Understand Domestic Violence Act Better-Read This

The Domestic violence act is a very powerful act and often misused, many orders like maintenance, residence, custody,protection, compensation orders can be passed by the magistrate under the act and it is a quasi criminal procedures as adopted under the act, though act is for protection of women from domestic violence, here are the some of the scenarios where the act may or may not be applicable-:

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Cheque as a security and Offence under NI 138

Security cheques are the cheques only like any other cheques and they create  same liability to discharge as if they are the ordinary cheques and attract the provisions of NI 138 when they are dishonored. What is important is to show under which circumstances the cheque was issued, and in order an offence under section 138 of NI act is to be proved the said cheque must be issued in discharge of legally enforceable debt, merely calling a cheque a security cheque will not help the accused. He has to show the probable circumstances, such that the cheque was not issued in discharge of a legally enforceable debt or other liability.

Also Read: When security cheques does not lead to offence under Section NI 138

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Inherent Powers of the High Court

The concept of inherent powers under section 482 as declared in Cr.P.C in the context of the high court finds its essence in the fact that the courts are created for the purpose of doing justice in the case. The courts per se have all powers to take any and every proceeding in order to come to a just decision in the case. The Cr.P.C declares various powers expressly but it is contingent of the fact that it may be not exhaustive about all circumstances.

Moreover circumstances may be dynamic and correspondingly dynamism may be required in the Cr.P.C. Despite making express declarations in the Cr.P.C of the various proceedings the inherent powers of the High Courts have been saved.  Section 482 Cr.P.C does not create or confer the inherent powers rather it merely acknowledges or declares the inherent powers of the High Court. The word used is nothing and not notwithstanding, had it been the word notwithstanding then the inherent powers of the High Court would have had an overriding effect or capacity over the express provisions of the Cr.P.C, which would have been in consistent with the very spirit of the Cr.P.C and the idea as well as concept of inherent powers. Therefore, the inherent powers are already with the high court and they are not something which have been created for any special purpose.

 

The purpose of inherent powers is primarily to do complete justice in the given case. There may be a situation of (Non-Liquet) where the Cr.P.C is silent upon a particular issue, inherent powers of the High Court will come into picture and take care of the particular situation to do complete justice. Perhaps the High Court have to be very careful in exercising this power, because this power is only to be exercised as an exception and no as a rule of law and to be exercised sparingly i.e. with due care and caution to do the real and substantial justice.

 

Section 482 Cr.P.C provides for the instances where in the inherent powers of the High Court can be exercised. The following are the instances:-

 

a. Orders Necessary to give effect to any other order i.e. if there was an existing order the High Court can issues further orders to make those orders more effective if there is no express provision given in the law for enforcement of that particular first order in time.

 

b. To prevent the abuse of the process of any court i.e. quashing of the FIR can be done by the High Court despite no explicit provision were provided in the code for quashing of the FIR if the high court is satisfied that quashing is necessary to prevent the abuse of the process of the court.

 

c. Otherwise to secure the ends of the justice depending upon the facts and circumstances of the particular case.

 

Therefore, the inherent powers are not the one which are explicitly provided to the High Court by the legislature, though they were already subsisting with the High Court since the inception to meet the ends of justice.

 

Kapil Chandna Advocate

(Supreme Court of India)

social media-society losing vision

Social change is soul of society transformation there were times of Benjamin Franklin, when the states man leader had a vision to see masses progress in the progressive society called America, from follower of the crown to rebel against the crown ,what did not changed was the vision of the progress of the people by solving their problems. Benjamin Franklin was not after money or he doesn’t had to worry about paying monthly bills, EMI’s or getting new gadgets he was not a distracted soul like we are in this 21st century , the reason why he is still alive on the 100$ note is this that he only thought of contribution towards the society and nothing more. he had vision to have prosperous society and society in turn rewarded him and now more than 200 years people still know that person or at least his name. Another personality is Abraham Lincoln who has only vision to remove slavery of black people quite ambitious vision as he had to change the constitution of America to do that. The contribution of both the above two leaders changed the history of a country and still people talk about them and at least know them by their name.

Now in 2016 where are these kind of people to which we call leaders ,who have  certain vision to change the nation. Today’s youth is doomed by social media, which is more of a distracted or I rather call it destructive tool than a tool which changes society. People are running like a crazy dog behind money, not thinking about contribution to the societies and this is the reason why people are unhappy.Now the only vision people have is to make more and more money and guess what, more they run after money more they are getting disappointed. because the work they are doing will not going to give them satisfaction as it is not contributing towards the society or the social change.Great leaders as mentioned above never ran after money, rather they only thought of making contribution to society.They also did not had wealthy father or even a formal education, the excuses we make today, that you need a wealthy father to think like great leaders, remember a person who contribute to the society is taken care by the society. people in today’s world have become consumer than producers. people have stopped reading books and started reading statuses and watching viral videos, which is distraction. people are sponsoring their own doom by getting addicted toward this and have halted their own progress. Yes their income are increasing because they thought of increasing their income, but yet they are unsatisfied as they have contributed little to the society and played a major role in disintegrating the society. An Iphone 7 will not give any happiness or sharing videos on social media would give rather committing to social change would give.

