There is some illegal flat owner who is demanding to issue a share certificate. They have no valid sale deed and no permission from the Brihanmumbai Municipal Corporation. Our housing society formed in the year 2004 with non-co-operation of the developer. Sir in our society three numbers of illegal flats built by a builder. Which we came to know in the year 2015. Before it (in 2005) the society has already issued a share certificate to two illegal flats.
The society does not know the real fact. Furthermore, the developer did not hand over single documents to society. Our society didn't issue a share certificate to one illegal flat owner because his flat was unregistered. The flat owner just paid stamp duty in the Amnesty Scheme a few years back. During such a long period, he did not ask about share certificate.
Now someone unknown person has made a complaint against illegal flats in our society building. The BMC thereafter has issued a notice under sec 488 for the survey of the site. After the site inspection, the BMC has confirmed that the builder has constructed three flats illegally. advised the three flat owners to get legalises from BMC. Further BMC issued notice to the society to produce the BMC approved plans & other documents about explaining that who illegal flats have built?
The third one illegal flat owner whose document is unregistered just paid stamp duty in Amnesty scheme asking to issue share certificate after BMC issued the notice & confirmed the illegal flats built and exits. Further, this third one flat owner regularly pays maintenance and the social issues bill and receipt in his name. Sir so we would like to know can issue the share certificate to him. Please help me.
Now illegal flats have been declared then can we issue share certificate to the unregistered illegal flat owner after Brihanmumbai Mahanagar Palika notice under section 488 and it is confirmed. The society wants to co-operate both of us our member and BMC.
As per the information provided, it appears that the third flat in question is not only unregistered, but it is also illegal as it was built without the proper permissions and approvals from the Brihanmumbai Municipal Corporation (BMC). It is not legal to issue a share certificate to an owner of an illegal flat, as it would be in violation of the laws and regulations regarding construction and property ownership.
Furthermore, it is not advisable for the society to issue a share certificate to this flat owner as it could lead to legal issues for the society and its members. The BMC has issued a notice under Section 488 for a survey of the site, and has confirmed that the three flats in question were built illegally. The flat owner has been advised to get the flat legalised from the BMC, and the society has been asked to produce the BMC approved plans and other documents.
It is advisable for the society to cooperate with the BMC and follow their instructions to resolve the issue of illegal flats. The society should also look into their own records and documents to ensure that they are in compliance with all laws and regulations regarding construction and property ownership.
Prima facie they are an illegal flat owner
Prima facie these flats are illegal because the builder did not take permission from the concerned authority. The flat's owner has no right to demand share certificate because they have no valid sale deed or conveyance deed. In devoid of a valid sale deed they cannot become a member of the housing society. In the current scenario, they should approach the Brihanmumbai Municipal Corporation to legalise their flats.
The BMC has the power to grant permission if other guidelines have been followed by the builder in the construction of those flats except the valid permission. They have to pay the fine and other penal charge lived upon by the BMC. The builder will not come forward and pay those fees because he played a fraud. So, flat owners will bear all the expenses.
No share certificate to the illegal flat owner
After making all the payments and fines to the BMC the flat owners should proceed to get a valid sale deed of the flat. They will get a sale deed from the builder after paying the proper stamp duty.
Thereafter, the housing society can issue a share certificate to those flat owners. They first become the owner of the flat following the due process of law. They have no valid sale deed and no valid document which proves that they have ownership of the flat.
Until completion of above said procedure and possessing all the necessary legal documents you should not issue a share certificate. A share certificate is a legal document which proves that the holder is the rightful owner of the co-operative housing society’s shares. The BMC has already declared that flats are illegally built, then you cannot issue share certificate.
Can I seek a modification of transfer order on the medical ground of spouse? My husband works in a PSU bank. He has transferred to a remote area 250 km away from the place we are living in. I am also a central govt employee and expecting our first child with some medical complication. My husband applied for a modification of transfer order on wife's health condition. Moreover, there are no administrative exigencies for such a posting order.
My husband's application for modification of transfer order is still pending for 30 days. Meanwhile, his salary has been stopped, request for leave rejected and concerned authority has issued a warning letter for disciplinary action. Due to medical ground of spouse, it is not possible to travel 250 km away to a place without any medical facility. Can you please advise us what should we do? Can bank initiate disciplinary action? Is there any law or policy to help us so that my husband can get a modification of posting and stay with me?
