Motion asking Judge to recuse.

Motion to Recuse must be prompt.

Facts of the case leading to motion for recusal:

Anthony Hargis was tried by a Union County jury, and he was convicted
of several crimes relating to the unlawful manufacture of methamphetamine.
Following the denial of his motion for new trial, Hargis appealed, asserting
seven claims of error, including that the trial judge was disqualified by her
receipt of an ex parte communication and, therefore, should have recused, and
that the trial court erred when it denied a motion to suppress evidence of a
similar transaction. Continue reading

Law of Maintenance in India

A kindle eBook about Law of Maintenance in India.

Maintenance has a legal connotation in India which includes, Child Support, Spouse Support and Parent Support.

Introduction about the ebook:

Maintenance of dependents, is a pious duty of human beings but in certain circumstances it is also a statutory liability with a corresponding right vested in the dependent, to legally enforce this duty through court of law. 
Entitlement to maintenance is a complex right in India. In certain relationships, the right and corresponding liability is rigid but in other circumstances it is dependent upon the various other factors. The matter is further made complex by various personal laws in respect of citizens belonging to different religions and also a variety of forums. This book of about 800 pages attempts to assimilate all the aspects of this branch of family law, as far as possible.  

To read excerpts from the book, scroll down or to buy, click the image the ebook from amazon.com:

Selected excerpts from the ebook, Law of Maintenance:

Considerations for granting alimony

Maintenance depends upon a gathering together of all the facts of the situation, the amount of free state, the past life of the married parties, and the families, survey of the condition and necessities and rights of the members on a reasonable view of change of circumstances possibly required is the future, regard being of course had to the scale and mode of living, and to the age, habits and class of life of the parties. In short, it is out of a category of circumstances, small in themselves, that a safe and reasonable induction is to be made by a court of law in arriving at a fixed sum.
While fixing permanent alimony and maintenance under Section 25 of the Hindu Marriage Act, 1955, the court is expected to make detailed inquiry and has to take into account not only the income but other properties of the parties, their conduct and other circumstances of the case that the court might consider relevant.

The following principles would appear to be relevant for the purpose:
(1) position and status of the parties;
(2) reasonable want of claimant (towards food, clothing, shelter, medical attendance and treatment, education and the like);
(3) income of the claimant;
(4) income of the opposite party;
(5) number of persons opposite party is obliged to maintain.

Two corollaries may be added here:
(1) In arriving at the income of a party only involuntary deductions like income-tax, provident fund contribution, etc. are to be excluded; and
(2) though under the law opposite party may to be obliged to maintain brother or sister but if that brother or sister having no income is living with the opposite party as member of his family and where either there are no parents or are unable to maintain themselves, the court may in a given circumstance consider the expenses to be incurred on the maintenance of brother or sister by the opposite party.

After all, court cannot be expected to adopt a mechanical approach while interpreting the provisions of law incorporating principles of social justice like Section 24 of the Act.
Where the parents were facing problem of life of such daughter in all matters and ultimately, in the net analysis, the divorced daughter would be left alone, cursed by the society and a burden on herself both, socially and economically. She may or may not have any shelter to live in it and bread to eat. In the instant case, she is illiterate admittedly and that would add insult to injury because she would not be able to earn anything. The remarriage is very difficult, for-fetched proposition in most of the communities amongst Hindus. In view of this, permanent alimony should be substantially a relief to her at least……..

……….No ‘dry and cut’ solution can be found out for measuring the conduct of desertion in terms of reduction in quantum of maintenance. However, when the legislature has introduced an amendment in Section 25 of Hindu Marriage Act, 1955, it cannot be treated as redundant and should be given effect to logically and legally. It was further held ‘Undoubtedly, the wife in the present case deserted the husband, did not reconcile and return to the husband during the pendency of the first litigation of restitution of conjugal rights. She insisted on remaining separately even when a decree for restitution of conjugal rights was passed, and forced the husband to file a petition for dissolution of marriage, and now the marriage has been dissolved, for which she alone is responsible, she cannot persuade this Court for grant of such maintenance which should be enough for maintaining her and also meeting the expenses should be enough for maintaining her, and also meeting the expenses of the medicines. It is self-invited trouble, for which none else but she is responsible. The act of desertion which was done initially and which has been consistently followed by her, in no case can put premium over her conduct.’

