• Procedure to quash 498a if opposite party agreed for settlement

I have a 498a on me (Chargesheet was filed) from almost 3+ years now. Recently, opposite party approached and told they are good with settlement but with some hefty demands involved.
We are planning to go ahead with that. How this can be further taken forward.
Also, I live is USA as of today, Is it possible if all this procedure can be done without me being present in India. I want to go to India only for divorce because all this process will take lot of time (my assumption).

Please, help me out of same.
Asked 1 month ago in Family Law from United States
Religion: Hindu

You can file petition in HC under section 482 of Cr pc for quashing of FIR and charge sheet 

 

2) your wife can file consent affidavit in HC 

 

3) it should not take more than 3 months 

 

4) your personal presence may be necessary 

Ajay Sethi
Advocate, Mumbai
72059 Answers
4334 Consultations

5.0 on 5.0

Yes your presence is not necessary in quashing. It can be done through your poa

Prashant Nayak
Advocate, Mumbai
16701 Answers
30 Consultations

4.6 on 5.0

1. Petition for quashing on the basis of compromise has to be filed in the High Court.

2. You may execute GPA in favour of a blood relative to authorise him to file the petition for and on your behalf in the High Court if you are unable to appear.

Ashish Davessar
Advocate, Jaipur
27476 Answers
812 Consultations

5.0 on 5.0

Even if opposite party and you settle it cannot be quashed as stated in a judgement of the Apex Court, at max go for trial or opt for FRT. Best way out is FRT in a short span.

Aveek Bose
Advocate, Kolkata
1067 Answers
7 Consultations

4.7 on 5.0

1. If both of you agree to settle the disputes amicably then you can do so by way of mutual divorce .

2. The petition for mutual divorce shall contain all the terms and conditions of settlement.

3. Before the final hearing of mutual divorce your wife shall end the case of 498A and on the final day of hearing of mutual divorce you shall make the payment of settlement money. 

4. Talk to your advocate. 

Devajyoti Barman
Advocate, Kolkata
18599 Answers
266 Consultations

5.0 on 5.0

See if they are ready for settlement then in that case a consent quashing before high court can be filed and it can be prayed it is matrimonial dispute and is settled the high court shall quash the FIR. The hon'ble.court may ask for presence of your wife in court. It won't take long just a date or two.

 

Shubham Jhajharia
Advocate, Ahmedabad
22882 Answers
93 Consultations

5.0 on 5.0

File your settlement agreement in the court where in it must be mentioned that all the cases will be withdrawn by the complaint. On the basis of settlement agreement court will order

Vimlesh Prasad Mishra
Advocate, Lucknow
6203 Answers
19 Consultations

4.9 on 5.0

Hi,

It is suggested that you approach High Court with joint application of quashing of FIR and also file the divorce petition under mutual consent simultaneously.  

Ganesh Singh
Advocate, Delhi
3451 Answers
9 Consultations

4.5 on 5.0

While filing for the mutual consent divorce petition this issue must be mentioned therein that she will take back all the cases filed against you. She will then file for compounding in case other sections are there besides 498A. 


Do this thing at the time of filing for divorce.

Rahul Mishra
Advocate, Lucknow
6197 Answers
14 Consultations

5.0 on 5.0

Dear Sir,

Despite of all this, if you decide to pay and compromise then DO NOT PAY all the money till high court or above courts have given the final order of compounding the IPC 498a and all offence including the divorce decree. You should get this in writing (in the same agreement) by her and her family members (get it notarized). Also get them to file court statement under IPC-156 that they will not challenge this order in higher courts and that they will take back all the cases filed against you and all your relatives in all the courts. 

Withdrawing-When a complainant no more wants to pursue a case, s/he prays the trial court for withdrawal of the case. If the court is satisfied, then it orders as "dismissed as withdrawn". Since 498a is a cognizable criminal case, she cannot withdraw without your consent. 
Compromise-Settle the matter outside the court and inform it to close the case.

When settlement takes place, then both the parties can file a petition under Section 482 CrPC. When settlement takes place, then both the parties can file a petition under Section 482 CrPC and the High Court, considering the bonafide of the petition, may quash the same. The power rests with the High Court

"In cases where a settlement is reached, it will be open to the District and Sessions Judge or any other senior Judicial officer nominated by him in the district to dispose of the proceedings includingclosing of the criminal case if dispute primarily relates to matrimonial discord."

Truth be told, this did not find favour with the three-Judges Bench of Apex Court in this case which includes the CJI Dipak Misra. It was held that Section 498A IPC was a non-compoundable offence. Therefore, only High Courts had the power to quash the case on the basis of mutual settlement, as held in Gian Singh case. It was also held that, "The directions to settle a case after it is registered is not a correct expression of law. A criminal proceeding which is not compoundable can be quashed by the High Court under Section 482 CrPC. When settlement takes place, then both the parties can file a petition under Section 482 CrPC. When settlement takes place, then both the parties can file a petition under Section 482 CrPC and the High Court, considering the bonafide of the petition, may quash the same. The power rests with the High Court."

