I live abroad but now due to lockdown, I am with my husband in Kolkata. Due to a lack of compatibility, I want to get a divorce from him. We were married in Feb 2018. How can I initiate a mutual divorce and is there any online procedure?
Under Section 13-B of the Hindu Marriage Act, you can initiate a suit for mutual consent divorce. It is essential for both parties to agree to the divorce, as mutual consent of spouses is mandatory. If your husband does not consent, you cannot file a petition under Section 13-B.
There are three essential conditions for a mutual consent divorce under Section 13-B:
The parties have been living separately for one year or more
They have not been able to live together, and mutually agree that the marriage should be dissolved
They have mutually agreed upon the terms and conditions of the divorce settlement.
The term "living separately" has a broad interpretation, and even if you are currently living with your husband due to the lockdown, you may still qualify for a mutual consent divorce if you have not had a marital relationship for one year or more.
The process of mutual consent divorce is time-consuming and requires a cooling period of six to eighteen months for the parties to rethink their decision. If the parties still wish to proceed with the divorce after this period, and the court is satisfied that both parties have given their free consent, the court will grant a decree of divorce.
While there is no online facility for filing a mutual consent divorce in the district court, you can contact a lawyer to prepare a plaint and affidavit, which will be signed by both parties. Additionally, a deed containing the terms and conditions of the divorce settlement must also be prepared, covering issues such as maintenance, stridhan, and property division.
Sir, I want to know that How to get maintenance after the withdrawal of application under section 125 crpc? My husband cheated me and deceitfully took my consent in the compromise deed. He promised to pay 45 lakh rupees as one-time settlement for the divorce and relinquishment of maintenance. I was in deep frustration because my husband has an extramarital relationship and my marriage was broke out within one and a half years.
My parents were also not ready but due to immense pressure from all the sides, they gave consent. He filed that compromise deed in the court and disposed of all the litigations. After getting divorced and settlement of all the legal proceedings he refused to perform the terms of compromise deed. Now I am facing a financial crisis and he refused to give any assistance what should I do?
If you have withdrawn all the cases from the court but your right to maintenance is still subsisting, you may still be entitled to maintenance under Section 18 of the Hindu Adoption and Maintenance Act, 1956. This is especially relevant if your husband has played fraud and deceitfully taken your signature on a compromise deed. In this blog post, we will explore the legal remedies available to you in such a situation.
Filing a Civil Suit under Section 18 of the Hindu Adoption and Maintenance Act
If you are in a situation where you are entitled to maintenance, you should move a civil suit under Section 18 of the Hindu Adoption and Maintenance Act, 1956. This provision provides for the maintenance of a Hindu wife by her husband during her lifetime, even if she is living separately from him. If the husband has deserted his wife without reasonable cause or her consent, committed cruelty to such an extent which causes reasonable apprehension in the mind of the wife that it will be harmful or injurious to live with her husband, or has any other wife living, the wife is entitled to maintenance.
Withdrawal of an Application under Section 125 of the Code of Criminal Procedure
It is important to note that the order of maintenance made under section 125 of the Code of Criminal Procedure is tentative and subject to the final determination of maintenance by a competent Civil Court. Therefore, section 125 CrPC does not impose any restriction on claiming maintenance under Section 18 of the Hindu Adoption and Maintenance Act. This means that you can claim maintenance under Section 18 even though you have withdrawn your application under section 125 of the Code of Criminal Procedure.
Void Compromise Deed under the Indian Contract Act
If your husband has cheated you by making false promises in a compromise deed, it is important to note that the compromise deed is void according to the provisions of the Indian Contract Act. Your husband had no intention to perform his promise at the time of making the compromise deed, and therefore that deed is void under section 19 of the Indian Contract Act.
Appeal to Set Aside the Consent Decree
If your husband has played fraud and the compromise deed is void, you should file an appeal before the appellate court to set aside the consent decree. Your husband did not perform his promise which he made in the compromise deed, and all the promises are false and frivolous. He had no intention to perform his promise despite signing the compromise deed. All these facts are sufficient to set aside the consent decree.
Conclusion
In conclusion, if you are in a situation where you are entitled to maintenance and have withdrawn all the cases from the court, you can still claim maintenance under Section 18 of the Hindu Adoption and Maintenance Act. It is important to note that the order of maintenance made under section 125 of the Code of Criminal Procedure is tentative, and that a compromise deed may be void if your husband played fraud. If you are facing such a situation, it is advisable to consult a lawyer and file a civil suit under Section 18(2) of the Hindu Adoption and Maintenance Act.
Who will get the agricultural land after father's death? Father holds one-acre agricultural land. He has a wife, three daughters and one son.
This agricultural land is ancestral property and your father is not its absolute owner since he has three sons and one daughter. After the amendment in the Hindu Succession Act, the daughter has become a coparcener and has an equal right in the ancestral property as the sons.
In your case, your father, his three daughters, and one son are all coparceners and have an equal right to this property. Therefore, after your father's death, you and your three sisters will inherit the property.
Section 29-A, 29-B, and 29-C of the Hindu Succession (Andhra Pradesh Amendment) Act, 1985 provide daughters with the right to ancestral property. The Andhra Pradesh government granted this right much before the amendment in the Hindu Succession Act of 2005. Therefore, your father's children will inherit the property after his death.
