw the 498a and DV case against me, and lead a happy life while pushing me to the abyss, which will be total unfair and injustice on my part, how can i see that she does not get divorce before the 498a and DV case are resolved?

 

Ans : By settlement.

Never Give Up (Fighter)     02 February 2013

Divorce does not get granted just like that, procedure has to be followed.

 

Drag divorce case untill 498A and DV are complete.

Chetan Joshi (Advisory/Advocacy)     02 February 2013

Two different cases. Don't worry the divorce will not be granted just like that. Even if it is, it can always be appealed for...

 

I appreciate you attitude to fight this out!!...

 

 

Regards

Chetan(dot)7679(at)gmail(dot)com

Ramanathan G (Independent practice)     02 February 2013

Sir,

Your question commences: "Recently my in-laws came to us for a settlement offer saying that the case will take 4 years atleast to get resolved and they are in rush to get the divorce the case is also filed in a family court".

Even after this requested "early divorce", they will have to get the "innocently divorced girl" married once more. Even at that place she have to be a wife only - that is her role will not change to that of a male in the second marriage. Even they are aware of that.

In fact, you will also marry once more.

What you should do is to determine how the relations failed - most important point is both of your s*xual function and frusturations. All other disputes get settled if both the parties are physically and mentally fit to have s*x daily and have a sound sleep.

Please determine all other problems, which you could not determine even after you have sound s*xual relations. Please note, if there was sound s*xual relations, after separation, when she have an urge to have s*x, she must have come back unless she is guilty of frigidity or other related illness.

Without caring for "admissions" on your part, submit this "return" to the Family Court, Criminal court etc and find out how the wonder takes place. If the Trial Court Judge is not interested to do justice, climb the ladder to High court and Supreme court. However, the Trial Judge may be impressed by the man who is willing to speak truth to help him.

Bye.

Joseph Wilfred (Voluntarily Retired from Indian Overseas Bank)     02 February 2013

