[Dr. Ashok Dhamija]

There are prohibitions in the Hindu Marriage Act, 1955, on the second marriage when the first marriage is still surviving. In this regard, following sections of the above Act are relevant:

“5. Conditions for a Hindu marriage.—A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely :—

(i) neither party has a spouse living at the time of the marriage;

***   ***.”

“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.

“17. Punishment of bigamy.—Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of Sections 494 and 495 of the Indian Penal Code (45 of 1860) shall apply accordingly.”

Thus, the prohibition is against a marriage when either party has a spouse living at the time of marriage. Violation of this results into the offence of bigamy which is punishable under Indian Penal Code, as mentioned above, and also such marriage is void.

Moreover, a divorced person may marry again after divorce after the period of appeal is over (if such appeal is not filed), which is a period of 90 days, and after dismissal of appeal if any such appeal was filed. Therefore, after a decree of divorce is passed, after waiting for the period of appeal of 90 days to be over, a person can marry again if no such appeal is filed. Till the period mentioned above in Section 17, no party to the divorce proceedings can marry.

However, there is no legal prohibition mentioned in the Hindu Marriage Act for merely advertising for searching for a new partner during the pendency of the divorce proceedings. Thus, there does not appear to be a legal bar on such search for a new partner. However, there may be ethical or moral issues in searching for a new partner at a time when the existing marriage is yet to be formally dissolved.

     

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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]

Your question is not clear. Please contact your lawyer to find out the relevant cases. This forum is basically for trying to help, wherever possible, on questions of law, and not for searching cases relating to a particular question.

Please also see: http://tilakmarg.com/forum/topic/clubbing-of-slps-by-supreme-court/     

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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 two or more SLPs are filed against the same order of the high court which is under challenge (i.e., for example, where there were more than one parties in the high court, who are aggrieved by that order), then they are heard together. Sometimes, parties on both sides in high court are aggrieved by HC order due to varying reasons and file their counter SLPs; such SLPs are also heard together.

Likewise, when the same or similar question of law is raised in two or more SLPs, the same may be heard together, even if facts may be different. If the relief claimed is same or similar, or if the main issues raised are same or similar, then also the SLPs may be heard together.

Generally, it is seen whether there is something substantially common in the SLPs due to which they can be heard together     

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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 appears that the question raised by you is covered in an answer given by me to an earlier question. Please read my article at the following link:

http://tilakmarg.com/answers/can-i-make-an-rti-application-for-getting-judicial-records-from-a-court/

In the alternative, you can also apply for a certified copy of order required by you from the high court.
     

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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 appears to be covered in the judgment of Calcutta High Court in the case of Sekhar Gupta v. Subhas Chandra Mondal, (1992) (Supp) MWN (Cri) 152 (Cal), the relevant extract of which is reproduced below:

