Anticipatory Bail in Matrimonial Cases

-Kishan Dutt Kalaskar

For anyone who is aware of the reality of more marriages coming to an end, they know the reality of matrimonial cases. While the numbers of divorces are roaring, it is seen that matters take years and years, while parties waste some crucial moments of their life running to and fro from one Court to another. The situation is too bad for husbands, because it is not the divorce cases which bother, it is the criminal matrimonial cases which take a lifetime to decide but suck life out of life. To avoid arrests in false cases is the ultimate resort for many, and that is where anticipatory bail in matrimonial cases comes to rescue.

False Matrimonial Cases

It is a recent trend that whenever a marriage falls off the cliff, and divorce is the only option left, it is quite often that the wife fires back with false cases. As against one genuine divorce case by husband, the wife retaliates with a cruelty case under 498A (S. 85 of BNS), dowry case, and domestic violence case, while seeking maintenance as well. This leads to mental as well as financial loss for the husband and his family. That is why, it is all the more important for safeguarding the interests of husband and his relatives against such false cases, merely for upholding the sense of justice. Anticipatory bail is one such option which seeks to protect the husband and his relatives against arrest in case of apprehension of such false allegations. 

Anticipatory Bail in Cruelty Case (Section 498A of IPC ~ Section 85 and 86 of BNS)

With the new criminal laws in force, Section 498A, though a provision known even to laymen, Section 85 of the Bharatiya Nyaya Sanhita, 2023 is the new 498A which deals with cruelty against married women. Cruelty is a non-bailable offence, and thus, one can apply for anticipatory bail in such a case. 

How to get anticipatory bail in 498A case?

For an anticipatory bail in matrimonial case in a matter of cruelty by husband and relatives against married women, one needs to prove apprehension of arrest and how you deserve to be at liberty. In normal circumstances, the Judge looks at the criminal antecedents and social standing of the husband and his family. Previous conviction weighs against anticipatory bail in matrimonial cases, especially ones convicted for heinous crimes. The discretion of the Court and the ability of a lawyer to convince the Court of prima facie innocence of the husband his family decides the chances of grant of anticipatory bail in 498A case, The Courts are also aware of the recent fashion of false cases against husbands and their family members when marriage comes downhill. Thus, they look at the possibility of tampering evidence, flight risk, etc., and may grant anticipatory bail for genuine cases.

Anticipatory Bail in Dowry Cases

Giving or taking dowry is prohibited under the Dowry Prohibition Act, 1961. Section 8 of the Dowry Prohibition Act, 1961 provides that every offence under the Act shall be cognizable, non-bailable and non-compoundable. It may be noted that the offences under Dowry Prohibition Act were originally bailable, substituted to be non-bailable through an amendment in 1986. Thus, if a person apprehends that his wife may proceed with filing a criminal case for dowry demands, he may apply for anticipatory bail. The main defense for such a case is that they never demanded any dowry from the bride or her family. If the parties are able to convince the Court regarding such apprehension, anticipatory bail in matrimonial case for dowry may be sought before the Court.

Anticipatory Bail in Domestic Violence Case

The provisions of Prevention of Women from Domestic Violence Act, 2005 may bring in civil  as well as criminal consequences. In terms of criminal provisions under the DV Act, while domestic violence is not per-se a non-bailable offence. However, Section 31 of DV Act provides for punishment for breach of interim protection order, and Section 32 mentions the same as a non-bailable offence. Thus, since offence under Section 31 of DV Act is a cognizable and non-bailable offence, one can apply for anticipatory bail in matrimonial case for domestic violence. It may be noted that whenever there is apprehension that the wife may proceed with filing a criminal case for domestic violence against the husband and/or his relatives, they may connect with a criminal lawyer seeking anticipatory bail. 

Conclusion

Here, it can be seen that everything comes upon the lawyers who need to prove before the Court regarding the innocence of their clients, convince about their availability during the trial and investigation, and deny the allegations dropping bombs from the other side. That is where the experience of matrimonial lawyers comes handy for the parties who spent a fortune on getting their children married and see their marital lives falling apart.

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Meta Description - Explore the possibilities of anticipatory bail in matrimonial cases - Section 498 A of IPC now Section 85 of BNS, dowry and DV cases.

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Analysing Bail Conditions in India

-Kishan Dutt Kalaskar

A very commonly heard phrase from the Criminal Courts is “Bail is the rule and Jail is the exception”. What’s more common is the conditions imposed with the bail orders, in order to make sure that investigation is not hampered, and trial remains unaffected by the release of the accused. Bail conditions in India are more often the standard stipulations to ensure the accused's attendance and prevent him/her from interfering with evidence or witnesses. It is crucial to understand which conditions for bail mean and how they can interfere with the liberty of a person accused of a criminal offence. The conditions so imposed may be strict or lenient, more dependent upon the nature of offence accused of, and the criminal antecedents. Here is a detailed analysis of bail conditions in India, and how Courts use their discretionary powers while passing orders in this regard.

What are Bail Conditions?

When a Judge allows bail for an accused in a criminal matter, he/she may apply some conditions while passing the bail order. Section 2(b) of the Bharatiya Nagarik Suraksha Sanhita, 2023 defines bail and mentions about imposition of bail conditions. Further, Sections 478, 480 482 and 483 also discuss bail conditions in criminal cases. The said conditions need to be followed by the accused person. In case of violation of bail conditions, the bail order may be revoked and the accused person may be required to get back in custody, until the trial comes to an end. If bail conditions are religiously followed, it may help extend the limited period bail granted by the Court concerned.

