• Extension in trial period of mutual consent divorce

Dear sir

I and my wife has filled mutual consent divorce petition on 7 January 2016. We have paid her part amount of one time settlement and remaining amount will be paid on second hiring on 11 Jully 2016. As they had filled FIR against me and my family members under 498 A  which is yet to be quash and required some more time. Can I request honourable court for extension in trial period for another 3-4 months so that FIR would be quashed till date. I want to do this because once she get all money and final divorce decree is pass then she may not be ready to quash the FIR.
Asked 5 months ago in Family Law from NASIK, Maharashtra
Religion: Hindu
1) if you don't appear in court on said date court would adjourn the case 

2) in the alternative you can seek 4 months to move HC for quashing of 498A complaint and deposit baknce amount in court 

Ajay Sethi
Advocate, Mumbai
23316 Answers
1220 Consultations
5.0 on 5.0
Yes you can seek adjournment on the hearing of second motion to be held on 11 July 2016 to some other future date.
You can file a petition before the trial court stating the reason seeking adjournment.
You can state that since the petition filed under section 482 cr.p.c. seeking quash of FIR registered under crime number...... is pending disposal at high court and is likely to be decided by ..... this case may be adjourned until then.
The trial court may consider your request.
In the mean time you may ask your spouse to file no-objection in the form of an affidavit in view of the ensuing mutual consent divorce case  before high court during the next date of  hearing of the pending quash case so that the high court may be able to decide the quash petition in your favor on the same date. 
T Kalaiselvan
Advocate, Vellore
14104 Answers
127 Consultations
5.0 on 5.0
Curt can extend the period up to 18 months from the date of filing the joint petition. The consent of parties continues for 18 months unless it is withdrawn by either of party. A joint application for adjournment should be moved in this respect. Otherwise too you can incorporate in the settlement as 'It has been mutually agreed between the petitioners that petitioner No. 2 shall cooperate petitioner No. 1 in quashing of the F.I.R. bearing No......., P.S. ...............u/s. 498­A/406/34 of the I.P.C., 1860, lodged by her against petitioner No. 1 and his family members, before the Hon'ble High Court of ................'. 
H. S. Thukral
Advocate, New Delhi
519 Answers
125 Consultations
5.0 on 5.0
You have not stated what stage 498A case is pending at in the court. You can request the court to grant adjournment subject to the stage at which the case is pending. 
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
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Hi, As per latest Supreme Court judgement you need not file petition under section 482 of the Code of Criminal procedure  for quash the Complaint under 498/a.

2. Both of you appear in magistrate Court and file an application for compound the offence, the magistrate has power to compound the offence under 498/a so it can be done in with in week.

3. So first you have to compound the offence in Trial Court and then move to the family Court for divorce.

4. It is my opinion i don't think you will take 3 to 4 months you can done the same with in 11-07-2016.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
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If she is absent on the next date, court will adjourn the proceedings to next date. Second motion, as said can be within a period of 18 months from the first motion. If she does not appear in 18 months time, the petition shall be dismissed considering the consent as withdrawn.    
H. S. Thukral
Advocate, New Delhi
519 Answers
125 Consultations
5.0 on 5.0
If you remain absent and there is no representation from your side then the court may decide to dismiss the case for no representation or default.
Do not pay the amount to her on 11.7.16 if the quash petition is not considered by high court until then.
You may engage an advocate from your side to represent you in the court on 11th July  stating that owing to your sudden outstation or unavoidable program you were not able to attend the court hence the case may be adjourned to some other date and you can thus remain absent.
Wait for the quash order of high court and then proceed with this divorce case.  The MCD case can extend up to 18 months. 
T Kalaiselvan
Advocate, Vellore
14104 Answers
127 Consultations
5.0 on 5.0
1) court would adjourn petition if you remain absent 

2) you can deposit amount in court as per your consent terms so that wife can withdraw amount on quashing being allowed  by HC 
Ajay Sethi
Advocate, Mumbai
23316 Answers
1220 Consultations
5.0 on 5.0
If you abstain from the hearing the court may dismiss your MCD petition. The court will not postpone the hearing to enable you to apply for quashing. 
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
5.0 on 5.0
1) is your wife not ready to move HC for quashing ?

2) if so dont attend court in divorce case on 29th  august 

3) court will not grant you wife divorce by mutual consent in your absence 

4) move HC for quashing based on settlement arrived at with wife 
Ajay Sethi
Advocate, Mumbai
23316 Answers
1220 Consultations
5.0 on 5.0
For demanding the amount paid by you,  a simple legal demand notice can be sent by registered post stating the circumstances under which the amount was paid to her and since she did not honor the commitment as agreed, the amount may be returned.  
You do not have to quote any section in the demand notice.
T Kalaiselvan
Advocate, Vellore
14104 Answers
127 Consultations
5.0 on 5.0
You must remember that she cannot withdraw the 498a case even if she is willing to.  She has to step int the witness box, turn hostile to the witness deposition, record the same, then the assistant public prosecutor has to dispense with all the other  witnesses except IO, and after IO deposing the evidence, the court will pass on order of acquittal..
T Kalaiselvan
Advocate, Vellore
14104 Answers
127 Consultations
5.0 on 5.0

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