December 3, 2014
Section 25 in The Hindu Marriage Act, 1955 talks about permanent alimony and maintenance wherein it says that any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by the wife order that the respondent shall pay to the applicant for her or his maintenance.
The quantum of maintenance depends and defers according to the various factors that have been described in the Section 25 which enables the court to ask the party to support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property, if any.
However, the court should also take the income and other property of the applicant, the conduct of the parties and other circumstances of the case, into consideration. At the same time it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.
Generally, the following points are taken into consideration by the courts in India before determining the maintenance:
- Status of the parties and reasonable wants of the claimant as well as her independent income and property.
- The number of persons, the non-applicant has to maintain the way she has been maintaining so far. This is a major point which determines the quantum of maintenance.
- Provisions for food, clothing, shelter, education, medical attendance and treatment, etc. of the wife
- Payment capacity and liabilities of the husband;
- When no concrete evidence or estimates of the earning of the husband, the court may get a lump sum amount for wife;
- The non-applicant to defray the cost of litigation and any amount awarded U/s. 125 Cr.PC. is adjustable against the amount awarded under Section 24 of the Act.
Thus, generally, the total amount of maintenance comes around 1/2 to 3/4th income of the husband.
However, the Section 25 of the Hindu Marriage Act also says that if the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.
December 3, 2014
A codicil is a document that amends, rather than replaces, a previously executed will. Thus, it is an instrument which is made in relation to a will that explains alterations and additions to its disposition. This document is considered important as it is deemed to form part of the will. For instance, in situations a will has been made, the testator may still want to make some changes in the already drafted will.
However, for that he needs to do it through a codicil wherein he may even cancel the entire earlier will and make a fresh will. Also, he may incorporate the desired changes, or, he may alter only the relevant parts of the will suitably as well.
Thus, the scope of codicil is immense; for instance, it is very much a part of will; however, it is valid only if it is executed and attested in the same manner as a Will. From the various judgments from the Supreme Court it’s clear that Codicil is a supplementary document to the will and, cannot stand independently.
Also, any amendments made by a codicil may add or revoke small provisions that may include inter alia changing executors, completely change the majority, the gifts under the will.
How is Codicil executed?
Like will, each codicil also goes through the scrutiny regarding its execution. For instance, it must conform to the same legal requirements as the original will e.g. the codicil must have the signatures of the testator and, typically, two or three disinterested witnesses. Also, a codicil should be executed and attested like a Will as in all sense it is similar to a Will and is governed by the same rules as a Will.
Thus, though an Indian will is a static document, it can be changed through codicil over time as the circumstances in your life and your family change. Codicil basically states what items of your will you are changing. Interestingly, codicil should be kept together with Will. In situation you are making substantial changes to your will, codicil could be bad idea as it’s better to go for a new Will.
Also, as you can revoke your codicil there is no issue that you have made a codicil that is not suiting to the current situation and requirement. You just need to follow the process that you follow when writing down your Will. If you revoke your codicil, like will, it is assumed that you never had drafted a codicil at all.
December 3, 2014
When the sensational case of Vinod Kaushik vs Madhvika Joshi came up, the issue of alleged hacking of e-mail of husband and father-in-law by daughter-in-law came to limelight. The father-son duo alleged that their daughter-in-law did so to support her dowry case she had earlier filed separately with the Pune police, when the couple was staying in Pune.
Hacking the personal email of the husband or wife by the other party can also be a ground for divorce. It’s a new dimension which is being added to matrimonial disputes and divorce law. Moreover, as evidence is quite concrete and visible when such offense is done, the courts don’t face problem of believing or not believing in the evidence presented.
Divorce for breach of privacy when email is hacked
The Information Technology Act, 2000 highlights about the evidence that can be used to prove matrimonial dispute. The data can be stored in a computer, laptop, mobile phone, tablet or any other computer resource. If the collected data shows an alleged adultery by a wife, the husband would present the proof of the same from the emails, whatsapps and other social media interaction she has exchanged with her boyfriend/paramour.
However, it’s not authorized to have illegal access to the email or personal data of the husband or wife to gather the evidence. For instance, if the husband hacks his wife’s email accounts or unauthorized accesses her SMSs he is liable under the Information Technology Act to compensate his wife for the alleged unauthorized access and is liable to be punished for hacking under the Information Technology Act, 2000.
