• Quashing of CrPC 125

Situation of the case:-
My friend got married a year ago and after marriage they stayed toegther for nearly 45 days. My friend's wife has filed CrPc 125 Maintenance case against her husband in civil court at her place 10 months ago. As per the stage of the case, it shows as evidence pending with plaintiff/petitioner and she has not been able to submit any evidence for more than 3 times.
My friend is asked to appear on the next date asking for mediation by his lawyer, however there is no notice from the court for mediation.
My friend's working place is more than 2000 km from his wife's place of stay & he cannot make frequent travels to Court due to his health condition and pressure of work at office.
My friend has also filed divorce petition at his location against his wife which she has been ignoring till date. Earlier the wife has filed FIR and 498A which were proved to be a false case.

My questions are:

1.Can my friend raise a quash request for CRPC 125 as she has failed to submit evidences for more than 3 times?

2.As my friend has not received any mediation notice from court and as he has filed a divorce petition,is it mandatory for him to attend the medidation at the next date?

3.The date on which the wife has to appear to submit her evidence, is it mandatory for the OP or his lawyer to attend the court?
Asked 1 year ago in Family Law from Pune, Maharashtra
Religion: Hindu

You can pay for dismissal of her case as no reply filed inspite of 3 adjournments granted to wife

2) your friend should attend mediation on next date

3) you can appear in person or through a Lawyer on next date

Ajay Sethi
Advocate, Mumbai
69582 Answers
4181 Consultations

5.0 on 5.0

Dear Sir, All are equal before law. With regard to question no.1, your friend has not question or quash the said case u/s 125 Crpc. at this stage. Your friend already engaged his lawyer in this case, that lawyer should be raise the objection and request the court close the evidence her side and posted for respondent evidence (your friend evidence) it is possible. With regard to question no.2, there is no necessity to notice regarding mediation because of already your friend engaged the lawyer on his behalf, the lawyer intimate for mediation is sufficient. But it is not mandatory to attend the mediation it is left to the parties. With regard to question no.3, if your friend wife has not lead the evidence and to close her side evidence by raise and request to the court and posted for respondent evidence and to disprove her case by your friend by leading his evidence in this regard. It means your friend and lawyer are should be present for the same.

C. V. Jadhav
Advocate, Bangalore
543 Answers
16 Consultations

4.7 on 5.0

1. See there is no quashing available for 125 crpc.at this stage you can pray before court that since the prosecution is not avilable for evidence her petition can be dismissed for non prosecution or the her evidence can be closed and the matter can be kept for the respondent evidence.nher right of evidence at this stage can be closed if she is not coming for her.evidence.

2. As friends repressive lawyer is informed of mediation there is no necessity to inform him.of mediation further if he is not well he can through his advocate file an application for same and request to postpone the mediation date. Further also the court can be informed of already going on divorce proceedings.

3. Yes ylthe lawyer needs to be present for verifying the evidence and cross examination further for your friend lawyer can given an application that the opponent has no objection that evidence are lead in his absence of he donot want to go. It will be better he is there for cross examination he can guide his.lawyer and can assist him.

Shubham Jhajharia
Advocate, Ahmedabad
21308 Answers
83 Consultations

5.0 on 5.0

Request for quashing will not be possible and it is to be decided by the court.

If he has appeared in court and it was ordered to do so that must have been recorded in the order sheet so he has to appear for the mediation.

If due to distance and time constraint he can not appear he can give power of attorney to some close relative to appear in court on his behalf.

The option of getting the case transfer is also open if it is in the same state by the HC.

Vimlesh Prasad Mishra
Advocate, Lucknow
5792 Answers
19 Consultations

4.9 on 5.0

1. This is not a ground for getting the case quashed, in the said circumstance he can file an application for deciding the case ex parte.

2. Yes it is mandatory for him to attend the mediation proceeding.

3. Yes, in family disputes both the parties are required to mark presence before the court.

Also, the husband can appoint a POA to represent him in the court of law.

Regards

Anilesh Tewari
Advocate, New Delhi
17305 Answers
274 Consultations

5.0 on 5.0

Firslty, it is the discretion of the court to quash it?’c but yes we can say that a final apportioning be given to her otherwise to quash it.

Secondly, may be as if he was present in court on the last date of hearing then he may not get any such notice for the same or even if he was not then also if his lawyer was there then that means the same for him to come for mediation.

Thirdly, at least his lawyer should be there to understand his defence in future for sure.

Sanjay Baniwal
Advocate, South Delhi
4966 Answers
11 Consultations

5.0 on 5.0

1. If complainant is not appearing in 125 then then ur lawyer should raise objection and ask for dismmissal of 125.

2. Mediation is not mandatory to attend.

3. 125 is a criminal case and for that if u HV genuine reason for absence then ur lawyer can file exemption application on ur behalf.

