Rape and Promise to Marry

This question very often comes to the mind of a girl who had entered into physical relation with her boyfriend on the false promise of being married and when the marriage actually couldn’t happen for any reasons whatsoever, the girl start to feel being physically abused or raped sometimes.  Since large number of cases are being filed everyday it becomes really difficult for the police to collect direct evidence as in such cases the promises if any given or consent taken on the basis of those false promises are between the girl and a boy and the police as well as the courts have to rely on the circumstantial evidences in order to come to a finding as to whether the consent was taken on the false promise of marriage in future or not.

 

rape_jun1.jpg

Now let us understand the concept of consent in terms of free consent as defined in the Indian Penal Code, 1860. Section 90 of the Indian Penal Code defines the term for the propose of this code and it says that Consent known to be given under fear or misconception.—A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person.—if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child.—unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.

Therefore if the consent given by the girl under the misconception of fact the consent cannot be said to be free and so-called consent under a false promise of marriage is no consent. Accordingly, the consent obtained in establishing a physical relationship like husband and wife under false promise to marry is no consent as per law, if the intention of the boy was never to marry the girl since the inception at the time when the consent was taken and was merely taken for the purpose of physical exploitation of the girl. But if however the physical relation was entered into with the free consent of the girl then the same cannot be regarded as rape or on the basis of the false pretext of getting married.

Hon’ble Courts time and again have defined the term consent and held whether the consent so taken was free or not. In Deepak Gulati vs State Of Haryana Hon’ble Supreme Court of India held that sex based on the false promise of marriage can be rape in certain situations. The apex court observed that there is a clear distinction between rape and consensual sex and the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives. If the accused had made a false promise to only to satisfy his lust, it will fall within the ambit of cheating or deception and there is a distinction between the mere breach of a promise, and not fulfilling a false promise. The court further said that it must be examined whether promise was made at an early stage and whether the consent involved was given after wholly, understanding the nature and consequences of sexual indulgence. However, the court clarified that in some situations the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, the situation does not necessarily lead to rape and the court must consider other evidence as well for support.

Similarly, where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so, the case should be treated differently and cannot be considered rape if the other available evidence do not prove otherwise.

The fundamental principle behind the consent

Last year, the Delhi High Court held that a sexual relationship with a woman after making her a false promise of marriage amounts to rape. The conclusion was based on the logic that the so-called consent under a false promise of marriage is no consent. It further observed that a man receiving consent to sexual relations under false pretext does not amount to legal or valid consent and saving him from being accused and punished for rape. Widening the ambit of the law, the Delhi Court held that even if the woman is assumed to be a willing participant in their physical union, the fact that the man had no intention of marrying her would make it an instance where consent was given under a misconception, nullifying the efficacy of approval.

Therefore seeing the current position of law, the courts have to be very cautious and careful in coming to the conclusion as to whether the intention of the boy was to marry or not since the inception or merely to satisfy his lust.  The court should take into factors such as the whether the boy introduced the girl to his family, was introducing the girl as her would-be wife to his friends, and brought her mangalsutra or all the positive steps taken by a boy to show his clear and honest intention, but if due to the circumstances which were beyond the control of the boy he could not marry then that does not amount rape.

By-: Adv. Nitish Banka

9891549997

All About Maintenance and Interim Maintainence

Here is the summary or you may say links to all my posts which will enhance your Knowledge on Maintenance and Interim maintenance. Wondering how courts assess the maintenance and Interim maintenance amount here is post and 125 CrPc.

There are some landmark and important judgments on maintenance which would help you to fight and here is the post which will help to reduce maintenance amount. so if you are thinking of going for revision against 125 order, here is the post which shows the scope of revision in cases of 125 Crpc. Alteration of maintenance amount ordered by court is also possible.

So is Maintenance awarded to working wife and maintenance to husband is also possible if husband is working.

Here is a strategy to win the interim maintenance/maintenance case. Strategy  bargain the mainteinance amount

Thanks & Regards,

Advocate Nitish Banka

9891549997

 

Startup-India, Getting letter of recommendation

Start-Up India initiative as initiated by PM modi and in my earlier post I had discussed about the scheme benefits and funding part-1 is here and part 2 here.

So as per the notification by the government first step you need to take is recommendation from incubators, here is the link which shows various incubators in India who are authorized to give you the recommendation needed to register yourself for the startup.

Now I visited one of the incubators here are the documents they need.

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How to win interim maintenance case

5 Steps To Win The Interim Maintenance

InterimMainInterim maintenance can fight with different ways it is mostly depend upon the type of party, type of lawyer and other factor and it change case to case basis, but as per my observation few are the useful point to fight the Interim Maintenance.

5 steps to win the interim maintenance

1. Capable of working ( Add the info past and present job details )
2. Well Qualified ( add the info of her education )
3. Prima Face Case
4. Approach the Court with Unclean Hand
5. Deserted to Husband without sufficient cause

Following are the Ground for the Argument
1. Before passing interim Maintenance necessary expenses which must be deducted like ( PF, Income tax, Insurance, Home EMI, any kind of Loan )
2. Need to explain Father and mother is also your responsibility
3. Prima Face case : Explain to court from so and so date we are not living as husband and wife and not sharing the same house
4. Judgment should be passed from date of order not the date of filling the application
5. Show some of incident that Wife lies to court.
6. How she is able to survive in society from so and so date without any maintenance
7. Burden of Proof lies with applicant
8. Child is joint responsibility

What are the proof need to attached with the Interim WS
1. Her Education background and certificate
2. Her Job details like ( Bank passbook, IT return, Salary slip )
3. Her other investment detail ( Mutual fund, Insurance, property etc )
4. Few Citation which is matching your case ( Citation should be from same state for more impact )
5. Expanse report from your side
6. Your Medical certificate and your father and mother medical certificate along with expanse

Following are the Precaution while fighting for Interim Maintenance
1. Expose of Evidence : Do not expose your important evidence to other party at this stage
2. Never do Oral Argument : All the arguments should be Written argument , supported with your oral argument
3. Do Not Delay the Case: Do not delay the interim maintenance case for long time.
4. Proper Ground for Fight: Do not fight Interim on wrong ground, it is mainly depended upon both spouse salary and leaving standard in society.
5. File the production of document application
6. If she filed your wrong salary and with huge amount, it is good idea to shared your salary slip with court explaining the true information.
7. Do the proper argument for Cross of opposite party before passing the order
8. Never disclose your  strategy to opposite party.

