Can I file an anonymous complaint in the Domestic Violence Act because my sister’s husband does not allow her to leave the home? My sister has been living under the strict surveillance of her husband. She is facing severe domestic violence and mental torture from her husband. I want to come forward to save my sister. But I also fear that when my jija ji will harass me. When came to know that I have filed the complaint then he will torture my parents. Therefore, I want to file an anonymous complaint. Please guide me.
You cannot file an anonymous complaint under the Domestic Violence Act (DV Act) because the victim is an individual person. Court cannot take an effective action on your complaint because who will produce the evidence and assist the court to grant any relief.
Take the assistance of protection officer instead of filing anonymous complaint in DV Act
you can take the assistance of a Protection Officer for filing a complaint. According to Section 2(n) of the DV Act the State Government shall appoint a protection officer. According to section 12 of the DV Act the protection officer can file a complaint on behalf of the aggrieved person.
When you file an anonymous complaint to the Magistrate or police, they will send it to the protection officer to take further action under the Domestic Violence Act. Hence, you should directly approach the protection officer.
The Protection Officers shall as far as possible be women and shall possess such qualifications and experience as may be prescribed.
Section 8(2) DV Act
Thus you should inform the protection officer of the district, where your sister is living, about the incident of domestic violence. She will visit your sister’s house and prepare a report. After preparing the report she shall submit it to the Judicial Magistrate for taking cognisance.
The Magistrate shall take cognisance and pass a suitable relief. The court will decide which relief can effectively protect your sister from the domestic violence of her husband. Court can pass a protection order under Section 18 and prevent her husband from committing any act of domestic violence. If the facts and circumstances of the case justify the court can direct your sister’s husband to provide her an alternate accommodation. So don’t file an anonymous complaint in the DV Act if the government has established a proper mechanism for it.
The particulars of land are wrongly mentioned in the sale deed. Therefore, I want correction in the sale deed to rectify errors as soon as possible. What is the procedure for amendment in sale deed and how much expense will incur in modification? I think rectification of sale deed becomes necessary when the material information is incorrect. Please advise how to get correction and remove mistakes from sale deed?
When a deed does not reflect correct information then it becomes necessary for the parties to get correction or execute a supplementary deed. Execution of supplementary deed is expensive because you have to pay the stamp duty thereof. So here we discuss how to amend the registered sale deed?
Correction in sale deed
You should file a rectification application before the Registrar for correction or amendment in the sale deed. The Registrar has the power to correct any apparent “mistake of facts” in sale deed on a nominal fee. You should present the rectification application on the affidavit. Annex all evidence with the application which supports your prayer of corrections.
Also read: How to get correction in land record
“Mistakes of facts” means that the Registrar can correct only factual mistakes like description of property, spelling or clerical mistakes. He cannot correct any legal mistake like:
- Change the name of seller or buyer
- Particulars of another property
- Substitute a buyer or seller
- Add in the sale deed a new buyer or seller
If there is any legal mistake which is curable and no need to execute a fresh sale deed then you should file a civil suit under Section 26 of the Specific Relief Act 1963 (SRA). You should also make the Registrar as a defendant in the suit for rectification of sale deed. These are the curable legal mistakes in respect of which you can file a civil suit under Section 26 of SRA.
- Deed does not reflect the real intention of parties
- Due to fraud of a party the wrong information mentioned in the deed.
- Removal of ambiguous nature of instrument or deed.
Sale deed is an important document of ownership. Any material mistake may raise in future unnecessary litigation. The opposite party (seller or his legal heirs) can assail your property right and make unnecessary claims on the ground of mistakes in sale deed. You should initiate the proceeding for correction of the sale deed and secure your rights in the property.
My husband is a very cruel person. He has no friends and does not spend time with family. His life is monotonous and there is no space for me. My husband has refused to give divorce and set me free from his jail. He treats me like a slave therefore, my husband refuses to give divorce. I am suffering mental cruelty. My life has been ruined and I want to live a peaceful life. I have talked to my husband about divorce, but he became violent and refused my divorce proposal. I want to know whether he has a right to decide or the court will decide divorce? We both are Hindu.
