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HIGHER STUDIES OF DOCTORS CANNOT BE DETERRED BY ANYONE, DELHI HC GRANT RELIEF TO DNB GENERAL MEDICINE & ORTHOPEDIC SURGEON ASPIRANT.

The Delhi High Court has allowed the plea filed by Legalmax’s Advocate Mr. Shakti Narayanan. Hon’ble High Court allowed this plea of the doctors and has issued directions to the National Board of Examination to freeze the seats allotted to the doctors and also directed NBE not to carry forward the allotted DNB seats of the doctors in second round of counseling so that they can pursue DNB General Medicine & Orthopedic Surgeon (Broad Specialty) course respectively.
The observation was made by the Delhi bench of Hon’ble Justice Mr. Jayant Nath during a hearing of the Writ Petition filed by the doctors seeking directions from the court to direct Medical Superintendent of their department to give study leave and relieving order and further direction for National Board of Examination to freeze their DNB allotted seats.
Via the petition, the Petitioners submitted and informed the court that they are MBBS doctors working on regular basis in department of Aruna Asif Ali Govt. Hospital, 5-Rajpur Road, Delhi-54 under the Ministry of Health and Family Welfare in the State of Delhi which is a Government organization. Since they wanted to pursue Post Graduate Course in Medical Service, they participated in the competitive examination National Eligibility Cum Entrance Test-PG 2020 and ultimately, they had been selected by National Board Of Examination for admission to the course of Post Graduate in DNB sponsored General Medicine (Broad Specialty) & Orthopedic Surgery respectively. Accordingly, the allotment order was given by the National Board of Examinations, according to which, the petitioner was asked to report to the allotted Institution on 31.08.2020.
In anticipation of such a selection, the petitioners had written an application to the Medical Superintendent of their department to provide them relieving order and study leave for joining their respective courses. However, it was not accepted. As a result, the petitioners were not able to join the allotted Institution till date for the admission to DNB course, for which they were selected. Therefore, in this regard, they had then mailed an application to the National Board of Examination to extend their joining by six weeks but the same was also rejected by National Board of Examination.
Aggrieved, the petitioners had moved the court seeking relief. In response to the petition, Advocate Shakti Narayanan contending on behalf of the petitioners submitted that the Petitioners had taken due permission and No Objection Certificate from the Competent Authority before the counseling and it was clearly mentioned in the No Objection Certificate that if they are allotted a seat during the sponsored DNB counseling 2020, they shall be relieved from the parent department for the duration of Post-Graduation Course and shall also be given the salary as per rules from the parent department. However, contrary to the assurance and the No Objection Certificate the Competent Authority has not so far relieved the Petitioners as a result of which they are unable to join their Merit Sponsored DNB seats. Advocate Mr. Shakti Narayanan argued the matter and added that the Petitioners are estopped by National Board of Examination from their right to join Merit Sponsored DNB seats despite the fact that the Petitioners have already paid the course fee of Rs.1,25,000/-(Rupees one lakh twenty five thousand only) with a view to freeze their allotted seats.
Learned Advocate Mr. Shakti Narayanan submitted that any further delay by the Competent Authority in sanctioning the study leave and relieving the Petitioners, shall result in the Petitioners losing their seat in the PG Course at the respective hospitals.
In response to the petition, the Counsel contending on behalf of National Board of Examination submits that no such kind of NOC has ever given to the petitioners.
After hearing the submissions from both sides, Hon’ble Justice Mr. Jayant Nath noted that chance of studying higher specialty course comes after a great deal of struggle. Hon’ble Justice noted the submission of the petitioners’ counsel that the DNB sponsored training will be another crown to Petitioners. The Counsel Mr. Shakti Narayanan further added that this Petition is an illustration of Petitioners battling for their right. Petitioners are MBBS doctors serving the humanity. He further added that in the field of Medicine, we need more qualified people with updation that alone will help the Society at large, as they can bring so many successes in the field of Medicine for the benefit of humanity.
Further, the Hon’ble Justice Mr. Jayant Nath while disposing of the petition issued a set of directions to the National Board of Examination to freeze the DNB seats allotted to the Petitioners and also directed NBE not to carry forward the allotted seats of the Petitioners in second round of counseling. Hon’ble Justice further directs the Medical Superintendent of Aruna Asif Ali Govt. Hospital who is the first respondent herein to allow study leave of the Petitioners and relieve them to join their sponsored DNB allotted

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Maintenance Right of A Woman under Section 125 of CrPC

Marital disputes are increasing in India and cases like dowry, divorce, maintenance, domestic violence are increasing in courts. Here we will discuss about the maintenance cases. The word ‘Maintenance’ is not defined in the Code of Criminal Procedure, 1973. It has been observed that whenever a woman approaches the court against her husband, she makes a maintenance claim. It is the responsibility of the husband to take care of his wife and children and even in the event of a dispute, the court orders the husband to give interim maintenance to the wife several times. Under Section 125 of the Criminal Procedure Code 1973, the wife claims maintenance from her.

