Domestic violence by husband

Domestic violence committed by the husband in the shared household. Sir my husband is a sepoy in up police and he is having sexual relation with his bhabhi. I got married to him on 14 Feb 2014 as per Hindu rites Rivas and his family asked for 10 lakh Rs my father gave to him before marriage when I got doubt on him and asked for end this relationship with his Bhabhi then he had started to beat me and forcefully he had given petrol Botel in my mouth for a drink. I applied for call details and I found that his Bhabhi made 319 calls in 42 days to his mobile. He has left me from 4 months at my home when my father went with me to my law’s home to drop me then he said to my father that tu mere ghar kaise gaya tere muh me moot dunga. Then I return with my father to my home. And filed FIR against him. Please tell me is there the father mistake that he has given birth to me as a girl so he is listening so bad word only due to me. Please advice me for legal and fast action against him. You should file a complaint under the Domestic Violence Act and claim monetary relief for mental and physical cruelty. You have valid ground to live separate from him because he has been in illegal relation with his Sister-in-law (Bhabhi). You can claim maintenance under section 125 Cr.P.C. Section 22 of Domestic Violence Act provides Compensation orders as:- 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. You can claim 2 lakh as compensation under this section, however, the amount of compensation shall be decided by the court. The complaint shall be filed in the court of the first-class Magistrate. You can file that complaint in the district where you residing. Proceedings under the Domestic Violence Act and section 125 Cr.P.C. are swifter than another proceeding.

Execution of foreign judgment in India

There is an unique procedure for execution of foreign judgment in India. When a foreign court cannot execute its judgment or decree in India because it has no territorial jurisdiction. In this situation the decree holder shall file a fresh civil suit in India on the basis of the decree of foreign court.

According to section 2(6) of the Code of Civil Procedure (CPC), “foreign judgment” means the judgment of a foreign Court. The foreign court is defined under section 2(5) as “foreign Court” means a Court situate outside India and not established or continued by the authority of the Central Government.

Execution of foreign judgment

A foreign judgment cannot be executed in India directly as Indian judgment. Under Indian law, there are two ways of getting a foreign judgment enforced. Firstly by filing an Execution Petition under Section 44 A of the CPC (in case the conditions specified therein are fulfilled) and secondly by filing a suit upon the foreign judgment / decree.

However, for the execution of foreign decree the Indian court will test its validity under Section 13 CPC. This section specifies certain exceptions under which the foreign judgment becomes inconclusive and is therefore not executable or enforceable in India.

Also read: How to set aside ex-parte decree?

Under Section 13 CPC (Code of Civil Procedure, 1908) a foreign judgment becomes inconclusive and consequently unenforceable in the following circumstances:

  • where it has not been pronounced by a Court of competent jurisdiction;
  • where it has not been given on the merits of the case;
  • where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;
  • where the proceedings in which judgment was obtained are opposed to natural justice;
  • where it has been obtained by fraud;
  • where it sustains a claim founded on a breach of any law in force in India.

Therefore for the execution of foreign judgment, it must comply the conditions of section 13 CPC. The decree of foreign court is a piece of evidence and Indian court shall admit the certified copy of foreign decree as genuine. By getting a decree in the foreign Court, the plaintiff has only avoided the inconvenience of leading evidence in the Indian Courts.

Recovery of loan from maternal grandfather

Hi Sir, My maternal grandfather has just expired. He had taken some money from us to pay his debts against some interest. Though he could partially pay back the money majority of the money is still not clear. I have three uncles (only one is married) and 5 aunties (all are married). My grandfather had 5 brothers. Recently their family division has taken place and there’s a significant property in his name. My uncles are not ready to pay back the money. They are blackmailing us that they would pay back the money by transferring some property to us provided my mother signs with the family settlement. Apparently, there is no will signed by my grandfather. I just want to know that should we file a suit of partition and will that survive in the court. If you have evidence to prove that your maternal grandfather had taken a loan from you then you have the right to recover it from his properties. When a person owes a sum of amount and that amount remains unpaid after his death then his personal and ancestral properties shall be charged for the payment of that loan and his legal representative is bound to pay it out of the properties devolved to him. Your grandfather’s properties are under liability to pay his outstanding loan. Those portions of properties shall be subject to partitioned or devolved to his legal heirs which remain after the repayment of all dues. You should file a suit for recovery of money (loan) and also file a suit for a temporary injunction to stay the partition of properties until the loan is paid. You have to prove for a temporary injunction that:
  • There is a loan (right). 
  • That loan is unpaid (you have an irreparable loss). 
  • That loan can be legally recovered out of the properties of the borrower (balance of convenience is in your favour). 
You should not afraid of his blackmailing, you have the primary right in the property of your grandfather. His property cannot be partitioned without payment of all the dues. In Hindu mythology, it is presumed that legal heir must pay all the dues and liberate the soul of his ancestor from bondage.

