Lalit Kaushik & Associates

16/04/2024

Limitation Act, Article 65 Kerala Land Conservancy Act, Section 11 Adverse possession Claim for - Plaintiffs sought to declare themselves as owners, by lapse of time, of land belonging to Government - Although unauthorised possession was undisputed, only plea raised was that the plaintiffs planted specific rubber trees, which were utilised for rubber tapping - Testimonies of witnesses inconsistent regarding age of rubber trees - Ejectment proceedings of plaintiffs were initiated before Tehsildar but he neither pleaded nor claimed title by way of adverse possession - Plaintiffs did not adduce any proof of possession except inconsistent testimonies of witnesses - Therefore, order of High Court that adverse possession was established was erroneous and set aside. [Paras 24 to 35]*_

_*GOVERNMENT vs JOSEPH CA 3142/10 09/08/23 [ OKA JJ ] [ SUPREME COURT ]

सीमा अधिनियम, अनुच्छेद 65 केरल भूमि संरक्षण अधिनियम, धारा 11 प्रतिकूल कब्जे का दावा - वादी ने समय बीतने के साथ खुद को सरकार की भूमि का मालिक घोषित करने की मांग की - यद्यपि अनधिकृत कब्जा निर्विवाद था, केवल यह दलील दी गई कि वादी ने विशिष्ट रबर के पेड़ लगाए थे, जिनका उपयोग रबर टैपिंग के लिए किया गया था - रबर के पेड़ों की आयु के बारे में गवाहों की गवाही असंगत थी - वादी की बेदखली की कार्यवाही तहसीलदार के समक्ष शुरू की गई थी, लेकिन उन्होंने न तो प्रतिकूल कब्जे के माध्यम से दलील दी और न ही शीर्षक का दावा किया - वादी ने गवाहों की असंगत गवाही को छोड़कर कब्जे का कोई सबूत नहीं दिया - इसलिए, उच्च न्यायालय का आदेश कि प्रतिकूल कब्जा स्थापित किया गया था, गलत था और इसे रद्द कर दिया गया। [पैरा 24 से 35]*_

_*सरकार बनाम जोसेफ सीए 3142/10 09/08/23 [ ओकेए जेजे ] [ सुप्रीम कोर्ट ]*_

It is a legal consultant associate which provide a legal help to all.

11/01/2021

DV ACT Sections 17 and 22 Domestic violence complaint against brother in law by divorce widow wife Monetary relief No evidence to hold that complainant was residing in a "shared household" with brother in laws or that brother in laws committed any act of domestic violence so as to hold them responsible to pay maintenance or any amount towards rentals of residential accommodation to petitioner divorced widow wife Therefore respondents who are brothers of petitioner's husband cannot be held liable in any manner to compensate petitioner divorced/widow wife Hence, petitioner divorced widow rightly declined maintenance, rental allowance and medical expense. [Para 39]

MANJU SHARMA VS VIPIN LPA CRL.REV.P.-103/15 01/07/19

[ DELHI HIGH COURT ]

25/04/2020

_*[ C ]:- Section.173(8) CRPC Further investigation Cannot be directed by Magistrate suo moto or on an application filed by complainant or accused, after cognizance has been taken on the basis of police report Such course is open only on the request of Investigating Agency and that too in circumstances warranting further investigation on the detection of material evidence only to secure fair investigation and trial. (Para 6)*_

_*Mishri Prasad v/s State of UP CRL-R 2715/17 [ RAJUL JJ ]*_

[ ALLAHABAD HIGH COURT ]

25/04/2020

_*• 0rder .9 Rule .13 CPC Exparte Decree Setting Aside of Effect of this would be that the ex parte decree, would cease to exist and become non est After the ex parte decree is set aside, it is no decree in the eyes of law The decree passed by the trial court on merits should be treated as the decree of the first court. [ Para 19 ]*_

_*Vijay Singh v/s Shanti Devi CA 2062/09 08/09/17 [ DEEPAK GUPTA JJ ]*_

[ SUPREME COURT ]