Although this law provides for the maintenance of dependents including wife, children, parents, but here we will let you know here the topic of maintenance between husband and wife. Indian law entrusts the person with the responsibility of the maintenance of his wife, children and elderly parents. There are many decisions of the courts in relation to maintenance, in which a person is called social responsibility for the maintenance of his dependents.

Who will be entitled to maintenance?

Under Section 125 of the Criminal Procedure Code, the following people are eligible to receive maintenance.

  1. Wife who is unable to maintain herself.
  2. Minor child who is unable to maintain, whether the child is a religious or a transgressor or married or unmarried. If a child is unable to maintain himself due to any physical or mental disability or due to damage.
  3. Parents of the person who are unable to maintain themselves.

Is Strict Proof of Marriage  required u/Section 125 CrPC for claiming Maintenance?

Supreme Court in Kamala and ors. v. M.R. Mohan Kumar

The Supreme Court in this recent case has reiterated the settled principle of law that unlike other matrimonial proceedings, a strict proof of marriage is not essential in claim of maintenance under Section 125 of CrPC and that when the parties live together as husband and wife, there is a presumption that they are legally married couple for claim of maintenance under Section 125 CrPC.

The Two-Judge Bench of the Supreme Court in view of the evidence and material available on record allowed the appeal holding that there was a valid marriage between the parties and moreover a strict proof of marriage was not a pre-requisite for claiming maintenance under Section 125 of CrPC

According to Section 125 of the Code of Criminal Procedure 1973 provides for the maintenance of a wife that (1) if a person with adequate means: (a) his wife, who is unable to maintain himself, or (b) his religion or wrongdoing Whether it is married or not to a minor child, who is unable to take care of himself, then take care of him.

The court may, while pending proceedings in relation to the monthly allowance for maintenance under this sub-section, direct such person to interim maintenance of his wife or child as the court may deem fit, the monthly allowance and such expenses of the proceedings to person to whom the court should direct from time to time.

Provided further that any application of monthly allowance and proceedings for interim maintenance under the second proviso shall be disposed of within such time as possible, sixty days from the date of service of such person. Under “wife” there is also a woman whose husband has divorced her or who has divorced her husband and who has not remarried.

(2) Any such allowance for maintenance or interim maintenance and from the date of the order of expenditure for the proceedings or, if such order is made, from the date of application for maintenance or interim maintenance and expenses of the action, as the case may be. Will be payable

(3) If any person who has been ordered fails without sufficient reason to comply with that order, then for each breach of that order, any such magistrate shall issue a warrant for the levy of such amount to be levied in such manner. Such person as is provided for levying fines and after the execution of that warrant the whole allowance for unpaid maintenance or interim maintenance as the case may be and the expenditure of the proceeding or any part thereof are ordered to be paid. The court may serve a sentence of imprisonment up to the time of repayment. Provided that no warrant shall be issued for the recovery of the amount due under this section until the application has been made to the court for the levy of that amount within a period of one year from the date on which it became due. Provided further that if such a person proposes to maintain maintenance on the condition that his wife stays with him and she refuses to live with the husband, the court may consider any grounds for the alleged refusal by him and such establishment Even if done, she may make an order under this section if it is resolved that there is an equitable basis for making such order. If the husband has married another woman or has made the other woman his mistress, this would be considered to be a justifiable basis for his wife’s refusal to live with him. The court may quash the order on the proviso that a wife, in whose favor an order is made under this section, refuses to live with her husband without sufficient cause or they are estranged from mutual consent.

The excuse taken by the husbands to avoid maintenance:-

If the wife is doing a job, it is often argued on behalf of the husband, because Section 125 of the Criminal Procedure Code 1973 states that the husband will provide sustenance to the wife who is unable to maintain herself. If the wife does a job, then in the maintenance case, the husband takes advantage that the wife is not incapable, as stated in the Act. The husband side tries to base the wife’s earnings. There are some cases in which the husband has taken the plea that the wife is capable of earning herself, so her maintenance application should be rejected.

The Supreme Court has an important decision in this matter. The judgment of Shailaja and others vs Khubanna SC 2017 states that the wife is capable of earning and the wife is earning, these two things are different. The wife does not lose her support simply because she is able to earn.

