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Dowry deaths are violence by the husband and his family with a motive of extortion of gifts and other demanded from time to time against a woman. The unnatural death of recently married woman vital to women’s moment in the Indian society through the meaning of dowry has changed over time but harassment and cruelty have remained the same to some extent. We all must have heard many cases related to the death caused to a woman for the demand for dowry. It’s very disgraceful for a society where a woman dies for not being able to give dowry and also very shameful where dowry is still being practiced.

To deal with this brutal kind of social evil section 304 B Dowry death, Section 498A (Cruelty by Husband or in-laws i.e. domestic violence) 113 B (Presumption as to dowry death) was incorporated in Indian penal laws around 1986 to eradicate the nuisance of dowry death.

Dowry Death

Section 304B of the Indian Penal Code states that if a woman dies within seven years of marriage by any burns or bodily injury or it was revealed that before her marriage she was exposed to cruelty or harassment by her husband or any other relative of the husband in connection to demand dowry then the death of the woman will be considered as a dowry death.

Punishment for dowry death is a minimum sentence of imprisonment for seven years or a maximum sentence of imprisonment for life.

Essentials of Dowry deaths under section 304-B

1. Death was caused by burns or bodily injury or otherwise than under normal circumstances.
2. Death should have occurred within seven years of her marriage.
3. Woman must have subjected to cruelty or harassment by husband or his relatives.
4. Cruelty or harassment should be in connection with demand of dowry and soon before death.

CASE LAWS

In case of Sanjay Kumar Jain v. State of Delhi it was said that “The dowry system is a big slur and curse on our society, democracy and the country. It is incomprehensible how such unfortunate and condemnable instances of dowry deaths are frequently occurring in our society. All efforts must be made to combat and curb the increasing menace of dowry death. The legislature was seriously concerned about this unfortunate reality of our society and to curb combat the increasing menace of dowry deaths with a firm hand the Dowry Prohibition Act, 1961 was enacted.

 In case of Mustafa Shahadal Shaikh v. State of Maharashtra states that the language used under section 304-B “Soon before death” means no definite period has been mentioned under the Penal Code as well as under section 113-B of Indian Evidence Act. Accordingly, term “Soon before death” determined by Courts depending upon the facts & circumstances of case. However it would imply that interval should not be much between the cruelty or harassment concerned and death in question. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence. To curb the practice of dowry death there is an urgent need to take punitive and preventive measures with iron hands. At the same time law must be made more effective and police should be more watchful with respect to these offences.

Supreme Court always try to take a note of dowry abuse which results in dowry death. So, in the case of Rajbir v. State of Haryana apex court directed to registrar generals of all high courts to circulate to all trial courts add section 302, IPC to charge of section 304B IPC so that death sentences could be imposed on heinous and barbaric crimes and stated that dowry death cases to be charged both under section 302 and 304B of IPC. After the Apex Court decision, a person convicted of dowry death would be charged under section 302 as well as section 304-B of IPC.

Cruelty on woman by Husband or Relatives

Section 498A, IPC: – When her husband or his family member subjects the woman to cruelty or harassment. Cruelty by his husband or relatives has been made punishable with imprisonment up to three years and fine u/s 498-A. The word cruelty means both mental and physical torture. It consists of any willful conduct likely to drive the woman to commit suicide or to cause danger to her life, limb or health, mental or physical or harassment to coerce her or any other person by making an unlawful demand for dowries such as property or any goods.

In the case of Arnesh Kumar v. State of Bihar the petitioner approached the Supreme Court by way of special leave petition for grant of anticipatory bail in which he was unsuccessful earlier. Section 498A of IPC was enacted with avowed object to combat the menace of harassment to a woman by husband and his near relatives. Supreme Court said that it is a fact that section 498A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provision that is used as a weapon rather than shields by disgruntled wives, the simple way to harass is to get the husband and his relatives arrested under this provision. In a quiet number of cases old and bed-ridden fathers and mothers of husband, their sister living abroad who never meet with each other will also get arrested so the Apex Court gave following directions before arresting under section 498A of IPC:-

1. State government to instruct Police not to arrest without a warrant unless feels necessity and fulfilments of all parameters laid under section 41 of Cr.PC
2. All Police officer shall provide with a check list containing specified sub-clauses under section 41(1)(b)(ii) and must be filed and furnish the reason and material which necessitated the arrest.
3. The magistrate while authorising the detention of the accused shall peruse the report furnished by the police and after recording its satisfaction may authorize detention.
4. The decision not to arrest was forwarded to magistrate within two weeks from the date of institution of the case with a copy that arrests not made under offence referred.
5. When, such person, at any time, fails to comply with terms of notice or unwilling to identify himself then the police may arrest for offence mentioned in the notice.

Is Dowry death a bailable and a cognizable offence?

Bailable Offences– Offences in which the permission from the court to release the arrested person is not required. The arrested person by fulfilling the necessary requirements can be released and the police cannot refuse the person.