It sounds like you and your husband are facing a difficult situation due to his transfer to a remote area that is far from where you currently reside and your current medical condition. The situation you described is a sensitive one and it’s important to be aware of your rights and options.
Generally, employers are required to make reasonable accommodations for employees with disabilities, which can include a modification of work schedule or location. In your case, if your husband can demonstrate that his transfer would cause an undue hardship due to your medical condition, it may be possible to seek a modification of his transfer order.
General principles towards transfer of employee
In the case of a PSU bank, your husband can refer to the guidelines of the Public Service Boards (PSBs), which mention that in case of any administrative exigencies, the management of the PSU bank may transfer the employee to any other place or office. However, it also states that the management of the PSU bank shall not transfer any employee if it is not in the interest of the employee or his family.
In your case, it seems that there are no administrative exigencies for your husband's posting, and it is not in the interest of his family, therefore the management of the PSU bank should consider his application for modification of transfer.
Your husband should also be aware of the provisions of the government of India which states that if the employee has a spouse who is also a government servant, and if the transfer of either of them is likely to cause undue hardship to the other, the competent authority may, while making the transfer order, make such alteration in the transfer order as may be necessary to avoid such hardship.
It's important to note that the bank cannot initiate disciplinary action against your husband while his application for modification of transfer is pending, and it's also not appropriate to stop his salary, reject his leave and issue a warning letter. Your husband should bring this to the attention of the concerned authorities and also take the help of the personnel department of the bank for this issue.
Send a representation
Your husband should send a representation to the competent authority who has the power to modify the transfer order. The representation must contain a request along with relevant grounds to take quick decision on the modification application. The health condition of wife is a reasonable ground to modify the current posting order. Posting of the employee is purely an administrative order. Thus, the competent authority can modify its order in the interest of the employee.
Transfer order
The employer has exclusive power to transfer the employee from one place to another fo smooth function of the administration. However, the employee has no right to interfere in the order but he can request to modify the transfer order. The grounds of request should be genuine and exist when he requests for that modification. If his transfer not extremely urgent he can request to relook the order of transfer.
How to exercise the power of transfer?
The power to transfer the employee from one place to another is purely an administrative power. There is a fixed principle or procedure towards how to exercise this power? Thus, the authority exercises its power as per his discretion and service rule.
When he exercises his discretionary power then, he has to follow the principle of fairness. The transfer order should be just, fair and reasonable. The order must reflect the administrative exigencies. In devoid of such exigency the employee can challenge that transfer order in court if the department does not take any action on his request.
In B. Varadha Rao v. the State of Karnataka, (1986) 4 SCC 131, the Supreme Court held that the employer must exercise this power honestly and reasonably. If the transfer order is influenced by extraneous considerations or for achieving an alien purpose or an oblique motive it would amount to mala fide and colourable exercise of power.
Challenge the transfer order
If the employer does not dispose of your modification application with reasoned and speaking order then you can challenge that order before the High Court under Article 226 of the Constitution of India. You should file a writ of Mandamus and challenge the veracity of that order. The court can quash the order on any of these grounds.
- If the transfer order does not meet the administrative exigencies.
- The employer has sufficient reason to stay at the place of the current posting.
- Any other employee can be transferred to that place.
- The competent authority did not take a thoughtful decision on the modification application.
In Commissioner, Kendriya Vidyalaya Sangathan v. Central Administrative Tribunal, Allahabad (2004) 3 UPLBEC 2391; Union of India v. Sri. Janardhan Debanath (2004) (100) FLR 1015 SC; the Supreme Court held that:
- The transfer is a condition of service and employee must follow the transfer order.
- The posting should be in the public interest and efficiency in the public administration.
- If your posting order shows the mala-fide exercise of a power or in violation of statutory provisions then the court has the power to interfere with such an order.
- If the transfer order reflects a way of punishment the court will take it into consideration for quashing of such an order.
Stay of transfer on the medical ground of spouse
Stay of the transfer order on the medical ground of wife's health condition is not a legal ground but a reasonable ground. The employer must take it into consideration while he exercises his discretionary power. There is no fixed principle regarding the transfer of an employee. An employer can transfer on the administrative necessities and smooth function of administration. Therefore, the employer should exercise his discretion and consider the prevailing circumstances of the employee in order to pass the transfer order.