Reasons for Conditional Bail

One of the major reasons why some conditions are imposed by the Judge/Presiding Officers in Criminal cases while allowing bail are:

●       To ensure accused’s return to custody

●       Restricting him/her from tampering with evidence

●       To ensure the accused does not commit further offences while being released on bail

●       To make sure accused is present before the Court during the trial

●       That the accused does not interfere with the witnesses in the matter

●       Overall, to ensure compliance with the legal process and administration of justice

Common Examples of Bail Conditions in India

While the Bharatiya Nagarik Suraksha Sanhita mentions the imposition of conditions while granting bail to an accused, it does not particularly suggest the specific conditions. It majorly suggests that the person shall not commit any further offence, not induce/threaten someone related to the case or tamper evidence, be available for investigation, not leave India without Court’s permission and attend the proceedings. Apart from that, it is the discretion of the Court allowing bail, to impose any conditions as necessary for the purpose of upholding justice. Some common examples of bail conditions in India are:

●       Availability for Police investigation as and when required

●       Not to leave the country without getting permission from the Court concerned

●       Not to commit an offence similar to the one for which he/she is released on bail

●       To appear in the Court regularly, as suggested in the bail order, for marking attendance

●       Coordinate and support Police investigation

●       Not to tamper/destroy evidence

●       Not to threaten/induce/dissuade a person related to the matter or a witness in the case

Not-so-Common Bail Conditions imposed by Courts

●       Sharing Live Location (Imposed by Delhi High Court, though the same was taken down by Supreme Court saying it violated privacy rights)

●       In certain cases, to stay away from a particular location where the victim resides

●       Submission of essay on road safety (Which made headlines in Pune Porsche Accident Case)

●       To allow bail only if the victim stood as a surety (Though the same was criticised by the Supreme Court)

●       Accused person apologising to the victim

●       To say “Bharat Mata Ki Jai” by person accused of Pakistan Zindabad slogans

●       Victim in sexual offence to tie a rakhi on accused’s wrist as bail condition (The said condition was found unacceptable by the Supreme Court and eventually scrapped)

●       Downloading Arogya Setu app while constantly keeping the GPS on

With the above examples, it can be seen that the discretionary powers of the Courts has at times been misused. This is the reason why the Supreme Court of India has time and again reminded the High Courts and Courts below to uphold the essence of why bails should be granted. It clarified that very stricter regular or anticipatory bail conditions may undermine the purpose of bail. If bail conditions require the victim to become surety, the person will still remain in jail even after bail orders have been passed in his/her favour. Thus, the Apex Court has batted for bail conditions which endorse the balance between liberty and Justice.

How to interpret bail conditions?

The Court orders allowing bail and imposing conditions are usually written in simple English, which is easy to understand by laymen. However, there may be times when the bail conditions imposed by a Court are not easily understandable by a person who lacks understanding of legal jargon. In such a case, the criminal lawyer representing such a person may be better able to interpret the same in easy language for his/her client. In case the bail order is so confusing that even the lawyer is not able to decode the extent of a particular bail condition, clarity may be sought from the Court itself. In such cases, the Court (usually on the next date) releases a corrigendum editing the bail order passed earlier to bring clarity on the essence of a specific part wherein some words were missing/omitted/overwritten, while still keeping up with the spirit of the original order.

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The Union Cabinet's recent affirmation of the high-level committee's recommendations for carrying out the "One Nation, One Election" policy marks a crucial point in India's electoral and legal environment. This proposal, also known as simultaneous elections, aims to simplify India's complicated and sometimes staggered electoral process. If fully implemented, considerable changes will be needed to current laws, the introduction of new constitutional provisions, and the defeat of strong political resistance. Here's a thorough look at the policy, the legal issues involved, and the repercussions for India's democracy.

Background and Purpose of "One Nation, One Election"

This notion of "One Nation, One Election" has not been something new in India. From the years 1951 to 1967, elections to the Lok Sabha (House of the People) and State Legislative Assemblies took place simultaneously in the country of India. Political developments, though, such as both state assemblies getting pre-emptively dissolved along with the Lok Sabha, snapped this rhythm. Electoral disengagement made India face nearly continuous elections. At any one time, there is an ongoing or imminent state or national election that exerts intense pressures on apparatus of government, security agencies, and the treasuries of the nation.

Proponents of simultaneous elections claim that it generates a cycle of continual elections, destabilising governance and encouraging excessive use of public resources. Every election necessitates the widespread implementation of the Model Code of Conduct (MCC), which temporarily halts governmental activity and frequently causes developmental initiatives to stall in anticipation of the code's lifting. Furthermore, the elections require a large deployment of security personnel and administrative resources.

The rationale behind making these necessary elections for Lok Sabha, State Legislative Assemblies, and local bodies (panchayats and municipalities) concurrently is to minimize these disruptions and resultant costs. This policy would be two-phased: first, the elections for the national and state legislatures, and secondly within 100 days after the first phase, the elections for local bodies.

Key Legal Provisions and Constitutional Amendments

Constitutional and legal provisions require tremendous changes before the "One Nation, One Election" policy is implemented. The main amendments or insertions in these provisions are as follows:

1. Article 83 (Duration of Houses of Parliament)

• Current Status: Article 83 mentions that the Lok Sabha, unless dissolved sooner, shall continue for five years from the date of its first sitting.

