Hello, I need some guidance regarding the quashing of a 498a FIR against my brother. This case was Disposed of (with status: Contested Allowed) and the FIR has been withdrawn by his wife from the local Police Station after they agreed and signed "Consent Terms for Divorce by Mutual Consent". I want to understand the entire process of quashing and the costs and timeline associated with it. Thank you!
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The fir quashing petition must have been filed after the parties agreed for a mutual consent divorce. After the 1st motion the high court will allow the fir quashing petition as tge parties have decided to settle tge matter.
After the divorce petition has been filed the court asks the parties about settlement and issues an order quashing the fir.
Costs may vary as per tge advocates fee.
Your brother has to file writ petition in Hc for quashing of FIR on basis of settlement arrived at with your wife
2) enclose copy of consent terms
3) consent affidavit of your wife
Hi Ajay, What is #3 consent affidavit of your wife? Is this something he needs from his wife? Thanks
Dear Ma'am/ Sir,
1. Where the parties have mutually agreed for a settlement, then both the parties can file a quash petition under section 482 of CrPC to quash and set aside FIR registered under section 498A of IPC and the High Court, considering the bonafide of the petition, may quash the same.
2. Once quash petition is filed and police submit the report to the court. The quashing of FIR takes between 2 to 5 hearings to get the case quashed which will take anywhere between 10 days to 3 months.
Thank You.
Consent affidavit should be filed by his wife
on basis of consent terms and consent affidavit HC would quash FIR
In mutual consent divorce proceedings the parties state on affidavit that they will withdraw cases against each other and will not sue each other in future.
So far after signing the terms, the wife withdrew the FIR from the Police Station. 1) Can the wife decline from filing a consent affidavit? If she declines, what would be the next step? 2) Also, the "Consent Terms for Divorce by Mutual Consent" were signed in Lok Adalat. A few lawyers have told us that singing the Terms was a "wrong decision", we don't understand why, could someone explain why that would be?
If wife refuses to file consent affidavit draw attention of court to consent terms signed by parties for divorce by mutual consent wherein there is clause regarding withdrawal of dowry harassment case filed by wife
Firstly the FIR cannot be cancelled just because the defacto complainant had expressed her willingness to withdraw the complaint.
In such a case the accused has to approach high court with a petition under section 482 Cr. P.C. seeking to quash the FIR on the basis of the compromise settlement between both, to which she has to file an affidavit expressing her no objection to the quash petition for the reasons that she would rely upon.
The cost of filing the quash petition and the lawyer's fee would be informed by the lawyer who you would be engaging for this purpose.
If your brother is filing a quash petition under section 482 Cr.P.C., on the basis of compromise settlement between both, she has to appear before high court and file an affidavit confirming this reason and expressing her no objection to grant the quash of FIR by the an order by the high court.
1. You don't use the term that she withdrew the FIR from police station, once the police has registered a FIR on the basis of the complaint given to them, then neither she can withdraw her complaint nor the police can cancel the FIR, If there is a compromise settlement between the defacto complainant and the accused, then the accused can approach only high court for remedy to this.
2. The terms for divorce on mutual consent divorce, if reasonable and justified, is very much acceptable and legally valid, hence the agreed terms can be drawn in a separate sheet and attached with the petition for divorce.
dear sir/ma'am,
if the wife declines from filing a consent affidavit, then you may show the consent terms signed by the parties in the Lok Adalat.
The terms of mutual consent divorce are always acceptable and legally valid.
thank you
- If there is FIR under section 498a , then that can be quashed from the high court only.
- she should file affidavit before the high court for cancelling the FIR .
Dear Querist
The offence committed under section 498A of IPC is non-compundable and cannot be closed by the police by filing terms and conditions, even after registration of FIR under section 498A of IPC or any other non-compoundable offence, the complainant or informant shall be a witness only and nothing else.
as the matter has been settled between husband and wife and consent terms for divorce by mutual consent were signed in Lok Adalat then both the parties are bound by that terms and in case of back out by any party, the opposite party may initiate contempt proceedings against the wrongdoer.
Husband should file a quashing petition before the High Court along with the affidavit of wife, in case of refusal of the wife then the quashing petition can be filed without that affidavit before the HC under section 482 of Cr.P.C. and the court issue notice to wife and when the wife will appear then the court record her statement after identification by the Investigation Officer and quashed the proceedings.
if there is a term regarding the affidavit of her or co-operation of her before HC in quashing proceedings and she is now refused the same then contempt proceedings can be initiated against her.
if divorce has been granted by the court by way of mutual consent then that decree can also be challenged by the husband and declare that divorce is null and void due to non-compliance with the terms.
if there is any amount involved in the terms and already paid by the husband then that amount can claim to be returned with interest.
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1. Section 498a of IPC is a non compoundable section which the wife can not withdraw as per law.
2. She shall have to execute an affidavit affirming that she has lodged the concerned police complaint out of domestic rage which has now got settled since they have consented to file ( or has already filed) a Mutual Consent Divorce petition.
3. Based on the said affidavit, your brother shall have to file a petition before the High Court u/s482 of Cr.p.C. praying for quashing the FIR when she should be present at the Court to confirm her said stand, if asked by the Judge.
4. Thereafter the court is expected to pass order to quash the said FIR registered against your brother.
5. Ordinarily, the entire process should take only one or maximum two hearings.
Yes, she shall have to execute an affidavit as detailed in my earlier post based on which your brother will file a Quash Petition before the High Court.
1. As explained in my 1st post, Section 498a of IPC is a non compoundable Section which the wife can not withdraw from the Police Station as per law. only the High Court shall have to Quash the said FIR registered against your brother based on her said complaint which was later on registered as FIR by the police. Your wife shall have to execute the Affidavit as advised in my earlier post to enable your brother to get the said FIR Quashed by the High Court. She can decline to execute the said affidavit or file a Mutual Consent Divorce petition.
2. The Consent Affidavit executed or decided to be executed by his wife is in valid as per law, since the law allows any of the parties to withdraw the consent of divorce at any time during the 2nd motion to be fixed after 6 months from the date of the filing of the MCD petition which is called the cooling period.
FIR can't be withdrawn it needs to be quashed in HC
Consent affidavit is affidavit which you file together for quashing of the FIR in HC as well in divorce court.
No it's not a wrong decision if the terms are ok.
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