My husband has recorded a whatsapp conversation with my mother and is blackmailing me to reveal them. He wants to divorce me because he loves another girl who is working in his office. He is thus collecting evidence for filing a divorce case. I have made some allegations against my husband in recording of whatsapp chat. He is torturing me to reveal them and pressuring me to sign a mutual consent divorce.
It is advised that you do not sign a mutual consent divorce. This is because mutual consent divorce is an agreement that requires the free consent of both parties for it to be considered valid under Section 13-B of the Hindu Marriage Act (HMA). Your husband is attempting to obtain your consent through coercion or blackmailing, which does not constitute free consent.
Recording WhatsApp conversations has no legal value and is not admissible in court. Although your husband may think that he can take your consent by threatening to reveal your conversations, he cannot do so as these conversations hold no legal value.
Also read: Section 55 of CPC: Arrest and detention
As you are performing your matrimonial obligations and living with your husband in the matrimonial home, he has no grounds to seek divorce under Section 13 of the HMA. Grounds such as cruelty, desertion, unsound mind, mental disorder, and venereal disease are some grounds upon which a husband can seek divorce. The WhatsApp conversations recorded by your husband do not prove any of these grounds for divorce.
To stop your husband from marrying his colleague, you should file a civil suit for a permanent injunction. You should also demand temporary injunction under Order XXXIX Rule 1 & 2 of the Code of Civil Procedure. The court shall grant temporary injunction as an interim relief, thereby preventing your husband from solemnizing another marriage in the pendency of the civil suit.
Your husband's adulterous relationship with the other woman makes him the guilty party, and he is precluded from availing any matrimonial remedy against you. The recording of the WhatsApp chat is a mere threat and should be ignored. It is advised that you watch your husband's activities closely and take appropriate legal action when necessary. Try to get his WhatsApp messages.
My husband and I live in the United States of America (USA). We are incompatible and cannot live together. Therefore, we have decided to break our marital relations. We have thus filed a mutual consent divorce case and recently the American court has passed a divorce decree. How to execute foreign divorce decree in India? Whether we will have to file a fresh divorce case in India? I have decided to live in India therefore, I want execution of American’s court in India.
You can execute the foreign divorce decree in India if the decree does not violate any law prevailing in India. The mutual consent divorce is also prevailing in India. Section 13-B of the Hindu Marriage Act 1955 provides divorce by Mutual Consent.
Next step is to check whether the conditions of Section 13 of the Code of Civil Procedure (CPC) have complied or not. Section 13 says that foreign judgment is conclusive in India in respect of the matter adjudicated thereto if these conditions are fulfilled.
- Decree should be passed by a competent foreign court.
- The decision was given on merit of the case.
- The Court has adopted the correct view of International law.
- Decree should recognise the law of India.
- Proceeding of court should be in conformity with the principle of natural justice.
- Decree should not be obtained by fraud.
- Sustain a claim which does not breach any law in force in India.
How to execute foreign decree in India
If the above conditions are fulfilled then you can easily execute foreign divorce decree in India. The Hindu Marriage Act recognises the mutual consent divorce then decree is prima facie does not violate Indian law. You both have given their consent and there is no dispute remaining to adjudicate.
The court has finally adjudicated your matter and the right to appeal has either exhausted or waived. Thus you can proceed to execute the decree of American court.
File an application under section 44A CPC
You should file an application under section 44A of the code of civil procedure (CPC) for execution of foreign decree in India. The application shall be filed before the district court within whose territorial jurisdiction you reside.
Also read: What is the procedure for execution of foreign decree in India?
There is no limitation period for filing an execution application in India [Baroda v. Kotak Mahindra Bank Ltd. 2015]. You should take a certified copy of the decree from the court. The seal of the court should be clearly visible.
Our housing society has embezzled the corpus fund of five crore. When the officer bearers of the newly elected RWA searched the books of account the embezzlement was revealed. Now, the former officer bearers are refusing to give any information about the corpus fund. They have misappropriated it for their own benefits and now showing reluctance to give details. What should society do in this circumstance?
Society is not an owner of the corpus fund. The flat owners contribute and raise a corpus fund for the maintenance of the property. The promoter or builder charges a fixed or variable amount to create a fund for maintaining amenities and hands it over to the society. Thus, society is the trusty of the corpus fund.
Embezzlement of corpus fund by society
When the society has embezzled the corpus fund the flat owner should file an FIR under section 406. They have committed the offence of criminal breach of trust which is punishable under section 406 IPC.