“5. First let me consider whether the instant case under Section 138 of the N.I Act is maintainable or not. In challenging the maintainability of the instant case, Mr. Deb learned advocate appearing for the petitioners has argued that the cheque No. 018455 dated 10 September, 1989 and the cheque No. 018456 dated 20 September, 1989 were presented to the bank for payment respectively on 10 September’89 and 22 September, 1989 and that the bank’s intimation in this regard were given to the payee i.e the complainant-opposite party on 12 September, 1989 in respect of the cheque No. 018455 dated 10 September, 1989 and on 23 September, 1989 in respect of the other cheque. He has argued that since the notice in writing demanding payment of the amount of the said dishonoured cheques was not given within fifteen days of the receipt of the information by the complainant-opposite party from the bank regarding the return of the cheques as unpaid, as required under Section 138 (b) of the N.I Act, the instant case is not maintainable. He has submitted that subsequent presentation and dishonour of the cheques on such presentation, the said period of limitation cannot be saved or extended. Mr. Pal learned advocate for the opposite party has, on the other hand, argued that though the cheques in question bounced on first presentation to the bank for payment, still at the request of the accused persons and to give them an opportunity to pay the amounts, the said cheques were presented to the bank for the second time and also for the third time. He has further argued that as the cheques bounced on third presentation to the bank for payment on 16 Nov.’ 89 and 9 Nov. 1989 well within the period of this validity, the complainant issued the notice in writing under Section 138 (b) of the N.I Act within fifteen days from the dates of receipt of the bank’s intimations as to non-payment of cheques which were received on 17 November, 1989 and 10 November, 1989. As the said notice under Section 138 (b) of the N.I Act was issued within the fifteen days from the aforesaid dates of receipt of banks intimation, he has further argued that the notice under Section 138 (b) is valid and legal and that the instant proceeding is maintainable. Having heard the submission made on both sides and having considered the materials on record and also the provision of section 138 of the N.I Act, I am of the opinion that in the facts and circumstances of the case, the notice issued on 18 November, 1989 under section 138 (b) of the N.I Act and received by the accused persons on 22 November, 1989 is a valid and legal notice and that the instant proceeding, therefore, is maintainable. To invoke the provision of S. 138 of the N.I Act, the payee or the holder in due course shall have to present the cheque for payment to the bank within a period of six months from the date on which it was drawn or within the period of its validity whichever is earlier as enjoined by clause (a) of Section 138 of the N.I Act. In the instant case the cheques were valid for six months from the dates when they were drawn and as such the period of their validity was six months from the date when they were drawn. Section 138 enjoins that the cheque must be presented to the bank within a period of six months or within the period of its validity whichever is earlier. It does not prohibit or forbid presentation of the cheque to the bank more than once for payment. Nor does it enjoin that such cheque should be presented to the bank for payment only once. So, I am of the opinion that the cheque may be presented to the bank for payment twice or thrice within the aforesaid period of six months or the period of its validity and it cannot be presented to the bank for payment beyond the said period of six months or the period of validity. Of course, when the cheque is presented to the bank for the first time for payment and is returned unpaid, it gives rise to a right in favour of the payee or the holder in due course to initiate a criminal proceeding under section 138 of the N.I Act against the drawer of the cheque. On such first presentation for payment and dishonour of the cheque on such presentation, the payee or the holder in the due course undoubtedly could have enforced his right against the drawer of the cheque. But when he waits and presents the cheque for the second or for the third time, he does so far the benefit of the drawer in order to give an opportunity to him to pay or deposit the amount of the cheque in the bank. But there can be no manner of doubt that when the payee or the holder in due course after the cheque had bounced on first presentation presents the cheque for the second time to the bank for payment, he must be held to have waived the right that had accrued in his favour when the cheque bounced on first presentation. Similarly when the payee or the holder in due course even after the cheque had been dishonoured for the second time presents the cheque to the bank for payment for the third time but within the period of six months from the date of drawal of the cheque or within the period of its validity, the payee or the holder in due course must be held to have waived the right that accrued in his favour when the cheques bounced for second time. In the instant case the cheques were presented to the bank for payment for the third time well within the period of six months from the dates when they were drawn and they were returned unpaid this time also. On such dishonour of the cheque after they had been presented for payment within the period of six months from the dates when they were drawn, a fresh right accrued in favour of the complainant-opposite party and he can certainly enforce that right by initiating a proceeding under Section 138 of the N.I Act. The bank’s intimations in this regard in respect of the cheques in question were received on 10 Nov.’ 89 and 17 November 1989. The notice in writing demanding payment of money under clause (b) of Section 138 of the N.I Act, was given on 18 November 1989 and the same appears to have been received by the accused persons on 22 November 1989. So the said notice appears to be valid and legal. In that view of the matter the instant case under Section 138 of the N.I Act appears to be maintainable. So, the first contention as raised on behalf of the petitioners fails.”

     

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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]

Your second question has been asked twice, and it has already been replied elsewhere at the place where you asked it first.     

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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 should ask the supplementary question under the previous question itself by clicking Reply button.

As mentioned in the previous reply, transfer of a case is basically a discretionary power. The words used in Section 407 Cr.P.C., such as “expedient for the ends of justice” may cover a large number of situations.

