by Shivendra Pratap Singh | Feb 24, 2025 | Matrimonial Dispute
Can the party treat decree as void if there is gross violation in passing of such a decree. I am a doctor employed in a central government instrumentality. I fell in love with a medical representative, finally we decided to marry. After three years of marriage, we sought divorce by mutual consent. After obtaining decree of divorce, we were living apart for few months but later we have been living together. Now we have decided to get a child. There is no problem between us and decree was sought just after the objection raised by the husband’s family. I belong to SC category and my husband belongs to General category. He wanted to settle the dispute with his family, so we filed divorce petition. Now we are living in a live-in relationship. For our point of view that decree is void because we love each other and carried on our marital relationship even after the decree of divorce. My husband says that our divorce is not effective because we are living as a spouse. But I want to know whether the party can treat decree as void if it was obtained by the collusion of the parties.
Asked from: Tamil Nadu
A decree passed by a competent court, even if it is void in law, remains valid unless and until it is set aside by a competent court. A void or voidable order is generally not considered non est (nonexistent) because the court did not err in its jurisdiction when passing the decree. In M. Meenakshi v. Metadin Agarwal, (2006) 7 SCC 470, the Supreme Court has held that:
It is a well-settled principle of law that even a void order is required to be set aside by a competent court of law inasmuch as an order may be void in respect of one person but may be valid in respect of another.
The same principle was reiterated by the Supreme Court in Sultan Sadik v. Sanjay Raj Subba, (2004) 2 SCC 377, where it was declared that a void decree must be formally declared void by a competent court.
From these rulings, it is clear that even if a decree is void ab initio (from the beginning), the aggrieved party must obtain a declaration to that effect from a competent court. Such a declaration cannot be sought in collateral proceedings.
The court is not obligated to grant a decree of divorce merely because a suit for mutual consent divorce has been jointly filed by the spouses. In such cases, the court must be satisfied that mutual consent exists between the parties, based on tangible evidence that clearly demonstrates such consent. (See Hitesh Bhatnagar v. Deepa Bhatnagar, (2011) 5 SCC 234).
You cannot widraw your consent after getting decree of divorce. That decree is binding upon you because you have proved that you both are agreed to live separately. Since you have been living together after that decree, your conduct will not automatically render that decree void.
In these situations, you have to set aside that decree by a competent court. It is settled principle of law that parties to the suit cannot treat divorce decree as ineffective if they continue to live together as husband and wife.
Hence, party cannot treat decree as void. In these circumstances you have to file an appeal for setting aside that decree because there was no free consent of wife and both parties have been living together after passing of divorce decree.
Also read: Impotency a ground of divorce
by Shivendra Pratap Singh | Feb 15, 2025 | Criminal Matter
Court acquitted the accused on medical examination report of doctor and did not look the other evidence. An offence committed when my brother was going to market. When he reached at Kapur Marg someone pushed him. Thereafter, altercation started between my brother and that person. At the same time few other people assembled near the place and threaten my brother. Somehow the quarrel stopped, and my brother returned to home. Few days after he came to know that it was a conspiracy of XXX. There was a dispute between my brother and XXX. My brother wanted to buy a land which was later on purchased by XXX. One day when my brother was stayed in his friend’s home, XXX came through the terrace and assaulted my brother. FIR was lodged and XXX arrested. At the stage of trial, prosecution produced the medical opinion of doctor. Who says that injuries on the body of XXX was two days old. Whereas my brother had lodged FIR within one hour of incident and accused had been arrested within seven hours of lodging FIR. The neighbours and servant of his friend also stated that XXX was present and assulted the complainant. They told that accused was coming out of that home. The trial court acquitted the accused only on the basis of medical examination report that injuries are two days old. Please suggest is there any possibility in appeal.
