[Pulkit Srivastava]

The maximum punishment for committing an offence under section 498A IPC is three years and fine. The offence is cognisable, non-bailable and triable by a Magistrate of First Class.

The quantum of punishment depends upon the gravity of offence and is passed after considering all mitigating and aggravating factors and the circumstances in which the said offence was committed.

[Pulkit Srivastava]

In this regard, if the error so pointed out by you is arithmetical or clerical, the same can be rectified by invoking Section 362 of the Code of Criminal Procedure, 1973. The said provision is reproduced here-in-below for your kind perusal:

“362. Court not to alter judgment.
Save as otherwise provided by this Code or by any other law for the time being in force, no Court when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.”

[Pulkit Srivastava]

The said pension income shall fall under the category “income from other sources” and hence taxable as per Section 57 of the Income Tax Act, 1961.

The said provision is reproduced here-in-below:

Section 57: Deductions- The income chargeable under the head “Income from other sources” shall be computed after making the following deductions, namely:

(i) in the case of dividends, [other than dividends referred to in section 115-O] [or interest on securities], any reasonable sum paid by way of commission or remuneration to a banker or any other person for the purpose of realising such dividend [or interest] on behalf of the assessee ;

[(ia) in the case of income of the nature referred to in sub-clause (x) of clause (24) of section 2 which is chargeable to income-tax under the head “Income from other sources”, deductions, so far as may be, in accordance with the provisions of clause (va) of sub-section (1) of section 36 ;]

(ii) in the case of income of the nature referred to in clauses (ii) and (iii) of sub-section (2) of section 56, deductions, so far as may be, in accordance with the provisions of sub-clause (ii) of clause (a) and clause (c) of section 30, section 31 and [sub-sections (1) [***] and (2)] of section 32 and subject to the provisions of [section 38] ;

[(iia) in the case of income in the nature of family pension, a deduction of a sum equal to thirty-three and one-third per cent of such income or [fifteen] thousand rupees, whichever is less.

Explanation.- For the purposes of this clause, “family pension” means a regular monthly amount payable by the employer to a person belonging to the family of an employee in the event of his death ;]

(iii) any other expenditure (not being in the nature of capital expenditure) laid out or expended wholly and exclusively for the purpose of making or earning such income;

[(iv) in the case of income of the nature referred to in clause (viii) of sub-section (2) of section 56, a deduction of a sum equal to fifty per cent of such income and no deduction shall be allowed under any other clause of this section.

Although, you can claim a deduction of one-third per cent of such pension income or Rs.15,000, whichever is lower.

[Pulkit Srivastava]

Although from the question it is not clear as to what does the term “divorce settled” signifies. However, presuming that the Divorce is affirmed by members of local panchayat, without any formal decree being passed by the Court of Competent jurisdiction, the same shall have no effect in the eyes of law. the Hon’ble Supreme Court in the matter of “Mahender Nath Yadav Vs.Sheela Devi”, (2010) 9 SCC 484 has categorically held that “dissolution of marriage through Panchayat as per custom prevailing in that area and in that community permitted cannot be a ground for granting divorce under Section 13 of the Act, 1955.”

[Pulkit Srivastava]

Diary of proceedings in investigation maintained by the police authority and known as Case Diary is governed by Section 172 of the Code of Criminal Procedure, 1973 which states as follows:

Section 172-Diary of proceeding in investigation

1. Every police officer making an investigation under this Chapter shall day by day enter his proceeding in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by Mm, and a statement of the circumstances ascertained through his investigation.
1A. The statements of witnesses recorded during the course of investigation under section 161 shall be inserted in the case diary.
1B. The diary referred to in sub-section (1) shall be a volume and duly paginated.

2. Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial.

3. Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court; but, if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of section 161 or section 145, as the case may be, of the Indian Evidence Act, 1872 (1 of 1872), shall apply.

Although, the CIC in its various decisions has exempted the disclosure of Case Diary under Right to Information Act, 2005, however, the same depends on the facts and circumstances of each case and therefore, each case has to be examined independently, on the basis of facts specific to that case.

Infact, the Hon’ble Delhi High Court in the matter of “Deputy Commissioner of Police vs. D.K. Sharma”, [W.P.(C) 12428/2009 & CM APPL 12874/2009] has held that:
“This Court is inclined to concur with the view expressed by the CIC that in order to deny the information under the RTI Act the authority concerned would have to show a justification with reference to one of the specific clauses under Section 8 (1) of the RTI Act. In the instant case, the Petitioner has been unable to discharge that burden. The mere fact that a criminal case is pending may not by itself be sufficient unless there is a specific power to deny disclosure of the information concerning such case. In the present case, the criminal trial has concluded. Also, the investigation being affected on account of the disclosure information sought by the Respondent pertains to his own case. No prejudice can be caused to the Petitioner if the D.D. entry concerning his arrest, the information gathered during the course of the investigation, and the copies of the case diary are furnished to the Respondent. The right of an applicant to seek such information pertaining to his own criminal case, after the conclusion of the trial, by taking recourse of the RTI Act, cannot be said to be barred by any provision of the CrPC. It is required to be noticed that Section 22 of the RTI Act states that the RTI Act would prevail notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 and any other law for the time being in force.”

