[Dr. Ashok Dhamija]

In so far as the Central Government is concerned, in a recent reply [Family pension on death of both husband and wife], I have already replied that under Rule 54 of the Central Civil Services (Pension) Rules, 1972, children are entitled to get two family pensions (i.e., in respect of their both parents, who were Central Govt servants and died) subject to certain limits and also subject to other normal conditions. Please read the above reply for more details.

As for the State Government, you have to check its rules and other guidelines. In fact, you have not even named the State Government. Check its Pension Rules or other related rules / guidelines. You should not depend on what a clerk is saying. He may not know the full rules, or he may be expecting some illegal gratification for helping you. Go through the relevant rules and if needed, file RTI application to get copies of the relevant guidelines. Since you would be claiming only one family pension from the State Government (the other one coming from the Central Government), most likely there should not be any problem in this regard; however, it has to be confirmed from the rules concerned.

     

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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]

Yes, under the provisions of clauses (d) and (e) of Section 19(1) of the Protection of Women from Domestic Violence Act, 2005, the Magistrate has the power of restraining the respondent from alienating or disposing off the shared household or encumbering the same, or of restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate. Section 19 is as under:

“19. Residence orders.—(1) While disposing of an application under sub-section (1) of Section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order—

(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;

(b) directing the respondent to remove himself from the shared household;

(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;

(d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;

(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or

(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require :

Provided that no order under clause (b) shall be passed against any person who is a woman.

(2) The Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person.

(3) The Magistrate may require form the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence.

(4) An order under sub-section (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt with accordingly.

(5) While passing an order under sub-section (1), sub-section (2) or sub-section (3), the court may also pass an order directing the officer in charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order.

(6) While making an order under sub-section (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties.

(7) The Magistrate may direct the officer-in-charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order.

(8) The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to.”

Further, under Section 23 of the said Act, the Magistrate has the power to pass an interim order during the pendency of a complaint under the said Act, including an interim order in the nature of Section 19 as mentioned above. Section 23 is reproduced below:

“23. Power to grant interim and ex parte orders.—(1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper.

(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under Section 18, Section 19, Section 20, Section 21 or, as the case may be, Section 22 against the respondent.”

 

     

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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 Section 127(1) of the Criminal Procedure Code provides for alteration in the maintenance allowance being paid under Section 125 Cr.P.C. if there is a change in circumstances:

“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.”

Accordingly, in view of the change of circumstances mentioned by you, your friend can file an application under Section 127(1) of the Cr.P.C. for appropriate modification in the order of maintenance. If needed, he can also approach the higher courts against the maintenance order. But, ultimately, his earning will be considered and it is not clear from your question whether his earning capacity has also drastically reduced due to such disability as is mentioned by you.

But, till the maintenance order is not modified by the same court or by higher court, he is legally bound to pay the maintenance as per the existing order. So, he should file an application for alteration of the maintenance order by giving convincing reasons for seeking such alteration.

     

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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 30 of the Arms Act, 1959, is reproduced below:

“30. Punishment for contravention of licence or rule.—Whoever contravenes any condition of a licence or any provision of this Act or any rule made thereunder, for which no punishment is provided elsewhere in this Act, shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both.”

Specific punishment has been prescribed for various violations of the Arms Act. Section 30 of the Arms Act is the general provision which makes it punishable contravention of any provision of the Act, of the rules or of any conditions of a licence, for which no specific punishment is prescribed.

     

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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]

Under Article 123 in the Schedule to the Limitation Act, 1963, the limitation period to set aside a decree passed ex parte or to rehear an appeal decreed or heard ex parte, is only 30 days from the date of the decree or where the summons or notice was not duly served from the date when the applicant had knowledge of the decree. Of course, for sufficient cause being shown, delay may be condoned by the court concerned. In your question, you have mentioned that summons were in fact served to your husband before passing the ex parte decree of divorce.

Secondly, Section 15 of the Hindu Marriage Act, 1955, which deals with the issue when divorce persons may marry again, lays down that: “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.”

Section 28(4) of Hindu Marriage Act lays down that an appeal has to be filed within 90 days of the date of the decree.

In your question, you have not provided full details of your second marriage and the time period within which your husband has filed an application to set aside the ex parte decree of divorce.

