HTML

Thursday 22 November 2012

Kidnapping and rape

UTTARAKHAND HIGH COURT
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Section 3(1)(x), Indian Penal Code, 1860, Section 363, 376 -- Kidnapping and rape - Accused committed rape on victim girl aged 9 years after kidnapping her from place where she was playing - Statement of victim girl secured corroboration from evidence of other witnesses as well as by medical evidence and hence reliable and worthy of credence - Held, conviction of accused under sections 363, 366 and 376 proper - However, no material or record to show that victim was member of ST or SC and conviction of accused u/s 3(1)(x) of SC & ST Act not sustainable and hence set aside

Maintenance - Husband can be directed not only to pay maintenance but also to provide accommodation

RAJASTHAN HIGH COURT
Protection of Women From Domestic Violence Act, 2005, Section 19, 20, 21, 22 -- Maintenance - Husband can be directed not only to pay maintenance but also to provide accommodation to wife in the shared household though the aggrieved person had left the matrimonial home or the shared household many years ago.
Protection of Women From Domestic Violence Act, 2005, Section 19, 20, 21, 22 -- Right to accommodation - Civil wrong committed continuously from 2005 till present - Held, Act is applicable to the act and commission by the husband.
Protection of Women From Domestic Violence Act, 2005, Section 19, 20, 21, 22 -- Maintenance - Pendency of divorce petition on the ground of desertion - Does not disable the Court from passing the order under the Act as both the proceedings are independent of each other

Maintenance to wife - Husband getting salary of more than Rs.20, 000/- p.m. - Maintenance increased from Rs.5, 000/- to Rs.7, 500/- p.m.

Protection of Women From Domestic Violence Act, 2005, Section 12, 20 -- Maintenance to wife - Husband getting salary of more than Rs.20, 000/- p.m. - Maintenance increased from Rs.5, 000/- to Rs.7, 500/- p.m. since date of application

Tuesday 20 November 2012

Will -- If the testator, who is not married, marries after making the will, by operation of law, the Will stands revoked

File Number = 29032
SUPREME COURT OF INDIA
Registration Act, 1908, Section 17, Transfer of Property Act, 1882, Section 54 -- Transfer of immovable property - Sale agreement, general power of attorney and Will do not convey any title nor create any interest in an immovable property - Immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance.
Registration Act, 1908, Section 17, Transfer of Property Act, 1882, Section 54, 105 -- Transfer of immovable property - Can be by way of registered conveyance deed and not by executing agreement to sell, general power of attorney and Will - It applies not only to deed of conveyance in regard to freehold property but also to transfer of leasehold property - A lease can be validly transferred only under a registered Assignment of lease.
Agreement to sell -- Does not by itself, create any interest in or change on such property.
Power of Attorney Act, 1882, Section 1A, 2 -- Power of attorney - Not an instrument of transfer in regard to any right, title or interest in an immovable property - The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him - It is revocable or terminable at any time unless it is made irrevocable in a manner known to law.
Will -- Comes into effect only after the death of the testator and is revocable at any time during the life time of the testator.
Will -- Registered - Held, registration of Will does not make it any more effective.
Will -- If the testator, who is not married, marries after making the will, by operation of law, the Will stands revoked.

Saturday 17 November 2012

Divorce - Cruelty by wife

Hindu Marriage Act, 1955, Section 13(1)(ia) -- Divorce - Cruelty by wife - Wife did not allow husband to have sexual relations with her - Wife lodged FIR against husband and in-laws u/ss 498-A, 406 IPC for which they were arrested and remained in jail - Wife in Court exhibited her adamant and callous attitude towards her husband, which showed that she was bent upon treating husband with mental cruelty - Parties living separately for more than 13 years - Held, matrimonial bond ruptured beyond repair because of mental cruelty caused by wife - Decree of divorce, upheld

Permanent alimony - Status of wife before her marriage is one of the relevant factors for determining the amount of maintenance

Hindu Marriage Act, 1955, Section 25 -- Permanent alimony - Status of wife before her marriage is one of the relevant factors for determining the amount of maintenance.
Hindu Marriage Act, 1955, Section 25 -- Permanent alimony - Income and other property of the parties are relevant materials in addition to the conduct of the parties and other circumstances of the case - Court has to consider status of parties, their respective needs, the capacity of the husband to pay, having regard to reasonable expenses for his own maintenance and others whom he is obliged to maintain - Amount of maintenance to be fixed for the wife should be such as she can live in reasonable comfort considering her status and mode of life to which she was used to live when she lived with her husband - Amount so fixed cannot be excessive or affect the living condition of the other party.