Netravathi Kalaskar
Advocate, Bengaluru
4591 Answers
22 Consultations

4.8 on 5.0

You do not have to visit India if your matter has been settled with your wife as a joint petition for quashing of FIR can be filed before the high court where in any person to whom you have given the power of attorney can appear before the court and get his statement recorded.

Divorce does not take a lot a time. It can granted within a month too, if file  an application for waiver of the cooling period of 6 months between two motions of divorce. In divorce case too, your personal appearance can be dispensed.

Siddharth Jain
Advocate, New Delhi
5326 Answers
59 Consultations

5.0 on 5.0

Mutual consent diovrce petition will file in which settlement detail will record and agasint withdrawal of cases she has claimed this much amount as final settlement between party towards maintiancne and compensation.

To withdraw criminal case, joint petition will file in High Court to quash proceeding. You can give POA to your father to file above partitions.

 

Yogendra Singh Rajawat
Advocate, Jaipur
16743 Answers
21 Consultations

4.6 on 5.0

Dear sir, 

Since it is non- compoundable offence as such you have to file Petition Under Section 482 of Cr.P.C before High Court and by her consent by way of Affidavit and it can be quashed within 30 to 90 days. 

Kishan Dutt Kalaskar
Advocate, Bengaluru
4968 Answers
153 Consultations

5.0 on 5.0

Ans: You will be required to personally remain present during all these proceedings. 

Time will be a factor which no Legal Attorney can guarantee.

Garima Anil Mehrotra
Advocate, Mumbai
238 Answers
1 Consultation

4.9 on 5.0

1. Your wife can not withdraw the 498A complaint filed by her since section 498A of IPC is non compoundable as per law.

 

2. So, she shall have to execute an affidavit affirming that she had lodged the said police complaint against you out of domestic rage and has now settled all her disputes with you.

 

3. After affirming the said affidavit, you shall have to file a petition before the High Court u/s 485 of Cr.P.C. praying for quashing the FIR based on her said affidavit and at that time she should be in the Court to depose in favour of her said affidavit, if asked by the Judge.

 

4. Simultaneously you can jointly file a mutual consent divorce petition on agreed terms which will be disposed of with in 6 & 1/2 months from the date of its filing.

 

5. You can collect the MCD petition sent to you in USA and then sign the same before the appropriate officer of your local Indian Consulate  who shall have to notarise your signature.

 

6. You shall have to appear before the Court on the day of the 2nd motion after around 6 & 1/2 months from the date of filing the MCD petition. 

 

7. Make sure to pay as much amount as possible from the settled figure on the day of the 2nd motion since it has been see several times that after taking the settlement amount while filing the MCD petition, the wife refuse to appear on the final day unless further amount is paid to her.

Krishna Kishore Ganguly
Advocate, Kolkata
23548 Answers
640 Consultations

5.0 on 5.0

under section 482 for FIR under section 498-A both the parties are required to be appear before the court.

Mohammed Mujeeb
Advocate, Hyderabad
13837 Answers
6 Consultations

4.5 on 5.0

You can give POA of legal attendance on your behalf any one family member or lawyer as a vakalatnama.

or if you don't want to come to follow court proceedings as her to come for MoU  with Mutual Consent Divorce from court.

Ganesh Kadam
Advocate, Pune
9026 Answers
74 Consultations

4.9 on 5.0

A petition under section 482 Cr.P.C can be filed by your advocate on your behalf before high court seeking to quash the charge sheet.

In that she may have to be present  before court and file an affidavit expressing that she has no objection towards the quashing of this case sine you both have amicably settled the matter between you and the divorce case is also under process.

This is not a time consuming process, it would be better that you make yourself available to be present before court on such date of hearing in order to ensure that you express your confirmation about the compromise settlement before the judge in case the judge is asking you the same question about settlement, this will be a safe passage for quashing the criminal case.

 

 

T Kalaiselvan
Advocate, Vellore
61997 Answers
800 Consultations

5.0 on 5.0

If you think that compromise may be possible then you should call your wife to proceed under section 482 of the code of criminal procedure for quashing of the pending legal proceedings. If wife presents that petition before the High Court and it takes plea that the matter is likely to be compromised out of the court and the legal proceeding should stay, then the high court will stay the proceeding and remand the matter to the mediation centre. In the mediation proceeding, you should appear and settle your issues. After compromise before the mediation Centre, the mediator will send a report to the High Court, thereafter the court will quash the criminal proceeding. On the basis of the report of the mediator, you can file mutual consent divorce under section 13b of the Hindu Marriage Act. However, the whole proceeding will take too much time but your presence is necessary for completing the mediation and quashing of the criminal proceeding.

Shivendra Pratap Singh
Advocate, Lucknow
5124 Answers
78 Consultations

4.9 on 5.0

1. You should file quashing petition in High court after first motion of divorce for quashing the FIR against you. 

2. After first motion of mutual consent divorce quashing of FIR will be easier without your presence.

 

Mohit Kapoor
Advocate, Rohtak
6572 Answers
2 Consultations

5.0 on 5.0

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