What you have mentioned may be your grounds of opposing the transfer petition and you may do so. It is not possible for me to speculate as to what will or will not be held by the high court since it is a wide power and a lot of exercise of discretion is involved in this.     

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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]

Transfer of a criminal case is ordered by a High Court under Section 407 of Cr.P.C. Such order is issued NOT on the grounds of jurisdiction (i.e., where the offence took place) but on one or more of the following grounds:

(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or
(b) that some question of law of unusual difficulty is likely to arise, or
(c) that an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice,

It is more like a discretionary power. You may oppose the transfer petition on the grounds mentioned by you or on other grounds available to you, and highlight your difficulties.

     

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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 there is a signed bill showing full payment, then it should generally help you. The general rule is that a document can be proved by its own contents. Oral statement about the contents of a document is secondary evidence, which may be inadmissible if the primary evidence (i.e., the document itself) is available.

From what you write, there appears to be defect in evidence against you. You may have to either challenge the action against you in appropriate court, or to prove your case in the departmental inquiry. However, since your question is a question of facts, someone has to examine the documents / evidence in details. Please consult some local lawyer at your place with your documents, who can then guide you after detailed examination of the papers.     

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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 general rule is what I have mentioned in my previous reply. A company has its own separate legal status independent of its shareholders. The celebrated case of Salomon v Salomon & Co Ltd., decided by the House of Lords in 1896 established this principle beyond doubt. However, over several decades since that decision, certain exceptional circumstances have been delineated, both by legislatures and the judiciary, when courts can legitimately disregard a company’s separate legal personality, for example, where crime or fraud has been committed. Earlier, certain exceptions to this rule were considered under a legal principle known as “piercing the corporate veil” or “lifting the corporate veil”. But, now, the courts have even started distinguishing between cases of truly “piercing the corporate veil” and situations where it was held that the company was essentially an agent for a wrongdoer or held property on trust.

All said and done, the basic principle of a company having a separate legal status independent of its shareholders still continues, though there are some exceptions to it.

The case of U.P. State Industrial Development Corpn. Ltd. v. Monsanto Manufacturers (P) Ltd., (2015) 12 SCC 501 decided by the Supreme Court may also perhaps be called such an exception coming under the category of “piercing the corporate veil”, but I think more than that this exception is more because of the specific terms of contract between the two parties to the lease agreement.

It was a specific contention of the appellant Corporation that the respondent Company has violated Clause 3(p) of the lease deed dated 5-9-1979 entered into between the said Company and the appellant Corporation inasmuch as its “memorandum of association” and “article of association” were altered without the written consent of lessor i.e. the appellant Corporation.

I am sure you would have seen the provisions of the said contract between the parties, which have been reproduced in the SC judgment. These provisions make the issues very clear.

The relevant extract of the said lease agreement, qua the lessee which is a company, is as under:

“The lessee being a company shall not make or attempt to make any alterations, whatsoever in the provisions of its memorandum and articles of association or in its capital structure without the written consent of the lessor, first had and obtained, and the lessee hereby undertakes to get registered the prescribed particulars of the charge hereunder created with Registrar of Joint Stock Companies under Section 126 of the Companies Act, 1956, within stipulated period.

While granting its consent as aforesaid the lessor may require the successor-in-interest of the lessee to enter into a binding contract with the lessor to abide by and faithfully carry out the terms, conditions, stipulations, provisos and agreements herein contained or such other terms and conditions as the lessor may, in its discretion, impose including the payment by the successor-in-interest such additional premium and/or enhanced rent as the lessor may in its discretion think proper. In the event of breach of this condition the agreement shall be determined at the discretion of the lessor.

Provided that the right to determine this agreement under this clause will not be exercised if the industry at the premises has been financed by the State Government or Industrial Finance Corporation of India or Industrial Credit and Investment Corporation of India, or U.P. Financial Corporation or Pradeshiya Industrial and Investment Corporation of Uttar Pradesh or any scheduled bank (including State Bank of India) and the said financing body or bodies mentioned above decide to take over possession or sell, or lease or assign the mortgaged assets in exercise vesting in it or them by virtue of the deeds or deed executed in its or their favour by the lessee as provided herein above, or under any law for the time being in force.”

