• Need help on 498A and MCD

Hi,
I have got married in 2010 and after staying together for 1 year we got separated. And after 6 month my wife has filed false 498A case against me and my parents, and after 2 months she filed another case for maintenance under CRP125. After Three year the court has ordered monthly maintenance of rupees 8000, but my wife didn't apply for recovery instead she filed a case in high court for enhancement, but the same time through third person we both agreed for mutual divorce for paying some XXX amount and they agreed to withdraw cases 498A, DV, CrPC125 and High court enhancement case. After this we both filled MCD, but after 6 moths my wife putting a condition stating she will withdraw all the cases only after the MCD and I have to pay all the amount in the MCD. But before filing MCD she agreed that she will withdraw all the cases first then we have pay the agreed amount.
So could you please suggest me how to proceed further here, as I don't have trust on her, after taking money sure she will not withdraw all the case and currently 498A is in trial phase.
Asked 7 years ago in Family Law
Religion: Hindu

11 answers received in 1 day.

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16 Answers

Divorce by Mutual Consent is as the name suggests is when both parties ie; husband and wife comes to a mutual understanding that the marriage be dissolved amicably. It is clear that one of the parties may withdraw their consent at any time before the passing of the decree. The most important requirement for a grant of divorce by mutual consent is free consent of both the parties. In other words, unless there is a complete agreement between husband and wife for the dissolution of the marriage and unless the court is completely satisfied, it cannot grant a decree for divorce by mutual consent.

So better you have to prepare an agreement and signed by both parties and witness the third person who leads the settlement talks.

Also get the signature of your wife in withdrawing petition as well as affidavits (All cases….stating that we are settle the matter amicably out of court and no need to contest the case further) at the time of payment of amount at MCD. The wife may ready to put the signature and handed over it to others, they also afraid that you will not pay the amount or otherwise they decided to drag the matter .

Ajay N S
Advocate, Ernakulam
4080 Answers
111 Consultations

5.0 on 5.0

1. Ordinarily, the practice is to withdraw the criminal cases only after MCD is granted. If she violates her promise and does not withdraw the promises then you can move the High Court for quashing of the case on the ground that she had breached her promise.

2. The HC will quash the cases even if she breaches her promise.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

what are the clauses in the consent terms ?

2) on basis of consent terms apply for quashing of 498A case in HC

3) you can deposit the agreed amount in court obtain MCD and then DV / 125 cr pc case can be with drawn by wife

Ajay Sethi
Advocate, Mumbai
95197 Answers
7607 Consultations

5.0 on 5.0

1. Do not agree on this terms ad shifting of her stand makes her intentions not clear.

2.The MCD must be done in a quid pro quo manner.

3. SO if she does not withdraw the cases in the meantime do not appear in MCD for final hearing.

Devajyoti Barman
Advocate, Kolkata
22920 Answers
497 Consultations

5.0 on 5.0

first you should prepare a compromise deed on rs 100 stamp paper and get its notary.

thereafter you should file a petition before the high court under section 482 crpc for quashing of 498 A case on the basis of compromise deed. In B S Joshi case 2003 SCC 756, the supreme court has held that if parties to the marriage made compromise to settle their issue then all the criminal proceeding should be quashed.

Shivendra Pratap Singh
Advocate, Lucknow
5127 Answers
78 Consultations

4.9 on 5.0

Execute a compromise deed/MOU with her with all the terms and conditions and if she is not follow the terms and conditions then you can claim your money back and fight the case on merit.

Feel Free to Call

Nadeem Qureshi
Advocate, New Delhi
6307 Answers
302 Consultations

4.9 on 5.0

File for quashing inHC as you have made payment to her as per consent terms

Ajay Sethi
Advocate, Mumbai
95197 Answers
7607 Consultations

5.0 on 5.0

Quashing is mandatory because 498A if FIR case, can not be withdraw by trial court.

Immediately file quashing petition before high court based on compromise.

Feel Free to Call

Nadeem Qureshi
Advocate, New Delhi
6307 Answers
302 Consultations

4.9 on 5.0

If charge is framed then you cannot not go for quashing.Only before framing of charge you can file quashing petition.

Devajyoti Barman
Advocate, Kolkata
22920 Answers
497 Consultations

5.0 on 5.0

So could you please suggest me how to proceed further here, as I don't have trust on her, after taking money sure she will not withdraw all the case and currently 498A is in trial phase.

You should be aware that even if she wants to withdraw the 498a case, she cannot do so because this is not compoundable.