02/05/2019

_*SC Civil*_

_*Party Name:- D Srinivas v Sbi Life Insurance*_
_*Case No:- CA 2216/18*_
_*Date:- 16/02/18*_

_*NV Raman JJ*_

_*HEADNOTE:- Consumer Protection Act Section.12 Insurance-Life Insurance Non conducting of Medical examination As per clause in proposal form condition precedent for acceptance of the premium was medical examination It would be logical for an underwriter to accept the premium based on the medical examination and not otherwise Therefore by the very fact that they accepted the premium waived the condition precedent of medical examination Insurer held liable to pay ( Para 14 )*_

12/06/2018

_*THE SUPREME COURT OF INDIA*_

_*Equivalent Citations : 2017 AIOL 3902 : 2017 AIR(SC) 5092 : 2017 AIR(SCW) 5092 : 2017 (5) JKJ 30 : 2017 (10) JT 22 : 2017 (4) RCR(Civil) 613 : 2017 (12) Scale 345 : 2017 (9) SCC 632*_

_*Before: S.A. Bobde, L. Nageswara Rao ( Bench Strenth 2 )*_

_*Sukhendu Das*_

_*versus*_

_*Rita Mukherjee*_

_*Case No.: Civil Appeal No. 7186 of 2016*_

_*Date of Decision: 09-Oct-2017*_

_*HEADNOTE*_

_*Hindu Marriage Act, 1955 -- Section 13(1)(i)(a) -- Special Marriage Act, 1954 -- Section 27 -- Constitution of India, 1950 -- Article 142 -- Matrimonial Discord -- Appellant and the Respondent and they were living separately -- Mental cruelty -- Refusal to participate in proceeding for divorce and forcing the appellant to stay in a dead marriage would itself constitute mental cruelty -- The Appellant and the Respondent have been living separately for more than 17 years and it will not be possible for the parties to live together and there is no purpose in compelling the parties to live together in matrimony -- Appeal Allowed*_

_*STATUTES REFERRED*_

_*1. Constitution of India, Art.142*_

_*2. Hindu Marriage Act, S.13(1)(i)(a)*_

_*3. Special Marriage Act, S.27*_

_*CASES REFERRED*_

_*1. Manish Goel v. Rohini Goel, (2010) 4 SCC 393 [Para 8]*_

_*2. Rishikesh Sharma v. Saroj Sharma, (2007) 2 SCC 263 [Para 8]*_

_*3. Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 [Para 7]*_

_*JUDGMENT/ORDER*_

_*L. Nageswara Rao, J*_

_*1. The Appellant and the Respondent are District Judges working in the State of West Bengal. Their marriage was performed on 19th June, 1992 as per the Special Marriage Act, 1954 (hereinafter referred to as “the Act”). A girl child was born out of the wedlock on 14th April, 1993. There was matrimonial discord between the Appellant and the Respondent and they were living separately since the year 2000. The Appellant filed an application under Section 27 of the Act seeking a divorce*_.

_*2. The Appellant alleged that the differences arose because of the improper behavior of the Respondent in not showing due respect to his ailing father. It was further alleged that the Respondent deserted him and refused to give the custody of the child to him. The Appellant further averred in the application that the Respondent did not visit him even when he was seriously ill. The Respondent is accused of using intemperate language and threatening the Appellant with filing of criminal cases if he perused the petition for divorce which he proposed in the year 2005*_

_*3. The Respondent filed a written statement denying the allegations made in the application filed by the applicant for divorce. She refuted all the averments in the application and sought for dismissal of the application for divorce. The Respondent did not participate in the proceedings before the trial court after filing the written statement. The Chief Judge, City Civil Court, Calcutta by the judgment dated 6th August, 2009 dismissed the application for divorce. The Appeal filed against the said judgment was dismissed by the High Court of Calcutta on 4th April, 2012. The Respondent did not seek to appear before the High Court also. The correctness of the judgment of the High Court is assailed in the above Appeal*_

