I am the second wife seeking residence order. I initiated DV case against him and another criminal complaint of 420,498A,354,376,324 of I.P.C against my in-laws, I want a residence in the matrimonial house but his first divorce is pending. He compelled me by force to sign-up in his divorce case to implicate me that I know his first marriage. He after our marriage want to marry with a third woman so created an account on Jeevansathi matrimonial site and I caught him I have this proof I submit to the court.
He did sexual assault against me after 17 days of interaction and threatened me to do what I said to you. I did sign in up. I give my statement under 164 to the magistrate about this real assault, but his lawyer defence is that I have prior knowledge so I can not get relief of right to residence in the matrimonial house. His wife doesn’t live with him. Please kindly give me advice on how to get the right to residence in my husband house. He has by writing admitted that I am his wife, his family members also in writing admitted that I am their daughter in law before Mahila samupdeshan Kendra, and their fir against me of 380,457, I gave my marriage certificate to the court. Does a woman in domestic nature in strange nature have the right to residence in the matrimonial house?
In this scenario, the first marriage of your husband is still subsisting, which makes your marriage void. Your husband has committed the offence of bigamy. Although the second marriage is also void, you can still claim relief under the Domestic Violence Act.
It is important to note that you cannot claim that your marriage is valid because your husband and in-laws have admitted it. The admission of an interested party does not confer the status of a wife. You were married by a deceitful act of your husband, but not legally married.
However, your husband played a crucial role in the solemnisation of the marriage, so he cannot deny it later on.
In terms of the Domestic Violence Act, you have been living with your husband in a shared household after the marriage. You can prove that he has been committing violence and denying to live with you. Therefore, you can claim a residence order.
As an aggrieved person, you are entitled to the relief available under the DV Act. In the case of Poonam v. Vijay Kumar Jindal, 2015 (4) RCR (Criminal) 300, the P&H High Court held that to grant maintenance under the Domestic Violence Act, only the relationship needs to be approved and the validity of the marriage should not be decided by the Court. Therefore, since you are entitled to claim maintenance under the Domestic Violence Act, you can also claim a residence order.
It is important to note that you are entitled to claim any relief under the DV Act until the competent court passes a decree. In the current situation, your husband and in-laws have committed fraud against you. Therefore, you can file a suit for the declaration of your marriage as null and void. Until the passing of such a decree, you are entitled to demand residence in the shared household.
My boyfriend raped me. He had sex with me promising to marry me when I was only 17 for approx 3 years and then left me for no reason. My date of birth is xxx and his dob is xxx. Can I sue him for rape? Am I thinking right to charge him for rape case?
Rape is a serious offence under the Indian Penal Code, and it is considered to be an act of violence against another person. If a person has sexual intercourse with a minor, it is considered statutory rape, regardless of whether the minor gave consent or not.
The age of consent in India is 18 years, and any sexual activity with a person below this age is considered to be a criminal offence. Even if the minor has given their consent to the sexual activity, it is still considered rape under the law.
The Indian Penal Code (IPC) defines rape under Section 375, which states that sexual intercourse or any sexual act with a woman under any of the following circumstances is considered as rape:
- Without her consent
- With her consent, obtained by putting her in fear of death or hurt
- With her consent, obtained by deceit
- With her consent, given under intoxication or unsoundness of mind
- With her consent, given under a misconception of fact
Section 376 of the IPC provides for the punishment for the offense of rape, and the punishment can range from seven years to life imprisonment, depending on the gravity of the offense. In cases where the victim is a minor, the punishment is more severe.
When you were in a relationship with your boyfriend, he committed rape by having sexual intercourse with you by promising to marry you. However, according to the Indian Penal Code 1860, a person commits rape when they penetrate their penis into the vagina, mouth, urethra or anus of a woman without her consent. Consent is crucial in any sexual act, and if a woman gives her consent, then it is not considered rape.
