It is a complicated situation for me, I am a 40 year old lady. My husband was an abuser and we have legally divorced 6 years ago without any issues left. I left my hometown, came to Delhi to join a job and started staying with my brother who is never married and a confirmed bachelor. The situation evolved into a consensual relationship.
It is full of love and trust and now I am expecting a child at this age with my brother. Nobody has any knowledge about our relationship and assumes us as husband and wife. Given that no societal issues will arise, what is the legal status of our relationship? Can we safely put our names as parents in our child's birth certificate? Also can we get our relationship registered as a marriage?
Section 5 of the Hindu Marriage Act prohibits marriage between the prohibited relationship. Marriage with a real brother comes under the prohibited relationship therefore, such a marriage is null and void under Section 11 of the Hindu Marriage Act.
If he is not your real brother but comes under the “Sapind” then again such a marriage is null and void. In both conditions the court shall decree the marriage null and void upon the suit filed by any party to such a marriage.
Legal status of child
If a child is born out of such a wedlock, that child would have been legitimate if the marriage had been valid. A child if born in a marriage which is null and void under section 11, is legitimate under section 16 of the Hindu Marriage Act.
Marriage is a social bonding and birth is a natural phenomenon. How and when to take birth is not in the hands of a person and therefore, such a child cannot be deprived of proprietary benefits which he should have secured, if he would have been born within the valid wedlock of his father and mother.
Indubai Jaydeo Pawar and another v. Draupada alias Draupadi Jaydeo Pawar and other [2017 (4) ABR 525]
In Smt. Parayankandiyal Eravath Kanapravan Kalliani Amma and others v. K. Devi and others 1996 AIR SCW 2337 the Hon’ble Supreme Court has held that a child born out of void marriage is legitimate for all practical purposes. The Supreme Court opined that:
In view of the legal fiction contained in Section 16, the illegitimate children, for all practical purposes, including succession to the properties of their parents, have to be treated as legitimate. They cannot, however, succeed to the properties of any other relation on the basis of this rule, which in its operation, is limited to the properties of the parents.
That child will have proprietary rights as same as the child born out of a valid marriage. You can put your name to your child as his parents and get his birth certificate. But you cannot register your marriage because your marriage is void.
Appeal against dismissal of interlocutory application. My Grandparents had 7 children and among them 4 sons and 3 daughters. Joint family property is around 130 acres which was divided among all family members under Registered Family Settlement (RFS) in 1972 and my grandfather died in 1975 and grandmother died in 2010. Among 7 children, my mother is 6th one & who is a Minor during the time of such Registered Family Settlement. Out of a total 130 acres, only 6 acres of land was given to 3 daughters (2 acres for each daughter and the rest of them for 4 sons).
Apart from above stated properties, there were certain properties which were not covered under Registered Family Settlement and such properties were shared among only 4 sons (intestate properties) in 1985 as an unregistered partition deed without any consent/signature of any daughters. Further, there were certain properties which were purchased by one of the elder sons by utilising joint family funds without giving any share in such joint family funds to daughters.
At present, among 4 sons and their children, in 3 different courts, cases were filed for proper partition of such intestate properties which were divided among 4 sons through registered partition deed in 1985 without any consent of daughters. My mother filed IA to get implead in 2021 in July of last year and IS filed was dismissed stating that my mother received 2 acres share in a registered deed of 1972 and as such no more share in that but the order was silent with regard to intestate properties.
We filed a new case in respect of all intestate properties and now the case is pending before lower court. Further after filing a new case in jan 2022, further we filed an impleading application in the rest of the 2 cases of our joint family and in one case already interlocutory application is allowed and one more case its in objection stage and hope it will get allowed there also. But now the IA dismissed case got more of our properties and as such lower court lawyers also suggesting to file appeal to get impaled along with filing condonation for delay.
Kindly suggest can we go for a delay of more than 9 months and can file an appeal before HC now for getting impleading in IA dismissed case and if so later on we can club all three cases through district court and can run the case in one court.
Asked from: Andhra Pradesh
The ground upon which the court dismissed your interlocutory application is unsustainable. The pending case, in which you filed an interlocutory application, is related to the partition of property which is extraneous to the Registered Family Settlement Deed.
If the civil suit is filed (in which you had filed interlocutory application) towards the partition of property which was already divided in 1985 among the four brothers excluding the three sisters, then all the three sisters and their legal heirs are necessary party.