After the amendment in section 6 of the Hindu Succession Act, daughters became class 1 heirs. This amendment recognizes the daughter's right in her father's property. Daughters have an equal right in their father's property along with sons. Moreover, the daughter acquires an interest in the property by birth and is protected even if the father disposes of his own interest.
Sir my marriage is performed under Hindu marriage act on 10th May 2018. I came to my mother house on 18th Feb 2019. My husband filed a divorce case under 13(1)(a) saying that I am harassing him to stay separately. I filled a maintenance case under 125 crpc. His allegation is not true. Actually, he has an illegal affair with some other lady.
I noticed it and asked him with some photos, messages which I got on his mobile. Sir, how can I get residential order to stay in my husband own house?
Sir if a divorce case is disposed of then the wife will have a right to reside in his husband house? what we have to do if husband opposes it? (wife residing without his interest) Under DV Act residence order, the wife will have the total right to stay in his husband house? (without husband interest)
You should file an application under section 12 of the domestic violence act. Section 17 of the domestic violence act provides the right to reside in the shared household. As well as the court has the power to pass residence order under section 19. Your husband has an illegal relationship with another woman. This evidence is sufficient to prove that you are an aggrieved person under the domestic violence act.
The domestic violence act includes physical, sexual, verbal, emotional and economic abuse. The quarrel between spouse due to extramarital relationship amounts to verbal and emotional abuse. Therefore you are an aggrieved person because your husband has been committing domestic violence.
You are entitled to get residence order under Section 19 of the domestic violence act. Therefore, in the application under section 12, you should also claim residence order, protection order and monetary relief under the DV act. Section 18-22 provides several reliefs to the agreed person. An aggrieved person can seek more than one relief in the same application.
Right to reside in husband's home
The residence order is most effective because it secures the right of residence in the matrimonial home. Section 125 of the code of criminal procedure and the Hindu Marriage Act have no such remedy. The wife has no right or title in the husband's property despite that she can claim a right to residence under section 19 of the DV Act.
Husband is the natural guardian of the wife. Hindu Marriage is not a contract and cohabitation is an integral part of marriage. The husband will commit matrimonial cruelty if he refuses to cohabit with his wife. therefore, the wife has the right to reside with the husband in her matrimonial home.
Can wife claim residence order under the DV Act after the decree of divorce
The court will entertain your application under section 12 DV act even after granting of the divorce. Decree of divorce does not cease the right provided to an aggrieved person under the domestic violence act. In Juveria Abdul Majid Patni v. Atif Iqbal Mansoori, (2014) 10 SCC 736 the Supreme Court has held that domestic violence once committed subsequent decree of divorce would not absorb husband from his liability for offences under the domestic violence act. Therefore, the application under section 12 is maintainable even after the decree of divorce.
Your application under section 12 will be maintainable even after the decree of divorce. What will happen if the Court has passed residence order but subsequently the aggrieved person gets decree of divorce? In this situation, the order under DV act will remain in force. The husband cannot absolve himself from the liability to provide residence to his wife. In this condition, he will provide you with alternate accommodation.
Wife has the right to reside with dignity in a shared household
When the court grants residence order in favour of aggrieved person she has the right to reside in a shared household with full dignity. The husband cannot expel the wife from the home or cannot enter in that person of the house where the wife is living. Residence order has a prohibitory nature, It prohibits the respondent to interfere in the Peaceful living of an aggrieved person.
If the order comes in your favour you will have complete right to reside in the husband's home. He cannot throw you away from the house. If he does anything to dispossess you from the house you can invoke section 31 of the domestic violence act.
SHO straightway refused to take action on my FIR of Cyber fraud verbally & officially he says investigation under progress. Now six months have passed. What are the options left with me to compel police for rapid action?
The officer in charge of the police station can not refuse to lodge your FIR. If information discloses cognizable offence, the police officer is bound to register the FIR. When the SHO has refused to record your FIR, you should proceed under section 154(3) of the code of criminal procedure. This section empowers the district Superintendent of Police to investigate the case upon receiving the information. He can also depute any subordinate officer to initiate the investigation.
According to Section 154(3) of the code of criminal procedure, you should send the substance of information by post to the superintendent of police. If again you get no response from the superintendent of police thereafter you have another remedy to improve the code under section 156(3) of crpc. You should contact a lawyer and file an application before the judicial magistrate under section 156(3). The judicial magistrate can order the station house officer to conduct an investigation.
He can also monitor the investigation by demanding from the SHO to produce a status report. In Sakiri Basu versus State of UP, 2007, the Supreme Court held that Judicial Magistrate has the power to monitor the investigation under section 156(3). The code of criminal procedure provides an alternate process to lodge the FIR.
Delay in FIR
Six months have lapsed and your FIR has not been recorded. In this situation, you should approach the court under section 156(3). The police officer has told you that investigation is in progress. It is not clear that which kind of Investigation is under process. Therefore you should approach the court to call the status of Investigation. The court may direct the investigating officer to produce the case diary in the court.
Upon receiving the case diary, the court will examine the nature of Investigation. If it is related to your case then the court will order the investigating officer to take your information under 162 of the code of criminal procedure. Thereafter, your information will come on that record. If it discloses any cognizable offence the investigating officer is bound to collect evidence in the same investigation.
