Jan 2021
5th Jan 2021
LAWS RELATING TO DOWRY DEATHS
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.
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.
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.
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:-
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.
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
- Death was caused by burns or bodily injury or otherwise than under normal circumstances.
- Death should have occurred within seven years of her marriage.
- Woman must have subjected to cruelty or harassment by husband or his relatives.
- 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:-
- 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
- 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.
- 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.
- 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.
- 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.
Dec 2020
26th Dec 2020
DO EARNING WIVES HAVE RIGHT TO MAINTENANCE?
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.
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.
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.
1st Dec 2020
STAGES OF CRIMINAL TRIAL IN INDIA
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 –
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.
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:
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
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
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.
- Indian Penal Code, 1860
- Code of Criminal Procedure, 1973
- 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.
- Warrant trial
- Summon trial
- 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.
Nov 2020
30th Nov 2020
Stages in Contested Divorce
When the marriage does not result in marital cooperation and harmony, it results in a divorce. Divorce law provides the framework that governs the circumstances under which a marriage may be brought to an end and spouses are free to remarry. A divorce can be caused due to a few reasons and can be either a mutual divorce or a contested divorce. We here will provide an excellent explanation for contested divorce.
CONTESTED DIVORCE: A contested divorce is one where the husband or the wife wants a divorce, but the other spouse does not. Even when both the parties want a divorce, but cannot agree on any issue such as alimony, custody of children, etc., it is a case of contested divorce.
Grounds for a contested divorce
Naveen Kohli versus Neelu Kohli, (2006) 4 SCC 558 - It was held that the marriage had been destroyed past any expectation of salvation, the court held that open intrigue and the interests of all concerned lay in the acknowledgement, in law, of this reality. That despite the fact that the spouse was not pleasing to separation by common assent and appeared to have made plans to live in anguish just to make the life of her significant other a hopeless heck, open intrigue lay in the disintegration of the marriage bond. Keeping a hoax of marriage alive in law was held to be increasingly helpful for unethical behaviour and conceivably more biased to the open enthusiasm than the disintegration of a marriage. Not conceding a separation under such conditions was held to be awful for the gatherings. The allowing of separation would offer them the possibility, both mentally and inwardly, to settle down sooner or later and start another part throughout everyday life
Information/Documents required for contested divorce
Steps for filing a contested divorce
If you are looking for top contested divorce lawyer in Delhi, you can reach to our law firm. We have a team of experienced family court 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.
CONTESTED DIVORCE: A contested divorce is one where the husband or the wife wants a divorce, but the other spouse does not. Even when both the parties want a divorce, but cannot agree on any issue such as alimony, custody of children, etc., it is a case of contested divorce.
Grounds for a contested divorce
- 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.
- Cruelty-It is described as a deliberate act which can endanger physical and mental health. It can lead to suffering, mental or physical violence, and torture.
- 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.
- Religious Conversion-If one of the partners is no longer a Hindu, then the justification for divorce may be found in a Hindu marriage.
- Insanity–If 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.
- 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.
- Venereal Disease– Under 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.
- 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.
- 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.
Naveen Kohli versus Neelu Kohli, (2006) 4 SCC 558 - It was held that the marriage had been destroyed past any expectation of salvation, the court held that open intrigue and the interests of all concerned lay in the acknowledgement, in law, of this reality. That despite the fact that the spouse was not pleasing to separation by common assent and appeared to have made plans to live in anguish just to make the life of her significant other a hopeless heck, open intrigue lay in the disintegration of the marriage bond. Keeping a hoax of marriage alive in law was held to be increasingly helpful for unethical behaviour and conceivably more biased to the open enthusiasm than the disintegration of a marriage. Not conceding a separation under such conditions was held to be awful for the gatherings. The allowing of separation would offer them the possibility, both mentally and inwardly, to settle down sooner or later and start another part throughout everyday life
Information/Documents required for contested divorce
- Aadhar card of the Petitioner.
- Residence Facts of marriage between husband and wife.
- Photos of marriage of the husband and wife.
- Descriptions of husband’s and wife’s occupation and income today.
- Three financial years’ income tax statements and bank statements.