In the case of Rajesh v. Sunita and others, the Punjab and Haryana High Court held that it is the ultimate duty of a husband to take care of his wife and children, whether he has to beg, borrow or steal. In this case, the husband had not paid the maintenance to his wife for almost four years, after which the court sentenced him to 12 months. Apart from this, if it is proved on the part of the husband that the wife remains separated from him without any reason, then the courts while listening to the wife’s application for maintenance, consider this fact.

The High Court thus, while making reference to Apex Court’s judgment in Sunita Kachwaha and ors. V. Anil Kachwaha, noted that even if the wife was earning some amount that may not be a reason to reject her application for maintenance outright.

It was also stated by the High Court that as held by the Apex Court in a catena of decisions, the concept of sustenance does not necessarily mean to live the life in penury and roam around for basic maintenance. The wife is entitled in law to lead a life in the same manner as she would have lived in the house of her husband with respect and dignity.

That the husband is not entitled to contend that he is not prepared to pay any maintenance and the courts are not expected to accept the blatant refusal of the husband with folded hands. If the Family Court decides to deny interim maintenance to the wife or pay a lesser amount than claimed to the minor child, it can only be on legally permissible reasons and not on the strength of a memo filed by the husband.

Can Husband Claim Maintenance from wife?

Yes the husband can claim maintenance from the wife. The Courts have time and again remarked that maintenance is to be paid to husband only if he is incapable or handicap. In a recent case of Nivya V.M. v. Shivaprasad N.K., the Kerala High Court dismissed husband’s claim for maintenance from his wife holding that maintenance under Section 24 of Hindu Marriage Act, 1955 is to be paid to the husband only when he is able to prove any incapability or handicap.

The Court also observed that in absence of such circumstances as enumerated above, endowing maintenance on the husband would only promote idleness.

The Court also remarked that a husband seeking maintenance from the wife can be treated only as exceptional case as normally he has got the liability or obligation to maintain the wife and vice versa is only exceptional.

Steps involved in Maintenance case:-

  1. Hire an expert and experienced lawyer and file a maintenance petition/application before the concerned Family Court containing the facts of the case stating the circumstances on which the wife is claiming maintenance.
  2. The Ld. Judge of the Family court scrutinizes the petition and issues notice/summon to the husband against whom the wife has filed the Maintenance petition.
  3. The parties are directed to appear before the Court and Family court first try to reconcile/mediate them.
  4. If the reconciliation or mediation proceeding are successful; then the matter stands settled but if the mediation fails, then the Family court proceeds with the maintenance case on merits.
  5. The Family directs the opposite party to file a reply to the petition. The Family Court further asks both the parties to file a detailed income affidavit so that it can get information of income and liabilities of both the parties.
  6. The petitioner (almost the wife in every case) is directed to file the rejoinder to the reply filed by the opposite party/husband. At this stage the court decides the interim maintenance application of the petitioner.
  7. The court thus frames the issues involved in the case and ask both the parties to file evidence by way of affidavit.
  8. The petitioner is directed to lead its evidence by filing the relevant the relevant document, and by summoning all its witnesses.
  9. Thereafter the respondent/opposite party is directed to lead its evidence by filing the relevant the relevant document, and by summoning all its witnesses.
  10. The court orders for the final arguments and after hearing the arguments from the both the parties; the matter is decided by the court.
  11. The court finally passes the order/judgment where it may either dismiss the petition or allow the petition and directs the other party/respondent to pay monthly maintenance as directed by the court.

Our Law Firm deals with varieties of maintenance cases and complex family laws issues. Our integrity and diligence makes winning combination. When you are choosing the best maintenance lawyer or family law lawyer, in this situation you can completely rely on our Legal Firm.

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Laws Relating to Domestic Violence

Even in the twenty-first century, there has been no decrease in crimes against women in India. The agony is that far out, women become victims of crimes even in the walls of their homes. Domestic violence cases against women are increasing day by day. Prior to the year 2005, women had the right to register criminal cases against domestic violence. In such cases, proceedings under Section 498A of the Indian Penal Code, 1860 were conducted. In 2005, the ‘Protection of Women Suffering from Domestic Violence Act’ was passed, in which many new rights were given to women. The purpose of section 498A is to punish the offender, whereas the purpose of the Domestic Violence Act is to provide the victim a place to live, alimony, etc.

What is domestic violence?

