[Dr. Ashok Dhamija]

The procedure laid down in the Criminal Procedure Code for trial of warrant case by Magistrate in a private complaint case, permits the Magistrate to examine the prosecution witnesses before framing the formal charge.

Either on the completion of recording of prosecution evidence, or before that, if the Magistrate comes to form opinion that there is ground for presuming that the accused has committed an offence triable as a warrant case, then he may frame a formal charge against the accused.

Therefore, there is nothing wrong procedurally if the Magistrate has examined the witnesses on the side of the complainant without framing any formal charge. A formal charge may be framed on a later date if there is evidence available as mentioned above.

Further, this procedure followed by the Magistrate does not mean that he does not trust your case or that your case is weak. The Magistrate is following the procedure as laid down in Cr.P.C.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Offence under Section 494 (bigamy or second marriage) and Section 497 (adultery) may not be applicable in the facts stated by you. Moreover, the offence of rape may also not be attracted if the woman in live-in relationship has given her full consent with transparent knowledge of the fact of first marriage of the man (i.e., the man should not have concealed anything or misrepresented anything material).

However, living in a live-in relationship with another woman may perhaps amount to an offence under Section 498-A of IPC against the wife from the marriage of the man, since it may perhaps be considered as subjecting the wife to cruelty.

Further, if there is any wilful misrepresentation or concealment of a material fact to the woman in the live-in relationship, that may also amount to an appropriate offence depending upon the type and nature of the acts committed during such relationship and the false promises (for example, false promise of marriage), if any, given to such woman.

Other than these, there are ethical and moral issues.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Please note that registration of a will creates a presumption in its favour. It should be for the person who challenges the registered will to prove that the will is not valid. Moreover, witnesses being alive and not supporting the will is one thing, but witnesses having died is quite a different thing.

Further, I do not understand when you say “…but today we have witness to proof the will…”, since in an earlier part of the question you have said that both the witnesses to the will have died.

Yes, the appellate court has the power to remand a case to the lower court, as laid down in the CPC, in an appropriate case.

What is mentioned above is on the basis of the limited facts mentioned in the question. You are advised to consult / engage some lawyer and show him all the relevant details / documents for a proper and full guidance.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

So far as suits against Governments are concerned, they cannot be validly instituted without giving a notice as required by S. 80, Civil Procedure Code (CPC).

But when we come to filing suits against public officers, S. 80, Civil Procedure Code applies only to suits in respect of any ‘act’ purporting to be done by a public officer and that too in his official capacity. Hence before S. 80 CPC can be relied on in any suit against a public officer, it must be shown that it is a suit in respect of an ‘act’ purporting to be done by him in his official capacity.

But, in view of the provisions of the General Clauses Act, the expression ‘act’ also includes “illegal omissions”. In IPC, it is defined that the word “illegal” is applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action.

Therefore, if something was required to be done by the public officer under the legal provisions or under the contractual provisions, but he has failed or omitted to perform such act, then it would amount to illegal omission. And, further, such illegal omission would amount to “act”.

In view of these, even for instituting a suit against a public officer, if it is in respect of an act or illegal omission, which was purporting to be done by the public officer in his official capacity, a prior notice under Section 80 of the CPC would be mandatory.

And, as I mentioned above, in so far as suits against Governments are concerned, they cannot be validly instituted without giving a notice as required by S. 80, CPC.

For the sake of a ready reference, Section 80 CPC is reproduced below:

“80. Notice.— (1) Save as otherwise provided in sub-section (2), no suit shall be instituted against the Government (including the Government of the State of Jammu and Kashmir) or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of—

(a) in the case of a suit against the Central Government, except where it relates to a railway, a Secretary to that Government;

(b) in the case of a suit against the Central Government where it relates to a railway, the General Manager of that railway;

(bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorised by that Government in this behalf;

(c) in the case of a suit against any other State Government, a Secretary to that Government or the Collector of the district;

and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.

(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu and Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:

Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1).

(3) No suit instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (1), if in such notice—

(a) the name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1), and

(b) the cause of action and the relief claimed by the plaintiff had been substantially indicated.”

 

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

I have already replied to a similar question in detail, which is available at the following link: Validity of Power of Attorney after death of donor of power

So, I’ll not reply this question in detail again. Please go through the above reply.

In brief, I may reply that generally speaking, a Power of Attorney is terminated by the death of either the donor of POA or of the donee of the POA. Thus, generally, after the death of the donor, the POA holder cannot transfer property.

