Can Bank terminate my service on leave without permission. I am posted as clerk in Dena Bank (now bank of Baroda). I was absent from 15th of December to 16 April and again from 13 may to 22 oct in the year 2020. However, I had submitted medical certificate from Dec to Feb. and from may to Jul. I do not have medical certificate from Jul. to oct ( till I joined). Also I have completed 7 years of service without any Loss of pay. But due to some serious medical condition I was in hospital for three months. Later on I have resumed my duties. I was again suffering from same medical condition also I changed 3 doctors for same. Now I have resumed my duties.
You have resumed your service. The bank has given its consent to carry on your services.The bank has permitted you to resume your service hence, you have resumed on the consent of the bank. That consent will act as an estoppel.
The rule of estoppel will prohibit the bank from terminating your service. However, the bank cannot terminate you but it has the right to treat your leave period as a leave without payment. Then you cannot seek salary for that duration in which you had been on leave without permission of the concerned officer.
Termination on leave without permission
The bank can terminate an employee when he has been on leave without permission. Permission of leave from a competent officer is mandatory. The service condition is governed by the terms of service rule. Leave without permission constitutes an act of misconduct. The bank can initiate disciplinary proceedings for such a misconduct. If an employee cannot furnish sufficient reason for being on such a long leave without permission then the bank can terminate the service of the employee.
You have not received any notice from the Bank
You have not received a notice from the bank at the time of resumption of service after leave. It shows that the bank did not treat your period of leave as an act of misconduct. Therefore, the bank has exonerated your conduct. Thus, in this situation the bank has no right to terminate your service.
My wife filed a case under section 125 crpc for Maintenance in JMFC Court in the year 2013. The court has decided it ex-parte and granted to pay rupees 6000 per month as maintenance. In the meantime, the Family court has also granted alimony under section 24 of the Hindu marriage act.
The Family court has ordered to pay a monthly allowance of rupees 14000 per month. When the court did not take into account the order of family court while deciding the petition under section 125 crpc, she is trying to harass me by filing multiple cases. How could I get stay order?
Section 125 of the code of criminal procedure (crpc) provides a right to maintenance to the destitute wife. A destitute wife can claim maintenance from her husband if he has been neglecting or refusing to maintain. The husband must maintain his wife if he has sufficient means.
Stay order against section 125 CrPC
The court may stay the proceeding instituted under section 125 crpc if the wife is receiving another maintenance from a competent court. The Family Court is a competent civil court to pass an order of interim maintenance under section 24 HMA.
In Sanjay Kumar Sinha v. Asha Kumari, (2018) 5 SCC 333; the Supreme Court held that passing of maintenance under section 24 HMA stands superseded the order passed under section 125 because it no longer contains the field.
Section 125 crpc is a quasi-civil proceeding. An order passed thereunder is tentative in nature. In N. Natikar Vs Neelamma (2015) 1 SCC (Civ) 346; the Supreme Court held that order made under Section 125 CrPC is tentative. Therefore, the court may alter or stay its order upon the evidence that wife is receiving maintenance under section 24 HMA.
In Pallavi v Sachin 2012 (3) MPLJ; the Madhya Pradesh High Court held that if interim maintenance granted under section 24 of the HMA is in force, the wife would not be entitled to separate alimony under section 125 CrPC.
Thus court may stay the proceeding because your wife is already receiving adequate maintenance. In Sumita Ganguly v Debasish Ganguly (2010) 1 Cal LT 442; the Calcutta High Court held that maintenance granted under section 24 HMA then order pass under section 125 CrPC shall be adjusted against each other and the husband is only obliged to pay a higher amount of maintenance.
Dual maintenance
Your wife has been receiving dual maintenance from you in two distinct proceedings. Such a dual maintenance is unjustified because you are bearing undue financial burden. You should not be penalized by paying excessive maintenance.
Therefore, you should seek alteration in the maintenance order passed in 125 crpc. Section 127 crpc provides that the court can alter or repudiate the order of maintenance on the changes in circumstances of the case.