Asked from: Uttar Pradesh
Section 13 of the Hindu Marriage Act (HMA) gives some grounds for divorce. Cruelty, desertion, adultery, impotency, conversion, mental disorder etc are the grounds for divorce. All these grounds are based upon the guilt theory. It does not depend upon the will or desire of the spouse.
If there is a guilt of the spouse the court can grant a decree of divorce. The court will not consider the fact that husband does not want divorce. However, consent of husband is mandatory in divorce by mutual consent. Your husband is a very ruthless person and his conduct amounts to mental cruelty. Mental cruelty is a ground for divorce under section 13 of the HMA.
Your married life has turned into a hell due to the rude behaviour of your husband. You can file a divorce case however, your husband has refused the divorce proposal.
What to do if husband refuses divorce
The divorce petition does not depend upon consent of the husband. It is a wrong assumption that a wife cannot get divorce if her husband is not ready for it. Existence of a legal ground for divorce is the only requirement for divorce. If there is a ground the wife can seek divorce.
Divorce.— (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party— (i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty;
Section 13 HMA
Cruelty includes physical as well as mental cruelty. In V. Bhagat vs. D. Bhagat (Mrs).), (1994) 1 SCC 337 the Supreme Court opined that no one has ever attempted to give a comprehensive definition of cruelty and I do not intend to try to do so. Much must depend on the knowledge and intention of the respondent, on the nature of his (or her) conduct, and on the character and physical or mental weaknesses of the spouses.
Your husband does not perform his matrimonial obligation, there is no love and affection between spouses. No wife can live in this situation. You file divorce case irrespective that your husband has refused to give divorce. These facts are sufficient to prove mental cruelty and you will get divorce without the consent of your husband.
Related: Can I seek divorce if wife commits cruelty with my mother?
My father has sold property in the influence of my mother. He sold the property to his mother in law. Thereafter, his mother in law has sold the entire property to her son. This is an intentional transfer for keeping me away from the property. I'm the only son and will inherit all property after my father’s death. My mother does not want to give me any share in property hence, she has induced my father to effect such a transfer. My father is living under the influence of my mother. What should I do to regain my property?
If your father is the absolute owner of all the properties then he can sell property to her mother in law. Absolute ownership gives vast power and the owner can alienate his property to any person. His legal heir cannot stop him from transferring property because the legal heir has no right in that property. He cannot demand division of self acquired property.
Father can sell his self acquired property
The owner of self acquired property has unfettered right therefore, he can sell, gift, mortgage or lease his land to anyone. There is no restriction on the alienation or transfer of self acquired property if it is transferred by the fee consent of the owner. Transfer of property through sale is an agreement. Hence, free consent and consideration is mandatory for a valid sale.
What to do if father sold property in the influence
You said that your father is under the influence of your mother. Therefore, your father has sold property to his mother in law in your mother’s influence. It was an intentional sale to deprive you from the property which you can inherit after the death of your father. You can seek cancellation of sale deed on these grounds:
- Lack of free consent of your father i.e. your father sold property without his free consent.
- There is a lack of good consideration.
- Ulterior motive of your mother.
Therefore, you should file a civil suit for the cancellation of the sale deed. You should also check the consideration or sale proceeds. A shady sale generally lacks good consideration. The buyer however, pays a nominal price for the property because he has no intention to purchase the property. There is sufficient grounds for cancellation of sale deed.
Section 154 of the Code of Criminal Procedure 1973 provides a procedure for lodging an FIR. There is no fee or charges for the FIR (first information report). The officer in charge of the police station shall record the information about a cognisable offence without any fee. Thereafter, he gives a copy of FIR to the informant at the free of cost.
It is the duty of every citizen to inform the officer in charge of nearest police station about the commission of cognisable offence. Section 39 of the code of criminal procedure casts such a duty upon every person. The government plays the role of prosecution in the criminal cases.
Police has the power to initiate investigation in cognisable offence without warrant and order of the Magistrate. Hence, free flow of information will enable the police to lodge an FIR quickly. Demand of money for FIR will frustrate the object of section 39 & 154 crpc.
No fee for FIR
Section 154 crpc therefore, does not require any fee or charge for the FIR. FIR sets the criminal law in motion. Therefore, early information of crime shall enable the police officer to start investigation at earliest. During the course of investigation, the police officer (investigating officer) proceeds to the place of occurrence, collects evidence and arrests the accused. Thus police can arrest the accused and collect vital evidence at early stage if he gets information on time.