Unauthorized access of email to gather evidence
The Information Technology Act, 2000 says that the act of viewing data in another person’s computer, computer resource or mobile phone without such person’s consent is criminal offense. The law also makes it criminal to touch another person’s computer or mobile phone without their permission and holds it liable to pay compensation for the injury caused.
The ruling in the case of Vinod Kaushik v. Madhvika Joshi is important as here it was held that it’s an extension of this concept of the fundamental right to life under Article 21 of the Constitution. The concept of right to privacy was included in the relationship of marriage as well which operates within a matrimonial houses.
The party that gets the evidence accessing the data from the other party’s computer, phone and other similar devices does not come to the court with clean hands. This can negatively affect the remedies available to him or her.
December 3, 2014
Except for the time when a cheque bounces due to lack of funds or due to loss in a lot of cases, it is used by the drawer to escape his debt or liability. In such a situation it is an instrument of deception and should have been made punishable offense; however, even the 1988 amendment in Section 138 of Negotiable Instruments Act does not talk about it. In lack of any provision for this, it has to be seen what are the cases and judgments that deliver some points on how to deal with stopped payments.
A landmark case regarding the stopped cheque came to the Punjab and Haryana High Court in the case of Abdul Samod v. Satya Narayan Mahavir wherein the court analyzed section 138 of the Act. In the case the honorable Mr. Justice A.P. Chowdhury stated that there are 5 ingredients, which must be fulfilled.
According to him,
- Firstly, the cheque is drawn on a bank for the discharge of a legally enforceable debt or other liability;
- Secondly, the cheque has returned by the bank unpaid;
- Thirdly, the cheque is returned unpaid because the amount available in that account is insufficient for making the payment of the cheque;
- Fourthly, the payee gives a notice to the drawer claiming the amount within 15 days of the receipt of the information by the Bank and;
- Finally, the drawer fails to make payment within 15 days of the receipt of notice.
The Punjab and Haryana High Court also gave a landmark judgment in the case of M. M. Malik v. Prem Kumar Goyal wherein it elaborated and analyzed the section 198 of the Negotiable Instrument Act. The honorable court held that the cause of action will be complete when the drawer of the cheque fails to make payment within 15 days of the receipt of the notice contemplated by proviso (b) and that the offence shall be deemed to have been committed only from the date when the notice period expires.
After analyzing the sections 138 and 142, which were introduced by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 (66 of 1988), the court had construed the endorsement “refer to drawer” as the bankers inability to honor the cheque for want of funds in the account of the drawer. Moving further the honorable court observed that as far as the jurisdiction was concerned, the principle that the ‘debtor has to find the creditor” would apply and that the court within whose jurisdiction the creditor is located will have jurisdiction to entertain the complaint.
Stop payment of cheque could be punishable under Section 138 of the Negotiable Instruments Act, 1881
The latest decision from the Bombay High Court’s Aurangabad bench says that even stop payment of cheque could be punishable under Section 138 of the Negotiable Instruments Act, 1881. Thus, it looks the silence that was seen in the section 138 has been given voice as Justice TV Nalawade observed while citing a Supreme Court verdict that if due to stopping of payment a cheque is dishonored, that case is also covered under Section 138 of the Negotiable Instruments Act, if other requirements of that Section are complied with. This according to him is a settled position of law now.
The case was from Hemant Chemicals against Riverside Industries and its four directors wherein petitioner Swapnil Jakhete of Hemant Chemicals had appealed that he was duped by the defendants. He wanted relief under the Negotiable Instruments Act (dishonor of cheque for insufficiency of funds in the accounts) and Section 420 (cheating and dishonestly inducing delivery of property) of IPC.
According to his plea Riverside Industries directors had approached him for supply of goods and issued him a cheque before it was stopped and despite his several requests from the accused directors nothing fruitful came out. However, as has been mentioned above there is no punishment for the willful stopping of the cheque, the lower court held that as payment was stopped and the cheque was not dishonored for insufficiency of funds, the provision of Section 138 of the Act is not attracted.
However, now that the Bombay High Court has turned the case on its head and held that the order made by trial court of setting aside order of issue process in respect of offence punishable under Section 138 of the Act cannot sustain in law, a lot of victims are going to have a relief. In situations you are facing similar issues wherein the drawer of the cheque has stopped the cheque willfully; you can file a case under section 138 of the Negotiable Instruments Act and seek the relief as it is very much a part of the section.