Your wife is receiving fourteen thousand rupees as alimony by the decree of Family Court. Hence, this fact is sufficient for the cancellation of maintenance order under Section 125 crpc.
Set aside the ex-parte order
First of all you should set aside the ex-parte order. The court has passed an ex-parte order because you remained absent in the court. Ex-parte order itself proves that opposite party was willfully neglecting to attend the court. In this situation, you should proceed to set aside this order.
The court can set aside the ex-parte order after satisfaction that you had sufficient reasons for non-appearance. Unless you set aside this order you cannot seek any relief from the court. The ex-parte order prima facie proves that:
- You have been neglecting to maintain your wife.
- Your wife has been living in vagrancy.
- There is prima facie evidence that you have sufficient means.
- You have deliberately not appeared in the court.
How to set aside that ex-parte order
You should file a recall application under section 126(2) of the Code of Criminal Procedure. The limitation period for filing of recall application is three months from the date of ex-parte order. You should adduce evidence which tend to prove a valid ground for your absence. The relevant portion of section 126 has given below.
According to section 126(2) of crpc:
- If the opposite party wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte.
- The court may set aside the ex-parte order for showing the good cause of absence on an application.
- You must file such an application within three months from the date of ex-parte order.
Thus apply under section 126(2) crpc along with an explanation about your absence. If the court considers that the reason is genuine and sufficient then it may set aside the ex-parte order. Thereafter, the case will restore with its original number.
If the court rejects your application then you should file a revision before the court of sessions. The sessions court, however, may set aside the ex-parte order and remand the matter to the original court. If the limitation period has expired and the court does not condone the delay then you should move an application under section 127 crpc.
Question: Wife has filed DV 2005 case in which interim maintenance of Rs. 12000 was granted to her. I filed appeal u/s 29 against this order along with a plea to set aside the maintenance order. Hearing my application is delayed because of covid-19. Meanwhile I have got the ex-parte decree of section 9 Hindu Marriage Act in my favour. Wife did not show up during the proceedings. After the decree she approached the court and filed a recall application to set aside the ex-parte order which is in notice stage as of now.
Meanwhile, Trial court issues notice to me u/s 125(3) for the recovery of arrears for the interim maintenance granted to the wife in DV case. She has filed one more case of crpc 125 seeking maintenance in family court. How can I get the stay on interim maintenance orders since the hearing is delayed in sessions court due to covid 19. If in case of crpc 125, can the court grant her additional maintenance/interim maintenance if the wife is already getting in DV case. Will I need to pay both separately? How can the ex-parte decree of section 9 passed in my favour will help me in reducing the maintenance amount?
Asked from: Rajasthan
Appellate court did not stay the maintenance order
You have filed an appeal under section 29 of the Domestic Violence Act. That appeal is still pending. The appellate court has not passed any order regarding the stay of interim maintenance. Therefore, you cannot seek a stay of interim maintenance order. There is only one interim maintenance order. If there is more than one then you can request the court to stay the maintenance order passed in the DV Act case. You cannot get stay order.
When the appellate court did not stay the order of interim maintenance hence, you should pay it. You did not pay the monthly allowance therefore, the court has power to issue summons for the payment of arrear. In this situation you should pay the arrear immediately.
Request for alteration or cancellation of the maintenance order
You should file an application under section 125(4) of the code of criminal procedure for alteration of the maintenance order. You have an ex-parte decree in restitution of conjugal rights case. It proves that your wife has no right to stay separate from you. According to section 125 crpc, if the wife has no valid reason to live separately then she cannot claim maintenance.
This provision will apply over the maintenance order passed in Section 20 of the DV Act. Unless the court does not recall its ex-parte order it will apply as a final order. So you should produce the copy of that order in the maintenance proceeding. The court will alter its maintenance order.
I am fifteen years old and living with my married sister. A minor daughter can claim maintenance against her father if he does not provide fooding, lodging and education fee etc. My father contracted second marriage after my mother's death. He has a son out of that wife. My stepmother is very abusive and using bad words against me. Due to bad behaviour of my parents I have been living with my sister. She is married and living in Chandigarh. My father does not paying my school fee and other genuine expenses. I am in very trouble please help.