If the investigation is not pertaining to your case then the court will order the SHO to register the FIR and conduct an investigation. The above-said provisions are related to the recording of FIR at the order of Investigation. There is a six-month delay in your case so you should proceed under section 156(3) CRPC.
FIR in cybercrime
If the FIR is related to the cybercrime you should first approach the cyber police station for the recording of the FIR. The cyber police station has a special power to investigate cybercrime cases. He can collect any electronic evidence pertaining to the commission of the offence. You can read here the procedure for filing of FIR in cybercrime.
A protection order, also known as a restraining order, is a legal document issued by a court that prohibits an individual from engaging in certain behaviors, such as contacting or approaching another person. These orders are typically issued in cases of domestic violence, stalking, or harassment, and are intended to provide safety and security for the individual or individuals seeking the order.
Protection order
Protection orders can include a variety of different restrictions, depending on the specific circumstances of the case. For example, a protection order may prohibit the individual from coming within a certain distance of the person they are prohibited from contacting, or from possessing firearms. The order may also require the individual to complete certain actions, such as attending counseling or therapy.
The process of obtaining a protection order begins with the filing of a petition. This petition is typically filed by the individual seeking the order, and includes information about the nature of the abuse or harassment they have experienced. Once the petition is filed, the court will schedule a hearing, at which the individual seeking the order will have the opportunity to present evidence and testimony.
If the court determines that there is enough evidence to support the issuance of a protection order, the court will issue the order and it will be served to the restrained person. The restrained person is then prohibited from contacting, threatening or coming near the protected person.
Violation of protection order is an offence
It's important to note that violation of a protection order is a criminal offense, and can result in arrest, fines, and even imprisonment. And if the violation is proven in court, it could lead to harsher penalties.
Protection orders can be issued on a temporary or permanent basis, depending on the circumstances of the case. Temporary orders are typically issued for a period of time ranging from a few days to a few weeks, and are intended to provide protection until a full hearing can be held. Permanent orders, on the other hand, are issued for a longer period of time, and may remain in effect for several years.
Protection orders can be a powerful tool for individuals who are experiencing abuse or harassment, as they can provide a tangible sense of safety and security. However, it's important to note that these orders are not a solution to all problems, and should be used in conjunction with other forms of support and assistance. Additionally, seeking a protection order may not be appropriate in all situations, and it's important to consult with an attorney or other legal professional to determine the best course of action.
It's also important for individuals who are seeking protection orders to be aware of the potential risks and limitations of these orders. Some individuals may be reluctant to seek a protection order because they fear that it may escalate the situation, or that the abuser may retaliate. Additionally, protection orders may not be enforceable in all jurisdictions, or may not be able to provide protection in all situations.
Protection order in Domestic Violence Act
The protection of women from the domestic violence act 2005 provides some relief to the aggrieved person. A protection order is one of those reliefs the aggrieved person can seek under Section 18 of the domestic violence act. This relief is important to protect the aggrieved person from any future violence which may be committed by the respondents. It is a prohibitory measure which put some restrictions upon the respondent such as
Do not interfere in the daily life of the aggrieved person.
Refrain himself from committing or attempting to commit any act of domestic violence.
Don’t alienate any assets either movable or immovable.
Don’t commit any specific act mentioned in the protection order.
This order, to some extent, has the effect of an injunction order because it prohibits a specific action. The court commands that the respondent stop doing something that is damaging to the applicant. Breach of a protection order is a cognizable and non-bailable offence under section 31 of the DV Act. If the respondent breaches the protection order or interim protection order he shall be punished:
Imprisonment of either description for a term which may extend to one year.
Or with a fine which may extend to twenty thousand rupees, or with both.
Domestic violence is a specific offence which is committed against a woman by her spouse, partner or other males in the household. Domestic violence includes physical, sexual, verbal, emotional and economic abuse. The purpose of the DV Act is to protect women against violent husbands, partners and relatives.
Protection order
The primary object of the DV Act to protect from the acts of domestic violence. Therefore, section 18 empowers the Magistrate to put necessary restrictions upon the respondent. That restriction should be just and proper in the circumstances of the case. The Magistrate can impose these restrictions.
Do not commit any act of domestic violence
The Magistrate may direct the respondent to not commit any form of domestic violence against the aggrieved person. Physical, sexual, verbal, emotional and economic abuse are the forms of domestic violence. Act of domestic violence commits within the four walls of a shared household so the respondent may misuse his position and commit violence in different forms. Therefore section 18 imposes complete ban on the respondent.
Don't aid or abate the commission of domestic violence
The respondent may instigate another person to commit acts of domestic violence. Therefore, the Magistrate can impose the restriction on the respondent that he will not aid or abate in the commission of domestic violence.
Refrain himself from entering in the place of employment
The respondent cannot enter in the place of employment to humiliate or disrespect the aggrieved person. A child may be an aggrieved person under the DV Act. Therefore, the respondent cannot enter the school, hostel or any other place where the child is residing.
Don’t communicate with the aggrieved person
Respondents may be restricted by the protection order to communicate with the aggrieved person. The respondent cannot establish personal, oral, written, electronic or telephonic contact with the aggrieved person.