I AGREE TOTALLY WITH THE OPINION EXPRESSED BY MR. NADEEM QURESHI AND MR. CHETAN JOSHI THAT THE COURT CANNOT PASS AN ORDER OF DIVORCE WHEN TWO OTHER CASES ARE PENDING IN A DIFFERENT COURT . BUT THIS MUST BE BROUGHT TO THE NOTICE OF THE JUDGE BY THE HUSBAND . BUT MY VIEW IS WHY THE HUSBAND HAD TO LOOSE HIS PEACE OF MIND AND FIGHT 3 CASES JUST TO PROVE THAT HE IS INNOCENT . EVEN IF HE PROVES WE DO NOT KNOW WHETHER THE JUDGE WILL PASS ORDERS FOR PROSECUTION OF THE WIFE FOR FILING A FALSE CASE ON THE HUSBAND . THE JUDGE WILL MERELY PASS AN ORDER THAT THE CHARGES WERE NOT PROVED BEYOND DOUBT AND THE HUSBAND WILL BE EXONARATED OF THE CHARGES BY THE COURT .THEN IT IS THE DUTY OF THE HUSBAND TO FILE A CRIMINAL CASE AGAINST HIS WIFE FOR FILING A FALSE CASE ON HIM AND PRAY FOR PROSECUTION OF HIS WIFE .THE JUDGE WHO IS PRESIDING OVER THIS CASE MAY FEEL THAT THE HUSBAND IS A VERY CRUEL PERSON AND ONE MAY NOT KNOW WHAT VIEW THE JUDGE WILL TAKE IN THIS CASE .IN SUCH A CASE THE HUSBAND WILL LOOSE HIS GOOD NAME EARNED BEFORE THE COURTS .IS THIS NECESSARY FOR A GOOD HUSBAND ? BUT THERE IS VERY CLEAR INSTRUCTIONS FROM THE HONORABLE SUPREME COURT OF INDIA THAT IF A PERSON FILES A FALSE CASE AND WASTE THE TIME OF THE COURT THEN HE MUST BE FINED OR PUNISHED . BUT THIS DOES NOT HAPPEN  . I MYSELF HAD TO FIGHT A CASE OF                                                       " SPECIFIC PERFORMANCE " WHERE I AM THE DEFENDANT IN THE CASE . THAT WAS FROM 1992 . IT WAS I WHO FILED A PETITION FOR EARLY HEARING OF THE CASE IN 1995 . I HAVE WON THE REOPENING OF THE CASE IN THE LOWER COURT BY FILING TWO C.R.P. IN THE HIGH COURT . WHEN I WON THE CASE IN THE HIGH COURT MY LOWER COURT CASE HAD BEEN TRANSFERRED TO ANOTHER COURT .THE HIGH COURT PASSED STRICTURES AGAINST THE JUDGE AND THE PLAINTIFF IN THE LOWER COURT AND ORDERED THAT THE CASE MUST BE OVER IN 2 MONTHS . THAT WAS IN 2004. IN ANOTHER 2 MONTHS I WON THAT CASE .BUT BEFORE I COULD SELL THAT PROPERTY , THE PLAINTIFF HAD FILED AN APPEAL IN THE DISTRICT COURT . THE LOWER COURT PASSED AN ORDER THAT I MUST RETURN THE ADVANCE RECEIVED WITH 9% INTEREST WHICH WAS NEITHER IN THE PRAYER OR IN THE CROSS EXAMINATION OF THE PLAINTIFF .ALTHOUGH MY SENIOR COUNSEL ADVISED ME TO FILE AN APPEAL BECAUSE RETURN OF THE ADVANCE AMOUNT WAS NOT PRAYED FOR , I TOLD HIM THAT I AM READY TO RETURN THAT AMOUNT .WHEN HE FILED THE APPEAL IN THE DISTRICT COURT , I FILED A CROSS APPEAL FOR RETURN OF THE ADVANCE AMOUNT BECAUSE HE IS NOT A WORTHY PERSON TO BE CONSIDERED FOR RETURN .IN 6 MONTHS I FINISHED THAT APPEAL AND HIS APPEAL WAS DISMISSED AND MY CROSS OBJECTION WAS ALLOWED . TWO CASES MORE I HAVE WON . TOTALLY 4 CASES . THAT JUDGEMENT WAS IN JUNE 2005 . IN AUGUST 2007 HE FILED AN APPEAL IN THE HIGH COURT WITH 2 INTERIM PETITIONS ONE FOR CONDONING THE DELAY AND ANOTHER FOR IMPLEADING THE PURCHASER . WE ALLOWED CONDONING THE DELAY BY NOT CONTESTING . BUT THE OTHER PETITION FOR IMPLEADING THE PURCHASER WE CONTESTED AND THAT WAS DISMISSED IN 2007. FROM 2007 HIS MAIN CASE WAS NOT ADMITTED AND IS IN  " NOTICE OF MOTION ". THE MAIN PROBLEM FOR THAT PERSON IS THAT THE DISTRICT JUDGE WHO PASSED THE ORDER HAD BEEN ELEVATED AS A JUDGE OF THE HIGH COURT IN 2007 ITSELF AND IS STILL CONTINUING IN THAT COURT WHERE HIS CASE IS PENDING. WHY THIS NARRATION IS EVEN AFTER SO MANY DEFEATS AND STRICTURES NO COURT HAD ORDERED FOR FILING A FALSE CASE AND WASTING THE COURT'S TIME . I WILL WAIT TILL THAT REACHES THE SUPREME COURT AND THEN REQUEST FOR IMPOSING A HEAVY FINE AND PROSECUTION . -JOSEPH WILFRED- 02/02/2013 AT 23.26 HRS.

498a victim (NA)     03 February 2013

@Alok Tholiya...dont be fastidious in your response, i have asked for a legal opinion and not philosophical perspective, if you dont have one, i would appreciate you if you dont speak.