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Related articles:
Maintenance to Muslim Woman.

Arbitration clause can not oust tenancy protection law

Arbitration clause in Rent Agreement

Facts of the Tenancy eviction case:

The appellants have inducted the respondents as tenants in respect of a shop room measuring 600 sq. feet at HA-3, Sector-3, Salt Lake City, Kolkata, and paying a monthly rent to the appellants. In respect of the tenancy, the appellants and the respondents have executed an unregistered tenancy agreement which has been notarized on 10.11.2003. On 06.03.2008, the appellants, through their Advocates, served a notice on the respondents terminating the tenancy and asking them to vacate the shop premises and the notice stated that after April, 2008 the relationship of landlord and tenant between the appellants and the respondents shall cease to exist and the respondents will be deemed to be trespassers liable to pay damages at the rate of Rs.500/- per day for wrongful occupation of the shop. The respondents, however, did not vacate the shop premises and the appellants filed Title Suit No.89 of 2008 against the respondents for eviction, arrears of rent, arrears of municipal tax, mesne profit and for permanent injunction in the Court of the Civil Judge (Senior Division), 2nd Court at Barasat, District North 24-Parganas in the State of West Bengal. In the suit, the respondents filed a petition under Section 8 of the Arbitration and Conciliation Act, 1996 (for short ‘the 1996 Act’) stating therein that the tenancy agreement contains an arbitration agreement in clause 15 and praying that all the disputes in the suit be referred to the arbitrator. By order dated 10.06.2009, the learned Civil Judge dismissed the petition under Section 8 of the 1996 Act and posted the matter to 10.07.2009 for filing of written statement by the defendants (respondents herein).

Aggrieved, the respondents filed an application (C.O. No.2440 of 2009) under Article 227 of the Constitution of India before the Calcutta High Court and contended that the tenancy agreement contains an arbitration agreement in Clause 15, which provides that any dispute regarding the contents or construction of the agreement or dispute arising out of the agreement shall be settled by Joint Arbitration of two arbitrators, one to be appointed by the landlords and the other to be appointed by the tenants and the decision of the arbitrators or umpires appointed by them shall be final and that the arbitration will be in accordance with the 1996 Act and, therefore, the learned Civil Judge rejected the petition of the respondents to refer the disputes to arbitration contrary to the mandate in Section 8 of the 1996 Act. The appellants opposed the application under Article 227 of the Constitution of India contending inter alia that the dispute between the appellants and the respondents, who are landlords and tenants respectively, can only be decided by a Civil Judge in accordance with the provisions of the West Bengal Premises Tenancy Act, 1997 (for short ‘the Tenancy Act’). By the impugned judgment dated 16.04.2010, the High Court has held that in view of the decisions of this Court in Hindustan Petroleum Corporation Ltd. v. Pinkcity Midway Petroleums [(2003) 6 SCC 503], Agri Gold Exims Ltd. v. Sri Lakshmi Knits & Wovens & Ors. [(2007) 3 SCC 686] and Branch Manager, Magma Leasing & Finance Limited & Anr. v. Potluri Madhavilata & Anr. [(2009) 10 SCC 103], the Court has no other alternative but to refer the disputes to the arbitrators to be appointed by the parties as per the arbitration agreement. The High Court, however, has observed in the impugned judgment that if any dispute is raised regarding arbitrability of such dispute before the arbitral tribunal, such dispute will be decided by the arbitral tribunal.