Do not alienate or transfer the property
Respondents cannot transfer any joint or self-acquired property without leave or permission of the Magistrate. The wife does not hold any right or title in the husband’s property. Hence a husband can easily dispossess the wife by transferring his property. In this situation, Section 18 protects the interest of the wife and restricts the husband to sell his property.
The Magistrate may restrict the respondent to alienate:
Any assets which the respondent holds
Bank lockers or bank accounts used or held or enjoyed by both the parties, jointly or singly.
Stridhan or any other property held by jointly or separately by the parties
Don’t commit domestic violence against the dependents
The Magistrate may restrict the respondent to cause domestic violence against the dependent or relatives of the aggrieved person. This restriction applies to those relatives or persons who assist the aggrieved person from domestic violence.
Don’t commit any specific act mentioned in the protection order
Section 18 vests a very vast power in the Magistrate to protect the aggrieved person from domestic violence. The Magistrate may exercise his discretion and restrict the respondent to commit a specific act. When the Magistrate passes a specific order under section 18 he must act judiciously.
Conclusion
In conclusion, protection orders are a legal tool that can provide safety and security for individuals experiencing abuse or harassment. These orders are intended to prohibit certain behaviors and provide a tangible sense of protection. But it's important to understand that protection orders are not a solution to all problems and should be used in conjunction with other forms of support and assistance. It's also important to be aware of the potential risks and limitations of these orders, and to consult with an attorney or other legal professional before seeking a protection order.
The procedure for recording of first information report i.e. FIR is given in section 154 CrPC. This section devises a process to lodge FIR in commission of cognisable offence. When the information discloses cognisable offence the officer in charge of the police station cannot refuse to record FIR. Police officer has no discretion in recording of FIR if information discloses cognisable offence.
The first information report commonly named as FIR. This is the information about the commission of a cognisable offence. Section 154 of the Code of Criminal Procedure (crpc) provides a detailed procedure to register the FIR. The officer in charge of the police station is empowered to record the information as FIR. You must know these important points about the FIR.
According to section 154 crpc, any person can inform the officer in charge of police station about the commission of a cognisable offence. He must give such an information with the intention to lodge FIR. The procedure for recording FIR as given in section 154 crpc is very simple. Informant can furnish the information either orally or in writing.
Duties of police officer towards the recording of FIR
When the police officer receives oral information he shall reduce it into writing.
In case of written information the police will record it under section 154 crpc
Police officer shall read over the information to the informant or complainant
The police officer shall take signature or thumb impression of the informant
Thereafter, the police will record the substance of information in General Diary (GD)
Police officer will give a copy of FIR to the informant at free of cost
Reading over the FIR
Reading over the information is mandatory because it prohibits the police officer from manipulating the information during the process of recording. Police officer cannot change the oral version of information while reducing it into writing.
Signature or thumb impression of informant
Signature or thumb impression of information is mandatory because informant, at the later stage, cannot question the genuineness of FIR. However, the FIR is not an encyclopedia of the offence but its sanctity must be preserved at the stage of trial therefore, signature of informant has been made mandatory.
During the trial, the court may use the FIR to contradict the informant under section 145 Indian Evidence Act, when he appears as a witness.
FIR sets the criminal law in motion and enables the police officer to start the investigation immediately. Therefore, section 154 crpc devises a very simple procedure to get the information towards the commission of offence as soon as possible.
2) What to do if the police officer refuses to lodge the FIR
In Lalita Kumari v. Govt. of U.P., (2014) 2 SCC 1 the constitutional bench of Supreme Court has held that “The recording of FIR is mandatory under section 154 crpc if the information discloses the commission of a cognizable offence. Hence, no preliminary investigation is permissible in such a situation.”
If the police officer refuses to lodge the FIR then you should send the substance of such information to the District Superintendent of Police by a registered post. Section 154 (3) CrPC provides an alternate procedure for recording the first information report on refusal of SHO. According to section 154 (3) CrPC the SP, upon receiving the information, will either himself investigate the case or depute any subordinate police officer to do so.
3) What to do if SP does not act on information?
When the SP does nothing after receiving your information under section 154(3) crpc then you have to approach the Court. You have two options while approaching the court. Firstly, if you do not want to file a private complaint then you should move an application under section 156(3) crpc. Secondly, if you are able to collect the evidence then file a complaint under section 200 crpc.
3.1 File an application under section 156(3) crpc
The informant can approach the court for recording of First Information Report. Judicial Magistrate has power under section 156(3) crpc to direct the officer in charge of the police station to lodge FIR. The Magistrate can direct to record FIR if the application under section 156(3) crpc discloses commission of cognisable offence. If application does not reflect cognisable offence the Magistrate shall admit it as complaint under section 200 crpc.
3.2 File a complaint under section 200 crpc
This should be the last resort if you failed to lodge the FIR in above said provisions. You should prefer a complaint along with evidence and witness. The court shall examine the witness and proceed further if it finds sufficient materials. The court will take cognisance of the offence and issue summon or warrant against the accused.
4) When the police officer can refuse to lodge the FIR?
However, the police officer is bound to lodge the FIR but in exceptional circumstances he can refuse to do so. In the following situation the police can refuse to lodge the FIR.
If the information does not disclose a cognisable offence.
When the information prima facie seems false or frivolous.
Information pertaining to the commercial offences, matrimonial dispute or corruption cases.
When the offence relating to offences mentioned in chapter XX of the Indian Penal Code (IPC).