Dishonour of cheque

Criminal Procedure Code, 1973, Section 326(3), Negotiable Instruments Act, 1881, Section 138 -- Dishonour of cheque - Magistrate transferred after recording evidence - Successor Magistrate has to try the case do novo in a summary trial - Successor Magistrate cannot act on the evidence recorded by his predecessor either in whole or in part in a summary trial - Consent of parties as to having no objection to proceed on basis of evidence recorded by predecessor is misconceived - Parties by consent cannot confer jurisdiction where there exists none on a Court of law nor can they divest a Court of jurisdiction which it possesses under the law - Order of conviction passed by successor Magistrate and upheld by High Court set aside and retrial ordered in accordance with law.
Criminal Procedure Code, 1973, Section 179, 180, Criminal Procedure Code, 1973, Section 326(3), Negotiable Instruments Act, 1881, Section 138 -- Dishonour of cheque - Jurisdiction - Parties by consent cannot confer jurisdiction where there exists none nor can they divest a Court of jurisdiction which it possessed under the law.

Electricity - Supply of - Owner or occupier of a premises has a statutory right for an electric connection

Electricity Act, 2003, Section 43, 67 -- Electricity - Supply of - Owner or occupier of a premises has a statutory right for an electric connection - Supply line passing through a passage - Dispute as to passage whether private or common passage - Pending resolution of the dispute between the parties, appellant cannot be denied supply of electricity to his house - Licensee to find out other way in which electric line can be drawn - In case no other way found licensee to follow provision of S.67(2) of the Act - Pending this exercise supply to the house of appellant not to be disconnected

Tuesday 13 November 2012

Negotiable Instruments Act, 1881, Section 138,139,141


Negotiable Instruments Act, 1881, Section 138,139,141 -- Dishonour of cheque - Company - Accused took loan and four Directors issued cheque in discharge of liability which was dishonoured - No material on record evidencing either payment of loan amount or mode of payment - No evidence produced that cheque was issued in discharge or loan liability - Company and its Managing Director not arrayed as accused - Defence version that blank cheques were removed from company premises seemed probable - Accused acquitted. File Number = 28956 - updated on Tue, 13 Nov 2012 12:30:12 +0530

Thursday 8 November 2012

Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002,

File Number = 28727
KARNATAKA HIGH COURT
Civil Procedure Code, 1908, Section 9, Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, Section 34,17 -- Bar of jurisdiction - Proceedings initiated u/s 13 of the Act for recovery of secured debt - Suit for injunction filed by tenant - Held words 'any person' found in S.17 of the Act means not only a borrower, but a non-borrower also who is aggrieved by action of bank - Remedy of aggrieved person is to file appeal - Thus suit for injunction in Civil Court not maintainable.

Administrative Tribunals Act, 1985, Section 19

File Number = 28706
SUPREME COURT OF INDIA
Administrative Tribunals Act, 1985, Section 19 -- Karnataka Administrative Cadre and Recruitment Rules, 1986 - Locus standi - Promotion - Quashing of Rules - Jurisdiction - Promotion of stenographers affecting the Assistants since there was a confluence of the two streams leading to promotional posts - Administrative Tribunal took decision without notice to the Assistants - The assistant held to have the locus standi to move the application under Section 19 of the Act before the Tribunal and seek reconsideration of the earlier decision passed by it without notice to them and to show that the said order required reconsideration or that it was not a legal or a proper one

Rent and Eviction

File Number = 28705
SUPREME COURT OF INDIA
Rent and Eviction -- Sub letting - To prove subletting production of affirmative evidence showing payment of monetary consideration by sub-tenant to the tenant is not necessary - Inference as to subletting can be drawn from proof of delivery of exclusive possession of the premises by tenant to sub-tenant.
Rent and Eviction -- Non user of suit premises for a period of six months preceding the filing of suit and that tenant is liable for eviction on ground of sub letting - Non consumption of electricity - Plea of tenant that he is a devout Jain and he closes the shop at 5.30 p.m. before the day getting dark - However, after two/three years electricity consumption started showing normal electric consumption - Lends credence to the case of plaintiff that shop after remaining closed for two three years started showing normal electric consumption when it was sub let.