I am a social activist and fighting against the discriminations of poor people in India. My question is relating to phone tapping by the Government of India. Due to my social activity government is facing problem. I identified that someone is tapping my phone to gather evidence. I want to know how to tap phone calls in India? It is a breach of right to privacy. I have a right keep my privacy secure but government is violating it. How to know if my phone is tapped by government?
However I am using Jio and Airtel SIM cards. Both are private cellular providers. So does is possible to keep my phone on surveillance? This is a gray area of our society that when an underprivileged person is trying to rise the government agencies start suppressing them. My phone calls are under the scanner of the government and I'm very much afraid about the security of my life.
Unless you have any evidence of phone tapping you cannot raise allegations against the government. Phone tapping is a very serious matter and directly connected to the fundamental right of the citizen. If the government is tapping your phone call without compliance of legal procedure it violates the fundamental right i.e. right to privacy.
Right to privacy is an integral part of the right to life and personal liberty. Right to life and personal liberty is a fundamental right under Article 21 of the Constitution of India. But article 21 also enumerates that the state can deprive a person from such a right by making a just, fair and reasonable law.
Indian Telegraph Act 1885
Section 5(2) of Telegraph Act empowers the central and state government to intercept and record a phone conversation. The government can tap phone calls in the interest of public emergency, public safety, sovereignty and integrity of India. Hence, the government cannot tape your phone on any ground other than those mentioned in Section 5(2).
Thus the right to privacy is not an absolute right. The government can tape any phone calls after recording the reason thereof. You cannot say in such a casual way that the government is tapping my call. What evidence do you have to prove this allegation? If you are not doing any illegal act then the state will not record your phone. You are suspecting that the government is tapping your phone. Hence, you should file a RTI and gather information.
How to know if my phone is tapped?
I can know about the phone tapping through the RTI. TRAI will provide the information about your phone tapping. TRAI (Telecom Regulatory Authority of India) is a government body which regulates telecom services in India. Jio & Airtel are private entities and RTI application is not enforceable against them. Therefore, these private telecom operators will not inform you about phone tapping.
Also read: Can I get call details under RTI Act
But TRAI will gather information from these private telecom operators. It will provide the information to you regarding whether your phone has been kept on surveillance or not.
Section 2(f) of RTI Act states that any information relating to a private body which is accessible by public authority is an information under the RTI Act. Therefore, the information about your phone tapping will come under the purview of RTI Act because TRAI can access that information.
What to do when government is tapping phone call
If you get proof that the government is tapping your phone call then you can file a writ petition before the High Court. File a writ under Article 226 of constitution of India for infringement of fundamental right. When there is no threat to the public safety or there is no public emergency to tape your phone then the phone tapping is illegal.
In K.L.D. Nagasree vs Government of India (2006) the Andhra Pradesh High Court has held that occurrence of any public emergency or existence of public safety interest is mandatory under Section 5(2) of the Indian Telegraph Act 1885.
The High Court will examine whether your phone tapping is in the interest of public safety or emergency. If the hon'ble court finds that no such public safety exists then the court will grant a huge compensation to you and punish the responsible officer of the government.
My girlfriend cheated on me and extorted a lot of money. She and I had been in a relationship for more than two years. We were classmates. During the relationship, my girlfriend made many false stories about her family. She cheated me with those false stories and took huge money from me. Sometimes I had transferred money in her bank account. We were in a physical relationship and love each other.
I had faith in her and gave her jewelry, electronic gadgets, mobile, laptop etc. She has deceived me with the intention to take money from me. After completion of education she joined a company in Chennai. She is dating another guy. Now she is not picking my phone and has cut off all communications. I want to file a case against her for cheating and extortion of money. Please guide me.
Both cheating and extortion are considered criminal offenses under the Indian Penal Code (IPC), with deception and inducing fear being the key components of these crimes. In your case, you claim that your girlfriend cheated on you and extorted money from you, but there is no evidence to support these allegations.