Arun Kasana
Advocate, Delhi
24 Answers

Not rated

Dear Sir,

My answers:

1.Can my friend raise a quash request for CRPC 125 as she has failed to submit evidences for more than 3 times?

Ans: yes but not on the ground of absence. It must be disposed of within six months, if petitioner/wife absent then file a application for dismissal of petition. If not dismissed approach the HC

2.As my friend has not received any mediation notice from court and as he has filed a divorce petition,is it mandatory for him to attend the medidation at the next date?

Ans: Yes, because the advocate on record representing your friend and your friend has constructive notice of mediation. Your advocate may file memo stating that your friend not interested in mediation as such “Mediation Failure” Report will be filed. Further an application may be filed before the 125CRPC Court to merge this claim in the pending divorce case or to stay the proceedings till disposal divorce case.

3.The date on which the wife has to appear to submit her evidence, is it mandatory for the OP or his lawyer to attend the court?

Ans: Normally it is mandadatory but as the respondent is residing far away as such he can be represented through his advocate.

If your wife has asked for maintenance under CrPC 125, here's your chance to learn everything about how to fight and deny or reduce maintenance under CrPC 125

1. Husband’s EMI towards house to be considered in CrPC 125 Maintenance to wife – SC Judgment

This is somewhat old judgment of Supreme Court, and it brings an important consideration which was overlooked by lower courts: Which was neglecting to consider monthly EMI paid by husband towards housing loan.

The order reduced maintenance amount from Rs 10,000 to Rs 5,000 p.m. While this may cause cheers to readers, it should be noted that the in-hand salary of husband is Rs 9,000 p.m, so effectively he has to now survive on Rs 4,000 p.m. Somehow the facts of the case don’t add up for me. There must be more to it than the numbers mentioned in the judgment.

The logic of going for an EMI of 21K on a salary of 35K itself seems questionable. Surely reducing maintenance might be considered a sacred goal by many husbands, but taking such huge loan thereby living on the edge is probably not for everyone. Also, from facts of the case, husband has already accumulated huge arrears of maintenance, probably hoping that one day a higher court will reduce his maintenance to some very low amount. While an optimistic view is good in life, one should assess risk vs reward in these matters. Accumulating arrears in maintenance is a high risk thing, because there is no guarantee the higher courts may reduce the maintenance drastically. Further, one has to live with that uncertainty for a long time running around in courts, so best strategy should be to reduce interim maintenance right from the start, at trial court level.

2. MP HC denies maintenance to wife on her CrPC 125 appeal

We have this very recent judgment of Madhya Pradesh High Court which denied maintenance to wife under CrPC 125 on her appeal to HC since the court agreed with trial court’s observations that according to evidence led by husband and also wife’s own admissions, it was the wife who was not staying with him out of her own freewill.

The judgment is actually not very significant, since both evidence by way of letters of husband and wife’s own admissions proved that there was no maltreatment, and in practical cases such evidence, and wife’s own admissions are very rarely seen. Also the wife didn’t appear in HC at all for her own appeal. If any husband is lucky enough to have this kind of evidence (and a wife who admits in court to her faults ) , of course they can make full use of it! This was how usage of CrPC 125 was intended to be, but after passing of laws like DV Act combined with the so-called ‘women empowerment’ trend, most of the time interim maintenance is granted based merely on allegations and the fact that wife is not staying with husband.

3. Qualified wife can’t sit idle and claim maintenance: Mumbai family court

Important part of judgment below:

________________________________________

16. The learned counsel for respondent has argued that the petitioner is well qualified and she is earning an amount of Rs.50,000/¬per month, she is having sufficient income for her maintenance. It is argued by the learned counsel for respondent that before the police station Worli on 12.11.2011 the petitioner has given statement u/s 161 of Cr.P.C. The petitioner has admitted that she has completed degree in Food and Science Nutrician, she had worked as a dietician, she is Post Graduate in Dietician field, she had also worked with Larcen and Tubro etc. but at present she is not working. The above statement made by the petitioner clearly shows that she is well qualified and able to do job. The respondent though submitted that she is having huge investment in crores of rupees but nothing is placed on record. It is clear from the statement of petitioner that petitioner is well qualified having capacity to earn. The Hon’ble Madhya Pradesh High Court in the case of “Mamta Jaiswal Vs. Rajesh Jaiswal held that well qualified wife is not entitled to remain as an idle and claim maintenance from her husband. In short, the wife is not entitled to advantage of her own wrong, she cannot harass the husband on the count of maintenance though she is capable to earn. In the present case in hand, the petitioner¬wife is very qualified, she has worked with various companies. This admitted by herself, now she is claiming that she is a housewife, having no source of income. The wife who is well qualified and claiming maintenance by sitting idle is not entitled to get maintenance, secondly she herself has admitted that though her husband is connected with garment business but he has share worth rs.5,000/¬only. Considering the above circumstances, it is clear that the wife is having good capacity to earn. According to respondent, she is earning but no any documentary evidence is on record that she is earning. Nothing is on record to prove the income of respondent at this primary stage. In such circumstances, in my view, at this juncture petitioner is not entitled to get maintenance. Hence I pass the following order :

