[Dr. Ashok Dhamija]

In fact, on the other hand, in the case of Sandhya Manoj Wankhade v. Manoj Bhimrao Wankhade, (2011) 3 SCC 650 : (2011) 2 SCC (Cri) 21, the Supreme Court has specifically held that a female can also be a “respondent” within the meaning of Section 2(q) of the Protection of Women from Domestic Violence Act, 2005. The relevant observations of the Supreme Court are reproduced as under:

“13. Having carefully considered the submissions made on behalf of the respective parties, we are unable to sustain the decisions, both of the learned Sessions Judge as also the High Court, in relation to the interpretation of the expression “respondent” in Section 2(q) of the Domestic Violence Act, 2005. For the sake of reference, Section 2(q) of the abovesaid Act is extracted hereinbelow:
“2. (q) ‘respondent’ means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:
Provided that an aggrieved wife or female living in a relationship in the nature of marriage may also file a complaint against the relative of the husband or the male partner;”
14. From the above definition it would be apparent that although Section 2(q) defines a respondent to mean any adult male person, who is or has been in a domestic relationship with the aggrieved person, the proviso widens the scope of the said definition by including a relative of the husband or male partner within the scope of a complaint, which may be filed by an aggrieved wife or a female living in a relationship in the nature of a marriage.
15. It is true that the expression “female” has not been used in the proviso to Section 2(q) also, but, on the other hand, if the legislature intended to exclude females from the ambit of the complaint, which can be filed by an aggrieved wife, females would have been specifically excluded, instead of it being provided in the proviso that a complaint could also be filed against a relative of the husband or the male partner.
16. No restrictive meaning has been given to the expression “relative”, nor has the said expression been specifically defined in the Domestic Violence Act, 2005, to make it specific to males only. In such circumstances, it is clear that the legislature never intended to exclude female relatives of the husband or male partner from the ambit of a complaint that can be made under the provisions of the Domestic Violence Act, 2005.”

     

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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 depends on the rules of your State Government. There is no such Act which says that the suspension shall be revoked automatically if the charge sheet is not served within 3 months. However, last year, the Supreme Court has ruled so in a judgment; read the following article for more details:

Suspension order not to extend beyond 3 months if charge-sheet is not served, says Supreme Court

Also, recently, the Central Government has issued similar instructions (which are applicable to Central Government servants); please read the following article:

Suspension not to exceed 3 months if charge sheet not served, says Central Government

In your case, you have mentioned that you have been convicted in a criminal case. In the Central Government rules and the rules of most State Governments, there is a provision that following conviction in a criminal case, a Government servant can be punished (including dismissal, wherever desirable) on the basis of the conduct that led to the conviction, without even conducting a departmental inquiry. It is pertinent to mention that even if you have filed an appeal against such conviction and even if the sentence has been stayed (or even if the order of conviction itself has been stayed), generally there may not be bar to punish such government servant without holding departmental inquiry in such a case, since the Supreme Court has ruled that in such circumstances, the departmental punishment is based NOT on conviction, but on the CONDUCT that led to the conviction.

     

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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]

What were the terms of your agreement under which you took the shop? Or, under the relevant rules to which your shop is subject? Is there any provision or commitment of paying maintenance charges? Is there any provision for paying interest on the maintenance charges that have not been paid? Is the payment of such maintenance subject to the actual cleaning to be done by the concerned authority? It depends on these issues.

If there is a legal requirement for payment of maintenance charges, you should have paid that. If the authority concerned had failed to maintain the premises as per requirements, you are required to take action against them as permissible under the applicable terms of agreement, rules, etc. or for not giving you proper services.

Interest of Rs. 550 on the maintenance charges of Rs. 500 appears to be quite exorbitant.

In the absence of full details being available, it may not be possible to guide you properly. You have not mentioned even who is the authority concerned. What is “Sty”? Is it “station”?

Depending upon the authority concerned, you may have to take up the matter either in consumer court (if the authority comes under that Act) or in a civil court or in the forum under Societies Act (if it is under that Act). You can also take it up with the higher or appellate authority concerned showing lack of services provided.     

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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 read the following article which covers your question:

Dishonour of cheque given as security – whether offence under Section 138 N.I. Act made out?