Domestic violence has been given a very detailed definition under Section 3 of the Protection of Women from Domestic Violence Act. The following functions fall under the definition of domestic violence:-

  1. Physical Violence – Any act or conduct which causes physical pain, health or body danger or harm to the health or physical development of a woman shall be considered as physical violence of the woman. Attack on women or use of criminal force will also be considered as physical violence. For example – beating the woman, not treating the sick woman, etc.
  2. Sexual Violence – Any act or conduct that is insulting or insulting the woman in a sexual way or harming the dignity of the woman will be considered as sexual violence. Forced sex and marital abuse will also come under the purview of sexual violence.
  3. Verbal and emotional violence – Insulting or ridiculing or deriding a woman and insulting or ridiculing her for not having a boy or child will be considered verbal and emotional violence. Abusing a woman, using abusive language or threatening to harm her relatives will also come under this purview.
  4. Economic misuse– Any financial or economic resource which the woman is legally entitled to or deprived of the woman or jointly owned property etc. will be considered as economic violence. If it is understood in easy terms, then selling any property in which the woman owns the property or to terminate the ownership of a woman will also come under this ambit. To deprive the woman of any such resource or facility or to obstruct the use of which the woman is entitled to use, such works also fall under this scope. For example– in a common household, a woman should be prevented from using water, electricity etc.
  5. Demand for dowry- Dowry or illegal demand of any valuable property also comes under the purview of domestic violence. In this regard, harming or harassing women also comes under the purview of domestic violence. In this regard, harassment of women with the view of threatening women relatives also comes under the purview of domestic violence.
  6. To cause mental or physical harm to a woman in any other way is also subject to domestic violence.

Who is the victim woman?

Any woman who is or has been in a domestic relationship with any man and is a victim of domestic violence can seek any solution or relief under this Act. Domestic relationship under the Act means that two persons who live or have lived in the same house and have relationship of blood relation, marriage or adoption will be considered as domestic relationship. A joint family who lives in the same house will also fall under this definition. Women living in a live-in relationship can also demand their rights under this act against domestic violence.

The Supreme Court has confirmed this in the 2010 D. Velusamy vs. D. Patchayammal case.

  1. Having noted the relevant provisions in The Protection of Women from Domestic Violence Act, 2005, we may point out that the expression `domestic relationship’ includes not only the relationship of marriage but also a relationship `in the nature of marriage’. The question, therefore, arises as to what is the meaning of the expression `a relationship in the nature of marriage’. 
  2. In our opinion a `relationship in the nature of marriage’ is akin to a common law marriage. Common law marriages require that although not being formally married:-

(a) The couple must hold themselves out to society as being akin to spouses.

(b) They must be of legal age to marry.

(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.

(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

In our opinion a `relationship in the nature of marriage’ under the 2005 Act must also fulfill the above requirements, and in addition the parties must have lived together in a `shared household’ as defined in section 2(s) of the Act. Merely spending weekends together or a one night stand would not make it a `domestic relationship’.

Against whom can a complaint be filed?

Under the Act, the aggrieved woman can lodge a complaint against any adult man with whom she has been or is living in a domestic relationship. A married woman or a woman living in a live-in relationship can file a complaint against her husband or live-in partner or her relatives. Relatives include both male and female relatives. The person involved in the domestic violence is called the defendant or respondent.

Sandhya Wankhede vs. Manoj Bhimrao Wnakhede 9. that a wife or a female living in a relationship in the nature of marriage can, not only file a complaint against her husband or male partner but also against relatives of the husband or male partner. The term “relative” not having been defined in the Act, it could not be said that it excluded females from its operation.

By whom and who should register a complaint?

It is not only the victimized woman who has the right to complain of domestic violence. Any person can file a complaint on behalf of the victim. Apart from the victim woman, any of her relatives, social workers, NGO, neighbors, etc. can also file a complaint on behalf of the woman. It is not necessary to register a complaint that an incident of domestic violence has already taken place. If anyone fears that domestic violence can be done against a woman, then a complaint can also be filed.

The redressal process starts with the complaint. Complaints of domestic violence can be made before any police officer, protection officer, Magistrate and service provider. Service providers are those voluntary organizations and companies registered to act in the interest of women and registered as service providers under the Act. The service provider has the right to make a domestic violence report, conduct medical examination of the victim and provide shelter to the victim woman. Magistrate means any judicial magistrate first class under whose jurisdiction the person committing the violence resides or under whose jurisdiction the incident of violence has occurred. Conservation Officers are appointed under this Act and generally there is a Protection Officer in every district.

Relief available to the aggrieved under the Protection of Women from the Domestic Violence Act

  1. Section 17 Right to reside in a shared household.

The Supreme Court in S.R Batra vs. Taruna Batra held that as regards Section 17(1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household, and a `shared household’ would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member.