Thus, if there was a change as aforementioned, additional payment could be taken and even the lease agreement could be terminated at the discretion of the lessor.

Then, in addition, Clause 6.01(E) of the guidelines issued by the appellant Corporation specifically prescribes transfer levy and Clause 6.01(F) defines transfer, as follows:

“6.01(E) Transfer levy.— per square meter @ 5% to 15% of the rate of premium in fast moving areas and 2.5% to 7.5% of the current premium in slow moving areas prevailing on the date of issuance of transfer approval letter will be charged as applicable. While calculating the transfer levy the locational charges of a particular plot will not be considered and only basic premium will be taken into account.

6.01(F) Transfer.— means disposal of controlling interest in the venture by the existing allottee. In the case of reconstitution, the existing allottee retains controlling interest except in case, where interest is transferred to family members as defined in Clause 6.3(iv)(a) below or where there is change in the constitution of the allottee due to inheritance, succession or operation of law.”

Therefore, it was specifically mentioned in the above guidelines that “disposal of controlling interest in the venture by the existing allottee” will be considered as “transfer”.

Likewise, as observed by the Supreme Court (in para 23 of SCC), Clause 4(h) of the licence agreement prohibits licensee’s acts to directly or indirectly transfer, assign, sale, encumber or part with its interest under the benefit of the said agreement without previous consent in writing of the grantor, relevant portion of which reads as follows:

“4.(h) That the licensee will not directly or indirectly transfer, assign, sell, encumber or part with its interest under or the benefit of this agreement or any part thereof in any manner whatsoever without the previous consent in writing of the grantor and it shall be open to the grantor to refuse such consent or grant the same subject to such conditions as may be laid down by the grantor in that behalf.”

In view of these peculiar facts of the case, the Supreme Court held as under:

“In this case, the ownership of a huge industrial plot measuring 14,533 sq ft in the prestigious and economically affluent area of Sahibabad (Ghaziabad) has been transferred from the Goyal family to the Mehta-Lamba family for material financial gains, by adopting clever means that too without taking written consent of the lessor i.e. the appellant Corporation. There are many instances/examples in which the lessee gets allotment of huge industrial plots and thereafter sells the same for huge monetary gains. This adversely affects the aims and objectives of appellant Corporation i.e. the planned development of industrial areas in the State of Uttar Pradesh. The Hon’ble High Court ought not to have interfered in the matter looking into the public interest involved and Clause 3(p) of the lease deed.”

Therefore, this case has been decided on the peculiar facts of the case, in view of the specific clauses in the lease agreement and also in public interest to ensure that a party to whom a huge industrial plot was allotted, should not get undue advantage by way of a sham transaction by flouting the terms of the agreement.

As pointed out by the Supreme Court, it is quite common nowadays for people who are close to political party in power to get allotment of precious land or other scarce resources (may be, by creating a company) due to the political connections, and then sell the same at huge premium.

You would have noticed that (as quoted in para 21 of SCC), the arguments on behalf of the counsel for the respondent were that as the Company has got separate legal status and the Corporation has allotted the industrial plot to it by name and not in the name of its Directors, the Directors being only officials working on behalf of the Company, mere change of names of the Directors or shareholders does not in any way or manner affect the legality or status of the respondent Company. It was further contended that change of names of the Directors, shareholders duly done within the purview of the Companies Act, 1956, does not affect the legal status of the respondent Company and much less there has been any transfer of the site by the Company to any other individual person. In fact, the High Court had accepted these arguments and had decided the case in favour of the respondent company. But, the Supreme Court went into details of the lease agreement, and rightly so, and exposed sham transaction as an exception to the above general rule.

