by Shivendra Pratap Singh | Dec 17, 2024 | Domestic Violence
Husband not permitting me to live with him even after decree of restitution of conjugal rights under Section 9 of the Hindu Marriage Act. My husband filed a divorce case on the ground of cruelty and mental disorder. In the same court I filed a case for restitution of conjugal rights. I won the case, my husband was denied entry into the matrimonial home. Now three years have gone. We both are living in Bangaluru but I live in a rental apartment. He also does not give rent of that flat. I am working in a hospital but my husband is a good businessman. As I know from reliable sources his annual income is about fifty lakh. In this situation what action should I take to live with him. He is also planning a second marriage. That’s why my husband not permitting me to live with him.
Asked from: Karnataka
You should file an execution application in the same court that passed the decree of restitution of conjugal rights (RCR). Since three years have already passed, a delay has been caused in executing the decree. Therefore, you should file the execution application as soon as possible.
You mentioned that your husband is not allowing you to live with him even after the decree of RCR. In this situation, he is also committing domestic violence against you. You have the right to reside with him and enjoy the same standard of living as your husband. By keeping you away from your matrimonial life, he has committed economic, mental, and emotional abuse.
You can file a complaint under Section 12 of the Domestic Violence Act to seek a residence order, protection order, monetary relief, and compensation for the monetary loss you have suffered. You can claim relief under Sections 18, 19, 20, and 22 of the DV Act.
It is important to note that you can file the execution application and the Domestic Violence complaint simultaneously. The cause of action for both proceedings is distinct, so they can proceed concurrently. The Domestic Violence case will provide you with effective relief. Protection orders will safeguard you from any future violence or physical abuse, while a residence order will allow you to live peacefully in the matrimonial home.
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by Shivendra Pratap Singh | Dec 17, 2024 | Domestic Violence
Second wife got a residence order under Domestic Violence case and now claiming the right to live in my house. My husband contracted a second marriage and I did not know this fact until the order of the court. When that lady came to my house and tried to get entry in my house forcefully then I came to know about the second marriage of my husband. This is my property because my father gifted this house to me at the time of marriage. My husband has no right in this property. Sir, in this situation how do I protect my property and my life because she got residence order?
Asked from: Uttar Pradesh
It appears from the facts that the proceedings before the trial court were conducted without making you a party. As a result, you have no information about the trial court’s order. Your husband has entered into a second marriage, which is both illegal and constitutes the offense of bigamy. However, that is a separate matter. Here, we are discussing the residence order passed by the court.
The house in question was gifted to you by your father at the time of your marriage. It is your self-acquired property because it qualifies as streedhan. That second wife has never resided in this house; thus, she can’t claim it as a shared household. Hence, the residence order passed by the court is null and void.
In this situation, you must file an appeal under Section 29 of the Domestic Violence Act. Every order issued by the trial court in Domestic Violence cases is subject to appeal. You were not made a party to the case. Even so, you are the most affected person if that order is enforced.
Therefore, you need to seek leave from the appellate court to challenge the validity of the order. It is likely that the court will grant you leave, as you are a necessary party in this matter. Your husband’s second wife got residence order by suppression of facts.
You should immediately file an appeal in the sessions court. The limitation period is thirty days from the date of the order. You were not a party to the original case. Therefore, the limitation period will be calculated from the date you became aware of the order.
Also read: Court can take cognisance of domestic violence without domestic incident report
by Shivendra Pratap Singh | Dec 14, 2024 | Criminal Matter
Court is not providing copies of statement recorded under Section 164 crpc. I want to file a quashing application in the High Court. But due to not having copies of statements unable to proceed in high court.
Asked from: Uttar Pradesh
If the court has taken cognizance of the offence based on the charge sheet and issued a summons to the accused, it becomes the court’s responsibility to provide the accused with all documents submitted by the investigating officer along with the charge sheet.