There are enough grounds to modify the current posting order. Health condition of a wife is also a reasonable ground. The employer has stopped the salary in violation of service rule because the modification application is still pending. He cannot stop the salary without giving a show-cause notice. Stopping salary is a penal consequence of not obeying the transfer order.
On those grounds, the High Court will stay the order as an interim measure. It may also direct the employer to give a salary until the further order of the court. You can get immediate relief from the High Court through a mandamus writ.
I want to recall the judgment of the court. The company has committed fraud and filed false evidence before the court. I knew nothing about that evidence therefore I relied upon. After the pronouncement of judgment, the fraud disclosed after reviewing of the judgment. Consequently, I want to challenge the judgment. Sir, what is the possibility in my case? Can the court recall its judgment?
You should file a review petition before the court for recalling of its judgment. The company has committed fraud and adduced forged evidence. That evidence became the record of the case, therefore, the company cannot deny it in the review petition. The court has passed its judgment on that evidence and I am sure that the court would have referred the evidence in the judgment.
Section 151 & 114 of the CPC (Code of Civil Procedure)
Section 151 of the CPC gives inherent power to the court for doing justice. The court can recall its judgment in the exercise of its inherent power under section 151 CPC. Fraud itself vitiates the proceeding either civil or criminal. When the company obtained the judgment by fraud so the court will correct its judgment in the light of true evidence.
Section 114 of the CPC empowers the court to review the judgment if it has any apparent error. A judgment based upon fraudulent evidence is an apparent error which must be rectified. Therefore, you must file a review petition, under section 151/114 CPC, before the same court for recalling of the judgment.
Recall the judgment
The company has cheated the court through adducing fraudulent evidence. This act of the company has affected the solemnity of the judgment. Therefore, the company is not entitled to enjoy the finding of that judgment. This judgment became erroneous due to forgery of the decree-holder.
You have been suffering from that judgment because the opposite party has obtained it by fraud. In this situation, it is highly advisable to recall the judgment.
Indian Bank v. Satyam Fibres (India) (P) Ltd., (1996) 5 SCC 550 the Supreme Court held that Since fraud affects the solemnity, regularity and orderliness of the proceedings of the court and also amounts to an abuse of the process of the court, the courts have been held to have inherent power to set aside an order obtained by fraud practised upon that court. Similarly, where the court is misled by a party or the court itself commits a mistake which prejudices a party, the court has the inherent power to recall its order.
File an FIR against the company
The company had knowingly and intentionally adduced fraudulent & forged evidence. This is an offence under section 463 of the Indian Penal Code (IPC). It has made the false document to obtain that judgment therefore it has also committed an offence under section 465 IPC.
The company has knowingly used the forged document in the judicial proceeding as genuine thereby it has also committed an offence under section 471 IPC. Therefore, you may file an FIR under section 463/465/471 IPC.
You can simultaneously initiate a criminal and civil proceeding against the company. The director of the company or the person who had signed the affidavit will be liable for the offence.
Not necessary to send a legal notice
In these circumstances, it is not necessary to send a legal notice to the company before initiate civil and criminal proceeding. You can directly approach the civil court through filing a review petition. Additionally, you can directly file an FIR for the offence of forgery. You should file the review petition to recall the judgment within the limitation period.
According to the Limitation Act 1963, there is 30 days limitation period for filing of the review petition. If the limitation period has expired then you can take recourse of section 5 of the Limitation Act. the court can condone the delay if it is a bona-fide fault of the petitioner in filing the review petition.
Can the high court quash the false rape and dowry case filed by an ex-girlfriend? I knew a girl in the past 9-10 years. I genuinely wanted to marry her. When I got a good job, I sent my appointment letter to her. Her parents came to my home and we continued with the matrimonial process.
Suddenly after 1 month the girl called me and told me that she does not want to marry. I tried to ask the reason but she didn't tell properly. I went to meet her, but she didn't come. After 2 days I called her but she said that you don't spend money on me and we are not compatible, hence she will not marry me. I was deeply hurt by her behaviour andtried to contact her parents. But they blocked me. I have audio for all that is mentioned.
I moved on, however after 6 months the girl again approached me, she felt sorry for all that happened. But this time I said big no. She kept on calling and messaging me saying sorry and asking for marriage. I explained to her that it's you who said No, now also I will not spend money on you, still, all the old situation persists so why are u marrying me. She replied her parents are forcing me to get married to you. This was shocking, I said no. But she persistently said sorry. So, I changed my heart. I said ok.