• Proposed Change: Article 83 should be upgraded through constitutional amendment to make sure the Lok Sabha term runs parallel with State Legislative Assemblies except in exceptional circumstances.

2. Article 172 (State Legislatures' Duration)

• Present Scenario: Article 172 speaks about the tenure of the State Legislative Assemblies which also has the same term of five years.

• Changes Propose: Just as Article 83, this article would be amended so that the terms of Lok Sabha and State Assemblies be so brought in line. For example, the term of Lok Sabha ends in 2029; so, does the state assembly, which is constituted after 2024 elections so that their term gets curtailed so that it end in the same year, Lok Sabha goes to polls again.

3. Article 356 (President's Rule)

• Current Status: Article 356 of the constitution allows President's Rule in a state when its governance fails according to constitutional provisions. This normally results in dissolution of the State Assembly.

• Proposed Change: To facilitate coordination, any such new constitutional provisions would have to permit the dissolved state governments that are dissolved before time to continue to exist under some form of central or caretaker administration till such time the next coordinated election is held. This calls for amending Article 356 or inserting temporary provisions within Article 356 to deal with the phases of dissolution of assemblies during uncoordinated periods.

4. Article 85 Dissolution of Lok Sabha

• Present Scenario: Article 85 accords the power to dissolve the Lok Sabha to the President.

• Proposed Amendment: This article needs to be amended in a manner that Lok Sabha elections can only be dissolved under some synchronised conditions so that, other than a national emergency or constitutional crisis, Lok Sabha should not be dissolved mid-term.

5. Article 82A Proposed New Article

• Proposal: The High-level committee has proposed the introduction of a new Article 82A that would be introduced to provide legislative sanction for the process of harmonization of the Lok Sabha and State Legislative Assemblies. This article would delegate authority to the election commission to make recommendations regarding the harmonization process and would elaborate upon the procedure for dealing with exceptions including dissolution before term or the calling of mid-term elections.

Role of Election Commission

The "One Nation, One Election" policy will essentially be carried out by the Election Commission of India. A single authority is expected to undertake these elections, just as it will also be responsible for conducting the exercise of synchronizing of elections. ECI may require additional powers under new constitutional provisions, including Article 82A, with the intention of advising rescheduling elections or partial elections if a state assembly is dissolved prematurely.

A vast and diverse country like India, would also function smoothly under such an electoral scenario wherein multiple elections are held simultaneously, reliant on improvements in logistics, technology, better coordination with state electoral offices, and streamlining of voter rolls across all elections: national, state, and local.

Challenges and Criticisms

While being hailed by sections of the government and administrative experts alike, the idea of "One Nation, One Election" has been most severely criticized by opposition parties and legal experts.

1. Concerns over Federalism

Critics also argue that simultaneous elections go against India's federal framework. Indian democracy works on the strength of its diversity, and the regional orientation of state elections provides for different political manifestations. The Rashtriya Janata Dal and All India Majlis-e-Ittehad-ul-Muslimeen (AIMIM) have both argued that simultaneous elections would concentrate political power and make regional parties politically irrelevant.

2. Burden on Voters

Multi-elections at the same time would bewilder voters so that national and local issues become fuzzy. Besides, elections conducted simultaneously would result in a "nationalization" of state elections wherein local concerns will easily be buried under national political debates. Opposers believe that the conduct of separate elections makes it easier for voters to concentrate on the campaign issues of states and locals during their respective elections.

3. Effects on Governance

In the event of hung assemblies or no-confidence motions that result in the early dissolution of legislatures, new elections would be required only for the remaining term of the assembly, which could be logistically difficult. Such scenarios were one of the high-level committee's recommendations, in which temporary governments or the President's Rule were required to keep the boat afloat, albeit those suggestions have raised worries about governance and democratic responsibility.

Conclusion

The recommendations of the high-level committee have now been cleared by the Union Cabinet, but they will require broad-based discussions and amendments to the Constitution before they can be implemented. Such amendments must be passed by a two-thirds majority in both the houses of Parliament and, after that, ratified by at least half of the states as they impact the composition of both Lok Sabha and state legislatures.

The government has promised to organize national consultations as a step toward building a consensus on the issue. It comes with the assurance of Union Minister Amit Shah that the move will not only ease the financial and administrative burden of holding elections frequently but also ensure smoother governance.

While this may be a lengthy process, political parties must express strong resistance to the ability to sustain federalism. And it is here that the administration must overcome these obstacles to determine whether India can revert to the system of simultaneous elections that existed in the early decades following independence.

How to get stay order on rented property?

-Kishan Dutt Kalaskar

As an owner of property, renting the same involves risk of unpaid rents, damage to property, never-leaving tenants, etc. As a person/family, renting a property involves another set of risks, like sudden eviction orders, unjust increase in rent, etc. Sometimes, a situation may arise when the tenancy dispute gets emergent in a way that immediate orders are required from the Court to make the other party act in a way, or to stop them from doing something. This is what we call stay orders in general. Know how to get stay order on rented property and related aspects of laws.

Landlord-Tenant Disputes on Rented Property

When it comes to tenancy disputes, the following may lead to circumstances wherein the parties may seek stay order on rented property:

●       Non-payment of rent

●       Prolonged Stay

●       Forced Eviction

●       Sub-lease disputes

●       Property damage by tenant

●       Property damage not repaired by landlord

●       Unpaid security deposit

What is a Stay Order on Rented Property?