Cognizable Offences- Offence in which the police have the authority to arrest any person without any warrant and also has the authority to start an investigation with or without any permission of the magistrate by filing FIR.

Dowry death is a non-bailable and cognizable offence. 

Some stringent penal provisions have been enacted or amended from time to time to stop from taking and demanding dowry. Under section 3 of the act giving and taking of dowry is punishable with a minimum term of 5 years and a fine of Rs 15,000 or value of dowry whichever more. Similarly demanding of dowry is also punishable under section 4 for the term of six months to five years and fine up to Rs 15,000. After a couple of amendment the act tries to curb this social menace. Section 7 provides persons and agencies who may initiate the proceedings (a) police (b) aggrieved person (c) parents and relatives (d) any recognised welfare institution or organisation Section 8 tries to make act harsher by adding offences under the purview of non-bailable and cognizable. Further section 8-A states that burden of proof lies on person who denies offence.

“Dowry” as a practice is deeply rooted in Indian society, and cannot be completely abolished. The main reason that this practice cannot be abolished is the thought and mindset of Indians. In India, a boy is made highly educated so that parents can demand a big dowry for him in marriage. The more educated a man is, and the more stable his financial position is, the more dowry he takes.
Dowry laws have come under criticism as they have been misused by women and their families. Going through such a situation is not an easy task however, if you want to file a case against your husband and your in-laws, the process can be made easy with the guidance of our expert Dowry Cases Lawyer in Delhi who are experts in handling any kind of dowry cases. Legalmax law firm has Expert Lawyers for Dowry Case in Delhi who can fight for Your Right.
Our lawyers have experience in handling all kind of dowry related proceedings in India. Having a lawyer which is expert in dowry cases by your side will help you to erase the stress of court proceeding and it will also help you in obtaining a desirable outcome. If you are going through such a situation, you can take guidance from our best dowry matter lawyers in Delhi.

 

In matrimonial disputes, maintenance is one of the common issues. In fact in almost every matrimonial case, maintenance is being sought by the wives, irrespective of their qualifications and earning status. Generally, maintenance is being sought by the wives as they are substantially dependent upon their husbands for their financial needs and wants, if not for the other things. The law is quite clear on the issue of maintenance, but there is still some doubt over the scope of the provision qua educated, well qualified and earning wives.

Maintenance has been defined under the Hindu Adoption and Maintenance Act, 1956 as: 

“Maintenance” includes:

(i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment;

(ii) in the case of an unmarried daughter, also the reasonable expenses of an incident to her marriage;

Moreover, there are various other provisions which pave way to the wives to seek maintenance.

Section 24 of the Hindu Marriage Act, 1955 provides right to the party who has insufficient independent income to support himself or herself as the case may be to seek for maintenance pendelite from the other party. It is apposite to mention that section 24 grants right to maintenance to both the parties i.e. husband and wife to seek interim maintenance during the pendency of the matrimonial dispute.

Section 125 of the CrPC,

inter alia, provides right to the wife, who doesn’t have sufficient means to support herself, to seek maintenance from her husband who has refused to maintain her. Unlike section 24 of the Hindu Marriage Act, the section doesn’t furnish any benefit to the husbands. However, this provision is open to all the wives irrespective of their religion as the same is not restricted to a particular religion.

Section 18 of the Hindu Adoption and Maintenance Act, 1956 provides right to a wife to seek maintenance from her husband. 

Section 23 of the Protection of Women from Domestic Violence Act, 2002 (hereinafter the “DV Act”) empowers the Magistrate to pass interim and ex parte order qua maintenance to the wife where the wife has been the victim of domestic violence or there is likelihood that the husband (or any other respondent) may commit an act of domestic violence.

Moreover, wife can also avail the benefit under Section 36 of the Special Marriage Act, 1954 which empowers them to seek maintenance from her husband during the pendency of the matrimonial dispute provided she has no sufficient means to maintain and support herself.

Justice Krishna Iyer in his judgment in Captain Ramesh Chander Kaushal v Mrs. Veena Kaushal & Ors.1 held that the object of maintenance laws is :

“9. This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article (3) reinforced by Article 39. We have no doubt that sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is (1978) 4 SCC 70.

Possible to be selective in picking out that interpretation out of two alternatives which advances the cause — the cause of the derelicts.” The legislations which have been framed on the issue of maintenance are the Special Marriage Act 1954 (“SMA”), Section 125 of the Cr.P.C. 1973; and the Protection of Women from DV, 2005 which provide a statutory remedy to women, irrespective of the religious community to which they belong, apart from the personal laws applicable to various religious communities.

Various case laws have been discussed herein after which have defined, modified restricted and enlarged the scope of right to maintenance for educated, qualified and earning wives.