I did a pre-engagement ceremony with her, I spent all money, it was at my residence. After the ceremony, the girl again started fighting with me. Most of the time she blocked my Number. I could not talk to her. I sent many messages that please talk or I will break up. Her parents also blocked me. I was frustrated.
Their behaviour seemed dubious so I started searching about them, to my surprise they all were fighting court cases u/s 354, 307,506,406, harassment etc. This was never told to me, I got frightened and I broke the future marriage. Now they are accusing me of dowry demand and false rape case.
I had no physical relationship. This the girl acknowledged in at least 5 different audio calls. But she may be having chats which give the impression that we had intimacy. No pics, No videos etc.
Can I be implicated when initially she denied marriage? I always genuinely wanted to marry her, she soured the relationship. Will audio, SMS, chats will help me to prove that her allegations are wrong?
Section 375 of the Indian Penal Code defines the offence of rape. This offence relates to sexual intercourse without the consent of the prosecutrix. You had no bodily relationship with her and also and she had no documentary proof thereof.
However, the court accepts the statement of the girl as a basis to initiate a criminal proceeding for the offence of rape. The court does not need any documentary evidence at the investigation stage. Police have the power to investigate if he finds that information discloses a cognizable offence.
Rape is a cognizable offence and permission of the court is not necessary under section 156 & 157 crpc. Neither court nor police requires any documentary evidence for conducting an investigation. Therefore, she can file an FIR on the false information of rape and police can investigate on that information.
This is not a hard and fast rule that the statement of prosecutrix is true in respect of offence of rape. But her statement is sufficient to launch the criminal proceeding against the accused.
You have enough evidence to disprove this case
The audio recording in which she admitted that she had no sexual relationship, is relevant evidence. There was no coercion, ill-motive and clandestine intention behind the relationship.
You had been in a relationship for the past nine to ten years. This fact is undisputed because you cannot deny this fact. This long relationship infers that you both were in a relationship with your free consent.
Suppose that you were in a bodily relationship during the said period. When there was free consent then such bodily relationship will not amount to rape. More importantly, you were ready to marry her since the inception of the affair. Thus, there was no cheating or ill-motive from your side.
The law is very clear on this point. If the boy had the intention to marry the girl but afterwards due to some other reasons, he does not fulfil his promise then the girl cannot say that he has cheated her or the bodily relationship is the amount to rape.
So, no offence of rape is made out in your case. You have documentary evidence and admission of the prosecutrix that she had never been in a sexual relationship. This evidence is relevant and admissible in court. The admission of fact becomes conclusive if it corroborates with other evidence.
She concocted a false story
You offered for marriage and solemnize betrothal or engagement. Till then she never complained about the rape etc. All this story surfaced after your refusal of the marriage. This shows her conduct that after the refusal of marriage she concocted the false story and filed this false case.
The admission (audio recording) corroborates with the fact of engagement and refusal of marriage. It shows that till the engagement there was no such allegation. When you refused the marriage then she made these allegations.
Allegation of dowry is unsustainable
You have offered to marry and performed an engagement ceremony at your home. Due to some untoward reasons, you refused to marry. All this incident happened after the debacle of the engagement ceremony. It shows her conduct that she wants to take revenge. Thereupon she filed this false case.
Quash the false rape and dowry case
You should file a petition before the High Court for quashing of this criminal proceeding. Section 482 crpc empowers the court to quash the false and frivolous criminal proceeding. The false FIR is an example of abuse of process of the court. Therefore, the court may quash this false criminal proceeding.
I have represented Tamil Nadu Electricity Board requesting Pro-rata pension for which I have worked for 17 years. But TNEB has not responded. Then I file WP in HC, request to direct TNEB to respond to my representation. HC directed TNEB, to clear the representation within 3 months as per the Act & Rules. But TNEB did not respond. Then I filed a contempt of court. But due to COVID. 19, contempt of Court case been numbered, but not sent to TNEB. Meanwhile, after 7 months of the WP judgement, TNEB has sent me a letter stating that "As per HC judgement, it is under consideration by TNEB, & will be informed soon". My question is:
Whether the Tamil Nadu Electricity Board is in the process of giving Pro-rata pension to me? Whether I have to inform to my Lawyer about this communication? What will my lawyer proceed? What about my Contempt of court case? Whether I have to contact the Tamil Nadu Electricity Board? Please advise.
