• 498a and divorce settlement

My wife filed false 498a against me and my family and chargesheet has been filed and case status is in SUMMONS. Now she wants to compromise. I have a 4 year old son who is with her. She wants to keep his custody.

1) How 498a case will be withdrawn without going to High Court
2) Can one time alimony can be given to my wife as final settlement ( she will be giving khula)
3) Will she in future file DV or 125 crpc after obtaining Khula/Divorce
4) Can I give lumpsum amount as final maintainence for my 4 year old son.

I am planning to give gold ornaments as settlement amount for my son and wife.

Please guide
Asked 5 months ago in Family Law
Religion: Muslim

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18 Answers

It cannot be with drawn at this stage 

 

2) you have to file petition in HC for quashing of FIR and charge sheet based on settlement arrived at between parties 

 

3) wife has to file consent affidavit on HC 

 

4) you can give her alimony as one time settlement 

 

5) she cannot file DV case after divorce

 

6) you can give lumpsum amount as maintenance for your son 

Ajay Sethi
Advocate, Mumbai
82706 Answers
5254 Consultations

5.0 on 5.0

  1. There is no procedure for settlement of 498A out of court. You have to file a writ in the High Court for that, Section 482 Code of Criminal Procedure, 1973 is not applicable as under that Section court has no power, but under writ jurisdiction High Court can record compromise.
  2. Khula can be settled by one time alimony.
  3. Wife will not have any claim under Section 125 after divorce.
  4. You can give whatever you want to son, but he will have right to seek maintenance till he reaches till 18
  5. Record proper proof of whatever you are giving to son and wife.

Ravi Shinde
Advocate, Hyderabad
1011 Answers
8 Consultations

5.0 on 5.0

1. the FIR need to be quashed in high court

2. yes there can be one time alimony

3. no she will not be entitled

4. yes you can give the amount as you both agree.

Gopender
Advocate, New Delhi
372 Answers

4.9 on 5.0

1. Since CS is already submitted unless the wife gives evidence in trial the accused persons wouldn't be acquitted of the offence. 

2. Yes.

3. Yes.

4. Yes but she can still claim maintenance later on. 

Devajyoti Barman
Advocate, Kolkata
22452 Answers
353 Consultations

5.0 on 5.0

1) 498a case cannot be withdrawn without going to sessions court. She will have to inform Hon. Judge that she desires to withdraw her case without any force. 

2)  Yes you may pay her one time alimony as full and final settlement. 

3) You will have to take in writing from her that she will not file any case against you in future. 

4) Yes you may give one full and final amount as maintenance towards your son. 

When you handover them gold ornaments pls take a writing from them that they have received it. 

 

Regds, 

Adv. Payal Goyle 

Payal Arora
Advocate, Pune
363 Answers
18 Consultations

4.5 on 5.0

1. The case under section 498A IPC cannot be withdrawn by the defacto complainant. 

It is a non-cognizable, non-bailable and non compoundable offence. 

2. Giving khula and one time settlement would not come to your rescue to solve the 498a case.

You may either file a quash petition before high court or ask her to turn hostile during witness evidence  at the time of trial of the case. 

3. The DV case or maintenance case after mutual consent divorce may not be maintainable.

4. You can give, but that will not be an end, the child may claim maintenance after becoming major by age. 

T Kalaiselvan
Advocate, Vellore
72791 Answers
1111 Consultations

5.0 on 5.0

1. File a compromise and get the FIR cancelled in Court.

2. Not sure

3. Possible 

4. Can. Still alimony obligations shall persist. 

Regards 

G.Rajaganapathy 

High Court of Madras 

Rajaganapathy Ganesan
Advocate, Chennai
1956 Answers
8 Consultations

4.9 on 5.0

Hi, What ever amount you wanted to pay to your wife you can pay the same through Court Only. So that she can't able to claim the same again and again. Further, the 498/A is now compoundable offence. You can compromise the same through Court only. Not outside the Court.

Pradeep Bharathipura
Advocate, Bangalore
5020 Answers
269 Consultations

4.5 on 5.0

Dear Sir,

My answers are as follows:

1) How 498a case will be withdrawn without going to High Court

Ans: After appearance before the court. You may ask the court to frame the charges then examine your wife
through prosecution and get hostile before the court and other witnesses may also be requested to turn hostile in
view of compromise. Thus court will pronounce its judgment of clear acquittal. For this purpose you must
coordinate with the prosecutor.

2) Can one time alimony can be given to my wife as final settlement ( she will be giving khula)

Ans: Yes, one time alimony in full and final settlement may be given.