It is however, not possible for individual flat owners to lodge FIR against the officer bearers of previous society. Hence, the newly elected society should register an FIR for criminal breach of trust. The president and treasurer are the main culprits because they have control over the fund of society including the corpus fund. They are responsible for any misappropriation of funds.
Also read: No share certificate to illegal flat owner
The society’s bye laws states about the manner and purpose to which the society can utilise the funds. If the expenses were not authorised by the bye laws of society the society will be responsible for the embezzlement.
Proceeding against society for misappropriation of corpus fund
You should initiate proceedings against the former office bearers of society by sending a legal notice. The newly elected society should demand from them to produce books of account and furnish details of expenses out of corpus fund. If they do not reply to the legal notice within a reasonable time period then society should lodge FIR for embezzlement of corpus fund.
Call an emergency meeting of society and table the resolution for initiating criminal proceedings against the former officer bearers for embezzlement of corpus funds. Pass that resolution from the society and take steps. The society should take a certified copy of transaction details from the bank. Collect minutes and resolutions passed by the former society for maintenance work. Thereafter lodge an FIR.
My wife is suffering from chronic mental disorder therefore, I want divorce. Sometimes she becomes more cruel and beats me with anything she has in her hands. Can I get divorce for the cruel behavior of wife? She does not behave like a wife. When guests come to my house she threatens to get out of my house. Sometimes she sits on the balcony wearing only a bra and panties. When I object she abuses me and throws anything she finds.
Asked from: Uttar Pradesh
Your wife is suffering from a mental disorder to such an extent that you cannot live with her. It is impossible to live with her because she does not have basic intellect. You can get divorce for the cruel behavior and mental disorder of your wife.
Cruel behavior of wife: ground of divorce
Cruelty is also a ground for divorce under section 13 of the Hindu Marriage Act. Quarrel between husband and wife on trivial issues which happens in day to day married life does not amount to cruelty of wife. Therefore, it does not form the basis of divorce.
When the cruelty of wife becomes her general conduct and it sometimes converts into a brutal or violent behavior then it amounts to a ground for divorce. The apparent fear of life and limb to the spouse or inability to live a peaceful married life due to cruelty entitles the victim to get divorce.
Also read: Divorce on abnormal behavior of wife
Your wife’s cruel behavior is yielding from a mental disorder. You can get divorce whether her mental illness is curable or not. An incurable mental disorder is a ground for divorce under section 13 of Hindu Marriage Act (HMA).
Due to the cruel behavior of your wife however, it is the result of mental disorder, no one can expect to live a peaceful life with her. Hence, you can get divorce on cruel behaviour and mental disorders.
File a civil suit under section 13 of the HMA. If you have her medical history then it will further strengthen your case. You should consult a physiatrist to get his opinion about her mental illness. You can use the opinion of a physiatrist as evidence to prove her mental disorder and cruel behavior. Cruel behavior due to incurable mental disorder is an essential element for divorce.
Related: Whether divorce possible within one year of marriage?
I want divorce on the mental illness of my wife. She has been suffering from mental illness for fifteen years. Her father has concealed this fact at the time of marriage. Now I came to know this fact when she went to her home and was admitted in hospital. She used to complain about pain in her hand, back, and leg. We did not understand the real problem behind such an imitation. Actually she is trying to conceal this fact and making false complaints about ache.
Now I have decided to file a divorce case and get rid of her due to her mental disorder. Her father is a cheater and he has deliberately concealed this important fact. If I knew about her illness then I would not be ready for the marriage. Her father has deceived me. I also want to claim damages from her father. Please guide me sir.
Asked from: Karnataka
You cannot get divorce because of medical grounds if her disease is curable. Section 13 of the Hindu Marriage Act does not permit to get divorce on curable illness. You are, as a husband, responsible to give her proper medical treatment. It is a misconception in the general public that any kind of mental illness is grounds for divorce.
Divorce on medical ground
Section 13 however, enumerates some grounds for divorce. The grounds are
- Incurably of unsound mind
- Suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
- Virulent and incurable form of leprosy.
- Venereal disease in a communicable form
Divorce on mental illness
Mental disorder of a wife however, is a ground of divorce but only when the husband cannot live with her due to such a mental disorder. If the wife is unable to understand what marriage and marital obligations are then the husband can get divorce. Abnormal behaviour of the wife due to mental disorder or schizophrenia is a ground of divorce.
If your wife is suffering from an arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind then you can get divorce. The gist of divorce on mental illness is that the husband cannot live a married life due to the incurable or grievous mental disorder of his wife.
Read also: Can I seek divorce on the ground of cruel behaviour of wife?