According to Order 1 Rule 10 of the code of civil procedure, the court can add any person as party at any stage of the proceedings, if the person whose presence before the court is necessary in order to enable the court effectively and completely adjudicate upon and settle all the questions involved in the suit.
In Kasturi vs. Uyyamperumal and others [(2005) 6 SCC 733] the Supreme Court has held that: it is now clear that two tests are to be satisfied for determining the question who is a necessary party. Tests are:
- There must be a right to some relief against such party in respect of the controversies involved in the proceedings
- No effective decree can be passed in the absence of such a party.
In your case the dispute is relating to partition of property of deceased “A”. Hence all legal heirs of “A” are necessary parties. In absence of legal heirs as a party the court cannot pass an effective decree.
The court dismissed your IA because you got a share in the property “X” whereas the dispute is regarding to property “Y”. The said property “X” is extraneous to the said civil suit. Hence, the order becomes an erroneous order.
Your right is still alive hence, you can file an appeal against the dismissal of interlocutory application. The said order affects the rights of the party therefore it is appealable. You can file an appeal with the condonation of delay for the grant of interlocutory order.
Prosecution sanction by competent authority is granted after lapse of stipulated period mandated and specified under Section 19 of the P. C. amendment act 2018. Prosecution sanctioned not in three months is it valid? Whether the sanction is valid or invalid.? FIR No 03/2017 dt 27.2.2017. Final report dated 13.03.2019 for sanction is received by the sanctioning Authority on 30.04.2019. Mandated and specified period (including grace period) expired on 14.08.2019.
The PSO was ordered on 19.04.2021 and a copy of the same was served to the accused on 21.06.2021. Charge sheet is filed on 22.04.2022 in court of session. Court summons served on accused on 07.06.2022. The deemed sanction expires on 30.07.2019. Time limit to file charge sheet expired on 14.08.2019 as per the SC judgement in case Subramanian Swamy vs. Dr. Manmohan Singh & Another. Whether cognizance taken by court on delayed charge? Whether the PSO is valid? The PSO not following the stipulated period is invalid?
Section 19 of the P.C. Act which bars a Court from taking cognizance of cases of corruption against a public servant unless the Central or the State Government, has accorded sanction.
There was no time limit for granting sanction prior to the amendment act 2018 coming into force. It is amended in pursuance of the guidelines issued by the Hon’ble Supreme Court in Dr. Subramanian Swamy vs. Dr. Manmohan Singh & Another [2012 Cri. L. J. 1519].
According to Section 19 of the Prevention of Corruption Act, the appropriate authority shall endeavour to convey the decision (sanction for prosecution) within three months from the date of receipt of proposal.
According to sub-section 3 of Section 19 (P. C. Act) no sentence, finding or order shall not be reversed only on the ground of absence of, any error, omission or irregularity in the sanction unless the opinion of the court a failure of justice has been occasioned thereby.
The Supreme Court in its judgement Dr. Subramanian Swamy [2012 Cri. L. J. 1519] mandated that “At the end of the extended period of time limit, if no decision is taken, sanction will be deemed to have been granted to the proposal for prosecution, and the prosecuting agency or the private complainant will proceed to file the charge-sheet/complaint in the Court to commence prosecution within 15 days of the expiry of the aforementioned time limit.”
You cannot challenge the validity of sanction on the ground that there is violation of provisions of Section 19 because it has been granted after the lapse of three months. Section 19 does not make it mandatory that in every case the appropriate authority must take its decision within the stipulated time period.
In P. P. Sharma vs State of Bihar [1992 Supp (1) SCC 222] the Supreme Court held that grant of sanction is an administrative act.
Delay in granting sanction does not vitiate the trial. Sanction is valid if the appropriate authority has granted after due consideration. Hence, delay in granting sanction cannot be treated as a sole ground which has vitiated the proceeding. If there is any defect in granting sanction then you can challenge it before the trial court.
In Nanjappa vs State of Karnataka [2015 AIR SCW 4432] the Supreme Court held that grant of proper sanction by a competent authority has been a sine quo non for taking cognisance of the offence.
I am a social worker and RTI activist. Since 2008 I have been active in seeking information pertaining to public importance. Many people have enmity because I have stopped their illegal business. They have threatened me to face dire consequences. Therefore, I have applied for security from the state government. The district level security committee has rejected my application. Is there any remedy when the district level security committee has rejected my application for providing security? Because I am still facing life threatening calls from these people. My advocate files an appeal before the division level committee but it is also dismissed. I want to challenge it in the High Court. Can I get any relief?