3) Will she in future file DV or 125 crpc after obtaining Khula/Divorce

Ans: No, such conditions must be mentioned in the divorce joint compromise petition.

4) Can I give lumpsum amount as final maintenance for my 4 year old son.

Ans: Yes, for his future education and maintenance such amount can be give.

I am planning to give gold ornaments as settlement amount for my son and wife.

Ans: It is fine.

Kishan Dutt Kalaskar
Advocate, Bangalore
5897 Answers
297 Consultations

4.8 on 5.0

You are bond to pay maintenance or alimony to your wife 

 

2) consent terms should mention that gold jewellery has been handed over . List of jewellery should be enclosed to consent terms 

Ajay Sethi
Advocate, Mumbai
82706 Answers
5254 Consultations

5.0 on 5.0

Your are not liable to give her anything under Sharyat. What is your giving is out you love to son. It won’t create any problems for you. Prepare a list of article in detail and add a disclaimer that this is out of love and affection towards son and she will not any right in future against you or your property, obtain her signature and signature of two witnesses. That is more than sufficient.   

Ravi Shinde
Advocate, Hyderabad
1011 Answers
8 Consultations

5.0 on 5.0

I am not aware of "khula" but you can settle on anything if both parties agree. Make a record of jwellery you are giving and attach it with your plain in court. Give its estimated cost also. Take her signatures on handover documents and then place in court records. 

Gopender
Advocate, New Delhi
372 Answers

4.9 on 5.0

You may inform court that you wish to give jewelery as full and final settlement amount. You will have to deposit the jewelery in the court so in future she cannot deny. Giving jewelery will not be a problem but handover her in the courtvand her necessary signatures. 

 

Kind Regards, 

Adv. Payal Goyle 

Payal Arora
Advocate, Pune
363 Answers
18 Consultations

4.5 on 5.0

The maintenance or alimony can be paid only after the court passes an order on an application seeking the same filed by her before the concerned court. 

You were not compelled to give gold jewels to your son or wife, hence she may accept that also and she may claim alimony later on additionally. 

While handing over the said articles, you may get an acknowledgement in writing signed before two witnesses from her side. 

T Kalaiselvan
Advocate, Vellore
72791 Answers
1111 Consultations

5.0 on 5.0

Dear Sir, 

Firstly,

The case can only be withdrawn by the person who is filing the suit i.e. your wife. The other manner in which the case can be settled outside the court is through Alternative dispute resolution which further includes mediation, conciliation, etc for civil matters. You can also file for a decree of compromise between yourself and your wife to prevent the matter from going any further.

The Supreme Court in a case said false complaints under Section 498A of Indian Penal Code against innocent in-laws alleging cruelty and harassment at matrimonial homes were increasingly making the husbands adamant not to take back their wives. For no fault, the in-laws, especially old parents of the husband are taken to jail the moment a false complaint is filed against them by a woman under section 498A of IPC.

Secondly,

The personal matters in Muslims usually follow the customs specified by their religion. There is no specific law about the alimony laws under the custom, but it was governed by the Muslim Women (Protection of Rights after Divorce) 1986 and recently Sec. 125 of the CrPC became applicable. As alimony is subject to the financial conditions relevant to the parties, your extent of rights can be prescribed only by the legal advice from an expert divorce lawyer. Along with that, get an idea of how the customs and legal provisions regulate the alimony matters-

  • Customs: As per Muslim customs, an amount is decided as Mehr at the time of marriage, which is similar to the Stridhan among Hindus. The wife has an unconditional right over the amount decided and to be paid by the husband and his family. For example, if an amount of one lakh has been decided at the time of marriage as the amount of Mehr, she is entitled to get the amount immediately after iddat. Anyhow, during the iddat period, the husband is liable to maintain the wife. This amount of Mehr can be treated as one-time alimony or hefty alimony, as the main purpose of both Mehr and alimony is to provide financial stability to the wife post-divorce.
  • Muslim Women (Protection of Rights after Divorce) 1986: A number of Muslim women were living at pathetic conditions after divorce, as the men often refused to pay the Mehr, or even if they pay it, that amount was not enough for a lifetime, especially when there are kids.
    This became a trauma for Muslim women who are financially dependent on their husbands, and not enough educated. This fear forced them to adjust to every sort of abuse.
    Introduction of Muslim Women (Protection of Rights after Divorce) 1986 relieved them a bit because it gave rights to Muslim women to get the assured Mehr as well as a certain amount as alimony and maintenance of the children.
    Anyhow, this still kept the Muslim women separate from the Uniform Civil Code of Sec. 125 of CrPC. The main disadvantage of that involved no specific guideline for the amount to be paid as alimony.
  • Sec. 125 CrPC: The landmark judgment of Mohd. Ahmed Khan vs. Shah Bano Begum changed the scenario for divorced Muslim women.
    This new rule made Muslim women claim for a proper amount of alimony as well as maintenance for the child separately. The alimony amount was assured to be sufficient for the dignified livelihood.

