How to file a suit and the procedures involved

The law dictionary defines a suit as a “proceeding initiated on the production of a plaint in a civil court”. The plaint is a statement of claim filed by the plaintiff who is the person who institutes the suit and has a  cause of action to file the same.  It is followed by a written statement which is a reply that is filed by the defendant answering the claim of the plaintiff within a period of 30 days as allowed by the Order VIII of Civil Procedure Code. After the written statement has been filed the suit enters the stage of admission denial of documents and the discovery and inspection of documents which is carried out according to the provisions of Order XII and Order XIII of the Code of Civil Procedure.

Then comes the stage where the court proceeds with the suit and determines the real issues involved in the suit in relation to the matter or any of the matters in controversy and the issues are then framed by the court after prima facie examining the witnesses of the parties and examining the evidence and the pleading on record. This stage of the suit is termed as the “framing of issues” and is governed by Order XIV of the code of civil procedure.  The issue framing stage is then followed by evidence taking stage where the evidence of the witnesses, parties and the documentary evidence available before the court or which has been produced by the parties are examined by the court . The evidence taking stage is governed by Indian Evidence Act, 1872 dealing with relevancy of facts, the admissions, the manner in which the corroboration and examination in chief and cross examination has to be done and the procedure which has to be followed in this stage has been categorically stated in Order XVI of the Civil Procedure Code which with the attendance of witnesses and Order XVII which deals with hearing and examination of witnesses.

 It is then followed by a judgment and decree by a court which has to be made in accordance with the Order XX of Code of Civil Procedure. The distinction between the judgment and decree has been mentioned in the definition clause but stating it very precisely a decree is a formal expression of the court with regards to an issue or issues and a judgment is the decision which is given by the judge of the grounds of an order or decree. The code of civil procedure defines an order in negative terms as any decision or adjudication of the court which is not a decree.

The proceedings in a civil suit though comes to an end after the judgment has been delivered but in practice the procedure is then followed by the procedure of getting the decree executed by the person in whose favour the decree has been passed who is called the decree holder in law. The process of execution of decree can be initiated in the court which passed the decree or the court to which the decree is sent for execution. The manner and the procedures regarding the execution of different types of decree be it a money decree, decree of specific performance is executed by the court according to the provisions of order XXI read with Section 36 to Section 50 of the code of civil procedure.

The entire process of instituting the suit to the examination of witnesses, the delivery of a judgment and decree and then the execution is carried out according to the different orders and rules and section as laid down under the provisions of the Code of Civil Procedure which is the ultimate manual to understand how the suit is instituted and the various stages through which a suit goes till the time the issues are settled and adjudicated by the court and the decision of the court is given the form of a judgment or a decree. 

The author is a practicing lawyer at the courts of Delhi and can be contacted at lawyer.soniasaini@gmail.com 

The concept of ‘maintenance’ under Indian law

The concept of maintenance flows from the concept of the marriage and the duty of the husband after marriage to maintain his wife and minor children and also to maintain his old parents throughout their life. Maintenance in comman parlance would mean the providing of food, shelter and money which is fair and reasonable. The article would cover the issues relating to the persons entitled to maintenance , the grounds and circumstances under which it can be granted and the modification and  forfeiture of same.

Laws for granting Maintenance: The laws under which Maintenance in India can be granted are :

• Section 125 Criminal Procedure Code( Cr.P.C.)
• Section 20 of Protection of women from Domestic Violence
• Section 18 of Hindu Adoption and Maintenance Act
• Section 24 of Hindu Marriage Act
• Section 25 of Hindu Marriage Act
• Personal Laws

Who can be granted Maintenance: The maintenance in law can be granted to the following persons :

·         Wife

·         Minor legitimate or Illegitimate Son

·         Minor Legitimate or Illegitimate Daughter

·         Adult Son or Daughter unable to maintain himself or herself due to some mental deformity

·         Father and mother

On what grounds it is granted : In order to get a maintenance order in ones favour it is necessary for the party to prove that the party has no means to maintain himself or herself and the other party has the “sufficient means “ and fails to maintain the contesting party. While granting maintenance the courts looks at the following factors :

1. Status of the husband and wife.
2. Salary/ Income of the husband
3. Salary /Income of the wife
4. Liabilities of husband, if any
5. Dependants
6. Reasonable wants of claimant.
7. Financial Background
8. Movable & Immovable properties of the Husband

A married woman loses her right to be maintained if she marries any other person after her divorce or establishes a relationship which is adulterous in the eyes of law with any other person or fails to live with the husband without any reasonable cause or has agreed to take divorce by mutual consent in case the maintenance application is filed after divorce or with it. The maintenance amount once decided can be varied if there is a change in circumstances and if an order of maintenance has been passed by any other court or it has so been decided by the personal law governing the parties.

The author is a practicing lawyer and can be contacted at lawyer.soniasaini@gmail.com or 9873658554

What are summons? What should be done when summons are received?

I often get panic calls from some of the clients that they have received a summon from the court. Any order or any notice from the court or police often generates a fear in the mind of a layman. So here I am dealing with the issues concerning summons, what do they mean, what is done when a person on whom a summons has to be served is not found and what are the duties of a person on whom the summons are served . For the sake of brevity I would be covering the different topics under different heads

What is a summon?