The High Court had ordered the Tamil Nadu Electricity Board to decide your representation within three months from the date of receiving of the certified copy of the judgement. But the Tamil Nadu Electricity Board has flaunted the judgement of the High Court and did not decide your representation within three months. It has committed the contempt of the court. You have rightly filed a petition before the high court under Section 12 of The Contempt of the Courts act.
The intimation letter of the Tamil Nadu Electricity Board after seven months of the judgement has no relevance. It has committed the Contempt of the court and trying to absolve itself from contempt proceeding. The TNEB has no notice that you have filed the contempt petition because your petition is pending at the admission stage.
The respondent has committed the offence just after expiry of the three months period. Any communication afterwards does not give him any benefit. Therefore, you should pursue your contempt petition and try that the court may issue a notice to the TNEB for filing of the compliance report.
File a listing application
During the lockdown, your petition has not been heard by the High Court thus you should file a listing application. You should convince the court that your case is urgent and needs early hearing. Thereafter the court will fix a date for the listing of your case.
If the court satisfies that the respondent has committed the contempt then it will issue a notice and fix a date. Thereafter the TNEB will file the status report and satisfy the court that it has not committed any wilful disobedience.
The letter shows that your representation is under consideration
The letter of Tamil Nadu Electricity Board shows that your representation is still under consideration. After the expiration of seven months, your representation has not been decided. This act of the electricity board proves that it has floated the judgement of the High Court. Therefore, you should not wait for the final decision on your representation. You should pursue your case to issue a notice from the High Court. The TNEB will decide your representation as early as possible after receiving the court's notice.
You have already filed a contempt petition so it is not necessary for you to contact the electricity board. What is the need to get further information about your pending representation? The electricity board was duty-bound to decide your representation within three months.
It has not decided your representation, therefore, it has committed the contempt of the court. Now it will satisfy the court that it has not committed willful disobedience. Let the High Court issued a notice to the electricity board. It is meaningless to contact him personally.
University is refusing to reinstate after acquittal. I was working as a clerk in the university. The University has initiated a departmental proceeding against me and filed a criminal case under the Prevention of Corruption Act. University has made an allegation that I take a bribe for submission of the thesis. The court has acquitted me because the prosecution failed to produce any credible evidence of illegal gratification.
When the court acquitted me, I approached the Vice-Chancellor to reinstate me immediately. He does not want to reinstate therefore causing a delay in taking a decision in my case. I have written a letter to him to reinstate me as early as possible. He replied that a departmental enquiry is still pending, therefore, reinstatement is not possible.
The departmental enquiry is pending because the enquiry officer is still waiting for the copy of the statement from the investigating officer. The investigating officer said that he had produced the police report to the concerned court therefore it was not possible to provide a copy of the statement of the witness.
The university will reinstate you because the departmental enquiry is based upon the finding of the criminal case. You have acquitted in the criminal proceeding because the prosecution did not produce any credible evidence to prove your guilt. The court did not give the benefit of the doubt but explicitly acquitted you due to lack of evidence.
Acquittal in the criminal case
University may reinstate you after acquittal in the criminal proceeding. The departmental proceeding is still pending. So you should approach the High Court for expediting the aforesaid departmental proceeding. The High Court may order to conclude the departmental proceeding within the stipulated time. It may give three or four months to conclude the preceding.
It is evident from the facts of the case that departmental proceedings are depending upon the finding of a criminal case. When you have been acquitted by the court so most probably you may also be exonerated in the departmental proceeding.
Reinstate after acquittal
The employer has an absolute right to reinstate the employee after acquittal in the criminal proceeding. If the employer has lost the confidence in the employee then he may refuse to reinstate. The university may ascertain the loss of confidence on the finding of departmental proceeding. If the departmental proceeding is dependent upon the finding of criminal proceeding then the employer cannot exercise its discretion to reinstate.
In Addition Collector, Karnataka State Road Transport Corporation versus M G Vittal Rao (2012) 1 SCC 442; the supreme court held that a delinquent employee does not acquire the right of automatic reinstatement on being acquitted in the criminal proceeding.
Your reinstatement is possible because the finding of departmental enquiry is depending upon the criminal case. When you have been acquitted by the court then you may also be exonerated in the departmental proceeding. Therefore, the verdict of the Supreme Court about automatic reinstatement will not apply in your case.
