• 498a FIR quashing

Hi all, 

I have been reading few case history about the Bombay high court denying quashing of 498a lately with the below verdict in one of these cases stating that the FIR cannot be quashed untill decree of divorce. Me and my wife have agreed to mutually settle and filed Mutual consent divorce recently after my wife filed 498a and other whole lot of cases on me and are going to file FIR quashing petition in high Court. Can you please guide if this is new thing in Bombay high court and if there are chances of high court denying my petition. 

"In the light of the above discussion, we are of the firm opinion that in such cases of matrimonial disputes, if FIR/chargesheet are sought to be quashed under inherent powers, ordinarily, this Court should not entertain the application under section 482 Cr. P. C. for quashment of FIR/chargesheet until the decree is passed by a competent matrimonial court and certified copy thereof is placed on record along with the application. We clarify this position in order to avoid any chaos in such type of matters."
Asked 7 years ago in Civil Law

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8 Answers

1) what are the clauses in your consent terms?

2) have you agreed to make any payment to your wife?

3) is there a clause that balance payment would be made only after quashing and before second motion ?

4)quashing is to be done in exceptional circumstances only

5) if there is a clause in your consent term that balance payment would be made only after quashing and before second motion court could entertain your application for quashing .

Ajay Sethi
Advocate, Mumbai
95215 Answers
7611 Consultations

5.0 on 5.0

1) in such a case quashing should be allowed

2) filing for quashing after obtaining certified copy of divorce decree is cumbersome .

3) family court in Bombay takes ordinarily more than 2 months for furnishing certified copy of decree

Ajay Sethi
Advocate, Mumbai
95215 Answers
7611 Consultations

5.0 on 5.0

Quashing petition can be filed before decree but can be headed after divorce decree it will be better for both of you.

Feel free to call

Nadeem Qureshi
Advocate, New Delhi
6307 Answers
302 Consultations

4.9 on 5.0

The order of the high court is very much reasoned and right.

Since it was quashing on mutual consent unless the divorce is granted the settlement is not cosndiered to be have completed and hence the court waits till the decree is granted so the court considers the settlement to conclude finally and then it would proceed to wauh the case.

However of your wife beofre that appear in the high court and gives her written consent to quash the case even if decree is not granted as yet,the court would allow your prayer.

Devajyoti Barman
Advocate, Kolkata
22920 Answers
498 Consultations

5.0 on 5.0

The order of the HC cannot be applied in every case of quashing as the HC has itself used the word 'ordinarily'. In the given circumstances, it is better to wait till the marriage is dissolved by the court and then apply for FIR quasahing.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

"In the light of the above discussion, we are of the firm opinion that in such cases of matrimonial disputes, if FIR/chargesheet are sought to be quashed under inherent powers, ordinarily, this Court should not entertain the application under section 482 Cr. P. C. for quashment of FIR/chargesheet until the decree is passed by a competent matrimonial court and certified copy thereof is placed on record along with the application. We clarify this position in order to avoid any chaos in such type of matters."

There is no rule or law that high court shall entertain quash petition only after the decree of divorce is drawn or the marriage is dissolved.

In fact that is a different law to this.

Quashing of FIR for offences under 498a is generally not entertained as a routine except under special circumstances.

In my opinion instead of trying for quash by high court why dont you ask her to turn hostile by filing a memo before the trial court and the trial court shall follow the procedures to dismiss or acquit the case on she turning hostile on the basis of pending divorce case on the grounds of mutual consent, this will be an easy route.

Discuss with your advocate on this aspect too.

T Kalaiselvan
Advocate, Vellore
85416 Answers
2239 Consultations

5.0 on 5.0

Yes there is clause of payment, I have made half payment and the rest half is to be paid once the FIR is withdrawn at decree.

Also there is a clause that my wife will withdraw FIR before decree.

There is no provision in law to withdraw the FIR by the defacto complainant nor this offence is compoundable.

The procedure to be followed is that either she can turn hostile during trial or she has to file an affidavit in the quash petition filed by you expressing her No objection to the petition owing to the mutual consent divorce

T Kalaiselvan
Advocate, Vellore
85416 Answers
2239 Consultations

5.0 on 5.0

1. quashing stand on different footings.

2. section 482 crpc gives extraordinary power to the high court to pass appropriate order for the ends of justice in exceptional cases.

3. divorce decree is not mandatory.

4. if offence punishable under section 498 A has not been made out then FIR or criminal proceeding is an attempt to abuse of process of the court then FIR may be quashed.

Shivendra Pratap Singh
Advocate, Lucknow
5127 Answers
78 Consultations

4.9 on 5.0

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