- The provisions / facts on which the divorce is filed.
Steps for filing a contested divorce
- Step 1:Drafting and submission of the petition (submissions for divorce) -The application drafted must be submitted to a family court together with the corresponding court fees. For the preparation of your petition, you need the right advice and guidance from a reputable and competent and experienced divorce lawyer.
- Step 2: A summons/notice is issued by a court of law to the second party. The purpose of a summons is to remind the other party that their wife/husband initiated the divorce process.
- Step 3: The party shall be present at the Family court on the day specified in the summons after the summons has been issued along with the reply/written statement.
- Step 4:After the submission of the reply, the parties to divorce must provide sufficient proof and evidence at the Court in this stage. The test and cross-examinations of the parties, witnesses and testimony must be performed before the courts by respective lawyers. This is an important step in the divorce process.
- Step 5: Argument - On the basis of documentary proof submitted and testimony, argument is made by the counsel of both of the parties.
- Step 6: Final Order- Upon effective completion of all the previously listed steps, the Court must issue a final order. If any party is not happy with the final order, the same can be questioned in superior courts.
If you are looking for top contested divorce lawyer in Delhi, you can reach to our law firm. We have a team of experienced family court 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.
10th Nov 2020
RIGHTS OF CONSUMER
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.
As per sec. 2(d) of the Act, ‘consumer’ has been defined as any person who:
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.
In India consumer court is categorized in hierarchal ways:-
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.
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.
The new act has defined some rights of the consumers. They include six rights which are as follows:
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.
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 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?
- A consumer to whom the goods are sole or are agreed to be sold or service has been rendered or agreed to be provided.
- A firm, irrespective of it being registered or unregistered.
- An individual.
- A Hindu undivided family.
- An association of persons or a cooperative society.
- State Government or Central Government.
- 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.
Oct 2020
24th Oct 2020
A Heinous crime “RAPE”
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-
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.
our Top criminal lawyers can help you in providing the top quality legal services that you expect. We represent our clients all over India in general and Delhi-NCR in particular.
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-
- Against the will of the woman.
- Without the consent of the woman.
- 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.
- 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.
- 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.
- With or without the consent of the woman when she is under 18 years of age.
- 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.
our Top criminal lawyers can help you in providing the top quality legal services that you expect. We represent our clients all over India in general and Delhi-NCR in particular.
17th Oct 2020
VICTIMS OF DOMESTIC VIOLENCE HAVE A RIGHT TO RESIDENCE AT SHARED HOUSEHOLD OWNED BY IN-LAWS
Women who have been thrown out of their in-laws' house due to a domestic dispute can now claim the right of residence in the “shared household” even if the house is owned by the in-laws.
In a judgment that would bring relief to many victims of domestic violence, a three-judge bench of the Supreme Court held that “shared household”, under the protection of women from Domestic Violence Act 2005, can also be a house owned by the joint family or any relative of the husband, provided that the woman has lived in that house after her marriage as a long-term resident “in a domestic relationship”.
“In the event, the shared household belongs to any relative of the husband with whom in a domestic relationship the woman has lived, the conditions mentioned in Section 2(s) are satisfied and the said house will become a shared household,” held the bench of Justices Ashok Bhushan, R Subhash Reddy and MR Shah.
This judgment would come as a massive relief to women who have been thrown out of the matrimonial home and denied relief on grounds that the house is the sole property of their father-in-law or mother-in-law.
The bench, in its 150-page verdict, observed that “domestic violence in this country is rampant and several women encounter violence in some form or the other almost every day, however, it is the least reported form of cruel behaviour.”
The bench also observed that the Domestic Violence Act 2005 was a “step to secure social justice by legislation”
The Act 2005 was enacted to give a higher right in favour of the woman. The Act 2005 has been enacted to provide for more effective protection of the rights of the woman who are victims of violence of any kind occurring within the family. The Act has to be interpreted in a manner to effectuate the very purpose and object of the Act,” said the court.
The judgment over-ruled a 2007 judgment in Tarun Batra case of a two-judge bench of the apex court, which had held that “shared household” is limited to a house that is owned or rented by her husband, or by the joint family of which the husband is a member.
