• Granting divorce without contesting

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My wife had filed 
1. 498A against myself and all my family members : Since am now abroad, I did not apply for AB. My parent's AB is pending with Mediation center. We are going to file quash petition since nothing good turned up through Mediation center till now.

2. Maintenance case based on CrPC 125 : They have quoted that I draw a very large salary and have asked for a very heafty monthly maintenance amount. We have planned to contest the case based on merits.

3. Divorce case in Family court : They have mentioned the same false allegations and have requested for divorce.

Questions : 
1. Can Quash petition be filed as soon as mediation center submits failure report ? Or we need to wait till Charge Sheet is filed ? or The trial starts for this 498A in Court of Law ?

2. Is it possible to mention that the allegations are false and as well  grant divorce without contesting the case ? 

3. If I do so as mentioned in Question #2, will this kind of action become an evidence against me in CrPC 498A case and CrPC 125 case ?

4. Since I am going to contest CrPC 125 case and probably going to provide monthly maintenance, is there a possibility that my wife files another Maintenance case demanding money since divorce is granted ?
Asked 2 years ago in Family Law from Japan
Religion: Hindu
Dear Querist
My opinion on your queries are as under

Can Quash petition be filed as soon as mediation center submits failure report ? Or we need to wait till Charge Sheet is filed ? or The trial starts for this 498A in Court of Law ?
Opinion : if you have very strong proof in your favor then file the quashing petition before hc otherwise fight the case on merit. 

2. Is it possible to mention that the allegations are false and as well  grant divorce without contesting the case ? 
Opinion : if you are willing to fight the divorce case then you should be appear before family court and fight the case on merit. 

3. If I do so as mentioned in Question #2, will this kind of action become an evidence against me in CrPC 498A case and CrPC 125 case ?
Opinion : its depend on the allegations. 

4. Since I am going to contest CrPC 125 case and probably going to provide monthly maintenance, is there a possibility that my wife files another Maintenance case demanding money since divorce is granted ?
Opinion : she may filed under section 24 of Hindu Marriage Act.  But she will be entitled to get maintenance from you only in one case
Nadeem Qureshi
Advocate, New Delhi
3534 Answers
130 Consultations
4.9 on 5.0
1) you have to contest 498A case on merits . quashing of 498a is rarely allowed . . if you arrive at an settlement with your wife you can go in for quashing . 

2)if your wife wants divorce better go in for divorce by mutual consent . contested divorce petition take years to be disposed of 

3) in cases of contested divorce you  have to file your reply to divorce petition deny allegations made in divorce petition 

4)your wife in her divorce petition must have claimed interim maintenance . in case any maintenance is awarded you  can draw attention of the court to said fact in 125 Cr PC case
Ajay Sethi
Advocate, Mumbai
23294 Answers
1220 Consultations
5.0 on 5.0
1. If you have not filed for AB yet then you done so at your own peril. Notwithstanding that you are abroad, the fact of the matter is that very soon you will have to appear in the Indian court where the case is pending. Your non-appearance will result in a warrant being issued against you by the court. The police must have requisitioned your presence for investigation. So all the more reason that in the event you file for AB at a belated stage, it may be rejected. This is the practical reality which unfolds in the courts.

2. You are free to file for quashing if the facts of the case create a scope for it. In order to file for quashing you do not have to wait for the report, positive or negative, of the mediation center. The proceedings before the mediation cell are not judicial in nature in as much as the mediator can only strive to bring about a settlement between the disputing spouses. So the finalization of the mediation proceedings is not a condition precedent to apply for quashing. The decision whether to file for quashing or not is to be taken after a threadbare perusal of the allegations in the FIR. There is no cast iron rule which mandates that quashing can be sought only after the charge sheet is filed. 

3. You have the right to contest the divorce case filed by your wife. You cannot get divorce by saying that allegations are false. The remedy for you is to either contest her case, or file for mutual divorce. 