However, as I pointed out in the above reply, if there is an irrevocable Power of Attorney (POA) creating an interest in favour of the POA holder in respect of the property which forms the subject-matter of the POA, which is generally for some valuable consideration paid or payable to the donor of the POA, then such POA may not be terminated even after the death of the donor of POA and may continue to be valid. It may be binding on the heirs / successors of the donor of POA in these circumstances. Barring the above exception, generally speaking, a POA gets terminated by the death of either the donor or of the donee of the POA.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

If you have correctly reproduced the legal language used in your initial appointment letter, then it is quite clear that both the employer as well as the employee (since the words “either party” are used) have the option to terminate the employment by paying one month’s salary in lieu of giving one month’s notice. So, it should be possible for you, under the terms of your appointment, to pay one month’s salary instead of serving one month’s notice to the employer and resign from the job.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

For challenging the illegal appointment of a person to a public office, you can file a writ petition in the high court or Supreme Court for seeking a writ of quo warranto. Such writ petition can be filed by any person irrespective of whether or not such petitioner has a personal interest in it.

The grounds for filing a writ of quo warranto for challenging the illegal appointment of a person, the following characteristics are required generally:

• Office occupied by such person must be a public office.
• Such public office must have an independent and substantive character.
• Such public office must be constitutional or statutory (i.e., under some law, rules, regulations, etc., under authority of law).
• Such person must have been appointed in violation of the terms of the Constitution or the statutory law etc.

So, you should be in a position to file a writ petition for this purpose. It is advisable to file the writ petition in the high court, instead of directly going to Supreme Court because the Supreme Court may not nowadays entertain a writ petition directly under Article 32 of the Constitution nowadays.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Till the order of the magistrate under Section 125 of the Criminal Procedure Code for giving maintenance to your wife (or former wife) is not changed or modified or cancelled by the court, you are required to comply with it and keep paying maintenance.

However, Section 127 of the Cr.P.C. empowers the Magistrate to change or alter or cancel the order of maintenance which has been passed by him under Section 125. In particular, Section 127(3)(a) provides that where the woman has, after the date of divorce, remarried, the Magistrate may cancel the maintenance order passed under Section 125 from the date of her remarriage.

So, if you have evidence to show that your wife has remarried after divorce, then you may file an application under Section 127 Cr.P.C. to the Magistrate for cancelling the order of maintenance. There is every likelihood that the Magistrate may cancel the maintenance if you provide the proof. So, instead of you taking the decision yourself to stop maintenance to your wife because she has remarried, the better course would be to apply under Section 127 and to get the order from the Magistrate to cancel the maintenance and then stop paying maintenance to her.

Section 127 of the Cr.P.C. is reproduced here for your information:

“127. Alteration in allowance.— (1) On proof of a change in the circumstances of any person, receiving, under Section 125 a monthly allowance for the maintenance or interim maintenance, or ordered under the same section to pay a monthly allowance for the maintenance, or interim maintenance, to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration, as he thinks fit, in the allowance for the maintenance or the interim maintenance, as the case may be.

(2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under Section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.

(3) Where any order has been made under Section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that—

(a) the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage;

(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order,—

(i) in the case where such sum was paid before such order, from the date on which such order was made,

(ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman;

(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance or interim maintenance, as the case may be, after her divorce, cancel the order from the date thereof.

(4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom a monthly allowance for the maintenance and interim maintenance or any of them has been ordered to be paid under Section 125, the Civil Court shall take into account the sum which has been paid to, or recovered by, such person as monthly allowance for the maintenance and interim maintenance or any of them, as the case may be, in pursuance of the said order.”

 

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

For an offence, usually what is important is that there must be mens rea or a guilty mind. This means that there should be some type of mala fide intention of doing something wrong to someone. If you are doing some act without any wrong intention or without the intention of causing a wrongful gain to yourself or a wrongful loss to someone else, it may not be an offence. This is the general rule in criminal law.

In the situation cited by you, when someone is himself permitting the use of his credit card or debit card and authorizing it for withdrawing money from ATM or for buying something online, it may not be an offence, since it is with permission of the card holder from whose account the money would be debited or who would have to pay the charges. In fact, it is a common practice and a large number of people give their debit card or credit card to their family members (or sometimes, to friends) for withdrawing money from ATM etc. It is not an offence when it is done specifically with the permission or authority of the card holder. It is an offence only when you steal someone’s debit / credit card, or use it, without his permission in order to commit a fraud or some other offence.