Conditions on woman's right of residence
The bench has clarified that whether or not the residence is in fact a “shared residence” would be determined by the family court where the domestic violence case is being heard.
The court additionally said that “the right to residence under Section 19 is not an indefeasible right of residence in the shared household especially when the daughter-in-law is pitted against aged father-in-law and mother-in-law.”
“The senior citizens in the evening of their life are also entitled to live peacefully not haunted by marital discord between their son and daughter-in-law. While granting relief both in the application under Section 12 of Act, 2005 or in any civil proceedings, the court has to balance the rights of both the parties” the court has added.
Relief for the daughter-in-law would also depend on whether the allegation of domestic violence can be proved in the trial.
“It is to be observed that in a case any relief available under Sections 18, 19, 20, 21 and 22 is sought by the aggrieved person in any legal proceedings before a civil court, family court or a criminal court including the residence order, the aggrieved person has to satisfy by leading evidence that domestic violence has taken place and only on the basis of the evidence led on being satisfied that the domestic violence has taken place, the relief available under Section 19 can be granted...” the court said.
Case which led to the judgment
The observations have been passed in a case involving a domestic dispute where a couple married in 1995 and started living in the house owned by the father-in-law. In 2004, a separate kitchen was created on the first floor of the house where the husband and wife lived, while the in-laws lived on the ground floor. In 2014, the husband started living in the guest room on the ground floor, while the wife and children lived on the first floor.
The husband had initiated divorce proceedings in 2014, while the father-in-law filed a plea of injunction, to bar the woman from living in his house.
The trial court had passed an order in favour of the in-laws, which was overturned by the Delhi High court, which held that the woman did have the legal right to claim the right of residence.
The father-in-law then moved the apex court to decide on the legal issues of whether the daughter-in-law could seek rights of residence in his house.
The Apex court has now held that the trial court decision was incorrect, and has directed the trial court to re-adjudicate the matter.
“The claim of the defendant that suit property is shared household and she has right to reside in the house ought to have been considered by the Trial Court and non-consideration of the claim/defense is nothing but defeating the right, which is protected by Act, 2005” the SC has said.
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Sep 2020
28th Sep 2020
How succession is decided for the property of a Hindu woman who is deceased without a will
The Hindu Succession Act 1956 does not discriminate between Hindu men and Hindu women regarding any form of succession. This method is based on natural affection and scientific approach. It has been built by the Parliament of India on the basis of social harmony and equality. Under this Act, there is a separate scientific way of dividing the property of Hindu man in succession which is described under section 8 of this act.
Under the Hindu Succession Act 1956, the way a man is given rights in relation to succession to property. Similarly, if a Hindu woman is an intestate deceased, then in such a situation the rules of succession of her property have been determined under Section 15 of this Act and the order of heirs of the property of Hindu woman is mentioned under Section 16.
Section 15 of Hindu Succession Act, 1956
This is the second most important section of this Act. Under this section simple rules regarding succession of Hindu women are mentioned. After the passage of the Hindu Succession Act 1956, a Hindu woman has three types of assets.
He can devise his property anywhere. No law or rule prevents a person from making any will in relation to his property. Any Hindu man or woman can inherit his property anywhere and the offspring of a Hindu man cannot claim that he is entitled to inherit his property because any Hindu man or woman has absolute right. That he will devise his property anywhere. But if the Hindu man or woman does not die in respect of his property except by a will then the provisions of the Hindu Succession Act 1956 apply. Under these provisions separate rules have been prescribed for male and separate rules have been prescribed for Hindu woman. Under Section 15 of the Succession Act 1956, the rules for the right to property of a Hindu woman are described.
Under Section 30 of this Act, any Hindu woman can bequeath her property anywhere but she does not leave any will, then in such a situation, according to section 15, the succession of her property is decided. According to Section 15 of the Hindu Succession Act 1956, in the event of death of a Hindu woman, her property is devolved to the following persons-
1) Son, daughter and husband
2) Husband's heirs
3) Mother and father
4) To the heirs of the father
5) The order of succession of the property of any Hindu woman to the heirs of the mother is the same as the order of succession to the property of a Hindu male.