_*4. After referring to the pleadings in the case, the trial court found that the Appellant failed to prove cruelty on the part of the Respondent. The evidence adduced by the Appellant was scrutinized by the trial court to come to a conclusion that the Appellant did not make out a case for divorce. The High Court, taking note of the fact that the Appellant and the Respondent are judicial officers, made an attempt for conciliation between the parties. However, in spite of the effort of the High Court, both the Appellant and the Respondent did not appear personally before the High Court. Despite taking note of the fact that the Appellant and the Respondent were living separately since the year 2000, the High Court dismissed the Appeal by holding that irretrievable breakdown of marriage cannot be a ground for divorce. The High Court held that the Appellant failed to prove mental cruelty on the part of the Respondent*_

_*5. Notice was issued to the Respondent on 8th October, 2012 to explore the possibility of an amicable resolution to the matrimonial dispute. The parties were directed to appear before the Mediation Centre of the Supreme Court on 21st November, 2012. The Respondent did not appear before the Mediation Centre in spite of service of the Notice. She chose not to appear before this Court. Fresh Notice was ordered on 17th August, 2015 but the Respondent did not appear in spite of receipt of Notice again*_

_*6. Mr. Raja Chatterjee, learned counsel appearing for the Appellant submitted that the Respondent deserted the Appellant about 17 years back and she refused to come back and live with him. Apart from the allegation of desertion, the learned counsel also alleged mental cruelty on the part of the Respondent who threatened the Appellant in the year 2005 that she would get a criminal case filed against him if he did not stop attempts to get the divorce. The learned counsel further submitted that the Appellant and the Respondent have been living apart due to matrimonial discord since 17 years and for all practical purposes the marriage has broken down*_

_*7. The Respondent, who did not appear before the trial court after filing of written statement, did not respond to the request made by the High Court for personal appearance. In spite of service of Notice, the Respondent did not show any interest to appear in this Court also. This conduct of the Respondent by itself would indicate that she is not interested in living with the Appellant. Refusal to participate in proceeding for divorce and forcing the appellant to stay in a dead marriage would itself constitute mental cruelty [Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 [para101 (xiv)]]. The High Court observed that no attempt was made by either of the parties to be posted at the same place. Without entering into the disputed facts of the case, we are of the opinion that there is no likelihood of the Appellant and the Respondent living together and for all practical purposes there is an irretrievable breakdown of the marriage*_

_*8. This court in a series of judgments has exercised its inherent powers under Article 142 of the Constitution for dissolution of a marriage where the Court finds that the marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably, even if the facts of the case do not provide a ground in law on which the divorce could be granted [Manish Goel v. Rohini Goel, (2010) 4 SCC 393 [para 11]]. Admittedly, the Appellant and the Respondent have been living separately for more than 17 years and it will not be possible for the parties to live together and there is no purpose in compelling the parties to live together in matrimony [Rishikesh Sharma v. Saroj Sharma, (2007) 2 SCC 263 [para 4 and 5]]. The daughter of the Appellant and the Respondent is aged about 24 years and her custody is not in issue before us. In the peculiar facts of this case and in order to do complete justice between the parties, we allow the Appeal in exercise of our power under Article 142 of the Constitution of India, 1950*_

_*9. For the aforementioned reasons, the Appeal is allowed and the application for divorce filed by the Appellant under Section 27 of the Act is allowed*_