A. Relevance of qualifications and independent income of the wives

Since the issue pertaining to maintenance can’t be decided with the straight jacket formulae, resultantly there is more than one judicial opinion on a similar point of law. However, the court often tried to elucidate various factors in order to adjudicate the issue of awarding maintenance. The Hon’ble High Court of Delhi in the case titled “Sh. Bharat Hegde vs. Smt. Saroj Hegde” has curbed out 11 (eleven) factors qua the same and among those 11 (eleven) factors ‘Independent Income and the Property of the Claimant’ (in most of the cases, wife) is one of the factors which can assist the court to arrive at a reasonable and justified amount. Thus, it is quite clear that the income of the wives play a major role in their application seeking maintenance from their husbands.

The Hon’ble Supreme Court of India in the case of Sunita Kachwaha vs. Anil Kachwaha has elucidated the following pre conditions qua the claim of maintenance from the husband under section 125 of the CrPC.

• Wife being unable to maintain herself.
• Husband has sufficient means to maintain her.
• Husband has neglected to perform his duty to maintain his wife.

Furthermore, the Hon’ble Court also said that merely because the wife is earning some money doesn’t debar her to claim maintenance from her husband. 

In the case titled Shalija & Ors. Vs. Khobbanna the Hon’ble Supreme Court held that ‘capable of earning’ and ‘actually earning’ are two different concepts and merely because the wife is capable to earn money doesn’t give sufficient reason to the court to reduce the maintenance awarded to her. Here, the Hon’ble Court clearly held that the qualification of the wife per se doesn’t create any barriers for the wives to seek maintenance from their husbands.

B. Mere earning is not sufficient 

The Hon’ble Supreme Court in the case titled Chaturbhuj vs. Sitabhai has categorically held that merely because the wife earns some amount doesn’t disqualify her to seek maintenance from her husband under section 125 of the CrPc. 

C. Where the wife was earning more than her husband

In the case titled Amit Kumar vs. Navjot Dubey, the Hon’ble High Court of Punjab and Haryana refused to interfere with the decision of the lower court where the maintenance pendent lite under section 24 of the Hindu Marriage Act, 1956 was provided to the wife who was earning more than her husband. However, she was taking care of her two children. The Hon’ble High Court vide the aforesaid order affirmed the right to maintenance for working wives. 

The Hon’ble High Court of Calcutta in a recent case, Ramiz Raza vs. The State of West Bengal & Ors. has held that a wife has statutory right to seek maintenance from her husband irrespective of the fact that whether she is an earning individual or not. The relevant excerpt of the Hon’ble Supreme Court is as follows:

“It is well settled, by virtue of the decision of the Supreme Court in the case of Bhagwan Dutt (supra) that even a wife having a substantial income of her own or even a working lady is entitled to claim maintenance from her husband. Though initially it was a misconception that a working woman is not entitled to claim maintenance since she has some substantial income and is able to maintain herself, but in view of the decision rendered by the Supreme Court in the said case it is evident that she can claim maintenance even though she is an earning lady.”

At last, it can be inferred from the above said statutory provisions and the case laws that the earning wives do have right to seek maintenance subject to the income status of both the parties and the gap between the wives’ incomes and their needs and wants.

Legalmax 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.

If you have any query for your maintenance matter, feel free to consult us on 9654340611.

Any act or omission which is prohibited by law and is punishable by law is a crime. The punishment for such crime is decided by following procedures of criminal trial. The criminal trials in India are well established statutory, administrative and judicial framework. The whole criminal law consists of three main acts –

1. Indian Penal Code, 1860
2. Code of Criminal Procedure, 1973
3. Indian Evidence Act, 1872.

Code of Criminal Procedure (Cr. P. C.) is the procedural law for conducting a criminal trial in India. The procedure includes the manner for collection of evidence, examination of witnesses, interrogation of accused, arrests, safeguards and procedure to be adopted by Police and Courts, bail, the process of criminal trial, a method of conviction, and the rights of the accused of a fair trial by principles of natural justice.

Indian Penal Code (IPC) is the primary penal law of India, which applies to all offences. Indian Evidence Act (IEA) is a comprehensive, treaty on the law of “evidence”, which can be used in the trial, the manner of production of the evidence in a trial, and the evidentiary value which can be attached to such evidence.

Types of Criminal Trial

According to the Code of Criminal Procedure, a Criminal Trial is of three types. Depending upon the type of criminal trial the different stages of a criminal trial are discussed below.

1. Warrant trial
2. Summon trial
3. Summary trial

Warrant Cases

According to Section 2(x) of Code of Criminal Procedure, 1973 a warrant case is one which relates to offenses punishable with death, imprisonment for life or imprisonment for a term exceeding two years. The trial in warrant cases starts either by the filing of FIR in a police station or by filing a complaint before a magistrate. Later, if the magistrate is satisfied that the offense is punishable for more than two years, he sends the case to the sessions court for trial. The process of sending it to sessions court is called “committing it to sessions court”.

Important features of a warrant case are:

• Charges must be mentioned in a warrant case
• Personal appearance of accused is mandatory
• A warrant case cannot be converted into a summons case
• The accused can examine and cross-examine the witnesses more than once.
• The magistrate should ensure that Section 207 of Cr. P.C. 1973, include the supply of copies such as police report, FIR, statements recorded or any other relevant document to the accused.
• The stages of trial in warrant cases are given from Section 238 to Section 250 of the Code of Criminal Procedure, 1973.