Conversely, if the court has not taken cognizance of the offence, it is not obligated to deliver any documents to the accused. In such a scenario, the court may appear not to rely on the charge sheet. It is also possible that the court considers further investigation necessary to address unresolved areas of the case.
At this stage, the court is not bound to issue process, as the issuance of process occurs only after cognizance is taken. Therefore, until cognizance is taken, the accused cannot compel the court to provide copies of the victim’s statements.
You should consult with your advocate and inspect the file specially to see whether cognizance has been taken by the court or not. If the court has taken cognisance and issued a process against the accused, you may move an application to the District/Session Judge that court is not providing copies of statement recorded under Section 164 crpc. The district/session judge shall take proper action against that judge.
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by Shivendra Pratap Singh | Dec 4, 2024 | Criminal Matter
Can an arrested person seek anticipatory bail in another case when he is in judicial custody? My husband has been arrested in a forgery case while three more cases are registered against him. Police officers are trying to rearrest him when he gets bail from the court. My advocate suggested applying anticipatory bail in other cases to evade arrest.
Asked from: Uttar Pradesh
Your husband has a legitimate apprehension of arrest in the three criminal cases registered against him. Therefore, he is entitled to file an anticipatory bail application even while in judicial custody. The precondition for seeking anticipatory bail is a reasonable apprehension that he may be arrested on accusations of committing a non-bailable offense.
The legal maxim ubi jus ibi remedium—meaning “where there is a right, there is a remedy”—is a fundamental principle of jurisprudence. A Constitution Bench of the Supreme Court in Anita Kushwaha v. Pushap Sudan, (2016) 8 SCC 509, recognized this maxim in the context of access to justice.
When your husband is in judicial custody, he retains the right to access justice and seek remedies available under the law. The remedy of anticipatory bail (pre-arrest bail) is also available to a person already in custody in other non-bailable cases.
The arrest of an individual in one case does not bar them from applying for pre-arrest bail in a different case, as there is no such limitation in the language of Section 482 of the Bhartiya Nagarik Suraksha Sanhita (BNSS).
In Central Bureau of Investigation, Special Investigation Cell-I, New Delhi v. Anupam J. Kulkarni, (1992) 3 SCC 141 the Supreme Court has held that
Even if an accused is in judicial custody in connection with the investigation of an earlier case, the investigating agency can formally arrest him in connection with his involvement in a different case and associate him with the investigation of that other case.
Hence, there is a possibility that the investigating agency can arrest your husband in connection with three other cases. Hence, there is reasonable apprehension of arrest. Pre-condition of anticipatory bail is existing in your case, therefore, entitled to avail anticipatory bail.
You should proceed with filing an anticipatory bail application in the other cases to safeguard your husband’s personal liberty. Section 482 of the BNSS does not impose any restriction on seeking anticipatory bail while in judicial custody. Hence, arrested person can seek anticipatory bail in another pending criminal case.
by Shivendra Pratap Singh | Nov 27, 2024 | Criminal Matter
The trial court has convicted the accused when accused was not identified by the eyewitness. In the trial eyewitness failed to identify the accused who had been alleged to be fired and looted five lakh rupees from the manager of the brick kiln. The story has been falsely made by the prosecution. When the investigating officer failed to catch the real offenders he falsely arrested two labourers from my brick field and made a false case against them. Money was not recovered from the accused.
They were compelled to make a confession. Both accused belong to Jharkhand and no one from their family to defend. Hence, I bore all legal expenses and defended them. Fortunately, in the trial the eyewitness did not identify the accused. Also there was no direct evidence, my advocate took a plea of alibi but court refused that place of occurrence is near to the place where accused were working. There are many flaws in the judgment. Please give any ruling of the high court or supreme court in support of the case because I am going to appeal against the order of the trial court.
Asked from: Uttar Pradesh
The major and material flaw in your case is that the eyewitnesses failed to identify the accused. Additionally, the proceeds of the crime were not recovered from the accused. It appears that the investigating officer arrested the accused shortly after the commission of the offense, likely based on information provided by eyewitnesses to the police.