Therefore, the general rule quoted by me in my previous reply remains intact for general application. However, there may be some exceptions where the terms of the lease agreement have to be seen, or where the principle of “piercing the corporate veil” has to be applied, or where the company was essentially an agent for a wrongdoer or held property on trust, etc.

If your case also comes within one of these (or other few exceptions), then you’ll have to apply your mind to the factual matrix and decide for the proper course of action. In fact, in your case, a loss-making company was the lessee, and a profit-making company merged in it, and then the name of company was changes to that of the profit-making company; all these may become suspicious if the impugned lease was the only or a substantial consideration or motive for such reverse merger or this whole arrangement, in which scenario you may have to look into details where the devil ordinarily lies. What I mentioned in the previous reply is basically for the general application of the law.

     

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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, as per your question, we can consider the whole situation in two steps:

(1) Company A is the lessee of a property. Another company B merges with A. This basically implies that the undertaking, property or liabilities of the transferor company (i.e., B) are being transferred to the transferee company (i.e., A). This also implies that the property and liabilities of A are NOT transferred anywhere and remain with A itself (since it is a merger of B into A).

(2) After the said merger, A changes its name to B.

I hope I have understood your question correctly.

In this situation, the lease property was in the name of A and it continued to remain in the name of A itself after merger. There is no transfer of the lease property to any other company. Only issue here is that after the merger, there is a change of name of A to B (after the merger). But, I think mere change of name does not affect the right of that company in respect of a lease property.

So, I think there should be no need for assignment of lease hold rights, since no transfer of that particular lease property has taken place and it continues to be with the transferee in the merger process (both before and after the merger) and there is only a change of name of the company after the process of merger. Since a company is an independent legal person, irrespective of change in its shareholding pattern after the merger, the company A retains its independent legal status, and likewise, a subsequent change of its name should not change its independent legal status. However, it may still be advisable to take the lessor in confidence since at least there is a change of name of the lessee in the whole exercise.     

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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 Supreme Court judgment in the case of Singer India Ltd. v. Chander Mohan Chadha, (2004) 7 SCC 1 : AIR 2004 SC 4368 : (2004) 122 Comp Cas 468.

It appears that your question is covered in this 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]

All these issues are matters of fact and of detailed evidence. It is not possible to guide you on issues of facts without even seeing the records of the case. If you don’t have legal expertise, then please consult some local lawyer at your place and show him the records of the case. You’ll have to fight the case in revision on merits. If revision against charge framing does not succeed, you’ll have fight the case in trial.

If you want to get the proceedings before the CJM court during pendency of the revision before the District / Sessions judge, you’ll have to request the District / Sessions Judge for granting stay over the proceedings before the CJM.     

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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 CJM is not sending the file to the District / Sessions Court, where you have filed the revision against charge framing, then you’ll have to bring it to the notice of the District / Sessions Judge and get an appropriate order issued to the CJM.

Unless there is a stay order granted by the Sessions Court, the CJM can continue with the proceedings, including forcing the presence of the accused persons.     

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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]

Section 11(5) of the Prasar Bharti (Broadcasting Corporation of India) Act, 1990, says as under:

“(5) All officers and employees recruited after the 5th day of October, 2007 shall be officers and employees of the Corporation and shall be governed by such conditions of service as may be specified in the regulations.”

So, if you are recruited after the above date of 05.10.2007, then you’ll be an officer / employee of Prasar Bharti. Persons recruited before this date are considered as on deemed deputation to the Prasar Bharti.

So, this is a service condition and you would have joined the service consciously knowing about your status as being officer / employee of Prasar Bharti.

Being an employee of the Corporation, naturally he is in service as long as the Corporation survives. But, you should not worry. The Government is not expected to close down Prasar Bharti. Secondly, even if it shuts down (though unlikely) due to merger / sale to another corporation, the existing employees would be taken over the company with which it merges. Thirdly, whatever normal safeguards are available to an employee of a company would generally be available to you, including compensation in case of a shut down.

In any case, as far as I think, Prasar Bharti will not be closed down, even if it is a loss-making entity. It is supported fully by the Government for its exclusive publicity needs.     

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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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