trial under 498a – wife refusing to withdraw even after compromise

[vandana singh]

Hello sir,
Hope you are doing well.Sir, a false 498a case has been filed against my brother and 3 more family members.Divorce has already been filed from brothers side and will be finalized on 13dec2017.Mutual consent under 13b has also been registered.Now my brothers wife is refusing to take back 498a.Please note the case is not under trial yet,all the 4 family members have been asked to appear on the next date 21nov2017 for framing the charges. Sir we have few queries:
1.How can we prevent from charges being framed and case going under trial?
2.If the case goes under trial do all the 4 family members need to appear for EVERY date?
3.How can we get exemption from all the members appearing before the court.?
4.How can we end this 498a case within lower court itself when the girl is not ready to corporate,we have all the evidences that its a false case .?
5.How can we end 498a in high court without the girl being corporative?

Please provide guidance for the above queries…Thanks….

[Dr. Ashok Dhamija]

You can file a discharge application and if it succeeds, then no charges would be framed and no trial would take place.

Yes, all the accused persons are required to personally attend on each date of the trial, unless exempted by the court either generally or specifically for a particular date.

You have to apply to the trial court for seeking exemption giving justifiable reasons.

As I mentioned above, you have to file discharge application. Or else, face the trial and get acquitted by showing that the prosecution case is false.

If your discharge application is not allowed in trial court, you may challenge the same in the higher courts, including in the high court at the appropriate stage, and this does not require consent from the complainant wife.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[vandana singh]

Hi Sir,
Thank you so much for your prompt response.Can you please guide us on few things:
1.under which section the discharge application needs to be filed.?

2.Does the discharge application needs to be in an application format or an affidavit.?

Sir,please confirm on the above points.

Thanking you,
Regards,
Vandana singh

[Dr. Ashok Dhamija]

Discharge application will be under Section 239 of the Criminal Procedure Code.

Search the format of the discharge application on Internet. The format may vary slightly in different states. It may need verification and/or affidavit, depending upon requirements of a particular state. If you’re not familiar with court proceedings (as it appears), it would be advisable to engage some local lawyer.     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[vandana singh]

Hi sir,
Thank you for all your responses .Sir for the time being we are handling our case ourselves as far as possible,we did hire lawyers previously. Sir,need your guidance for:

As stated above 13b has got registered and we have submitted the complete alimony amount in the name of Family court as decided between the two parties,still my brother’s wife is not ready to take back 498a.we are of the doubt that she might get the money released treacherously from the court,so we are thinking of taking back the money from the court and submit it when my brothers wife takes back all her cases.

sir my question is:
1.can we take back the money from the court with 13b still being valid?in short will 13b get disposed off if we take back the money from the court?

Sir,please provide your guidance for the above.They are really very helpful.

Thanking you.
Regards,
Vandana singh

[Dr. Ashok Dhamija]

It will all depend on the terms of the MOU that you would have entered into with the lady concerned and also the terms of court order, if any. It is difficult to reply without having seen all relevant documents. But, if the mutual consent divorce petition is based on any amount (or any installment) being given by you in advance, then she may refuse to give her consent at the second motion of the mutual consent divorce and due to this, the MCD petition may fail. You’ll have to consider all the aspects before taking a decision.      

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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