December 1, 2014
Finally the courts have started to realize that there is tremendous misuse of IPC Section 498A. First it was the Savitri Devi case in 2003, wherein the judge had held that there was growing tendency among wives to come out with inflated and exaggerated allegations roping in each and every relation of the husband. The case had redefined ‘cruelty’ as well. The judge in the case had then opined that if the husband happens to be of higher status or of vulnerable standing, he becomes an easy prey for better bargaining and blackmailing. Continuing the excellent delivery of justice, the recent judgment by Justice CK Prasad in the Arnesh Kumar case has further exposed the grave misuse of Section 498A by scheming women.
Justice CK Prasad in this case reiterated that there is phenomenal increase in matrimonial disputes in recent years and at the bottom of it is Section 498A of the IPC which was though introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives has been misused to great extent.
Police officers must not arrest the accused unnecessarily
The Arnesh Kumar case is a landmark decision as it is going to provide great respite for those who are framed by the scheming wives as in this case Justice CK Prasad held that police officers do need not arrest accused unnecessarily and magistrate do not authorize detention casually and mechanically.
Justice CK Prasad issued several directions for the government agencies and asked all the State Governments to instruct its police officers not to automatically arrest when a case under Section 498A of the IPC is registered. However, he allowed arrest if some set parameters laid down are followed and arrest is necessary under Section 41, Cr.PC.
The justice also instructed that all police officers must be provided with a check list containing specified sub- clauses under Section 41(1)(b)(ii) which they will have to follow when they feel the arrest is necessary and that check list must be produced before the Magistrate for further detention.
The judgment further reads that the Magistrate while authorizing detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorize detention.
This judgment has made Section 498A, a cognizable and non-bailable offence, bailable as cops can arrest the accused only when they have followed the guidelines/checklist.
December 1, 2014
Power to issue order in urgent cases of nuisance or apprehended danger
- In cases where, in the opinion of a District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by section 134, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safely, or a disturbance of the public tranquility, or a riot, or an affray.
- An order under this section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due lime of a notice upon the person against whom the order is directed, be passed Ex-parte.
- An order under this section may be directed to a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area.
- No order under this section shall remain in force for more than two months from the making thereof;
Provided that, if the State Government considers it necessary so to do for preventing danger to human life, health or safety or for preventing a riot or any affray, it may, by notification, direct that an order made by a Magistrate under this section shall remain in force for such further period not exceeding six months from the date on which the order made by the Magistrate would have, but for such order, expired, as it may specify in the said notification.
- Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section, by himself or any Magistrate subordinate to him or by his predecessor-in-office.
- The State Government may, either on its own motion or on the application of any person aggrieved, rescind or alter any order made by it under the proviso to Sub-Section (4).
- Where an application under Sub-Section (5), or Sub-Section (6) is received, the Magistrate, or the State Government, as the case may be, shall afford to the applicant an early opportunity of appearing before him or it, either in person or by pleader and showing cause against the order, and if the Magistrate or the State Government, as the case may be, rejects the application wholly or in part, he or it shall record in writing the reasons for so doing.
December 1, 2014
Power to examine the accused
- In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the court-
- may at any stage, without previously warning the accused put such questions to him as the Court considers necessary;
- shall after the witnesses for the prosecution have been examined and before he is called on for his defence question him generally on the case:Provided that in a summons-case where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).
- No oath shall be administered to the accused when he is examined under Sub-Section (1).
- The accused shall not render himself liable to punishment by refusing to answer such question, or by giving false answers to them.
- The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he had committed.
- The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section.
December 1, 2014
Summons to produce document or other thing
- Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.
- Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.
- Nothing in this section shall be deemed-
- to affect, sections 123 and 124 of the Indian Evidence Act, 1872(1 of 1872), or the Bankers, Books Evidence Act, 1891 (13 of 1891), or
- to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority.
December 1, 2014
Examination of complainant
A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses,
- if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or
- if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192: Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.
December 1, 2014
Information in cognizable cases
- 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, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. Provided that if the information is given by the woman against whom an offence under section 326A, section 326B, section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376B, section 376C, 376D, section 376E or section 509 of the Indian Penal Code is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer; Provided further that—
- in the event that the person against whom an offence under section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person’s choice, in the presence of an interpreter or a special educator, as the case may be;
- the recording of such information shall be video graphed;
- the police officer shall get the statement of the person recorded by a Judicial Magistrate under clause (a) of sub-section (5A) of section 164 as soon as possible.
- A copy of the information as recorded under Sub-Section (1) shall be given forthwith, free of cost, to the informant.
- Any person, aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in Sub-Section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.