If he has filed the application (for setting aside the ex parte decree of divorce) beyond the above limitation period and if he does not have sufficient cause to explain the delay, his application may become time-barred and may not be entertained.

At the same, you should not have married again (i.e., your second marriage) within 90 days of the period from the date of decree of divorce, etc.

So, depending on these detailed facts, which you have not disclosed, the fate of the ex parte decree of divorce and your second marriage will get decided.     

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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]

Firstly, please keep in mind that under Section 125 of the Criminal Procedure Code, wife can claim maintenance if she is unable to maintain herself. If your wife is earning in 6 figures (which means Rs. 1 lakh or above per month), then she cannot say that she is not able to maintain herself. So, if you have proof of her monthly salary which is in six figures, then you can oppose her maintenance application on this ground.

Secondly, under Section 125 Cr.P.C., a minor child can claim maintenance if he or she is unable to maintain himself or herself, as the case may be. In your case, you have said that the daughter is 18 years plus, which means that she is not a minor now, so legally speaking she cannot seek maintenance now. Then, there is another provision in Section 125 that even a child who has attained majority, i.e., above 18 years of age (not being a married daughter), can also claim maintenance if such child is, by reason of any physical or mental abnormality or injury unable to maintain itself. If your daughter has no such physical or mental abnormality or injury due to which she cannot maintain herself, then she cannot claim maintenance from you legally speaking. That said, as far as your daughter is concerned, she has just completed her 12^th standard examination and she may be in need to study further instead of getting employed somewhere to maintain herself. Therefore, even if under law your daughter is not able to claim maintenance from you, it may be your moral duty to support her by paying her monthly allowance for study or for other requirements. This may be so even if she may be staying with her mother, i.e., with your wife. This is only a moral duty, though, as father of a daughter.

 

     

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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’ll have to find information about such other person by hard way. If someone told you that the same girl has filed a similar false rape accusation against another person, then that someone would be able to tell you the further details – which police station, which year / month, which court, and which person etc. Or, you may be knowing where this lady lives and where all she can file a complaint. Now that FIRs are uploaded on police websites, you can search the website of the concerned district, or make enquiries from the police station concerned or the court concerned. You cannot file RTI unless you know where to file the RTI.

     

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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]

Though your question appears to be an academic question since I don’t know whether you are personally affected by the Calcutta High Court order mentioned in your question, let me try to answer it as I understand it.

This is with reference to the Calcutta High Court order dated 21.09.2017 in WP 24135 (W) of 2017 (Subhankar Chakraborty & Anr. Vs. The State of West Bengal & Ors.) and two other writ petitions.

No doubt, maintenance of law and order is within the exclusive domain of the executive. In fact, in its order, the High Court has specifically acknowledged it. However, the courts have been given certain duties and responsibilities under the Constitution, of upholding the rights of the citizens. The order of the Calcutta High Court in this case clearly mentions that:

“A uniform argument is advanced on behalf of the petitioners of three respective writ-petitions that the aforesaid orders have no reasonable basis and issued on mere caprice, surmise and conjecture and violative of the rights guaranteed under Article 25 of the Constitution of India. According to the petitioners, every citizen of the country enjoys the right of freedom to prefess and propagate religions subject to public order and such public order should have been based on rational and reasonable foundation and not at the whims of the executive authority.”

The High Court highlighted the importance of both Durga Puja and Muharram for the respective communities:

“Durga Puja is celebrated throughout the State and epitomizes the victory of the good against the evil. It is one of the major festivals of the Hindu community and the performance of each rituals which is inherent and inbuilt is followed in a time schedule as provided in various almanac or panjikas. One of the important customs is Devi Baran followed by Sindoor Khela which can only be performed after sunset and are sine qua non to customary rites and ceremonies before the immersion of the Idol. Large sections of the Hindu community are performing the Puja privately or through community, which not only attached to their sentiments and religious belief but the sense of security as well that it would bring all good in their life. Equally, the Muslim communities are sensitively attached to mourning on the eve of Muharram. Both the sections of the society can profess and propagate their religion with harmony and unified manner. The founding father of the Constitution never dreamt of any artificial or real distinction amongst each religions in the country and incorporated Articles 25 and 26 in Part-III of the Constitution.”