You have no right to file an appeal against the decision of the District Level Security Committee. The decision becomes final and there is no provision to appeal against the said decision. Therefore, your appeal has correctly been dismissed by the Division Level Committee.
You cannot get any relief from the High Court if you challenge the order of the Division Level Committee. In lack of provision to appeal there is no infirmity in the decision of the Division Level Committee.
In Akalu Ahir and others Vs. Ramdeo Ram [AIR 1973 SC 2145] Hon'ble the Supreme Court held that an appeal is a creature of statute and there is no inherent right of appeal. The same has been reiterated by the Hon’ble Supreme court in its umpteen judgments.
Hence, you will get no fruitful relief from the High Court. Instead, you should prefer a writ petition before the High Court under Article 226 and seek direction to provide police protection at the expense of the state. Protection of life and personal liberty is a fundamental right under Article 21 of the constitution.
In State of Uttar Pradesh v. Lalai Singh Yadav (1976) 4 SCC 213 the Supreme Court has held that the state is bound to secure the life of its citizens from threats and violence. Instead of challenging the decision of the Division Level Committee you should file a writ and demand security from the High Court.
My husband died during the service. At the time of his death in 2010, I was in shock therefore, could not apply for the compassionate appointment. One more thing is that my son was a minor and he was studying in class six. Now he became the major and completed his graduation. Hence, I applied for the compassionate appointment for my son in January 2022. But the government has rejected my claim of compassionate appointment due to delay. In this situation can my son get a compassionate appointment? Please guide me.
According to Section 5 of the U.P. Recruitment of Dependants of Government Servants Dying-in-harness, Rules, 1974, you have to make an application within five years from the date of the death of the Government servant.
The proviso of section 5 empowers the state government to relax the time limit for making such an application if the applicant had some satisfactory reasons for not applying within time.
Purpose of compassionate appointment
The purpose of compassionate appointment is to provide immediate relief to the bereaved family. Compassionate appointment is an exception to the general rule and no aspirant has a right to the compassionate appointment. Hence, you cannot claim compassionate appointment as a matter of right after twelve years since the death of your husband.
Sufficient reasons for delay
Section 5 of dying in harness rule 1974 provides that applicant should possess educational qualifications prescribed for the post or otherwise qualified for Government service. If you, as a wife of deceased government servant, did not possess the desired educational qualification or not fit for the government service then it is a valid reason for delayed application. Because you have no option except to wait till your son becomes eligible for government service.
Case law
In Vishal Saini v. State of U.P. and others [2021 (3) ADJ 74 (LB)] the applicant was minor at the death of his mother and there was no other person eligible for the compassionate appointment. He applied when he became the major and acquired the essential qualification. The Allahabad High Court has held that it is a satisfactory reason for delayed application and the applicant is entitled for the compassionate appointment.
You have applied for it after twelve years since the death of your husband. Therefore, in the application you should have to mention the reason for delay in making such an application.
How to challenge rejection order
If you have any satisfactory grounds for delay then you should file a writ petition in the High Court Allahabad for quashing of rejection order and direction for granting compassionate appointment. In devoid of satisfactory reasons for such an inordinate delay you are not entitled for the compassionate appointment under the dying in harness rule 1974.
Also read: Can married daugher elligible for compassionate appointment?
Case filed based on False Sale Agreement. I am 74 yrs old so don't want the case to drag on for obvious reasons. Hence this query. Never had a brush with court in these 74 years but NOW I have been made respondent in a case against me based on a clearly Forged document.
Bought 1 acr land in 1995. Got it mutated in 2019. During mutation son of seller raised objection claiming that it is ancestral property so should not be Mutated. Revenue officer overruled and granted the ROR in my name. This is 2019. Now, the same person has filed a false claim that: “ we had entered an agreement in 2018 that I will sell him the land for 8 lakhs and I accepted 5 lacs that time but I have not finished the deed for the last 4 years. So he is compelled to publish a paper ad warning the public to not buy the land.”
He filed a civil suit and requested the court for status quo on property. Summons not received. So right now status quo is in force. Case came for 1st hearing on 7th June but that day only Vakalat was filed and now next hearing is in September but the agenda is WS.
Since it is a false document, its examination will immediately prove that the case need not be continued. ( I have a copy of the document from which he photocopied the signature. He is dumb so copied a couple of my hand written lines also along with signature. So actually it should be a Open and Shut case) Seeking your advice ( More on court procedures ) to quickly finish the case if any way is possible in your view.