When the Landlord does or attempts to do an act which may harm your legal rights as a tenant in a rented property, you may seek Court orders restraining the Landlord with immediate effect, from acting in such a manner harming your rights. When the Court issues legal orders restraining the Landlord against the action which was pointed out in the application, the same may be termed as Stay orders in general. In legal terms, it is an Injunction order, and the landlord is said to be injuncted by the Court from acting in a certain way. When we talk about stay order on rented property, it is It may be noted that Injunction or Stay Orders are not confined to rented property, or even to matters related to property. An Injunction order may be passed against a person counterfeiting registered trade mark, or someone manufacturing allegedly poisonous products, or even against a marriage which is about to be solemnized against the law.

When to apply for Order of Stay on Rented Property?

When a legal matter is ongoing between the landlord and tenant regarding tenancy, or circumstances so arose that a civil suit is set to be initiated, in both the cases, an application seeking stay order on rented property may be sought. Order 39 Rules 1 and 2 of the Civil Procedure Code 1908 deals with injunctions. The said application seeks injunction till the matter is concluded with the Court’s final decision, so that the state of rented property does not change during pendency of case before the Court. There are specific conditions when an application for stay order on rented property may be initiated before the Court of appropriate jurisdiction. The urgency has to be obvious, and the party should be able to convince the Court of the circumstances which support the issuance of stay orders on rented property against the landlord or tenant, as the case may be.

Conditions for Stay Order on Rented Property

Throughout the years, Courts have come up with different interpretations which eventually laid three rules which warrant the issuance of stay orders:

●       Prima Facie Case

The petitioner/applicant should be able to make a prima facie case before the Court regarding the injustice/harm that he may suffer due to ongoing situation. In other words, the person hearing about the matter should be able to sense the possible damage at first sight.

●       Balance of Convenience

The petitioner/applicant should be able to prove before the Court the grave inconvenience he/she may suffer if injunction orders are not issued with immediate effect. Simplifying the same, the balance of convenience should be in favour of the petitioner/applicant only, and not otherwise.

●       Irreparable Injury

Situation of the matter should be such that in the absence of injunction orders, the petitioner/applicant may potentially suffer injury which may not be repaired/fixed easily. The petitioner/applicant should be able to convince the Court that the consequences of the act pleaded against would be irreversible.

Timeline for Stay Order

Once an application seeking stay order is presented before the Court, the urgency of the matter has to be conveyed to the Court. The Civil Lawyer should be able to convince the Court that if the matter is not heard and if relief is not granted immediately, irreparable damage will be caused and no further relief would be helpful, considering the nature of circumstances, resulting in injustice to the petitioner/applicant. If the Court is convinced, notice may be issued to the opposite party, with the hearing scheduled within a day or two. The application may be decided on merits. If the other party seeks time for filing a written statement, the Court may hear the parties on an interim basis and allow filing of a written statement later. The process may usually take 5-7 days before the question of stay order on rented property is decided by the Court. If the matter is way too urgent based on circumstances so portrayed, the Court may even hear only one party and accordingly issue orders. In that case, an order for stay may be issued the same day or the next day.

What happens if Stay orders are not obeyed?

If the Court has issued a stay order on rented property and the landlord refuses to comply with the same, or vice versa, there is a legal remedy for the same. Order 39 Rule 2(a) of CPC lays that if a person refuses to comply with the injunction order passed by the Court and acts against the same, such an act will be taken as Contempt of Court. It may lead to attachment of property or be punished to imprisonment as well for 3 months.

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Meta Description - Know how to get stay order on rented property against the landlord, when the tenant is facing issues with your stay, or being evicted illegally.

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Condonation of Delay in Cheque Bounce Cases

-Kishan Dutt Kalaskar

While legal remedies are available in the Indian Legal System pertaining to Civil and Criminal matters, the law also specifies the timeline within which, the remedies could be availed by the litigants. The provision for cheque bounce under Section 138 of the Negotiable Instruments Act, 1881 is a special provision, for attaining a criminal garb. There are stricter timelines for taking action for cheque bounce, be it about presentation of cheque, serving legal notice, or initiating a complaint. The law regarding condonation of delay in cheque bounce cases has been discussed here.

Timelines under Section 138 of NI Act

When a cheque is presented for encashment before a bank, and the same is returned unpaid due to insufficiency of funds or other reason as per Section 138 of the Negotiable Instruments Act, 1881, a legal notice has to be served to the drawer of cheque within 30 days of receiving the memo from the bank. The said cheque bounce notice particularly provides a period of 15 days for the drawer to make payment of the said amount which was owed through the dishonoured cheque. If payment is not cleared within the said 15 days, cause of action to proceed with legal action under Section 138 of NI Act commences from 16th day. Now, the criminal complaint has to be made within 30 days.

Condonation of Delay under The Limitation Act, 1963

While the statutory limitation is provided in most of the cases, which brings a time limit for legal remedies. Section 5 of the Limitation Act provides for extension of prescribed period. Applications for condonation of delay need to specify the reasons which restrained the petitioner/applicant/complainant/appellant from approaching the Court within the given time. If the Court finds the same to be sufficient cause of delay, it may allow condonation.