4. Since the scenario envisaged by you in question no.2 is impermissible this question is rendered nugatory..

5. Your wife cannot seek maintenance from you in two cases. She could have filed a case for domestic violence to seek maintenance. Proceedings under domestic violence law are expeditious as compared to the one under sec 125 Cr.P.C. If your wife files, subsequent to the order of maintenance in 125 crpc, another case for maintenance then draw the attention of the court to the order passed  in 125 crpc.
Ashish Davessar
Advocate, Jaipur
18160 Answers
449 Consultations
5.0 on 5.0
Fight the case on merit and deny  the allegations made in divorce petition. 
If you arrive at a settlement with your wife then you can go for quashing 498A easily other wise you have to show the cogent evidence before the court .

Quashing of F.I.R under section 498-A-IPC when parties settled their disputes mutually.
Reference :CRIMINAL APPEAL No. 447 OF 2013(Arising out of S.L.P. (Crl.) No. 6462 of 2012)
Jitendra Raghuvanshi VersusBabita Raghuvanshi
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0
Hello,
1) It was not advisable on your part to have not applied for Anticipatory Bail as it can affect your case adversely at a later stage.
2) You can not get divorce by denying the allegations levelled against you in the divorce petition as this is the normal way to reply to the petition. You need to contest it or alternately through meditation pave way for a mutually consented divorce. Here you can arrive at a decision regarding maintenance, alimony etc and avoid protracted proceedings in the court.
3) Your wife will be awarded maintenance only under one petition. She can also file for maintenance under DV Act at this stage, which is why a mutually consented divorce would be most desirable.
4) You need not succumb to any pressures and need to contest the maintenance and divorce petition on merits of an amicable settlement doesn't evolve out of the conciliation meetings.
S J Mathew
Advocate, Mumbai
1950 Answers
65 Consultations
5.0 on 5.0
There is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier.

Thanking you,
Subash M R
Advocate, Bangalore
176 Answers
8 Consultations
3.6 on 5.0
Hi,
1. The best option is  to go ahead with a final settlement and ask her to withdraw all the cases, divorce and 498A.
2. The charges under 498A can be easily get quashed in high court by filing a petition under 482 of crpc after settling the matter , before that she should withdraw the divorce case.

3. Go for a mutual settlement and sign a consent Terms with all your conditions and her alimony or whatever the amount agreeable details and other conditions, the same can be filed before the high court , 
4. your advocate will have too file the quash petition and your wife will have to file an affidavit stating t hat she withdraw all allegations and the matter is settled. This will take you out of all trial troubles, warrant and future court cases as you are not India it is difficult to manage criminal court where a possibility of Non bailable warrant in your absence.This will affect your stay in abroad, if the police get an instruction to get on you.
5. If you think you are victimised and not agreeable to any pressure tactics of your wife, defend it and ask your lawyer to get an exemption of appearance stating your job in a foreign country. You can get an exemption in 498A.
6. Make sure in the divorce court you are defended well and the same exemption is availed to you. Instruct your lawyer accordingly.  
7. You can defend the case stating all her claims are false by providing sufficient documentary or witness evidence.
8. Other than 125 maintenance petition she can ask for permanent alimony after divorce and also file a domestic violence petition seeking different relief inclusive of residence order during all these cases pending.
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
5.0 on 5.0
1. How come your parents AB can be pending before the Mediation Center? Apply for their AB from the district court/high court to be safe,

2. You can file a quash petition before the High Court. Normally Calcutta High Court refuses to quash FIRs before charge sheets are filed. so, wait till then,

3. It is not suggested that you accept whatever she has alleged falsely and agree for divorce. Instead ask your wife for MCD,

4.  Yes, the Court will be inclined to accept your wife's allegation as true,

5. Yes, she can ask for maintenance in her Divorce petition also in which case you should draw the attention of the Court about her application u/s125 of Cr.P.C. which she has already filed.
Krishna Kishore Ganguly
Advocate, Kolkata
12123 Answers
231 Consultations
5.0 on 5.0

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