My mother has filed a case under section 498A of IPC in the lower court. My mother is 50 years old and father is 58 years old and we all siblings have been witnessing the torture of my father over my mother since childhood. My father is an Islamic cleric and teaching Islamic studies in a madrasah under U.P. Govt. He always used to justify his acts and gaged our mouths. The present case in the lower court started with a conspiracy of few persons who provoked him to get married and sell all the property, for this he started torturing my mother to leave the home which is in Bihar. He sold the house in Bihar in which we are presently residing and registered it in the name of two persons (both from UP and his religious follower). Both of these men are witness ( Gawah) in the TALAQ letter which he sent to my mother through speed post. After sending the TALAQ letter he solemnised his marriage with a girl of tender age (19 years ). The lower court took cognisance in the case of 498A. He applied for anticipatory bail and the session court put the condition (15000 per month and rent of the building which he has already registered to both men) before granting bail which he conceded to abide by the condition in writing before the court but later refused to pay and moved to high court for the quashing of conditions. High court directed the court not to be prejudiced and to grant bail on its own merit of the case, still the bail is pending in the lower court as he is not ready for any condition and court don’ t want to provide bail without condition. In the meanwhile when I checked the high court’s website I found that he has filed a quashing petition of 498A in the high court the high court has put stay in the case in lower court the oral order is ... “3 Issue notice to opposite party no. 2 both by ordinary process as well as registered cover with A/D for which requisites, etc. must be filed within one week failing which the application shall stand rejected without further reference to a Bench. Put up this case immediately after receipt of service report. In the meantime, further proceedings in connection with Complaint Case (CA) No. 23 of 2016 pending before the learned Judicial Magistrate 1st Class, Purnea shall remain stayed.” What is the meaning of the above order? Can we provide cogent evidences in the high court and can stop his quashing petition ? If yes then what grounds are pertinent to produce before HC. When to file a reply if any , and what is its procedure? Can I represent my own case in HC? , if yes , then how .??
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Hello,
This means that the notice has been served upon you. As soon as you receive the notice, you can file a counter to the petition and can request the court to dismiss the petition.
Also, you can appear before the court in person but I would not advise you to do so, since legal questions are involved. If there are some financial crunches then request the court to appoint amicus for you.
Regards
Please note quashing of case can be done only after chargesheet is filed if primafacie in complaint if allegation is mentioned against your dad then chances of quashing the case is less. Notice to respondent here refers to state (probably) as once you file a.complaint with police the prosecution Will fight.case on behalf of you in state cases means cases ffalling uunder IPC. So you can contact the prosecution and help them in effectively representing the case to oppose quashing application filed by your dad
First relax. S you mother can represent her case in court of Law as PARTY-IN-PERSON. See movie OH MY GOD FOR ACADEMIC REFERENCE. You must make strong ground for case. As complaint of 498A after 7 years of marriage is not tenable. Make case 494 and other criminal acts. Thanks.
it means only interim stay order has been granted by HC pending service
2) you can oppose application of your father to quash 498A
3)file detailed reply opposing quashing being granted and rely upon evidence in your possession
4)it is better you engage a local lawyer to argue your case
1. It appears stay on the 498A case is made.
2.if that is so then the high court must have been misled to obtain such stay order.
3. Howeevr there is no nothing to worry as you can always file a petition for vacating the order of stay.The amount of proof on his continued disobedience to comply with the condition of bail would help to get the stay petition vacated.
4.Engage an advocate as he knows the procedue.You may not conduct the case soeffectively.in any event you can conduct your own case ,not that of your mother's.
Yes, you have to appear in the High Court and contest the claim of your father.
Since, he has already got a stay from the High Court, you will have to move a counter affidavit together with a stay vacation application.
You are advised to appear through an Advocate. Engage the services of a lawyer and he will be able to draft a reply for you.
The crux of the issue is 498a against which he has applied for bail and pending bail application, he has filed a quash petition and further directions.