While i understand the sentiment behind you post, i agree that our patriarchal society leads to lot of insecurities for women in particular, and i believed that women get unfair treatment in our society, my experience has been a different one. I have suffered every misfortune of a connection, called marriage without enjoying any of the advantages. So unless you do not know my story please keep your philosophy to yourself. I want a divorce too, while it is a moral obilgation to get rid of a cruel husband, the theory also goes the other way round. I want a divorce from her but not by admitting to the crimes she is framing against me by implication or imagination. I will confer her divorce if she comes clean and tell the truth instead of seeking lies and deception. So as much as i want the abuser be punished, it is not the husband here.

And i am very much confident of my innocence and so i am not willing to compromise on my integrity, it is she who has used corrupt law system to implicate me and my family into this turmoil and if she is assured of her accusations she would never have offered compromise, and i am appalled by your suggestion that by accepting her plan to extort money is a way of justice to her. So please save your thought, philosophy or inuendos to yourself and thanks for the free advise it is duely noted.

498a victim (NA)     03 February 2013

Dear Sir Mahajan and Sir Qureshi,

Thank you for your insight. I still have a question for you, if you can suggest me. My lawyer forbids me from doing this but i need your suggestion.

 The IO has never come to us to investigate or take our statements, I do not live in India and so as long as i am not arrested they say they will not file charge sheet. However i have evidence to disprove every accusation she made against me and my family in her FIR, in form of e-mails, official transcriptts, and video/audio recordings.

I was thinking that i want to send the copy of these documents to the IO in police station the case is filed so that they will know the truth. Also i have to tell you that the police has been corrupted because they have not followed the protocol which has to be followed during 498a registration and without any notice sent out arrest warrants.

so my question is in mist of the above conditions is it advantageous of sending a copy of the evidence to the IO or not? Do you think if he knows that her story do not hold any water, he will dismiss the FIR?

Will be looking forward for your reply

Vijay Raj Mahajan (Advocate)     03 February 2013

For the Criminal complaint, the accused is not supposed to prove his innocence it is up to the prosecution to prove the guilt of the accused, so why should you give any evidence to IO about your innocence now, let, if this has to be shown or placed on the record of the court be done at the time of your evidence in the court that will be after the prosecition evidence in the criminal matter is complete.

1 Like

Joseph Wilfred (Voluntarily Retired from Indian Overseas Bank)     03 February 2013

THE REPLY OF THE VICTIM SHOWS THAT HE IS RESTLESS NOW ITSELF . YOU GO ON PROVING YOUR INNOCENCE BY EMAILS , RECORDINGS, AUDIO AND VIDEO AND WHATEVER YOU HAVE WITH YOU . ONLY THEN YOU WILL KNOW THAT HOW THE JUDGE TAKES YOUR EMAILS/AUDIO/VIDEO ETC. I HOPE YOU HAVE NOT CONSULTED YOUR LAWYER HOW TO PROCEED IN THIS CASE .NO LAWYER WILL ADVICE YOU TO PRODUCE ALL YOUR EVIDENCE BEFORE THE INVESTIGATION OFFICER NOW ITSELF. YOU DON'T EVEN HAVE THE BASIC KNOWLEDGE THAT WHATEVER EVIDENCE YOU HAVE IN A CRIMINAL CASE SHOULD NOT BE PRODUCED IN ADVANCE AND ONE BY ONE MUST BE PRODUCED AND MARKED AT THE EVIDENCE STAGE AND THEN IN THE CROSS EXAMINATION . NOW ITSELF YOU WANT TO SEND ALL YOUR EVIDENCE TO THE INVESTIGATION OFFICER WHO IS INVESTIGATING YOUR CASE . THEN THE INVESTIGATION OFFICER WILL BUILD UP A VERY STRONG CASE AGAINST YOU KNOWING FULLY WELL AND THAT TOO IN ADVANCE WHAT ARE ALL THE DEFENCES YOU HAVE TO PROVE YOUR INNONENCE . IN THE COURT YOU WILL BE LEFT WITH NO DEFENCE BECAUSE YOU HAVE REVEALED EVERYTHING NOW ITSELF AND THE INVESTIGATING OFFICER HAD BUILT UP THE CASE TO COUNTER YOUR DEFENCE . GO AHEAD AS YOU WISH WITHOUT CONSULTING A CRIMINAL LAWYER . YOU YOURSELF WILL SEAL YOUR FATE .BEST OF LUCK.-JOSEPH WILFRED - 03/02/2013 AT 12.16 HRS.

