by Shivendra Pratap Singh | Apr 20, 2025 | Criminal Matter
Complaint dismissed for mentioning wrong section of law in the memo of complaint. The magistrate has dismissed the complaint by stating that the section mentioned in the complaint is not correct. This mistake could be rectified if an opportunity provided to us by the court. But the court without providing any opportunity to rectify the mistake he has dismissed the complaint. My advocate file a revision against the order of the magistrate but that is also dismissed by the sessions court. Can I file second complaint on the same cause of action or there is any remedy to rectify the mistake.
Asked from: Rajasthan
A complaint cannot be dismissed merely on the grounds of mentioning incorrect sections of law. Section 2(d) of the Code of Criminal Procedure defines a complaint as any allegation made orally or in writing to a Magistrate, with the intention of prompting action under this Code, stating that some person—whether known or unknown—has committed an offence.
The essential ingredients of a complaint are:
- There must be an allegation against a person, known or unknown.
- The allegation must be made to a Magistrate with a view to initiating action under the provisions of the CrPC (Sections 200 to 204).
- Allegations or contents of the complaint should disclose the commission of an offence—whether cognizable or non-cognizable
When the above said conditions are met the court must admit the complaint and proceed against the accused. Neither Section 2(d) nor Section 200 of the CrPC requires the complainant to specify the name of the offence or the sections of law under which the act of the accused constitutes an offence. A second complaint on the same facts is permissible, but given the present circumstances, it may not be necessary. It would be more appropriate to seek the quashing of the orders passed by the Magistrate and the Revisional Court.
The dismissal of the complaint is erroneous, and you have a remedy to challenge it. You should file a petition in the High Court under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) seeking quashing of both the Magistrate's and the Revisional Court's orders, along with a direction to hear the matter afresh. The Magistrate would then be bound to register your case as a complaint and proceed further against the accused. The complaint has been wrongly dismissed solely for mentioning an incorrect section.
by Shivendra Pratap Singh | Apr 18, 2025 | Service Matters
Right to promotion when departmental proceedings are pending but employee is not under suspension. A departmental promotion committee (DPC) has been constituted to promote junior engineers. That DPC has considered as many as seven hundred thirty-nine candidates for promotion. Out of which ninety-eight have been either facing departmental proceedings or criminal cases in the court. They have been separated by the DPC. I am one of the candidates against whom a departmental proceeding has been pending since 2009. Many representations have served upon the authority to conclude my inquiry because I am facing difficulties due to pendency of that proceeding. But no action has been taken by the authority.
Now the seniority list has been published by the DPC and invited objections from the candidates in that respect. I have no objection against the tentative seniority list because my position in the list is proper. Some candidates have submitted their objection. The DPC will conclude entire proceedings in next six months. Due to pendency of that enquiry, it is possible that my candidature will not be considered by the DPC. Please suggest the proper action in these circumstances.
Asked from: Andhra Pradesh
If a charge sheet has been served upon you, it indicates that a departmental enquiry has been initiated. Until then, only a preliminary enquiry or fact-finding enquiry is conducted. Based on the available facts, it appears that disciplinary proceedings have been ongoing since 2009. A preliminary enquiry cannot be prolonged for such an extended period, but you should confirm this first. If it is indeed a preliminary enquiry, then you are eligible for promotion in accordance with the ruling in Union of India vs. K. V. Jankiraman (1991).
If a charge sheet has been served, you should approach the High Court seeking a direction to the disciplinary authority to conclude the enquiry within a specified time frame. During the pendency of disciplinary proceedings, your candidature will still be considered by the Departmental Promotion Committee (DPC); however, your promotion will be kept in a sealed cover. An employee has no vested right to promotion while departmental proceedings are pending. The right is limited to being considered for promotion, and if found fit, the promotion order will be kept under sealed cover.
You should file a writ petition in the High Court under Article 226 of the Constitution, requesting a time-bound disposal of the departmental enquiry. If the enquiry results in the imposition of a penalty, you should challenge the same before the High Court.
Related: Promotion is denied even after quashing punishment order
by Shivendra Pratap Singh | Apr 15, 2025 | Family Dispute
Wife is concealing her income and salary proof in maintenance case filed under section 125 crpc. She has been living apart from last three years. I came to know from my own sources that she is working in a company at the HR executive (my wife did MBA in human resources) and drawing salary around sixty thousand monthly. In the maintenance case she is claiming fifth thousand per month as interim maintenance from me. I tried to contact that company and requested to furnish her salary slip or appointment letter to produce in the court to prove her monthly income.
But the company has refused to furnish any document relating to its employee. It is against the policy of that company. In this situation I am totally helpless to produce truth before the court when the petitioner has concealed material fact. It is not expected from the petitioner wife to claim alimony and concealing her income and salary proof to the court. I also tried to get her bank statement but failed to get. In this situation it is likely possible that wife will get maintenance whereas she is a guilty party. she is doing all illegal acts to harass me.