The property is first devolved to son, daughter and husband. If the dying Hindu woman does not have a son, daughter and husband, in such a situation the property is devolved to the heirs of the husband. If the husband's heir is also not available, then the property of the dying Hindu woman is devolved to her mother and father. If the mother and father are also not available, then the fourth heir is the heir to the father. If the father does not have an heir, in such a situation the fifth heir is the heir of the mother.
Certain features under this section, if any property is inherited by a Hindu woman from her parents, in the absence of the son or daughter of the deceased, the above heirs will be devolved to the heirs of the father and not to the order. Similarly, property received from husband or father-in-law will be devolved to the heirs of the husband if there is no son or daughter of the deceased. In this section, an attempt has been made to judge the property from which people get the property. The first succession is that of the son and daughters. If the son and daughter are not available, in such a situation, the property received in succession is devolved to those people from where that property is received by a Hindu woman.
For example, a Hindu woman has received a piece of land in succession from her father-in-law, now no child of this Hindu woman is available and there is also no objection to the child, in such a situation, the property obtained from the father-in-law does not belong to the husband. In the event of in-laws heirs will be devolved.
In the event of a Hindu woman receiving the property from the husband, the heirs of the husband will be devolved.
In the event of inheritance from her father, the heirs of the father will be devolved, but if a property is acquired by a dying Hindu woman herself, the rule for her property in such a situation would be that first of all the property. Succession will be devolved. After that, the second succession will be devolved, followed by the third answer will be devolved to the officers. The first heirs exclude the second heirs.
Under this Act, a Hindu woman's son and daughters mean the son and daughter received from her womb and the sons and daughters adopted by her husband. If a Hindu woman has 2 sons and their two fathers are different, in such a situation, both her sons will get the property of the Hindu woman. This clause does not apply in such a situation if her step-son means that if her husband has given birth to a son or daughter from another woman. Under the Hindu Adoption Act, when a husband or wife accepts an adoption, the wife also agrees in such a situation, if a Hindu man has adopted a son, then that adopted son will have the same inheritance in the property of the Hindu woman. Who has a son born from his womb.
In the case of Laxman Singh v. Krupa Singh AIR 1986 Supreme Court 1616, it has been pointed out that as far as the step-son is concerned, he does not fall under the extension of Section 15 (1) (a). In the case of Kampo Bai v. Deviram 1982 Revenue Decision 14 Madhya Pradesh, it has been said that under section (a) of section 15 (1), the reference to the daughters and daughters of the daughters is from their own daughters. Her husband's other wife's sons and daughters are not included. Step sons will not come under the subdivision and step daughters will also not come.
The heir of a Hindu woman is firstly her sons, daughters and husbands but here the situation of husband is entangled. That is, sub-section 2 of section 15 provides that if a Hindu woman has inherited the property and has no son or daughter, then in such a situation and the property is devolved to the heirs of the same person. Property received in succession. For example if a woman inherits any property from the father in succession. The woman has no children and does not adopt any adoptions and dies intestate. Now in such a situation, the inheritance which she received will be devolved to the heirs of her father and not to her husband. It simply means that the heirs of the party from whom the property is received in succession will be devolved only.
In Radhika Mehta v. Anurag Mehta 1994 (5) Supreme Court 761 it is stated that if the intestate Hindu woman had inherited the property from her mother and maternal grandfather, then the daughter of the deceased would inherit it and her husband in section 15 (2 ) Shall not acquire property in succession as per the provision of (a). According to the nature of this section, the husband will not inherit the property left by his wife in the condition where his wife held the property from her father. The husband will inherit the property in the same circumstances in which the property was either given by him to the wife or was earned by the wife herself.
In this article we have discussed the succession of property under Hindu Succession Act, 1956. If you have any query or you want an experienced civil lawyer for your property matter; call us on our number reflecting on our website or fill the query form. Our team of best civil lawyers will guide you. Our team of civil lawyers has vast experience and professionalism. They spend ample of time while researching, drafting. Our law firm has a team of experienced civil lawyers that works together to get fruitful results and decision of the court in their favor. Our Law firm is well known for handling civil litigation. Our civil lawyers provide best legal solutions to resolve the client’s problems. That is why Legalmax is distinguished from other legal firms.
