Quashing is to be done only in exceptional circumstances
2)HC is reluctant to quash FIR pending completion of investigations
3)you can apply for exparte if wife does not appear in court in divorce case .
498A and Divorce case
1) My wife has filed false 498A on my mother after deliberately breaking into my apartment with help of local goons and harassing her. We have WRT from high court and it has been a year since the case was filled and police in not filling any charge sheet on the 498A in court. As per my lawyer we need to wait till the charge sheet is placed before we move to high court for quashing the matter and filing defamation case. Is that true ? or I can take the matter to high court for quashing, can I take any further action. 2) After i filled divorce case my wife never appeared in court. After 120 days the judge issued show cause to her. the date is in September. If she dont again appear can I apply for ex party. What else steps can be taken to get the matter resolved faster. As per my lawyer we need to wait till she is fined for not appearing before we go for ex party. Can anyone please guide me on proper steps
Asked 3 years ago in Family Law
Religion: Hindu
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7 Answers
It is not advisable to approach high court before the police files chargesheet before court.
You may wait until then.
If she is not appearing before court in the next hearing also then the court may pass an exparte order against her.
1. If she is harassing your mother , then she being a woman can file a compliant under the provision of DV Act against her daughter-in-law
- Further, you should wait for the filing of charge sheet in the trail court for filing the petition for quashing before the High Court.
- Further , if the FIR already quashed , then you can file a criminal as well as civil defamation case against her , and specially you mother can file the same.
2. Yes, if she will not appear before the court , then you should mention to the court for passing an ex-parte decree of divorce.
- If the summon of the court already served upon her , then the court is under obligation to pass an ex-parte decree in your favour.
- Charge sheet is filed after investigation by police. A charge will not be quashed by the Court as police has conducted investigation, court will direct the accused to face the A quash can only be at FIR stage before charge sheet is filed. After charge an accused can file discharge petition in the trial court not quash.
- After receiving notice if wife does not appear, divorce petition will be posted for your ex parte evidence and after ex parte evidence court will pass a decree of divorce . if a party does not appear at all, court cannot impose costs/fine as the party is not there before the Next step under this case is ex parte order of divorce .
Yes you can proceed exparte in the matter
1. Yes your lawyer is right. You should wait till the police files charge sheet for filing quash petition before the High Court duly picking loopholes in the said charge sheet.
2. If she does not appear even after being repeatedly notified, you can file for hearing of the case ex-parte.
After completion of the investigation, police have to file a charge sheet within a reasonable period of time. And so at this stage evidence of the police has to be seen. If there is no evidence or contradictory evidence, then you can seek discharge. Argument on discharge is an important stage in fighting false 498a. If there is no statements of witnesses or no medical evidence then you may argue on discharge.
If your wife not attending the court as a witness, then you may apply to the court and submit bonafide that she herself is not interested in the case. She only just filed the case for harassing you and your family and so the court will in the interest of justice will discharge you.