When the accused is the President of India, Vice President, Prime Minister, Judges or Foreign Envoy.
If the law specifically prohibits lodging the first information report such as offences under section 138 Negotiable Instrument Act.
The police officer cannot refuse to lodge the information on the ground of lack of territorial jurisdiction. Each police station has specific territorial limits and that limit is the territorial jurisdiction of the police station. When the offence has been committed beyond his territorial jurisdiction the police officer shall record the zero FIR.
5) Can a police officer do some preliminary inquiry before lodging the FIR?
If the information discloses cognisable offence then the police are bound to lodge the FIR. He cannot do a preliminary inquiry before the recording of FIR. Therefore, in Lalita Kumari case the Court has held that recording of first information report is mandatory. However in following offences the police may conduct a preliminary inquiry to check the veracity of information.
Commercial offences
Matrimonial disputes
Medical negligence
Corruption cases
6) Whether police have discretionary power in the recording of FIR?
No, the police officer has no power to exercise his discretion while lodging the FIR. In Lalita Kumari’s case, the Supreme Court has held that a police officer has no such discretion in the recording of FIR (first information report). According to section 154 Crpc if the information is relating to the cognisable offence the police shall record it. Section 154 crpc read as:
“Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction…………..”
7) Which kind of information is necessary for lodging FIR?
So far as FIR is concerned, the information must relate to the commission of a cognisable offence. If the accused has committed more offences than one and any one of them is cognisable then you can lodge the FIR under section 154 crpc.
That information must disclose the commission of a cognisable offence.
The code of criminal procedure classifies offences into two broad categories. One is cognisable offence and the other is non-cognisable offence. The police have power to arrest the accused in a cognisable offence and he has no such power in respect of non-cognisable offences.
Where information is relating to the commission of a non-cognisable offence then the police officer will lodge NCR instead of FIR. NCR is the abbreviation of non-cognisable report. The police may lodge the NCR and will not proceed further except the order of the Magistrate. Police cannot suo-motu investigate in NCR.
8) What is the purpose behind the recording of first information report?
The FIR is not a substantive piece of evidence but it can be used against the informant for contradiction. However, it is an important document for the prosecution. Without lodging the FIR the police cannot start investigation. FIR gives the earliest information about the cognisable offence. Police initiate the investigation immediately after receiving the FIR. The purpose of recording of first information report is:
Obtain first-hand information about the cognisable offence.
Sets the criminal law in motion.
Arrest the accused before his absconding.
Collect evidence before its embellishment.
9) When you should lodge the FIR?
You should lodge the FIR as early as possible. First information report is the first information in point of time. Thus, time is the essence of FIR. If you have committed delay in lodging the FIR then you have to explain the delay.
Your FIR will lose its authenticity if you do not satisfactorily explain the delay. There must be a reasonable time between the commission of offence and recording of FIR under section 154 crpc. The reasonability will depend upon various factors like:
Distance of police station and place of occurrence.
Fatal injuries to the victim, in this situation the informant will first provide proper medical treatment instead of lodging the first information report.
Death of victim.
Nature of offence, in sexual offence the informants take time to lodge the FIR.
Ferocious nature of the accused. If the accused is the terrible person then some delay is caused in lodging the FIR.
9.1 Delay in lodging FIR may seriously affect the prosecution case. Such as:
Accused may abscond and eliminate the relevant evidence.
Creates doubt and lowers down the authenticity of first information report.
Infers that the informant has concocted a false story.
9.2 Prompt FIR has these effects:
It inspires confidence.
Rules out the possibility of falsehood.
Brings a spontaneous version of the offence.
Eliminates the possibility of false implication of the accused person.
Rules out tutored, concocted or planned story regarding the offence.
10) Who can lodge the FIR?
Any person who knows the commission offence can lodge FIR. The source of information does not matter and the police cannot be compelled to disclose the source of information. If the police officer heard about the commission of cognisable offence from a third person he can lodge FIR. Section 154 crpc does not want that only victim or eye witness shall furnish the information. The informant should disclose the source of information while recording the first information report under section 154 crpc.
In Superintendent of Police,CBI v. Tapan Kumar Singh, (2003) 6 SCC 175 the Supreme Court held that anyone can lodge FIR even a person who does not know the name of the victim and accused.
11) What is the evidentiary value of FIR?
The court does not place much reliance on the FIR because it is not a substantive piece of evidence. But it has some value for the prosecution case. It shows the conduct of the informant. The prosecution may use the FIR for these purposes:
For contradiction of informant under section 145 of the Indian Evidence Act (IEA).
It may be used for corroboration under section 156 of the Indian Evidence Act.
If the informant dies then FIR will be used as a dying declaration.
To show the conduct of the informant.
Forms basis for initiating a proceeding under section 182 IPC.
If the informant becomes accused then the contents of FIR may be used to prove his conduct under section 8 of the Indian Evidence Act.
The informant can use the FIR for refreshing his memory under section 159 of the Indian Evidence Act.
12) What should be the contents of FIR?
FIR is not an encyclopedia. Therefore, it is not necessary that you must furnish all the minute facts relating to the offence in recording the fir. You should state the important facts regarding the offence. You should give the following information when you recording the FIR:
Time and place of the commission of offence.
If you know the name of the accused then you should give their name otherwise record the first information report against unknown persons.
