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Mayank (Business)     23 December 2008

Divorce with mutual consent - While 125 & 498 ongoing

I need an urgent suggestions from all the experts in this forum. Here are the details

1. Got married in 2003. After living together for 2 months, living separately since then.

2. Wife filed false 125 & 498 in 2004, and cases are still going on.

Recently the other party contacted us for a settlement. They are asking for a lumsum amount, which we agree to give but at the same time we do not trust them at all. So could you please let me know what all we need to put on Divorce petition to ensure that after giving the money we do not get any trouble from them again and other cases (125 & 498) also get terminated/void.

Is there any loopwhole which they can exploit after taking the money and proceeding with other cases.

Your suggestions are greatly appreciated.

Thanks



Learning

 25 Replies

Srinivas.B.S.S.T ( Advocate)     23 December 2008

 The speediest way to get divorce rather than waiting for a span of six months as is mandatory in divorce by mutual consent is to file a divoce petition against your wife under the grounds of cruelty and dessertion. Once the other party received the summons both of the parties can file memos before the respective courts praying to refer all the cases to the lok adalat. Once all the cases were transferred to lok adalat you can file a joint memo consisting of all your terms and compromise including payment of money towards full and final satisfaction of past, present and future alimony. As the other side will also give her consent for the same and endorse her signature before the presiding officer lok adalat, they cannot cry foul later. Please contact a local advocate and he will guide you properly. Regards Srinivas BSST. 

Mayank (Business)     23 December 2008

Thank you for your suggestion.


My local Lawyer says that the Divorce by mutual consent can also be speed up by putting up an application that both the parties are already living separately for more than 4 years, therefore there is no reason to wait for another 6 months.


Will this work, and also can other party have option to create problem in pending 498 & 125 cases, once Divorce is ordered after mutual consent?


(Guest)

Please, get Settlement Deed done through any Lawyer and filed the same in the court and get consent decree from the court. So, afterwards your  Ex.Wife will not harass or exploit to you in any manner. Please do all the money transaction in cheques and mention the cheque details in the Settlement Deed.

Sanjay Khandelwal (Manager Legal)     24 December 2008

Dear Mayank


Its great that settlement is forthcoming.


 


While drafting mutual divorce petition all agreed terms conditions form part & parcel of divorce deed like right of alimony, maintenance as well as all claims existing or future or likely to accrue in future. Also as part of petition take undertaking to withdraw all cases filed by her ahainst you in any court. You may get the same transmitted in form of MOU forming part of divorce petition or make part of main petition.


 


All statements are recorded before the court and no scope of opening up.


As caution get the petition transformed into affidavit as annexure & get the undertaking of all settlement of claims rights interest existing/accrued /or which may accrue either in your assets or your family assets as well as undertaking to not to file any suit /case/claim complaint before police, any court, judicial, quasi judicial authorities either against you or your family members in future


 


Also ensure that in mutual divorce part of amount is paid on first motion and part on second and part on final decree.


 


Attached File : 54 new microsoft word document (2).doc downloaded: 617 times

RAKHI BUDHIRAJA ADVOCATE (LAWYER AT BUDHIRAJA & ASSOCIATES SUPREME COURT OF INDIA)     24 December 2008

I do agree with all the lawyers.

Vijay Raj Mahajan (Advocate)     27 December 2008

Now listen very carefully even if you agree for divorce by mutual consent by settling for lump sum amount as Permanent Alimony/maintenance & she with draws her Section 125 Criminal Procedure Code case for monthly Maintenance she won't be able to withdraw her complaint under section 498A of the Indian Penal Code as that is non compoundable offence which even parties compromise cannot withdraw it of their own accord. I know other advocates will come out here & start quoting me various High Court judgments wherein such complaint under section 498A I.P.C were dismissed by the High Court under its inherent powers as provided under section 482 of the Criminal Procedure Code, so for them as well your information, there is a recent judgment of the Supreme Court of India wherein the court has directed the High courts not to use its inherent power for dismissing such complaints during its prosecution stage, let the prosecution be completed & based on the evidence & circumstance of the case the trail court decide the fate of the Complaint under section 498A I.P.C. So what I want to tell you here even you both compromise, this complaint under section 498A I.P.C will continue even after your divorce & if she through her learned counsel can get this dismissed by the State High Court then let this happen first before you give her any Permanent Alimony or Maintenance or sign the Joint Petition for Divorce by Mutual Consent. By the way what sort of advocates you engage who have no knowledge of law & practicing in courts.

