Can I lodge an FIR after ten years of incident? My boyfriend had raped me in my PG when I was studying in engineering college. Now I have joined a multinational company and am working in Bangalore. He has traced me and is now trying to establish a relationship. I am married and a mother of two childs. Can I lodge an FIR after ten years of incident? I want to take stern action against him. He is a womaniser and exploiting women sexually and emotionally.
There is no limitation period if offence is punishable with imprisonment of three or more years. Rape is punishable with regorous imprisonment with not less than ten years. Hence, delay in lodging FIR does not matter in respect ot rape cases.
Therefore, you can lodge a first information report (FIR) against him under Section 376 of the Indian Penal Code. But you have to prove that he has committed rape. If you fail to prove sexual intercourse without your consent then the court will acquit him.
After ten years of incident no physical marks will be found on your body. You are a married woman, hence, your hymen has already ruptured. Therefore, the investigating officer will not get any kind of forensic evidence from your body.
Thus, your case is entirely based upon circumstantial evidence. However, oral statement of prosecutrix is sufficient in rape case to lodge FIR. But the burden of proof lies upon the prosecutrix.
If you have any evidence to prove that he had committed rape then you should proceed further. Otherwise you should drop your idea to lodge FIR after ten years of incident.
If he commits a fresh offence like stalking then you should lodge an FIR against him. In that FIR you can club the offence of rape which had committed ten years back. Because you can prove his conduct and criminal intention.
My neighbour's window shutters are opening in my area of boundary; he has not left adequate setbacks. His solar pipes are continuously leaking into our entrance passage. Even on request he is not doing anything about these problems. Please advise. Should I move legally to fix the problem about my neighbour's window shutters and other problems.
Your neighbour is causing a nuisance because water is oozing from the solar pipes and which is falling in your premises. Hence, you can initiate legal proceedings against him. If the nuisance is sufficient to breach the public tranquility then you can approach the executive magistrate under Section 145 code of criminal procedure for taking a bond/surety from your neighbour to maintain peace. You can seek immediate removal of solar pipes and shifting it to another place. Your neighbour has no right to use your boundary wall for fitting his solar pipes.
Civil suit for permanent injunction
Opening a window shutter in your area is a breach of privacy and illegal interference in the right to peaceful enjoyment of property. You should file a civil suit for permanent injunction restraining defendant (neighbour) from opening window in your side. Your neighbour is infringing a public right hence, he shall also pay compensation for his illegal act.
In Kaur Sain v. Bibi Birinder Kaur AIR 1971 P&H 489 the Punjab and Haryana High Court has held that
A person has a right to open windows and ventilators in his own wall abutting his neighbour's land unless thereby he invades the privacy or other pre-existing and well established right of his neighbour.
In Maniram Rameshwar Prasad Hazare v. Vinod Kumar AIR Online 2021 KAR 1498; the Karnataka High Court has held that decree of mandatory injunction seeking direction to defendant to close four windows is proper because he failed to prove that he has an easementary right to open that windows in the area of plaintiff.
You should seek an interim relief i.e. to shut the window till the further order of the court. The court may grant ad-interim relief at the very first hearing of the case.
Before filing a civil suit you should send to him a legal notice to permanently close the window area. When he does not act after receiving the legal notice then you should file a civil suit.
Sending legal notice is, however, an attempt to settle the issue out of the court. Since it is not mandatory in the breach of public rights. But you may avail this remedy to get ad-interim relief at the very first hearing.
The court may think that the plaintiff has tried the amicable settlement of the issue but after failing he is filing this civil suit. Then the court may pass an interim order and direct the defendant to close the window till the further order of the court.
Can the high court put a stay on my interim maintenance order? I had applied for maintenance after my husband filed a divorce. The session court has passed an order for interim maintenance, to which my husband is going to appeal in the high court to put a stay. What can I do in such circumstances? Can the high court put a stay on the interim maintenance order passed by the session court?
The High Court will not stay the order of interim maintenance if the wife is living in destitution. It is the responsibility of the husband to maintain his wife and children. Court grants interim maintenance, during the pendency of proceeding, to empower the wife financially to contest her case.
In these circumstances the High Court can interfere in the order of interim maintenance:
- When the amount of interim maintenance is too high or excessive.
