Hi, Kindly suggest as my wife side party filed divorce and other cases ( MC, Family Court Act 7E, DVC, 498A) and suggesting below process to settle. 1. We will sign an mutual MOU stating wife side party closes all pending cases i.e. MC, Family Court Act 7E, DVC, 498A and I will pay 10 Lakh Rs. as permanent alimony. 2. Wife side party Lawyer will online upload (due to Covid pendamic situation) signed MOU to withdraw/not press MC, Family Court Act 7E case, DVC, 498A cases. 3. Very next day, we both will convert existing divorce case (filed by my wife) to mutual consent and then I will handover DD in front of Family court Judge in Divorce court. Divorce court will grant mutual consent divorce in 10/15 days. How can I ensure that mutual MOU becomes official and comes as part of Judgement Order certified copy in all cases? Can 498A be an issue after taking mutual consent divorce as per above process since 498A remains open for 2 months?
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The copy of MOU MO would never be part of the decree.
Rather incorporate the terms agreed upon in the petition for mutual divorce which can be made a part of the decree.
If she fails to cooperate in dismissing the 498A IPC case as per terms of the settlement then high court can quash the proceeding.
Hi, Thanks for the clarification Mr. Devajyothi Barman. In that case, Can we file similar petitions (by including agreed terms) in all cases i.e. MC, DVC, 498A, Family Court Act 7E? I just want to ensure no hassle in MC, 498A, DVC cases.
Hi, Thanks for the clarification. In that case, Can we file similar petitions (by including agreed terms) in all cases i.e. MC, DVC, 498A, Family Court Act 7E? I just want to ensure no hassle in MC, 498A, DVC, Family Court 7E cases. Because MC, Family Court 7E, DVC, 498A cases are all in different courts.
You should make application for conversion of existing petition for divorce into mutual consent
2) enclose consent terms for withdrawal of DV case , MC case
3) wife shall cooperate in quashing of 498 A case in HC
4) Rs 10 lakhs can be deposited in court and paid to wife at time of second motion of divorce
Act as mentioned herein above
If you pay Rs 10 lakhs upfront wife may not cooperate in quashing of 498 A case
1. Clause 3 in your original query is misconceived. It cannot happen in 15 days. The existing petition can be converted into a petition for mutual consent divorce, but the process contemplated under Section 13B of HMA has to be followed. Court has to wait for cooling off period unless it decides to waive it.
2. Even if she does not come on board for quashing of 498A after marriage is dissolved through a decree of divorce by mutual consent, you may unilaterally file a petition for quashing of FIR in the High Court.
- You should submit the said MOU with the joint petition before the court.
- However, even there is an MOU , then also either of the parties can refuse to proceed further for finalisation n of mutual divorce decree.
- Hence, full amount should be handover at the time of granting divorce petition , and should be paid in instalment on every withdrawal of filed cases by her , and also at the time of quashing of FIR .
The criminal case under section 498A IPC is non compoundable hence she cannot withdraw this case because it is police prosecuted case and it can be either quashed by high court or to be tried by the trial court where she has to turn hostile witness by which the court may acquit the accused.
She can withdraw the MC and DVC before the consent court by filing a compromise memo attaching the memorandum of understanding between both.
The contested divorce case cannot be converted to mutual consent divorce, however it can be closed and the decree drawn upon by both the side conducting formal trial, on the same day.
You may withhold the payment of the agreed amount until the criminal case under section 498A IPC is disposed in your favor.
The cases filed under DVC and MC can be withdrawn by her by filing a compromise memo on the basis of the process for mutually agreed conditions for divorce, however the criminal case under s34ction 498A IPC cannot be withdrawn.
The procedure for disposal of the same is different which has been clearly explained in the previous post of the same thread.
You may have to exercise abundant caution and care while handling such sensitive cases and issues.
The disposal of all other cases would be easy except for the criminal case under section 498A IPC.
The procedure to bring the said case to a close is totally different to that of other cases.
You may either have to file a quash petition to quash the charge sheet on this case under section 482 Cr.P.C, before high court, alternately she may have to turn hostile during the trial proceedings to enable the court to ac quit you and dispose the case in your favor.
A MOU should be made on 2 stamp papers. All the details should be sttaed therein. Based upon the MOU the divorce petition should be filed.
Those cases can be withdrawn by the party who filed those cases.
In criminal cases compounding application has to be filed in the high court because some offences can only be taken back by the high court.
Dear Querist
Signed the MOU after go through all the terms and conditions and after signing the MOU, she will prepare a divorce petition by way of mutual consent under section 13(B) of Hindu Marriage Act-1955, signed the same after reading all the contents of the petition carefully and each page of the petition should be signed by both of you and your counsels.
payment should be paid in three installments, first, at the time of recording of the statement of first Motion and second, at the time of recording of the statements in second motion petition of divorce by way of mutual consent and the third and last, before the high court in quashing petition of 498A case as this is a non-compoundable case, hence, the trial court has no power to withdraw the case.
As per the Supreme Court Judgment if both of you reside separately for more than 18 months then only your divorce proceedings can be completed within 15 days and not otherwise.
It should also be mentioned in the MOU that before the second motion all the cases except the 498A shall be withdrawn by the wife and if the wife is not ready for the second motion or if she will not co-operate with the quashing of the 498A case, then she shall be liable to return the money paid by the husband along with interest.
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you can put one condition of depositing the money in court and withdrawal only after the said matters are quashed