Asked from: Uttar Pradesh
I believe that the neighbors were made prosecution witnesses in your case. If those witnesses testified that they saw the accused coming out of the home, and the friend’s servant, who was also present in the home, deposed that the accused came from the terrace and assaulted the complainant, then the eyewitnesses are establishing the prosecution’s case. In such a scenario, the expert’s opinion becomes immaterial. It is a settled principle of law that the court is not bound by the opinion of an expert.
The trial court has disregarded the statements of the eyewitnesses, whose evidence is crucial to the case. The prosecution has fulfilled its burden of proof once the offense is established through the testimony of eyewitnesses. The injuries sustained by the accused are irrelevant if there is no allegation that the complainant also inflicted injuries on the accused during the altercation.
The primary allegations are housebreaking and assault. If the evidence proves that the accused committed housebreaking and assaulted the complainant, there is no need to place emphasis on the accused’s injuries. In Ghure Lal vs State of U.P. (2008) 10 SCC 450, the Supreme Court held that
A judgment of acquittal may only be reversed or otherwise disturbed for very substantial and compelling reasons. Such reasons exist when the trial court has ignored evidence, misread material evidence, or overlooked crucial documents.
In your case, the trial court has ignored the evidence of the eyewitnesses, which is vital to establishing the guilt of the accused. There is no justification for basing the judgment on the injuries sustained by the accused if there is no allegation of assault by the victim. The offense of housebreaking is fully established by the testimony of the servant and the neighbors. Therefore, there is a strong possibility that the appellate court may reverse the judgment of acquittal. I advise you to file an appeal as soon as possible.
Also read: Falsely implicated in the offence under Section 149 IPC
by Shivendra Pratap Singh | Feb 12, 2025 | Service Matters
Whether an educational institute is an industry or not. Can a clerk of an inter college file a case in labour court? I was working as a clerk in Inter College. A false allegation was made against me while I was incharge of an internal examination. The management and the principal of that college without serving a show cause notice arbitrarily terminated me from the job. I filed an application under the right to information act for taking information about the departmental enquiry initiated against me before termination from the service. In that application no information is provided by the public information officer of the intermediate college. Then I filed an appeal which is still pending. Meanwhile I filed a case in the labour court against the order of termination of my service. When the notice was served upon the principal he filed an objection that the court is not competent to admit my case because the educational institute does not fall under the definition of industry. The labour court has fixed a date for hearing on the maintainability of the case. Whether an educational institute is an industry under the Industrial Dispute Act.
Asked from: Uttar Pradesh
Non-teaching staff of educational institutions are considered workmen and fall under the jurisdiction of the Industrial Dispute Act. There is no dispute regarding the authority of the labor court in matters pertaining to workmen. Consequently, the provisions of the Industrial Dispute Act can be invoked for the redressal of grievances of workmen, as the labor court has jurisdiction over such matters.
In the case of Principal, Amar Shaheed Inter College v. Presiding Officer, Labour Court, 2005 SCC OnLine All 215, the Allahabad High Court held that
Though teachers may not qualify as workmen, other categories of employees such as clerks, sweepers, peons, and chaukidars undoubtedly fall within the definition of “workman” as outlined under the Uttar Pradesh Industrial Disputes Act, 1947.
Therefore, the objection raised by the opposing party is without merit. Your case has been filed before the appropriate court, which possesses the jurisdiction to adjudicate the dispute between the parties.
Also read: Whether giving reason for punishment is mandatory?
by Shivendra Pratap Singh | Feb 12, 2025 | Service Matters
Disproportionate punishment refers to a penalty that is excessively harsh or severe in relation to the misconduct or offense committed. In the context of disciplinary proceedings, if the punishment imposed is unreasonable or does not align with the gravity of the charges proven, it can be challenged on the grounds of being disproportionate. Courts and tribunals often intervene in such cases, emphasizing that the punishment must be commensurate with the nature of the misconduct. For instance, minor infractions should not result in extreme penalties like dismissal or demotion. If you believe the punishment in your case is disproportionate to the proven misconduct, this could serve as a strong ground for appeal.
