Irretrievable break down of Marriage: Supreme Court can grant divorce to couple.

Why lock a couple in a dead marriage.

The Respondent wife, 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 Ghosh1]. 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.

Continue reading “Irretrievable break down of Marriage: Supreme Court can grant divorce to couple.”

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Multiple arbitration agreements between same parties

Expediency of one Arbitration Tribunal instead of multiple Tribunals

The amended Section 11 of Arbitration Act, 1996 reads as under:-

“11. Appointment of arbitrators.- (1) A person of any nationality may be an arbitrator, unless otherwise agreed by the parties.
(2) Subject to sub-section (6), the parties are free to agree on a procedure for appointing the arbitrator or arbitrators.

(3) Failing any agreement referred to in sub-section (2), in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two appointed arbitrators shall appoint the third arbitrator who shall act as the presiding arbitrator.

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Transfer of Matrimonial Dispute at the behest of Wife

Is video conferencing is an alternative to transfer of proceedings?

Power to transfer any proceedings from one court in India to another is vested in the Supreme Court under article 19-A of the Constitution. Similar powers are conferred by Section 25 of Civil Procedure Code. In an earlier case, Supreme Court opined that video conferencing could be a good alternative instead of transfer. It observed:

One cannot ignore the problem faced by a husband if proceedings are transferred on account of genuine difficulties faced by the wife. The husband may find it difficult to contest proceedings at a place which is convenient to the wife. Thus, transfer is not always a solution acceptable to both the parties. It may be appropriate that available technology of videoconferencing is used where both the parties have equal difficulty and there is no place which is convenient to both the parties. We understand that in every district in the country videoconferencing is now available. In any case, wherever such facility is available, it ought to be fully utilised and all the High Courts ought to issue appropriate administrative instructions to regulate the use of videoconferencing for certain category of cases. Matrimonial cases where one of the parties resides outside court’s jurisdiction is one of such categories. Wherever one or both the parties make a request for use of videoconferencing, proceedings may be conducted on videoconferencing, obviating the needs of the party to appear in person. In several cases, this Court has directed recording of evidence by video conferencing.

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Common intention u/s 34 of IPC

Vicarious criminal liability for sharing common intention

Determination of common intention:

Section 34 of Penal Code is as under:

“Acts done by several persons in furtherance of common intention.—When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.”

In order to attract Section 34 IPC, the following ingredients must be established:

(i) there was common intention in the sense of a pre-arranged plan;

(ii) the person sought to be so held liable had participated in some manner in the act constituting the offence.

Continue reading “Common intention u/s 34 of IPC”

Payment of interest in equity in India

Unjust enrichment by withholding the amount can be compensated by award of Interest:

Effect of Interest Act

Interest can be awarded in terms of an agreement or statutory provisions. It can also be awarded by reason of usage or trade having the force of law or on equitable considerations. Interest cannot be awarded by way of damages except in cases where money due is wrongfully withheld and there are equitable grounds therefore, for which a written demand is mandatory.

Clariant International Limited and Another v. Securities and Exchange Board of India, (2004) 8 SCC 524 at 539

When there is no specific provision for grant of interest on any amount due, the court and even tribunals have been held to be entitled to award interest in their discretion, under the provisions of Section 3 of the Interest Act and Section 34 of the Civil Procedure Code. Continue reading “Payment of interest in equity in India”

Quashing of Criminal Proceedings in Case of Compromise

Power of High Court under section 482

Power of quashing of proceedings

Supreme Court has laid down the broad principles which emerge from the precedents on the subject, and summarised the following propositions :

(i) Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court;

(ii) The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable. Continue reading “Quashing of Criminal Proceedings in Case of Compromise”

Impleadment of legal heirs in a suit filed against dead person

Suit against dead person.

Question:
Whether the legal representatives of one of the defendants can be impleaded under Order 1 Rule 10 of the Code where such defendant expired prior to the filing of the suit, particularly when the application filed by the plaintiff to bring the legal representatives of the deceased on record under Order 22 Rule 4 of the Code was dismissed earlier as not maintainable.

Facts:

In the matter on hand, the sale was made in favour of defendant no. 7, and the validity of the sale deed was the subject matter of the suit. The purchaser of the property, i.e. defendant no.7, though dead at the time of filing the suit, was made one of the defendants erroneously. The persons who are now sought to be impleaded under Order 1 Rule 10 of the Code are the legal representatives of the deceased defendant no. 7.

Conclusions: Continue reading “Impleadment of legal heirs in a suit filed against dead person”

Escheat: Forum for adjudication of claim

Escheat: Intestate death resulting in vesting of property in Government.

Collector taking over the property u/s. Section 29 of the Hindu Succession Act, 1956. No recourse made to Administrator General Act, 1963. No adjudication of facts by a Judicial Forum. Validity of.

Section 29 in The Hindu Succession Act, 1956 is as under:

29 Failure of heirs .—If an intestate has left no heir qualified to succeed to his or her property in accordance with the provisions of this Act, such property shall devolve on the government; and the government shall take the property subject to all the obligations and liabilities to which an heir would have been subject.

Section 29, it may be noted, embodies a principle but does not provide a procedural mechanism for adjudication upon disputed questions. The canvas of the controversy before the Court is an abundant indication of matters which were seriously in dispute. The contention of the state that the property would devolve upon it as a result of Mohan Lal being presumed to be dead and having left behind no legal heir is seriously in question. Such a matter could not have been adjudicated upon by the Collector by assuming to himself a jurisdiction which is not conferred upon him by law. Continue reading “Escheat: Forum for adjudication of claim”

Defence of dispute in Insolvency and Bankruptcy Code, 2016

Existence of  dispute

Necessity of Court or Arbitration Proceedings in defence:

Relevant provisions of the Code insofar as operational creditors and their corporate debtors are concerned.

“3. Definitions. In this Code, unless the context otherwise requires,— xxx xxx xxx (12) “default” means non-payment of debt when whole or any part or instalment of the amount of debt has become due and payable and is not repaid by the debtor or the corporate debtor, as the case may be;

5. Definitions. In this Part, unless the context otherwise requires,— (6) “dispute” includes a suit or arbitration proceedings relating to—

(a) the existence of the amount of debt;

(b) the quality of goods or service; or

(c) the breach of a representation or warranty; xxx xxx xxx (20) “operational creditor” means a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred;

Continue reading “Defence of dispute in Insolvency and Bankruptcy Code, 2016”

Quashing of charge in case of abetment of suicide

Allegations of land grabbing resulting in victim committing suicide.

Charge framed u/s 306 IPC quashed while sustaining the charge u/s. 448 of IPC

In other words, the truth of the matter has to come out when the prosecution evidence is led, the witnesses are cross-examined by the defence, the incriminating material and evidence is put to the accused in terms of Section 313 of the Code and then the accused is provided an opportunity to lead defence, if any. It is only upon completion of such steps that the trial concludes with the court forming its final opinion and delivering its judgment. Merely because there was civil transaction between the parties would not by itself alter the status of the allegations constituting the criminal offence. Continue reading “Quashing of charge in case of abetment of suicide”