Send a representation to the concerned authority
You should send representation to the concerned authority for your reinstatement. When the concerned authority does not take any action on your representation then you should move a writ petition before the High Court under article 226 of the Constitution of India.
The court will order to decide your representation within the stipulated time. If the concerned authority allows your representation then it will reinstate you. When he rejects your representation then you can again across the high court under article 226. The high court will decide your case as per the service rule and may reinstate after acquittal order of the court.
I have purchased agricultural land by payment of full consideration. All the co-sharers of the land have executed the sale deed in my favour. I have had the land for thirteen years. Thereafter, the son of one co-sharer has dispossessed me forcefully. Then I applied to the sub-divisional magistrate under section 145 of the code of criminal procedure.
He ordered that the sale deed is void because the land is not partitioned. Thereafter he attached the property. The order of the sub-divisional magistrate caused me a great loss. Please help.
It seems from the facts of your case that the disputed land was ancestral property. All the coparceners had joint ownership and possession over the land. When you purchased the property you have paid consideration to all the coparceners.
The coparceners have the right to sell the ancestral property for the benefit of the family. Consent of all the coparceners is mandatory for sale of the ancestral property.
You have duly purchased this property from all the coparceners because you had paid consideration to all of them. Thereupon, they have signed the sale deed and did not oppose your ownership in the past thirteen years.
This is admitted fact and they cannot deny it in any legal proceeding. The sale deed is valid and duly registered under the registration act. Thereafter they dispossessed you forcefully on the wrong assumption of law.
You should file a civil suit
In the current scenario, you should prefer a civil suit before the competent Civil Court. You have had the land for thirteen years and dispossessed forcefully by a son of the previous owner. You had been in peaceful possession of the land during the period of thirteen years.
Therefore you should file a suit for declaration of title, recovery of property and cost of litigation. You have the legal right and title in the property and illegally dispossessed therefrom. Therefore, you are entitled to get a declaration of your right under Section 34 of the Specific Relief Act.
You have to prove the sale deed
All the previous owners had executed a valid sale deed and admitted your ownership for the last 13 years. They cannot claim their title on the land after such a long time. Their right is barred by the limitation. You should produce the attesting witness for proving of attestation of the sale deed.
According to Section 68 of the Indian Evidence Act, if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at list has been called for the purpose of proving its execution.
So you have to prove the execution of the sale deed by evidence of the attesting witness. Thereupon you can use the sale deed as evidence in the civil suit. If you successfully prove the execution of the sale deed then it will be the conclusive proof of your ownership in the disputed land.
Where entire ancestral property is being sold by the coparceners then its partition is not mandatory. The opposite party is taking the plea that he has sold the disputed land without the partition. Hence, they have erroneously dispossessed you forcefully.
He said that the transfer of property is void in the absence of partition. He is not challenging the veracity of the sale deed. So that upon proof of the validity of sale deed the court will declare your title in the land.
The order of executive magistrate is not binding
The order of the sub-divisional magistrate passed under section 145 of the code of criminal procedure is not binding on the Civil Court. A competent Civil Court has the power to decide the title of parties. Section 145 crpc does not vest such a power in the sub-divisional magistrate. So the Civil Court will adjudicate the disputes based on evidence which you produce before it.
The executive magistrate can attach the property if he finds that parties fail to prove their right. This is preventive measures to avoid the breach of peace relating to the land dispute. The order of the sub-divisional magistrate is erroneous because he has decided the title without having the jurisdiction.
He has applied the wrong reasoning that partition of ancestral property is mandatory before the sale. However, he should have to consider the fact that the entire ancestor property has been sold.
You have not lost your title even after the forceful dispossession
More importantly, you have not lost your title in the property due to such dispossession from the property. The person who dispossessed you has no right in the disputed land. He has no evidence to prove that he is the owner of this disputed land. His father has sold the land and executed the sale deed.
He received the consideration of the disputed land and never challenged the veracity of the sale deed. These facts are in your favour and your right and title in the property are still valid.
You have enough evidence to prove your title in the property and get a declaration decree from the court. When the court declares your right no one can interfere in the enjoyment of the property. The court can also grant compensation for mental trauma and cost for the litigation.