The High Court emphasized that the State has to treat each religion equally and there should not be any discrimination in performance of religious rites, rituals, etc., by observing as under:

“It is axiomatic to record that the State has no religion, which is one of the fundamental facets underlying secularism. There should not be any order of precedence in performance of the religious rites, rituals, ceremonies and mourning amongst the religious communities. There should be an equality in every citizen’s right with corresponding obligation of very State to protect the same.”

The Court further held that:

“We are unable to comprehend from the submissions advanced at the Bar, more particularly, from the State any reasonable basis for putting restriction on immersion of Durga Idol till 06.00 p.m. on September 30, 2017 and absolute prohibition on October 1, 2017. The maintenance of law and order is within the domain of the State and the decision to prevent and protect any untoward incident should be founded on the cogent and convincing material and not merely on one’s perception.”

These are only some of the observations made by the High Court in its judgment. You may read the full judgment which is available on the website of the High Court. Therefore, it is quite clear from the above judgment that the High Court has passed its order to enforce the fundamental rights of the Hindus on whom absolute prohibition was imposed for performance of their religious rites discriminating them vis-à-vis the Muslims.

I am of the considered opinion that the High Court was perfectly right in passing such order to quash and set aside a discriminatory and arbitrary order of the West Bengal Government led by Mamata Banerjee.

Please also consider it from the opposite angle, i.e., if a State Government (say, of Uttar Pradesh) had imposed absolute restrictions on Muslims on performance of their religious rites while permitting Hindus to perform their religious rites on the same day, whether the High Court could have interfered in such restrictions? Whether law and order would have been the exclusive domain of the state in that scenario also?

Our Constitution gives equal rights to all religions and let us keep up the basic principles of the Constitution.

     

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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 contact some local lawyer at Hyderabad who knows about the detailed procedure for filing writ petition in the High Court of Judicature at Hyderabad. You can try to search the format of the writ petition for Hyderabad High Court on the Internet, or on the website of the high court, or contact the registry of 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]

You have yourself mentioned that your advocate told the court that the matter has been settled in the family court and she is supposed to withdraw the case, but the Judge did not listen to the same and passed the order. So, it is not that the Judge was not aware of the settlement since you have yourself informed the Judge in DV case about such settlement. If the case before the DV court is still pending and not withdrawn (since the opposite party refused to withdraw it), then the Judge has the power to pass an order as is required in the facts of the case.

The fact that interim maintenance has already been awarded in the DV case may be brought to the knowledge of the Family Court under Section 125 Cr.P.C. proceedings, and such court will keep it in consideration while passing maintenance order, if any.

Under law, different courts have been given powers with regard to maintenance orders. So, sometimes, there is overlapping. You may bring the maintenance order passed by one court to the knowledge of the other, if similar proceedings are pending in such other court; and, such other court is supposed to keep such earlier order of maintenance passed by the first court in consideration while passing its own order.

While I cannot comment on the facts of your case regarding settlement, etc., it is not uncommon for parties to go back on settlements for various reasons. Sometimes, the reason may be due to the default on the part of the other side also. But, once a party goes back on settlement, and even after that the court is entertaining such party in the peculiar facts and circumstances of the case, I don’t think you can call it criminal act, etc. Of course, if the party going back on the settlement has taken some undue financial benefit under the settlement, you can bring it to the knowledge of the court and take whatever other legal remedies are available against such party.

     

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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]

Unlike other types of orders passed by courts which cannot generally be reopened or reviewed by the same court, there are specific provisions in the Criminal Procedure Code which allow for modification / alteration of the order of maintenance under Section 125 Cr.P.C. by the same court in certain circumstances. For example, see Section 127 of Cr.P.C. and Section 125(4) of Cr.P.C.

Secondly, even after a maintenance application has been disposed of earlier, it may be permissible to file a fresh maintenance application if the necessary conditions requiring passing of the maintenance order are satisfied. This is on the basis of a fresh cause of action.

So, you may examine these legal provisions in the light of the detailed facts of your case. We cannot comment on the facts of a case. If needed, you may consult some local lawyer. If you find that your case does not fit in these legal provisions, then challenge the order of the Magistrate before the higher courts.

