[Dr. Ashok Dhamija]

It will depend on the trust level between the parties. There have been many cases on both sides. Sometimes, the relations improve after such reunion, but sometimes, they come back to the same old situation. You (and your parents) are the best judge to decide whether to agree for a compromise and whether to return to your matrimonial home.

Generally speaking, the MOU that you may be signing would be legally binding. But, it should be practical and implementable. For example, if one of the conditions in the MOU is that you have to withdraw the case under Section 498-A IPC and you actually withdraw the case from the court (by getting the case quashed from the High Court, since it is not compoundable otherwise), then it may not be possible for you to subsequently get the same case restored if your husband violates the MOU. Of course, even in such situation, if there is a fresh offence under Section 498-A IPC, you may file such fresh case.

On the other hand, suppose one condition under the MOU is payment of some financial compensation to you, then such condition may be enforced under law.

So, it all depends on the individual terms of MOU and also on the mutual trust between the parties.

As far as the question of validity of MOU for restitution of conjugal rights is concerned, even without such MOU, you can join your matrimonial home if the marriage continues to be valid and if it has not been dissolved under 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]

In order to answer your question, let me reproduce observations of the Supreme Court in a recent case, namely, Rajesh Kumar Srivastava v. State of Jharkhand, (2011) 4 SCC 447:

“…A person is placed on probation so as to enable the employer to adjudge his suitability for continuation in the service and also for confirmation in service. There are various criteria for adjudging suitability of a person to hold the post on permanent basis and by way of confirmation. At that stage and during the period of probation the action and activities of the probationer (appellant) are generally under scrutiny and on the basis of his overall performance a decision is generally taken as to whether his services should be continued and that he should be confirmed, or he should be released from service. In the present case, in the course of adjudging such suitability it was found by the respondents that the performance of the appellant was not satisfactory and therefore he was not suitable for the job.

The aforesaid decision to release him from service was taken by the respondents considering his overall performance, conduct and suitability for the job. While taking a decision in this regard neither is any notice required to be given to the appellant nor is he required to be given any opportunity of hearing. Strictly speaking, it is not a case of removal as sought to be made out by the appellant, but was a case of simple discharge from service. It is, therefore, only a termination simpliciter and not removal from service on the grounds of indiscipline or misconduct. While adjudging his performance, conduct and overall suitability, his performance record as also the report from the higher authorities were called for and they were looked into before any decision was taken as to whether the officer concerned should be continued in service or not.”

Therefore, as held by the Supreme Court, it should be clear that if the service of an employee is terminated during probation period in a simpliciter manner (without casting a stigma against him) on the basis of judging his suitability for the job, then neither is any notice required to be given to the employee nor is he required to be given any opportunity of hearing.

     

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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 you have engaged advocates to handle your case, you should have better asked this question from them as they are in a better position to explain the reasons as to what happened on a particular hearing or in the past. I am not in the know of the facts of an individual case.

I can reply to your question in a general manner. SLP means Special Leave Petition. This means that “special leave”, i.e., “special permission” of the court is required for the matter to be heard. Once such special leave is granted, such SLP is converted into a regular Civil (or Criminal) Appeal, which is then heard by the court in detail.

But, sometimes, if the SLP is a short matter or some urgent matter or if it does not involve complicated issues, the court considers it for final disposal without first converting it into a regular Appeal (though, even in such situation, in the final order that is passed, the SLP is shown to be formally converted into Appeal, but, then it becomes a composite order).

In view of this, some SLPs may be shown as for final disposal at the SLP stage itself. But, subsequently, if the court feels that the hearing may take longer or that it involves complicated issues, etc., then it may decide to go in the formal manner of first granting the special leave and then deciding the matter by hearing it in detail as a regular Appeal; in such situation, it may be shown as for admission.

Now, the question as to why your case was not heard on a particular date even though your advocates were willing to argue, can be answered properly only by your advocates, who would be aware of the reasons. I am not expected to know the reason.

     

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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 are not satisfied with the order of maintenance passed by the family court, you may file a revision application against it before the next court. The revision court has the power to set aside or modify the order of the family court granting maintenance if it is satisfied with your grounds. You’ll have to convince the court with your grounds by giving sufficient proof.

If there is an order for payment of maintenance which has not been set aside or stayed by the higher courts, and in spite of this if maintenance is not paid, then the court has the power to sentence such person to jail. Please see, Section 125(3) of the Criminal Procedure Code:

“(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’s allowance 4[for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation.—If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.”