Registration of marriage in Gujrat

I have done an intercaste marriage. Moreover, applied for the benefit of one Scheme which requires the marriage to be registered under the Hindu Marriage Act 1955. I belonged to the SC community in Gujarat and married to a Sindhi Girl.  We have done a marriage as per Hindu ritual and, through my relative, I came to know that I can get the benefit of inter-cast marriage by Ambedkar foundation which is centrally sponsored scheme, so I have applied to take the benefit of that scheme. However, they have replied that I am not eligible to take the benefit of this scheme as I have not registered the marriage under the Hindu marriage act, as per there scheme. “The marriage should be valid as per the law and duly registered under the Hindu Marriage Act, 1955.” AS I am from Gujarat, I have submitted the Gujarat Marriage Registration Certificate. So can I again register my marriage under the Hindu Marriage Act, 1955 in Gujarat and can take the benefit of the Ambedkar Foundation scheme. We have done a marriage on 19.08.2014. Kindly guide us in the matter. Your advice would be highly appreciated. According to section 25 of the Gujarat Marriage Registration 2006, this act repealed Bombay Registration of Marriage Act 1953. This act applies to every marriage solemnized in the state of Gujrat. It is neither a validating act nor a complementary of Hind Marriage Act. According to section 8 of the Hindu Marriage Act : “To facilitate the proof of Hindu marriages, the State Government may make rules providing that the parties to any such marriage may have the particulars relating to their marriage entered in such manner and subject to such conditions as may be prescribed in a Hindu Marriage Register kept for the purpose.” This act (the Gujarat Marriage Registration 2006) applies to Hindu marriage. This act is enacted by section 8 of the Hindu Marriage Act for registration of Hindu Marriage. So I think no need to get re-registration under the Hindu Marriage Act because the Hindu Marriage Act does not provide procedure, format and competent authority for registration of marriage.

Performance of contract

I have joined the affiliated non-govt. aided college as an assistant professor on the uncovered post (i.e. college has to pay) on the pay grade of 15600-39100 + AGP 6000 with agreement done on 01-08-2013. I have done my probation of 2 years with pay 21600 which was completed on 31-07-2015. I am still continuing the job. But college doesn’t give the full grade pay as committed in the agreement. 1st month they pay 21600. Then I asked them to pay full grade pay as committed. but they told that they will pay only 50% D.A from the next month, which is not as per the agreement. so please recommend me what to do. should I move to the court or there is another option available. another non covered staff is getting full grade pay in the same college. If an agreement is signed by proposer and acceptor then this agreement becomes converted into a contract. This contract is legally binding on both parties to the contract. If consent is free and all the terms are clearly stated at or before the entering of agreement then such terms have a binding effect. If an agreement is signed by proposer and acceptor then this agreement becomes converted into a contract. This contract is legally binding on both parties to the contract. If consent is free and all the terms are clearly stated at or before the entering of agreement then such terms have a binding effect. You should send a notice to the management or appropriate authority for the performance of the contract. If any or some acts mentioned in the contract have been stalled then it is said non-performance of the contract. You should wait for some days like 30 or 60 days for their reply. Thereafter you can file suit for specific performance of a contract. Specific performance is an order of a court which requires a party to perform a specific act, usually what is stated in a contract. It is an alternative to awarding damages and is classed as an equitable remedy commonly used in the form of injunctive relief Sections 10 to 12 of the Specific relief act provide a remedy for the specific performance of a contract. It is based on the rule of equity so no need to prove all the facts on the strict rule of evidence. You have to show that contract has not been performing as par the terms and you have suffered a loss which could not be recovered unless the contract is performed fully.

Wife living separate without just cause

My son age 30 got married since last 1 year. The girl is from a metro city and we belong to the rural area. At the time of marriage, she agreed to live in the village. But thereafter she told that she will not live in the village. Then she left matrimonial home without any reasonable cause. Please advice what step should we take?

You should file a suit for restitution of conjugal rights because she has no right to live separate on this silly issue. Section 9 of the Hindu Marriage Act 1955 provides right to restore conjugal rights if one party has refused to live without any reasonable cause. Living separate on the ground that the husband is living in a rural area is not just and fair plea of defence. 

First of all, you should try to convince her to start living with a husband. If she refuges, then talks with her parents and other elder family members so as to resume her marital life. You can not file a divorce petition unless and until a strong ground exists thereof. Court also does not admit divorce petition when there is space for reconciliation between the parties.