A minor daughter can claim maintenance from her father under section 125 of the Code of Criminal Procedure. Father cannot refuse to maintain his minor daughter if he has sufficient means. If father is economically sound then he cannot refuse or neglect to maintain his minor daughter.
Your stepmother is very abusive and ill treating you. This is a sufficient reason to live with your sister. Section 125 CrPC allows the applicant to seek maintenance while she is living apart. Hence, you can claim alimony from your father even living separately.
Minor daughter can claim maintenance
Section 125 provides that Magistrate can pass an order for maintenance "If any person having sufficient means neglects or refuses to maintain his legitimate or illegitimate minor child, whether married or not, unable to maintain itself." Minor child means a child who has not attained the age of majority. According to the Indian Majority Act, 1875, age of majority is eighteen years.
Therefore, you can file an application under section 125 crpc. You have sufficient reason to live apart from your parents because they are ill treating you. In this situation your parents cannot compel you to live with him. He will pay the maintenance however, you have been living with your married sister.
My wife had premarital unchastity i.e. pre marriage sex with her boyfriend. I got married on 22/04/2016 at Warangal, Telangana. One day, I received messages and calls from one person saying that the person and my wife is having an affair from 6 years and being in a physical relationship for more than a year. He sent not only messages but also some pics that they have taken together romantically.
After watching all these pics and messages we (all our family members) have decided and took that girl to her parents on 23/04/2016 morning and asked regarding this and she agreed in front of her parents, and all our family members and even her parents also know this affair and wanted arranged marriage with me.
They have cheated me in all aspects hence kindly seeking advice on how to take the step forward and get the divorce or legal separation from that girl Note: The girl is staying with her parents from 23/04/2016 onward.
Asked from: Uttar Pradesh
As per section 12(1)(c) of the Hindu Marriage Act, a marriage can be considered voidable if one party's consent to the marriage was obtained by force or fraud. The fraud or deception must pertain to the nature of the ceremony or any significant fact or circumstance of the spouse (husband or wife).
Material fact or circumstance
While the virginity of a girl is considered a material fact, it does not constitute grounds for nullity of marriage under section 12(1)(c) of the Hindu Marriage Act (HMA). If a girl is a virgin at the time of marriage, she is considered chaste, while indulging in sexual intercourse before marriage would make her unchaste.
Unchastity or pre-marriage sexual intercourse is not a valid ground for nullity under section 12(1)(c) or divorce under section 13 of the HMA. Adultery, which refers to consensual post-marriage sexual intercourse not amounting to rape, is grounds for divorce under section 13 of the Hindu Marriage Act.
In the case of Surjit Kumar Harichand vs Smt. Raj Kumari; Raghunath vs Vijay 1972, Bom; the Bombay High Court ruled that the pre-marriage unchastity of a wife, even if unknown to the husband at the time of marriage, is not grounds for nullity under section 12(1)(c) of the Hindu Marriage Act.
Chastity
The quality of chastity is personal, and unchastity at the time of marriage does not make the marriage voidable. Disclosing one's sexual history is not a requirement for marriage. Furthermore, having an undisclosed pre-marriage relationship does not necessarily mean that a woman cannot be a faithful wife or fulfill her marital duties, such as bearing children.
Premarital unchastity or pre marriage sex
The rationale behind not considering premarital unchastity as grounds for annulment is that even a woman with a questionable past may strive to lead a life of chastity and virtue. Therefore, the law does not restrict the ability to make a genuine and honest effort to lead such a life.
In Rajaram v. Deepabai, (AIR 1974 M. P. 52), a Division Bench of Madhya Pradesh High Court also stated that the definition of fraud in Section 12(1)(c) does not encompass concealment or misrepresentation of every fact.
Nullity of marriage
The above discussion indicates that the concealment of a pre-marriage affair or unchastity of a wife is not considered grounds for nullity of marriage. However, the Hindu Marriage Act does not provide a definition of the term "fraud."