Under the Hindu Succession Act 1956, the way a man is given rights in relation to succession to property. Similarly, if a Hindu woman is an intestate deceased, then in such a situation the rules of succession of her property have been determined under Section 15 of this Act and the order of heirs of the property of Hindu woman is mentioned under Section 16.
Section 15 of Hindu Succession Act, 1956
This is the second most important section of this Act. Under this section simple rules regarding succession of Hindu women are mentioned. After the passage of the Hindu Succession Act 1956, a Hindu woman has three types of assets.
- Property received in succession from father or mother
- Property received in succession from husband or father-in-law
- All other types of property - as is the general rule, any Hindu person shall inherit the property received by him in succession and the property acquired by him.
He can devise his property anywhere. No law or rule prevents a person from making any will in relation to his property. Any Hindu man or woman can inherit his property anywhere and the offspring of a Hindu man cannot claim that he is entitled to inherit his property because any Hindu man or woman has absolute right. That he will devise his property anywhere. But if the Hindu man or woman does not die in respect of his property except by a will then the provisions of the Hindu Succession Act 1956 apply. Under these provisions separate rules have been prescribed for male and separate rules have been prescribed for Hindu woman. Under Section 15 of the Succession Act 1956, the rules for the right to property of a Hindu woman are described.
Under Section 30 of this Act, any Hindu woman can bequeath her property anywhere but she does not leave any will, then in such a situation, according to section 15, the succession of her property is decided. According to Section 15 of the Hindu Succession Act 1956, in the event of death of a Hindu woman, her property is devolved to the following persons-
1) Son, daughter and husband
2) Husband's heirs
3) Mother and father
4) To the heirs of the father
5) The order of succession of the property of any Hindu woman to the heirs of the mother is the same as the order of succession to the property of a Hindu male.
The property is first devolved to son, daughter and husband. If the dying Hindu woman does not have a son, daughter and husband, in such a situation the property is devolved to the heirs of the husband. If the husband's heir is also not available, then the property of the dying Hindu woman is devolved to her mother and father. If the mother and father are also not available, then the fourth heir is the heir to the father. If the father does not have an heir, in such a situation the fifth heir is the heir of the mother.
Certain features under this section, if any property is inherited by a Hindu woman from her parents, in the absence of the son or daughter of the deceased, the above heirs will be devolved to the heirs of the father and not to the order. Similarly, property received from husband or father-in-law will be devolved to the heirs of the husband if there is no son or daughter of the deceased. In this section, an attempt has been made to judge the property from which people get the property. The first succession is that of the son and daughters. If the son and daughter are not available, in such a situation, the property received in succession is devolved to those people from where that property is received by a Hindu woman.
For example, a Hindu woman has received a piece of land in succession from her father-in-law, now no child of this Hindu woman is available and there is also no objection to the child, in such a situation, the property obtained from the father-in-law does not belong to the husband. In the event of in-laws heirs will be devolved.
In the event of a Hindu woman receiving the property from the husband, the heirs of the husband will be devolved.
In the event of inheritance from her father, the heirs of the father will be devolved, but if a property is acquired by a dying Hindu woman herself, the rule for her property in such a situation would be that first of all the property. Succession will be devolved. After that, the second succession will be devolved, followed by the third answer will be devolved to the officers. The first heirs exclude the second heirs.
Under this Act, a Hindu woman's son and daughters mean the son and daughter received from her womb and the sons and daughters adopted by her husband. If a Hindu woman has 2 sons and their two fathers are different, in such a situation, both her sons will get the property of the Hindu woman. This clause does not apply in such a situation if her step-son means that if her husband has given birth to a son or daughter from another woman. Under the Hindu Adoption Act, when a husband or wife accepts an adoption, the wife also agrees in such a situation, if a Hindu man has adopted a son, then that adopted son will have the same inheritance in the property of the Hindu woman. Who has a son born from his womb.