The Sub Divisional Magistrate (SDM) kept me in illegal custody for breach of peace. He has postponed the date of hearing for two weeks therefore, prevented me to furnish bond. There was a dispute with my neighbour. He has encroached my land. Due to it a dispute erupted between us. He has good contact in the police department hence, he called the police and sent me to jail under Section 107 crpc. Both police and SDM have connived to keep me in custody and carry on the construction work of my neighbour on my land.
Section 107 of the code of criminal procedure empowers the Executive Magistrate to take bond from the person who is likely to commit breach of peace or public tranquility. This is a preventive measure and SDM must issue a show cause notice before taking bond for maintaining peace. If the person cannot furnish a bond then SDM can send him in judicial custody. Judicial custody in violation of section 107 renders the incarnation an illegal custody.
Section 107 crpc: When an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity and is of opinion that there is sufficient ground for proceeding, he may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit.
Illegal custody u/s 107 crpc for breach of peace
When the SDM receives information about probable breach of peace he shall issue a show cause notice to the proposed offender. The proposed offender shall reply to the notice and deny the suspicion of breach of peace or public tranquility. If the SDM satisfies the reason set forth from the proposed offender he will not demand a bond. Otherwise he shal order to furnish a bond with or without surety for keeping peace.
It is thus evident that the issue of show cause notice is mandatory. If the executive magistrate has demanded bond without issuance of a show cause notice he violates the provision of section 107 crpc. Detention in violation of legal provision renders the custody illegal. You have a remedy to approach the High Court under Article 226 of the Constitution of India.
The SDM has cleverly sent you in custody for breach of peace. He has thereby violated the provisions of section 107. He did not give you an opportunity to furnish bond and adjourned the case for two weeks. Therefore, you have been prevented from furnishing a bond and set free from the incarnation. This act of SDM is a clear violation of personal liberty.
Article 21 of the constitution: Right to life and personal liberty
Article 21 of the constitution guarantees the protection of life or personal liberty of every person. Any breach of personal liberty by government instrumentality will not be tolerable. The High Court will direct the government to compensate you for violation of right to life and personal liberty [Kharak Singh vs State of U.P.]
Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.
Article 21 constitution of India
Remedy against illegal detention
You should file a writ petition before the High Court under article 226 of the constitution of India. It is the responsibility of the government to protect the fundamental right of every person. Right to life is the most significant fundamental right. Keeping a person in illegal detention in violation of law is indeed a breach of right to personal liberty.
The SDM has intentionally postponed the case and fixed a very long date to furnish a bond. Thereby, he forcefully kept you in custody for two weeks. The SDM has deliberately assailed your right. Therefore, you are entitled to claim compensation from the state government.
Also read: What to do in undue harassment by neighbour?
The High Court will also direct the state government to initiate a departmental enquiry against the SDM. He has kept you in illegal custody in violation of the provision of section 107 crpc. Thus, departmental enquiry is imminent in the circumstances of your case.
I'm working in a private company under a work agreement. That contract does not allow the employer to fire the employee without expiration of notice period. My company has terminated. The termination is without notice. The company has fired me without notice and expiry of a thirty days notice period. What should I do when a company has breached the terms of a work contract? My total service period is sixty nine months. Does an employee have any right if he is fired in violation of the terms of agreement?
Your service duration is sixty nine months. The employer cannot fire such an employee without compliance of the notice period. Compliance with the notice period is mandatory because it is mentioned in the work agreement. Both employer and employee are signatory then any deviation from the agreement is not possible. Thus the company cannot fire you in an arbitrary manner.
Termination of service without notice
If the employer suffers huge financial loss due to an illegal act of the employee then it can terminate the service without notice. In this situation the employer does not follow the notice period mentioned in the agreement. The employee works as an agent of the employer so he should not do any illegal act in the course of employment. If he did so he breached the agreement. Therefore, the employer can fire him without notice.
Also read: Termination of service on leave without permission
Termination after notice period
If there is no breach of agreement on the part of the employee the employer is bound to obey the terms of agreement. When an agreement explicitly mandates that the employer should follow the notice period before termination, he cannot terminate the service without notice.
You did not breach the agreement. You have served the employer for more than five years. Such a long tenure of service itself proves that you are a good employee. Therefore, the responsibility lies upon the employer to give you a fair exit. The terms of agreement must be followed while terminating your services. If the employer wants to terminate you immediately he must pay the salary of thirty days.
Send a legal notice to the employer
You should send a legal notice to the employer for breach of agreement. When notice period is mandatory its non performance will lead to a breach of agreement. Give a reasonable time to the employer to reply to your legal notice. You should seek a valid reason for termination and compensation for the non compliance of notice period.