Also read: What is the procedure for recording of FIR
If the police officer demands any fee or money for the recording of an FIR, the informant should send the substance of the information to the superintendent of police (SP) by a registered post. The SP upon receiving the information, either himself investigate the offence or depute a subordinate officer for investigation. So, the officer in charge of the police station is not the sole person authorised to register FIR.
Any demand of fee or charge for FIR is amount to gratification and is an offence under the Prevention of Corruption Act. Thus do not give money to the police officer for the recording of FIR. The police officer is bound to register FIR if information discloses cognisable offence. Thus he cannot demand money for lodging of FIR.
My husband is planning to settle in the USA and I want to stay in Bangalore. Therefore, we want to file a mutual consent divorce because we have decided to live separately. Can we file mutual consent divorce within one year of marriage? Our parents do not agree for divorce because our marriage is only six months old.
My husband has been selected in a multinational company on a very high salary. His future is very bright in the USA hence, he does not like to live in India. Whereas, my parents are very old and I'm the only child. They cannot go to the USA with us and I’m working in PWC Bangalore. My salary is enough to live a good life with my parents in Bangalore. Sir, please suggest how we can take mutual divorce within one year of marriage?
Asked from: Karnataka
If you want to file for divorce within one year of marriage, you need to show exceptional hardship or depravity that makes it impossible for you to continue the marriage. Section 14 of the Hindu Marriage Act 1955 prohibits filing a divorce petition within one year of marriage unless there is exceptional hardship.
To get a mutual consent divorce [Section 13-B of the Hindu Marriage Act], you must have been living separately for at least a year and both parties (spouses) must be agree that their marriage should be dissolved. However, as you have only been married for six months and are living together, mutual consent divorce is not possible.
Read also: Maintenance if divorce granted within one year of marriage
In your case, you cannot approach the family court for filing a divorce petition because no exceptional hardship exists. The ingredients of Section 13-B of the Hindu Marriage Act are also lacking in your case. So, it is advisable to change your idea to end your marital relations. If you both have other option, then live apart for more than one year then proceed with for mutual consent divorce.
In the prevailing situations it is not possible to get divorce within one year of marriage because there is no exceptional hardship like immense cruelty, apparent danger to life or limb etc.
Related: What to do when husband refused divorce?
I want to know about the visitation right of father. My wife has been living with her parents for nine months. She does not allow me to meet with my eleven months old son. She is not even ready to celebrate his first birthday with me. It is more painful for a father because he cannot meet his lovely child. Sir, I am very depressed and want to meet and take him away from her mother. Is there any law which can solve my problem?
Father is the natural guardian of his child. According to section 6 of the Hindu Minority and Guardianship Act 1956, father is the natural guardian of his minor son and unmarried daughter. After him the mother becomes the natural guardian. There is an exception in Section 6 which provides that the child below the age of five years shall ordinarily be with the mother.
Guardianship and Custody of child
Father, however, cannot take custody of his new born child but he has the right to meet or spend some time with his child. Section 13(2) the Hindu Minority and Guardianship Act 1956 enumerates that: no person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor.
When you apply for custody of your eleven months old child, the court will reject your application. The court will only consider the welfare of the child. Conduct, marital relations and behaviour of parents are immaterial in respect of custody of a child.
Visitation right of father
When the child is below the age of five years and living separately with his mother, the father has a visitation right. He cannot take custody of his child because it is in the welfare of the neonatal to be with the mother. The mother feeds him and he depends upon his mother till the age of five years.
A non custodial father i.e. a father who cannot get custody of a child under the law, has a visitation right. In this situation you have a visitation right because the father should also spend some time with his child. It is also necessary to keep the child away from the personal differences of his parents. You can spend time with your child on weekends, holidays or festivals.
The facts of your case do not allow you to apply for a visitation right because there is no separation between you. Father’s visitation right accrues after dissolution of marriage, divorce or judicial separation. When the marital relationship comes to an end the question about guardianship, custody of child or visitation rights arises.