However, if the accused takes a woman's consent by fraud or false promise, then her consent becomes immaterial. In your case, your boyfriend promised to marry you to obtain your consent, which constitutes a fraudulent act. Even if he later on wants to perform his promise but you refuse, he has still committed rape. Furthermore, since you were only seventeen years old at the time, and hence a minor, your consent is immaterial under the law.
Therefore, you can register an FIR under section 376 of the IPC, which is a cognisable and non-bailable offence. The investigating officer will conduct an investigation, and if found guilty, your boyfriend will be punished under the law.
Can court provide the cloned copy of the hard disk? The investigating officer refuses to provide a cloned copy of the hard disk. My colleague lodged an FIR that I have theft some sensitive data from the server and sold it to the third party. In the course of an investigation, the police officer visited our office and seized my laptop and extended hard disk.
The police officer has filed the charge sheet and found me guilty of the offence. My advocate prayed to provide the cloned copy of the hard disk and other data found in the storage devices. But the court refused to supply those documents and told that the accused has information about that evidence.
When the court accepts the charge sheet from the investigating officer, it provides all the documents to the accused under Section 207 CRPC. The accused has the right to know the material evidence upon which the charge sheet was filed. this is a statutory right of the accused and court cannot ignore it.
Material evidence
All the evidence collected during the investigation and which forms the basis of charge sheet are called material evidence. In your case, the charges have framed based on evidence found in the hard disk. Those are material evidence to prove your guilt and the prosecution wants to rely upon.
Electronic evidence
All information stored in the electronic storage device like pen drive, hard disk etc are documented under the Evidence Act. Such a document is an important piece of evidence if it tends to prove the guilt.
When the prosecution wants to rely on such electronic evidence, the court has to supply those evidence to the accused. Section 207 crpc makes it mandatory and the court cannot exercise its discretion.
Information contained in the electronic storage device is easily manipulatable. So accused must have an original copy thereof. The investigating officer should supply a copy of the original data to the accused. He should take a cloned copy by the competent authority like FSL (Forensic Science Laboratory) officers and must submit it to the court under section 173(2) crpc.
Files stored in hard disk is a document
The data or information stored in the hard disk is a document under section 3 of the Indian Evidence Act & section 29 of IPC. There is a wide difference between document and statement. A statement is the personal opinion of the person but the document is a matter written or described on a substance.
The court cannot hold a document u/s 173(6) crpc
Section 173(6) crpc does not empower the investigating officer to hold any relevant documents. However, he can hold a statement if it is irrelevant or its disclosure is against the interest of justice. That principle of law does not apply in respect of the document.
Such a document should be relevant
If that document tends to prove the crime then he has to supply those documents to the accused. The accused has a right to receive all relevant documents before commencement of trial. This is the basic principle of a fair trial.
In Asha Ranjan vs State of Bihar (2017) 4 SCC 397 the Supreme Court held that the fair trial is a fundamental right under Article 21 of the Constitution. In the greater community interest and collective social order, the court should balance the right to a fair trial and privacy of the victim.
Section 207 crpc
The court must supply all relevant documents to the accused immediately after receiving the charge sheet. This is purely an administrative act and the court cannot exercise his discretion. Section 207 crpc mandates the court to supply all documents to the accused upon which prosecution wants to rely.
Cloned copy of the hard disk
Cloning of hard disk is the only option to prepare a duplication copy of the hard disk which contains the original files. Each file has some information and that information must store in the cloned copy.
Supply of cloned copy
When the court finds that prosecution wants to prove the crime by documentary evidence, it must supply a copy of those documents to the accused. The accused cannot defend himself in devoid of such document.
Section 207 crpc makes such provision mandatory hence, the court is bound to supply the cloned copy of the hard disk.
I booked a 1 BHK property in Navi Mumbai Taloja in 2013, all formalities were completed and I paid 20% and EMI started from May 2013. Now the builder causing a delay in giving flat. However, we haven’t received the possession and the construction work went on hold in 2015, post which the builder is not responding and multiple people have filed a complaint – Enkay Gardens Taloja, Panvel.
I am paying EMI endlessly and there is no returns and progress, I want to withdraw and claim a penalty for delay and interest on the paid amount till date.
