acdpvictim (self) 25 May 2016

Divorce and 498a withdrawal

Hello All,

Both wife and I live separately in the US.

Wife filed a 498a case on me and my family in India in 2012.

Some historical events for context:

I filed for quash in high court in 2014, received stay for 6 months and later the quash petition was dismissed in 2015.
Wife filed for Divorce in 2014
Family court judge allowed my petition to contest her divorce petition just recently.
Wife and I negotiated to compromise and close the criminal case and take mutual divorce.
There is an active NBW arrest warrant and look out circular issued for me.

Right now, its all about creating the understanding and we are having a tough time on who is get their relief first. Will I get quash first or will she get divorce first. It has been extremely challenging to close the loop.

Below are some plans that I am planning to take. Need suggestions and feedback.

Plan 1 : I asked my high court lawyer to file for quash of the criminal case(498a, DP3/4, 420) again in high court, this time on the grounds of compromise MoU so that I can get a stay order for couple of weeks, fly to India and sign the Mutual Consent Divorce. Their lawyers agreed to give No-Objection to that petition, so that high court judge can give stay order on grounds of compromise and case can be quashed after I sign MCD papers.

Plan 2 : Her family lawyer is suggesting that I need NOT plan to come to India at all. They will file MCD, in the MCD petition there is a paragraph that mentions that they will either withdraw all cases or give a No-Objection to any of my quash petitions. But, they did NOT mention when and what stage such actions will be taken. He mentioned that after filing MCD with both my wife and my signatures(signed in the US and mailed to India), there will be an evidence stage and the lawyer mentioned that my GPA holder and her GPA holder can attend for evidence and if the judge does NOT allow the GPA holders to attend for evidence then she and I will have to go to India for the evidence.

Questions :

Is Plan 1 better or Plan 2 better? Or is there a better approach?
If we go with Plan 2, can I verbally mention to their lawyer that I will personally be there for evidence stage , so that it forces them to quash / withdraw criminal cases on me to safely travel to India for giving divorce evidence ?
Does the GPA holder has to be my father, can I give GPA to anyone else in the family?
Her lawyer is mentioning that in this particular mutual divorce, since we are converting a contested divorce(filed in 2014 - 2 years ago) to mutual divorce under a compromise and since both of us are living in the USA, there will NOT be any first and second motion or the six months wait. There will only be a petition filing date and evidence stage withing a month's timeframe. Is this true?
Does signing of this MCD make it final as an agreement for divorce? Can I back off from this MCD proceedings at any time if they do not withdraw/give no-objection for quashing of my criminal case? How do I handle this situation and be fool proof?

Thanks !

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9 Replies

SAINATH DEVALLA (LEGAL CONSULTANT) 25 May 2016

I am not going into the other detailss.When both of agreed for MCD,opt for it.Presence of both the parties is mandatory for obtaining MCD along with the MOU entered.

(Guest)

Do not fret too much about the mechanics of settlement. If the wife plays mischief after signing MoU the court will see through it. This is not a cat and mouse game where one can get divorce based on MoU but refuse to quash FIR later. These are court proceedings and all matters go on record.

Vijay Raj Mahajan (Advocate) 25 May 2016

Lot of hooch pooch created by your lawyers.

Just give power of attorney to someone may be your father or any other relative to do all these process in your behalf:

1. Sign the MOU wherein clearly mention of the compromise between both of you for divorce by mutual consent on payment of any alimony etc.

2. The quashing process in the High Court will be filled by you and get it quashed by your wife on the basis of the compromise.

3. The process of divorce by mutual consent, both motions to be attended and necessary process carried out in your absence by the power of attorney holder.

4. The process of quashing of the FIR and related matter in the court or with the authorities other than court to be attended and carried out by in your absence by the power of attorney holder.

5. The separate Special of power of attorneys for all these process in the family court as well the High court and in case a compromise is to be signed in the court of the magistrate where the criminal proceedings are pending, should be given by you, duly attested by Indian Embassy in USA.

The person who has been given power of attorneys get them further attested/signed in India in the SDM office where he resides.

The wife can do the same if she is unable to attend these processes in India in person.

As far divorce by mutual consent there is no rule that it will be done in one month where the two motions with time difference of six months will not be followed, wrong information given to you, most stupid lawyers try to twist the process according to their wimps that make the clients suffer in end.

Ask that stupid lawyer the case law where that was allowed. The condonation of six months is possible only in Supreme Court of India and not in any other subordinate court in India.

1 Like

A walk alone (-) 25 May 2016

There are two motions in MCD. Before filling MCD make yourself clear that you will withdraw in second motion if she dnt withdraw 498a case. You will pay one time alimony its should be clearly mentioned in MOU. Dnt pay anything without withdraw or pay very less amount because its possible she might after getting divorce dnt withdraw or give no-objection for quashing .

acdpvictim (self) 26 May 2016

Hi Thanks for all your valuable feedback.

There is no exchange of money involved as part of the compromise(atleast so far).

Please can you answer my Question #3 and #5 ?

SAINATH DEVALLA (LEGAL CONSULTANT) 26 May 2016

Answers for Ur question no (3) Yes and question no (4) Presence of both the parties is mandatory.

acdpvictim (self) 28 July 2016

Hello All, Thank You for your responses.

I have further questions based on the situation.

Situations :

1) I am from a state where currently lawyers are all on strike. All lower courts are shut down since a month.

2) High court is working.

3) In lower court, before there was a strike, the family court judge saw the MOU (signed only by parents) that we compromised. But, he said that he cant give divorce without both of us being present in the court. She and I, both are in US.

My high court lawyer went ahead and initiated Plan 1 as stated above. But, the high court judge keeps ignoring the petition and its been a month thats been happening. When asked by my lawyer, judge asked to file a new petition to speeden the process.

I am thinking, why should I even go through Plan 1, is there NO way to close all this without my presence in India?

How do I do that ?

Please help