Relevant Rent/Tenancy Law:

The relevant portion of Section 6 of the Tenancy Act 1997 is quoted hereinbelow:

“6. Protection of tenant against eviction.—(1) Notwithstanding anything to the contrary contained in any other law for the time being in force or in any contract, no order or decree for the recovery of the possession of any premises shall be made by the Civil Judge having jurisdiction in favour of the landlord against the tenant, except on a suit being instituted by such landlord on one or more of the following grounds………..”
[Note the words in red.]

 

Supreme Court decided that arbitration clause is overridden by Tenancy Act:

It will be clear from the language of Section 6 of the Tenancy Act 1997 quoted above that ‘notwithstanding anything to the contrary contained in any contract’, no order or decree for recovery of possession of any premises shall be made by the Civil Judge having jurisdiction in favour of the landlord against the tenant, ‘except on a suit being instituted by such landlord’ on one or more grounds mentioned therein. It is, thus, clear that Section 6 of the Tenancy Act overrides a contract between the landlord and the tenant and provides that only the Civil Judge having jurisdiction can order or decree for recovery of possession only in a suit to be filed by the landlord.

In this case, there is an arbitration agreement in clause 15 of the tenancy agreement, which provides that any dispute regarding the contents or construction of the tenancy agreement or dispute arising out of the tenancy agreement shall be settled by arbitration in accordance with the provisions of the 1996 Act. But the words ‘notwithstanding anything in any contract’ in Section 6 of the Tenancy Act, will override the arbitration agreement in clause 15 of the tenancy agreement where a suit for recovery of possession of any premises has been filed by a landlord against the tenant. Such a suit filed by the landlord against the tenant for recovery of possession, therefore, cannot be referred under Section 8 of the 1996 Act to arbitration. In fact, sub-section (3) of Section 2 of the 1996 Act expressly provides that Part-I which relates to ‘arbitration’ where the place of arbitration is in India shall not affect any other law for the time being in force by virtue of which certain disputes may not be submitted to arbitration. Section 6 of the Tenancy Act is one such law which clearly bars arbitration in a dispute relating to recovery of possession of premises by the landlord from the tenant. Since the suit filed by the appellants was for eviction, it was a suit for recovery of possession and could not be referred to arbitration because of a statutory provision in Section 6 of the Tenancy Act.

The High Court, therefore, was not correct in coming to the conclusion that as per the decisions of this Court in the aforesaid three cases, the Court has no alternative but to refer the parties to arbitration in view of the clear mandate in Section 8 of the 1996 Act. On the contrary, the relief claimed by the appellants being mainly for eviction, it could only be granted by the “Civil Judge having jurisdiction” in a suit filed by the landlord as provided in Section 6 of the Tenancy Act. The expression “Civil Judge having jurisdiction” will obviously mean the Civil Judge who has jurisdiction to grant the other reliefs: decree for arrears of rent, decree for recovery of arrears of proportionate and enhanced municipal taxes, a decree for mesne profits and a decree for permanent injunction claimed in the suit.

[Source: Ranjit Kumar Bose v. Anannya Chowdhury]

Scandal, Defamation and injury to Reputation

Right to Good reputation is part of 

Fundamental right of life and freedom of expression

A forged letter used to make defamatory complaint:

A letter dated 22.4.2011 purported to have been written by Shri M.A. Khan, M.P., suggests that various properties had been purchased by respondent no.2 as benami and the copies of the sale deeds etc. filed alongwith the said letter fortify the same. The Government of India wrote a letter to the Chief Secretary, Govt. of A.P. on 5.5.2011 to conduct an enquiry in respect of alleged disproportionate assets Continue reading

Bail for delay in trial.

Considerations for granting bail.

Delay in Trial

Bail u/s. 437 of Criminal Procedure Code of India:

“If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate unless for reasons to be recorded in writing, the Magistrate otherwise direct.”

The question is that whether above provision is mandatory or directory? In other words can Magistrate deny bail even if trial is not conducted within 60 days?

Exception to grant of bail: Continue reading