According to the Statement of Objects and Reasons of this Act, when a Muslim divorced woman is unable to support herself after the iddah period that she must observe after the death of her spouse or after a divorce, during which she may not marry another man, the magistrate is empowered to make an order for the payment of maintenance by her relatives who would be entitled to inherit her property on her death according to Muslim Law. But when a divorced woman has no such relatives, and does not have enough means to pay the maintenance, the magistrate would order the State Waqf Board to pay the maintenance. The 'liability' of husband to pay the maintenance was thus restricted to the period of the iddah only.

Thirdly,

The filing of Domestic Violence case solely depends upon her. However, it shall be the discretion of the court based on the evidences provided by both the parties whether the case is maintainable or not. 

Fourthly, 

Ahmedabad: In an important judgment, the Gujarat high court on Thursday ruled that a family court is empowered to direct a Muslim man to pay lump sum as permanent alimony to his wife on divorce, and payment of this alimony is not conditional to the wife’s remarriage.
In its order, the high court narrated the progression of the rights of Muslim women in India from pure Sharia law that was in existence before 1939, and said that a family court can order a Muslim man to pay permanent alimony not only under the Family Courts Act, but also under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986.

On the husband’s claim that no law provides for permanent alimony on a divorce petition by the wife, the court said, “The ever-changing needs and situations may require judicial determination: it cannot be that the courts are powerless to act in the absence of specific provisions in the codes.” The HC further said that the 1986 Act very much provides for this relief for a woman on divorce. Besides Indian laws, the HC cited various verses from the Quran and their interpretations to assert the women’s right to equality in marriage among Muslims and how the religious law itself has provisions for alimony for women at the time of separation.
On the woman’s right to permanent alimony in case of her remarriage, the HC clarified, “Such sum is not granted on the condition against remarriage for all times to come or for any particular period.”

 

 

Anik Miu
Advocate, Bangalore
1529 Answers
18 Consultations

4.9 on 5.0

1. Since the charge sheet has already filed , then if you dont want to proceed the High court of quashing FIR , then you will have to face trail after receiving the summon of the court. 

- Further , at the time of charge framing or in the evidence , your wife can inform the court for the same  However it can take much time than approaching the High court. 

2. Yes, you both can enter into MOU/Agreement for the conditions of Alimony and custody of child , and submit the same before the court .

3. No, as Khula is a form of Mutual divorce , then she cannot file any case against you after getting divorce legally. 

4. Yes, 

- Further , all the jewellery /gift of your wife is considered as her Istridhan , and none having right to claim over the same , and you cannot transfer the same to your son without getting consent of your wife .

 

You can connect me via kaanoon.com , if additional advise needed. 

Mohammed Shahzad
Advocate, Delhi
7090 Answers
74 Consultations

5.0 on 5.0

1. Section 498A of IPC is a non-compoundable criminal charge. Your wife can not withdraw it. The best procedure is to get her execute an affidavit affirming that she has lodged the said police complaint out of domestic rage and you two have not settled and she has no allegation against you now. Based on the said affidavit, you shall have to get the said FIR quashed by filing a quash petition u/s482 of Cr.P.C.

 

2. It matter of one time payment of maintenance amount should be clearly mentioned in the said Khula to be signed by her endorsed by the local Quazi.

 

3. She can file any case or lodge any police complaint anytime which you shall have to contest fittingly.

 

4. Any payment you make based on any settlement arrived by you and your wife should be mentioned in an agreement notarised by a Notary Public. and also signed by two nos. witnesses.

 

 

Krishna Kishore Ganguly
Advocate, Kolkata
25607 Answers
726 Consultations

5.0 on 5.0

1. An agreement signed before two witnesses and notarised by Notary Public should be considered as a valid document in support of your claim.

 

2. However, prefer payment through Bank over making payment in kind like handing over jewelry.

Krishna Kishore Ganguly
Advocate, Kolkata
25607 Answers
726 Consultations

5.0 on 5.0

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