by Shivendra Pratap Singh | Feb 12, 2025 | Service Matters
No reason mentioned in the punishment order for inflicting punishment in the departmental proceeding. In this situation can I seek quashing of that order? The proceedings were initiated against me when the regional officer caught three trucks on the Velipitu checkpost. When those truck drivers were arrested and interrogated by the police, they revealed their route. They admitted that they were coming from Deca Chungi post. I posted on that Deca post when the incident occurred. The show cause notice was issued to me and I replied the same. In the preliminary inquiry the charges were found against me. When I objected that the copy of the preliminary inquiry report was served to me along with the show cause notice, then that copy was supplied. In the departmental inquiry I produced my evidence and also cross-examined the witnesses. Upon completion of that inquiry the authority sent their report to the concerned authority. That authority punished me on the basis of that inquiry report. But did not give reason for the punishment. I want to challenge the punishment order because it is unreasoned.
Asked from: Tamil Nadu
This would be a weak point for challenging the punishment order issued by the concerned authority. A departmental inquiry was conducted, and you were given an opportunity to present your case. You submitted evidence in support of your defense and cross-examined the witnesses. This indicates that there is no apparent illegality in the departmental proceedings. Merely because the punishment order does not provide reasons for imposing the penalty does not constitute a strong basis for challenging the order.
In Boloram Bordoloi v. Lakhimi Gaolia Bank, (2021) 3 SCC 806, the Supreme Court held that it is well-established that if the disciplinary authority accepts the findings of the inquiry officer and imposes a penalty, the order of punishment does not need to include detailed reasons.
In your case, the punishment was imposed based on the findings recorded in the inquiry report. As such, the disciplinary authority is not required to provide further elaborate reasons. Instead of focusing on the absence of reasons, you should consider basing your appeal on grounds such as procedural irregularities, improper appreciation of evidence, failure to consider evidence produced by the employee, or disproportionate punishment.
If there are procedural lapses or if the disciplinary authority failed to consider exculpatory evidence, these could serve as valid grounds for setting aside the punishment order.
Also read: Disproportionate punishment
by Shivendra Pratap Singh | Feb 9, 2025 | Criminal Matter
I am falsely implicated in an offense under Section 149 of the Indian Penal Code (IPC). However, I was not connected to the group involved in the land grabbing. A quarrel erupted between two groups vying for possession of the agricultural land. My father had purchased this land from R. R’s son is attempting to invalidate the sale deed and has also entered into an agreement to sell the land to another person, who has a criminal history and is known as a local goon. When the dispute became known in the village, other individuals also attempted to forcibly take the land. On May 12, 2024, two groups arrived at the land and tried to take possession. Upon hearing of this, I went to the land as well. I saw that the two groups were engaged in a fight.
Suddenly, a gun shot was fired, and one person fell. Subsequently, members of the other group scattered. I chased them for approximately four hundred meters. I was also carrying my gun, and some witnesses have informed the investigating officer about this. It is a fact that I went to the scene of the incident after hearing about the quarrel. The First Information Report (FIR) was registered under Sections 149, 302, 307, 504, and 506 of the IPC. My name has been included in the list of accused solely because I was present at the scene of the incident. There was no connection between me and either of the groups. I was there merely out of curiosity and discovered that the two groups were attempting to seize my land.
Asked from: Uttar Pradesh
It appears from the facts of your case that there was no common object between you and the groups vying to grab your land. It is an undisputed fact that the land in question is your property, as your father had purchased it from R. In the absence of a common object, you cannot be arrayed as an accused in the alleged offence. Since you are the owner of the land, it was natural that upon hearing about the attempted land grabbing, you would go to the site.
You chased the individuals involved with the intention of protecting your land. In your case, the common object was formed by the members of the groups attempting to take possession of your land. Section 149 of the Indian Penal Code (IPC) applies when five or more persons, after forming a common object, commit an offence in furtherance of that common object. It is not necessary for all members to commit the offence; if even one of them commits an offence in furtherance of the common object, all members of the unlawful assembly are liable for that offence [Lalji and Others vs. State of Uttar Pradesh, AIR 1989 SC 754].