- If the wife has sufficient means to maintain herself.
- The amount of maintenance is unproportionate to the net income of the husband.
- Maintenance order has been passed without affording an opportunity of hearing to the husband.
In the above conditions the High Court may stay the implementation of order and send a notice to the wife. You should appear and satisfy the court that the order of maintenance is just, reasonable and in accordance with law.
If the above conditions do not exist in your case, the High Court will not stay the effect of interim maintenance order. A working wife is also entitled for maintenance if she is not in position to maintain the standard which would have been in her husband’s home.
So far as interim maintenance is concerned, the reason behind is to enable the wife to bear the expenses of litigation. If wife is earning but may face hardship in handling legal proceedings the court may grant interim maintenance.
Forfeiture of earnest money in withdrawal of tender. I am a contractor and have some tenders in BHEL. The Bhel has forfeited earnest money because I have withdrawn a tender. So I want to know whether forfeiture of earnest money in withdrawal of tender is legal in India. BHEL has published tenders for the supply of several heavy electrical equipment. I have applied for two of them but later on I came to know that the global price of copper is likely to rise in the coming months.
Therefore, I have withdrawn the tender before the opening of the technical bid. There was a process to withdraw the tender before opening of technical bid. I have intimated the technical officer for not considering my bid for the technical approval. But BHEL has considered my bid in the technical approval and opening of financial bid is pending.
After opening the technical bid and found that I have qualified I immediately sent an intimidation letter to the concerned authority. I informed him that I have previously sent an intimation that I am withdrawing my bid.
When the financial bid is likely to open I personally approach the BHEL and demand refund of security money and earnest money. But the manager refused to do so and he gave me a letter that if I withdraw my bid BHEL will forfeit earnest money.
This is an illegal act and I want your legal opinion regarding the forfeiture of earnest money on withdrawal of tender. I have withdrawn my bid before the opening of the technical bid. I informed the BHEL much before taking decision on the technical bid. What remedy do I have against forfeiture of earnest money?
You have the legal right to withdraw a bid anytime. If there is a condition that earnest money will be forfeited on withdrawal of tender, then you have no right to claim refund of earnest money.
But, forfeiture of earnest money comes into force when the bidder does not perform a certain act. When you have entered into a bid or tender, you cannot withdraw it unilaterally.
Participation in a bid shows the intention of making a bid. Hence, a genuine bidder must adhere to the terms and conditions of the bid. If there is a clause or condition that the bidder may withdraw the tender before a certain stage. Then the bidder has the right to withdraw and claim a refund of earnest money if he has withdrawn his offer before that stage.
According to Section 5 of the Contract Act, a person may have a right to withdraw his offer before its acceptance. Selection in technical bid infers that the bidder's offer has been primality accepted. If you withdraw your bid at this stage then you have to lose earnest money.
But you have intimated far before the opening of the technical bid. Hence, you can claim a refund of earnest money. Until the consideration of bids for technical qualification, you can withdraw your offer. As per the section 5 of the Contract Act, you are withdrawing your offer before its acceptance.
BHEL has illegally forfeited earnest money. In State of Haryana vs Malik Traders (2011) 13 SCC 200; the Supreme Court has held that the right to withdraw an offer before its acceptance cannot nullify the agreement to suffer any penalty for the withdrawal of the offer against the terms of agreement.
Agreement itself provides that the bidder can withdraw his proposal before opening of technical bid. Hence, BHEL cannot forfeit earnest money if a bidder has withdrawn his bid before opening of technical bid. Such a forfeiture is against the terms of the agreement.
You should file a writ petition in the High Court under Article 226 of Constitution of India. You should seek quashing of forfeiture order and refund of earnest money.
Arbitration in respect of non-arbitrable issues. Some tenders were issued during last financial year. Tenders were in respect of fencing and drainage on both sides of the road. The department has allotted those tenders to my company. Company has to conduct a survey of land and demarcate slope angle for the drainage.
My engineers have committed errors in finding slope and constructed drainage up to seven kilometres in length. One supervisor team found that mistake and directed the company to stop the drainage work immediately. In the work agreement no arbitration clause is existing regarding the compensation in respect of fault in the decision making process.