In the case of Laxman Singh v. Krupa Singh AIR 1986 Supreme Court 1616, it has been pointed out that as far as the step-son is concerned, he does not fall under the extension of Section 15 (1) (a). In the case of Kampo Bai v. Deviram 1982 Revenue Decision 14 Madhya Pradesh, it has been said that under section (a) of section 15 (1), the reference to the daughters and daughters of the daughters is from their own daughters. Her husband's other wife's sons and daughters are not included. Step sons will not come under the subdivision and step daughters will also not come.
The heir of a Hindu woman is firstly her sons, daughters and husbands but here the situation of husband is entangled. That is, sub-section 2 of section 15 provides that if a Hindu woman has inherited the property and has no son or daughter, then in such a situation and the property is devolved to the heirs of the same person. Property received in succession. For example if a woman inherits any property from the father in succession. The woman has no children and does not adopt any adoptions and dies intestate. Now in such a situation, the inheritance which she received will be devolved to the heirs of her father and not to her husband. It simply means that the heirs of the party from whom the property is received in succession will be devolved only.
In Radhika Mehta v. Anurag Mehta 1994 (5) Supreme Court 761 it is stated that if the intestate Hindu woman had inherited the property from her mother and maternal grandfather, then the daughter of the deceased would inherit it and her husband in section 15 (2 ) Shall not acquire property in succession as per the provision of (a). According to the nature of this section, the husband will not inherit the property left by his wife in the condition where his wife held the property from her father. The husband will inherit the property in the same circumstances in which the property was either given by him to the wife or was earned by the wife herself.
In this article we have discussed the succession of property under Hindu Succession Act, 1956. If you have any query or you want an experienced civil lawyer for your property matter; call us on our number reflecting on our website or fill the query form. Our team of best civil lawyers will guide you. Our team of civil lawyers has vast experience and professionalism. They spend ample of time while researching, drafting. Our law firm has a team of experienced civil lawyers that works together to get fruitful results and decision of the court in their favor. Our Law firm is well known for handling civil litigation. Our civil lawyers provide best legal solutions to resolve the client’s problems. That is why Legalmax is distinguished from other legal firms.
22nd Sep 2020
Laws Relating to Contempt of Court
The concept of contempt of court is several centuries old. In England, it is a common law principle that seeks to protect the judicial power of the king, initially exercised by him, and later by a panel of judges who acted in his name. Violation of the judges’ orders was considered an affront to the king himself. Over time, any kind of disobedience to judges, or obstruction of the implementation of their directives, or comments and actions that showed disrespect towards them came to be punishable.
The Contempt of Courts Act, 1971 is based on the recommendations made by the Sanyal Committee and the Joint Select Committee.
According to the Contempt of Court Act, 1971 contempt of court means showing disrespect for the dignity and rights of a court. The Contempt of Courts Act, 1971 is intended to maintain the dignity and importance of the Court.
The powers associated with contempt help judges to discharge their duties without fear, partiality and feeling.
What are the kinds of contempt of court?
The law codifying contempt classifies it as civil and criminal.
(a) Words, written or spoken, signs and actions that “scandalise” or “tend to scandalise” or “lower” or “tends to lower” the authority of any court
(b) Prejudices or interferes with any judicial proceeding and
(c) Interferes with or obstructs the administration of justice.
Constitutional Background:
Article 129: empowers the Supreme Court to punish for contempt of its own.
Article 142 (2): This Article enables the Supreme Court to investigate and punish any person charged with contempt.
Article 215: Enables the High Courts to punish themselves for contempt.
Other issues related to contempt:
Article 19 of the Constitution provides freedom of speech to every citizen of India, but the Contempt of Courts Act, 1971 has curbed against the functioning of the court.
The law is very subjective, so the penalty of contempt can be used by the court to suppress the voice of the person who criticizes it.
Provision of penalty for contempt of court:
The Supreme Court and the High Court have the power to punish for contempt of court. This penalty can be a simple imprisonment of six months or a fine of up to Rs 2000 or both.
In 1991, the Supreme Court ruled that it had the power to punish not only himself but also in contempt cases of High Courts, Subordinate Courts and Tribunals all over the country.
The High Courts have been empowered to punish for contempt of subordinate courts under Section 10 of the Contempt of Courts Act, 1971.