Since you arrived at the scene only after hearing that two groups were attempting to grab your land, there was no common object on your part, and you were not a member of any unlawful assembly. In this situation, you have committed no offence.
You should file a petition in the High Court under Section 528 of the Bhartiya Nagrik Suraksha Sanhita, 2023, for quashing the charge sheet (if it has been filed). Alternatively, you may file a criminal miscellaneous writ petition under Article 226 of the Constitution of India for quashing the FIR. In both scenarios, the proceedings are likely to be quashed, as no offence is made out against you [Bhajan Lal’s case].
Also read: Acquittal on the basis of medical report
by Shivendra Pratap Singh | Feb 9, 2025 | Criminal Matter
The case of Lalji and Others vs. State of Uttar Pradesh, AIR 1989 SC 754, is a significant judgment by the Supreme Court of India that deals with the interpretation of Section 149 of the Indian Penal Code (IPC). This section pertains to the liability of members of an unlawful assembly for offences committed in furtherance of a common object.
Key Points from the Judgment:
- Common Object:
- The court emphasized that for Section 149 to apply, there must be a “common object” shared by five or more persons who constitute an unlawful assembly.
- The common object must be to commit an offence, and all members of the assembly are liable for acts committed in furtherance of that object.
- Liability of Members:
- Even if only one member of the unlawful assembly commits an offence in furtherance of the common object, all members of the assembly can be held liable under Section 149.
- It is not necessary for every member to actively participate in the commission of the offence.
- Unlawful Assembly:
- The court clarified that the presence of a common object is essential to constitute an unlawful assembly. Without a common object, the group cannot be termed an unlawful assembly, and Section 149 would not apply.
- Application to the Case:
- In Lalji and Others vs. State of Uttar Pradesh, the court examined whether the accused shared a common object and whether the offence was committed in furtherance of that object.
- The judgment reinforced the principle that mere presence in a group does not make a person liable unless there is evidence of a shared common object to commit an offence.
Also read: Falsely implicated in offence under section 149 IPC
by Shivendra Pratap Singh | Jan 31, 2025 | Criminal Matter
How can an individual, arrested for theft in a house despite a lack of prima facie evidence, challenge the legality of their arrest and secure release pending trial? Specifically, given this evidentiary deficit, what legal recourse is available beyond challenging the arrest itself? What is the process for filing a bail application in such a scenario, and what key arguments must be presented to the court? What types of supporting documentation are crucial for strengthening the bail application? How does the accused’s lawyer advocate for their release, and what factors does the court consider when deciding on the bail application, particularly concerning the stage of the investigation and the severity of the alleged crime?
Asked from: Bihar
An individual arrested for theft despite the absence of prima facie evidence has several legal avenues to pursue. First, the legality of the arrest itself can be challenged, particularly if procedural safeguards under Section 41A of the CrPC, requiring notice before arrest for offenses punishable by less than seven years, were not followed. A petition for quashing the arrest or seeking compensation for wrongful detention can be filed if the arrest is deemed illegal.
Beyond this, the accused can file a bail application under Section 437 (for non-bailable offenses) or Section 439 (for higher courts), or, if anticipating arrest, seek anticipatory bail under Section 438. In cases of severe rights violations, a writ petition (e.g., habeas corpus) can be filed in the High Court or Supreme Court. The bail application process involves engaging a lawyer, drafting an application detailing the facts, lack of prima facie evidence, and grounds for bail (right to liberty, cooperation with the investigation), and then filing it in the appropriate court.
Key arguments within the application should emphasize the lack of direct or circumstantial evidence, the constitutional right to liberty (Article 21), willingness to cooperate, the non-serious nature of the offense, and the absence of any risk of tampering or absconding. Supporting documentation, including the FIR copy, arrest memo, medical reports (if applicable), character certificates, proof of residence and employment, and affidavits, strengthens the application.