But the company has filed an application under Section 11(6) of the Arbitration and Conciliation Act 1996 for the appointment of the arbitrator. The agreement is silent towards the compensation if fault is committed by the party. What should I do and what action is possible in the present circumstances?
My company has been suffering huge losses due to mistakes. The officers of the concerned department were not brought to notice until the supervisor is unveiled in his report. This is also the fault of the concerned department. It has the responsibility to check and inspect the work and intimate my engineers.
All payments are stalled and the department is not ready to clear a single cheque. If the same things persist the department can blacklist my company. Then I’ll not receive any tender from the government department. Please help.
You said that the particular issue is not mentioned in the arbitration clause of the tender agreement. If an issue which would likely to be decided by the arbitrator is not mentioned in the agreement, that issue is called a non-arbitrable issue.
Hence, the party cannot execute an arbitration clause and cannot send that issue to the arbitrator for its decision. Arbitration is a mechanism for quick redressal of disputes out of the process of the court.
This is out of the court settlement process hence, agreement between parties is mandatory. The parties to the agreement can settle their dispute through arbitration if these conditions are fulfilled:
- Existence of arbitration clause in the agreement.
- Enforceable claim is existing between the parties
- The dispute is arbitrable i.e. parties are agreed to refer that dispute to the arbitrator.
In your case the third clause is not existing. The particular issue is non-arbitrable because you did not agree to refer that issue to the arbitrator for determination.
Your engineers have committed mistakes in levelling of land. Hence, the slope of drainage is not proper. This is an extraneous condition and you did not think about this at the time of agreement. hence, not included this dispute in the agreement. In lack of particular provision in the agreement (tender agreement) you cannot refer this issue to the arbitrator.
The Supreme Court in KSS KSSIIPL Consortium vs GAIL (India) Ltd (2015) 2 SCC (Civ) has held that before exercising power under Section 11(6) of the Arbitration and Conciliation Act, to make appointment of the arbitrator, court has to determine existence of arbitrable dispute between the parties as per the terms of the contract.
In this situation you should file a civil suit for compensation. However, you cannot avail arbitration but you can still enforce your right through the regular legal process. You should send a legal notice to the department and demand compensation. Upon refusal to pay compensation you should file a civil suit.
Can Magistrate direct investigation under Section 156(3) on my complaint. I have filed a complaint under Section 200 of the code of criminal procedure. When my advocate presented that complaint before the Metropolitan Magistrate, he heard the advocate and directed the police authority to investigate the matter. I want to know that can the Magistrate direct an investigation under Section 156(3) on my complaint? He did not take evidence and take our statement. I think he is doing his job under pressure from police authority because the matter is related to a property dispute with a police officer. Now the police are compelling me to withdraw my complaint. I am in limbo and could not understand what to do in this circumstances. Please help.
The Magistrate has exercised his power as provided to him under the provisions of the code of criminal procedure (crpc). When the Magistrate receives a complaint under Section 200 crpc he can take cognisance of the alleged offence under Section 190(1)(a) crpc. If he takes cognisance then he shall record the statement of the complainant and witnesses thereafter issue the process (summons/warrant) under Section 204 crpc.
It is not mandatory for the Magistrate to take cognisance of offence on each complaint. He has the power to exercise his discretion and do a thing which he deems fit in the facts and circumstances of the case.
When the Magistrate does not take cognisance but thinks that a thorough investigation would meet the interest of justice, he can direct the police under section 156(3) crpc to conduct an investigation and submit a report under Section 173 crpc.
The Magistrate, without taking cognisance, can direct the concerned police officer to conduct investigation under Section 156(3) crpc. When the investigating officer submits a report under Section 173 crpc then Magistrate takes cognisance.
The Magistrate has followed the above provision hence, you cannot say that he is wrong. So far as undue influence of a police officer is concerned, you can take proper action against them. You should move an application to the Magistrate for monitoring of investigation.
In Sakri Vasu v. State of UP, (2008) 2 SCC 409 the Supreme Court has held that the Magistrate has ampel power to monitor investigation. He can change the investigating officer or call status report from the investigating officer and pass any appropriate order in the interest of fair investigation.