Also see the following topic which is somewhat related to your question:

Cheque given as security, amount and date filled in by payee

     

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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 can seek protection from police. And, if needed, file an application before high court seeking directions to police to provide protection. However, keep in mind that such requests may not always be granted, and even if protection is given it may not be perfect. So, you have to take some risk, generally speaking.     

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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 have not mentioned about the facts of 498A IPC case. Whether the allegations made therein pertain to incidents that took place in India since you said that they stayed in India for one month? If yes, then the offence can be tried in India.

Alternatively, if the offence took place in Canada but if the offence is committed by an Indian citizen in Canada, then also as per the provisions of Section 4 of the IPC, if an offence is committed outside India by an Indian citizen if such offence is made punishable in India, it can be tried in India.

So, in both situations, you’ll have to defend the 498A IPC case in India if the boy continues to be Indian citizen, though he is living in Canada but has not become a Canadian citizen so far.
     

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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]

Since the charge sheet has already been filed, your application before high court for quashing of FIR would have become infructuous. You may file discharge application before the trial court where the charge sheet has been filed, if you so wish.     

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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]

No. The Easements Act, 1882, has not been repealed so far. It is still a valid law wherever it is applicable. It is not included in the list of Acts that were repealed in 2015.     

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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]

Everything has its own pros and cons. You have full authority in law to appear in person, but then you have to handle the difficulties also yourself. You’ll have to take measures mentioned in the rules quoted above. File an application before the Chamber Judge as mentioned in the above rule. Second option is to orally mention before the Chief Justice Court at 10.30 am. Thirdly, you can visit the Supreme Court registry and meet the concerned officer. I can’t suggest anything more.      

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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]

This is the problem that one faces when one files a case in the Supreme Court in person. Filing a case in Supreme Court is a difficult process since generally in almost every case, some defects are pointed out, and in many cases a large number of defects are pointed out. Even for most advocates who regularly practice in Supreme Court, generally at least some defects are pointed out almost in all of their cases. A party-in-person will definitely face more problems since they are not familiar with the technicalities and the procedure. Unlike other courts, the SC has very strict filing requirements. It is seen that unless you are a party-in-person who is regular to the Supreme Court, you may sometimes be spending more money (and time and energy) in paying regular visits to SC registry than the amount saved in paying to an advocate. Your matter is pending since 2015 (the SC website still shows 19 major defects in your case) for removal of the defects.

As per the SC rules, defective matters are required to be refiled, after removal of the defects, within 28 days from the date of communication of defects. If there is delay, an application is to be filed seeking condonation of delay. That application is listed before the Court, for orders. On refiling, the matters are again scrutinized to ensure that all the objections communicated to the advocate/petitioner in person have been removed and if found in order, the matter is registered.

The relevant extracts of the Supreme Court Rules relating to a defective filing are reproduced below for your information:

“(3) Where a document is found to be defective, the said document shall, after notice to the party filing the same, be placed before the Registrar. The Registrar may, by an order in writing, decline to receive the document if, in his opinion, the mandatory requirements of the rules are not satisfied. Where, however, the defect noticed is formal, the Registrar may allow the party to rectify the same in his presence; but, in other cases, he may require the party to obtain an order from the Court permitting the party to rectify the same and for this purpose may allow to the party concerned, such time as may be necessary but not exceeding twenty-eight days in aggregate.
(4) Where the party fails to take any steps for the removal of the defect within the time fixed for the same by the Registrar, the Registrar may, for reasons to be recorded in writing, decline to register the document.
(5) Any party aggrieved by any order made by the Registrar under this Rule may, within fifteen days of the making of such order, appeal against it to the Judge in Chambers.”

     

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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 Supreme Court has the power to do complete justice in a matter before it, under the provisions of Article 142 of the Constitution. Such exemption from the compulsory period of 6 months in a mutual consent divorce is given by the Supreme Court only in some rare cases under Article 142 of the Constitution “for doing complete justice”. As far as I understand, it has been done by the Supreme Court in not more than 10 to 20 cases. However, this concession is not available in general or in all cases. In normal cases, the requirement of minimum 6 months’ waiting period for mutual consent divorce is still applicable. This is so because Section 13-B of the Hindu Marriage Act lays down this mandatory period of 6 months, which is the law of the land. Also because, the High Courts and other courts have no such power similar to the power given to Supreme Court under Article 142 of the Constitution.