Condonation of Delay under Negotiable Instruments Act, 1881

The limitation period for taking cognizance of complaint under Section 138 of NI Act has been provided under Section 142 of the same. Section 142(b) clearly states that “such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138”. This makes it clear that a cheque bounce complaint has to be made within 30 days if payment is not made after legal notice is served.

However, the proviso to Section 142(b) states that “Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period”. In other words, condonation of delay in cheque bounce cases may be allowed, if the Court is satisfied of the sufficient cause due to which the delay was caused in filing the complaint. The reasons could be the drawer of cheque convincing the payee of making payments, or the health issues faced by the complainant, etc.

Judgments on Condonation of Delay in Filing Complaint under Section 138

●       Birendra Prasad Sah v. State of Bihar and Anr (8th May, 2019)

The Supreme Court of India allowed condonation of delay in cheque bounce case while admitting that sufficient cause was shown by the complainant for the delay caused in filing the complaint as reflected in the queries to the postal department regarding receipt of first legal notice, which was eventually followed by serving second legal notice. The Apex Court therefore restored the complaint under Section 138 of NI Act.

●       Pawan Kumar Ralli v. Maninder Singh Narula (11th August, 2014)

In this case, the High Court had quashed a cheque bounce case under Section 138 of NI Act stating delay in filing the complaint. The Supreme Court noted that the complainant had first served a handwritten notice, which was well within time, and followed by a legal notice through advocate, which went beyond the limitation. The Apex Court said that the High Court should have considered the first notice since it complied with the mandate for legal notice under Section 138 of NI Act. Even otherwise, the Court sought restoration of the matter quashed by the High Court, while ordering an application for condonation of delay in cheque bounce case.

●       Subodh S. Salaskar vs Jayprakash M. Shah (1st August, 2008)

In this case, two post-dated cheques which were issued in 1996, were presented before the bank in 2001. While there was delay in filing a complaint under Section 138 of NI Act, there was absence of any application seeking condonation of delay in cheque bounce case. Thus, the Supreme Court found the case malicious, refused restoration of the matter and found the provisions of cheating under Section 420 of Indian Penal Code, 1860 attracted against the applicant.

●       M/S Saketh India Ltd. v. M/S India Securities Ltd. (10th March, 1999)

The matter herein pertained to the delay in filing complaint under Section 138 of the Negotiable Instruments Act, 1881. The Supreme Court in this case clarified that “Ordinarily in computing the time, the rule observed is to exclude the first day and to include the last. Applying the said rule, the period of one month for filing the complaint will be reckoned from the day immediately following the day on which the period of 15 days from the date of the receipt of the notice by the drawer, expires.” It clarified that the limitation period starts on expiry of the 15 day period after receipt of legal notice by the drawer of cheque.

Written by: Advocate Kishan Dutt Kalaskar

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Limitation Period for Civil Suit against Agreement to Sell

-Kishan Dutt Kalaskar

When it comes to legal remedies, you do not have a lifetime to enforce them. The Limitation Act, 1963 provides a period of limitation applicable for various claims. Once you miss out on the same, condonation of delay may be sought, but it is totally up to the Court to decide whether there is sufficient cause for such delay or not. Speaking of an agreement to sell, there is a limitation period for the same as well. What are the circumstances and when does the limitation period for civil suit against agreement to sell begins?

It may be noted that an agreement to sale involves two parties wherein one being the owner of an immovable property promises to sell the said property to another for a certain amount of consideration. The other one is the party who promises to buy the said immovable property to become a rightful owner of the same. Since it’s an immovable property, transfer of possession requires certain formalities, followed by registration of sale deed which finalises the sale of property. In between, there are chances that one of them backs out, which leads to filing of a civil suit. The information hereunder addresses the various facets related to limitation period and agreement of sale in India.

What is the limitation period for filing a civil suit?

Ordinarily, the limitation period for filing a suit in a Civil Court is 3 years from the date when cause of action arose. However, it may vary in specific civil suits. For example, the limitation period for a suit for recovery of property is 12 years. Limitation for easement rights is 20 years/30 years in case of private and government properties respectively. Thus, it depends upon the nature of civil suit to determine the limitation period.

What is the limitation period of agreement to sale?

Once an agreement for sale is signed between the seller and the buyer, the limitation period for performing the agreement to sell is 3 years. While the stated period is 3 years, it is upon the buyer that when they come to notice the other party’s reluctance or refusal to perform their part in furtherance of agreement to sell, and proceed with filing a civil suit for specific performance.

While the primary question revolved around limitation for filing civil suit for agreement to sell, the Supreme Court in the case of Raman v. R. Natarajan (2022) held that “a Court cannot grant the relief of specific performance against a person compelling him to enter into an agreement with a third party and seek specific relief against such a third party.”

Limitation for Specific Performance of Agreement to Sell

Section 54 of the Limitation Act, 1963 clearly states that the limitation period for filing a civil suit for specific performance of a contract is 3 years. The general rule is that the agreement to sale itself specifies the timeline for execution and transfer of possession of the property. However, when the said document is silent regarding limitation for performance, the limitation period for specific performance of agreement to sell may start when the buyer comes to the notice of the seller’s reluctance/refusal to hand over the possession. The Supreme Court in the case of A. Valliammai v. K.P. Murali and others (2023) clarified that as per Section 54 of Limitation Act, the limitation period either starts on the date set for execution of contract, or from the date when the buyer notices reluctance on part of the seller, not performing his part in the contract of sale.