  1. Section 18 Protection Order – Section 18 of the Domestic Violence Act relates to protection order. In terms of Section 18 of the Act, intention of the legislature is to provide more protection to woman.
  2. Section 19 Residence Order- It states that a Magistrate may on being satisfied that domestic violence has taken place pass a residence order.

In Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel and ors. The Supreme Court held that Domestic Violence Act provides for a higher right in favor of a wife. She not only acquires a right to be maintained but also thereunder acquires a right of residence. The right of residence is a higher right. The said right as per the legislation extends to joint properties in which the husband has a share.

It was furtherheld that when it comes to maintenance of wife under the Domestic Violence Act read with the Hindu Adoption and Maintenance Act, 1956 it is the personal obligation of the husband to maintain his wife. Property of mother-in-law can neither be subject matter of attachment nor during the life time of husband can his personal liability to maintain his wife be directed to be enforced against such property

4. Section 20 Monetary Relief– Section 20 of the Act empowers the court to order for monetary relief to the “aggrieved party.

5. Section 21 Custody orders- Under the Domestic Violence Act, 2005; the Magistrate is empowered to pass appropriate Orderswith respect to the custody of any child or children of the parties before it. He may also allow or refuse visitation right to the other party

6. Section 22 Compensation orders.—In addition to other reliefs as may be granted under this Act, the Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent

7. Section 23 Ex-parte order-(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent.”

The Hon’ble Delhi High Court in Bharat Bararia vs Priyanka Bararia, CRL. MC. 4936 of 2015, held that:“22. Sub-clause 2 of Section 23 of DV Act empowers the Magistrate to pass such interim order as he deems just and proper therefore, it is well within the jurisdiction of the Magistrate to grant the interim ex parte relief, if the Magistrate is satisfied that the application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence.”

If you are the one who is facing Domestic Violence and willing to file a Domestic Violence case through an expert lawyer; we assure that you are on the best platform. We are the one who make sure that legal services are consistent and timely. We ensure that our clients get quality oriented services. Each matter is unique and each solution is carefully crafted. Our best domestic violence lawyer has abilities to think outside the box. Our top lawyers provide good solution to each situation.

 

 

 

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An Emotional Decision-Divorce

Divorce is a serious, stressful, life-altering experience with many emotional and legal consequences. Divorce law provides the framework that governs the circumstances under which a marriage maybe brought to an end and spouses are free to remarry. If you are thinking about divorce, you might be confused by all the different legal terms associated with divorce and how divorce actually works. We here will provides an excellent explanation for some very common legal terms associated with divorce, such as “grounds for divorce,” marital property, and alimony.

In India people files two types of divorce cases. One with mutual consent and other is without mutual consent. Based on this we can divide divorce proceeding in two types:-

  1. Contested Divorce
  2. Mutual Divorce

Contested divorce– Under the Hindu Marriage Act any one of the aggrieved spouses under section 13(1) can approach the court of law and seek the remedy of divorce. Section 13(2) provides the grounds on which only the wife can approach the court of law and seek the remedy of divorce.

Grounds of Divorce as per the Hindu Marriage Act

a. Adultery– Adultery means after the solemnization of the marriage, anyone whether the husband or wife had voluntary sexual intercourse with any person other than his or her spouse. In India, earlier, adultery was a criminal offence but in a recent Supreme Court judgment adultery has been decriminalized. But it still can be used as a ground to seek divorce from a spouse who has been committing adultery.

Anandram vs Smt. Laxmi Bai-In this appeal it was alleged by the appellant that wife who was the respondent never resided continuously with the appellant and she had physical relationship with some other persons prior to the marriage with the appellant, because of which a child was born within 7 months from the date of performance of marriage. It was alleged that respondent has physical relationship with number of other persons and on these grounds, decree for dissolution of marriage was prayed for. This appeal was disposed off by the Chhattisgarh High Court and decree of divorce is granted on the ground of adultery.

b. Cruelty– Cruelty may be both physical and mental. The physical cruelty means when one spouse beats or causes any bodily injury to the other spouse. Mental cruelty means that either the spouse is mentally tortured by the other spouse.

Vinita SaxenavsPankajPandit- The Supreme court granted a decree of divorce in favor of the wife.It was held by Supreme Court that “As to what constitutes the required mental cruelty for the purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home.

If the taunts, complaints and reproaches are of ordinary nature only, the court perhaps need consider the further question as to whether their continuance or persistence over a period of time render, what normally would, otherwise, not be so serious an act to be so injurious (14 of 15) [CMA-1900/2004] and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer.” The courts allowed the appeal and relievethe appellant from shackles and chain of the respondent and let her live her own life, if nothing less but like a human being.

c. Desertion– Desertion means the permanent abandonment of one spouse by the other spouse without any reasonable justification and without his consent. If one of the parties deserts the other one without giving any reasonable reason, then, it is a good reason to obtain a divorce from the other.