Without proof of your girlfriend's deceptive behavior, you cannot accuse her of cheating. Although you were in a consensual sexual relationship, you cannot claim that she fraudulently or dishonestly induced you to give her money, jewelry, or other items.
According to Section 415 of the IPC, cheating occurs when someone deceives another person and fraudulently induces them to deliver property or to do something they would not do otherwise. Since there is no evidence of inducement or deception on your girlfriend's part, it is difficult to prove that she cheated on you.
Similarly, there is no evidence that your girlfriend extorted money from you. According to Section 383 of the IPC, extortion occurs when someone intentionally puts another person in fear of injury and then dishonestly induces them to deliver property or valuable security. However, there is no indication that your girlfriend threatened you or coerced you into giving her money or other items. Therefore, your allegation that she extorted money from you is unfounded.
In conclusion, accusing your girlfriend of cheating or extortion without sufficient evidence is not justified. While you may feel hurt or betrayed by your relationship, making false allegations can have serious legal consequences.
My wife filed a maintenance case under section 125 CrPC. The court has passed a maintenance order without hearing the husband. I did not appear in court due to illness and fear of covid infection. My wife’s advocate appears in the court and says that the husband does not honour the court. The court, without giving me one more opportunity to appear, has passed the maintenance order. Sir, what remedy do I still have to save me from such a bad judgment?
Prima facie it seems that the court has passed an ex-parte order. The court can pass an ex-parte order when the respondent willfully neglects to attend the court. If you are deliberately and intentionally obstructing the process of court then the court will pass an ex-parte order.
The court does not pass an ex-parte order on the very first absence of the opposite party. If he remains absent on several occasions despite having the opportunity to attend the court then the court will pass an ex-parte order.
Maintenance order without hearing the husband
You are alleging that the court has passed an order of maintenance without giving you any opportunity of hearing. If the court did so, it has violated the principle of natural justice. Audi alteram partem is a Latin phrase which means "listen to the other side", or "let the other side be heard as well." This phrase is considered to be a principle of natural justice.
Also read: How to get stay order against section 125 crpc
In Union of India v. W. N. Chadha AIR 1993 SC 1082, the Supreme Court has held that the rule of audi alteram partem is a rule of justice. This principle of natural justice controls the arbitrary action of the court and quasi judicial body. An arbitrary judgment is illegal and void in the eyes of law.
Opportunity of hearing
The court is bound to give the opportunity of hearing to both parties. Opportunity must be sufficient otherwise it shall be treated as denial of justice. You said that the court has passed a maintenance order without hearing the husband (you). If such things had happened in delivery of justice then the court acted biasly.
You had no “opportunity to hear” is an important fact. You have to prove this fact when you challenge the veracity of the order. The burden of proof lies upon you. You should take a certified copy of the order sheet. The order sheet will prove the fact that which party had the opportunity to defend his case. If you have the proof then you should file an appeal otherwise move an application to set aside this order.
File an application under section 126 CrPC for setting aside the order
The court has passed an ex-parte order because you willfully remained absent in the court. If you have sufficient reason or good cause to not attend the court then you should move an application under section 126 of the CrPC. This section empowers the court to set aside the ex-parte order. There is a three months limitation period to file such an application.
Section 126 states that any (ex-parte) order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms at to payment of costs to the opposite party as the Magistrate may think just and proper.
I have been working in the Postal Department since 2011. My past service record is very neat and clean in all respects. My senior officer did not sanction medical leave and stopped my salary for two months. He is also a disciplinary authority and he issued a charge sheet without preliminary inquiry and a show cause notice. I am facing mental harassment by a government officer who is very rude and treats his subordinate officer as a slave.
One day when my illness became worse (there is some problem in my cervical spine and that is why I am suffering from cervical spondylitis), I applied for leave from home as my condition didn't allow me to go to the office. My employer asked me to submit medical documents and I submitted the same, but he didn't grant my leave and asked to join the office. Otherwise disciplinary action may be initiated against me. He also sent my medical documents to the CMO office for a second opinion.