While the limitation period is 3 years, it does not mean the buyer would stay at ease for 2 years and proceed with filing a civil suit for specific performance after a long delay. While clinching against the leverage of 3 years for specific performance of agreement to sell, the Supreme Court in case of Saradamani Kandappan vs. S. Rajalakshmi & Ors. (2011) in clear words stated that “every suit for specific performance need not be decreed merely because it is filed within the period of limitation by ignoring time limits stipulated in the agreement. The courts will also frown upon suits which are not filed immediately after the breach/refusal. The fact that the limitation is three years does not mean that a purchaser can wait for one or two years to file a suit and obtain specific performance.” The said decision was followed by the Supreme Court in Rajesh Kumar v. Anand Kumar & Ors.

Limitation Period for Registered Sale Agreement

An agreement to sale which is duly registered cannot be denied in the usual course. However, Article 59 of the Limitation Act, 1963 provides for setting aside of cancellation of an instrument/decree/rescission of contract. Limitation period for cancellation of a registered sale agreement is 3 years from the date when the person came to know about facts which entitles them to a legal remedy.

The Supreme Court in this regard decided the case of Prem Singh & Ors v. Birbal & Ors (2006) and held that “Once, however, a suit is filed by a plaintiff for cancellation of a transaction, it would be governed by Article 59. Even if Article 59 is not attracted, the residuary Article would be. Article 59 would be attracted when coercion, undue influence, misappropriation or fraud which the plaintiff asserts is required to be proved. Article 59 would apply to the case of such instruments. It would, therefore, apply where a document is prima facie valid. It would not apply only to instruments which are presumptively invalid.”

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How to change my Advocate? - Find Here

-Kishan Dutt Kalaskar

Where there is a legal right, there is a legal remedy, and you need knowledge of law to claim that remedy. A person may appear in-person or hire a lawyer for representation during the Court proceedings. It is always advisable to have an experienced advocate by your side when some legal rights are at stake. But what happens if your current lawyer is not representing you in the case? Do you have any recourse against a lawyer not duly performing his/her professional services? Can you change your advocate? If yes, does the lawyer have a say in this regard? The law in India states that you have the right to choose your lawyer while being represented in the Court of Law. Nobody can impose another lawyer upon you without your consent. Here, we are looking at the other side, on the legal process which allows change of lawyer in India. But first, it is crucial to understand how lawyers are hired.

How are advocates appointed for Court Case?

In the Court, advocates represent the cause of their clients, usually laymen. It may be noted that not any advocate can come up and say that he/she shall represent a given client in the Court proceedings. Here, the role of Vakalatnama comes into play. It is a legal document which authorises an advocate to act on behalf, plead, appear and represent a client in the Court of Law. There are common forms for Vakalatnama available in Courts/with the advocates. When a client approaches an advocate to initiate a civil suit or criminal case, such an advocate would present a Vakalatnama to be signed by the parties to authorise him/her as their advocate before the Court. 

Can I change my advocate?

An advocate is appointed by you to be represented before the Court of Law. If you think that he/she is not taking care of your legal interests, is not appearing during the proceedings, or not representing you in a dedicated manner before the Court, you may go for changing your advocate. Speaking of the Grundnorm, the Constitution of India, Article 22(1) mentions about a person’s “right to consult, and to be defended by, a legal practitioner of his choice.”. Looking at the Code of Civil Procedure, 1908, Order 3 of the same provides for right to choose a pleader for the aggrieved party. Section 340 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 provides for the right of the accused to be defended by an advocate of his choice. Thus, if you think that the lawyer representing you in an ongoing case is not able to take care of your interests, you may proceed with a change of advocate. 

How to change lawyers in the middle of a case in India?

A person cannot randomly switch lawyers so that on a given day, you were being represented by X, whose work fashion was disliked by you, and the next day, you came up with another lawyer on your side, to deal with the case. That’s not how it works in Courts. To safeguard the interests and time of Clients, Courts and most importantly the Advocates. There are some rules for change of advocate in an ongoing case. The clients need to seek permission from their current lawyer, get a No-Objection Certificate (NOC) in this regard, relieve them from service by paying dues, if any, and then file another Vakalatnama appointing another advocate of choice.

What to do if an advocate refuses to give NOC?

It is always better to have a clear discussion with your lawyer regarding the reasons for why you think that you should hire another lawyer’s services. This may bring some sense of realisation and the advocate may himself/herself agree to provide the NOC for change of advocate. However, if it does not work, you may file a memo seeking Court’s intervention for change of advocate. The Court so concerned may either directly seek the advocate to provide the NOC and return all the documents related to the Court proceedings, or grant leave to be represented by another advocate. In such cases, NOC may no longer be required. 

How to change my advocate - Inference

It can be understood from the above discussion that the laws in India do support change of advocate, even in the middle of Court proceedings. However, it is important to get an NOC from your current lawyer, hinting at a halt of professional services in the legal matter. If the lawyer refuses to hand over the NOC and case related documents, the aggrieved party can also approach the Court seeking interference and redressal. This will lead to cancellation of Vakalatnama of the previous counsel and the person may file Vakalatnama after change of advocate.