The grounds are the unlawful talaq and the subsequent marriage.
The extent of cruelty inflicted on his wife, failure to abide by the lower court conditions, chances of tampering the witness and escape from the clutches of law.
A counter affidavit has to be filed detailing the grounds which forbid the maintainability of the petition.
You can represent if you are competent in legal and factual aspects.
1. I got this HC order from HC’s website. The petition mentions my mothers name in party no. 2. with full address. Yet I have not recieved any court order by post or any means. Is it beneficial to appear in the court and present counter petition in advance? 2. The order of HC doesn’t mention any clear date in which we can file the counter petition. Can I file it before we get any postal order from the court? If due to financial crunches (as I am studying and preparing for IAS),I have to request the court to appoint amicus. What is the procedure? Can the appointed amicus draft the petitions? 3. Is it permissible to move both petitions simultaneously .i.e. counter affidavit and stay vacation application. Or Which petition should be filed first ? 4. Yes, I will appear through an advocate. Is it mandatory for my mother to remain present in person? As HC is 600 km away from my native place. Can I alone with my advocate appear before the court? Please guide me ...
Dear Client,
Above order is not adverse and interim until petition not disposed or automatic disposed if her failed to comply with the order.
Appoint good advocate in High Court, if u really want justice.
Do u know how law deals with such quashing application?
Provide all the details to advocate, he will be in better position submit ur stand in court.
1) it is beneficial to appear in court and present reply on next date
2) engage lawyer on your behalf
3) better your mother appears in court
4) court would after hearing both parties pass orders vacating stay or allow quash petition
5) no separate application for vacating stay is required
1. if you wish to get the stay order vacated the your mother can appear and file the petition for vacating the stay.
2. Since your mother is a party to the proceeding she alone cna appear and oppose the stay. You can not appear and present her case,
3. Yes, all the petitions cna cases can be heard by the sam court simultaneously.
4. During hearing before the high court there is no maaate for personal attendance of the party unless so directed by court..
1. yes you must appear before the court at the earliest.
2. yes you can file the same, engage a local advocate.
3. Counter affidavit will be moved with the stay vacation application. Both the things will be moved together. Caption will be application for vacation of stay alongwith counter affidavit.
4. Presence of mother is not mandatory and neither your presence is mandatory in the court.
Let me know if I can be of some help.
regards
1. Since he has already obtained a stay order from the High Court, you have no option but to appear before the High Court and contest the claim of your father.
2. Yes.
3. Yes, move both the counter affidavit and the stay vacation application simultaneously.
6. Presence of your mother is not necessary unless the High Court calls for the same.
1. Unless the summons are served, you need not appear in person.
2. Once summons served, enter appearance and take time to engage a counsel and file counter.
3. Counter affidavit shall include the grounds for vacating the stay.
4. Not necessary, pleader is enough.
Once you appoint advocate you need not be present unless court direct. Secondly you can move application even if summons is not served on you personally....you can ask court to give free legal aid to you since you can't appoint counsel due to financial crunch
What is the meaning of the above order?
The high court has directed the petitioner to send notice to you and also stayed the proceedings in the trial court till then
Can we provide cogent evidences in the high court and can stop his quashing petition ?
You will get notice from high court after which you can enter appearance and produce the evidences in your side.
If yes then what grounds are pertinent to produce before HC.
Whatever grounds you rely upon, i.e., his tortures in the past.
When to file a reply if any , and what is its procedure?
You can file a reply immediately.
Can I represent my own case in HC? , if yes , then how .??
You can appear before high court on your own and express that you need time too file your counter.
1. You may await the notice from high court
2. Dont be in a hurry to file your counter even before you are getting any intimation.
3.. Yes both can be filed simultaneously.
4. Your advocate alone can appear, even your presence is not required.
The HC has stayed the matter in lower court. You will be served with notice and copy of petition. You need to file reply in the same. You can attach evidence you have to oppose the same before the court.
