Its a surprise that she has waited for 1 yr for 498A,after U filed for divorce.U can go for a quash only after the chargesheet is filed.
But when both of U have compromised to settle everything why discuss about all these things.File for MCD and settle amicably.Cooling period of 6 months is not mandatory for MCD as per SC guidelines mentioned below:
The Supreme Court has held that a six-month cooling period should not come in the way of allowing the plea for dissolution of marriage by mutual consent when it has broken down irretrievably.
Agreeing that "technicality should be tampered by pragmatism, if substantive justice was to be done to the parties," a bench comprising of Justice Altamas Kabir and Justice J Chelameswar said there may be occasions when in order to do complete justice to the parties it becomes necessary for this court to invoke its powers under Article 142 in an irreconcilable situation.
"We have carefully considered the submissions made on behalf of the parties and have also considered our earlier decision. It is no doubt true that the Legislature had in its wisdom stipulated a cooling period of six months from the date of filing of a petition for mutual divorce till such divorce is actually granted, with the intention that it would save the institution of marriage.
"It is also true that the intention of the Legislature cannot be faulted with, but there may be occasions when in order to do complete justice to the parties it becomes necessary for this court to invoke its powers under Article 142 in an irreconcilable situation," the bench said.
The bench allowed the appeal of a couple, the woman based in Delhi and her husband in Canada, against the order of the lower court which on April 13 posted the hearing of their joint petition on October 15 for the purpose of second motion, as contemplated under Section 13-B of the Hindu Marriage Act which deals with divorce by mutual consent.
The bench noted that both the parties urged that since more than 18 months had elapsed since the original petition under Section 13 have been filed, the said period could be counted towards the cooling period of six months stipulated under Section 13-B of the Act.
"Though we are not inclined to accept the proposition that in every case of dissolution of marriage under Section 13-B of the Act the Court has to exercise its powers under Article 142 of the Constitution, we are of the opinion that in appropriate cases invocation of such power would not be unjustified and may even prove to be necessary. The question with which we are faced is whether this is one of such cases,"? the bench said.
Taking in totality that the couple has been living separately for 18 months, the bench said, in our view, this is one of those cases where we may invoke and exercise the powers vested in the Supreme Court under Article 142 of the Constitution.
"The marriage is subsisting by a tenuous thread on account of the statutory cooling off period, out of which four months have already expired. When it has not been possible for the parties to live together and to discharge their marital obligations towards each other for more than one year, we see no reason to continue the agony of the parties for another two months," the bench said.
"We, accordingly, allow the appeal and also convert the pending proceedings under Section 12 of the before the Additional District Judge into one under Section 13-B of the aforesaid Act and by invoking our powers under Article 142 of the Constitution, we grant a decree of mutual divorce to the parties and direct that the marriage between the parties shall stand dissolved by mutual consent.