In a recent judgment Supreme Court held that Ranbaxy promoters Malvinder and Shivinder Singh guilty of contempt for violating its order that had asked them not to divest their shares in Fortis Healthcare Limited.
A bench, comprising Chief Justice Ranjan Gogoi and Justice Deepak Gupta, held them guilty of contempt of court and said that they had violated its earlier order by which the sale of their controlling stakes in Fortis Group to Malaysian firm IHH Healthcare was put on hold.
The Japanese firm had filed a contempt petition against them, alleging that execution of their arbitral award had been in jeopardy as the Singh brothers disposed of their controlling stakes in the Fortis Group to the Malaysian firm.
Even if a Central Government or a State Government refuses to comply with or execute the order passed by the Hon’ble High Court, then in that case, the aggrieved person can file a contempt petition for contempt of Court in the high Court against the concerned department and officials. You have to hire an experienced lawyer having deep knowledge of the contempt proceedings.
In a recent decision of the Supreme Court in Re Vijay Kurle decided on 27th April, 2020 in Suo-Moto Contempt Petition (Criminal) No.2 of 2019 it has been reiterated that “Parliament has not enacted any law dealing with the powers of the Supreme Court with regard to investigation and punishment for contempt itself…section 15 is not substantive provision conferring contempt jurisdiction and therefore is only a procedural section especially in so far as Suo-Moto contempt are concerned”.
In Para 30 of the aforesaid decision, a three judges bench decision of the Supreme Court in Pallav Sheth versus Custodian was perfunctorily dealt with bypassed by stating:
“this court in that case was only dealing with question whether contempt can be initiated after the limitation prescribed in the contempt of courts Act has expired and the observation made therein have to be read in that context only…. It, however, went on to hold that providing the question of punishment or a period of limitation would not mean that the powers of the court under Article 129 have stultified or abrogated. Without commenting one way or the other on Pallav Sheth’s case (Supra) it is clear that the same has not dealt with power of this court to issue Suo-Moto notice of contempt”.
In Para 31 the Supreme Court said that “in view of the above discussion we are clearly of the view that the powers of Supreme Court to initiate contempt are not in any manner limited by the provision of the Act”.
The 1971 Act is a composite legislation pertaining to High Courts and the Supreme Courts both. Section 15 and 19 of the Act specifically mentions the Supreme Court and prescribes the manner of taking cognizance and right to appeal.
Legalmax’s Supreme Court and High Court lawyers are well experienced and keep their knowledge updated with the recent judgments and amendments in the laws. Our lawyers have exceptional skills and knowledge to handle contempt cases. Anyone can contact us directly through mail or by calling us on the number reflecting on our website for his/her contempt matter. We have a team of best lawyers representing clients across the country.
The Contempt of Courts Act, 1971 is based on the recommendations made by the Sanyal Committee and the Joint Select Committee.
According to the Contempt of Court Act, 1971 contempt of court means showing disrespect for the dignity and rights of a court. The Contempt of Courts Act, 1971 is intended to maintain the dignity and importance of the Court.
The powers associated with contempt help judges to discharge their duties without fear, partiality and feeling.
What are the kinds of contempt of court?
The law codifying contempt classifies it as civil and criminal.
- Civil contempt is fairly simple. It is committed when someone willfully disobeys a court order, or willfully breaches an undertaking given to court.
- Criminal contempt is more complex. It consists of three forms:
(a) Words, written or spoken, signs and actions that “scandalise” or “tend to scandalise” or “lower” or “tends to lower” the authority of any court
(b) Prejudices or interferes with any judicial proceeding and
(c) Interferes with or obstructs the administration of justice.
Constitutional Background:
Article 129: empowers the Supreme Court to punish for contempt of its own.
Article 142 (2): This Article enables the Supreme Court to investigate and punish any person charged with contempt.
Article 215: Enables the High Courts to punish themselves for contempt.
Other issues related to contempt:
Article 19 of the Constitution provides freedom of speech to every citizen of India, but the Contempt of Courts Act, 1971 has curbed against the functioning of the court.