Section 17 of the Indian Contract Act offers a definition of fraud, but it is not applicable to matrimonial cases [Nand Kishor vs Munni Bai AIR 1979 M. P.]. As per the Marriage Law (Amendment) Act 1976, the scope of the term fraud is limited to the nature of the ceremony or any significant fact or circumstance concerning the respondent.
The following are the essential facts that vitiate the consent and make the marriage voidable:
- Concealment of pre-marriage status such as the divorce of a wife
- Begotten a child
- Concealment of religion or caste
- Concealment of illegitimacy, among others.
Filing a divorce or judicial separation suit on the grounds of premarital unchastity is not maintainable. Section 13 of the Hindu Marriage Act provides grounds for divorce, which are the same for a decree of judicial separation.
Premarital unchastity is no ground of divorce
Premarital unchastity is not a valid ground for divorce under Section 13 of the Hindu Marriage Act, but postmarital unchastity, also known as "adultery," can be used as a basis for divorce. Pre-marital unchastity does not constitute cruelty to the husband, as per judicial precedents.
However, desertion by the wife due to premarital unchastity can be considered cruelty to the wife, and she can file a divorce petition under section 13 of the Hindu Marriage Act on the grounds of cruelty. If you feel cheated and do not want to continue the marriage, mutual consent divorce is an option.
Mutual consent divorce is a contractual agreement that requires the consent of both parties. This is the only way to terminate the marriage without proving guilt. After waiting for one year, you can file a petition for mutual consent divorce under Section 13B of the Hindu Marriage Act. The petition should state that you have been living separately for one year, and you have mutually agreed to live apart.
You do not have the option to file a criminal case under Section 497 of the Indian Penal Code for adultery since the relationship was premarital, and there is no evidence to prove premarital sexual intercourse.
Adultery
The Supreme Court has settled the controversy on pre-marital sex by holding that there is no statutory offence for adults willingly engaging in sexual relations outside the marriage setting, except for adultery, as defined under Section 497 IPC in the case of S. Khushboo Vs Kanniammal & Another. However, premarital unchastity may be admissible as evidence to prove the breakdown of the marriage.
Related: Divorce if wife has abnormal behaviour
Me and my boyfriend are in relationship from 3 years. He always doubts me and every day he will come up with plan to harass me. Threats me and compel me for having relationship with other boys. He gives me warning that he will call to my office members and family. My boyfriend harassing me to establish sexual relation with his friends. Actually he is a very bad boy and wants to make money from pornographic sites. Therefore, he used to instigate me for having sexual relation. He might wanted to make videos of sexual acts and upload on the porn sites.
Can I file case against him for threating and harassment. He used to say that he'll publish my photos on internet. I'm very afraid because he has a video of mine in which I had sex with him. I don't want any money from him. I want break up from him. And want a apology from him for insulting me all these days. My parents are planning my marriage.
Your boyfriend has committed crime. He threatens to publish intimates photos and blackmailing to establish bodily relations with his friends. All these acts constitute different offences punishable under the Indian Penal Code and Information & Technology Act. Therefore, you can file an FIR against him under Section 354-A/354-C/509 of IPC and Section 67 of the IT Act.
What action should I take if boyfriend harassing me?
You should file FIR against him under above mentioned sections. Sexual intercourse with the consent of parties is no offence. That consent does not allow him to capture videos of sexual intercourse. This is an offence under section 354-C IPC. If he publishes your intimate photos or vides he commits offence under Section 67 of IT Act 2008. If he threats to circulate those images on internet then you should not wait for such publication. Threatening is also an offence under section 509 IPC.
Harassment either mental or physical constitutes an offence if accused has criminal intention. Criminal intention is a particular state of mind of accused which shows that he has the intention to commit a crime. He has been harassing you, compelling to have sex with his friends, threatening to publish photos on public domain. These acts prove that he will do a criminal act if not stopped. Therefore, you should take legal action against him as soon as possible. Don't wait for commission of act. Attempt to do a crime is also an offence.
Collect evidence towards his conduct
His acts are showing that he is a person of immoral turpitude. Probably he has committed same acts with some other women. Therefore, you should collect some information towards his previous conduct. You can gather these information from his friends or social media sources. If you get any information regarding his antecedents then your case will become more strong.