ORDER

1. The application is rejected.

4. Woman can’t evict husband just because she pays EMI: Mumbai Family Court

MUMBAI: A family court on Monday rejected a wife’s interim plea seeking her estranged husband’s removal from their Lokhandwala flat where she stays with him and their child, just because she pays the EMI (equated monthly installment to repay home loan).

The court, while ruling in favour of the man who pays Rs 90,000 a month for household expenses, said in the current day, it is difficult to ascertain who has contributed how much while purchasing any asset or discharging any liability. “If both contribute to the household, either this way or that way, a particular spouse cannot claim exclusive right, ownership or title in the household property, merely because either the property stands in her name or she has contributed financially,” said the judge.

Kishan Dutt Kalaskar
Advocate, Bangalore
4750 Answers
141 Consultations

5.0 on 5.0

1.Can my friend raise a quash request for CRPC 125 as she has failed to submit evidences for more than 3 times? --Not possible, If she fails, her evidence will close and defense evidence will start.

2.As my friend has not received any mediation notice from court and as he has filed a divorce petition,is it mandatory for him to attend the medidation at the next date? --- May be his lawyer received the noitce on his behalf, Don`t appear , dose not make any difference.

3.The date on which the wife has to appear to submit her evidence, is it mandatory for the OP or his lawyer to attend the court? -- Either of them,

Yogendra Singh Rajawat
Advocate, Jaipur
14988 Answers
19 Consultations

4.6 on 5.0

1. The quash petition may not be entertained based on the guesses, the false claim has to be proved before the trial court only.

If he is not able to appear before court on each and very hearing, he may file a petition seeking to dispense with his personal appearance before court under section 205 cr.p.c.

2. Until he has not received any notice in this regard from court, let him remain silent about it.

3. Yes either the OP or his lawyer has to represent the OP before court on each and every hearing despite any stage of the case.

T Kalaiselvan
Advocate, Vellore
59440 Answers
756 Consultations

5.0 on 5.0

1) Yes your friend can submit quash request.

No Maintenance u/s Crpc 125 to wife if she deserts hubby without any ... Thinking of Quashing 498a? ... the recovery of any amount due under this section unless application be made.

2) Court send first to mediation than proceed further.

3) Yes, at the time of submitting evidence her lawyer should be present or its depends upon court to make records on that date or keep evidence on next hearing.

Ganesh Kadam
Advocate, Pune
8481 Answers
70 Consultations

4.9 on 5.0

What do you mean by valid order sheets?

You mean to say 'without proper evidence', if yes, it is not necessary to prove the case even before the charge sheet is submitted before court.

he case can be proved by submitting the charge sheet and examining all the witnesses with the support of documentary evidences.

T Kalaiselvan
Advocate, Vellore
59440 Answers
756 Consultations

5.0 on 5.0

Valid order sheet ??

If your trying to say a valid charge sheet then yes if no role or evidence against you in charge sheet then you can be discharged of the proceedings.

Shubham Jhajharia
Advocate, Ahmedabad
21308 Answers
83 Consultations

5.0 on 5.0

Police would complete investigations and file charge sheet if thy find any evidence against you

On,y then would trial commence aginst you

Ajay Sethi
Advocate, Mumbai
69582 Answers
4181 Consultations

5.0 on 5.0

1) The brief facts of the case which is sought to be quashed are that the respondent filed a private complaint against the petitioners under Section498-A, 420 IPC and Sections 3 and 4 of the Dowry Prohibition Act in the Court of the Judicial First Class Magistrate, District.

The learned Magistrate may forward the case to the Station House Officer, Police Station under Section 156 (3) Cr.P.C for investigation and report. The police after conducting investigation may file charge sheet against the petitioners under Sections 498-A, 420 IPC and Sections 3 and 4 of the Dowry Prohibition Act.

Ganesh Kadam
Advocate, Pune
8481 Answers
70 Consultations

4.9 on 5.0

No, it can’t, but again I would like to have clearity as to what exactly you meant by the above follow up query.

It should not proceed without order sheet of the court as it is itself important for the judge to have idea about the previous proceedings, if any.

Sanjay Baniwal
Advocate, South Delhi
4966 Answers
11 Consultations

5.0 on 5.0

without valid order Sheets? ????/

Yogendra Singh Rajawat
Advocate, Jaipur
14988 Answers
19 Consultations

4.6 on 5.0

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