In the event that a builder is causing a delay in delivering possession of your flat, you should take immediate action by filing a complaint with the Real Estate Regulatory Authority (RERA). The builder is responsible for returning the amount you paid with interest and has no right to indefinitely stall the project.
RERA has the power to ensure that you receive your hard-earned money with interest (Section 18), and you will not suffer any losses due to the builder's fault.
If a builder is causing a delay, the Supreme Court ruling in Pioneer Urban Land & Infrastructure Ltd. v. Govindan Raghavan, (2019) 5 SCC 725 states that "the buyer should not be compelled to take delivery of a flat when there is a delay in delivery of possession by the builder." The court further held that the builder must refund the amount paid by the buyer with compensation/interest. The builder cannot benefit from their own fault in failing to fulfil their commitment.
The sale of a flat is a contractual obligation, and the builder must perform their duties within the specified time frame. Time is of the essence in this type of contract, and if there is a delay, the buyer has the right to cancel the contract without notice.
Judicial Magistrate has awarded excessive maintenance under section 125 crpc. An Order on section 125 crpc is passed by Kalyani judicial magistrate court ordering a final maintenance amount of Rs.7000. The wife has left me on her own will and I have sent 3 letters asking her to come back. I have also mentioned that my earning is Rs.16000/- per month from my homoeopathic shop.
But the court has not considered the facts and awarded such a hefty amount. Can I challenge the order in Calcutta High court or should I go to district judicial magistrate court? Which is a better option? I have also filed a divorce case on Dec 2018 and my wife has not appeared so the court has passed ex-parte order. Now the final divorce order will soon be passed. Please help how could I reduce my maintenance amount?
You should file a revision before the sessions court. The court has overlooked your financial capacity while passing that order. The amount of maintenance should be reasonable to the facts and circumstances of the case.
Excessive maintenance
Excessive maintenance amount causes hardship to the husband, The court considers the following factors in deciding the amount of maintenance under section 125 crpc:
- Income of husband
- Expenses and liability of the husband
- The living standard of wife in her matrimonial home
- Real monetary help from the husband
The revisional court has the power to reduce the amount of maintenance if it is beyond the financial capacity of the husband. You should produce evidence of your monthly income, genuine expenses and liabilities. If your parents are depending upon you then must recite this fact before the court.
Above all, you should empower the court to decide the real and reasonable amount of alimony.
The bank has sold the agricultural land of scheduled caste without earlier written permission of the collector. The official permission of the collector is required for the selling of land belongs to scheduled caste.
I belong to the scheduled caste, and the bank sold my land in public auction to a person other than scheduled caste. I secured a loan from the bank by mortgaging my agriculture land. However, I regularly paid the instalments but due to some financial crisis, it has been unpaid.
The bank released a notice for repayment of the whole outstanding amount, but I was not in a position to pay the same. Consequently, the bank initiated the action under the SARFAESI Act. Ultimately, the bank sold my land to a person not belonging to schedule caste.
The purchases took possession over the land and got a mutation in his favour. I want to challenge the whole proceeding because written permission of the collector is mandatory for selling of SC’s land. Please suggest.
You have no right to challenge the appropriate action initiated under the SARFAESI Act because the bank has enforced the right to sell your land. The SARFAESI Act empowers the bank to recover its loan by selling the security of the borrower. It was a secured loan and you mortgaged your land with the bank in lieu of that loan.
SARFAESI Act 2002
When the borrower makes defaults in repayment of the loan and the outstanding amount is increasing then the bank initiates an action under the SARFAESI Act.
Section 13 of the said Act empowers the bank to take possession of the mortgaged property and sell in the course of recovery of NPA. However, you could challenge the validity of such notice.
SARFAESI Act is a special law which enables the Bank to protect its loan and reduce its NPA. When the borrower does not pay the instalments, his loan becomes a non-performing asset (NPA).
In Mardia Chemicals Ltd. vs Union of India (2004)4SCC 311; the Supreme Court held that the provisions of SARFAESI Act are valid and does not infringe the constitutional right of the citizen.