You should try to bring your wife back to the matrimonial home. Try to settle your dispute and don’t indulge in frivolous court cases. It is good for you to talk with your wife and rule out her misconceptions.
I am living separately from my husband because he does not like me. He has extramarital relations with another woman and most of the time he lives with her. What is the right of Muslim woman while she is living separately from her husband? We have tried my best to live with him but he is a very violent and abusive person. He used to beat me and abuse me in the family. My in-laws were helpless and couldn't protest hence, they advised me to live separately. As per their advice and request of my parents I have decided to leave my matrimonial home. Thereafter, I have been living with my parents for three years.
A married Muslim woman has many rights so you should not feel help less or unprotected. There are several legal provisions which give protection to the deserted wife irrespective of her religion. You should take legal recourse and enforce your right against your husband.
Right to maintenance
Right to maintenance is the most valuable and significant right of a married woman. Husband is bound to provide a respectable life to his wife. If the husband neglects or refuses to maintain his wife the wife can claim maintenance under Section 125 of the Code of Criminal Procedure (crpc).
Section 125 crpc is a quasi criminal proceeding and supersedes the personal law so far as relates to maintenance. Hence, a Muslim woman can claim alimony from her husband as a matter of right. Thus you can file a complaint under section 125 crpc for alimony of monthly allowance from your husband.
Also read: An unemployed husband is bound to maintain his wife
Your husband is a working person and financially sound. He has sufficient means to maintain you. Hence, your complaint under section 125 crpc is maintainable. A Muslim woman can invoke her right to maintenance, u/s 125 crpc, while living separately from husband. If she has sufficient reason to live separately she is entitled for maintenance.
Right of Muslim woman under Domestic Violence
A Muslim woman can seek residence order and monetary relief under the Domestic Violence Act (DV Act). Married woman can enforce her right to live in a matrimonial home under section 17 of the DV Act.
Section 17 provides the right to residence in a shared household [SR Batra v. Taruna Batra, (2007) 3 SCC 169]. If the matrimonial home is not safe for the wife the husband shall provide an alternate accommodation under Section 19 of DV Act.
You have faced domestic violence in your matrimonial home. Hence, you are a victim of domestic violence. An aggrieved person (wife) can seek monetary relief under Section 20 of the DV Act. the court will grant monetary relief for medical treatment, loss of earning or damages to her property etc.
Also read: An educated wife is entitled for maintenance u/s 125 crpc
The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.
Section 20(2) DV Act
Thus the law protects the rights of Muslim woman even if she is living separately from her husband. When the wife is living separately due to some valid reason such a separation does not affect her rights.
My builder has issued a possession letter without obtaining an occupancy certificate. Some portion of construction is still pending and it will take a few months to complete. Can I move into the flat and take possession when the builder has no completion certificate. He is doing some irregularity in construction therefore, wants to give possession to us. Is there any legal problem in the occupancy of flat?
It is generally advisable not to take possession of a flat or move into a property until all necessary approvals, including an Occupancy Certificate, have been obtained by the builder. An Occupancy Certificate is issued by the local municipal corporation or development authority, and it certifies that the building has been constructed in accordance with the approved plans and that it is fit for occupation.
If your builder has issued a possession letter without obtaining an Occupancy Certificate, it could be considered as an irregularity and there may be legal issues related to the occupancy of the flat. The occupancy of a flat without an Occupancy Certificate can lead to various legal and safety issues.
It's important to check with the local municipal corporation or development authority to confirm whether the building has received all necessary approvals, including an Occupancy Certificate.
Builders should take a completion certificate from the competent authority before giving possession of flats. Occupancy certificate or completion certificate is an important document because it proves that the flat is fit for occupancy. It also proves that the construction has been done in compliance of building rules and other laws applicable thereon.
It's also important to document any defects or incomplete work in the property and to hold the builder responsible for any issues that arise as a result of the lack of an Occupancy Certificate.
It's also important to note that in some cases, the builder may be able to issue a "provisional occupancy certificate" which means the builder can give possession of the flat to the buyer with some conditions and if the buyer completes the pending work as per the agreement, he/she can get the final occupancy certificate.
Possession without occupancy certificate
If a flat buyer takes possession in absence of occupancy certificate it may cause harm to his property rights. The buyer may lose his property if there is any malpractice in construction work. If the builder has breached any rule or permission the competent authority can demolish the construction. Therefore, taking possession without a completion certificate may pose apparent risk.