Harsh (Manager)     05 February 2013

mister, whatever you produce IO or some writer in the PS may directly dial your opp party and give minute by minute update. they will change their game accordingly.

I would suggest  that you dont disclose all your info to EVEN your lawyer/friends/relatives etc. also

share only as much info is needed and only when it is time to do so.

Joseph Wilfred (Voluntarily Retired from Indian Overseas Bank)     05 February 2013

Mr.QUERRIST , YOU WANT TO PROVE THAT YOU ARE INNOCENT AND YOU HAVE EVIDENCE TO PROVE ALL THE ACCUSATIONS SHE MADE AGAINST YOU AND YOUR FAMILY AND THEREBY QUASH THE FIR / CHARGE SHEET IF ANY . THIS YOU SHOULD NOT DONE BY PROVIDING ALL THE EVIDENCES YOU HAVE BEFORE THE INVESTIGATION OFFICER SO THAT THEY MAY KNOW THE TRUTH AND CLOSE THE CASE . THAT IS LIKE SEALING YOUR FATE IN THOSE CASES BY YOURSELF . ONE OF THE ADVOCATES HERE HAD SUGGESTED YOU TO APPROACH THE HIGH COURT BY FILING A PETITION  UNDER SECTION 482 OF Cr.R.P. FOR A QUASH . BUT YOU MAY NOT KNOW WHETHER THE HIGH COURT WILL QUASH YOUR CASE ON THE BASIS OF THE EVIDENCE YOU HAVE .BECAUSE THE SUPREME COURT OF INDIA HAD STATED IN VERY CLEAR TERMS THAT THE HIGH COURT SHOULD ENTERTAIN SUCH PETITIONS  ONLY WHEN GRAVE INJUSTICE HAD BEEN DONE TO THE PETITIONER AND HE SHOULD NOT BE ALLOWED TO SUFFER AND THE CASE CAN BE QUASHED ON THE BASIS OF THE EVIDENCE PRODUCED BY THE PETITIONER IF THE HIGH COURT IS SATISFIED TO THAT EXTENT. OTHERWISE THE HIGH COURT SHOULD NOT INVOKE THAT SECTION AND QUASH THE CASE AND  THE PETITIONER MUST PROVE EVERYTHING IN THE LOWER COURT AND GET JUSTICE FROM THAT COURT ONLY.

               THERE IS ONE MORE OPINION IN THIS CASE AND YOU MUST BE PREPARED TO SPEND MONEY TO THE EXPERT FOR QUASHING YOUR CASE ON THE BASIS OF THE EVIDENCE YOU HAVE WITH YOU .BEFORE I EXPLAIN THAT MATTER YOU MUST BE PREPARED TO GET THE OPINION IN THIS FORUM HOW YOU SHOULD PRODUCE ALL THE EVIDENCES AND IN WHAT FORM IN ORDER TO SATISFY THE COURT BECAUSE SOME COURTS MAY ASK YOU TO PRODUCE THE HARD DISC IF YOU HAVE THOSE EVIDENCES IN THE COMPUTER .