29/12/2017

1
THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE)
BILL, 2017
A
BILL
to protect the rights of married Muslim women and to prohibit divorce by pronouncing
talaq by their husbands and to provide for matters connected therewith or incidental
thereto.
BE it enacted by Parliament in the Sixty-eighth Year of the Republic of India as follows:—
CHAPTER I
PRELIMINARY
1. (1) This Act may be called the Muslim Women (Protection of Rights on Marriage)
Act, 2017.
(2) It shall extend to the whole of India except the State of Jammu and Kashmir.
(3) It shall come into force on such date as the Central Government may, by notification
in the Official Gazette, appoint.
Short title,
extent and
commence-
ment.
2
2. In this Act, unless the context otherwise requires,—
(a) "electronic form" shall have the same meaning as assigned to it in clause (r)
of sub-section (1) of section 2 of the Information Technology Act, 2000;
(b) "talaq" means talaq-e-biddat or any other similar form of talaq having
the effect of instantaneous and irrevocable divorce pronounced by a Muslim
husband; and
(c) "Magistrate" means a Magistrate of the First Class exercising jurisdiction
under the Code of Criminal Procedure, 1973, in the area where a married Muslim woman
resides.
CHAPTER II
DECLARATION OF TALAQ TO BE VOID AND ILLEGAL
3. Any pronouncement of talaq by a person upon his wife, by words, either spoken
or written or in electronic form or in any other manner whatsoever, shall be void and illegal.
4. Whoever pronounces talaq referred to in section 3 upon his wife shall be punished
with imprisonment for a term which may extend to three years and fine.
CHAPTER III
PROTECTION OF RIGHTS OF MARRIED MUSLIM WOMEN
5. Without prejudice to the generality of the provisions contained in any other law for
the time being in force, a married Muslim woman upon whom talaq is pronounced, shall be
entitled to receive from her husband such amount of subsistence allowance for her and
dependent children as may be determined by the Magistrate.
6. Notwithstanding anything contained in any other law for the time being in force, a
married Muslim woman shall be entitled to custody of her minor children in the event of
pronouncement of talaq by her husband, in such manner as may be determined by the
Magistrate.
7. Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an
offence punishable under this Act shall be cognizable and non-bailable within the meaning
of the said Code.
Definitions.
21 of 2000.
Talaq to be
void and
illegal.
Punishment
for
pronouncing
talaq.
Custody of
minor
children.
Subsistence
allowance.
Offences to
be cognizable
and non-
bailable.

29/12/2017

*SC Civil*

*Party Name:- Monmohan Attavar V Neelam Manmohan Attavar*
*Case No:- CA 2500 of 2017*
*Date:- 14:07:17*

*HEADNOTE:- Protection Of Women from Domestic Violence Act Section 17-19 Right of Residence Parties never lived Together in the property in question Evidence on Record shows that appellant not married with respondent as his wife was alive respondent thus has no right to reside in the property in question ex parte order permitting respondent to occupy the premise set aside*

29/12/2017

*Delhi High Court Civil*

*Party Name:- Kashi Nath V Shri Nath*
*Case No:- RSA 399 of 2015*
*Date:- 22:02:17*

*HEADNOTE:- Transfer of Property Act Section 53A Agreement To Sell Unregistered Agreement to sell exeuted after Amendment of Sec 53-A Transfer of Property Act after amendent an agreement to sell can be relied upon for purpose of protection u/s 53 -A of Transfer of Property Act As per doctrime of part performance only if that agreement to sell is registered no interest in immovable property can be created by an unregistered document*

08/07/2017

_*⭐SC: Suspicious circumstances will render a WILL void.*_

_S. 61 - Void will - Suspicious circumstances, if any, surrounding the will, must be removed by propounder by adducing cogent evidence - If bequest ex facie unnatural, unfair and improbable, propounder has to clear attendant negativity and credibly show testator's cognizant, free, objective and discerning state of mind at the time of creation of will._

_Appellant having failed to do so, will rightly held to be not proved by High Court._

_Case:_
_*Jagdish Chand Sharma v. Narain Singh Saini*_

_Citation:_
_*(2015) 8 SCC 615: AIR 2015 SC 2149.*_

_Bench Stenghth - _*2*_
_Coram: *Kurian Joseph & Amitava Roy, JJ.*_
*************************

05/01/2017

Maintainence/Interim Maintainence to wife calculation Judgements.
Revision vs By Advs.Sri.C.P.Peethambaran