If the employer does not reply to your notice then you should file a case before the labour tribunal constituted under the Industrial Dispute Act. you are entitled to get salary for the notice period and compensation for the breach of agreement.
My ex-boyfriend is sending obscene messages to my husband. Those messages contain pronographic photos and videos. Majority of those photos are photo shop. My husband however, showing faith in me but I want to take legal action against my ex-boyfriend. He wants to ruin my married life therefore, inducing my husband through those messages. Whether sending obscene messages constitute offence? If yes, please tell me in which section I can prosecute him?
Sending obscene messages is an offence punishable under under Section 67 of the Information and Technology Act 2008. Section 67 of IT Act punishes the transmission or publication of lascivious material in electronic form. This offence is punishable with imprisonment for a term of three years. The court may also impose fine up to five lakh rupees.
You can take legal action against your ex-boyfriend for sending obscene messages. All the ingredients of section 67 are meeting in your case. Most of those photographs are pronographic materials. They tend to deprave or corrupt the mind of persons who read or see them. The photoshop images prove that he has the intention to harm your reputation. His criminal intention is thus proving from those messages.
You have evidence to prove that he has sent obscene messages. Therefore, you should lodge a first information report (FIR) against your ex-boyfriend. He has the intention to harm your reputation therefore, sent doctored photos and videos. Making such an imputation is sufficient to initiate criminal proceedings against him.
The prosecution will survive on obscenity of material and transmitting them in electronic form. These two things are decisive in your case. Both are existing in your case and they are sufficiently proving your ex-boyfriend’s culpability. The pronographic photo, video, caricature itself proves that it is obscene and the court does not take expert opinion in this matter.
Also read: Sending offensive message is also a crime under IT Act
Those obscene messages are vital for the prosecution
Those messages are material evidence. Therefore, storing or keeping electronic material in its original form is mandatory for the prosecution. The prosecution case will sustain on the originality or authenticity of electronic evidence. Those photos and videos are electronic evidence under section 65B of the Indian Evidence Act.
Thus, it becomes compulsory for you to retain those messages in the mobile phone. Keep them safe until you submit them before the court. There is a separate procedure for producing electronic evidence.
Also read: How to produce electronic evidence
Primary evidence is the best evidence. Prosecution always try to prove the guilt through the primary evidence. When you produce the mobile phone to prove transmission of obscene messages, the court will not ask you to furnish any affidavit or certificate to prove authenticity of those messages.
In Shafhi Mohammad v. State of Himachal Pradesh, (2018) 2 SCC 801. The Court further clarified that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced.
Your ex-boyfriend has sent obscene messages on your husband’s mobile phone. Tell your husband to retain them in his mobile phone. His mobile phone will prove the authenticity of those messages without any certificate.
Prepare secondary evidence of those obscene messages
You should prepare a secondary evidence of those obscene photos and videos. Don't rely on mobile storage. If mobile data is destroyed or in any way corrupt then you cannot prove that your ex-boyfriend was sending obscene messages to your husband. The secondary evidence along with certificate is also admissible under section 65B of Evidence Act.
In Anvar P. V. vs P. K. Basheer, (2014) 10 SCC 473 the Supreme Court has held that electronic record by way of secondary evidence shall not be admissible as evidence unless the requirements of Section 65-B are satisfied.
You have sufficient evidence to prove the crime of your ex-boyfriend. Hence, you should initiate criminal proceeding against him. Your ex-boyfriend has sent obscene messages thereby committing an offence under section 67 IT Act. There is no legal impediment in your case. The court will thus convict your ex-boyfriend under section 67 IT Act.
Also read: My boyfriend harassing me.
I'm a Hindu. Is it possible that a married Hindu man can marry a Muslim girl without divorce? Marry a Muslim without conversion is possible or not. She loves me a lot and suggesting me to convert in Muslim. Whereas I don't want conversion because I have a wife and two kids. In the prevailing law can a Hindu "Nikah" without conversion is possible?
I do not want to divorce my wife as I have 2 kids. But I'm in love with a Muslim girl. She is suggesting I do a nikah nama by changing my name. It would just be for nikahnama. I don't want to change my official Hindu name for any reason. Post nikahnama can get marriage done in court. This way I can keep my name and religion, yet marry her also. Is this possible? Please advise.
You are a Hindu so the Hindu’s personal law will apply towards marriage and divorce. Section 5 of the Hindu Marriage Act does not allow a Hindu to solemnise another marriage without divorce. Hindu’s second marriage is void under Section 17 of the Hindu Marriage Act (HMA) if his spouse is living at the time of the second marriage.