In Geeta Jagdish Mangtant Vs. Jagdish Mangtant {AIR 2005 SC 3508}, the Supreme Court, after narrating the evidence available in the case, held that the conclusion is inevitable, that there was never any attempt on the part of the wife to go to husband’s house, therefore, from this fact alone animus deserendi on the part of the wife is clearly established. She has chosen to adopt a course of conduct which proves desertion on her part and that it was without a reasonable cause. Such a course of conduct over a long period indicates total abandonment of marriage. It also amounts to willful neglect of the husband by the wife.

d. Conversion -Converting to another religion by a spouse is another reason to claim divorce from the other.

In Sarla Mudgal, Kalyani and Ors. V. Union Of India and Ors. The Supreme Court considered the question whether a Hindu husband by embracing Islam can contract a second marriage during the subsistence of the first marriage and whether the husband would be guilty of the offence under Section 494 of the Indian Penal Code. It was held thus.

14. It is, thus, obvious from the catena of case law that a marriage celebrated under a particular personal law cannot be dissolved by the application of another personal law to which one of the spouses converts and the other refuses to do so. Where a marriage takes place under Hindu Law the parties acquire a status and certain rights by the marriage itself under the law governing the Hindu Marriage and if one of the parties is allowed to dissolve the marriage by adopting and enforcing a new personal law, it would tantamount to destroying the existing rights of the other spouse who continues to be Hindu. We, therefore, hold that under the Hindu Personal Law as it existed prior to its codification in 1955, a Hindu marriage continued to subsist even after one of the spouses converted to Islam. There was no automatic dissolution of the marriage

e. InsanityIf the spouse is unable to perform the normal duties that he or she is required to perform due to some mental illness or disorder then, in that case, divorce can be sought. However, if the mental illness does not hamper the capabilities of the person from performing his or her duties then the divorce cannot be claimed.

In Pankaj Mahajan vs. Dimple, the husband sought divorce on the ground that the wife was suffering from incurable form of Schizophrenia. The Trial Court granted divorce, but the High Court reversed the same. When the husband appealed to the Supreme Court, the Supreme Court predominantly went by the evidence relating to cruelty and granted dissolution of marriage.

f.  Leprosy-If the spouse has been suffering from some virulent and incurable form of leprosy, then, the aggrieved can seek divorce. Leprosy is an infectious disease of the skin, mucous membranes, nervous system etc. this disease is transmitted from one person to another. Thus it is considered as the valid ground for divorce.

In Swarajya Lakshmi Vs. G.S Padma Rao- The Supreme Court granted a decree of divorce on ground of leprosy. In this case, the husband filed the case for granting the divorce on the ground of leprosy. He claimed that his wife is suffering from incurable leprosy with the expert’s reports.

g. Venereal DiseaseUnder this concept, if the disease is in communicable form and it can be transmitted to the other spouse, then this can be considered as the valid ground for divorce.

h. Renunciation– It means when one of the spouses decide to renunciate the world and walk on the path of the God, then the other spouse can approach the court and demand the divorce. In this concept the party who renunciates the world is considered as civilly dead.

IllustrationA and B got married and lives a happy life. One day A decides to renunciate the world. Here, B has a right to approach the court and seek the remedy of divorce

i.Presumption of Death– In this case, the person is presumed to have died, if the family or the friends of that person does not hear any news about the person alive or dead for seven years. It is considered as the valid ground for divorce, but the burden of proof is on the person who demands the divorce.

Illustration– X was missing from the last seven years and his wife Y does not get any news about him of being alive or dead. Here Y can approach the court and ask for the divorce.

How to File a Contested Divorce

  1. The aggrieved party will have to hire anexpert divorce lawyer first, so that he/she can provide them with all the details.
  2. A petition will be filed on behalf of the husband or wife in the court by the lawyer.
  3. Court issues summons and seek reply from the other party. A copy of the petition will be then sent to the spouse.
  4. The spouse could either agree to divorce or contest against it.
  5. Examination and cross-examination of witnesses and evidence.
  6. Final arguments by the lawyers of both the parties.
  7. The completion of the procedure will depend on the circumstances of the case.

In case of a contested divorce, the period is longer, ranging from three to five years because of complications and possibility that either party can challenge the decision in the High Court and Supreme Court.