The law is very subjective, so the penalty of contempt can be used by the court to suppress the voice of the person who criticizes it.
Provision of penalty for contempt of court:
The Supreme Court and the High Court have the power to punish for contempt of court. This penalty can be a simple imprisonment of six months or a fine of up to Rs 2000 or both.
In 1991, the Supreme Court ruled that it had the power to punish not only himself but also in contempt cases of High Courts, Subordinate Courts and Tribunals all over the country.
The High Courts have been empowered to punish for contempt of subordinate courts under Section 10 of the Contempt of Courts Act, 1971.
In a recent judgment Supreme Court held that Ranbaxy promoters Malvinder and Shivinder Singh guilty of contempt for violating its order that had asked them not to divest their shares in Fortis Healthcare Limited.
A bench, comprising Chief Justice Ranjan Gogoi and Justice Deepak Gupta, held them guilty of contempt of court and said that they had violated its earlier order by which the sale of their controlling stakes in Fortis Group to Malaysian firm IHH Healthcare was put on hold.
The Japanese firm had filed a contempt petition against them, alleging that execution of their arbitral award had been in jeopardy as the Singh brothers disposed of their controlling stakes in the Fortis Group to the Malaysian firm.
Even if a Central Government or a State Government refuses to comply with or execute the order passed by the Hon’ble High Court, then in that case, the aggrieved person can file a contempt petition for contempt of Court in the high Court against the concerned department and officials. You have to hire an experienced lawyer having deep knowledge of the contempt proceedings.
In a recent decision of the Supreme Court in Re Vijay Kurle decided on 27th April, 2020 in Suo-Moto Contempt Petition (Criminal) No.2 of 2019 it has been reiterated that “Parliament has not enacted any law dealing with the powers of the Supreme Court with regard to investigation and punishment for contempt itself…section 15 is not substantive provision conferring contempt jurisdiction and therefore is only a procedural section especially in so far as Suo-Moto contempt are concerned”.
In Para 30 of the aforesaid decision, a three judges bench decision of the Supreme Court in Pallav Sheth versus Custodian was perfunctorily dealt with bypassed by stating:
“this court in that case was only dealing with question whether contempt can be initiated after the limitation prescribed in the contempt of courts Act has expired and the observation made therein have to be read in that context only…. It, however, went on to hold that providing the question of punishment or a period of limitation would not mean that the powers of the court under Article 129 have stultified or abrogated. Without commenting one way or the other on Pallav Sheth’s case (Supra) it is clear that the same has not dealt with power of this court to issue Suo-Moto notice of contempt”.
In Para 31 the Supreme Court said that “in view of the above discussion we are clearly of the view that the powers of Supreme Court to initiate contempt are not in any manner limited by the provision of the Act”.
The 1971 Act is a composite legislation pertaining to High Courts and the Supreme Courts both. Section 15 and 19 of the Act specifically mentions the Supreme Court and prescribes the manner of taking cognizance and right to appeal.
Legalmax’s Supreme Court and High Court lawyers are well experienced and keep their knowledge updated with the recent judgments and amendments in the laws. Our lawyers have exceptional skills and knowledge to handle contempt cases. Anyone can contact us directly through mail or by calling us on the number reflecting on our website for his/her contempt matter. We have a team of best lawyers representing clients across the country.
6th Sep 2020
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
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
Jul 2020
25th Jul 2020
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.
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:-
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.
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.
- Wife who is unable to maintain herself.
- 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.
- 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:-
- 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.
- 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.
- The parties are directed to appear before the Court and Family court first try to reconcile/mediate them.
- 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.
- 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.
- 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.
- The court thus frames the issues involved in the case and ask both the parties to file evidence by way of affidavit.
- The petitioner is directed to lead its evidence by filing the relevant the relevant document, and by summoning all its witnesses.
- Thereafter the respondent/opposite party is directed to lead its evidence by filing the relevant the relevant document, and by summoning all its witnesses.
- The court orders for the final arguments and after hearing the arguments from the both the parties; the matter is decided by the court.
- 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.
7th Jul 2020
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:-
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.
(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
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.
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.
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:-
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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'.
- 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
- 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.
- 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.
- 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.