Whenever a false case is filed against the husband and his family members. All the family members and the husband suffer for many Years in litigating in courts which only brings harrasment to the husband and the family members.

What is the solution after getting Acquittal or discharge in false 498a case?

If the case ends up in either discharge or acquittal in false 498a. What the husband family can do against wife/complainant this comes into mind in every harassed family.

Here comes two sections of the IPC to help you, one is IPC 182 and 211 IPC.

Sec. 182 prescribes a punishment for six months and fine in case any person gives false information to a public servant, on the basis of which the public servant takes certain action which he might not have taken if he had known the true state of facts. On the other hand, u/s 211, there is an ono use of the term ‘public servant’. As per this provision, any person who institutes or causes to be instituted any criminal proceedings against a person to cause him injury, knowing that the complaint and allegations are false, is liable to face imprisonment for a period which may extend to two years. Further, if the charge alleged discloses an offence which is punishable by death, or a minimum imprisonment for seven years, is punishable with imprisonment for a maximum period of 7 years.

Procedure for initiating Criminal Action?

In the cases of 182 IPC in which the false information is given to police. Then in that case that police office can write a complaint and forward it to concerned senior officer. Who than forward a formal complaint to the court which than initiate proceedings under 182 IPC

In the cases of 211 wherein the case is already pending against the accused person in court. Than in that case the court in which trial was running A application under section 340 CrPC is filed and then court initiates further action under 211 IPC.

Conclusion

Initiating proceedings under 211 IPC and 182 IPC will put pressure on the other side and will help in fighting and solving matrimonial issues by way of informal settlement.

Some of you may be having a misconception that wife cannot file false 498a after 7 years of marriage, but the answer of this question lies in the laws itself, today this misconception will be removed.

Lets read first section 304 B

the ingredients of 304 B are attracted before 7 years of marraige, if there is demand of dowry.

498a talks about dowry demand only not dowry death, so the misconception comes from 304 B.

What about 498a, when it cannot be filed?

The answer to this question lies in section 468 and 472 CrPC. Section 468

Therefore three years is the time period to file 498a.

But I have seen cases which are filed above 3 years time period, What about those cases?

The time period of 3 years is the period start from date of offence date.

But 498a is a matrimonial offence and is continuing offence as declared by Hon’ble Supreme court.

Example of 498a filed after 3 years

if suppose in a FIR there is allegations in years 2011, 2012,2014 and 2018. The offence will get fresh lease of limitation from 2018 onwards, i.e 498a can be filed 3 years from 2018, therefore by virtue of 472 CrPC the limitation is extended

By: Advocate Nitish Banka

Higher Courts should not stay an order of maintenance unless there are very special reasons, the Supreme Court has observed.

In this case, a wife and minor child filed a petition under Section 125 of the Criminal Procedure Code before Family Court. An ex parte order was passed by the Family Court granting maintenance @ Rs.20, 000. The husband preferred application for setting aside the ex parte order which was dismissed. Later, the High court, in a criminal revision petition filed by him, stayed the order, without assigning any reasons.

In appeal filed by the wife, the bench comprising Justice Deepak Gupta and Justice Aniruddha Bose disapproved this approach of the High court and said:

We are constrained to observe that this order shows total non-application of mind on the part of the High court. This was a case where maintenance had been granted to a wife and to a minor son. The High Court without recording any reason whatsoever, has stayed the grant of maintenance both to the wife and to the minor son. This should not be done. A husband/father is duty bound to maintain his wife and child. Unless there are very special reasons, the higher Court should not normally stay such an order. In the present case no reason has been mentioned justifying the grant of the stay order.

The court then aside the order and directed the husband to pay the amount of maintenance as awarded by the Family Court. The High Court was directed to afford hearing to the parties and pass an appropriate reasoned order.

Delhi High Court: A Bench of Jyoti Singh and G.S. Sistani, JJ. dismissed an appeal filed against the order of the family court rejecting the appellant-wife’s application for grant of maintenance pendente lite under Section 24 of the Hindu Marriage Act, 1951.