It is a prime responsibility of the bank to protect its interest and recover the loan by selling the security of the borrower. So, the action of the bank is legitimate and in accordance with the law.
Revenue Law
The revenue law protects the right of tillers and makes special provisions for the scheduled caste tenure holder. According to the land revenue code, the SC Bhumidhar cannot sell his land to the person other than SC.
If he wants to sell his land then he must obtain written permission of the Collector before such sell.
The above provision of the land revenue code does not apply to the sale under the SARFAESI Act. The SARFAESI act does protect the interest of the bank instead of the borrower. Hence, the auction purchaser could be a person other than scheduled caste.
Land of scheduled caste
In UCO bank and another vs Deepak Debasma and others AIR 2016 SC 5502; the Supreme Court upheld that the provisions of land revenue laws are not applicable on the SARFAESI Act. The person other than schedule tribe can purchase his land in an auction under the SARFAESI Act.
The prior written permission of the collector is mandatory for the purchase of land belongs to schedule caste and schedule tribe. So according to the judgment of UCO bank, the permission of Collector is not necessary for the auction of your land.
Conclusion
You cannot challenge the validity of sale because the auction purchaser had the right to purchase your land. In such kind of sale, the permission of Collector is not necessary though the land relates to the scheduled caste.
When the auction purchase is the bona-fide purchaser then he has the right to take mutation of land in his favour.
Can I file a second application for temporary injunction? My land is situated in the main market and it has value rupees nine crores. Some influential and powerful men are eying on my land and gradually encroaching thereupon. I applied for a temporary injunction which is still pending. Now they are parking their vehicle in my land. So I need to file a subsequent application for preventing these acts.
Yes, you can file the second application for temporary injunction besides that another application is pending. There is no legal bar of filing such application for the preservation of suit property.
They are now parking vehicles on your land. Gradually they will start to make temporary structure thereupon. Hence, it is in the interest of justice to stop them immediately.
Conditions for granting temporary injunction
The court will see only these three grounds to admit your application:
- Prima-facie case in your favour
- Balance of convenience
- Irreparable loss due to such interference
If you successfully prove the above-said facts then the court will admit your application and pass a proper order. All those conditions are essential for the temporary injunction and they are present in your case.
You should file the application under section 151 of the CPC (Code of Civil Procedure). This is the inherent power of the court and you can invoke it in exceptional circumstances.
Whether I committed a child marriage? I am 20 years old and married with my class teacher who is 32 years old. The father of my wife has lodged an FIR under section 156(3) and the magistrate has directed to initiate prosecution under section 9 of the PCM Act.
According to the facts of your case, you are minor whereas your wife is a major. Section 2(a) of the Prohibition of Child Marriage Act 2006 (PCM Act) a male person below the age of 21 years is minor under the PCM Act.
Child marriage
According to section 2(b) of the said Act, child marriage is a marriage where either of the contracting party is minor. A boy below the age of 21 years and a girl below the age of 18 years are called minor. According to the Indian Majority Act, a person aged 18 years considers as a major but it does not apply in the PCM Act.
Child marriage is an offence
Section 9 of the PCM Act confers the child marriage a punishable offence. When a male adult solemnises marriage with a minor girl he commits the offence under section 9. He will be punished with rigorous imprisonment with up to 2 years and fine up to 1 lakh rupees.
Who will be punished for child marriage
As per section 9, the only male adult will be punished for contracting child marriage. When a girl is above 18 years and she marries with a boy below 21 years, she commits no offence. Only you will be subject to punishment under PCM Act.
Whether you have committed the offence?
No, you have committed no offence. If the male is minor i.e. below the age of 21 years, he commits no offence under section 9. If a boy is major and the girl is minor then the boy will be punished.
In your case, you are a minor whereas your wife is major. Hence, you have committed no offence.
In the above case, the Supreme Court has held that minor husband commits no offence under section 9 if his wife is above the 18 years.