By:

Advocate Nitish Banka

Mental Cruelty-All in the mind

Divorce on grounds of cruelty has two forms one is the physical cruelty and other form is the mental cruelty, the physical cruelty is easier to prove as direct evidence is easily available, medical records, witnesses etc. But what about mental cruelty? how one can measure or see emotions like disappointment,fear, frustrations etc. which is caused by other spouse.How a marriage becomes mentally suffocating and its difficult to see the other spouse. Physically to the outside world the spouse seems to be proper but harsh reality in today’s normal world.

Indian courts also don’t have straight jacket formula to come up with the solution that to assess what is mental cruelty and what is not, mental cruelty highly depends upon cases to case and circumstances of each martial relationship.

Dastane v. S. Dastane reported in (1975) 2 SCC 326 at page 337, para 30 observed as under :-

“The enquiry therefore has to be whether the conduct charges as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent.”

In the case of Sirajmohmedkhan Janmohamadkhan v. Haizunnisa Yasinkhan & Anr. reported in (1981) 4 SCC 250, this Court stated that the concept of legal cruelty changes according to the changes and advancement of social concept and standards of living. With the advancement of our social conceptions, this feature has obtained legislative recognition, that a second marriage is a sufficient ground for separate residence and maintenance. Moreover, to establish legal cruelty, it is not necessary that physical violence should be used. Continuous ill-treatment, cessation of marital intercourse, studied neglect, indifference on the part of the husband, and an assertion on the part of the husband that the wife is unchaste are all factors which lead to mental or legal cruelty.

In the case of Shobha Rani v. Madhukar Reddi reported in (1988) 1 SCC 105, this Court had an occasion to examine the concept of cruelty. The word ‘cruelty’ has not been defined in the Hindu Marriage Act. It has been used in Section 13(1)(i)(a) of the Act in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment.

The supreme court in samar Ghosh V. Jaya Ghosh has held that some of the guidelines to find out whether case is of mental cruelty or not. Before going to court your lawyer must go through these guidelines to assess whether the case is of mental cruelty or not.

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Divorce by Desertion-What to prove?

Desertion is also ground for divorce in India, but the most difficult part is how to prove desertion in court of law. A layman may think desertion as his/her spouse is living separately for the period of 2 years that’s it. But actually what courts in India require are the 4 things which areto be established by the spouse who is seeking divorce on this ground.

1.. Animus deserendi-This means the intention to desert, if husband or wife decides to leave the martial co habitation as they does not want to continue with martial obligations or may be called husband/wife under the eyes of the society this means they have developed animus deserendi, once this intention is formed this fulfills one criteria for proving desertion. Now this intention can be from both sides or may be a constructive animus deserendi, In constructive animus deserendi when one of the spouse asks the other spouse to leave the house or leave him/her that is constructive animus deserendi other the other form is that the a spouse can leave the other spouse with his/her own will that is willful desertion. in both the situation the affected spouse i.e the spouse which was made to leave in the case of constructive animus deserendi or the spouse which was left alone can pursue the proceeding for divorce if other requirements are satisfied.

2. Separation- Now the  Animus deserendi is followed by actual separation, now this separation can be physical or mental one, normally itrs the physical one here the actual action takes place merely forming an intention or telling a spouse that I will leave you is not suffice if it is not followed by some action. Merely an action without the intention is also not suffice both intention to leave and followed by action is mandatory in proving desertion.Sometime there is first physical separation and then followed by intention and sometimes its vice versa, both should takes place for a continuous period of 2 years.

3. No reasonable just cause to leave- There should not be any reasonable cause available to the spouse who is leaving the matrimonial ties, generally cruelty is alleged by defending spouse to defeat the proceedings of desertion in such cases the burden is on the defending spouse to prove cruelty by examining witnesses and medical examinations etc. But if defending spouse fails to prove any of the just causes then this ingredient stand proved.

4. without the consent- if the deserting spouse does not consents such desertion this final ingredient also stands proved, but how to prove this ingredient? now let us suppose a spouse leaves then there must be continuous efforts from the other side to b ring back the spouse, it should not be the case where the other spouse sits mutely while the other spouse has deserted. efforts should be made to render reconciliation. here contact with parents, mother father or other relatives are essential. reconciliation at its own level at first and then involvement of relative is essential, this would satisfy the court that deserted spouse never consented for such a desertion.

Proving all the aforementioned ingredients are essential to prove desertion i n court, if any one element is missing divorce cannot be granted. Gene really cases fall short in 3rd and 4th ingredient. merely living separately even willfully does not guarantee divorce to deserting partner.

Nitish Banka

( Advocate Supreme court)

nitish@lexspeak.in