If the matter does not reconcile or she refuses to come back on any cost then you may file RCR petition before the family court under section 9 of the Hindu Marriage Act. It is a remedial procedure for giving a chance to save their marital life.

In the RCR suit, she has to prove just ground for living separate otherwise the court may pass an order to resume marital life. Smt. Harvinder Kaur vs. Harmander Singh Choudhry, the Delhi High Court expressed its view that the object of restitution decree was to bring about cohabitation between the estranged parties so that they could live together in the matrimonial home in amity.

Smt. Saroj Rani vs Sudarshan Kumar Chadha the suit for restitution of conjugal rights is a matrimonial suit which is brought whenever either the husband or the wife lives separate from the other without any sufficient reason. 

If she fails to prove reasonable cause for living separately from husband then the court will pass a decree in your favour. The court will allow the RCR suit and direct the wife to resume the marital relationship.

Investigation in cruelty cases under section 498 A

Sir, I am a Govt servant in Police Dept in T.N. My wife has filed a false complainant against me and Police has registered a case u/s 498-A,342,327,406 IPC, Sec.3&4, 6(1),6 (2),6(3A) of DP Act 1961 IPC, Sec.3&4 DP Act 1961. In this case please advise me whether police Dept can initiate oral inquiry against me or not? And what are the rules regarding Investigation in cruelty cases under section 498 A? Section 498 A and other sections such as section 3/4 DP Act, section 323/327/504/506/342 etc are becoming a general practice in India. Section 498 A is a bailable but cognizable offence for the purpose of investigation. And also according to section 8 of the DP Act, section 3/4 DP Act dowry-related offences are cognizable. Police are bound to initiate an investigation upon receiving the information of commencement of cognizable offence, during the investigation police may record your statement then he shall record statement under section 161 of the code of criminal procedure (crpc). Police are empowered to arrest the accused on the commission of the cognizable offence. But after the amendment in section 41 of Cr.P.C. police cannot make arrest in the offence punishable up to the imprisonment of seven years. But in some conditions mentioned in section 41 of crpc police is empowered to arrest any accused of the cognizable offence which is punishable up to 7 years. After some recent development is the law relating to arrest in dowry and cruelty related police cannot arrest merely on receiving of information, In the last year, Supreme court of India has passed some directions in the judgment of Arnesh Kumar vs State of Bihar and made notice under section 41 A of Cr.P.C. as mandatory before starting investigation towards offences under section 498 A IPC and DP Act. Now, police are bound to give notice to the accused under section 41 A to appear before the investigation officer. if the accused appears and co-ordinates the investigation officer then police shall not arrest him. Police may record the statement of the accused. If the police found that there is a reason to believe that offence is committed then the police can arrest the accused on the prior permission of the court. Now, police are bound to initiate a preliminary investigation regarding the offence either oral or written.

Part of house cannot be acquired under land acquisition act

Dear Sir In a land acquisition process I will lose my 15 decimal lands with some part of my home. A part of the house is acquired under the land acquisition act. What is the compensation calculated towards my home? Whether govt will pay full compensation of my home or partial part of my building? According to section 49 of the land acquisition act, a part of the house or building cannot be acquired under the act. When collector issued a genera notice under this act for a scheme of land acquisition, such notice is published in the newspapers having circulation over the area to be acquired. After the publication of the scheme, the resident has the right to file an objection before the collector about the land acquired. Section 49 especially makes a rule that part of the house or building shall not be acquired under this act. Certain provision is made in this regard. Owner of the property shall file an objection at any time before the Collec­tor has made his award final under section 11. On receiving the objection the Collector shall refer to the determination of such question to the Court and shall not take possession of such land until after the question has been determined. In deciding on such a reference, the Court shall have regard to the question of whether the land proposed to be taken is reasona­bly required for the full and unimpaired use of the house or building. Owner of the land can amend or withdraws his objection. If the owner withdraws or modifies the desire expressed by him, it shall be lawful for the Collector to put in force the provisions of the Act for the acquisition of such part of the house or building as may be in conformity with such withdrawal or modification. The conclusion is that part of the property cannot be acquired under this act without the consent of the owner. If the owner gives his consent then he is entitled to get compensation to only such part of the property which is acquired. Rest of the property shall remain in his ownership and no compensation shall be granted under section 23. If objects partial acquisition of his house or building or court found that the acquisition of the part will render the full and unimpaired use of the remaining portion of the house or building impracticable. Then the government is bound to acquire the whole property of the house.