Different Stages of Criminal Trial in a Warrant Case when instituted by the police report

• First Information Report: Under Section 154 of the Code of Criminal Procedure, a FIR or First Information Report is registered. FIR puts the case into motion. A FIR is information given by someone (aggrieved) to the police relating to the commitment of an offense.
• Investigation: The next step after the filing of FIR is the investigation by the investigating officer. A conclusion is made by the investigating officer by examining facts and circumstances, collecting evidence, examining various persons and taking their statements in writing and all the other steps necessary for completing the investigation and then that conclusion is filed to the magistrate as a police report.
• Charges: If after considering the police report and other important documents the accused is not discharged then the court frames charges under which he is to be trialed. In a warrant case, the charges should be framed in writing.
• Plea of guilty: Section 241 of the Code of Criminal Procedure, 1973 talks about the plea of guilty, after framing of the charges the accused is given an opportunity to plead guilty, and the responsibility lies with the judge to ensure that the plea of guilt was voluntarily made. The judge may upon its discretion convict the accused.
• Prosecution evidence: After the charges are framed, and the accused pleads guilty, then the court requires the prosecution to produce evidence to prove the guilt of the accused. The prosecution is required to support their evidence with statements from its witnesses. This process is called “examination in chief”. The magistrate has the power to issue summons to any person as a witness or orders him to produce any document.
• Statement of the accused: Section 313 of the Criminal Procedure Code gives an opportunity to the accused to be heard and explain the facts and circumstances of the case. The statements of accused are not recorded under oath and can be used against him in the trial.
• Defense evidence: An opportunity is given to the accused in a case where he is not being acquitted to produce so as to defend his case. The defense can produce both oral and documentary evidence. In India, since the burden of proof is on the prosecution the defense, in general, is not required to give any defense evidence.
• Judgement: The final decision of the court with reasons given in support of the acquittal or conviction of the accused is known as judgement. In case the accused is acquitted, the prosecution is given time to appeal against the order of the court. When the person is convicted, then both sides are invited to give arguments on the punishment which is to be awarded. This is usually done when the person is convicted of an offense whose punishment is life imprisonment or capital punishment.

Stages of Criminal Trial in a Warrant Case in Private Complaint case

• On the filing of the complaint, the court will examine the complainant and its witnesses on the same day or any other day to decide whether any offense is made against the accused person or not.
• After examination of the complainant, the Magistrate may order an inquiry into the matter and submit a report for the same.
• After examination of the complaint and the investigation report, the court may come to a conclusion whether the complaint is genuine or whether the prosecution has sufficient evidence against the accused or not. If the court does not find any sufficient material through which he can convict the accused, then the court will dismiss the complaint and record its reason for dismissal.
• After examination of the complaint and the inquiry report, if the court thinks that the prosecution has a genuine case and there are sufficient material and evidence with the prosecution to charge the accused then the Magistrate may issue a warrant or a summon depending on the facts and circumstances.

Summon Cases

According to Section 2(w) of Code of Criminal Procedure, 1973, Those cases in which an offense is punishable with an imprisonment of fewer than two years is a summon case. A summon case doesn’t require the method of preparing the evidence. Nevertheless, a summon case can be converted into a warrant case by the magistrate if after looking into the case he thinks that the case is not a summon case.

Features of summons case

• A summons case can be converted into a warrant case.
• The person accused need not be present personally.
• The person accused should be informed about the charges orally. No need for framing the charges in writing.
• The accused gets only one opportunity to cross-examine the witnesses.
• The different stages of criminal trial in a summon case are given from Section 251 to Section 259 of the Code of Criminal procedure.

 Stages of Criminal Trial in a Summons Case

• Pre-trial: In the pre-trial stage, the process such as filing of FIR and investigation is conducted.
• Charges: In summons trials, charges are not framed in writing. The accused appears before the court or is brought before the court then the Magistrate would orally state the facts of the offense he is answerable.
• Plea of guilty: The Magistrate after stating the facts of the offense will ask the accused if he pleads guilty or has any defense to support his case. If the accused pleads guilty, the Magistrate records the statement in the words of the accused as far as possible and may convict him on his discretion.
• Plea of guilty and absence of the accused:  The absentee should also send a letter containing an acceptance of guilt and the amount of fine provided in the summons. The Magistrate can on his discretion convict the accused.
• Prosecution and defense evidence: In summons case, the procedure followed is very simple and elaborate procedures are eliminated. If the accused does not plead guilty, then the process of trial starts. The prosecution and the defense are asked to present evidence in support of their cases. The Magistrate is also empowered to take the statement of the accused.
• Judgement: When the sentence is pronounced in a summons case, the parties need not argue on the amount of punishment given. The sentence is the sole discretion of the judge. If the accused is acquitted, the prosecution has the right to appeal. This right to appeal is also extended to the accused.

