Family Law II_Bars to Matrimonial Reliefs

Bars to Matrimonial Reliefs

• Section 23 of the Hindu Marriage Act, 1955 only provides the list of grounds/bars to matrimonial reliefs.
• There are mainly eight bars to matrimonial remedies. They are as follows -

1.  Doctrine of Strict Proof 
• The Court cannot merely pass a decree on the basis of admission of the Petition of the parties. 
• The court may refuse to pass a decree for judicial separation, if it felt that, it was violation of the requirement of doctrine of strict proof enacted in Section 23(1) 
2. Advantage of one’s own wrong or disability
• This bar enacted only in the HMA1955.
• This bars lays down that, if the Petitioner is directly or indirectly responsible for respondent’s wrong the petition cannot be granted.
3. Accessory
• This bar is applicable only when the Petition is filed on the ground of respondents’ adultery.
• Accessory is usually term used in criminal law. It indicates the active participation of the Petitioner in the crime of the Respondent. If such participation is proved then the petitioner cannot get a decree. 
4. Connivance 
• The term Connivance is originated from the word connive. It means “to wink at”. 
• Accessory and connivance have the same quality but in the former one there is an active participation by the Petitioner however, in the latter, there is corrupt intention but not active participation. 
• Once the intention is proved, the Petitioner cannot entitle a decree.
5. Condonation 
• Condonation is applicable to the matrimonial offences of adultery and cruelty.
• Condonation includes two essential components: forgiveness and reinstatement.
• Case - Dastane V/s Dastane - In this case the Husband presented the Petition for judicial separation on the ground of wife’s cruelty. However, he was continued to cohabit with wife and few months before presentation of Petition, a child was born. The Supreme Court specifically observed that, the act continuance of sexual intercourse between the parties was nothing but forgiveness and reconciliation.  And therefore it raised a presumption of condonation.
• It is applicable to all the matrimonial offences, since it is the general bar.
6. Collusion 
• We can say collusion means a secret understanding between the persons. 
• The burden of proof lies on the petitioner to prove that there is no collusion. 
• The foundation of the doctrine of collusion is on the rule that all those who want relief from the matrimonial court should approach before it with clean hands.
• Originally under the Hindu Marriage Act, collusion was a bar to all matrimonial reliefs, but the Marriage Laws (Amendment) Act has abolished collusion as a bar to the petition.
7. Delay
• Improper or unnecessary delay is bar to matrimonial reliefs under HMA, 1955. The Petition must be presented before the court within reasonable time. 
• The burden of proof that there has not been improper or unreasonable delay is on the Petitioner. 
8. Residue Clause, Any other legal ground
• It may be noted that, since this is general bar applicable to all matrimonial remedies. 
• The residue clause has not yet come up for interpretation before the Indian Courts.

Award, Jurisdiction and Powers of the Lok-Adalat

Award, Jurisdiction and Powers of the Lok-Adalat 

AWARD

Section 21 of the Legal Service Authorities Act, 1987 deals with Award of Lok Adalat (LA). The Lok – Adalat is empowered to pass an Award for a dispute which is referred to it for determination. It may be noted that, every Award passed by the Lok Adalat shall be deemed to be a decree of a civil court. The Award delivered by the LA shall be the final. It is binding upon all the parties to the dispute. No appeal shall lie to any court against such Award of the Lok-Adalat. 

JURISDICTION

The LA shall have authority to decide and to arrive at a settlement between the parties to a dispute in respect of following matters: 

1. Any matter pending before it; or
2. Any case which is falling within the jurisdiction of it, and it is not brought before any court for which the Lok Adalat is organized. 
3. The Lok Adalat can also compromise and settle criminal cases, which are compoundable in nature under the law. 

POWERS

Section 22 of the Legal Service Authorities Act, 1987 deals with Powers of Lok Adalat or Permanent Lok Adalat. The Lok Adalat or Permanent Lok Adalat shall have the same powers as of a Civil Court enumerated in the Code of Civil Procedure 1908, while deciding the following matters: 

1. To summon and enforcing the attendance of any witness and 
2. To examine a witness on oath 
3. To discover and production of any document 
4. To take evidence on affidavits 
5. To ask any public record or document or copy of such record or document from any court of office, and 
6. To do such other matters as may be prescribed. 

a) Every Lok Adalat or Permanent Lok Adalat shall have the requisite power to specify its own procedure for the determination of any dispute coming before it. 

b) All proceedings before a Lok Adalat or Permanent Lok Adalat shall be deemed to be judicial proceeding within the meaning of sections 193, 219 and 228 of the Indian Penal Code (45 of 1860), and every LA or PLA shall be deemed to be a civil court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.

CR.PC_First Information Report

First Information Report

1. Section 154 of the Code of Criminal Procedure, 1973 provides for FIR.
2. It deals with the information relating to the commission of a cognizable offense 
3. Any person can inform the commission of a cognizable offense to the police either orally or in writing.  
4. The FIR is a very important document because the FIR sets the criminal law in motion. 
5. Once, the information has been recorded by the Police, it must be signed by the person giving the said information. 
6. The copy of FIR must be provided to the informant without any cost. 
7. Sections 182, 203 and 211 of the IPC provide for the punishment for giving false information to the Police. 
8. Essentials about a FIR – 
• The information should be related with the commission of a cognizable offense
• It must be first point of time.
• It should not be vague or indefinite. 
• It should be given to the officer in charge of the Police Station. 
• It may be given orally or writing. If the said information is given orally, it must reduce to writing. 
• It may be given by anybody. 
• It should be signed or marked by the informant. 
• The copy of FIR must be provided to the informant.
9. The FIR is different from a Complaint. A complaint is an allegation made orally or in writing to the Magistrate. Whereas, the first information is given in writing or orally to the police officer. 
10. The Hon’ble. High Courts have the power to quash an First Information Report. As per Section 482 of Cr.PC, the the High Court has powers to prevent abuse of the process of any Court of law and to secure the ends of justice.