You should specially mention in the application about the undue influence from the police officers. The Magistrate can direct the superintendent of police to initiate departmental proceedings against those police officers.
Housing society is demanding extra charges for car parking. I have a flat in the apartment. The housing society has provided me with one car parking in the basement. I have three cars and two of them have been parked in the common area. Now the housing society is demanding extra charges for car parking in the common area. It has charged 200 rupees daily for one car and 500 rupees daily for the additional car. These charges are illegal.
The housing society has provided one underground parking for each flat owner. Some flat owners have more than one car hence, they are parking their car in the common area. Now the housing society is demanding extra charges for parking. However, the common area where we are parking our cars is not creating any nuisance. I want to take legal action against the housing society.
The housing society has the right to collect extra charges for the parking in the common area. Actually it is in the interest of society to defeat the culture of increasing the number of unnecessary cars. If the member really needs more cars than one then he has to pay the extra charges.
Car parking, lawns, corridors etc consist of common areas. This area is common for all owners. No owner can claim his exclusive right therein. The housing society bears the responsibility to maintain this area. Therefore, it can levy charges for maintenance and repairing of the common area.
Members can use the common area for their car parking if society allows. Hence, they should contribute in the form of a stipulated fee to manage expenses for the management and repair of common areas.
Members cannot use the common area for the car parking or any other purpose as the matter of right. No law which gives power to claim a particular right towards the common area.
If a certain portion is allotted for extra car parking then members who are using that area have to pay the maintenance charges. The charges are fixed by the society after consultation with the members. Hence, you cannot say that charges are unreasonable.
The society can levy heavy charges to discourage parking of cars in the common area. If you are availing that facility you have to pay the extra charges. If not then no need to pay that charge.
Society cannot make a general rule and apply it universally. The member who is not using the common area for car parking is not liable to pay the extra charges.
You have no right to park multiple cars in the common area without paying any fee thereof. In Anup Mittal (HUF) v. M/s. Kanungo Co-operative Group Housing Society Limited & others (2016) 228 DLT 528 the Delhi High Court has opined that:
The common areas are meant for the utilisation by all members and no one member can appropriate the same to his personal use, even temporarily.
Thus you have to follow the rules and pay the extra fee for the car parking in the common area. So far as the amount is concerned, you can raise your objection in the annual general meeting or call an emergency meeting for restructuring of fees.
BPCL forcefully vacating me from my land after termination of dealership. I am a dealer of petrochemical products like petrol and diesel in Uttar Pradesh. The Bharat Petroleum Corporation Ltd (BPCL) has terminated my dealership and is now forcefully vacating me from my land. I am the owner of this land and signed an agreement with the BPCL for selling of petrol and diesel. The act of BPCL forcefully to vacate me from land is illegal so I want to initiate legal action against the BPCL. There is a lease agreement between BPCL and me. According to the lease agreement the BPCL is paying twenty five thousand as premium for my land. Total area of my land is about three acre. The current market value is about twenty three crore rupees. The rent is very miniscule. Therefore, I want to evict the BPCL from my land. Please give me some advice.
You should carefully read the terms and conditions of the lease agreement between BPCL and you. As I read the latest advertisement regarding the dealership of petrochemical products, the oil company is the lessee. However, you are the owner of this land. But the BPCL has taken your land on lease for a fixed term.
Therefore it is paying a premium which is twenty five thousand rupees per month. You have been receiving that premium. The status and capacity of BPCL as a lessee is clearly determined. There is no flaw in the agreement regarding the use of this land by the BPCL.
There are two separate agreements. One for the lease of the land and another for the dealership. Both deeds are independent. If the termination of dealership is illegal you can challenge it in the proper forum. You can avail arbitration clause of the agreement and challenge the cancellation of dealership before the arbitrator.
Also read: Termination of dealership on committing fraud
So far as lease agreement is concerned, you can not evict the BPCL at your own will. You can terminate the lease agreement only on the grounds mentioned in the agreement or breach of any statutory principles. The BPCL can allot the dealership to any other competent person on the leased land. You will receive the premium throughout the period of lease agreement.
Hence, you cannot take any legal action and evict the BPCL from the land only on the ground that it has terminated your dealership. As per the lease agreement you cannot say that BPCL is forcefully vacating me from my land.