There is nothing to show that the wife has any job or income of her own. Though the husband made such a contention that she has her own income, there is no evidence to prove such a case. The respondent is admittedly a carpenter. He also practically admitted that a carpenter would get 750/- per day. But his case is that he would not get job everyday in a month. Anyway, the trial court made a rough assessment of the probable income of the husband as 15,000/- per month. What is awarded is only 1/3rd of the probable income assessed. In the particular facts and circumstances, I find that some slight modification can be made in the amount awarded by the trial court. The revision petitioner will have his own personal expenses and he will have other liabilities in the family consisting his parents, brothers and sisters. The concern of the court must be that the amount awarded
R.P (FC) No.311 of 2014 by the court must reach in the hands of the claimant. If a huge amount is awarded, the claimant may not get it promptly, and the person liable may think of other options, if he finds it difficult to make payment of the huge amount. So, I feel that 2500/- will do justice to the wife and 1500/- will do justice to the child in the present circumstances, of course, subject to periodic modification and enhancement under Section 127 of Cr.P.C as and when needs and necessities increase and circumstances change.

Chander Prakash Bodhraj v. Shila Rani Chander Prakash[17] wherein it has been opined thus:- “An able-bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard. It is for such able-bodies person to show to the Court cogent grounds for holding that he is unable to reasons beyond his control, to earn enough to discharge his legal obligation of maintaining his wife and child. When the husband does not disclose to the Court the exact amount of his income, the presumption will be easily permissible against him.”

While determining the quantum of maintenance, this Court inJabsir Kaur Sehgal v. District Judge Dehradun & Ors.[13] has held as follows:-

“The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate.”
Sanjay Bhardwaj & Ors. vs The State & Anr. on 27 August, 2010
Under prevalent laws i.e. Hindu Adoption & Maintenance Act, Hindu Marriage Act, Section 125 Cr.P.C – a husband is supposed to maintain his un-earning spouse out of the income which he earns. No law provides that a husband has to maintain a wife, living separately from him, irrespective of the fact whether he earns or not. Court cannot tell the husband that he should beg, borrow or steal but give maintenance to the wife, more so when the husband and wife are almost equally qualified and almost equally capable of earning and both of them claimed to be gainfully employed before marriage.
In Dinesh Gijubhai Mehta vs Usha Dinesh Mehta This is a case where the husband is staying as member of his father’s family which consists of (1) the father, (2) mother, (3) brother and (4) sister, and (5) the husband himself. The wife was staying as a member of the said family till she left or was compelled to leave the same. Now she is residing with her father. This dishouses with the need to provide for any shelter. The wife’s allegation as to the husband’s income of being Rs.1250/- cannot be accepted in view of the employer’s certificate produced by him. His gross income is Rs.950/- per month and the net income is found by both the Courts to be Rs.720/- per mouth. Her allegation about the family having any dry-fruit business, and the brother and sister being earning members shall have to be rejected in view of the husband’s emphatic denial and in ability of the wife to furnish any particulars. Her allegation that the father of the husband is earning Rs.1,500/- per month shall have to be accepted. The husband has denied this. But he has not denied that he serves as an Education Officer in the Corporation. He has not cared to indicate what was his income, if not Rs.1500. The husband’s bare assertion in paragraph 14 in surrejoinder that his total per capita income is Rs.265/- cannot be accepted without detailed particulars. His allegation that the wife earns Rs.450/- per month also is liable to be rejected in view of the wife’s denial. Certificate produced by her only shows that she was employed only for 15 days. Total income of the family is thus Rs.1500 Plus Rs.720 = Rs. 2,220. The share of each of six members in the income thus comes to Rs.370/-. The amount of maintenance fixed by the learned Judge in appeal, of Rs.350/- does not appear to be thus excessive or objectionable in any manner. The amount of Rs.370/- may get reduced to Rs. 350/- if the unspecified necessary deductions in father’s salary are taken into account. Additional expenses for the education of the brother and the sister could have been taken into consideration. However, no details of particulars are specified by the husband.

08/06/2012

Hello everyone