Process to get discharged from 498a when mutual divorce filed
Dear Sir ,
Facts of my Case : Marriage - Aug12 , date of separation/Filing of 498a/406/34 of IPC & 3and4 of DP Act - Apr13 Recvd Anticipatory bail from High Court , confirmed in lower court - Jun13
Streedhan returned in Jul13 - Accused - Husband /Mother/Aunt
Mutual Consent Divorce filed in May14 , agreement includes clause to withdraw 498a case and also not to make any claim wrt alimony or any other cases in future.
date for Appearance & order for Divorce - 12-Dec-14
Chargesheet collected in Aug14, no major findings except statement of dowry and mental harrassment from people from inlaws side.
on29-Oct-14 , we filed an application in criminal court for discharge from 498a annexing the mutual consent divorce agreement , which was not accepted by judge and charge was framed to which we pleaded not guilty.
judge have given a date for Evidence of the girl-complainant on 12 -dec-14 same date as divorce
My Question: If Divorce hearing happens first , where both of us gives consent and then in Criminal court , if the girl refuse to withdraw the case , what should i do and how should i protect myself to ensure i get divorce and also get free from 498.
if the divorce gets done and 498 still continues and girl does not withdraw, what is the way out.
The girl and the family is not at all cooperative and not ready to discuss.
Please advice for me to get free.
regards and thanks for your advice
Asked in Criminal Law from Kolkata, West Bengal
1. I do not agree with the strategy of seeking discharge when divorce had not concluded yet. Filing for discharge at this stage has diluted your potent legal remedy, You should have waited till the finalization of divorce to file for discharge. The judge has rightly set a date for the evidence of the complainant. It does not have the authority to close the case on the basis of the settlement agreed between you and the wife.
2. If your wife does not turn up at the hearing of the divorce petition on 12th Dec 2014 the court will inevitably dismiss the divorce petition. So your wife has to come to the court and say she does not object to divorce being granted.
3. Even if divorce is given on 12th Dec the criminal court will still not close the case, in which event you should move the High Court for quashing of the case on the basis of the settlement agreed between you and your wife. If she does not withdraw the case then you may move the High Court unilaterally.
4. Have you paid any alimony to her during the divorce process? I hope you have not paid her the entire agreed amount, if any, as this further minimizes the possibility of her turning up in the court for finalization of divorce at the next hearing.
5. Plan your further legal strategy after having a conference with your lawyer.
You have to 2 fold options in this situation-
1. To retract from mutual divorce unless and until she gives testimony in criminal court about non prosecution of the case,
2. TO wait till divorce is granted and if the wife does not coperate to withdraw the 498A case, you can go for quashing in high court.
Do bear in mind that there would be no difficulty to get the case quashed by high court if the wife makes unequivocal consent to cooperate for ending the 498A case in the petition for mutual divorce from which she =resiles later on.
Calcutta high court is quite firm in these situations and would quash the case.
1. In some cases, 498A complaint is withdrawn by the wife as a condition to go for MCD by the husband,
2. If that has not been done, get the MCD first wherein it has been agreed by your wife to withdraw the 498A complaint as part of the consented settlement,
3. So, if the wife refuses to withdraw the 498A case later on, you can file a petition before the High Court to quash the said 498A case based on the conditions mentioned in the MCD.
1. If both of you are filing a mutual consent petition after compromising and settling the dispute it is necessary to get the 498A finished . So finish it first before you give the final consent.
2. Your wife will not be able to withdraw the 498A once the FIR lodged other than getting it quashed in the higher court.
3. if the trial stage has started you will not be able to withdraw the case it has to be compromised and accordingly the witnesses has to be hostile and depose for your acquittal..
4. If the trial has not started first file the quash petition in the high court, let her give her affidavit that she does not wish to proceed and settled the disputes and you are filing for mutual divorce.Te court will quash the FIR and charge against you in the FIR.
5.Then file the divorce on mutual consent ground.
6. . Before the final order in the divorce court, the court will ask you to confirm the withdrawal of the all cases as it was included in the terms., in case your wife does not co-operate to dispose case or quash the FIR, you can withdraw your consent or ask for longer date till you finish the all existing criminal cases.
The mutual consent can be held for 18 months before dismissing.
If in case you give the consent for mutual divorce by representing before the divorce court that all disputes have been settled and cases are withdrawn, and if she does not agree to do so, then your remedy is to approach the high court.
But it is not necessary and mandatory that court will quash your FIR and charge, you can be taken to task as you are filing false affidavit in the divorce court that disputes are settled and no cases pending.
Please note that, you cannot get the FIR quashed without proper ground or her written affidavit of withdrawing the accusations. she has to co-operate for either of the way to gt out of the 498A. So get her to do that first and go ahead with the final consent to the mutual divorce filed.
You have to filed quashing petition before HC which was be based on the settlement/Mutual Consent Divorcee.
now try to settle the matter again with her and file quashing, it will be better
Advocate, New Delhi