You hav to file a quash petition under section 482 cr.p.c. before high court or she has to turn hostile witness during trial proceedings after which the court would either acquit you or dismiss the case.

Therefore, you should not budge to her pressure, you can ask her to adjourn the MCD, she should file a affidvit expressing no objectio to your quash petition before high court, receive 50% agreed amount during the time of filing of MCD petition and then you will pay her the balance amount by DD or cash at the time of second motion of the divorce case.

If she is agreeing to this proposal, you may ask her to proceed as per her design which can be challenged properly in the court.

She will struggle to prove 498a case due to long gap from the date f complaint till this date and she may contradict her own statements which will be beneficial to you.

T Kalaiselvan
Advocate, Vellore
85398 Answers
2235 Consultations

5.0 on 5.0

Can I go for quashing of 498A case in HC when the case is in trial period and if she denied to withdrawal of 498A after taking money.

Dont give her any money now, because you cannot file quash petition once the trial in the case has began.

You have to manage the case in the trial court only.

T Kalaiselvan
Advocate, Vellore
85398 Answers
2235 Consultations

5.0 on 5.0

First query: how to sort out the above 2 current situation after the mutual consent diverse (498A and CrPC125).

Please remember that any such issue has to be sorted out before the major issue is sorted out otherwise these ancillary issues will remain as thorn in your bed irritating till it is removed.

She can withdraw the maintenance case by filing a petition to withdraw the same.

But the 498a cae canot be withdrawn since it is non-compoundable. She can either file an affidavit before high court when you file a petition to quash the same expressing her no objection to quash the same which is pending in the lower court alternately she can turn hostile witness to the trial proceedings in the trial court by which the trial court will dismiss the case after which you can proceed with the mutual consent divorce case.

Second query: Can we go-head with agreement in 100 rupee stamp paper, will it be valid in the court? in case if she breaks her promise.

This is not valid in law and not enforceable in law. Hence do not trust such gimmicks, she may turn the table at the last moment and coolly walk away leaving you to suffer in lurch.

Third query: In the current situation she wanted to go for MCD first and then 498A, but In case after taking money, if she is not come for hostile witness during trial proceedings and instead if she gives against statement in 498A even after taking money (MCD) in this situation what are the precautionary action can be taken.

You may visit the first paragraph above once again which contains reply for this too.

T Kalaiselvan
Advocate, Vellore
85398 Answers
2235 Consultations

5.0 on 5.0

You can move high court for quash the case if she is ready to submit an affidavit stating that all the disputes are compromised and has no objection to quash the same .An agreement entered in to parties in 100 rupees stamp paper is not valid.

Ajay N S
Advocate, Ernakulam
4080 Answers
111 Consultations

5.0 on 5.0

1) your lawyer will draft the consent terms

2) in consent terms mention that wife shall cooperate in filing application in HC for quashing of 498A case

3) she will with draw the appeal filed in HC for enhancement of monthly maintenance

4)further X amount is paid to her in full and final settlment and she will not claim any amounts in future

5)no need for agreement in Rs 100 stamp paper

6)consent terms filed in divorce petition would be binding upon both parties

7) even if wife does not cooperate after taking money you cna file petition in HC for quashing

Ajay Sethi
Advocate, Mumbai
95197 Answers
7607 Consultations

5.0 on 5.0

1) yes you can file for quashing in HC on basis of compromise petition even if wife goes back on her word

2) yes . maintenance case would be dismissed by HC on basis of consent terms

3) even if wife does not attend court then aslo court can quash the 498A case based on fact that you have paid her money as per consent terms

Ajay Sethi
Advocate, Mumbai
95197 Answers
7607 Consultations

5.0 on 5.0

The compromise petition is a mere formality and not an embargo.

The compromise petition cannot be enforced in law. The compromise petition would be just for a satisfaction of parties involved, hence you cannot claim it is a right if she breaches the condition.

If she agrees to turn hostile during trial, she may inform the court through APP her such intention before stepping into the witness box.

This will enable the court to proceed with the trial accordingly to acquit you from the said criminal case.

2. For quashing a case in high court, the respondent's affidavit expressing 'no objection' filed before the high court would be of more value and facilitate high court to pass an order as prayed for.

3. Her presence may be required if the high court would desire to have her to swear or affirm the affidavit before the court.

If she denies then you have no choice than to face her in the trial court.

T Kalaiselvan
Advocate, Vellore
85398 Answers
2235 Consultations

5.0 on 5.0

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