Divorce with Mutual Consent

As per section 13B when both the parties i.e. husband and wife mutually consents to end their marriage, then, in that case, the married couple can seek a divorce from the courts. However, the court will not automatically dissolve the marriage. It is necessary to show that the couple has been living separately for over a year or two.

Steps involved in Mutual Consent Divorce

  1. First Motion involves joint filing of divorce petition.
  2. Husband & wife appear before court to record statements after filing of first motion petition.
  3. Court examines petition, documents, tries reconciliation, records statements.
  4. Court passes order on First Motion.
  5. Cooling off period of six months given to couple by court to rethink decision. However this cooling off period can be waived by court.
  6. Filing of Second Motion is done within 18 months of First Motion.
  7. Decree of divorce passed by the court.

The cooling off period of 6 months in mutual consent can waive by court.

In Amardeep Singh Vs. HarveenKaur

This is a landmark judgment case in which the Supreme Court held that the six months period, i.e., the cooling-off period is not mandatory under the section 13B of HMA.The Court held that the provision of the cooling-off period is a directory provision and can be waived off under certain circumstances. In this case, the parties were living separately for 8 years and with mutual consent decided to apply for divorce. The parties pleaded for the waiving off the provision of the cooling-off period given under section 13B (2) of the Act since they had been living separately for the past 8 years and there was no chance of reconciliation. The Court also held that the courts have the liberty to exercise their discretion of waiving off this provision depending on the facts of the case.

The Court stated that the courts while deciding the matter under this aspect can consider the following points before giving judgment:

  • That the period of six months mentioned in section 13B (2) in addition to the period mentioned in section 13B (1) has been over before the first motion of the petition.
  • That there is no chance of reconciliation between the parties. 
  • That the parties based on their mutual understanding have settled the issues like alimony, child custody, or any other issue.
  • That the application for waiver of the cooling-off period is submitted after the first week of the first motion specifying the reasons for the same.
  • That the cooling-off period would only increase their agony.
  • That if the above conditions are satisfied the court can choose to waive the period 
  • That the period mentioned in section 13B (2) is not mandatory but directory and the courts have full discretion to decide the matter on the basis of the facts and circumstances of the case. Also, such proceedings can be carried out through video conferencing.

Documents required in filing Divorce Petition

  • Address proof of husband.
  • Address proof of wife.
  • Marriage certificate.
  • Four passport size photographs of both husband and wife.
  • Evidence should be there which proves that both the husband and wife have been living separately.
  • Evidence proving that the attempts were made to reconcile but were not successful.
  • Income tax statements of the last two-three years.
  • Details of the profession and present remuneration of the petitioner.
  • Information regarding the family background of both the parties.
  • Details of the property owned by the petitioner.

If you are looking for top divorce lawyer in Delhi, you can reach to our law firm. We have a team of experienced family lawyer to help you in complex and tough divorce litigation. Our team of professional lawyer work hard to provide you hassle free legal assistance in matter related to divorce law.

 

 

 

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Law On Anticipatory Bail

Criminal law is the body of law that defines criminal offenses, regulates the apprehension, charging, and trial of suspected persons, and fixes penalties and modes of treatment applicable to convicted offenders. There are two types of laws; procedural law and the substantive law. Substantive Law is the written or statutory law and Procedural Law is the law which deals with enforcement of substantive law. The procedural law for the criminal proceeding is defined under the Code of Criminal Procedure (CrPC).

Before going into the insights of the topic, the matter which comes into consideration is what is an anticipatory bail? In simple words, anticipatory bail means a stay order on the arrest of the accused. Section 438 of the Code of Criminal Procedure, 1973 deals with the provisions regarding the Anticipatory Bail. The Hon’ble Supreme Court has held that “Anticipatory bail is a court directive in which a person is granted bail before he is arrested, i.e. the accused person will not be arrested in this case. Under the Criminal Law of India, any person can apply for anticipatory bail on the possibility of being arrested for a non-bailable offense. It may be noted that the court can grant conditional advance bail after the hearing and this bail can continue till the police is investigated. In the year 1980, in the case of Gurbaksh Singh Sibbia v. State of Punjab, a five-judge bench of the Supreme Court had said that section 438 (1) should be interpreted keeping in mind the Article 21 of the Constitution. According to the Supreme Court, the plea relating to anticipatory bail should be based on solid evidence and not on vague or general allegations and the application should contain all the necessary facts related to the crime and the proper arrest of the applicant should also be clearly answered in the application.