In this scenario, the identity of the accused and the recovery of the proceeds are both material facts that need to be carefully considered by the trial court before delivering a judgment. Regarding the plea of alibi, it is based on the specific circumstances of the case and is inherently subjective.
It is an undisputed fact that the case relies heavily on the statements or evidence of the eyewitnesses. However, when the eyewitnesses fail to identify the accused in court, it undermines the very foundation of the case.
In Dharma v. State of Haryana, (2023) 10 SCC 229, the Supreme Court held that if an accused is not identified by eyewitnesses, they cannot be held guilty. In paragraph 11 the court expressed that:
Therefore, this is a case where the eyewitness has not identified both the accused in the court. In the circumstances, the appellants could not have been convicted in the absence of their identification by the eyewitness before the court.
You should promptly file an appeal under Section 415 of the Bhartiya Nagarik Suraksha Sanhita 2023. The appellate court is likely to set aside the conviction on the sole ground that the accused not identified by eyewitness. Their involvement in the commission of the offense remains doubtful, and they are entitled to the benefit of the doubt.
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by Shivendra Pratap Singh | Nov 15, 2024 | Criminal Matter
Indian criminal law provides several legal protections to an accused at the time of arrest to ensure their fundamental rights are safeguarded. These provisions are codified primarily under the Code of Criminal Procedure, 1973 (CrPC) and, more recently, the Bhartiya Nagrik Suraksha Sanhita, 2023 (BNSS). Here’s an explanation:
Under the Code of Criminal Procedure, 1973 (CrPC):
- Right to be informed of the grounds of arrest (Section 50 CrPC): The arrested person must be informed of the reasons for their arrest and any charges against them.
- Right to bail (Section 50A CrPC): If the offense is bailable, the accused must be informed of their right to bail.
- Right to be presented before a magistrate (Section 56 and 57 CrPC): The accused must be presented before a magistrate within 24 hours of arrest. This prevents unlawful detention.
- Right to consult a lawyer (Article 22 of the Constitution and Section 41D CrPC): The accused is entitled to consult and be defended by a legal practitioner of their choice.
- Protection against arbitrary arrest (Section 41 and 41A CrPC): Police must have reasonable grounds for arrest and document them. In cases where arrest is not necessary, the police may issue a notice to appear instead of arresting the individual immediately.
- Medical examination (Section 54 CrPC): The arrested person has the right to a medical examination to document any injuries, ensuring protection against police brutality.
Provisions under the Bhartiya Nagrik Suraksha Sanhita, 2023 (BNSS):
The BNSS 2023 modernizes criminal laws and reinforces the protections already in place under the CrPC. Key provisions include:
- Notification of Rights: It mandates that an accused be informed of their rights in a clear and accessible manner.
- Video Recording: Arrests and the interrogation process must be recorded to ensure transparency and accountability.
- Strengthened Oversight Mechanisms: BNSS includes provisions to prevent misuse of power by law enforcement authorities through stricter oversight and penalties for violations.
- Special Protections for Vulnerable Groups: The BNSS expands safeguards for women, children, and individuals with disabilities during arrest and detention.
- Use of Technology: The law emphasizes the use of digital tools, such as e-filing of FIRs and electronic monitoring of detention, to reduce procedural delays and enhance accountability.
Constitutional Protections:
In addition to the above, the Indian Constitution provides critical safeguards under Article 21 (Right to Life and Personal Liberty) and Article 22 (Protection against Arbitrary Arrest and Detention), ensuring that the rights of the accused are not violated during the criminal justice process.