The parties married to each-other in June 2012 and had been living separately since September of that year. The wife was living in Gurgaon and the husband was in Singapore. The husband sought a decree of nullity of marriage under Section 12(1)(a) and (c), pending which the wife filed the application under Section 24 claiming pendente lite maintenance of Rs 2.50 lakhs per month along with litigation expenses. The same was rejected by the family court. Aggrieved thereby, the wife filed the present appeal.

The High Court noted that the wife was well educated and earning a monthly salary of around Rs 1.25 lakhs. On the other hand, the husband was also at a senior position in a reputed company in Singapore and was earning about Rs 13 lakhs per month. Noting all the facts and discussing the law on the subject, the Court was of the view that the impugned order does not need interference. Observing that the cost of living as per the standards of the country where the husband is employed is to be considered, the Court stated, 

“We cannot agree with the contention of the appellant that merely because the respondent is earning in ‘dollars’ she is entitled to the maintenance claimed by converting his salary in dollars into Indian rupees. We agree with the respondent that his expenditure being in dollars, the salary being in dollars is a fact which cannot be overemphasized.”

Being satisfied that wife’s earnings were sufficient to maintain herself, it was stated, “The provisions of this section (Section 24) are not meant to equalize the income of the wife with that of the husband but are only to see that when divorce or other matrimonial proceedings are filed, either of the party should not suffer because of paucity of source of income and the maintenance is then granted to tie over the litigation expenses and to provide a comfortable life to the spouse. Where, however, both the spouses are earning and have a good salary, merely because there is some salary difference cannot be a reason for seeing maintenance.”

KN v. RG, 2019 SCC OnLine Del 7704, dated 12-02-2019]

As per the law husband is bound to maintain his wife even after the divorce and husband have no maintenance to his wife by deceiving court by not showing true facts and exact source of income. But rights of female are decided by law and no one can exploit rights of the female so after getting divorce from husband in section 13 of Hindu Marriage Act,1955 and under section 125 of Cr.Pc 1973 a women & children is maintainable by her husband and husband is bound to pay the maintenance amount. The amount of maintenance must be enough for the women and her children including education expenses of the child and medical also. So here you can find few remedies which help to female enhance their amount of maintenance as per the income of their husband. There are also landmark judgements also in favour of the women which decided by apex court. Apex Court also give judgement that a male cannot deny to maintain her wife due to financial crisis if the male is fit in health and able to do work.

Referred Case:-Bhuwan Mohan Singh VS. Meena, VI (2014) SLT349 =II (2014) DMC 721(SC)=III (2014) CCR 394 (SC)= (2015) 6SCC 353.

Burden Of  Proof

When a women going to file petition against her husband to enhance her maintenance amount because she know exact income of her husband. A female must be show the salary slips, website listing of her husband work and absolute details of her husband income without giving exact and relevant proof a women cannot liable for the enhancement of the maintenance. Not showing true facts is the abuse the process of court.

TRUE FACTS

The facts which are present in the court through wife against her husband are must be true in nature.

EXAMPLE

A is husband of B and the decree of the divorce is granted to A & B and the monthly maintenance is fixed Rs.5,000/- pm including medical and education expenses of C. C is the baby boy of the A & B. After trial court decision B aware about that A hiding true facts about his income for not paying appropriate amount of maintenance to B & C. B start collecting proof related to A’s income and finally her proofs are proved in the court and her maintenance enhanced from Rs.5,000/- to 20,000/- pm.

Conclusion

When a matrimonial dispute arise a male always wanted that he did not give a single penny to wife for maintenance so they do different kinds of tactics to mislead the court. But as per the law husband is bound to pay the maintenance to his wife and children but due to some hiding facts and not showing proper income husband take advantage to pay very less maintenance to his wife according to his income. But now there are remedies also available for the women she can apply for the enhancement of the maintenance amount if she is proved right in the eyes of law by showing true and exact facts of the husband income. After the decision of the trial court a women can move to the High Court to revise the previous order which is decided by the Trial Court. There are also some cases also which is decided in favour of the women and their maintenance is enhanced as per income of the husband.