An order for grant of maintenance is not dependent on conviction or acquittal in a case under Section 498-A IPC. Maintenance is granted if the conditions mentioned in Section 125 Cr.P.C. are satisfied.

You also have the option of filing an application under Section 127 Cr.P.C. before the same court (family court) for alteration in the maintenance order or for cancellation of order of maintenance under that section, if the conditions mentioned in that section are satisfied.

     

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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]

Maximum punishment for an offence under Section 420 IPC is 7 years.

Section 468 of the Criminal Procedure Code, which lays down limitation period for taking cognizance of various offences, lays down limitation only for those offences for which the maximum punishment is not more than 3 years.

There is no limitation period laid down in Section 468 Cr.P.C. for an offence for which the maximum punishment is 7 years.

The Limitation Act, 1963, does not lay down any limitation period for taking cognizance of offences.

In view of these reasons, there is no limitation for taking cognizance of an offence under Section 420 IPC. Due to this, there is no limitation for registration of FIR for an offence under Section 420 IPC.

     

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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 copy of the evidence and cross-examination is being given to the same witness (i.e., whose evidence has been recorded and who has been cross-examined), there is no harm in it, since it was his own examination and he should know what has been recorded on the basis of his examination and/or cross-examination. In any case, after recording of his evidence, it is read over to him and his signatures are obtained. Moreover, evidence is openly recorded in his presence, so he already knows it.

However, if it is being given to next witnesses who are similarly placed and who are yet to be examined, then it may not be as per the prevalent practices. [However, even in such situation, how would you guarantee if the Presenting Officer shows the copy of evidence to the next witnesses unofficially and explains them unofficially in advance? And, in such situation, you’ll not have any evidence to prove this fact, because it would be done in a stealthy manner.]     

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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: Double jeopardy of 3 cases under 125 CRPC, HMA 24 and DV Act on same grounds, which relates to maintenance in three different types of proceedings between the same parties. In your case, you have mentioned two proceedings for maintenance. The above reply covers your question. So, please read the above-mentioned reply.

     

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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 420 IPC is a non-bailable offence, due to which it is possible to apply for anticipatory bail under Section 438 of the Cr.P.C. So, if the other party is not willing to settle the matter, you can apply for anticipatory bail.

     

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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]

As far as an adult unmarried girl is concerned, the law does not penalise her if she is in relationship with a married man.

     

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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, on this Forum, it is not possible for us to reply to questions other than questions relating to law. Whether the wife should be taken back in her matrimonial home by the husband or not, and whether or not the husband should trust her in future, are the questions about which the decision has to be taken by the husband and/or his family members, depending on facts and circumstances of the case. We cannot reply to any such questions.

Nobody can guarantee about future about no case (or false case) being filed in future by wife or by any other person. There is no such guarantee in law. Try to keep good behaviour and good relations. But, there is no guarantee from law point of view. There have been many cases in which cases have been filed even subsequent to a settlement between wife and husband. Moreover, what is the guarantee that the husband would not misbehave again?

It all depends on the mutual trust and behaviour. No written agreements or contracts can prevent the wife from filing a future complaint if an offence is committed in future, or in fact, even if she wants to file a false case. You can only get the false case quashed or get acquittal therein. But, can you prevent any person from filing such case, if such person can fabricate a story? In any case, a complaint would generally be filed in your absence before the police or the court, and you may get a chance to represent against its filing.

It is difficult to comprehend your second question. But to the extent I could understand your question, let me state generally that a person can make a will only in respect of his share of property. So, under the existing property distribution, if a person has some share in the property then he would be in a position to make a will only in respect of his share in such property. He cannot make a will in respect of some property that does not belong to him, or in respect of the part of the property which is not a part of his share.

     

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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 procedure for conducting disciplinary proceedings for imposing major penalty is contained in Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965.

Sub-Rule (8) of this Rule lays down about the defence assistant (D.A.) who may be allowed in the proceedings to assist the Government servant (i.e., the delinquent):

“(8)(a)   The Government servant may take the assistance of any other Government servant posted in any office either at his headquarters or at the place where the inquiry is held, to present the case on his behalf, but may not engage a legal practitioner for the purpose, unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner, or, the disciplinary authority, having regard to the circumstances of the case, so permits ;

Provided that the Government servant may take the assistance of any other Government servant posted at any other station, if the inquiring authority having regard to the circumstances of the case, and for reasons to be recorded in writing, so permits.