These kind of persons commit offence in a very set pattern. If you follow his previous contacts or friends then you'll get some evidence of threatening and sexual abuses. That will help to establish your case more strongly.
I have filed complaint on one Govt employee who is a retired PDO in department of Zila Panchayat, on him FIR lodged in concerned police station. Now can I request for disciplinary proceeding against him? Is it possible or not and to whom should I request to the same? Please suggest me Sir. Thanks.
You cannot request for disciplinary proceeding against him because he has retired from the government service. If he did illegal act in discharge of his official duty then you can approach the government to take legal action against him. Also there is four years time period for initiating criminal proceeding against the retired government employee.
Now he is not a government servant. Hence, you can initiate normal criminal proceeding which is done in respect of a general public. You can file a complaint if offence is non cognisable. If offence is cognisable then you can lodge an FIR. However, you have already filed an FIR so you should not approach the government and request for initiating any disciplinary proceeding.
Disciplinary proceeding
Article 309 of the Constitution of India empowers the state to prescribe conditions of service and regulate disciplinary proceedings against government servants. The object behind the disciplinary proceeding to punish the government servants for corruption, misbehavior, misconduct, negligence or inefficiency. State and Central Government have framed service rules to regulate the entire disciplinary proceeding including punishment.
When the officer ceased to be the government servant then government cannot initiate department proceeding against him. If you request for disciplinary proceeding the authority will reject your request. Therefore, it is better to approach the court instead of government.
I have done a agreement of the agricultural land 2 months ago and paid 20 lacs while agreement. That is ancestral property, and owner is aged 62 years, now came to know he has 3 sisters. Does consent of sister necessary? Will they have any rights?
Asked from: Uttar Pradesh
Agricultural land does not govern by the Hindu Succession Act. The provisions of land revenue law will apply in transfer of share in agricultural land. Non-agricultural lands or lands beyond the purview of revenue laws are governed by the Hindu Succession Act (HSA) if owner dies intestate. If owner of the land has prepared a testamentary Will then also the HSA will not apply.
Consent of sister
The provisions of Uttar Pradesh Revenue Code, 2006 will apply in your case. Section 108 of the code, provides that widow, son (male lineal descendants), unmarried daughter are legal heir of first place. Mother and father are the legal heir of second place. Married daughter comes at the third place of succession if no heir present in first and second place.
The owner, his wife and sons are the legal heirs. He is sixty two years old so he has no unmarried daughter. He is alive, thus, his wife and male lineal descendants have right and title in the agricultural land. His sisters have no right in the land. Therefore, no consent of sister necessary for purchasing the agricultural land.
You should ignore the fact that consent of sister is necessary for executing a valid sale deed. Consent of sons are necessary because they have interest and right in the property. However, he can sell the land for the benefits of family but you should take consent of his sons. You can make his sons witness of the attestation of sale deed. Their signature will infer that they have given their consent in sale of the land.
Society transferred the flat and membership in the name of purchaser on the basis of unstamped and unregistered agreement in June 1989. Purchaser has not paid consideration amount therefore, the possession of the flat remains with the seller. In December 2018, seller came to know that the transfer of membership to the purchaser is not valid and therefor it is null and void. Hence, seller wants to annul the illegal transfer of membership by the society.
How can I convince to the society about their illegal and invalid transfer of membership to the purchaser and request the society to restore back the membership in the name of seller (original member of the society). Society is located in Mumbai, Maharashtra. Thanks
Society cannot transfer the membership to the purchaser in devoid of valid sale deed. Only a valid sale deed conveys the right and title in the property from seller to purchased. Hence, society must demand from the purchaser to produce sale deed. Maharashtra Ownership Flats (Regulation of the promotion of 3 construction, sale, management and transfer) Act, 1963, mandates that only owner of the flat can be the member of society.
In devoid of a valid sale deed purchaser could not become the owner hence, he is not entitled to get membership. Since, you are the real owner of the flat so you still possess the membership of society. You should approach the society to remove the transgression of aforesaid Act. The society will cancel the transfer of membership and restore your status.