 Summary Trial

Cases which generally take only one or two hearings to decide the matter comes under this category. The summary trials are reserved for small offenses to reduce the burden on courts and to save time and money. Those cases in which an offense is punishable with an imprisonment of not more than six months can be tried in a summary way. The point worth noting is that, if the case is being tried in a summary way, a person cannot be awarded a punishment of imprisonment for more than three months. The trial procedure is provided from Section 260 to Section 265 of the Code of Criminal Procedure.

 Stages of Criminal Trial in Summary Cases

• The procedure followed in the summary trial is similar to summons-case.
• Imprisonment up to three months can be passed.
• In the judgement of a summary trial, the judge should record the substance of the evidence and a brief statement of the finding of the court with reasons.

In a criminal trial judge follow the due process of law as per Code of Criminal Procedure (CrPC) 1973, Indian Penal Code (IPC) 1860 and Evidence Act, 1872. By referring all the relevant law court ensures accused a fair trial. The procedure for a Criminal Trial is governed by Code of Criminal Procedure (CrPC) 1973. Therefore, the role of a criminal lawyer is very important in order to ensure a fair trial. The Indian Evidence Act plays a very significant role in a process of trial. The detail treaty on the law of Evidence which can be tendered in a court, the way of production of the evidence in trial and the value attached to such evidence is very crucial.

Legalmax is one of the best law firms for criminal trial cases. Anyone who is searching for the best criminal lawyers can contact us for their speedy dismissal of a criminal case. We have already set a benchmark in the legal world, and this is why choosing us always renders gainful results and Legal Victory.

 

The concept of protection of rights of the consumers is not new; rather it is a practice that has been present in the society and various countries in one form or the other historically. In India, the Consumer Protection Act was enacted in the year 1986 with an aim to provide more protection to consumers against the evil practices of the market. It effectively deals with the problems faced by an individual consumer and has no express provisions regarding “maintaining or increasing supplies of any essential commodity or for securing their equitable distribution, and availability at fair prices or dealing with persons indulging in hoarding and black-marketing of, and profiteering in, essential commodities and with the evil of vicious inflationary prices”.

The Act is seen as an attempt to remove the helplessness of consumers against the powerful and dominant players like the merchants and businessmen. The greatness of the Consumer Protection Act lies in its flexible legal framework, wider jurisdiction, and inexpensive justice. One can find in this legislation a mixture of principles of torts and contracts.

Who Is A Consumer?

As per sec. 2(d) of the Act, ‘consumer’ has been defined as any person who:

• buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment, and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
• hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment, and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person.

In the case of Consumer Unity and Trust v. State of Rajasthan and others 1991 (CPR) State Commission Jaipur, it is stated that the following are the conditions required to claim as a consumer.

1) He should be served.

2) The service should be hired by him.

3) For the hire of the service, he should pay the return as per Section 2 (1) (d) (2) of the Act

In the case of M / s Cosmopolitan Hospital v. Basant Nayar 1992 (1) CPJ 302 National Commission, treatment was received by the complainant on consideration. The complainant comes under the category of consumer; the complaint presented by him against the hospital is prevalent.

In another case, the complainant was ill. The complainant received medical services in a private hospital by reward. The tenant had given ten thousand rupees to the hospital. The hospital suggested that specialist services should be obtained. The complainant paid the fee to the defendant for obtaining the services of a specialist. The fee in the hospital was given to the specialist concerned. In this situation the consumer situation of the complainant was to be considered. In the case of presenting a complaint against both the complainant hospital and the concerned specialist, it is considered to be the status of the consumer.

In the event of borrowing a vehicle, the borrower is considered to be a consumer Surendra Kumar Aggarwal became Telco Finance Limited 2006 CPJ 68 State Commission Chhattisgarh In this case it was argued that the complainant had purchased the vehicle in question for commercial purpose. Therefore, the status of the complainant was not a consumer under the Act. Determined by the State Commission that we find that the dispute is in relation to providing finance service in purchasing the vehicle in question. The position of the complainant was considered as a consumer. The decision by the National Commission in this regard expressed reliance on the National Insurance Company 2005 A CPJ 27 National Commission against Harsolia Motors. The objection of the complainant not being a consumer was invalid. The corporation is not a consumer The corporation had submitted a complaint in the case of Punjab Land Development v. Mahendra Jeet Singh 2004 (3) 156 CPJ Union Territory Commission Chandigarh. The corporation’s position was not considered consumer.

Jurisdiction of Consumer Forum

In India consumer court is categorized in hierarchal ways:-

• The top most is National Consumer Disputes Redressal Commission (NCDRC). A top consumer matter lawyers files a consumer claim before NCDRC if the value of the claim exceeds 1 crore. Our best delay possession lawyers also files cases before NCDRC against the fraud builders.
• The second one is the State Consumer Dispute Redressal Commission where the matter is filed by our best consumer lawyers if the value of the claim exceeds 20 lakhs but is within 1 crore.
• The third is the District Consumer Dispute Redressal Forum. Our team of best consumer lawyers represents the cases before various District Forum if the value of the claim is upto 20 lakhs.