Asked from: Uttar Pradesh
In the present scenario, a wife cannot claim maintenance while concealing her income and salary details. In Rajneesh vs. Neha (2020), the Supreme Court directed that in every maintenance case, both parties are required to submit an affidavit disclosing their income, assets, and liabilities. A maintenance case cannot proceed without this affidavit. Since it must be filed on oath, any false information provided may lead to prosecution for the offence of perjury.
If your wife has not submitted this affidavit, you should first request the court to direct her to file an affidavit disclosing her income, assets, and liabilities. If the affidavit has already been filed but she has concealed information regarding her income, you can file an application under Order XI of the Code of Civil Procedure for discovery of documents. You may request your wife to produce her bank statements, appointment letter, income tax returns, and any other relevant documents related to her income. She is legally obligated to furnish these documents under oath.
If the wife is claiming a fixed monthly allowance from the husband in the form of alimony, but her own income exceeds the amount she seeks, the court will likely dismiss her maintenance claim on the ground that she has sufficient means to support herself.
Related: Can wife claim maintenance after divorce on the ground of desertion
by Shivendra Pratap Singh | Apr 14, 2025 | Family Dispute
Can wife claim maintenance after divorce on the ground of desertion? My wife filed a case under section 125 crpc for the maintenance from me. She has refused to live with me, then I filed a suit for divorce on the ground of desertion. That suit has been decreed, and the court has dissolved our marriage. When the suit has been decided by the family court my wife filed complaint under section 125 crpc. I am a doctor employed in the government hospital. My wife is also a doctor (dentist) but she has not been practicing. She is deliberately not doing any job because she wants maintenance and easy money from me. I am planning to marry, but due to this maintenance case not able to marry again. What to do in this case?
Asked from: Bihar
Your wife possesses a professional degree and has the ability to earn. However, she has not been working in the hope of receiving maintenance. In this situation, the amount of maintenance shall be minimal because it'll not be determined solely in proportion to your financial status.
In Rajneesh vs. Neha (2020), the Supreme Court held that, when determining the quantum of maintenance, the court is obliged to consider the wife's earning capacity. The law does not expect an able-bodied and capable person to remain idle.
Can wife claim maintenance after divorce: As far as the right to maintenance after a decree of divorce is concerned, a wife is still entitled to maintenance. In Rohtash Singh v. Ramendri (2000) 3 SCC 180, the Supreme Court ruled that a divorced wife is entitled to maintenance if she does not have sufficient means to maintain herself and remains unmarried.
Although the marital relationship may have ended through a divorce granted by the Family Court under Section 13 of the Hindu Marriage Act, the respondent continues to be recognized as a "wife" under Section 125 of the Criminal Procedure Code (CrPC), by virtue of Explanation (b) to sub-section (1), which states:
"(b) ‘wife’ includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried."
Therefore, you cannot absolve yourself of the duty to maintain your wife even after the decree of divorce. Wife is entitled to maintenance even after divorce.
Related: Wife has refused to live with husband even after decree of restitution of conjugal rights
by Shivendra Pratap Singh | Apr 14, 2025 | Family Dispute
Wife has refused to live with husband even after decree of restitution of conjugal rights passed by the family court. The wife has been living separately from husband since 2012. I (husband) tried to reconciliate the dispute and in order to do so met with the in-laws at many occasions. But they are not willing to settle the dispute. Wife is very arrogant and has been living with parents. She is only child and handling the business of her father. She has also filed a case under section 125 of the code of criminal procedure for maintenance. I am a teacher in middle school. My parents are very old, and they are dependent upon me.
When I saw that wife is not willing to return her matrimonial home and resume cohabitation with husband, then I filed a civil suit in 2015 for the restitution of conjugal rights. She appeared in that civil suit but did not take active part. The suit has been decreed by the family court in 2021. Wife has the information of the decree of the court but even the decree of the court she refused to live with husband. In the present scenario I am helpless. My wife wants maintenance from me and without it, she has no heed to me. Maintenance case is also reached at the advance stage.
Asked from: Uttar Pradesh
Your wife has no valid reason to live separately. She was aware of the court’s decree, yet she remains unwilling to cohabit with you or fulfill her marital obligations. Her conduct clearly indicates that she has deserted you and is not inclined to resume the marital relationship.
You should file an application under Order 21 Rule 32 of the Code of Civil Procedure for the execution of the decree of restitution of conjugal rights. Execution of the decree is essential in the present circumstances, as it demonstrates that the husband is willing to live with his wife. This will also strengthen your defense in the maintenance case. If you fail to seek execution, the court may grant maintenance to her.
You also have the option to file for divorce on the ground of desertion. Since your wife has refused to live with you even after a decree under Section 9 of the Hindu Marriage Act, you are entitled to seek divorce on that basis.
You may choose either course of action, but do not remain idle. If you do nothing the court will presume in 125 crpc proceeding that you treat decree in RCR suit as a shield to protect from maintenance.
Related: Impotency a ground of divorce