He sent me three back to back notices directing me to join the office, but I didn't join due to my health. I am assured that I will join the office as soon as I become fit. In spite of this, he served a charge sheet to me for submitting representation within 10 days. More importantly the opinion of the CMO is still pending.
I want to ask if my department gives me a punishment order or any other punishment like transfer etc. Can I file a court case against the department? Besides, can an OA or WP can be filed against them for not granting my leave and for holding my salary in spite of submission of medical documents?
Your claim for extension of medical leave is genuine. You have been on medical leave. You have submitted all medical reports to your senior officer for extension of the medical leave. The concerned officer sent those medical documents to the Chief Medical Officer (CMO) for obtaining his second opinion about your illness. Actually, he wanted to check the genuineness of your medical documents from the CMO.
The direction of your senior officer to resume your job is baseless. He has no evidence to prove that you have made a false medical claim. Opinion of the CMO regarding your medical documents is still pending. He sent three notices without checking the veracity of those medical documents. Hence, your request for extension of medical leave is genuine.
Charge sheet without preliminary inquiry is illegal
A charge sheet contains allegations which tend to set out the nature of accusation. There must be some evidence in support of the accusation. Those evidence should prima facie prove that the delinquent employee has committed any negligence in performance of official duty or breach or conduct etc. In nutshell a charge sheet should briefly disclose the misconduct of an employee and prima facie evidence thereof.
The disciplinary authority who takes cognisance of misconduct issues a charge sheet. He is bound by law to follow the principle of natural justice and mandatory safeguard of Article 311 of the Constitution of India while issuing a charge sheet. Hence issuing charge sheet without holding a preliminary inquiry or show cause notice is illegal.
“No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity...."
Article 311(2) of the Constitution of India
“Informed the charge” denotes that the employee should know what is the charge against him and the basis of those charges. These two things are missing in the charge sheet sent to you by the disciplinary authority. There is no material in support of charge and also there is no finding that your medical documents are false.
There is no preliminary inquiry & show cause notice
The disciplinary authority must conduct a preliminary investigation/inquiry before issuing a charge sheet. In the preliminary investigation he issues a show cause notice to the delinquent employee to submit his clarification about the allegation made in the show cause notice. The delinquent employee has to submit his clarification within the stipulated time mentioned in that notice.
If the disciplinary authority finds that clarification is unsatisfactory then he issues a charge sheet. He issued a charge sheet without complying with the statutory procedure of law. Therefore, the charge sheet is void, illegal and has no legal force. You should challenge the charge sheet.
File a OA before the Central Administrative Tribunal (CAT)
You should file an original application before the CAT for quashing the charge sheet issued to you in violation of statutory provisions of law. The CAT will quash the charge sheet on these grounds:
- The disciplinary authority did not conduct a preliminary investigation or enquiry. Charge sheet without conducting a preliminary inquiry could not enable him to reach at the conclusion that the applicant is prima facie guilty of misconduct or he has breached the service rule.
- Applicant did not receive any show cause notice from the disciplinary authority. The fact about issuing show cause notice and receiving reply from the charged officer (applicant) is not mentioned in the charge sheet. It proves that the applicant had no opportunity to clarify his stand against the allegation. This is a breach of the principle of natural justice i.e. no one can be condemned unheard.
- There is no evidence on record to prove that the applicant had no justifiable reason to be on medical leave. The opinion of the Chief Medical Officer is still pending. The CMO was directed by the disciplinary authority to submit his opinion about the claim of medical leave and genuineness of medical documents. Without receiving a finding of the medical expert (CMO) the disciplinary authority has reached at the conclusion that the applicant has committed misconduct.
- The charge sheet is baseless, frivolous and issued by the disciplinary authority in violation of principles embodied in Article 311 of the Constitution of India.
