• MCD and quashing 498a

Sir my wife and wife side hidden the fact that she wont be able to conceive. which came to notice after marriage. Problem aroused on this matter and she filed a false FIR on 498a on me and by family members. On Anticipatory bail at madras high court the matter was refereed to mediation before retires judge. The i showed the her medical certificate. finally on discussion the matter got settled amicably and settlement deal was signed stating for material Exchange + she shall co-operate for quashing FIR U/S 482 CRPC + file MCD (without maintenance) within one month of AB final order. Till now no charge sheet has been filed. I have Filled quash petition u/s 482 CRPC at madras high court based on settlement deal on november 2016. An opinion or objection notice was send to her. There after my quash case is not coming for hearing for past 2 month. Till now no affidavit was filled from her side. It shows that opposite side is not co-operative. Now received final AB order and executed the formalities. Now I planned to move family court for MCD and opposite party are coming forward for same. 
1) whether high court Will quash my FIR based on high court mediation settlement deal? If she does not file affidavit.
2) what happens if she does not file affidavit for my quash petition notice?
2) Whether I have to wait till she files affidavit for quashing?
3) Whether I have to wait till the FIR get quashed to file my MCD this will be against mediation settlement deal (where both party have accepted to initiate MCD within one month of AB final order)
Asked 7 years ago in Family Law
Religion: Hindu

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7 Answers

Dear Querist

My opinion on your queries are as under:

1) whether high court Will quash my FIR based on high court mediation settlement deal? If she does not file affidavit.

opinion: there is no need of any affidavit, HC may quashed the FIR based on mediation settlement.

2) what happens if she does not file affidavit for my quash petition notice?

Opinion: there is no effect of her affidavit.

2) Whether I have to wait till she files affidavit for quashing?

Opinion: no there is no requirement.

3) Whether I have to wait till the FIR get quashed to file my MCD this will be against mediation settlement deal (where both party have accepted to initiate MCD within one month of AB final order)

Opinion: file MCD without delay, FIR shall be quashed at any time after filing quashing petition.

Feel Free to Call

Nadeem Qureshi
Advocate, New Delhi
6307 Answers
302 Consultations

4.9 on 5.0

HC will quash the FIr based on settlement deal arrived at between parties in writing

2) even if wife does not file consent affidavit court can quash FIR

3) court will await her response for reasonable period

4) file your MCD as per consent terms . dont wait for FIr to be quashed

Ajay Sethi
Advocate, Mumbai
95215 Answers
7611 Consultations

5.0 on 5.0

1. Since the quashing petition is filed on the basis of settlement unless and until your wife submits written consent in the high court the quashing would nit be allowed.

2. Coordinate with her and mention the matter for listing so at the time of hearing she submits her affidavit.

3. You can file the MCD now but beofre final hearing get the 498A case quashed.

Devajyoti Barman
Advocate, Kolkata
22920 Answers
498 Consultations

5.0 on 5.0

1. If your wife objects the quashing of the case then it is for the HC to see whether the objection is bona fide or stems out of malice.

2. If she does not file her affidavit then you may apply to the HC to decide your quashing petition on merits.

3. MCD can be filed only in terms of the compromise deed unless the compromise deed is unilaterally or bilaterally cancelled.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

1) the AB order is not useless . the settlement arrived at between parties would be binding upon them

2) if wife does not cooperate you can file for quashing on basis of settlement . dont file any contempt of court proceedings

3) court would quash FIR based on various judgments of SC

4) in case of Mohd. Shamim v. Nahid Begum 2005 (1) JCC 83, first respondent-wife filed a complaint under Sections 498A/406/34 IPC against the appellants. During the pendency of the complaint, a settlement was arrived at by the parties. An affidavit in support of the said settlement was filed by the first respondent-wife. The said settlement was duly recorded in a judicial order. Pursuant to the said settlement, appellants filed a petition under Section 482 of the Cr. P.C., 1973 before the High Court for quashing the FIR. First respondent-wife filed an objection to the said petition. In view of stand taken by the first respondent, the High Court declined to quash the FIR. Noting that the first respondent had entered into a settlement and had also received money in pursuance of said settlement, the Supreme Court in appeal reversed the decision of the High Court and quashed the FIR. In the said decision, the Supreme Court had observed as under:

In view of the conduct of the First Respondent in entering into the aforementioned settlement, the continuance of the criminal proceeding pending against the Appellants, in our opinion, in this case also, would be an abuse of process of the court. The Respondent No. 1, however, would be entitled to withdraw the sum of Rs. 50,000/- deposited in the court. We therefore, in exercise of our jurisdiction under Article 142 of the Constitution of India direct that the impugned judgment be set aside. The First Information Report lodged against the appellants is quashed. The Appeal is allowed. However, this order should not be treated as a precedent.

Ajay Sethi
Advocate, Mumbai
95215 Answers
7611 Consultations

5.0 on 5.0

1) whether high court Will quash my FIR based on high court mediation settlement deal? If she does not file affidavit.

She has to file an affidavit supporting and confirming the settlement deal

2) what happens if she does not file affidavit for my quash petition notice?

It may be decided on merits and arguments made on behalf

2) Whether I have to wait till she files affidavit for quashing?

It depends.

3) Whether I have to wait till the FIR get quashed to file my MCD this will be against mediation settlement deal (where both party have accepted to initiate MCD within one month of AB final order)

MCD cannot be filed by you alone, she has to sign the joint petition and both have to be present before court at the time of presentation, so you can talk to her and plan things accordingly

T Kalaiselvan
Advocate, Vellore
85416 Answers
2239 Consultations

5.0 on 5.0

1) Then does it means that high court mediation under retired high court judge and anticipatory bail order clearly stating "both parties shall honor commitment made in settlement at mediation" is useless.

This decision is not binding on her, she can refuse the terms at this stage too, you cannot compel her. This is not a judgment forcing her to obey.

2) In mediation settlement deal she has agreed to co-operate for withdrawing the FIR and quashing the FIR u/s 482 CRPC. If she does not co-operate the quash proceeding under 482 CRPC whether i can file contempt of high court anticipatory bail order?

Contempt may not be maintainable. Mediation decision is not a judgment.

3)What will be court/judge stand in quash proceeding if she does not co-operate/file affidavit?

It will be decided on merits.

4) If i file contempt of high court anticipatory bail order whether the court will react on her?

Contempt petition may not be maintainable

5)Whether court will consider as serious offence on this matter of mediation settlement and anticipatory bail ordering "shall commit to settlement arrived at mediation"?

What is serious to you is not so serious to court.

It is not necessary that she should obey the decision, this is just an agreement, she can withdraw her consent at any moment, no one can force her.

T Kalaiselvan
Advocate, Vellore
85416 Answers
2239 Consultations

5.0 on 5.0

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