My wife has an extra-marital affair with her ex-boyfriend. I knew about her extramarital relation when I saw some intimate photographs on her mobile phone. I have collected all those photos as evidence to prove her illegal relation. She accepted the sexual relation with her paramour when I caught her red-handed. I want a divorce on the ground of extra-marital relations. The video recording and her admission are sufficient for divorce on the ground of adultery? Whether she can demand maintenance on divorce?
Could she claim any right in my property? Where will the case proceed? She is very shrewd and extort money because her paramour is planning to settle in abroad. Her ex-boyfriend is not very financially sound so I'm worry that he can use my wife to extort money from me.
Asked from: Maharashtra
Adultery or extra-marital affair is a ground of divorce under section 13 of the Hindu Marriage Act. When a wife has been living in adultery, her husband can dissolve the marriage due to her infidelity. You should file a civil suit for divorce and make her paramour as a defendant in that civil suit. You cannot get divorce Without making him a party in the civil suit.
Moreover, you have sufficient evidence to prove that your wife has been living in adultery. The video recording and admission of your wife are sufficient and relevant evidence to prove her guilt. She cannot deny this evidence because she has admitted the fact of adultery.
Your wife has admitted that she is living in adultery. The rule of estoppel will apply in respect of her admission. According to Section 115 of the Indian Evidence Act, she cannot retract from her admitted fact. If she wants to refuse her admitted fact then she has to prove that the aforesaid video recordings and admissions are false. Prima facie the case is in your favour.
Burden of proof
The burden of proof that the evidence is false will shift on your wife. It is not easy for her to deny such conclusive proof. When you successfully prove that these video recordings and admissions are true then the court will presume that your wife is living in adultery. The strict rule of evidence does not apply in civil proceedings. Therefore, no need to prove that evidence is true beyond all reasonable doubts. The preponderance of the evidence is sufficient to prove your case and the evidence you have collected will serve this purpose.
Electronic evidence
The video recording is electronic evidence. Section 65B of the Indian Evidence Act enumerates a procedure for the admissibility of electronic evidence. Electronic evidence could be easily morphed or created falsely by using electronic devices. Therefore you have to prove that the video recording is genuine.
You should produce the primary storage device such as your mobile phone, pen drive or memory card in which you have recorded her video. If you have copied that video in another device then you have to produce a certificate under section 65B along with the video recording.
Claim of maintenance
During the proceedings of the divorce case, your wife cannot get maintenance from you. According to Section 125(4) of The Criminal Procedure Code, your wife is not entitled to get maintenance. When the wife is living in adultery she cannot claim maintenance from her husband. Your wife is the guilty party hence she also cannot get interim maintenance under Section 24 of the Hindu Marriage Act.
Maintenance after the decree of divorce
Section 125 of the code of criminal procedure also entitled a divorced wife to get maintenance from ex-husband. Your wife can get the maintenance after divorce if she is living in destitution. She will get the maintenance:
- Until her remarriage, or
- To her whole life, or
- Becomes able to maintain herself.
The wife has two capacities, one as a married wife and second as a divorced wife. A divorced wife is entitled to get maintenance even though the divorce is granted on the ground of adultery. The restrictions of section 125(4) crpc are not applicable to the divorced wife. Consequently, she is entitled to get maintenance after the divorce.
In Rohtash Singh v. Smt. Ramendri, JT 2000 (2) SC 553; the Supreme Court held that:
A woman has two distinct rights for maintenance. As a wife, she is entitled to maintenance unless she suffers from any of the disabilities indicated in section 125(4). In another capacity, namely, as a divorced woman, she is again entitled to claim maintenance from the person of whom she was once the wife. A woman after divorce becomes destitute. If she cannot maintain herself or remains unmarried, the man who was, once, her husband continues to be under a statutory duty and obligation to provide maintenance to her.
Whether the wife can claim right in property
The wife has no right in the property of the husband. She has only one right, that is to get maintenance from the husband even after the divorce. According to sub Section 4 of section 125 of the code of criminal procedure, an adulterous wife is not entitled to maintenance during the divorce proceeding. After the divorce, her infidelity does not obstruct her to get maintenance under section 125 crpc.
Place of suing
You can file the civil suit where your wife is living or where the cause of action has arose or where you were lastly resided together. If there is more than one places of suing then you can choose any one of them. So you should see where to file the civil suit under section 13 of the Hindu Marriage Act.
Related: Judicial separation if wife in mentally unstable