Article 142 of the Constitution is reproduced below for your information:

“142. Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc.—(1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order1 prescribe.
(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.”

     

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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]

Wherever after investigation, police submits closure report (i.e., where it finds no evidence to support the allegations made in FIR) under section 173 of Cr.P.C., an opportunity is given by the Magistrate to the original complainant to oppose such closure report. In your case, the final report or the charge sheet filed after investigation drops the offences under some specific sections. In such a case, it should be possible for the complainant to oppose the dropping of those sections by appearing before the Magistrate. Sub-section (8) of Section 173 of Cr.P.C. empowers further investigation in an offence after submission of the charge sheet by police. So, it should be possible for the complainant to request the court to direct further investigation.     

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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 question raised by you is covered by a decision of Delhi high court in the case of Akhtar Begum v. Jamshed Munir, ILR (1978) 2 Del 249 : AIR 1979 Del 67. It is held in this case as under:

“According to Muslim Law the father is the guardian of his children irrespective of sex but the mother is entitled to the custody of her son till the age of about seven years and of an infant daughter till she attains the age of puberty. The Muslim Law makes a distinction between guardianship and custody of infants and those children who can be said to be free of the mother’s care. The responsibility for maintenance is on the father irrespective of who has the custody; for it is said, in Hedaya that “the Nifka or subsistence of the child is incumbent upon the father.” If the mother refuses to keep the child there is no constraint upon her that she, must have the custody. In such a case the Muslim Law provides that after the mother an infant should be given into the custody of mother’s mother, how high so ever, and so on so forth. The father’s right to the custody of an infant is subject to — (a) the mother not being held entitled to custody owing to some disqualification; and (b) welfare of the child. Custody of an infant child is called Hizanit, literally meaning the care of infant child.”

In the above case, the Delhi high court allowed the temporary custody of the minor daughter to the Muslim mother, reversing the decision of the lower court.

So, you may approach the court under the provisions of the Guardian and Wards Act, 1890, for getting the custody of your minor son of 5 years age. Please contact some local lawyer at your place who can go through the above judgment of the Delhi high court which covers this issue in detail (I have quoted only a few lines from the said judgment).

     

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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]

See, the MOU is as per the consent of both the parties. You have said that both parties agreed to the MOU. Whether the terms of the MOU would be honoured or not, is a question that has no legal answer. It depends on the parties concerned and their good faith. Nobody can guarantee that a party will abide by the terms of the agreement or MOU. There are a large number of matters where people do not fulfill their obligations under the agreements they sign.

In fact, the other party may also feel that if the full amount under MOU is to be paid at the time of the second motion, and if such payment is not made, then such other party would suffer. As you have mentioned the other party also has some obligations like withdrawal of the cases, etc., which may have to be fulfilled before the second motion.

In any case, MOU is as per the consent of both parties and if you do not want to agree to the MOU, then do not sign it.

It is possible for you to move the court for depositing the first installment in the court instead of giving to the other party. The court may or may not agree to it, but you can make a request. There is no hard and fast rule or any provision of law in this regard. It is all a discretionary power of the court (or, may be, as per the agreed terms of your MOU).

In what name the DD has to be drawn if the amount is to be deposited in court is a hypothetical issue at the moment since the court is yet to agree to it. In any case, if the court agrees, it will tell you in whose name the DD has to be prepared.     

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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 given loan to someone and the cheque given to you for repayment of that loan has bounced, then you can file a case under Section 138 of the Negotiable Instruments Act after following the procedure of issuing notice etc. as laid down in that section. As regard proof of loan, there are various methods of proving the same; it is not necessary that there should be any guarantor for the loan or that some advocate or notary should have signed the stamp paper. The proof of loan is subject of appreciation of evidence by court which depends on the facts and circumstances of the case.

From the facts mentioned by you, it appears that the cheque bounced on 10.11.2015, and it is not clear whether you have followed the procedure mentioned in Section 138 by giving notice within the prescribed period. On the face of it, it appears that your case be beyond limitation period prescribed for filing the case; however, I am mentioning this on the basis of the limited facts provided by you. You may consult some local lawyer by showing your papers to him.     

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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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