Dismissal of dv for non-appearance of petitioner or their counsel
Tanmay
(Querist) 24 December 2012
This query is : Resolved
Hello all,
I have both PWDVA and 498a on me which is filed by my wife. In the PWDVA(Domestic Violence) case, we got it referred to mediation once and that failed. Now case is back at court.
The opposite party/their counsel is not appearing for the case hearings in PWDVA(Domestic Violence) case. We have already filed objections.
Now since they are not appearing we are asking for the dismissal of the case, but the judge is giving time to the opposite party. What can we do to make sure the case gets dismissed for non-appearance. Is there anything that we can do from our side.
Also on the day of dismissal of the case if the opposite party appears and asks for more time then will the judge grant the same. What should we do from our side to get the case dismissed or do something which works in our favour.
Please provide pointers regarding this.
Thanks in advance for your suggestion.
Regards,
Tanmay
ajay sethi
(Expert) 24 December 2012
if your wife has made interim applications press for hearing of the same . hve the said applications for mainenance etc be heard and decided.you have not mentioned how many dates complainant has not appreared
Tanmay
(Querist) 24 December 2012
Hello Sir,
Initially before submission of objection we got it referred to mediation. After mediation failed it was back to court again. The complainant or her counsel have not appeared for 4 times after that.
After filing of objections it is 3rd time(including the date of filing of objections). We have been requesting for dismissal because of that.
She has not asked for any interim relief, but there is a prayer in which she has asked for some monthly maintainance and some property. My lawyer told that we should ask for dismissal or request the judge to hear our arguments and close the matter.
But incidentally my lawyer is not able to make it to the court for his own reasons. So we are really not in a great position. So we are just asking for dismissal of the case ourselves.
No arguments have been made from either side till now for maintenance or anything else. Nothing is decided either due to that.
If you need more info please let me know about the same. Any inputs in this regard is highly appreciated.
Thanks in advance,
Tanmay
ajay sethi
(Expert) 24 December 2012
if your lawyer only dosent attned court how can you blame the complaiant for not attending court
V R SHROFF
(Expert) 24 December 2012
You apply to expedite the matter.
You apply to dismiss the application for want of prosecution. Let court decide it.
If she turn up ion last date, court will direct her to be present regularly.
Tanmay
(Querist) 24 December 2012
Respected Shroff Sir,
Thanks for the mail. When I told my lawyer to file an application, he said even if we tell orally also it is sufficient. So we(respondents) made a request to the judge that it should be dismissed as the complainant is not interested in pursuing the case. My lawyer is not able to make it because he is serious sick. With that condition I am unable to do anything, so I am following his advice hoping that he will recover soon. In the meantime I am trying to find another lawyer so that my case is handled properly.
Thanks again.
Regards,
Tanmay
Nadeem Qureshi
(Expert) 24 December 2012
Dear Tanmay
According to section 256 of Crpc there is a provision for dismiss the complaint due to Death and Non-appearance of the complainant.
Non-appearance or death of complainant.
(1) If the summons has been issued on complaint and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall notwithstanding anything hereinbefore contained, acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:
Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.
(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.
Feel Free to Call
Nadeem Qureshi
(Expert) 24 December 2012
Dear Tanmay
According to section 256 of Crpc there is a provision for dismiss the complaint due to Death and Non-appearance of the complainant.
Non-appearance or death of complainant.
(1) If the summons has been issued on complaint and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall notwithstanding anything hereinbefore contained, acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:
Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.
(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.
Feel Free to Call
Tanmay
(Querist) 27 December 2012
Respected Nadeem Sir,
Thanks for the information. I am not sure if summons have been issued to the complainant. We have never requested for the issue of summons for the same. If the judge has done it on his own I am not sure.
We have not submitted any written request to the judge to dismiss the case. We have just mentioned it orally to the judge. Is it mandatory to submit a written application to the judge for dismissal of the case. In our case it is only non-appearance, not death. The complainant is very much alive.
Thanks again.
Regards,
Tanmay