Note :  The Government servant shall not take the assistance of any other Government servant who has three pending disciplinary cases on hand in which he has to give assistance.

(b)        The Government servant may also take the assistance of a retired Government servant to present the case on his behalf, subject to such conditions as may be specified by the President from time to time by general or special order in this behalf.”

Now, sub-rule (14) of Rule 14 lays down the procedure about the examination and cross-examination of the witnesses (also generally called the PWs, or the Prosecution Witnesses) produced on behalf of the disciplinary authority:

“(14)      On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority.  The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the Government servant.  The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter, without the leave of the inquiring authority.  The inquiring authority may also put such questions to the witnesses as it thinks fit.” [Emphasis supplied.]

As you can notice, this sub-rule clearly lays down that such witnesses (PWs) can be cross-examined by or on behalf of the Government servant. It has two parts:

• Cross-examination by the Government servant himself; OR
• Cross-examination on behalf of the Government servant.

Who can cross-examine on behalf of the Government servant. It definitely refers to the Defence Assistant only. Who else can do it on behalf of the Government servant?

Thus, the statutory rule itself clearly lays down that the Defence Assistant is permitted to cross-examine the witnesses on behalf of the delinquent Government servant.

I don’t understand how can the Inquiring Authority refuse to allow the Defence Assistant in your case from cross-examining the witnesses. There is need for any judgments, when the rule itself is so clear. What is the purpose of having the Defence Assistant if he is not to be allowed to cross-examine the witnesses? You may show this sub-rule to the I.A. in your 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 is for the court to decide (as per its discretion) as to what type of surety is needed. But, generally, in a case of Section 498-A IPC, the court would be liberal in such matter. Even cash security may also be accepted, but it is up to the court.

I have already mentioned that all accused persons are required to be present, if it is a court date, unless otherwise exempted by court, so do not repeat the question. If some accused persons do not go, then your lawyer can seek exemption, it is up to the court to consider whether there are genuine reasons for seeking exemption.

Engaging lawyer is not compulsory. An accused person can fight his own case without engaging a lawyer.     

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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 problem is that you are asking mostly hypothetical questions, relating to something that is yet to happen. [We have a series of questions from you.] Why don’t you try the suggestions that you have yourself made, i.e., whether you can do X or whether you can do Y. Whatever you want to tell the cyber police about your previous case or that you are innocent, etc., etc., you may tell them. The law does not stop you.

As we have mentioned in the Forum guidelines, it is not possible for us to help on the detailed facts of a case for the reasons mentioned in those guidelines. And, it is even more difficult to reply to hypothetical questions of facts.

Whether the cyber crime police can arrest you or send you to custody, etc., are questions, that we cannot answer without knowing as to what complaint has been given to them. Yes, if there is a written complaint given against you about hacking of some online accounts, then that may amount to cognizable offence under the IT Act, for which FIR may be registered against you. But, the problem is that you say “If a person files a complaint…”. This means that you are simply asking hypothetical questions, presuming things that may or may not happen in future.

If you have some real question, that also on some legal issues (and not on facts), then please ask here. It is a common knowledge that if a complaint of a cognizable offence is given to police, they may have power of investigation, arrest, etc., does it require a question to be asked?

     

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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 short answer to your question is that you should cooperate with police in their investigation. Non-cooperation with police investigation may lead to arrest if the police has a valid case with them. Sometimes, even if no FIR has still been registered, police may question you for inquiry to ascertain whether FIR needs to be registered; in such situation also, any non-cooperation from your side will harm your own interests.

Nobody can stop a person from filing more than one complaint with police (and, at different police stations) if the facts make out a new offence. The police is duty bound to take up such complaints if a cognizable offence is made out.

     

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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]

Generally speaking, credit card default and non-payment of bank loan would not amount to criminal charges. It is basically a civil matter for which the bank may file a civil suit to recover the amount or take action as per whatever other remedy is available to them for recovery of the amount, such as under the SARFAESI Act, if applicable in the fact situation of the case.

However, if there are some additional facts in a given case, which attract the ingredients of a criminal offence, then it is a different issue altogether.

Rest of your questions are hypothetical. If a criminal case is made out, then definitely, depending on the nature and facts of the case, FIR can be registered and arrest, custody, etc., may follow. But, in the given facts, your question is hypothetical.

     

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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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