File a suit for annulment of the illegal transfer
If society does not take any action on your application then you should file a declaratory suit. You can file that suit under Section 34 of the Specific Performance Act. Society and purchaser are the necessary party in the declaratory suit. You cannot get decree without making them as defendants in the civil suit. When the court declares your right and title in the property then society will cancel the membership of the purchaser. Thus, you can restore your status and annul the the illegal transfer of membership.
My friend is extorting me for withdrawal of a civil case in Dubai. I take personal loan from Indian person in Dubai. I paid some amount in Dubai and some in India remaining little amount now person is asking more payment for withdrawal UAE civil case and he harassments for open civil case in India now in this problem how can I solve the issue. Currently I m in other GCC country so any issues if I travel to India ? Indian airport police can arrest me for this civil case judgments in Dubai? How can I check immigration status India.
You should file a criminal case against him in India. He is extorting money from you by giving threats. Therefore, you can file a complaint under section 384 of the Indian Penal Code. You are defendant in that civil suit so, you should produce evidence towards the repayment of large amount of loan. Thereafter, the court will not take coercive action against you. You both are Indian citizen hence, the court will decide the case according to the law prevailing in India.
You have paid a large amount of loan partly in India and partly in UAE. He is an Indian citizen and has no money lending license. Therefore, he cannot claim interest on the loan. He is entitled to get principal amount. If court pass an order for interest thereupon then he can get interest. Otherwise, he cannot claim interest.
File a complaint
You should immediately file a complaint for the offence of extortion. He is giving threats with the intention to take extra money from you. He wants a money greater than the loan amount in lieu of withdrawal of civil case pending in Dubai. That is a civil case and you have paid a large portion of money and a few part is unpaid. He has received a portion of that amount in India. You are currently residing in India. Hence, you can file such a complaint in India. Section 383 IPC makes extortion an offence which is punishable under section 384 IPC.
Withdrawal of a civil case in Dubai
The court will decide whether to grant permission to withdraw the suit. You should produce evidence in the court towards repayment of a large portion of loan. Thereafter seek extra time to repayment of remaining amount. Then the court will grant a time to discharge from outstanding amount. You should appear in the civil suit through your advocate and do not cause to delay the civil suit.
I have filed for a divorce against my wife on grounds of cruelty and desertion. She has left me more than 3 years ago and now has gone completely unerground. The court has issued summons to her last known address. But the next date for hearing is fixed after 3 months. How can I get this expedited?
Asked from: Jharkhand
If she has received the summon of this case then the court has power to pass ex-parte order. The court can pass an ex-parte divorce case if it satisfies that there is a ground of divorce. You have to prove your case with relevant and cogent evidence. She has been deserting you without any good reason. This fact you should prove before the court. You can produce documentary and circumstantial evidence.
Till date, she has been ignoring to attend the court after receiving the summon. Thus, court should not give long hearing date in divorce case. Court can pass ex-parte decree only when it finds that summon has successfully served and she has time to attend the court. The court can presumed that summon has served if it did not return back or she has counter signed the summon. When she appointed an advocate to represent her then the it proves that she has received the summon.
Move an application to pass ex-parte decree
You should move an application before the court to decide the case as ex-parte. Generally court given three or four dates to the defendant for appearing before the court. The court gives a date for producing evidence if it finds that defendant is deliberately ignoring to appear in court. When the court lists your case for evidence, you should produce all evidence in support of your case. Then the court will pass an ex-parte decree.
Long hearing date in divorce case
Giving long hearing date does not matter if parties are appearing on each date. If the court does not move further and giving unnecessary adjournments then you should file a petition before the High Court under Article 227 of the Constitution of India. You can pray for expedite the hearing of case without unnecessary adjournments.
You should take certified copy of order sheet to prove that the subordinate court has given several adjournments. If court has given dates without any reason then the High Court will presume that adjournments are unnecessary. The High Court will fix a time period to decide the case. That time duration will no longer than six months. If case is pending for more than three years for want of written statement of defendant then court may give any shorter time.
Read also: Premarital unchastity is no ground of divorce