Remedy
Annulment of marriage
If you do not want to live with your wife, then you can file a petition under section 3 of the PCM Act. A child can annul its marriage under section 3 but it is not mandatory. If you are living a happy married life you should go with it because your marriage is valid.
Quashing the criminal proceeding
You should file a petition before the High Court for quashing of FIR. Move a petition under Article 226 of Constitution of India for quashing of the ongoing investigation.
My husband has left his job intentionally for denying maintenance under Section 125 crpc. He is a qualified doctor and employed in a reputed hospital. When he received the notice of maintenance case, he resigned from the service.
But he still earning a handsome amount from private practice. He is doing medical practice in hush-hush. Could I get any maintenance?
Your husband is a qualified doctor and abled bodied. He can earn and support his family financially. Nevertheless, he has not been working.
Maintenance is an absolute right of the wife
The wife has an absolute right to claim maintenance from her husband if she has been living in destitution. It is the prime liability of the husband to take care of his wife and save her from vagrancy. Section 125 crpc protects that right of the wife.
The Supreme Court has held that section 125 crpc gives effect to the fundamental right and natural duties of the man to maintain his wife when she is unable to maintain herself.
Once again the Supreme Court reiterated that Section 125 crpc is a measure of social justice and is specially enacted to protect the women and children from vagrancy.
Jobless husband is bound to maintain his wife
Jobless is no defence for the husband because the law presumes that a healthy person can earn to sustain his family. If the husband is able-bodied and educated, he has to take care of his wife. It is the prime liability and husband cannot absolve himself to perform it.
The Delhi High Court has held that
“An able-bodied young man has to be presumed to be able reasonably to maintain his wife. He cannot be heard to say that he is not in a position to earn enough. to discharge his legal obligation of maintaining his wife.”
Husband has left his job
Being a jobless person is no defence under section 125 crpc. The husband cannot take such a plea and escape from his legal liability to maintain his wife.
the Supreme Court held that husband cannot take the plea that due to financial constraints he will not maintain his wife, so long as he is capable of earning.
Maintenance order under section 125 crpc
The court can grant a maintenance order however, your husband is currently unemployed. That plea is not acceptable because the law presumes that the husband has such ability. In your case, the husband is a qualified doctor therefore, the court will grant a handsome amount as maintenance.
My friend created a child witness for giving a false statement against me. In February 2018 our workers had indulged in fighting in the course of which one worker died. My friend lodged an FIR against a few other workers and me for the offence of murder.
He influenced the child of the deceased worker to become an eyewitness of the incident. The statement of the child witness does not get corroboration from other independent evidence, but the court has relied upon him. Can the court pronounce sentence only based on the testimony of child witness?
A child is a competent witness under section 118 of the Indian Evidence Act. His competency depends upon his ability to understand the question and giving rational answer thereof. The statement of a child witness must be accurate and reliable in the facts and circumstances of the case.
Corroboration of the child witness
However, corroboration enhances the reliability of the statement, but it is not a mandatory rule. It is the court to decide whether the testimony of a child witness seems reliable or not. When the facts of the case support the statement of the child witness, then the court will rely upon without any corroboration.
The court can seek corroboration if the child witness gives a contradictory statement or seems to be a tortured witness.
In your case, he has falsely produced as an eyewitness. The prosecution has to prove his presence at the place of occurrence. A child does not employ in the factory so the prosecution must establish the purpose of his being there. If he is a chance witness, then corroboration with some independent evidence is a must.
The Supreme Court has held that:
evidence of child witness and his credibility could depend upon the facts and circumstances of each case. There is no rule of practice that in every case, the evidence of a child witness has to be corroborated by other evidence. But as prudence, the court always finds it desirable to seek corroboration to such evidence from another reliable evidence placed on the record.
Competency
The child witness must have the ability to understand the question and give a rational answer. The court can ask a few general questions to the child witness for testing such ability. If the court finds that he is a competent witness, then it proceeds to take his evidence. It is a rule of prudence for the court to satisfy itself that child witness is acceptable.