Can I request court before the next hearing that the case is based on False document so it should be sent to Forensics. If it is not possible then can it be stated in WS in the next hearing? Will the court read WS that time or will it read during 3rd hearing only and THEN it will be sent for FSL? My case alone is scheduled for next hearing after 3 months but all cases on that day were placed within 45 days so some foul play seems to be there to extend the case beyond my lifetime if possible. Dates are allotted by court or a babu in the court office?
To hasten the case , would it be wise to file a criminal private case with the Magistrate for forgery and contempt for misleading the court based on forged documents? Will the Magistrate dismiss the appeal straightaway saying that a civil case is already on? Police refused to accept the FIR of forgery so I have sent a petition to DSP to look into it. Because it is a false case I do not want to go in for a compromise to settle it fast.
Do you have any other way for a quick turnaround? Do you have any views on how to hasten the court decision? Generally how much time will such a case drag?.
First you should approach the court of judicial magistrate under Section 200 of the code of criminal procedure for lodging a criminal complaint against the son of the seller (plaintiff) for the offence of forgery punishable under Section 420/465/468 of the Indian Penal Code.
You have evidence to prove that your signature on the document (agreement to sell) is forged because it has been photocopied from another document. The court may direct the police officer to register a case and do the investigation.
During the investigation the investigating officer (IO) can send the document to the forensic expert and obtain his opinion. If it proves that document is forged the IO shall submit a chargesheet.
On the next date of hearing in the civil case, you should prefer an interlocutory application (IA) under Order 7 Rule 11 of the Code of Civil Procedure for the rejection of plaint because it does not disclose a cause of action. The plaintiff has filed the suit on the basis of forged documents hence, there is no real cause of action for the institution of suit.
If the forgery is apparent on the bare perusal of the document then the court shall reject the plaint. Otherwise during the hearing of IA you may plead the court to take the opinion of a forensic expert before deciding your application. The court can seek the expert opinion before disposing of the IA. In that IA, you should also state the facts of the criminal case initiated against the plaintiff.
During the pendency of IA the police may file a chargesheet against the accused. Once the charges have been framed against the accused (plaintiff) you can pray to the civil court to dismiss the plaint under Order 7 Rule 11 of CPC. The court can either dismiss the plaint or it can stay the proceeding till the final decision of the criminal case.
What remedy available against rejection of application for temporary injunction under U.P. Land Revenue Code? I have filed a suit under Section 146 of Uttar Pradesh Land Revenue Code for temporary injunction. That suit has been dismissed by the court without stating a good reason thereof. What remedy available against rejection of application for temporary injunction under U.P. Land Revenue Code? The opposite party in trying to capture my land therefore, I have filed a suit for the temporary injunction. My advocate is confused about the next stage. He is in dilemma to file an appeal or revision. Please help.
A party to the suit can seek temporary injunction as an interim remedy. You have been seeking that remedy during the proceeding of declaratory suit. Hence, disposal of application for temporary injunction does not mean that a suit has disposed of.
Disposal of such an application for temporary injunction is an appealable order under Order 43 Rule 1 of the code of civil procedure. According to Section 214 of the U.P. Revenue Code, the provisions of code of civil procedure shall apply in the proceeding under the revenue code. The analogous provisions have been given in Section 207 of the Revenue Code.
Your advocate is treating the refusal of temporary injunction as a refusal of stay. Consequently, he is in dilemma to either file a revision or an appeal.
Section 209 of the revenue code specifically bars the institution of appeal against granting or rejecting the order of stay. There is difference between injunction and stay.
The order of stay is against the judicial proceeding but the injunction order is against the party. You have filed an application for granting temporary injunction. Thereby you are seeking to stop the party from interference in your property. This is not a stay order hence, provisions of Section 209 do not attract.
In Mulraj vs Murti Raghonathji Maharaj [AIR 1967 SC 1386]; the Supreme Court was held that an order of injunction is generally issued to a party by which it is forbidden from doing certain acts whereas a stay order is addressed to a court which prohibits it from proceeding further.
An injunction is not synonymous since an injunction refers to an order requiring a person to act or refrain from acting and a stay is a temporary suspension of legal proceedings.
Therefore, the bar of Section 209 of Revenue Code shall not apply in your case. So, you should file an appeal under Section 207 of the Revenue Code.