Mode of commission of the offence.
How the accused has committed the crime.
Nature of the weapon they used in commission of the offence.
If there is any enmity between the accused and informant then you should state some facts about that enmity.
13) Whether you can lodge more than one FIR?
You cannot lodge more than one first information report in respect of the same offence. If you have obtained more information about the alleged crime then you should furnish them to the investigating officer. He shall record your information under section 161 crpc.
You have to give additional information during the investigation when the investigating officer will record your statement under section 161 crpc. In T. T. Antony v. State of Kerala 2001 SCC, the Supreme Court held that there cannot be two or more FIRs against the same offence.
14) How to lodge first information report in cyber crime?
The Government of India has taken an initiative to facilitate victims/complainants to report cybercrime complaints online. A dedicated portal has launched to file an online complaint pertaining to cybercrimes only. This portal gives special focus on cyber crimes against women and children.
When you file the complaint, the respective law enforcement agencies or police of your state will deal with your complaint. You should provide correct and accurate details while filing the complaint therefore the concerned authority will take quick action.
Cybercrime is an unlawful act where a computer or communication device or computer network is used to commit or facilitate the commission of the crime. You can file an online cyber complaint with respect to child pornography, cyberbullying, cyberstalking, phishing, spamming, online espionage and ransomware etc.
15) Important judgments regarding the first information report
If any information disclosing a cognizable offence is led before an officer in charge of the police station satisfying the requirement of Section 154(1), the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information.
The provision of Sec. 154 of the Code is mandatory and the concerned officer is duty bound to register the case on the basis of information disclosing a cognizable offence.
The police officer shall record the substance of information in the FIR book or FIR Register. The gist of the FIR or the substance of the first information report may also be mentioned simultaneously in the General Diary as mandated in the respective Police Act.
FIR is to be recorded in the FIR Book, as mandated under Section 154 of the Code, and it is not correct to state that information will be first recorded in the General Diary and only after preliminary inquiry, if required, the information will be registered as first information report.
(15.2) CBI v. Tapan Kumar Singh, (2003) 6 SCC 175
It is well settled that a first information report is not an encyclopaedia, which must disclose all facts and details relating to the offence reported.
An informant may lodge a report about the commission of an offence though he may not know the name of the victim or his assailant. He may not even know how the occurrence took place.
A first informant need not necessarily be an eyewitness so as to be able to disclose in great detail all aspects of the offence committed.
What is of significance is that the information given must disclose the commission of a cognizable offence and the information so lodged must provide a basis for the police officer to suspect the commission of a cognizable offence.
At this stage it is enough if the police officer on the basis of the information given suspects the commission of a cognizable offence, and not that he must be convinced or satisfied that a cognizable offence has been committed.
If the police officer has reasons to suspect, on the basis of information received, that a cognizable offence may have been committed, he is bound to record the information and conduct an investigation.
At this stage it is also not necessary for him to satisfy himself about the truthfulness of the information. It is only after a complete investigation that he may be able to report on the truthfulness or otherwise of the information.
(15.3) Madhu Bala v. Suresh Kumar, (1997) 8 SCC 476
When a written complaint disclosing a cognizable offence is made before a Magistrate, he may take cognizance upon the same under Section 190(1)(a) of the Code and proceed with the same in accordance with the provisions of Chapter XV.
The other option available to the Magistrate in such a case is to send the complaint to the appropriate police station under Section 156(3) for investigation.
Once such a direction is given under sub-section (3) of Section 156 the police is required to investigate into that complaint under sub-section (1) thereof and on completion of investigation to submit a “police report” in accordance with Section 173(2) on which a Magistrate may take cognizance under Section 190(1)(b) but not under 190(1)(a).
Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused then the court may quash the FIR.
Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code then the court may quash the FIR.
The Hon'ble Supreme Court has laid down seven guidelines for quashing of FIR and false criminal proceeding.
(15.5) Parkash Singh Badal v. State of Punjab, (2007) 1 SCC 1
At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154(1) of the Code, the police officer concerned cannot embark upon an enquiry as to whether the information laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible.
At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154(1) of the Code, the police officer concerned cannot embark upon an enquiry as to whether the information laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible.
(15.6) Arnab Manoranjan Goswami vs State of Maharashtra AIR 2021 SC 1
The High Court and Supreme Court should ensure that the criminal law does not become a weapon for the selective harassment of citizens.
Once the FIR is registered the accused person can always approach the High Court under Section 482 crpc or under Article 226 of the Constitution of India.
The basis entitlement of every citizen who is faced with allegations of criminal wrongdoing, is that the investigative process should be fair.
The Allahabad High Court held that recitation of azaan may be an integral part of Islam, whereas its recital through the loudspeaker is not an integral part. Recitation of azaan through human voice without using any sound-amplifying devices does not violate any COVID-19 guidelines. Profess, practise and propagate religion is a fundamental right under Article 25 of the Constitution of India. Some Muslim activists and prominent lawyers were filed several public interest litigation before the Allahabad High Court. They wanted to allow the "Muezzins" to recite the azaan through the loudspeakers amidst the lockdown which has been stopped by some District Magistrates.
