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Anonymous
Asked July 15, 2016

settlement after 498A

  • 1 Answer
  • 1573 Views

My sister has filed a 498A case (dowery) against her husband in year 2007 in Indore. At that time statement of my father, mother, sister and our two witness were recorded. After some years, my father was expired. So my fathers' cross examination by opponent lawyer didn't happen in court. The cross examination of my mother has been done in court. The cross examination of my sister is still pending. After the cross examination of my sister, court may most likely announce the decision of the case in a few weeks. My sister has already obtained divorce and married again with another person and settled in Raipur. So, it is not convenient for her to appear in court frequently. She couldn't appear in court in some previous dates as we didn't receive any summon from court. Now, a bail able warrant is issued against my sister to present in court on 12th august 2016 . My sister has planned to appear in court on 12th august 2016. Now we want to settle this case outside the court. Other party is also agreed for settlement. The lawyer of opponent side suggest us to not file 482 for quashing in the High court as it may take some time and may be inconvenient for my sister because she is residing in Raipur and may have to come again. He suggest us another simper alternative- he told us that he would ask some question to my sister in trial court on the next date 12th august ( date of cross examination of my sister) and also would provide answer of those questions one day before. The answer would be in such a way that no punishment would be granted to my sister's husband. It would also not harm to my sister also in any way. My doubt is - 1) Should we trust opponents lawyer in this matter. Is it a safe option or should we go for section 482 for quash in the high court. 2) It is not convenient for my sister to frequently come from Raipur to Indore. Can we file section 482 in high court before 12th august and demand a dates from high court just before 12th august so that 498A can be quashed and my sister need not have to appear in trial court. In just a single travel of my sister from Raipur to Indore, can this case can be quashed from high court. Is it necessary for my sister to present in-person in high court to quash the 498A. 3) My sister had one daughter child from her husband. Her age is now 13 years. At the time of divorce, the age of daughter was 2-3 years. After the divorce till now, daughter has been residing with my sister. The daughter also want to live with her mother (ie. my sister). We want to keep child's custody with my sister. Thus, should we make an agreement for child's custody on stamp paper or we should mention this in the filing of 482 section in high court. What should be the procedure of keeping the child's custody. 4) If the other side doesn't cooperate in a) filling a 482 in high court or b) doesn't do cross-examination on the next date to unnecessarily delay the case to just trouble my sister as they know that it is difficult for my sister to come frequently from Raipur. In that situation, can we move this case from Indore court to Raipur court by telling court that her new husband doesn't permit her to appear Indore court frequently due to inconvenience to his old age parents as my sister has to manage all household things and in her absence it is very difficult to manage home at Raipur.

Answer 1

Default avatar
Shreya Mishra

Dowry cases are non compoundable that is the parties cannot reach a settlement between

themselves and notify the Court. Therefore you can only quash the proceedings under Section 482

of the Criminal Procedure Court. However there are certain guidelines to be followed which are laid

down by the Supreme Court.1 If the parties have reached an settlement between themselves, they

can ask the Court to quash the proceedings if the Court is satisfied that justice is secured to the

victim and the power of the Court is not misused. Further the Supreme Court has said that for

matters arising out of matrimonial disputes, if the parties are able to resolve it amongst themselves

then the Court should be in favour of quashing proceedings.

However, if you are only quashing proceedings because your sister has to travel from Raipur to

Indore, you can choose to file a Transfer Petition. The Gauhati High Court in the case of Sanjay Jalan

v. Sunita Jalan2recognized that the victim’s travelling, accommodation, minority of her child etc can

be valid points for asking for transfer of Petition. Further since she is married now and her in laws

are having difficulty because of her repeated travelling can also be a valid point. Therefore you can

effectively ask for transferring the case to Raipur and it will be declared in your favour most

probably.

Regarding the custody of the child, since she has been residing with you sister since 2007 and also

prefers her, the Court would take this into consideration. In cases of custody of child, the Court

considers the welfare of the child and which party can take better care of him/her. If a child is able

to express his/her desire of wanting to stay with a particular parent, the Court especially takes

cognizance of that desire. Therefore it would not difficult for your sister to take the daughter’s

custody.

With the growing number of false 498A cases registered, the Supreme Court has taken a firm stand.

Therefore if you go by the opponent lawyer’s suggestion, it might or might not cause a problem. The

Judge might conclude that your sister had filed a false case and your custody case can be

jeopardised. Therefore, it would be advisable to take a proper stand and quash the proceedings by

showing the Court that both the parties would like to settle the case amicably and outside the Court

as held in the case of Narinder Singh v. State of Punjab3

 

[1] http://www.livelaw.in/supreme-court-issues-fresh-guidelines-quashing-proceedings-non-compoundable-offence-basis-settlement-parties-read-judgment/

[1] https://indiankanoon.org/doc/341813/

[1] http://www.livelaw.in/supreme-court-issues-fresh-guidelines-quashing-proceedings-non-compoundable-offence-basis-settlement-parties-read-judgment/

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