My sister is the legal heir of her husband's demat account. Her husband died on 12-02-2021. His father is the nominee of his DEMAT account. My sister wants transmission of securities, bonds, shares in the demat account to the legal heir after the death of the account holder (husband). Since my sister is the sole legal heir of the deceased account holder but her father in law is claiming his ownership on the securities kept in DEMAT account. How can my sister get the share of the Demat Account of her husband or encash the securities where the nominee is her father in law? Please advise.
Dematerialized Account (DEMAT) stores financial securities such as shares, bonds, debentures, mutual funds etc in electronic form. There are three parties in the DEMAT account. The investor (account holder), a depository (NSDL, CDSL) and depository participant (Bank). Securities stored in a DEMAT account are assets. Depository participant (DP) transfers securities in the DEMAT account to the legal heir. DP acts as an intermediary between the investor and the depository.
Transmission of securities in DEMAT account to the legal heir when deceased account holder nominated a nominee
Nominee is not owner of the securities held in DEMAT account of deceased account holder. He acts as a trustee or caretaker of the account. Only the legal heir of the deceased account holder is entitled to accept securities, bonds, shares etc stored in the DEMAT account. He is a trustee of that account and should transfer the assets to your sister. He cannot claim ownership on the assets held in demat account.
When a nominee is nominated in a DEMAT account the procedure for transmission of securities is very simple. The nominee is the legal person to communicate with DP towards transmission of securities.
Your sister should open a DEMAT account in her name. Thereafter, her father in law should submit a transmission request form (TRF) to the DP for transmitting the securities in that DEMAT account. He should annex a succession certificate and these documents along with the TRF.
- Duly notarized or certified death certificate
- His identity proof
- Indemnity form on rupees hundred stamp paper
- Account details of his new DEMAT account
- Account closing form
Succession certificate is mandatory because it proves who is the legal heir of deceased account holder. The DP will transfer the securities from the deceased's account to the account of his legal heir. Since, the nominee is ready for such a transfer then the DP will transfer the securities within seven days.
When nominee is claiming ownership on the demat account
In this condition, your sister should file a declaratory suit. Make her father in law and DP as a defendant in that suit. She should claim for declaration of her right on the securities held in her husband’s demat account. Since, she is the sole legal heir so the court will declare her right in the demat account. Thereafter, the DP will transfer the securities in her demat account.
My wife wants alternate accommodation under the Domestic Violence Act. She filed a complaint under section 12 of the domestic violence act and claimed residence order and protection order. There was some dispute between her and my mother. She has lived in my house only for two years, during her stay in the matrimonial home she always created chaos on petty issues. She has ruined my life, and now I want to get rid of her. Can the Magistrate direct me to provide to her an alternate accommodation?
Asked from: Punjab
Your wife has the legal right to reside in her matrimonial home under Section 17 of the Domestic Violence Act, which grants her the right to residence. However, she does not have any proprietary rights or ownership over your house. It is your responsibility as her husband to provide her with a safe and secure living space.
Your wife can only claim the right to reside in the shared household. The definition of a shared household is quite broad, encompassing any place where she has lived or currently lives after marriage. The Supreme Court has interpreted this definition liberally to protect victims of domestic violence.
If your wife proves domestic violence in the shared household, the court can pass an order of alternate accommodation under Section 19(1)(f) of the DV Act. This is only possible if the court deems the shared household to be unsafe for your wife. The court may then direct you to provide alternate accommodation that is equivalent to the shared household.
Also read: Interim relief under Domestic Violence case
To pass an order for alternate accommodation, the court will consider several factors, including the severity of the domestic violence, your financial condition, and the circumstances of the case. The court may only pass such an order if your wife faced extreme violence in the shared household, you have the financial means to provide alternate accommodation, and other circumstances require such an order.
It is essential to note that the court cannot pass a general order for alternate accommodation. The decision must be based on the facts and circumstances of the case, and it should be the last resort to provide a safe and peaceful abode for the wife.