Some District Magistrates have stopped the recitation of azaan from the mosque amidst lockdown. They issued such directions in furtherance of the implementation of COVID-19 guidelines. The ministry of Homes issued some guidelines for the containment of COVID-19 pandemic. Consequently, no sound of Azan is hearing from the Mosque which the Muslim community claims as an integral part of Islam.
Public Interest Litigation for the recital of azaan
During the month of Ramzan, the entire Muslim community observes fasting from Sunrise to sunset. It is common practice in the Muslim community to open the daily fast by the recitation of Azan. Based on that belief, Muslim feeling aggrieved thereby filed several public interest litigation (PIL) before the Allahabad High Court.
Salman Khurshid and Afzal Ansari sent a letter to the Allahabad High Court. The Court treated their letters as a Public Interest Litigation. a bench, comprising Justices Shashi Kant Gupta and Ajit Kumar accumulated all PILs to deliver a common judgment for all.
The petitioners are prayed for to protect their fundamental right to profess, practice and propagate religion as enshrined in Article 25 of the Constitution of India. They seek an order from the court to direct the state administration to permit the recitation of azan through the loudspeakers or other amplifying devices. They wanted to permit the “Muezzin” or "Imam" or any authorized person from the respective Mosque in district Ghazipur, Farrukhabad and Hathras to recite the azaan.
Basis of Public Interest Litigation
The foremost ground for seeking a direction is that reciting Azan is an essential religious practice. This practice has been performed from time immemorial. Azaan is a mark to open and conclude the daily fast during the month of Ramadan. The ban upon recitation of azaan is violative of their fundamental right to freedom of religion. Article 25 of the Constitution of India confers freedom of conscience and the right freely to profess, practise and propagate religion to all persons.
The sound of Azaan from the Mosque marked as the beginning and concluding of the daily fast. The practice of opening the fast by the sound of the Azaan is an Islamic tradition prevailing since the time of Prophet.
Reciting Azan is an essential religious practice. It is for the welfare of a religious community.
Ban on the recital of azaan through loudspeaker or sound-amplifying devices is violative of a fundamental right as provided under article 25 of the Constitution of India.
Recitation of Azaan through the loudspeaker is not in any way contradictory to public order, morality, health or any other provisions of part 3 of the constitution.
Objections of the State Government
The government of Uttar Pradesh strenuously defended the orders of District Magistrates before the Allahabad High Court. In its reply, the government mainly relied upon the guidelines issued by the central government in view of the COVID-19 pandemic. The opposite party took these pleas:
Azan is a call for the congregation to offer prayers at the mosque. It violates the guidelines for containing the pandemic.
Since 24th March 2020, no religious activity is being carried out at any religious place.
No loudspeakers are being used for any religious purpose by Temple, mosque Church or Gurudwara.
New guidelines provide that all religious places of worship shall be closed for public.
The religious congregation are strictly prohibited during the lockdown.
People of different religions have been following the guidelines and no religious activities are being carried out at any religious place of worship.
The findings of the Court
The court could not satisfy from the arguments of petitioners that recitation of azaan through the loudspeaker is mandatory in Islam. Petitioners could not explain that a muezzin cannot offer azaan without the use of loudspeaker or other sound-amplifying devices.
The court observed that during the old days when the loudspeaker was not invented, Azan used to be given by human voice. Therefore, the use of loudspeaker for the recitation of azan is a modern practice. It has been developed by someone and not by the Prophet or his main disciples. This practice was not there in the past, and that the microphone is of recent origin. Accordingly, it could not be said that the use of microphone and loudspeaker is an essential and integral part of the Azan.
As well as, the government did not satisfy the court that the recital of Azan by a single person in the mosque is violative of COVID-19 guidelines. The court finds that if a Muezzin or Imaam or any other authorised person recites azaan through human voice is not violative of COVID-19 guidelines.
Eventually, the court held that the recitation of azaan is an integral part of Islam. Recital of Azan from the mosque through human voice does not cause any health hazards to any person of the society as well as does not violative of any guidelines.
Recitation of azaan is integral part of Islam
The court held that “Azaan” is certainly an essential and integral part of Islam. Right to offer Azan by voice, without the use of sound-amplifying devices is a fundamental right protected under Article 25 of the Constitution.
Recitation of azaan through loudspeaker is not an integral part of Islam
The right to recite azan through sound-amplifying devices are not protected under Article 25. Consequently, the use of loudspeaker for reciting azaan is not an integral part of Islam. A Muslim cannot claim recitation through a loudspeaker.
The microphone is a gift of technological age; its adverse effect is well felt all over the world. Use of loudspeakers otherwise in accordance with law affects fundamental rights of the citizens under Article 19 (1)(a) of the Constitution of India.
Freedom of religion is subject to others right as guaranteed under Article 19(1)(a) of the Constitution, namely, religious freedom cannot abridge or take away or suspend others' right under Article 19(1)(a) regarding their freedom of speech and expression.
Until and unless there is a license/permission from the authorities concerned under the Noise Pollution Rules, under no circumstances, Azan can be recited through any sound-amplifying devices.
Azan is simply a call to offer Namaaz and does not necessarily entail the people assembling at any mosque for the purposes of offering Namaaz.
Therefore, we are of the considered opinion that Azan can be recited by Muezzin from minarets of the Mosques by human voice without using any amplifying device and the administration is directed not to cause hindrance in the same on the pretext of the Guidelines to contain the pandemic Covid19 unless such guidelines are being violated.