Important point to understand.
1. Before passing any order, Court has to make sure Domestic violence has happen to Applicant
2. Before passing any order, court should consider any Incident report or DIR report
3. Never filed the RCR, most of the time it will backfire. RCR is not useful

Interim Maintenance to Working wife

A Delhi court has said that even a working wife is entitled to interim maintenance from her estranged husband irrespective of differences in their earnings.

The court made the observation while awarding Rs.35,000 interim maintenance to a woman who blamed her husband of forcing her to perform unnatural sex and depriving her of proper diet for having brought inferior quality gifts for his family.

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Transfer Petition in Supreme Court-How to defend?

When wife files the transfer petition in Supreme Court usually husband is defenseless, although husband receives the summons from the Supreme Court if the transfer is from one state to another, here are some of the judgements which can help

 

In Gayatri Mohapatra v. Ashit Kumar Panda : (2003)11SCC731 , the Supreme Court having found that the wife being a Director in a Company run by her mother traveled from place to place and could not be permitted to state that she was incapable of travel as a ground to seek transfer of the husband’s caseIn Teena Chhabra v. Manish Chhabra (2004) 13 SCC 411, the Supreme Court accepted the husband’s offer to bear the expenses for the travel, boarding and lodging of the wife and dismissed her transfer petition on the ground that she had no source of income to travel.

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Funding through Startup India-Part-2

As, you became a recognized startup by following the process mentioned in the part one of my earlier post, now its time to cash in the real money that is the funding.

In order to provide funding support to Startups, Government will set up a fund with an initial corpus of INR 2,500 crore and a total corpus of INR 10,000 crore over a period 4 years (i.e. INR 2,500 crore per year) . The Fund will be in the nature of Fund of Funds, which means that it will not invest directly into Startups, but shall participate in the capital of SEBI registered Venture Funds. Key features of the Fund of Funds are highlighted below:

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Startup Funding through Startup India-Part-1

Recently Pm Modi had announced the scheme related to Startups and extended his support towards innovation, its a very good step considering in mind a lot of startups are emerging and they need some sort of support to survive. the StartUp India initiative includes benefits like tax exemption,funding,relaxation and support in registration of intellectual property.

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MAINTENANCE TO HUSBAND BY WIFE

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CM(M) 169/2009

 

Judgment Delivered on: 31.03.2011

RANI SETHI ….. Petitioner             Through : Mr. G.K. Sharma, Adv.

versus

SUNIL SETHI ….. Respondent      Through : Mr. B.P. Singh, Adv.

CORAM:

HON’BLE MR. JUSTICE G.S.SISTANI

  1. Whether the Reporters of local papers may be allowed to seethe judgment? Yes
  2. To be referred to Reporter or not? Yes
  3. Whether the judgment should be reported in the Digest? Yes

 

G.S.SISTANI, J. (ORAL)

 

  1. Present petition is directed against the order dated 24.2.2009 passed by learned Additional District Judge, Delhi, on an application filed by respondent (husband) under Section 24 of Hindu Marriage Act, seeking maintenance from the petitioner (wife). By the abovesaid order, trial court has directed the petitioner (wife) to pay maintenance to the respondent (husband) @ `20,000/-, per month, and `10,000/- as litigation expenses and also to provide Zen Car for the use of the respondent (husband).

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WHAT TO DO WHEN AN EMPLOYEE IS TRYING TO STEAL YOUR CLIENT?

In today’s competitive environment, also the startup environment, everybody wants to steal the client of other organizations because everybody needs business and those clients, So if your business is getting lots of clients then beware there can be some employees in your organization which are indulging stealing your client so that they can start-up. Well technologically having a robust firewall IT framework can prevent date theft, but what to do with an employee who has been caught red handed stealing your client data, what you can do to that employee, most of us will fire that employee immediately, but do not do that as legally errant employee may sue your organization for illegal removing so here are somethings you can do-:

  1. Professional misconduct clause in your service agreement- Just be sure to add professional misconduct clause in your agreement, which states you have a power to immediately fire an employee without any notice in case he is found of professional misconduct and stealing vital client information qualifies in this category.
  2. Let employee sign a severance agreement-if an employee is found stealing information red handed tell him to sign a severance agreement in which he will be agreeing to make full and final settlement of dues with your organization and the agreement bars him to approach and labor court.
  3. Non compete and non disclosure agreement- Although it is part of service agreement but if it is not part of service agreement a non compete agreement should be signed, so that the employee may not be able to disclose or compete your information to other people.
  4. Criminal breach of trust complaint-Under the Indian penal code a criminal breach of trust complaint can be lodged against an employee, i.e under IPC 406, if he has stolen the information and disclosed it to your competitor.This is also the provisions which which will help you to prevent your trade secrets.
  5. Protection under the copyright act-if the information stolen is protected under the copyright act, such as software and databases are covered under section 63 of the copyright act, and civil proceedings are also maintainable.

These are the some ways to mitigate the risk in relation to stolen data.

Advocate Nitish Banka

E-mail-Nitish@lexspeak.in