A married Hindu can marry a Muslim girl without divorce
No, a married Hindu man cannot solemnise second marriage with a Muslim girl without divorce from first marriage. If he do so the such a marriage is void and has no legal status. Hindu law prohibits the act of bigamy. Hence, the Hindu oftenly convert in Muslim religion for contracting second marriage. This kind of conversion is indeed a cheating because it is just for to avail the benefits of Muslim personal law. Muslim personal law allows more than one marriage but for those who have faith in the "Allah".
In Sarla Mudgal v. Union Of India AIR 1995 SC 1531 the Supreme Court has held that the second marriage solemnised after conversion is illegal and punishable under section 494 IPC. The man’s first marriage under Hindu law is still valid.
The child born out of such a second marriage would be illegitimate. They cannot claim any right in the father’s property but they can claim maintenance under section 125 crpc. The wife of such a second marriage cannot get legal status of wife. She cannot even claim maintenance from her husband.
Conversion in Muslim religion only for marriage
Conversion in Muslim religion only for marriage is void and illegal. In Sarla Mudgal case the Supreme Court has held that such a conversion is void and hurts the practices of Muslim religion. The purpose behind such a conversion is to contract the second marriage and take the shelter of Muslim personal law. Though a married Hindu can not marry a Muslim girl hence, he practices conversion.
How to solemnise second marriage with a Muslim
If you want to contract second marriage with a Muslim then you should divorce your first marriage. You should file a civil suit under Section 13 of the HMA and get a decree of the court. Thereupon, you can solemnise second marriage with a Muslim girl. Nikah without conversion is not possible for a Hindu man.
Muslim personal law does not allow a Muslim girl to contract Nikah with a Hindu. Such a marriage (nikah) is void (Batil). There are three kinds of marriage in Muslim law. Sahi (valid), Fasid (irregular) and Batil (void). The pirates of Batil marriage have no mutual rights of inheritance. Their children are illegitimate.
You don’t want to change your religion. Hence, you can contract a second marriage with a Muslim girl in the Special Marriage Act. Only this way a married Hindu can marry a Muslim girl after the divorce from first marriage. If you do Nikah without conversion and divorce you will be prosecuted for bigamy.
I have agricultural land in Bareilly and against which I had taken a loan from Bank of Baroda (Bareilly) for Agricultural activity. The bank has sent a recovery notice under SARFAESI Act because of some reasons for the loan. Sir, How to defend when the bank initiated recovery proceeding under SARFAESI Act? The loan has gone Non Performing Assets (NPA) and the bank has initiated legal proceedings. I wish to pay the bank but currently do not have the funds to pay off. I wish to dispose of the property and pay it to the bank but I do not want any legal proceedings.
You are a borrower under section 2(f) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). When the loan has declared non performing assets then the security creditor i.e. Bank may initiated recovery proceeding under section 13 of SARFAESI Act.
The borrower has a right to file a representation to the secured creditor under Section 13(3A) of the SARFAESI Act. In the said representation the borrower can object to the recovery proceeding or give his plan of repayment of loan.
Also read: How to quash demand notice?
In ITC Ltd. v. Blue Coast Hotels Ltd., 2018 SCC OnLine SC 237 the Supreme Court has held that provisions under Section 13(3-A) were mandatory and failure on the part of the creditor to respond to the representation of borrower vitiate the recovery proceedings.
What to do when bank is initiated recovery proceeding under section 13(2) SARFAESI Act?
When the bank initiates recovery proceeding the borrower should send a representation to the Bank as soon as possible. If the bank is initiated the recovery proceeding arbitrarily then raise your object thereon. It is your right to object to the recovery proceeding before taking possession of secured assets by the bank under Section 13(4) SARFAESI Act.
Hence, if you have legal grounds to assail the recovery proceeding initiated under Section 13(2) of SARFAESI Act you must do it. The bank will reply to your representation within fifteen days. However, in Kannu Aditya India Ltd. v. SBI, 2018 SCC OnLine Del 12208 the Delhi High Court has held that fifteen days period is directory.
Also read: Bank cannot auction agricultural land
When the bank has initiated recovery proceeding without reply to your representation, the proceeding becomes void. Hence, before taking possession of secured assets then you should file a Securitisation Application before the DRT. You can seek stay of the proceeding under 13(4). The compliance of provisions of Section 13(3A) is mandatory. Hence, the DRT will stay the proceeding under Section 13(3A) with immediate effect.