The lawyer plays a critical role in presenting a compelling case, countering prosecution arguments, and highlighting procedural lapses. The court, when considering the bail application, weighs factors such as the stage of the investigation, the severity of the offense, the likelihood of tampering or absconding, the accused’s criminal history, and the prima facie case. If bail is granted, conditions like surrendering a passport, regular police reporting, or providing surety may be imposed.
Denial of bail allows the accused to approach higher courts for relief. In conclusion, challenging the arrest, filing bail applications, and leveraging legal representation are crucial steps for an individual arrested for theft without prima facie evidence to secure their release pending trial.
Also read: Legal safeguards to arrested person
by Shivendra Pratap Singh | Jan 31, 2025 | Criminal Matter
Can NBFC initiate proceeding under the SARFAESI: What are the requirements for a Non-Banking Financial Company (NBFC) to initiate proceedings under the SARFAESI Act, and what role does the Reserve Bank of India (RBI) play in regulating this process?
Asked from: Uttar Pradesh
To initiate proceedings under the SARFAESI Act, a Non-Banking Financial Company (NBFC) must meet specific criteria established by the Reserve Bank of India (RBI). These criteria ensure that only financially sound and compliant NBFCs can enforce security interests under the Act. The NBFC must be registered with the RBI and classified as either a Systemically Important Non-Deposit Taking NBFC (NBFC-ND-SI) or a Deposit-Taking NBFC (NBFC-D).
As per the RBI’s notification dated January 1, 2020, the NBFC must have a total asset size of ₹500 crore or more. A valid security interest (charge), such as a mortgage, hypothecation, or pledge, over the borrower’s assets is required, giving the NBFC a legally enforceable claim over the collateral. Furthermore, the NBFC must comply with all applicable RBI regulations, including accurate and timely asset classification (properly classifying assets as performing or non-performing), maintaining adequate provisions for bad debts, and adhering to other prudential norms, reporting standards, and governance guidelines.
The RBI plays a pivotal role in this process, overseeing NBFCs to ensure compliance with the SARFAESI Act and other financial regulations, including monitoring their financial health, governance, and recovery practices. The RBI issues guidelines and notifications to clarify eligibility and operational frameworks, and it monitors NBFCs to prevent misuse of SARFAESI provisions, ensuring recovery practices are fair, transparent, and legally compliant, and avoiding coercive or unethical practices. While facilitating debt recovery, the RBI also safeguards borrower interests by ensuring NBFCs follow due process and do not resort to unfair practices.
In summary, only eligible NBFCs meeting RBI criteria (registration, asset size, valid security interest, and regulatory compliance) can initiate SARFAESI proceedings. The RBI plays a vital role in regulating and supervising this process to ensure effective debt recovery while protecting borrower rights and maintaining financial stability.
Also read: Complaint in cheque bounce cases
by Shivendra Pratap Singh | Jan 31, 2025 | Criminal Matter
Section 304B of the Indian Penal Code (IPC) addresses dowry deaths. This section covers situations where a woman dies under unnatural circumstances (burns, bodily injury, or other suspicious circumstances) within seven years of marriage, and evidence shows she was subjected to cruelty or harassment by her husband or his relatives related to dowry demands. A dowry death is defined by the woman’s death occurring within seven years of marriage due to such unnatural circumstances, coupled with dowry-related cruelty or harassment by the husband or his relatives shortly before her death. The punishment for this offense is imprisonment of not less than seven years, which can extend to life imprisonment.
The Supreme Court, in cases like Kans Raj vs State of Punjab (2000), has clarified that “soon before death” doesn’t mean immediately preceding death, but rather a reasonable timeframe during which the woman experienced such cruelty or harassment. Once the prosecution establishes a prima facie case, the burden of proof shifts to the accused to explain the circumstances surrounding the woman’s death.
Also read: False case of theft