At the same time, such use of the debit card or credit may be a violation of the terms and conditions of the bank which has issued the card. Usually, these terms may restrict the usage of card by other people. The bank may not take any legal action against you, but there may perhaps be a penalty or the bank may perhaps cancel the card (of course, one has to check what exactly are the bank’s terms and rules in this regard). However, this is also unheard of. Banks may unofficially be happy if the card is used more because they may be earning commission on card usage, so even it is a violation of their terms, the banks may not generally complain, if the card is being used with your permission and you are not objecting to it.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

You are not allowed to remarry or have a second marriage while the first marriage is still continuing to be valid. This means that you cannot have second marriage while your divorce petition is still pending. But, there is no legal prohibition on a profile being put on a matrimonial website while the divorce petition is still pending; however, you should take care that you correctly and transparently mention in your profile about you being a married person and about your divorce petition pending in court; do not conceal any material information and do not give any false information.

Also note the legal provision in Section 15 of the Hindu Marriage Act, which is as under:

“15. Divorced persons when may marry again.—When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal the time for appealing has expired without an appeal having been presented or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.”

So, this means that even after getting divorce, for your second marriage you may have to wait for the appeal against divorce to be decided (if any such appeal is filed) or for the time for appealing against the divorce to get expired without an appeal having been presented during that appeal period.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

If the corruption case is not a huge scam, then usually the accused public servant would get bail after a few days. However, it depends on the facts and circumstances of each case. What I have said is applicable to most cases, generally. Further, if the custody is beyond 48 hours, the public servant may be deemed to have been placed under suspension automatically.

Whether he would get back his government service etc. would depend on the facts of the case. If he is acquitted in the case, then he may get back his service. But, in case of conviction in the corruption case, he would lose his job. It depends on the facts of the case. You may engage some local lawyer for his case.     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

It takes about 10 days to get listed after filing the transfer petition in the Supreme Court (if there are no defects in filing).     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Every member of the society is supposed to be entitled to enjoy the common facilities provided in the society. The water and electric connections are given in common to the members of the society for the common benefit. [Of course, if each member of the society has been given electric connection to his house separately, then he has to pay his electricity charges directly to the company providing electricity.] The society is formed for the benefit of all members and each one is entitled to enjoy all common facilities. The disconnection of water supply is a deprivation of the fundamental right to livelihood guaranteed under Article 21 of the Constitution. The action of the society in disconnecting the water supply to a member is illegal as it is an interference in enjoying the common facility.

If any member is not paying the maintenance charges or the relevant charges payable for water / electricity, it is of course open to the society to demand the same from the defaulting member in accordance with law and take legal action against him. But, such basic amenities which are essential for life cannot be denied as that is a violation of the fundamental rights under Article 21 of the Constitution.

You’ll have to check the provisions of the relevant societies Act which is applicable in your state and also the bye-laws of your society for the actual detailed provisions in this regard. But, generally, complaints with regard to disconnection of such facilities are filed either by way of writ petition in the high court (for example, read this) or by a consumer complaint before the appropriate consumer forum (for example, read this) or may be before the Registrar / Deputy Registrar of the societies, or before the district court. Please check the relevant legal position under societies Act which is applicable in your state and also the bye-laws of your society.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

There is no restriction in law on voluntarily surrendering before court and apply for regular bail, when the application for anticipatory bail is still pending for consideration. So, you can surely do it.

In any case, anticipatory bail [under Section 438 Criminal Procedure Code] is a sort of an extra privilege that a person apprehending arrest in a non-bailable offence can apply for. So, merely because you have applied for such privilege and the application is pending, does not mean that your normal right to get regular bail is taken away from you.

But, please remember that once you surrender before the Magistrate court, irrespective of whether or not you get regular bail from Magistrate court under Section 437 Cr.P.C., your anticipatory bail application will automatically become infructuous (since you are already arrested now) and you may withdraw it or the court will dispose of your anticipatory bail application without any further relief.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr. Ashok Dhamija]

The general legal provision for limitation period for filing a suit for recovery of money is 3 years. This applies to recovery of loans by banks also.

However, please remember that if your client has acknowledged the loan, paid any instalment or paid interest, etc., in the meanwhile, then the limitation period may start running afresh and will be counted from such date.

So, if your client has not acknowledged the loan or paid any interest, or paid any instalment, etc., to the bank, then the said loan may have become time-barred. But, if there is any such acknowledgement, payment etc. before the expiry of the limitation period, then the limitation period of 3 years will be counted from such date.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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