In your case, if you can prove that your wife left the matrimonial home without any reason or that the allegations of domestic violence are false, frivolous, or made with the intent to harass you and your family, you may be able to defeat her in the lawsuit.
I had filed the case in ombudsman against LIC of India in which award was passed(on 28.08.2019) in my favor but LIC did not follow that and told me that they are going in high court against it but it's been more than 11 months since any action has taken from LIC or ombudsman. What to do for non compliance of ombudsman's order? I have complained about this to both the authorities but no resolution has come up. No PIL no. has been shared with me by LIC.
The Ombudsman when deciding disputes between the parties does not act like a court. It is an extra judicial institution. The Ombudsman takes remedial measures and redresses the grievances of a citizen. it does not frame charges and demand evidence from the opposite party. The awards of Ombudsman relate to deficiency in service and maladministration. It does not adjudicate the legal right of the complainant.
The award of ombudsman has much significance. It directs the opposite party to do a certain act in a certain manner. Concerned parties must respect the order and execute it according to law. If there is any defect in the order, the aggrieved party can move an appeal before the Appellate Authority. The limitation period for filing of appeal is thirty days. Hence, the aggrieved party must file an appeal within the limitation period.
The Life Insurance Corporation of India (LIC) is denying the order of the ombudsman. LIC is not sincere about the compliance of that order. Therefore, you can again approach the internal ombudsman for implementation of its order.
Contempt petition for non compliance of ombudsman's order
You cannot file a contempt petition for non compliance of ombudsman's order. The Ombudsman, however, is a dispute redressal body but it is not a court. The High Court admits the contempt petition against non-compliance of order of its subordinate courts. Section 10 of the Contempt of Courts Act 1971, empowers the High Court to punish contempt of subordinate courts. The Ombudsman is not a subordinate court of the High Court in matters relating to contempt.
Section 10. Power of High Court to punish contempt of subordinate courts.- Every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempt of courts subordinate to it as it has and exercises in respect of contempt of itself;
Provided that no High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code (45 of 1860).
Contempt of Courts Act
In Meqbool Hussain v. State of Bombay 1953 the Supreme Court has held that if a tribunal has the power to give definitive judgment which has finality and authoritativeness. That tribunal is said to be a court.
The Ombudsman however, receives complaints but it’s order lacks authoritativeness. It can call the concerned officer of the department in the matter. But it does not punish the guilty officer for non compliance of its order. It cannot issue a warrant, summon or take evidence on oath etc.
Thus, you cannot file a contempt petition against the non-compliance of the order of the Ombudsman. You can file an application before the Ombudsman for the implementation of its order.
My sister in law hates my love affair because she doesn't like me. She is creating hurdles in my marriage. Her brother wants to marry me because we love each other. This is a love marriage. Parents of my sister in law have died. She is taking care of her brother. Hence, she is very dominating and creating problems in our marriage. She makes false allegations of domestic violence.
Her brother also does not like her due to her dominating behavior. My brother is giving her all comfort and freedom to live in a matrimonial home. We did not take any dowry in her marriage. My brother is a government servant. He is in favour of my marriage but due to pressure from my sister in law he is not coming forward. Please guide me.
You should try to settle this issue amicably. There is no legal hurdle in your marriage because you both are adult and sound person. As per Section 5 of the Hindu Marriage Act, you can solemnise marriage without the consent of your sister in law. Your brother agrees to this marriage hence, he will support you. Don’t culminate a simple matter in a very complex legal issue.
You should talk with your brother to convince his wife for your marriage. This is an extrajudicial matter hence, you should find its solution beyond the court. Don’t indulge in unnecessary legal matters because it will create enmity in your personal relations. You said that your sister in law hates your love affair. Her hate will not prevent you to solemnise marriage with her brother. Whereas you should try to convince her for marriage.
Nowadays it has become a tradition to file lawsuits on trivial matters. Your matter is trivial in nature and does not require intervention of court. It would be better to find a solution in your family. The legal proceedings will further make your case very complex.