Who can file a consumer complaint?

1. A consumer to whom the goods are sole or are agreed to be sold or service has been rendered or agreed to be provided.
2. A firm, irrespective of it being registered or unregistered.
3. An individual.
4. A Hindu undivided family.
5. An association of persons or a cooperative society.
6. State Government or Central Government.
7. Legal heirs of the consumer if he/she is deceased.

Procedure for Filing a Complaint

A complaint can be filed by a complainant against the seller, manufacturer, or dealer of goods which are defective or against the provider of services if they are deficient in any manner whatsoever. An unfair trade practice or restrictive trade practice can also invite complaint.

Having proof along with your complaint is an essential point and makes your case stronger since the beginning. Copies of documents like cash memo, receipts, agreements, copy of the bill of the goods bought, warranty and guarantee documents and also a copy of the written complaint and notice made to the trader requesting him to rectify the product, etc., are to be submitted along with the complaint. The complainant is required to file three copies of the complaint, together with enclosures, for official purpose plus copies for the number of Opposite Parties. In case the transaction took place on an online platform, the consumer must contain with him prints of the information exchanged via e-mails, the record exchanged via e-mails.

Also, certain fee has to be paid along with the complaint. This is a nominal amount prescribed by the redressal forum according to the amount of compensation claimed. It is to be paid via postal order or a demand draft.

Consumer Protection Act (CPA), 2019

The new Consumer Protection Act, 2019 effectively replaces the nearly three decade old Act and tried to mold itself to live up to the expectations of a digitalized-modern-consumer. The Digital Age has ushered in a new era of commerce and digital branding, as well as a new set of customer expectations. Digitization has provided easy access, a large variety of choice, convenient payment mechanisms, improved services and shopping as per convenience. However, along the growth path it also brought in challenges related to consumer protection.

Rights of Consumers

The new act has defined some rights of the consumers. They include six rights which are as follows:

• Right to be protected against the marketing of goods, products or services which can be hazardous to life and property
• Right to be informed about the quality, quantity, potency, purity, standard and price of goods, products and services
• Right to be assured of access to goods, products and services at competitive prices.
• Right to be heard at appropriate forums
• Right to seek redressal against unfair trade practices that are involved in exploitation of customers
• Right to consumer awareness

Set out below are some of the Key Highlights of the New Act:

• Enhancement of Pecuniary Jurisdiction:Revised pecuniary limits have been fixed under the New Act. Accordingly, the district forum can now entertain consumer complaints where the value of goods or services paid does not exceed Rs. 10,000,000/-. The State Commission can entertain disputes where such value exceeds Rs.10, 000,000/- but does not exceed Rs.100,000,000/-, and the National Commission can exercise jurisdiction where such value exceeds Rs. 100,000,000/-
• E-Filing of Complaints: The New Act provides flexibility to the consumer to file complaints with the jurisdictional consumer forum located at the place of residence or work of the consumer. This is unlike the current practice of filing it at the place of purchase or where the seller has its registered office address. The New Act also contains enabling provisions for consumers to file complaints electronically and for hearing and/or examining parties through video-conferencing. This is aimed to provide procedural ease and reduce inconvenience and harassment for the consumers.
• Establishment of Central Consumer Protection Authority: The New Act proposes the establishment of a regulatory authority known as the Central Consumer Protection Authority (CCPA), with wide powers of enforcement. The CCPA will have an investigation wing, headed by a Director-General, which may conduct inquiry or investigation into consumer law violations. The CCPA has been granted wide powers to take suo-moto actions, recall products, order reimbursement of the price of goods/services, cancel licenses and file class action suits, if a consumer complaint affects more than 1 (one) individual.
• Product Liability & Penal Consequences: The New Act has introduced the concept of product liability and brings within its scope, the product manufacturer, product service provider and product seller, for any claim for compensation. The term ‘product seller’ is defined to include a person who is involved in placing the product for a commercial purpose and as such would include e-commerce platforms as well. The defense that e-commerce platforms merely act as ‘platforms’ or ‘aggregators’ will not be accepted. There are increased liability risks for manufacturers as compared to product service providers and product sellers, considering that under the New Act, manufacturers will be liable in product liability action even where he proves that he was not negligent or fraudulent in making the express warranty of a product. Certain exceptions have been provided under the New Act from liability claims, such as, that the product seller will not be liable where the product has been misused, altered or modified.
• Covers E-Commerce Transactions: The New Act has widened the definition of ‘consumer’. The definition now includes any person who buys any goods, whether through offline or online transactions, electronic means, teleshopping, direct selling or multi-level marketing. The earlier Act did not specifically include e-commerce transactions.
• Unfair Trade Practices: The New Act introduces a specific broad definition of Unfair Trade Practices, which also includes sharing of personal information given by the consumer in confidence, unless such disclosure is made in accordance with the provisions of any other law.
• Penalties for Misleading Advertisement:The CCPA may impose a penalty of up to Rs.1, 000,000/- on a manufacturer or an endorser, for a false or misleading advertisement. The CCPA may also sentence them to imprisonment for up to 2 (two) years for the same. In case of a subsequent offence, the fine may extend to Rs. 5,000,000/- and imprisonment of up to 5 (five) years. The CCPA can also prohibit the endorser of a misleading advertisement from endorsing that particular product or service for a period of up to 1 (one) year. For every subsequent offence, the period of prohibition may extend to 3 (three) years.