These provisions collectively aim to balance the need for effective law enforcement with the protection of individual rights, reflecting India’s commitment to the rule of law and justice
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by Shivendra Pratap Singh | Oct 28, 2024 | Criminal Matter
My appointment is cancelled by the employer after police verification due to my involvement in a criminal case which ultimately resulted in my acquittal. I was falsely implicated in a criminal case by the dispute arising out of property matters. A false FIR was lodged against me and my family members for the offence of rape and extortion. In that criminal case I was acquitted by the court for lack of evidence. Actually I compromised the case with the complainant after I got selected in the education department. When I filled up the form mistakenly not disclosed about the pending criminal case. When the police verification was done by the local police a report was submitted that I was involved in a criminal case. Is there any possibility to challenge the decision of the appointing authority in the high court?
Asked from: Madhya Pradesh
Rape is a heinous offense closely linked to the moral depravity of the offender. You committed an error by concealing the fact of a pending criminal case and ongoing trial. If you had disclosed the correct information on your application form, there is a possibility you may not have been selected or appointed.
When an employer finds that an applicant has, at the outset, made a false statement, failed to disclose material information, or suppressed essential facts, they may determine that such an individual cannot be retained in service, as they may not be trustworthy in the future.
Your acquittal was achieved through a compromise. However, non-compoundable offences cannot be legally compromised; thus, the matter was settled by influencing the prosecutrix to become hostile. Under these circumstances, you cannot claim the FIR was false. There was prima facie evidence against you, which led to the framing of charges and facing a trial process.
It is a well-established legal principle that courts cannot compel an employer to appoint a candidate with a criminal history. In Avtar Singh v. Union of India, (2016) 8 SCC 471, the Supreme Court held that:
Even where a candidate truthfully discloses a concluded case, the employer retains the right to consider the candidate’s antecedents and is not obligated to make an appointment.
The alleged offence was directly tied to morality and your moral character, and you suppressed this material fact from your employer when filing your application.
Merely being acquitted in a criminal case does not automatically qualify you as fit for appointment to a given position. The trial court granted you an acquittal based on the benefit of doubt.
Given these circumstances, the High Court is unlikely to direct the employer to consider your application for appointment in the education department, where the moral character of a teacher is expected to be of the highest standard. Your appointment is cancelled by the employer in violation of law.
by Shivendra Pratap Singh | Oct 3, 2024 | Criminal Matter
Whether transfer case to another investigating agency is possible. I have no faith in the investigating officer because he is trying to save the accused. Offence was committed by the husband but he is utilising his contacts in the police and administration for pressurising the investigating officer to do faulty investigation. In this circumstance I approached the police commissioner but he did not entertain my request. He clearly said that meet the investigating officer and cooperate in the investigation. I cannot interfere in the investigation process. Such callous behaviour of the police commissioner made me upset. Please suggest how to change this investigating officer for ensuring free and fair investigation.
Asked from: Uttar Pradesh
If you want to change the investigative agency, you must prove that the current investigating officer is conducting the investigation with malafide intentions and that the state police cannot conduct a free and fair investigation.
In the present scenario, the lower court, specifically the court of judicial magistrate, can provide an appropriate remedy. Under Section 175 of the Bhartiya Nagrik Suraksha Sanhita (BNSS) 2023, the magistrate has the authority to monitor the investigation and issue necessary directions to ensure a fair and impartial investigation.
However, the judicial magistrate does not have the power under the BNSS or the CrPC to change the investigating agency. In the case of Central Bureau of Investigation vs. State of Rajasthan and Another [2001 (3) SCC 333], the Supreme Court held that magisterial powers cannot be extended to changing the investigative agency or directing the officer in charge of a police station to conduct the investigation.
To seek further intervention, you can approach the High Court under Article 226 of the Constitution for directions to ensure a fair investigation. However, the Supreme Court in Divine Retreat Centre vs. State of Kerala and Others (2008) 3 SCC 542 clarified that the High Court cannot change the investigating officer mid-investigation or appoint one of its own choice.
The Court emphasised that neither the accused nor the complainant is entitled to choose their own investigative agency. Still, if the High Court finds that the investigation is being conducted with malafide intent, it can issue appropriate directions to rectify the situation.