1 Like

(Guest)

Dear Mayank,

Suppose a lumpsum settlement amount of say Rs. 6 Lac has been agreed by both parties then file a joint motion and state on record at the time of recording of joint statement say Rs. 2 Lac DD will be given to party and at the time of drawing Decree of Divorce another DD of Rs. 2 Lac will be placed before record for her withdrawal (signed) with submission of S. 125 CrPC Petition withdrawal order sheet by wife and final amount of Rs. 2 Lac will be given at the time of Joint Quash of S. 498a IPC by filling a S. 482 CrPC joint application before HC. when a Quash Decree is submitted before lower court she can withdraw last final settlement amount. While approaching HC for joint quash you may place on record DD of Rs. 2 Lac before the lower court and certified copy of Decree of Divorce and payment made and last part of payment copies can be annexed as exhibits at HC.

However, if chargesheet is filled then ask lower court to adjourn hearing on it till Quash Decree is submitted by filling certified copy of Jointly filled Quash Application.

Well it (quash u/s 482 CrPC in a S. 498a IPC suit) has been done till 3 days back in Delhi HC and Mr. Mahajan's reference citation is on the lines of say "there are judgments that say vague allegations are not maintainable. At the same time there are judgments that say if the allegations are too specific then also they appear to be fabricated". So in my opinion there is no such bar to main question answered by other Ld. Advocates here vis-a-vis mr. Mahajan comment to them. 

Hence in both ways yours is a win win situation if approached in above fashion to safeguard all interests.

Regards

Vijay Raj Mahajan (Advocate)     31 December 2008

What ever Mr.Arun stated about quashing of F.I.R filled under section 406,498A etc I.P.C by High Court of Delhi is concerned no doubt that is correct, rather one bench of the High Court has been exclusively appointed to look in to all these Criminal Miscl. cases concerning compromise between the parties for divorce by mutual consent & getting the dowry/cruelty criminal complaints/F.I.R quashed, but this doesn't mean that the judgment of the Supreme Court wherein that court directed the High Courts cautiously using their Inherent powers under section 482 Cr.P.C be ignored. What High Court of Delhi is doing doesn't mean all High Courts in India will be doing the same, the intention no doubt of the High Court of Delhi & its Ld. Judges to finish off the matrimonial dispute amicably, when both parties agree to call off the marriage & they have no further dispute amongst them then why prolonging the criminal matter pending between them with regard to dowry & cruelty, only with this thing is in their mind they pass such order quashing the F.I.R every second or third day  such Criminal Miscl case filed & brought before them. What I stated in my reply was to bring to the notice of this gentleman that he should be careful while signing the petition for divorce by mutual consent & giving the wife any amount as the settlement amount or permanent alimony/maintenance in whatever name one may call it. This innocent man should first seek his name cleared from the criminal complaint filled against him as there are cases where even after the divorce the criminal cases relating to dowry/cruelty between the parties continued. The copy of the S.C judgment for reference attached.


CASE NO.:Appeal (crl.) 426 of 2008


PETITIONER: Renu Kumari


RESPONDENT: Sanjay Kumar & Ors


DATE OF JUDGMENT: 03/03/2008


BENCH: Dr. ARIJIT PASAYAT & C.K. THAKKER & LOKESHWAR SINGH PANTA


JUDGMENT: CRIMINAL APPEAL NO 426 OF 2008


(Arising out of SLP (Crl.) No.2314 of 2006)


Dr. ARIJIT PASAYAT, J.


1. Leave granted.


2. Challenge in this appeal is to the judgment of a learned Single Judge of the Patna High Court quashing the proceedings initiated against the respondents 1 to 7, in purported exercise of power under Section 482 of the Code of Criminal Procedure, 1973 (in short the 'Cr.P.C.'). A prayer was made before learned Sessions Judge, Patna to quash the proceedings in Criminal Revision No. 817 of 2001. Learned S.D.J.M., Patna in Pirbahore PHB Case No. 120 of 2000 had rejected the prayer of discharge made by the aforesaid respondents. The prayer was made in terms of Section 239 Cr.P.C.