Amplification of human voice by the use of loudspeaker for the performance of religious activity is not a fundamental right under article 25. Right to profess, propagate and practise religion does not include the right to use loudspeaker and microphones.
Azaan is certainly an essential part of Islam but the use of microphone and loudspeakers are not an essential and integral part of Islam. Microphones and loudspeakers are the major sources of sound pollution and it affects the fundamental right of the citizens under Article 19(1)(a) of the Constitution and making the citizens captive listeners, suspending all their fundamental and legal rights. None can claim an absolute right to suspend other rights or it can disturb other basic human rights and fundamental rights to sleep and leisure.
No religion or religious sect can claim that the use of loudspeakers or similar instruments for prayers or for worship or for celebrating religious festivals is an essential part of the religion which is protected under Article 25. We hold that there is no fundamental right to use loudspeakers or similar instruments under Article 19 (1) (a) of the Constitution. On the contrary, the use of such instruments contrary to the Noise Pollution Rules will be a violation of the fundamental rights of citizens under Article 21 of the Constitution. As well as the fundamental right of citizens of not being forced to listen to something which they do not desire to listen.
Right of privacy and the right to sleep has always been treated to be a fundamental right like a right to breathe, to eat, to drink, to blink, etc. An individual is entitled to sleep as comfortably and as freely as he breathes. Sleep is essential for a human being to maintain the delicate balance of health necessary for its very existence and survival.
I had been in a relationship with my boyfriend for 2 years. When he went to England for an assignment our relationship gradually diminished. Now I have married and living with my husband. My ex-boyfriends threatening me and my husband that he will file a criminal case against me. He is mentally disturbed after hearing that I have been married. I know that he is doing all such things in frustration but I want to know whether he has any right to file a criminal case against me?
Breaking the relationship and married to another person is not a criminal act. You, as an adult person, are free to choose your life partner. When you decided to marry a particular person then he cannot interfere with taking such a decision. So that you have not committed any crime. Hence, your ex-boyfriend cannot file any criminal case against you.
Whereas, he is committing a crime by giving such threats. Threatening to file a false criminal case is an offence. He wants to injure your reputation in society by lodging a false FIR. Since he has a criminal intention so you should appropriate legal action against him.
Register a complaint
You should register a complaint against him under section 506 Indian Penal Code (IPC). Criminal intimidation is a punishable act under section 506 of the IPC. If you have any proof like messages, call records etc then collect them and annexed with the complaint. The Magistrate requires some prima facie evidence to take cognisance and to issue a warrant or summon against the accused.
Mental harassment
You were in a relationship with your free consent. He went to England thereby your friendship came to end. In the meantime, you married to another person. He could not ready to accept the reality and languishing in mental pain.
However, he can assume that you are responsible for all these things but you have not committed any wrong. The wrong assumption of grief does not form a basis of mental harassment. A person is guilty of causing mental harassment when he does so intentionally.
You have solemnised marriage with your own choice. There is nothing wrong in doing so. Exercise of such a right does not form the basis of a criminal proceeding for mental harassment. He cannot hold you responsible for breaking the relationship. Whereas he is doing unnecessary interference in your married life. You should take it seriously and lodge a complaint against him as soon as possible.
My boyfriend had sexually abused me on the false promise of marriage. We were studying at the same university and I was emotionally attached to him. He took the benefit of my sentiment and given me a false promise to marry. Thereupon he established a sexual relationship with me for three long years. Now he is working in a very reputed multinational company and refusing to marry me. He used to ask me to come to Bangalore and live with him. I think that he is again willing to sexually exploit me by establishing emotional attachment. Sir I have broken out and want to take legal action against him.
You can initiate legal proceeding against him for the offence of rape and cheating. He has committed the rape by the misconception of fact. At the time of giving that promise, he had no intention to marry thereby he has also committed the offence of cheating. Lodge an FIR against him under section 376 and 417 of the Indian Penal Code.
Lodge the first information report
The statement of the rape victim is sufficient to lodge the FIR against the accused. You should know the procedure towards the recording of FIR. No need to reduce any direct evidence at the time of lodging the FIR. Despite that, you should prefer some circumstantial evidence to prove that the accused had the opportunity to commit rape. Section 154 of the code of criminal procedure provides that FIR about rape should be recorded by the women police officer. Therefore, you can file the FIR in the Mahila Thana of your district.
Place of occurrence and territorial jurisdiction
You should file the FIR in the police station which has the territorial jurisdiction over the place of occurrence. The place of occurrence is the place at which your boyfriend has committed rape. If you give the information in the police station who does not have territorial jurisdiction then it will not initiate an investigation. In this condition, the police officer will record the zero FIR.
Rape and cheating
He has committed the offence of rape and cheating because he took your consent by the false promise of marriage. Consent is a very important fact for the offence of rape. If you have given the consent with your free consent then you cannot initiate any legal proceeding against him. When you knew the facts that he will not marry you then again your boyfriend is not responsible. Section 376 of the Indian Penal Code makes the rape an offence and it has some legal technicalities.
Rape is a cognisable and a non-bailable offence. When you lodge the FIR and police officer has reason to believe that offence has been committed then he will start the investigation immediately. Since the offence is cognisable hence, the investigating officer will arrest the accused.