Since, in the question, you have not disclosed as to in what capacity you are seeking the copy of the Case Diary and also the stage of trial, the reply is being given based on limited facts and further dwelling may be required based on exact facts of the case.

[Pulkit Srivastava]

As per the facts narrated, you may proceed with filing of a Protest Petition before the concerned Magistrate, agitating your grievance of dropping of the specific charges as stated in your query and pray for further investigation / reinvestigation.

The term ‘further investigation’ has been explained by the Hon’ble Supreme Court in the case of Vinay Tyagi Vs. Irshad Ali @ Deepak & Ors., (2013) 5 SCC 762, wherein the Apex Court has held that:

“15. ‘Further investigation’ is where the Investigating Officer obtains further oral or documentary evidence after the final report has been filed before the Court in terms of Section 173. This power is vested with the Executive. It is the continuation of a previous investigation and, therefore, is understood and described as a ‘further investigation’. Scope of such investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the Court even if they are discovered at a subsequent stage to the primary investigation. It is commonly described as ‘supplementary report.
‘Supplementary report’ would be the correct expression as the subsequent investigation is meant and intended to supplement the primary investigation conducted by the empowered police officer. Another significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency. This is a kind of continuation of the previous investigation. The basis is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto. In other words, it has to be understood in complete contradistinction to a ‘reinvestigation’, ‘fresh’ or ‘de novo’ investigation.
xxxx xxxx xxxx
35. The power to order/direct ‘reinvestigation’ or ‘de novo’ investigation falls in the domain of higher courts, that too in exceptional cases. If one examines the provisions of the Code, there is no specific provision for cancellation of the reports, except that the investigating agency can file a closure report (where according to the investigating agency, no offence is made out). Even such a report is subject to acceptance by the learned Magistrate who, in his wisdom, may or may not accept such a report. For valid reasons, the Court may, by declining to accept such a report, direct ‘further investigation’, or even on the basis of the record of the case and the documents annexed thereto, summon the accused.”

The Hon’ble Supreme Court in various cases, has recognized the power of a Magistrate to direct further investigation under Section 173(8) of Cr.P.C. Recently, the Hon’ble Delhi High Court in the matter being titled as “Surender Kumar Sharma Vs. State & Anr.”, [Crl. M. C. No. 5033 of 2014], categorically dealt with a question as to “whether the Magistrate, after accepting the closure report filed by the police, can order further investigation in the case”. The Hon’ble High Court while answering in the affirmative has held as follows:

“30. It is imperative to note that the Code has compartmentalized the powers to be exercised at different stages of a case, namely, at the time of taking cognizance, after cognizance is taken, after appearance of the accused, and after commencement of trial on charge being framed. It is settled law that the power of ‘further investigation’ undoubtedly exists in the first stage, may exist at the second and Section 311 Cr.P.C. permits to examine any witness during the course of trial. ….”

[Pulkit Srivastava]

Based on the facts, although initiation of criminal complaint under section 138 of Negotiable Instruments Act, 1881 towards dishonour of cheque may get hit by the limitation period as provided in the said Act, however, you may proceed with the filing of a summary suit under Order 37 of the Code of Civil Procedure, 1908 before the concerned Civil Court seeking recovery of the acknowledged debt i.e. the cheque amount by placing on record the copy of the cheque and the agreement.

[Pulkit Srivastava]

Voluntary gifts usually given to woman at the time of marriage are considered to be Stridhan.
The legislature has duly recognised the concept of “Stridhan” and has accordingly engrafted Section 14 of the Hindu Succession Act, 1956 which states that property of a female Hindu to be her absolute property.
Your query suggests that certain jewellery items were gifted to your wife at the time of marriage and hence, they would qualify to be considered as Stridhan and she can claim the same
Now, since your mother does not want to return them, in such an eventuality, your wife, in order to take back her Stridhan, may resort to following remedies:
(i) Move an appropriate Criminal Complaint under Section 406 of the Indian Penal Code, 1860 against your mother for committing the offence of Criminal breach of Trust before the concerned Police Station.
(ii) File a Complaint under Section 12, 18 and 19 of the Protection of Women from Domestic Violence Act, 2005 before the Court of Magistrate against your mother.
Under Section 19(8) of the Protection of Women from Domestic Violence Act, 2005, the Magistrate has the power to 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.
Under Section 18(e) of the Protection of Women from Domestic Violence Act, 2005, the Magistrate has the power to pass a protection order in favour of the aggrieved person and prohibit the respondent from “alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate”.