CASES REFERRED

* Delhi High Court II (2019) DMC 767 (Del.) Manju Sharma vs Vipin

* Punjab and Haryana High Court II (2019) DMC 729 (P&H) Bharti Sharma vs Deepak Sharma

These days people are stuck in under construction properties offered by the builder.

You had invested in the project offered by the builder assuming the value will get appreciated or you would be getting timely possession of the property. But neither things happened.

The only option now is go to court but which court?

There are 3 courts as of now to help you out with this issue

A. Consumer Forum

B. NCLT

C. RERA

You can approach all three as per the Hon’ble Supreme Court judgement

But here is Deep Analysis

1. Consumer Forum

Here I would discuss the approach to NCDRC here either you can approach as a single consumer having a claim of 1 Cr+ now act is amended but not notified the value of claim will go to 10 Cr once the act is notified.

You can file 12(1)(C) petition irrespective of claim value. It is a complaint by a group of people.

Time period is 2 to 3 years but relief is 99% guaranteed in approaching this forum. Procedure is simple and as of now even refund +14% interest is given.

Execution of order is fast as builder appeal to Supreme Court are mostly rejected.

CASE STUDY BPTP TERRA PROJECT GURGAON

This client has filed the case in the Year 2017 and had invested an amount of 1 Cr+ So his case was eligible directly to be filed at NCDRC. The case was strongly represented by the consumer and therefore at the final stages of the case the Opposite part offered to refund the money with interest.

The final settlement was Refund of money with interest @ 10% PA and the settlement was duly recorded by the Court, so that if there is a breach the consumer can again approach court by preferring execution petition.

Case -2

CASE STUDY RAMAPRASTHA BUILDER

The case was filed for refund of hard earned money of 8 buyers and the consumer forum passed an order of refund of the money with an interest of 14% Pa. See order

The case was filed for refund of hard earned money of 8 buyers and the consumer forum passed an order of refund of the money with an interest of 14% Pa.

The builder failed to offer refund therefore we had to go for execution of the order and filed execution proceedings in NCDRC. The OP. committed to refund the amount with interest see order below..

Now he is has not complied with the order court has ordered to make his director appear personally in court and he cannot leave the country.

2. NCLT

The Approach to NCLT is like a Atom Bomb of legal procedure. Here the NCLT can declare moratorium if you succeed and builder will lose it company.

NCLT is effective only if your reach Settlement before Moratorium. Most cases are settled out of court.

But approaching NCLT is expensive but really fast.

But NCLT will be forum of future as NCDRC claim value to go up to Rs. 10 Crore.

3. RERA

As of now RERA is not that effective as it was speculated with many forums of appeal and many Authorities have no tribunal functioning the procedure is slow and execution is unpredictable.

Case Study-1

My Recent case of Emaar MGF got settled in RERA

What is the Interest Rate Ordered the Courts?

If the matter is settled before final Judgement the 8-10% is the nominal interest paid by the builder to the buyer as interest rate.

In NCDRC 12-14% is ordered by the court in case the matter is finally decided incase of delay.

In NCLT since settlement is the best option for buyer the interest rate ranges from 8-10%

In rera 10% interest rate is normally ordered.

How much time will it take to get the money back?

NCDRC-In NCDRC average time ranges between 1.5-2.5 Years. As NCDRC is the last forum overall time will be less.

NCLT-The time ranges between 6-1 Year if case is settled.

RERA it takes 6-8 Month to Rera to decide the matter remember rera also has appellate tribunal.

Conclusion

RERA or NCDRC are the best forum as of now people have got back their money with interest by these forums.

By: Advocate Nitish Banka

9891549997

The Answer to the above question is depends on the expenses which you are showing.

The expenses which are statutory deductible which are medical insurance, PF or TDS are not to be counted when assessing the income of the husband.

The other expenses suppose the husband takes a big housing loan and giving away big EMI that is not an expense that is the EMI created to gain certain asset.

Investment to medical or term policies also does not come under the head of expenses they are investment for the benefit of the husband only and wife is also entitled for same benefits showing this as an expense is harmful.