            THIS MATTER SHOULD BE DEALT BY A CONSTITUTION EXPERT . THE CONSTITUTION OF INDIA GUARANTEES EVERY CITIZEN THE FUNDAMENTAL RIGHT TO " LIFE AND LIBERTY " .YOU ARE VERY MUCH CONCERNED THAT YOUR REPUTATION AND YOUR FAMILY'S REPUTATION WILL BE SPOILED IF A CRIMINAL CASE IS FOISTED ON YOU AND YOUR FAMILY AND YOU WANT TO STALL THAT ATTEMPT .THE SUPREME COURT OF INDIA IN A CASE ABOUT 4 YEARS BACK HAD STATED THAT THE FUNDAMENTAL RIGHT TO LIFE AND LIBERTY INCLUDES THE REPUTATION OF A PERSON AND IF THAT REPUTATION IS LOST THEN THERE IS NO POINT IN LIVING AND SUCH THING SHOULD NOT BE ALLOWED TO HAPPEN TO ANY PERSON . QUOTING SOME VERSES FROM THE " GITA " THE COURT HAD OBSERVED IN THIS WAY AND HAD QUASHED THE JUDGEMENT OF THE BOMBAY HIGH COURT IN A CASE RELATING TO FOREIGN EXCHANGE MAINTENANCE ACT WHICH IS ALSO A CRIMINAL CASE AND THAT PERSON WAS SET FREE . IN ANOTHER CASE THE SAME QUOTE HAD QUASHED A CRIMINAL CASE JUDGEMENT BY QUOTING SOME OTHER VERSES FROM OTHER RELIGION .RECENTLY ONE OF THE HIGH COURTS HAD QUASHED A LOWER COURT ORDER ON THE BASIS OF FUNDAMENTAL RIGHT TO LIFE AND LIBERTY WHICH INCLUDES THE REPUTATION OF A PERSON .

                             YOU KNOW VERY WELL THAT FIRST INFORMATION REPORT HAD BEEN FILED . CHECK WHETHER THE COURT HAD TAKEN COGNIZANCE OF THE OFFENCE . ALSO CHECK WHETHER SUMMONS HAD BEEN ISSUED TO THE PERSONS CONCERNED . JUST BECAUSE THAT SUMMONS HAD NOT BEEN SERVED AND THE POLICE HAD NOT ARRESTED ANYBODY YOU CANNOT ASSUME THAT THERE IS NO PROGRESS IN YOUR CASE .THEY KNOW VERY WELL THAT YOU ARE NOT IN INDIA .SO THEY WOULD HAVE PAID THE BATA TO THE COURT AND IN SUCH CASES THE CASE WILL BE AS IF THERE IS NO PROGRESS . ON THE NEXT HEARING DATE THE JUDGE WILL MAKE AN ENDORSEMENT " BATA NOT PAID , AND AGAIN ORDER FOR BATA . WHEN YOU LAND IN INDIA , BATA WILL BE PAID AND SUMMONS WILL BE SERVED AT VERY SHORT NOTICE FOR YOU TO APPEAR AND WHEN YOU APPEAR THE POLICE WILL FILE PETITION FOR POLICE CUSTODY WHICH WILL BE GRANTED . 

                              SO IF YOU ARE READY TO SPEND MONEY TO THE CONSTITUTION EXPERT IN THE HIGH COURT IN YOUR STATE YOU CONSULT HIM TO INVOKE THE FUNDAMENTAL RIGHT TO LIFE AND LIBERTY WHICH INCLUDES THE REPUTATION OF A PERSON TO QUASH THE POLICE CASE . BUT YOU MUST HAVE SOLID PROOF TO PROVE THAT THE CASE IS FOISTED ON YOU AND IF YOU ARE ARRESTED YOUR REPUTATION WILL BE TARNISHED BEYOND REPAIR . IF YOU DO NOT GET A FAIR ORDER YOU APPROACH THE SUPREME COURT AND YOU WILL DEFINITELY GET YOUR CASE QUASHED . BUT YOU MUST PRODUCE ALL THE EVIDENCES YOU HAVE WITH YOU TO PROVE YOUR INNOCENANCE IN THE HIGH COURT ITSELF . YOU CANNOT PRODUCE ANY ADDITIONAL EVIDENCE IN THE SUPREME COURT THAT HAD NOT BEEN PRODUCED IN THE HIGH COURT .

                             I REQUEST THE LEGAL EXPERTS OF THIS FORUM TO GIVE YOUR OPINION IN THIS MATTER AS IT WILL BE OF GREAT HELP TO ME AS WELL AS OTHER MEMBERS .- JOSEPH WILFRED - 05/02/2013 AT 09.27 HRS 


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