Meta Title - How to Change My Advocate | Online Legal Query

Meta Description - Know how to change my advocate in India, in civil or criminal proceedings. Also know about change of advocate without NOC

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A mere cheque bounce can attract criminal proceedings as under Section 138 of the Negotiable Instruments Act, 1881. The person in whose favour the cheque was drawn files a complaint against the person who drew the cheque but the payment did not succeed as provided under Section 138 of NI Act. There is a provision under Section 143A of NI Act to provide financial relief to the complainant even before the matter is decided. So here, we are discussing how a complainant can get interim compensation under Section 143A of NI Act, and the accompanying rules which lay the path for interim relief to the complainant in a cheque bounce matter. 

Amended Cheque Bounce Provisions- 143A & 148…what is it?

Section 143A- It empowers the Court to order the drawer of the cheque to pay Interim Compensation  - 20% - Without depositing this amount the accused cannot defend the case.

Section 148 – It empowers the Appellate Court to order payment pending the appeal against conviction

The Appellate Court may order the appellant to deposit an amount which shall be a minimum of 20% of the fine or compensation awarded by the trial Court.

This amount shall be in addition to the amount already paid by the appellant under Section 143A.

It received the assent of the President and was notified in the Official Gazette on 02.08.2018

Insertion of a new section 148 related to Deposit in case of appeal

The Amendment Bill inserts a new Section 143 (A) in the NIA Act of 1881 to provide that the court trying an offence under Section 138 may order the drawer of the cheque to pay interim compensation to the complainant, in a summary trial or a summon case, where the drawer pleads not guilty to the accusation made in the complaint; and in any other case, upon framing of charge. The interim compensation so payable shall be such sum not exceeding 20 per cent of the amount of the cheque.

The said interim compensation has to be paid within a period of 60 days from the date on which the order to that effect is made. The interim compensation so recovered shall be deductible from the amount of fine imposed under Section 138 by the Magistrate upon conviction of the drawer or any compensation directed to be paid under section 357 of the Code of Criminal Procedure(CrPC), 1973 (Section 395 of BNSS, 2023). Section 138 of the Act of 1881 provides for imposition of a sentence of imprisonment not exceeding a period of 2 years or fine extending to twice the amount of the dishonoured cheque or both.

The said amount of interim compensation may be recovered in the manner provided under section 421 of CrPC i.e., Section 463 of the Bharatiya Nagarik Suraksha Sanhita, 2023 – by way of attachment and sale of any movable property of the drawer, or a warrant to the Collector of the concerned district to recover the same as arrears of land revenue from the movable or immovable property of the drawer.

b) Insertion of a new section 148 related to Deposit in case of appeal:

the insertion of Section 148 in the Act of 1881 whereunder, in an appeal by the drawer against conviction under Section 138, the Appellate court is empowered to order the appellant to deposit such sum which shall be a minimum of 20 per cent of the fine or compensation awarded by the trial court. The amount so payable shall be in addition to any interim compensation paid by the Appellant under Section 143A. Also, the same has to be deposited within a period of 60 days from the date of order or within such further period not exceeding 30 days or may be directed by the Court on sufficient reasons being shown by the Appellant.

c) Returning the interim compensation/deposit:

In case the drawer is acquitted (during trial or by the Appellate court), the court will direct the complainant to return the interim compensation (or deposit in case of an appeal case), along with an interest at the bank rate as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial year. This amount will be repaid within 60 days of the court’s order, or within such further period not exceeding 30 days as may be directed by Court on sufficient grounds shown by the complainant.

Section 143A of Negotiable Instruments Act, 1881

The provision regarding interim compensation for a Cheque bounce case under Section 138 of NI Act was not there in the original law, but has been recently inserted through an amendment in the year 2018. The Section 143A of NI Act gives liberty to the Trial Court to direct drawer of the cheque, the accused in this case, to pay interim compensation to the complainant when he pleads not guilty or after framing of charges, as the case may be. There is a bar on compensation to be restricted to 20% of the amount involved under Section 138 of Negotiable Instruments Act.

How to get 20% compensation under Section 143A of NI Act?

After filing of complaint under Section 138 of Negotiable Instruments Act, 1881, the next date usually happens to be when the drawer of the cheque appears before the Trial Court, gets bail, and the Court frames charges against him/her. The Court may itself direct the accused to pay compensation of part amount to the complainant, which may not be more than 20% of the amount involved in cheque.

At this point, the complainant may present an application under Section 143A of the NI Act, stating that notice was issued after filing of a complaint under Section 138 of NI Act, however, the accused/drawer of cheque has not paid any amount to the complainant in furtherance of the amount involved in the cheque, which is subject matter of the case. The Court may therefore direct the accused to pay compensation of 20% or less of the amount of the cheque involved. Such an accused has 60 days to pay the said compensation. The term may be extended for another 30 days if the accused is able to convince the Court for the existence of sufficient reasons for his inability to pay compensation within 60 days. In total, the accused gets 90 days to pay the compensation under Section 143A of NI Act.

It may be noted that if the accused person fails to pay the said amount of compensation as directed by the Court under Section 143A of NI Act, the Court may issue warrant for recovery of the said amount in accordance with Section 421 of CrPC, i.e., Section 463 of the Bharatiya Nagarik Suraksha Sanhita, 2023. The said provision provides for recovery through attachment and sale of property. If guilt of the accused is proved at the end of trial, the said 20% amount is adjusted in the final amount payable in cheque bounce case.

How to withdraw Interim Compensation under Section 143A of NI Act?