Rental of house is also not an expense. Some people exaggerate the rent. It will also backfire.

VPF or Volunatry PF is not an expense as it is not statutory deductible.

Remember whatever your needs on grocery or food items are same you have to fulfill for wife and children

Showing these expenses will eventually help the wife in ascertaining the standard of living you are used to.

Advocate Nitish Banka

9891549997

Negotiation is a method by which people settle the dispute outside the court. It is a process by which people compromise and reached at one solution while avoid argument and dispute. In any disagreement individuals understandably aim to achieve the best possible outcome for their position. However, the principles of fairness, seeking mutual benefit and maintaining a relationship are the keys to a successful outcome.

Negotiation is an open process for two parties to find an acceptable solution to a complicated conflict. There are some specific conditions where negotiation will achieve the best results:

• When the conflict consists of two or more parties or groups
• A major conflict of interest exists between both parties
• All parties feel that the negotiation will lead to a better outcome
• All parties want to work together, instead of having a dysfunctional conflict situation

STAGES OF NEGOTATION

In order to achieve a desirable outcome, it may be useful to follow a structured approach to negotiation. The process of the negotiation includes the following stages:

1. Preparation
2. Discussion
3. Clarifying the goals
4. Negotiate towards a win – win outcome
5. Agreement
6. Implementing the course of action.

PREPARATION

Before any negotiation takes place, a decision needs to be taken as to when and where a meeting will take place to discuss the problem and who will attend. Setting a limited time – scale can also be helpful to prevent the disagreement continuing. This stage involves ensuring all the pertinent facts of the situation are known in order to clarify your own position.

DISCUSSION

During this stage, individuals/members of each side put forward the case as they see it i.e. their understanding of the situation. It is extremely important to listen as when disagreement takes place it is easy to make the mistake of saying too much and listening too little. Each side should have equal opportunity to prevent their case.

CLARIFYING THE GOALS

From the discussions, goals, interests and viewpoints of both sides of the disagreement need to be clarified. It is helpful to list these factors in order of priority. Through this clarification it is often possible to identify or establish some common ground. Clarification is an essential part of the negotiation process, without it misunderstandings are likely to occur which may cause problems and barriers to reaching a beneficial outcome.

NEGOTIATE TOWARDS WIN – WIN OUTCOME

This stage focusses on what is termed a win – win where booth sides feel they have gained something positive through the process of negotiation and both sides feel their point of view has been taken into consideration. A win – win outcome is usually the best result. Suggestion of alternative strategies and compromises needs to be considered at this point.

AGREEMENT

Agreement can be achieved once understanding of both sides viewpoints and interest have been considered. It is essential to for everybody involved to keep an open mind in order to achieve an acceptable solution. Any agreement needs too be made perfectly clear so that both sides know what has been decided.

IMPLEMENTING A COURSE OF ACTION

From the agreement, a course of action must be implemented to carry through the decision.

WIN – WIN STARTEGIES

There are 5 strategies under win – win process which are as follows:

1. Make multiple offers
2. Include a matching right
3. Try a contingent agreement
4. Negotiate damages upfront.
5. Search for post settlement

MAKE MULTIPLE OFFERS

When you put only one offer on the table at a time, you will learn very little if the other party turns it down. By contrast, think about what happens when you simultaneously present multiple offers, each of which is equally valuable to you. If the other side refuses all of your offers, ask her which one she likes best. Her preference for a specific offer should give you a strong clue about where you might find value-creating, win-win trades and generate mutual gain. In addition to identifying potential win-win moves, when you make multiple offers simultaneously, you signal your accommodating and flexible nature, as well as your desire to understand the other party’s preferences and needs. So, the next time you are about to make an offer, advises Bazerman, consider making three that you value equally instead.

INCLUDE A MATCHING RIGHT

In negotiation, including a matching right a guarantee that one side can match any offer that the other side later receives—can be a classic win-win move, Imagine that you’re a landlord negotiating with a prospective tenant. You want to keep the ability to sell the apartment to someone else in the future, while the prospective tenant wants a commitment to rent the apartment for as long as she wants. Offering the tenant a matching right—the power to match any legitimate third-party offer—would allow you to preserve your own flexibility while giving the tenant the opportunity to avoid the disruption of a move. In this manner, matching rights can improve the odds of a win-win agreement.