The New Act fixes liability on endorsers considering that there have been numerous instances in the recent past where consumers have fallen prey to unfair trade practices under the influence of celebrities acting as brand ambassadors. In such cases, it becomes important for the endorser to take the onus and exercise due diligence to verify the veracity of the claims made in the advertisement to refute liability claims.

• Provision for Alternate Dispute Resolution: The New Act provides for mediation as an Alternate Dispute Resolution mechanism, making the process of dispute adjudication simpler and quicker. This will help with the speedier resolution of disputes and reduce pressure on consumer courts, who already have numerous cases pending before them.

With the New Act all set to become the law, gone are the days, where the ‘consumer was asked to beware’. A consumer is now the one who assumes to be treated like a King. Hence, it is important for consumer driven businesses (such as, retail, e-commerce) to be mindful of the changes in the legal landscape and have robust policies dealing with consumer redressal in place. Consumer driven businesses must also strive to take extra precautions against unfair trade practices and unethical business practices.

Looking for a consumer lawyer, hire our best consumer matter lawyers. The lawyers at Legalmax Law Firm have wide experience to assist the consumer matters. Our best consumer lawyers use the strength of the consumer laws to safeguard the right of the consumer. Our law firm represents the consumer cases not only to recover the losses of the consumer but helps them to get the compensation they deserve.

 

 

The crime of rape has shaken the whole of India and this crime has emerged as an epidemic for Indian society. Several attempts are being made by the state and Indian legislation to stop this crime. In society, the crime of rape has come as a curse; efforts are being made to stop rape at various social levels. Not only adult women are victimized by crime like rape, but also the young girls are suffering from heinous crime like rape.

In the case of Shri Budhwar Gautam vs. Shubhra Chakravarti AIR 1996 SC 922, it has been held by the Supreme Court that the crime of rape is a crime against human rights. This violates the right to live. 

There are two sections in the Indian Penal Code regarding the crime of rape. Section 375 and Section 376 of IPC, 1860.

 Section 375 of the Indian Penal Code in relation to the definition of rape. This section provides a clear explanation of rape. Rape is a crime in which the consent of the woman with intercourse is questioned. Sexual intercourse is also defined under this section. At one time, penetration of the penis into the vagina was considered sexual intercourse, but changes were made to this definition over time.

In 2013, revolutionary amendments have been made under this section. Different definition of sexual intercourse is given. Sexual intercourse under Section 375 of the Indian Penal Code can be done as follows- A man –

(a) – enters his penis at any stage in a woman’s vagina, her mouth, urinary tract or anus, or by any of his Provides with another person or

(b) – any such object in a woman’s vagina, urinary tract, or anus, it covers any part of the body which is not gender to any extent or it does so with any other person Provides or

(C) – Hand wares any part of a woman’s body in such a way that a woman’s vagina, anus, urinary tract can be penetrated into any part of the body or does it with any other person or

(d)  – He puts his mouth on a woman’s vagina, anus, urinary tract or does it with her or any other person.

Any such act is subject to seven conditions, which are mentioned under Section 375 of the Penal Code, and then it is believed that he has committed rape. From the above definition of sexual intercourse, it appears that the definition of sexual intercourse within the penal code has been greatly expanded in favor of the woman and putting the vagina to the mouth or even the finger will be considered rape but having such sexual intercourse is also a crime.

Those seven circumstances are–

1. Against the will of the woman.
2. Without the consent of the woman.
3. The consent of a woman when her consent is obtained by putting her or any person with whom she is interested, in fear of death or injury.
4. With the consent of the woman when the man realizes that she is not his husband and has given the consent that she believes that there is another man with whom she is lawfully married or believes to be married.
5. When the woman gives her consent, at the time of giving such consent, she talks about what she consents to due to maladministration or abstinence, or because of a noun or unhealthy substance given by the man personally through someone else. , Is unable to understand the nature and consequences.
6. With or without the consent of the woman when she is under 18 years of age.
7. When a woman is unable to communicate consent. When it is sexual intercourse with a woman according to the definition of sexual intercourse given above in seven circumstances, the crime of rape is committed.

In relation to the crime of rape, the definition is very broad because not only consent is not considered a crime, but how this consent is taken has also been taken into consideration. This consent intimidation, intoxication. If it is taken from a woman or a deformed mind or from a woman unable to give consent, then sexual intercourse with such consent becomes rape.

In relation to a minor, sexual intercourse with a minor woman who is less than 18 years of age is considered rape. Even if she had consented to sexual intercourse, she had clearly given such consent. Even after such consent. The accused shall be deemed guilty of rape if he has intercourse with a woman below 18 years of age.