     

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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 true that the Supreme Court has made it mandatory for the police to upload all FIRs on its website within 24 hours, barring some sensitive cases, in the directions issued in the case of Youth Bar Assn. of India v. Union of India, (2016) 9 SCC 473 : AIR 2016 SC 4136, the main extracts of which are as under:

“The copies of the FIRs, unless the offence is sensitive in nature, like sexual offences, offences pertaining to insurgency, terrorism and of that category, offences under the Pocso Act and such other offences, should be uploaded on the police website, and if there is no such website, on the official website of the State Government, within twenty-four hours of the registration of the first information report so that the accused or any person connected with the same can download the FIR and file appropriate application before the court as per law for redressal of his grievances. It may be clarified here that in case there is connectivity problems due to geographical location or there is some other unavoidable difficulty, the time can be extended up to forty-eight hours. The said 48 hours can be extended maximum up to 72 hours and it is only relatable to connectivity problems due to geographical location.”

“The directions for uploading of FIR in the website of all the States shall be given effect from 15-11-2016.”

Now, if some state police forces are not complying with these directions, then it is contempt of the court. It may first be desirable to request the concerned police authorities to comply with the above orders, in case they are not aware about them, and thereafter a contempt petition may be filed against them to ensure their compliance.

     

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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]

Even though privacy has been declared to be a fundamental right by the Supreme Court in a recent case, we still do not have a Privacy Act which makes violation of privacy an offence.

It may also be mentioned that most of the fundamental rights are available only against the State (i.e., the Government, legislature, etc.) and they are generally not available against private individuals. For taking care of violation of privacy by an individual, you may need a Privacy Act, which does not exist in India till date.

No doubt when such unsolicited phone calls are made by marketing companies for their own commercial purposes, there is a violation of the privacy of the person who is called by them, who may be busy in his own work or may be sleeping or taking rest.

The problem is that we do not have perfect laws to punish such people. We do have “Do Not Disturb” Guidelines framed by the Telecom Regulatory Authority of India (TRAI), but these are mostly ineffective, especially when the calls or messages are routed through Internet. You may register your mobile phone on DND and file complaint as and when you receive unsolicited calls. My experience shows that sometimes, the calling numbers are disconnected after enquiries, though on some occasions no action is taken by justifying the call made or by citing insufficient information.

If you have evidence to show sale of databases of phone numbers by stealing data from a bank or some other company to marketers, then you may report the same to the concerned police agencies since it may amount to an offence under the Information Technology Act.

     

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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 police said that your arrest is not required and you were not arrested by police during investigation, after filing of charge sheet even if your formal arrest is shown by court you may be granted bail. File a bail application when you are produced in court.

The investigating officer forms his own subjective opinion on the evidence with which you may or may not agree. If you feel that the accused persons have been wrongly charge sheeted even though there is no evidence, you can file a discharge application in the trial court, or during trial you can show that there is no evidence.

Third question is already answered in the first para above.

Whether different sureties are required or not, may depend on the bail order (including amount of surety / bail bond) passed by court and also the solvency of the surety concerned. Wait for the court order and do as per directions of the court which passes bail order.

It is not possible to tell you without seeing the evidence as to whether you should go for discharge application before trial court (going to high court for quashing of charge sheet may not be preferable). Consult some local lawyer at your place about the evidence on record.

Yes, all accused persons (who have been charge sheeted) will have to remain present on all the dates when summoned, subject to exemption, if any, granted to any accused.

Read, for your last question: What are different stages in procedure followed in criminal cases?

     

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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 the Reserve Bank of India (RBI) has clarified that that currency notes with scribbles are legal tender. “There is no RBI instruction to anyone not to accept any currency note with scribbling on it even though we do, from time to time, keep appealing to people not to write/staple/fold currency notes as these things lessen the life of currency notes”.

Therefore, nobody can refuse to accept any currency notes on which something is written, since these notes continue to be legally valid.

Further, mutilated or soiled notes can be exchanged free of charge from banks. In this regard, refer to the RBI Circular of July 14, 2016. As per this Circular, where the number of soiled notes presented by a person is up to 20 pieces with a maximum value of Rs.5000 per day, banks should exchange them over the counter, free of charge. Where the number of soiled notes presented by a person exceeds 20 pieces or Rs.5000 in value per day, banks may accept them, against receipt, for value to be credited later. Banks may levy service charges as permitted by RBI. In case tendered value of soiled notes is above Rs.50000, banks are expected to take the usual precautions. In the above circular, instructions have been issued for exchange of mutilated and imperfect currency notes also.

Violation of such guidelines by RBI may attract penalty.

     

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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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