If you believe that the investigating officer is trying to falsely implicate you, such claims must be supported by solid evidence. Courts generally do not interfere in ongoing investigations without sufficient proof, as affirmed by the Privy Council in Emperor vs. Khawaja Nazir Ahmad AIR 1945 PC 45, where it was held that the power of investigation lies exclusively with the police and should not be interfered with by the courts.
You still have the option to seek further investigation if the current one is found defective, as stated in Om Prakash Narang and Another vs. State AIR 1979 SC 1791. It is advisable to wait for the investigation to conclude, and if the police report is defective or not supported by legal evidence, you can then request further investigation instead of engaging in premature litigation to transfer case to another investigating agency.
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by Shivendra Pratap Singh | Aug 29, 2024 | Property Dispute Cases
Question: Dear Sir, My neighbour uses my property for construction of his house. I recently built my house with a 3-foot gap on each side, as I utilized the full length of my plot. My neighbor, however, is constructing his house from end to end on his plot, which is 2000 sqft. This construction leaves my gap as the sole source of light and air for my property, and he has also installed windows that face my plot. My neighbor is now requesting access to my property to perform plastering work on his house. I would prefer not to have his workers enter my property for this purpose. Can I deny him access? It seems that the decision not to leave a gap on his plot is his own responsibility. Additionally, I would like to know if I can extend my construction to cover the entire length of my plot in the future, similar to his approach.
Asked from: Uttar Pradesh
Your neighbor does not have the right to access your property if they have not left a gap between the properties. In this case, you can prevent your neighbor from entering your property. To do so, you should file a civil suit seeking a perpetual injunction to legally prohibit them from accessing your property.
A perpetual injunction is a form of relief granted in civil cases where the court orders a party to stop a particular action or to refrain from doing something permanently. It is usually granted when the plaintiff has demonstrated that they have a strong legal right and that this right is being infringed upon by the defendant. It is governed by the Specific Relief Act, 1963.
According to this Act, a perpetual injunction can be issued under Sections 37 and 38. Section 37 deals with the types of injunctions, while Section 38 provides the conditions under which a perpetual injunction can be granted.
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Collector demanding fees for recovery citation
by Shivendra Pratap Singh | Jul 6, 2024 | Property Dispute Cases
Collector has issued notice and demanding fees for recovery citation. I borrowed money from XX and failed to repay within the prescribed time. That loan has been mutually settled by us. I paid the entire outstanding and the bank has issued no objection certificate. Now the collector is mounting pressure on me to pay thirteen lakh as fees for the recovery citation. No conversation with the collector and other officer bearer. Never went to the office and receive any document from the collector’s office. I am afraid that the collector can attach my property. Please help.
Asked from: Uttar Pradesh
Based on the facts of your case, it appears that the loan account was closed following an amicable settlement between the borrower and the creditor. When the bank issued the recovery certificate, it might have requested the collector to recover the dues in the form of land revenue, which led to the issuance of the recovery citation by the collector.
Since the matter has been amicably settled, the loan account has been closed, and the bank has issued a no objection certificate, it seems that the collector has not taken any steps to recover the loan. Given that no action has been taken by the collector or his office, the demand for fees for the recovery citation is illegal.
In the case of Maharajwa and others vs. State of Uttar Pradesh (2013), the Allahabad High Court held that if the authority has not been able to recover the amount of arrears through the coercive process undertaken by them, there is no justification for releasing the cost of recovery from the defaulter.
In the petition, you should seek a direction from the court to stop the proceedings related to the recovery citation and to preclude the collector from demanding fees for the recovery citation. You should file a writ petition in the high court for the issuance of a mandamus on these grounds:
- Matter has been settled between the borrower (petitioner) and creditor
- That settlement was amicable and without interference of Collector
- Collector did nothing in order to recover the loan from the petitioner
- In absence of any step taken by Collector, demanding fees for recovery citation is illegal
The court shall issue the writ of mandamus, thereby commanding the collector to drop the proceedings and not to recover any amount from you.
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My neighbour uses my property for construction of his house