My elder brother is trying to grab our joint family property. He said that the property is a self acquired property of our father. My grandfather had purchased land and built a small house thereon. His family was living in that house. Later on my father constructed seven rooms and a servant quarter. However, my father was not living in that house in his service tenure. We are four siblings. Two brothers and two sisters. Since my elder brother has no source of income, I thought that his livelihood would go smoothly on the rental income.
When I got a job in the Ministry of Railway, I sent money to my elder brother and constructed two additional floors. There are five tenants and annual income coming from rent is about 5.6 lakhs. Now he is saying that my father has transferred the entire house to him by a registered will. I have doubts that the said will is genuine. Sir please help.
Asked from: Uttar Pradesh
This is a joint family property and your father had no right to transfer the entire house through a testamentary will. Some facts are undisputed and you have evidence to prove it. The facts are:
- Your grandfather has purchased the land.
- He built a small house thereon.
- His family was residing therein.
- Your father constructed the ground floor.
- You have remitted money in your elder brother’s account for the construction of two additional floors.
- Your elder brother has only one source of income i.e. rental income.
- Elder brother is claiming the entire property because of a testamentary will.
All the above said facts are undisputed. Even your elder brother cannot say that any of those facts is false. He is claiming the right to the entire property because of a will. Now the question is whether your father had the power to transfer the entire house through a will?
The above facts squarely indicate that the house is a joint family property. Your grandfather, father and you have contributed to the building of such a big house. Three separate funds were used. All the family members have enjoyed this property. Hence, it is proved from the facts that the house is the hotchpot of joint family property.
Also read: Which property is called ancestral property?
Your father was not a sole owner of this property. Hence, he could not execute a will and transfer this property to his elder son. Since it is a joint family property so all the siblings have a joint ownership. This fact renders the will illegal because the testator had no right to make it.
You should file a declaratory suit and declare your right in this property. You are entitled to get one fourth share in this house. However, you have constructed two additional floors but you cannot claim your title in those floors. You have shown your intention through the conduct that you have brought them in the joint stock of family. Therefore, you cannot claim that it is your separate property.
Also read: What to do when coparceners denied share in joint family property
Transferred all property by concealing the Will. The daughter in law of the nephew has transferred all property by concealing the will. Can I challenge that transfer and claim over the property? There are 2 brothers, out of which the 1st brother has 2 sons and the 2nd brother does not have any childrens. 1st Brother is dead and has no property. the 2nd brother has property and belongs to him post his wife's expiration. Suddenly out of 2 legal heirs (Sons) of 1st brother, all property has been transferred to the daughter in law of 2nd Nephew and daughter in law of 1st nephew who was head in the family post her husband's death on seniority and as per Ration card. There was a will made by the 2nd brother (Head owner of property) which was handed over to the 1st daughter in law however it was stolen later on without the knowledge of 1st DOL on the last breath of Property owner.
Now the 2nd daughter in law has transferred all property in her name, and the 1st daughter in law does not have any survival except the only married daughter. Half of the property was made by Head of the family and other half was made by the 1st Nephew who has all details but personal diary of all transactions (No registry/Will paper) Can 1st daughter in law claim for the ownership rights as 2nd daughter in law is threatening to throw them all without any compensation or home.
The second uncle has executed a testamentary will and devolved all property to you. That will is the last and final will. According to the will you are the real owner of all properties. In this situation the daughter in law of the nephew has no right to transfer all those properties to anyone.
As per the will, you are the real owner. She has transferred all properties by concealing the existence of will. She has committed an offence which is punishable under Section 419/420/467/468 of the Indian Penal Code. You can lodge a first information report against her.
When she has transferred all properties hence you should also file a civil suit for the consolation of those alienations. There is a will hence, you should file a probate proceeding in the District Judge’s court. Without filing the probate you cannot get property in accordance with the will.
All those proceedings are essential in your case. You should file all the above mentioned cases simultaneously. Article 137 of the Indian Limitation Act grants three years of limitation period for filing probate.
Since, the fact of will was deliberately concealed by the daughter in law of your nephew. Hence, fresh limitation will start from the date when the fact about concealing of will is unveiled. Make a prayer for condonation of limitation under Section 5 of the Limitation Act.