In this case Lalta Prasad vs State of Madhya Pradesh AIR 1997 SC 1276 has this case. There was no evidence that the girl was under 16 years of age, she had sexual intercourse without her consent and hence it was held that the accused was not guilty of rape. What evidence can there be in the crime of rape? There is a lack of direct witness in the crime of rape. The court has to take utmost care regarding the evidence in the rape case and carefully evaluate, analyze the case. Injured marks on the genitals of a woman aggrieved by rape, blood stains on her clothes, and then informing her parents immediately after the incident, some facts which are helpful in proving the crime of rape, hence the decision Time these facts should be kept in mind.

In the case of Bhupendra Sharma v. State of Himachal Pradesh, the Supreme Court has also determined that evidence of rape victim can be sufficient in rape cases, her affirmation is not necessary.

Similarly, in the case of Sudhanshu Shekhar Sahu v. State of Orissa AIR 2003 AC 4684, it has been said by the Supreme Court that the accused can be convicted only on the evidence of the rape victim, but she is safe and reliable. FIR in rape is a prima facie first information report in rape cases required to be filed immediately or there is no strict rule. Due to the fact that they can be pending, only on the basis of delay, the prosecution case cannot be considered untrustworthy.

In Dildar Singh vs State of Punjab. In this, student was raped by a teacher in his charge. She did not tell this thing to anyone due to fear, but when she came to know that she became pregnant, after 3 months, she was forced to tell the whole incident to her mother. Thus after 3 months the First Information Report was filed. The Supreme Court considered it excusable. The rape FIR can be delayed for some reason and the court may consider it a reasonable cause and the delay can be ignored.

Rape of wife. In some recent cases, the topic of rape of wife has also come out. In some cases the Supreme Court has also considered the registration of rape FIR by the wife as valid, but in later cases it was overturned. The second exception to section 375 states that any woman who is the wife of a man. If she is maltreated by her husband or is subjected to some other sexual act, then in such a situation she cannot bring a case of rape.

 If she is less than 15 years of age, then in such a situation she can bring a rape case and if she was mated to a woman younger than 15 years and had any of the following seven circumstances then it would have become a crime of rape. .

The accused of rape will be male only. The first word under Section 375 of the Indian Penal Code is male. Prosecution of rape on a woman cannot be conducted by making a man aggrieved because the word male is used at the beginning of the definition of rape.

Punishment for Rape

Section 376 provided for seven years of jail term to life imprisonment to whoever commits the offence of rape.

Latest Amendments in Rape laws

It is most important to discuss here that the nationwide public outcry, in 2012, popularly known as Nirbhaya Case following the December 16 gang rape and murder in Delhi, led to the passing of the Criminal Law (Amendment) Act in 2013 which widened the definition of rape and made punishment more stringent.

Parliament made the amendments on the recommendation of the Justice J.S. Verma Committee, which was constituted to re-look the criminal laws in the country and recommend changes.

The 2013 Act, which came into effect on April 2, 2013, increased jail terms in most sexual assault cases and also provided for the death penalty in rape cases that cause death of the victim or leaves her in a vegetative state.

It also created new offences, such as use of criminal force on a woman with intent to disrobe, voyeurism and stalking.

The punishment for gang rape was increased to 20 years to life imprisonment from the earlier 10 years to life imprisonment.

In January 2018, an eight-year-old girl in Rasana village near Kathua in Jammu and Kashmir was abducted, raped and murdered by a group of men. The news of the shocking act led to nationwide protests and calls for harsher punishment.

This led to the passing of the Criminal Law (Amendment) Act, 2018 which for the first time put death penalty as a possible punishment for rape of a girl under 12 years; the minimum punishment is 20 years in jail.

Another new section was also inserted in the IPC to specifically deal with rape on a girl below 16 years. The provision made the offence punishable with minimum imprisonment of 20 years which may extend to imprisonment for life.

The minimum jail term for rape, which has remained unchanged since the introduction of the IPC in 1860, was increased from seven to 10 years.

The Supreme Court has ruled that sex on the pretext of marriage is rape and a blow to the honour of a woman.

A bench of Justices L Nageswara Rao and MR Shah in their recent judgement observed that rape offends a woman’s dignity and esteem, and if for the fact the victim and her rapist have already settled in their lives and taking care of their families, could not be considered a ground to have the crime be null and void. 

The court observed that such incidents were on the rise in modern society. 

“It tantamounts to a serious blow to the supreme honour of a woman and offends both her esteem and dignity.”

The judgement came on a case registered by a woman accusing a Chhattisgarh-based doctor of raping her in 2013. The woman, a resident of Koni, Bilaspur, was familiar with the accused since 2009 and had a love affair. 

The accused had promised to marry her and their families were in the know of this. 

The accused was, however, engaged to another woman while he had the affair with the victim. He later broke his promise to the victim and married the other woman with whom he was engaged. An FIR was lodged against the accused and he was convicted of rape. 

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