Interim maintenance will be allowed

Dear sir, My question is towards interim maintenance. I have filed my divorce case on may’ 2007 against adultery ground (a video clip with her office colleague) at 1st ADJ Baruckpur court, West Bengal. That time my wife filed an application under section 24 for alimony, the case was rejected on may’2009, because she was a working lady. Then she files for shifting the court from barrackupur to barasat on April’2010, accordingly case shifted barrackpur to barasat 1st ADJ After few months she again file application under section 24 and that time allow Rs 3500 PM on August 2010, because presently she is not a working lady, changes of circumstances. But that time I was unable to pay the amount because I have no income. So, they stay my case for further processing. after few months she moves to Calcutta high court for revision/modification of the order, that time H/C grant Rs – 5000 PM and accordingly on August 2012 I pay the said amount till date and it is due. But presently (aug’2014)she files sec – 9 for further alimony and barasat 2nd ADJ grant Rs – 8000 PM now she also moves to High court for further modification. Sir, in the above circumstances my main case divorce (13, 13A )which have a concrete adultery ground, that is not process & that is standing still. intentionally she tries to delay my case and try to stay. any time she files some new issue and my case delay but as per court direction, I am bound to pay the amount. I hereby request you, please guide me how shall I process & move further. Presently I have no stable income. What had you been doing during the pendency of the suit? Section 24 of the Hindu Marriage act relates to interim maintenance during the pendency (pendente lit) of the application. Only interim maintenance could be given. You should file a criminal case against the person with whom your wife was in relation because the offence of adultery is committed against the husband and the only husband has the right to initiate the criminal proceeding by filing a complaint. But after the lapse of 8 years, it can’t be possible. You should take a certified copy of the order sheet for at least 6 months and present an application before the High court for the expedited hearing of the case. High court may pass an order and give a fixed time period for disposal of the case without giving unnecessary adjournments. However, the family court may pass ex parte decree on the basis of evidence on the record but it is the discretionary power of the court and you can’t lead as a matter of right. You should file a writ petition under Article 227 of the constitution of India for expediting the hearing of your case. High court may pass appropriate order and family court is bound by that order to decide your case in the stipulated time period. If the court gives unnecessary adjournment in the case, you should file contempt of court proceeding against the family court. If you get a divorce on the ground of proved adultery then your wife will be disentitled to get alimony. Adulterous wife has no right to maintenance under section 25 of the Hindu Marriage Act, section 18 of Hindu Adoption and Maintenance Act and section 125 of the Code of Criminal Procedure.

widow mother’s share

What is the widow mother’s share in the property? I am a widow who has recently lost my only son due to cardiac arrest. My daughter in law is not ready to share the compensation provided by my son's company (Approx. 45 lacs). I have no source of income. Both my daughters are married. I had sold some of the property bought by my late husband to purchase a flat in which my son & I was residing. The flat is registered in my & my son's name & it was bought before his marriage. My son did not have any children. My son’s wife is an engineer & is drawing a very good salary. Also, she will be remarrying. There is a Home Loan of 30 lacs which needs to be repaid. She is claiming a share in the flat too. Please advise what will be my share in my son’s settlement dues & also in the flat. Compensation given by the company on the death of your son shall be treated as his individual property, Muruappa vs commissioner of income tax, this property shall never be merged into the joint family property. She got that property after the death of her husband, if that property is in her possession at the time of remarriage then she has right to claim that property. According to section 2 of Hindu widow’s remarriage act 1856, she is the absolute owner of the property which is devolved in her by Hindu succession act and her remarriage can’t disqualify her to enjoy absolute right over that property. In Punitawalli vs Ramlingam AIR 1970 SC, it is held by the Supreme court that widow has the full right in the property devolved into her by the Hindu succession act and she is entitled to enjoy same right after her remarriage. If the flat is purchased out of the fund of the joint family property then it is treated as part and parcel of joint family property. Widow has the right to maintenance and inheritance in this property, the widow has no right to partition it because she is not coparcener. When there is no male member in the joint Hindu family then eldest widow gets all property by the rule of survivorship. All widows have are treated as one unit. In your case there is two widows and 2 daughters, each daughter is a unit and two widows are one unit. So there are 2 units. The property will be divided into 3 parts. Each daughter gets 1/3 and each widow gets 1/6 share. If a widow gets remarriage then her right in the joint family property ceases to exist. She becomes disqualify from the date of remarriage. If your daughter in law gets property she also bears liability, she has no right to election in respect of inheritance. You should get relinquishment deeds from your daughter and after the remarriage of your daughter in law you will be the sole owner of the joint family property, henceforth you should make that property reverse mortgage with the bank and get a monthly instalment of mortgage money. Your loan will be set off in the reverse mortgage and you’ll get a fixed amount per month in a lifetime.