3. Background facts in a nutshell are as follows:


Appellant was married to respondent No. 3 Rajesh Kumar on 1.7.1998. Alleging that she was being harassed and tortured both mentally and physically for having not met the dowry demands, complaint was made alleging commission of offences punishable under Section 498 A of the Indian Penal Code, 1860 (in short the 'IPC') and Sections 3 & 4 of the Dowry Prohibition Act, 1961(in short the 'Act'). Police registered FIR No. 120 of 2000 in Pirbahore Police Station. Appellant's father-in-law filed a complaint alleging assault and criminal trespass by the appellant. Another complaint was filed alleging an attempt to kidnap. A suit for divorce was filed by the husband. Appellant entered appearance in the matrimonial suit which was filed on 15.3.2000. Learned Principal Judge, Family Court directed grant of maintenance at the rate of Rs.2000/-p.m. and the cost of litigation to be paid to the appellant. Respondent's father in law filed Misc. Case No. 12 of 2001 questioning correctness of the maintenance order on the ground that the respondent's husband has no share in the ancestral property and maintenance cannot be paid out of it. Charge sheet was filed on 12.8.2000. An application for discharge in terms of Section 239 Cr.P.C. was filed on 28.8.2001. The prayer was rejected on 7.9.2001 by learned SDJM. As noted above Learned Sessions Judge, Patna dismissed the Revision Application being Criminal Revision No. 817 of 2001. Respondents filed a Criminal Misc. Petition under Section 482 Cr.P.C. By the impugned order the prayer has been accepted. To complete the narration it needs to be noted that the matrimonial case No. 49 of 2000 filed by the respondent-husband was dismissed on 12.10.2004.


Learned Single Judge after referring to a judgment of this Court in State of Haryana & Ors. v. Ch. Bhajan Lal & Ors. (AIR 1992 SC 604) held that the present case is a clear example of malafide where the proceedings have been maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite them due to private and personal grudge. Reference has been made to the matrimonial case stating that the same was filed earlier to the lodging of the FIR.


4. In support of the appeal learned counsel for the appellant submitted that the parameters for exercise of jurisdiction under Section 482 Cr.P.C. have not been kept in view by learned Single Judge, further he lost sight of the fact that the Matrimonial Case No. 49 of 2000 was dismissed long before the disposal of the case before the High Court. The matrimonial suit was dismissed on 12.10.2004 whereas the impugned judgment has been passed on 19.12.2005.


5. There is no appearance on behalf of the respondents in spite of service of notice.


6. Exercise of power under Section 482 Cr.P.C. in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of Cr.P.C. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under Cr.P.C., (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. The courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in the course of administration of justice on the principle of "quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest" (when the law gives a person anything, it gives him that without which it cannot exist). While exercising the powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section, though wide, has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has the power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers the court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the report, the court may examine the question of fact. When a report is sought to be quashed, it is permissible to look into the materials to assess what the report has alleged and whether any offence is made out even if the allegations are accepted in toto.


7. In R.P. Kapur v. State of Punjab (1960 (3) SCR 388) this Court summarised some categories of cases where inherent power can and should be exercised to quash the proceedings:(i) Where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. (SCR p.393)8. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 CrPC, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it, accusation would not be sustained. That is the function of the trial Judge. Judicial process should not be an instrument of oppression, or, needless harassment. The court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not


an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 CrPC and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal (1992 Supp (1) SCC 335). A note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of rare cases. The illustrative categories indicated by this Court are as follows: (SCC pp.378-79, para 102)


"102. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.


(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.


(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.


(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.


(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.


(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.


(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."


9. As noted above, the powers possessed by the High Court under Section 482 Cr.P.C. are very wide and the very plenitude of the power requires great caution in its exercise. The court must be careful to see that its decision, in exercise of this power, is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in the court which decides the fate of the accused person.