 

Section 438 of the Code reads as under:-

“Direction for grant of bail to person apprehending arrest”

Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter-alia, the following factors, namely

  • The nature and gravity of the accusation;
  • The antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
  • The possibility of the applicant to flee from justice; and.
  • Where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, Either reject the application forthwith or issue an interim order for the grant of anticipatory bail:

Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this Sub-Section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application. […]

The power to grant anticipatory bail must be exercised by the Court in very exceptional cases. The court must be satisfied that there is a reasonable cause and a reasonable ground for grant of anticipatory bail. In Gurbaksh Singh Sibbia v. State of Punjab the Supreme Court held that: – “Before power under sub-section (1) of Section 438 of the Code is exercised, the Court must be satisfied that the applicant invoking the provision has reason to believe that he is likely to be arrested for a non-bailable offence and that belief must be founded on reasonable grounds. Mere “fear” is not belief, for which reason, it is not enough for the applicant to show that he has some sort of vague apprehension that someone is going to make an accusation against him, in pursuance of which he may be arrested. The grounds, on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the Court objectively. Specific events and facts must be disclosed by the applicant in order to enable the Court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the Section.”

Procedure for the Anticipatory Bail- In which court should the anticipatory bail petition is presented?

This is an important question that is known to very few people. Most lawyers also say that whether a procedure should be followed or not, first submit the application in the small court, if rejected, appeal to the court above it, but in the case of anticipatory bail, it is not mandatory to follow this procedure. The accused is free to present his plea in the District Court or High Court. And may submit an anticipatory bail petition wherever he wants. No anticipatory bail petition is dismissed in the High Court on this basis as it was not submitted before the District Court earlier. Both the courts i.e. Session Court and High Court can hear the anticipatory bail petition and if the judge feels that the police have registered a wrong case then he is free to give the benefit of anticipatory bail to the accused. Although there are no provision in Section 438 for issuing notice to the Public Prosecutor but it was held by the Supreme Court in Gurbaksh Singh Sibbia v. State of Punjaba notice should be issued to the Public Prosecutor or the Government advocate before passing final order granting anticipatory bail. Therefore, if there are circumstances justifying ex parte interim order, the court may pass such order, issuing notice to the Public Prosecutor by making it returnable and may pass final order after hearing both the sides.” After the 2005 amendment it is compulsory for the court to hear the Public Prosecutor. Justice Yashwant Verma of Allahabad High Court said that the provision of anticipatory bail has been implemented under the guarantee of personal freedom and unnecessary harassment as provided in the Constitution. After hearing the matter if the court is satisfied then the anticipatory bail is granted with the accused with some conditions.

  • A condition that the person shall make himself available for interrogation by a police officer as and when required;
  • A condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
  • A condition that the person shall not leave India without the previous permission of the Court;
  • Such other condition as may be imposed under Sub-Section (3) of section 437, as if the bail were granted under that section.

The Supreme Court had arranged in the case ‘Sumit Mehta v. Sarkar (2013) 15 SCC 570’ that it would have been the court’s responsibility to maintain a balance between personal liberty and police investigation rights while exercising powers vested under Section 438 of the CrPC . The purpose of imposing such conditions should be to eliminate the possibility of influencing the investigation. Thus any condition, which makes no reference to the fairness or justification of the investigation or hearing, cannot be an expression under the law and the court should exercise its authority with great restraint. “We also clarify that while granting anticipatory bail, courts are required to consider the nature and seriousness of the charges, the antecedents of the petitioner, such as his earlier involvement in such crimes and the petitioner’s escape from justice. Take into consideration and consider aspects. It is also the duty of the court to ensure that the charges against the applicant are not made to hurt his reputation or to arrest and degrade him? It is not necessary to mention here that the court is obliged to impose appropriate conditions under sub-section two of section 438 of the Code. ”

As mentioned, there is no fixed procedure for anticipatory bail. As the police have registered the case and the accused is in danger of being arrested. Therefore, it is advisable to hire best criminal lawyer. Once decided, the Lawyer would draft an anticipatory bail mentioning the reasons for the bail application and your version of the facts surrounding the matter. When the matter comes up for hearing, the Lawyer must appear and present the case. If the judge sees the case as fit, anticipatory bail is provided to the accused. In case anticipatory bail application is rejected in the Sessions Court, the application can be made in the High Court. If the High Court also rejects the bail, the application can be made in the Supreme Court.

What is the validity of an Anticipatory Bail?

Recently, the Supreme Court, in one of its judgments, said that no time limit can be set for the Anticipatory Bail and it can continue till the end of the trial. That anticipatory bail granted to accused on apprehension or threat of arrest should not be restricted by time, saying it was not in larger societal interest to limit the power related to liberty of citizens. It is said that such pre-arrest bail can continue even till the end of trial.

 

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