TRY A CONTINGENT AGREEMENT

In negotiation, parties often reach impasse because they have different beliefs about the likelihood of future events. Contingent commitments often create incentives for compliance or penalties for noncompliance. You might propose paying specified penalties for turning your project in late or agree to significantly lower your rates if you go over budget, for example. To add a contingent agreement to your contract, begin by having both sides write out their own scenarios of how they expect the future to unfold. Then negotiate expectations and requirements that seem appropriate to each scenario. Finally, include both the scenarios and the negotiated repercussions and rewards in your contract. A contingent agreement can greatly increase your odds of being satisfied with whatever remedies are in place—and help generate a win-win deal.

NEGOTIATE DAMAGES UPFRONT

If one party sues the other side for breach of contract down the line, the plaintiff (if she wins) will be awarded monetary damages rather than the specific goods or services that were lost. Therefore, negotiating upfront exactly how much will be paid for each late or missed delivery, for example, may streamline any alternative dispute-resolution measures or lawsuits that arise. In addition, negotiating damages puts a new issue on the table—and thus expands the potential for value creation. In this manner, adding new issues to the mix increases the opportunity for win-win negotiations.

SEARCH FOR POST SETTLEMENT

Imagine that you’ve just reached an agreement. You are fairly happy with the deal but suspect you could have eked more value out of it. you should quit talking about the agreement with your counterpart and move on, lest you spoil the deal. asking the other party whether he would be willing to take another look at the agreement to see if it can be made better. Explain to your counterpart that you would each be free to reject a revised deal if it doesn’t improve both of your outcomes. This type of post-settlement settlement can lead to new sources of value to divide between you. It can also help generate a win-win contract if you didn’t have one before. Your success in hammering out your initial agreement may have established the trust needed to explore the possibility of an even stronger deal.

Annulment of Marriage under Hindu Law

Marriage is necessarily the basis of social organization and the foundation of important legal rights and obligations. In Hindu Law, Marriage is treated as a Samaskara or a Sacrament. A Hindu marriage joins two individuals for life, so that they can pursue dharma (duty), artha (possessions), kama (physical desires), and moksa (ultimate spiritual release) together. It also joins two families together. The colours are normally red and gold. It is a vow between two people to stay together and uphold traditional family values in accordance with Dharma. In the traditional Hindu system of marriage, there is no role for the state as marriage remained a private affair within the social realm. Within this traditional framework reference, marriage is undoubtedly the most important transitional point in a Hindu’s life and the most important of all the Hindu samskaras, or life-cycle rituals. Divorce, however is a thorny question and Annulment is a very unusual remedy. In our modern world, an Annulment tends to be more a creature of religion than of law. Annulments are rarely granted and when they are, very specific circumstances must exist.

Fraud:– It is essential to note that the section does not speak of fraud in any general way or of every misrepresentation or concealment which may be fraudulent but fraud whereby the consent of the petitioner was obtained to the solemnization of the marriage. If there was actual consent to the solemnization of the marriage with the respondent the marriage cannot be annulled on the ground of fraud. In matrimonial law when fraud is spoken of as a ground for avoiding a marriage, it does not include such fraud as induces a consent but is limited to such fraud as procures the appearance without the reality of consent. This distinction is clearly brought out by the case where it was held that concealment by a woman from her husband at the time of her marriage of the fact that she was then pregnant by another man was no ground for avoiding the marriage on the plea that the consent was obtained by clause (d). It will be noticed that the Legislature has in view of this expressly provided in clause (d) that in such a case the marriage may be annulled if the petitioner was at the time of the marriage ignorant of that fact. In another case, which seems to illustrate the rule it was held that concealment of the fact that the wife had been a naikin by profession and even in the keeping of more than one person prior to the marriage was not fraud if there was consent to the marriage (e). A person who freely consents to a solemnization of the marriage with the other party in accordance with customary ceremonies, that is, with knowledge of the nature of the ceremonies and intention to marry, cannot raise an objection to the validity of the marriage on the ground of any fraudulent representation or concealment. Thus for instance a marriage cannot be avoided by showing that the petitioner was induced to marry the respondent by fraudulent statements relating to family or fortune or caste or religion or age or character of the respondent(cl). The test is that there should be real consent to solemnization of marriage and consent to marry the particular person. Where, however, there is no real consent, as for instance where a party is kept under the impression that what is being performed is only a betrothel or there is deception as to the identity of the other party, that would be fraud which affords a ground for annulment of the marriage under the rule laid down in this clause.”