[Pulkit Srivastava]

Although, in order to answer your query, detailed facts and circumstances pertaining to the manner and mode of issuance of cheque by you to the other party would be required, however, based on the facts as narrated by you, it would be important to first analyse Section 87 of the Negotiable Instruments Act, 1881 which states as follows:

“Section 87 – Effect of material alteration.
Any material alteration of a negotiable instrument renders the same void as against anyone who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties;
Alteration by indorsee.- And any such alteration, if made by an indorsee, discharges his indorser from all liability to him in respect of the consideration thereof.
The provisions of this section are subject to those of Sections 20, 49, 86 and 125.”
Accordingly, any material alteration to a cheque without the consent of the drawer unless it is made to carry out the common intention of the original parties thereto renders the cheque void.

However, Section 87 has been made subject to Sections 20, 49, 86 and 125 of the Negotiable Instruments Act, 1881. Section 20 of the Negotiable Instruments Act, 1881 is reproduced here-in-below:

“20. Inchoate stamped instruments-
Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in [India], and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount: provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder.”

By reason of the aforementioned provision, only a right has been created in the holder of the cheque subject to the conditions mentioned therein. Thereby, only a prima facie authority is granted, inter alia, to complete an incomplete negotiable instrument. The provision has a rider, namely, no person other than a holder in due course shall recover the amount from the person delivering the instrument anything in excess of the amount intended by him to paid therein.

Since, as per your factual background, you admit that the signature on the cheque is yours, therefore, it would be difficult for you to dispute the contents of the cheque in view of the provision of Section 20 of the Act.

You have mentioned in your question that a case has already been filed. However, it is not fully clear whether this case is a civil suit for recovery of the amount or a case under Section 138 of the Negotiable Instruments Act.

If the case already filed is a civil suit and Section 138 case is yet to be filed, in that case if the Legal Notice under Section 138 of Negotiable Instruments Act, 1881 is still not served upon you, then, once the Legal Notice is served, you can give a detailed reply to the same denying your liability and narrating the entire factual gamut. This will form a basis for your defence, in case, the other party initiates a complaint under Section 138 of Negotiable Instruments Act, 1881 before the Court of law.

As regards the fact relating to the said cheque being a security cheque, if you can prove that at relevant time (i.e. date mentioned in the cheque), you owed no legal liability to the other party, or any documents suggesting that the cheques were given towards security of a particular transaction, the same shall strengthen your case.

For more details on the legal position on the issue of a cheque which was given as a security, please read the following article: Dishonour of cheque given as security – whether offence under Section 138 N.I. Act made out?

[Pulkit Srivastava]

In order to answer the query, it is important to peruse Section 13-B (2) of the Hindu Marriage Act, 1955 dealing with the procedure relating to divorce by mutual consent, which stipulates as follows:

“13B. Divorce By Mutual Consent.

(1) ——–xx——- ——–xx——— ——xx——-

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the mean time, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.”

The emphasis couched in the afore-said provision clearly suggests that if the second motion is not filed within a period of 18 months from the date of filing of the first motion, the court is not bound to pass a decree of divorce by mutual consent.

Since, the most important requirement of grant of divorce by mutual consent is free consent of both the parties. Therefore, the husband and wife must be in complete agreement for dissolution of marriage and unless the court is satisfied, it cannot grant decree of divorce by mutual consent.

In this regard, the Hon’ble Supreme Court in the matter being titled as Hitesh Bhatnagar Vs. Deepa Bhatnagar, AIR 2011 SC 1637, has quoted in approval another judgment passed by it in the matter of Sureshta Devi v. Om Prakash, (1991) 2 SCC 25, which had held as follows:

“13. From the analysis of the section, it will be apparent that the filing of the petition with mutual consent does not authorise the court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not be a party to the joint motion under Sub-section (2). There is nothing in the section which prevents such course. The section does not provide that if there is a change of mind it should not be by one party alone, but by both. The High Courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree. This approach appears to be untenable. At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub-section (2) of Section 13B is clear on this point. It provides that on the motion of both the parties…. if the petition is not withdrawn in the meantime, the court shall…pass a decree of divorce…. What is significant in this provision is that there should also be mutual consent when they move the court with a request to pass a decree of divorce. Secondly, the court shall be satisfied about the bona fides and the consent of the parties. If there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make a decree for divorce. If the view is otherwise, the court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other. Such a decree cannot be regarded as decree by mutual consent.”

Since in the present circumstances, the husband has refused to record the final statement (i.e. the statement on the second motion), it clearly indicates that the husband is not willing to give his consent for divorce by mutual consent. In such an eventuality, the Court has no power to pass a decree for mutual divorce.

In light of the afore-said facts and circumstances, the best recourse available to you is first to try, if possible, to convince your husband to agree for the divorce by mutual consent and agree for the statement on second motion (because the court has given you another 15 days time). If that is not possible then, the only option left would be to withdraw the Petition and file a Petition under different grounds as enumerated under Section 13(1) of the Hindu Marriage Act, 1955, if any of those grounds are applicable in your case.

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