The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. [See Dhanalakshmi v. R. Prasanna Kumar (1990 Supp SCC 686), State of Bihar v. P.P. Sharma (1992 Supp (1) SCC 222), Rupan Deol Bajaj v. Kanwar Pal Singh Gill (1995(6) SCC 194) , State of Kerala v. O.C. Kuttan (1999(2) SCC 651), State of U.P. v. O.P. Sharma (1996 (7) SCC 705), Rashmi Kumar v. Mahesh Kumar Bhada (1997 (2) SCC 397), Satvinder Kaur v. State (Govt. of NCT of Delhi) (1999 (8) SCC 728) and Rajesh Bajaj v. State NCT of Delhi (1999 (3) SCC 259)]


10. The above position was again reiterated in State of Karnataka v. M.Devendrappa (2002(3) SCC 89), State of M.P. v. Awadh Kishore Gupta (2004(2) SCC 691) and State of Orissa v. Saroj Kr. Sahoo (2005(13) SCC 540).


11. In view of the position of law highlighted above the impugned order is indefensible and is set aside.


12. The appeal is allowed but without any order as to costs.


 


(Guest)

Dear  Mr Mahajan,

I do agree to what you were trying to say in the first instance supported now with Apex citations but to me (a layman) your caution sounded more as condemning other ld. advocates answers, hence, a mild layman suggestion from me was replied upon.


However, just yesterday Karnataka HC allowed Quash in S. 498a / 406 IPC to one of my fellow activist and the case had similar forebearings as initially asked by Mayank the original questioner here in this thread.



Let us be honest inside and admit it that most of the Quash fails bze wife's side and their legal representatives miss guide wife's, men and agent thus the whole term of S. 498a IPC proceeds and ultimately comes into 2% conviction statistics as even admitted by RTI done to WCD and NCW. I hope you will partly agree to my humble views too !


Wishing readers a Happy and Healthy mind,body and soul filled HAPPY NEW YEAR 2009 wishes.

Regards,

Vijay Raj Mahajan (Advocate)     31 December 2008

I never condemed any Ld. Advocate of this forum but those who misguide the parties in the court as rightly pointed out by you,those rascals are only bothered about their professional fees & for that they mislead the married women first to file false complaint/F.I.R for dowry/cruelty then get them huge amount for compromise, out of this huge amount keep share for themselves.


(Guest)

ha ha, well I still have high regards for all Ld. Counsels good or bad or worse as they know court craft better than a non qualified defendent like me which is the best part I am learning the hard way.

However, could you be kind enough to review a forum message posted by me just below this question thread titled as "what is the remedy for a Husband" and please comment on it honestly.

Rgds 


(Guest)

if the complainant and accused, both come before the High Court with a joint application for quashing of the FIR and criminal proceedings under Section 498-A, the high court under Section 482 can quash them after ascertaining from the complainant that the application has not been moved under duress or threat etc.  In the compromise deed filed in the matrimonial court, where a divorce suit is pending, this has to be specifically expressed that both the parties present in the High Court and move the joint application for quashing criminal proceedings and FIR in Secction 498-A.  The final part of the settlement amount can be paid in the High Court. 


(Guest)

The Supreme Court judgement cited by Sh. Mahajan is distinguishable on the facts and there is no difference of opinion of inherent jurisdiction of the Hight Court under Section 482 of Cr.P.C.


Prabhakar

MANISH (Advocate)     05 January 2009

Dear Mr. Mayank,


I agree fully with Mr. D Arun Kumar.


As per Section 125 is concerned, even if you settle in lumpsum amount for maintenance, still the proceeedings will lie in the Court, therefore, it is mandatory to mention that such amount is for the payment of 125 proceedings; as there are a lot of judgements of various courts which say that if the matter is settled in an agreement, still respondent is liable under section 125, and if any clause is there in agreement regarding non-claiming under section 125, then it is void and unconstitutional.  So it will be the best option that some amount of money be given for the maintenance under section 125 Cr PC, and the same be dictated in the order sheet of the Magistrate trying for 125.


Now as per Section 498A, I am very much in favour of Mr. Arun Kumar.  There are a lot of judgements which say that the case may not be compounded.  But still there are a lot of judgments that say that the High Court "MAY" exercise its inherent power and quash the fir, which most of the High Courts does so, being the reason that there must be an end to litigation.  Most of the courts in various recent judgements have come with the judgments that more than 60% of the cases under section 498A are fake ones, so they consider that when the parties themselves also does not have any dispute, and the dispute is resolved amicably, then better that the FIR / case be quashed and no need to proceed with the case, as no purpose will be served.


HENCE, I WILL VERY APPRECIATE AND SUPPORT THE ADVICE GIVEN BY MR. D ARUN KUMAR.


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