We had MOU signed for a mutual divorce which stated the order - first motion for divorce, quashing and then second motion for divorce. However, at the hearing of quashing the girl appealed that be done after second motion for divorce. The judge agreed and moved the date for quashing. Now I fear that girls family donot plan to come to the quashing hearing as it doesn’t impact them at all. If that happens can the cases be quashed in their absence. They had signed the quashing documents. If it cannot be quashed without their presence, what are my options to get them to court.
The high court may insist on the presence of the respondent to confirm her decision to agree for quashing the charge sheet in the pending criminal case.
If she's intentionally abstaining from appearing before court then the court may even dismiss the quash petition.
In that case you may have to challenge the criminal case in the trial proceedings alone.
The MOU is not enforceable in law.
You should ha e drawn attention of court to clauses in MOU which provided that quashing was to be done before second motion
if wife has filed consent affidavit HC can quash FIR even in her absence
if HC insists on her personal presence issue her notice to attend court on date of hearing of quashing petition
If the girl does not appear for quash, case cannot be quashed. You have to file proceeding for divorce afresh in that case.
Hi, Both the parties must appear before the Court on mutual consent divorce, then only divorce is granted by the Court.
If they're not coming for quashing the case, you should insist them to come first for quashing the case side by side divorce case as well. You should have prepared MoU like that on the condition of quashing case then divorce case will start.
Before the second motion ,
Advance the quashing petition and ask your wife to file consent affidavit before High court for quash the FIR even in her absence.
Dear sir,
If the wife has produced a written statement such as an affidavit where she expresses her consent to quash the proceedings, then the court can rely upon it. Otherwise, the court may not issue in her absence.
However, it is advised that you give her legal notice to be present. Thank you.
- For quashing the FIR , both parties , specially girls appearance is mandatory before the High court.
- Further, in the mutual divorce , either of the parties can backtrack before final passing the decree .
- Further, in the first motion you should submit the MOU copy before the court.
- However, if she given her affidavit before the family court or in the petition of high court , then court can quash the FIR in her absence as well.
- Further, the high court can also directs the I.O. of the case to produce her before the court.
Don't worry. Even after mutual divorce if she refuses to give consent for quashing then also the court can quash the proceeding if the terms of settlement through mutual divorce is complied with.