Once a Court has ordered in favour of the complainant and directed the accused to pay interim compensation of 20% or less to the complainant, the Court itself specifies the mode through which such amount shall be paid. The said Court orders may direct the accused to deposit the amount in the favour of the District Judge in the form of a Demand Draft. In such case, the complainant in turn has to apply to the said judge for withdrawal of the interim compensation. In some cases, the Court may order payment in favour of the NAZARAT branch of the Court, and the complainant may later withdraw the amount from there. As per recent trends, the Court may order an interim compensation amount to be directly transferred in the complainant’s bank account. In any case, it is the Court which decides the mode through which interim compensation under Section 138 of NI Act has to be paid.

What happens if a person is acquitted in a Cheque Bounce Case?

If the person is acquitted by the Court in a Cheque Bounce Case under Section 138 of Negotiable Instruments Act, he/she is entitled to get back the amount paid earlier in the name of compensation under Section 143A of NI Act along with interest in accordance with the rate decided under the RBI Rules. The said amount can be legally recovered from the complainant.

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The institution of marriage holds significant importance and plays a crucial role in society. Despite the rising trend of divorce cases being filed in courts, marriage is still regarded as a sacred, spiritual, and deeply emotional bond between husband and wife in Indian society. It is governed not only by legal frameworks but also by societal norms. Numerous other relationships arise from and flourish through matrimonial bonds.

Divorce, in simple terms, is the legal ending of a marriage through the Court, but the process and laws differ depending on religion in India. Hindus, Muslims, and Christians each have different procedures. Divorce involves not only the separation of husband and wife but also decisions about child custody and property division.

Theories of Divorce

There are three main theories about divorce:

1.     Fault Theory:

In this theory, one spouse can seek a divorce if the other spouse has committed a wrongdoing or matrimonial offense. Section 13 of the Hindu Marriage Act outlines the grounds for this type of divorce.

2.     Mutual Consent Theory:

This type of divorce is covered under Section 13-B of the Hindu Marriage Act. It allows both the husband and wife to agree to a peaceful divorce. Before proceeding, they must settle issues like alimony and child custody. The two key conditions for this type of divorce are: (i) mutual consent, and (ii) the couple must have lived separately for at least one year.

3.     Irretrievable Breakdown of Marriage Theory:

This theory applies when the husband and wife can no longer live together, and the marriage is beyond repair. For example, if they are constantly quarrelling or living apart, it could lead to an irretrievable breakdown. Unlike the other two, there is no specific law for this in India yet. The Court examines the facts and evidence to decide if the marriage can be saved or not.

On May 1^st, 2023, a Constitution Bench of the Supreme Court gave a unanimous judgment in the case of Shilpa Sailesh v Varun Sreenivasan. The Court ruled that it has the power to directly grant a divorce on the grounds of ‘irretrievable breakdown of marriage’ under Article 142 of the Constitution.

Background

The Bench explained that Article 142 gives the Supreme Court special powers to ensure justice, fairness, and good conscience. This article is unique because it allows the Court to go beyond normal legal procedures and laws to achieve 'complete justice'. However, the Bench also noted that this power must be used with caution and responsibility, while respecting basic principles like fundamental rights, secularism, and federalism, which are key parts of the Indian Constitution. Additionally, any specific public policy expressed in laws should also be protected.

Supreme Court's Power to Grant Divorce Under Article 142

According to Section 13B of the Hindu Marriage Act, 1955, couples seeking a mutual consent divorce must wait for 6-18 months after filing a joint application. If the application is not withdrawn during this time, the court can move ahead and grant the divorce. The Bench ruled that under Article 142, the Supreme Court is not required to follow this waiting period and can grant a divorce even if the case is still ongoing in a Family Court. The Court can also grant a divorce due to an ‘irretrievable breakdown of marriage’, even if one spouse disagrees, if it is necessary for justice.

The Bench acknowledged that the waiting period can be a barrier in cases where a marriage is clearly beyond saving, but it also stressed the importance of this time gap, which gives couples the chance to reconsider their decision. The waiting period can only be skipped if the Court believes that the marriage is completely beyond repair.

Before deciding if a marriage is irretrievably broken, the Court will consider factors like:

·       How long the couple lived together after marriage

·       The last time they lived together

·       The nature of the accusations made against each other

·       Any attempts to resolve their issues

·       A sufficiently long period of separation between them.

"Irretrievable breakdown of marriage" is not a direct reason for divorce. However, when reviewing the evidence to decide if there are valid grounds for divorce, the Court can consider the circumstances. Divorce cannot be granted on this basis if the person seeking it is at fault themselves.

Divorce on the grounds of irretrievable breakdown can be allowed when both partners have made such serious accusations against each other that the marriage seems beyond saving and they can no longer live together. The Court should use this power very carefully and only in special cases where it is truly in the best interest of both spouses.

Recent cases like Rajib Kumar Roy v. Sushmita Saha (2023) confirmed that forcing a couple to stay in a broken marriage can amount to cruelty. Another landmark case was Naveen Kohli v. Neelu Kohli (2006), where the Court observed that when a marriage is beyond repair, it is unfair to continue the legal relationship. The judgment emphasized that compelling a couple to stay together in such cases would only result in greater emotional and psychological harm.

The SC carefully considers various factors, including how long the couple has lived apart, the last time they cohabited, and any efforts to reconcile before concluding that the marriage is irreparable. In such cases, even if one party contests the divorce, the Court can still dissolve the marriage to avoid further harm.

These decisions have made the concept of irretrievable breakdown a valid basis for divorce in exceptional cases, though it hasn't been incorporated into statutory law yet.