In Som Dutt v. Smt. Raj Kumari, , husband sought annulment of marriage for fraud committed upon him by his wife in concealing her true age from him and thereby inducing him to marry a woman much older than him in age. Date of birth of wife as mentioned in her horoscope compared with that of her husband showed her to be a year younger than her husband. She admitted her date of birth which made her three years older than her husband. Her date of birth as recorded in her matriculation certificate made her seven years older than her husband. No effort was made to get the date corrected in case of any error in it. Wife was also suffering from recurrent attacks of hysteria and garrulity. In an attack after marriage she was found to be anxious and irritable and had suicidal feelings and there was also disturbance of her memory and intelligence. In these circumstance, a single Judge has held, “marriage was liable to be annulled due to gross matrimonial fraud committed upon husband both with regard to age of his wife as also her mental state.”

Division Bench of this Court in Sujatha v. Hariharan, (1995) 2 Mad LJ 327 has held that it must be of such a nature which affects ordinary marital life of the parties. In the said case there was an eye defect curable by proper treatment. Concealment of such fact at the time of the marriage cannot said to be fraud, hence annulment of marriage on that ground cannot be granted. After analysing various earlier case laws of other High Court as well as this Court and in the light of Section 12(1)(c) of the Act, the Bench has come to the following conclusion:–

“To summarise the above case law, to have a cause of action for annulling a marriage under Section 12(1)(c) of the Hindu Marriage Act, to constitute fraud there must be some abuse of confidential position, some intentional imposition or some deliberate concealment of material facts which are the fundamental basis of the marriage contract. (See laws of Marriage and Divorce by H.K. Saharay, second edition at page 127). The above case law makes it clear that the concealment, even if any, must be of such nature which affects the ordinary marital life of the parties. In this case, it has come out in evidence that the appellant is a post-graduate. She is now undergoing B.Ed. course and has also studied Hindi for three courses. It has also come out in evidence that while she was in her husband’s house, she was doing all manual and household work and the petitioner has even taken her to a cinema. How far the marital life is affected, is not explained by the petitioner. He only says that he had did not like the respondent (wife) and hence there is no consummation of marriage. Pending trial, the Family Court has got a report from another doctor where also the eye defect was stated to be minus 15 and minus 17. No attempt was made by the petitioner to give treatment to the wife, and he has not even ascertained whether it can be cured or not. Unless it is incurable, as observed in the earlier case law, any concealment of the same, will not amount to concealment of a material fact which will give a cause of action for annulling the marriage. According to the appellant and her father, the eye defect is curable if proper treatment is given. Even in the present state, it does not affect her marital life. She says that the marriage was consummated and they had physical contact on many days. If the eye defect is not a material fact which does not affect the marital life, the petitioner cannot have any cause of action for annulling the marriage. In this case, he has not adduced any evidence whether the eye defect is curable or not, and whether the decree of the defect could be reduced, he takes her to the doctor only for the purpose of ascertaining and assessing the defect, and not to get it cured. That also show that his intention is not bona fide. We have stated that even according to his own showing, he did not consider the eye defect is a material fact. According to him, it is alleged mental illness of the respondent that causes him concern and if it is for that reason he wanted the annulment of marriage. To say that he has taken her to a Psychiatrist, but that is a evidence regarding her alleged mental defect. On the contrary, we have the oral evidence of R.W. I herself where she ably speaks before court about her mental condition.”