• Mutual divorce and quashing of FIR

Sir,

I had filed mutual divorce case in which one clause is that I will take all the cases back fir u/s 498a, 406 and 506 after 1st motion. I have signed after the hon' le judge told me to do so by saying it happens only after 1st motion as compromise was initiated by the hon'ble judge. 
Still 1st motion statement is pending and yet I have not taken any money from them. I have just signed the petition and the affidavit. Can I take it back as I am feeling it was done as I got in pressure that judge sahib is saying and I have to do it. Can I take back the petition 13b.
KIndly tell I have done is right, as half of the amount will be given on 2nd motion.
Also tell me the procedure of quashing the fir in high court in this case. As judge sahib told high court will take 4-5 months in quashing the fir. What can be done. 

Can I withdraw the petition
Asked 6 years ago in Family Law
Religion: Hindu

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12 Answers

divorce by mutual consent is best option

2) your interests are protected and you should cooperate in filing petition for quashing

3) generally in all cases half of the amount is given on 2nd motion

4) dont with draw your consent

5) you are at liberty to with draw your consent for mutual consent divorce petition if you so desire

Ajay Sethi
Advocate, Mumbai
94522 Answers
7485 Consultations

5.0 on 5.0

1. Yes, before the final motion you can refuse to give divorce U/s13B at any point of time.

2,File a petition in writing stating your willingness to withdraw the consent.

3.On consent quashing of 498A tAkes not more than one month in high court.

Devajyoti Barman
Advocate, Kolkata
22779 Answers
484 Consultations

5.0 on 5.0

Section 498 A is compoundable only when victim wants to settle the dispute (b. s. joshi vs state of haryana 2003 scc ). so when you decide to compound this offence by compromise then you have full power to retract from the compromise any time before passing of decree if condition mentioned in the compromise has not been fulfilled by the party. this is the settled law.

Can I take back the petition 13b.

yes, but you should know that this is mutual divorce case and it is based upon consent of both parties. if one party withdraw his consent then court cannot pass divorce decree u/s 13b. if you withdraw it without leave of the court you cannot file same suit in future. you should file a supplementary that compromise has not been complied. then court shall initiate proceeding for compliance of the compromise deed. unless and until you receive all the amount before passing of decree you have right to withdraw your consent.

Also tell me the procedure of quashing the fir in high court in this case.

Section 498A is not a compoundable case, when compromise proceeding is initiated by the parties then high court cannot interfere in the matter (sub-judice). at this stage FIR cannot be quashed. according to k.k.sharma vs vidhanya k sharma 2008 scc, when compromise proceeding has been initiated and parties to the case have reached at the stage to compromise their dispute, high court cannot interfere in the matter unless and until final decree has passed by the trial court. in your case final decree is pending hence high court cannot interfere.

Shivendra Pratap Singh
Advocate, Lucknow
5127 Answers
78 Consultations

4.9 on 5.0

In a petition for MCD either party unilaterally can withdraw his/her consent before second motion. It appears that you want to withdraw the complaints against your husband because you have apprehensions of their backing out from completing their part of agreement.

Although it is difficult to say that they would breach the agreement but yet in that case the right of wife to claim permanent alimony is not wiped out by any agreement. Even after taking full amount you are not restrained to claim further amount as alimony. You can take your decision considering the above aspect.

Usually sometime is consumed in High Court in quashing the charges because of calling of records and investigating officer. 4-5 months time can be presumed in settlement.

You can pressurise them paying you the remaining amount by pretending that you don't want to go ahead with the petition.

H. S. Thukral
Advocate, New Delhi
620 Answers
204 Consultations

5.0 on 5.0

Hello,

1) It is upto you to withdraw from the 13B petition if you choose to do so, no one can legally stop you from doing so.However as the Judge has involved in it he is at liberty to impose a monetary penalty on you for going back on your word.

2) If you are doing this for fear that you will not be paid the half money as it will be at the 2nd motion, it is unfounded because you can refuse to give your assent even at the second motion, so I don't see a reason for your withdrawing.

3) You will have to move a petition in the High Court stating that the charges you have raised are settled and that you are getting divorced by mutual consent. Engage a lawyer locally who will take care of the court procedure in the High Court.

S J Mathew
Advocate, Mumbai
3545 Answers
175 Consultations

5.0 on 5.0

Hello,

If you file a case in the High Court and the opposite party on appearance says that she is ready for mediation then the High Court refers the matter to mediation wherein things are resolved mutually as per the agreed terms between the parties. However, quashing of FIR can be filed by your husband so I dont think so that this is any option for you.

Hello,

I understand the condition that you are going through however I would suggest you to file a FIR to this effect in the police station and move out of that home for a while. Prima facie the police will call you and the family of your husband to the police station for a mutual settlement and if that will not work then they will register an FIR.

Taking this decision is your prerogative and it is highly advised that you first try and call for a mediation between your family members in presence of some elderly members from both the families.

If a wrong is being done upon you constantly then you should not be afraid of the fact that some family member is a lawyer or your husband has a good command on law.

Please note that the present opinion/response/reply is in view of the limited facts put forth by you and shall not be deemed to be absolute/exhaustive and is only preliminary in nature.

Regards

Anilesh Tewari
Advocate, New Delhi
18077 Answers
377 Consultations

5.0 on 5.0

Sorry for the technical glitch, please consider the first part as relevant portion to your query

If you file a case in the High Court and the opposite party on appearance says that she is ready for mediation then the High Court refers the matter to mediation wherein things are resolved mutually as per the agreed terms between the parties. However, quashing of FIR can be filed by your husband so I dont think so that this is any option for you.

Anilesh Tewari
Advocate, New Delhi
18077 Answers
377 Consultations

5.0 on 5.0

There is no pressure on you to continue with the divorce petition, you can very well express your unwillingness and file a memo

T Kalaiselvan
Advocate, Vellore
84712 Answers
2172 Consultations

5.0 on 5.0

if husband does not appear in court on second motion court will grant a date

2) husband presence is necessary for divorce by mutual consent

3) petition would be dismissed if husband does not appear in court inpsite of repeated adjournments

4) you have to file police complaint under section 494 of IPC if husband has contracted second marriage during subsistence of earlier marriage

Ajay Sethi
Advocate, Mumbai
94522 Answers
7485 Consultations

5.0 on 5.0

1. on her refusal no decree of divorce would be granted.

2. Yes, FIR can be reopened and fresh investigation can be initiated if quashing is not done. You can not stop going to abroad.

3. court has no role in this scenario.

Devajyoti Barman
Advocate, Kolkata
22779 Answers
484 Consultations

5.0 on 5.0

Hello,

1) The fact is that if he backs out the court cannot order divorce as both have to file affidavits again. There's no contempt of court involved as either party has the right to back out from MCD.

2)FIR cannot be reopened, it can be filed again though, but it would be difficult. If you want to go ahead with the 494 it must be done now. Do not mix up your need for divorce and need to punish him. You need to decide what you want to go ahead with.

S J Mathew
Advocate, Mumbai
3545 Answers
175 Consultations

5.0 on 5.0

If he withdraws his consent during the second motion then the court will dismiss the case.

If you have proof of second marriage then you can file a petition for the offences of bigamy.

T Kalaiselvan
Advocate, Vellore
84712 Answers
2172 Consultations

5.0 on 5.0

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