Additionally, if the building does not have an Occupancy Certificate, the occupier may not be able to obtain basic services such as water and electricity connections. Additionally, it can also make it difficult to obtain a home loan from a bank or financial institution.
The buyer has a right under Section 19 RERA, to obtain the information towards sanctioned plans, layout plans along with the specifications, approved by the competent authority. When the buyer has assured that construction is done in conformity of law and there is no legal glitch then he can take possession.
When the builder intentionally gives possession without the occupancy certificate, the buyer can cancel the agreement. The buyer can also claim a refund of money because the builder has breached the agreement to sell. According to the sale agreement the builder is bound to take all necessary certificates and permissions from competent authority before giving the possession to the buyer.
You should not take possession of the flat in absence of the occupancy certificate. Compel the builder to take the completion certificate. You should file a complaint before the development authority or municipality or housing board if builder has refused to take OC.
What to do when promoter issues possession without having occupancy and completion certificate?
Question: What to do when promoter issues possession without having occupancy and completion certificate? Promoter given possession in Dec 2018 without having completion certificate and occupancy certificate from Noida Authority. Promoter charging interest @18% for non payment of balance 5% . Is it under rule that Promoter can charge interest for any balance payment to be made to Promoter.
Asked from: Uttar Pradesh
The promoter is doing wrong. He has no right to give possession of the flat without having completion certificate and occupancy certificate. This constitutes a deficiency in service [Treaty Construction v. Ruby Tower Coop. Housing Society Ltd., (2019) 8 SCC 157] as well as a breach of law.
You should immediately bring this information on the knowledge of the Noida Authority. However, this is a deficiency in service hence you can file a complaint in the consumer forum for directing the promoter to take valid permission and compensate the buyers if there is any defect in permission. If the value of property is beyond fifty lakh then you can file the complaint in the state consumer commission, Lucknow.
I have booked a flat in 2016. The builder has promised to deliver the flat in 2018. After five years his project is still in progress. Now the builder is giving possession in another apartment. That apartment is far from the city and I don’t want to take possession. Whether the builder can compel to take possession in another apartment? I have paid the full amount to the builder and nothing is due. Therefore, he wants to grab my money.
Asked from: Uttar Pradesh
Builder cannot force you to take possession of a flat in another apartment because it is a breach of agreement to sell. When the particulars of a flat have been mentioned in the agreement to sell then the builder cannot sell another flat. Any deviation or change in agreement will cancel the original agreement. Thereafter, you have an option to refuse to perform the original agreement to sell.
Builder cannot compel to take possession in another apartment
You can refuse to take possession of a flat in another apartment and claim a refund of money. If you agree to take possession of that flat you should substitute a new agreement. Section 62 of the Indian Contract Act explicitly says that novation of agreement rescinds the original agreement and parties are not bound to perform the original agreement.
Also read: What to do when builder does not give possession of flat?
The proposed flat is far from the city and you don’t want to take possession of that flat. Hence, you should refuse the builder's offer to take possession and claim a refund of money with interest. When the builder has offered to take possession of a flat in different apartment he has shown his intention to rescind the agreement to sell. Now you have accrued a right to cancel the agreement to sell.
Builder has breached the agreement hence, he is liable to compensate. The compensation shall be to the extent of financial loss you have suffered due to cancellation of agreement. You can also claim interest upon the money you have paid to the builder and litigation expenses.
Flat buyer can also claim refund of money under RERA
Builder cannot offer to take possession of the flat in another apartment because he cannot deliver the agreed flat within time. Section 18 of the RERA empowers the flat buyer to claim refund of money from the builder or promoter if he fails to give possession of the flat within time. Each agreement to sell or allotment letters has a time period. The builder is bound to deliver the possession of the flat within that time.
Also read: How the flat buyer can claim refund from the builder
In your case, the construction is still in progress. Builder has promised to deliver the possession in 2018. The time is the essence of agreement therefore, the builder has to obey it. He has not followed the time period hence, you can claim refund of money under section 18 RERA with interest thereupon. Builder cannot absolve his responsibility by giving possession in another apartment.
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