A summon is a court order to an individual to appear in court at a specified time and place. A summon may be issued in both criminal and in civil cases.

How Is A Summon Served

1. Every summon shall be served by a police officer, or by an officer of the court issuing it or any other public servant.
2. The summon shall if practical, be served personally on the person summoned, by delivering or tendering to him one of the duplicates of the summons.
3. Every person on whom a summon is served shall sign a receipt on the back of the other duplicate.

Service When Persons Summoned Cannot Be Found

Where the persons summoned cannot be found, the summons may be served by leaving one of the duplicates for the person with some adult male member of the family residing with him, and the person with whom the summon is left, shall sign a receipt on the back of the duplicate.

A servant is not a member of the family.

Summons May Be Served By Post To A Witness

A court issuing summons to a witness may simultaneously direct a copy of the summons to be served by registered post addressed to the witness. When an acknowledgment purporting to be signed by the witness or an endorsement is made by the postal employee that the witness refused to take delivery of the summons has been received, the Court issuing the summons may declare that the summons has been duly served.

In case the service of summons is evaded the court may issue bailable or non-bailable warrants.

Proclamation For Person Absconding

If any court has reason to believe that any person against whom a warrant has been issued has absconded or is concealing himself so that such warrant cannot be executed, such court may publish a written proclamation requiring him to appear at a specified place and time within 30 days of publishing such proclamation.

The proclamation shall be published as follows:-

1. It shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;
2. It shall be affixed in some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;
3. A copy thereof shall be affixed to some conspicuous part of the court house;
4. The court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which person resides.

Attachment Of Property Of Person Absconding

The Court issuing a proclamation may, at any time after the issue of the proclamation, order the attachment of any property, movable or immovable or both, belonging to the proclaimed person:

Provided where at the time of issue of the proclamation the Court is satisfied that the person in relation to whom the proclamation is to be issued –

1. is about to dispose of the whole or any part of his property, or
2. is about to remove the whole or any part of his property from the local jurisdiction of the Court

It may order the attachment simultaneously with the issue of the proclamation.

Your Duties

1. To accept the summons and sign the duplicate if required.
2. To treat the officer serving the summon with respect.
3. To appear on the date mentioned in the summons or engage a lawyer to appear on your behalf.

The author is a practicing lawyer and can be contacted at lawyer.soniasaini@gmail.com or 9873658554.

Getting marriage registered ....

How to get marriage registered?

This is one of the queries which I receive as a budding lawyers and people are generally misguided by touts who often demand an  huge amount in getting marriage registered which is such a simple procedure that anyone can themselves do without any problem. There is the procedure in a simplified version for all those wanting to get their marriage registered:

1)    Where to go ?

 To the office of Sub-Divisional Magistrate in whose jurisdiction any of the husband or wife resides, during 9.30 a.m. to 1.00 p.m. on any working day.Click Here to obtain the contact address of the SDM in whose jurisdiction in your colony lies.

2)     Which papers/documents/fees, do I take with me?

1      Application form duly signed by both husband and wife.

2      Documentary evidence of date of birth of parties (Matriculation Certificate / Passport / Birth Certificate) Minimum age of both parties is 21 years at the time of registration under the Special Marriage Act.

3      Ration card of husband or wife whose area SDM has been approached for the certificate.

4      In case of Special Marriage Act, documentary evidence regarding stay in Delhi of the parties for more than 30 days (ration card or report from the concerned SHO).

5      Affidavit by both the parties stating place and date of marriage, date of birth, marital status at the time of marriage and nationality.

6      Two passport size photographs of both the parties and one marriage photograph.

7      Marriage invitation card, if available.

8      If marriage was solemnized in a religious place, a certificate from the priest is required who solemnized the marriage.

9      Rs. 100/- in case of Hindu Marriage Act and Rs.150/- in case of Special Marriage Act to be deposited with the cashier of District and the receipt should be attached with the application form.

10    Affirmation that the parties are not related to each other within the prohibited degree of relationship as per Hindu Marriage Act or Special Marriage Act as the case may be.

11    Attested copy of divorce decree/order in case of a divorcee and death certificate of spouse in case of widow/widower.

12    In case one of the parties belong to other than Hindu, Budhist, Jain and Sikh religions, a conversion certificate from the priest who solemnized the marriage(in case of Hindu Marriage Act).

13    All documents excluding receipt should be attested by a Gazetted Officer.

3) What will be the criteria used while deciding my case?

A) Hindu Marriage Act

Verification of all the documents is carried out on the date of application and a day is fixed and communicated to the parties for registration. On the said day, both parties, alongwith a Gazetted Officer who attended their marriage, need to be present before the SDM. The Certificate is issued on the same day.

B) Special Marriage Act

Both parties are required to be present after submission of documents for issuance of public notice inviting objections. One copy of notice is pasted on the notice board of the office and copy of the notice is sent by registered post to both parties as per address given by them. Registration is done 30 days after the date of notice after deciding any objection that may have been received during that period by the SDM. Both parties along with three witnesses are required to be present on the date of registration.

4)  What are the relevant Forms?

Click here for Application Form for registration of marriage under Hindu Marriage Act.
Click here for Application Form for registration of marriage under Special Marriage Act.
Click here for Identification Certificate a)any person having PAN of income Tax (OR) b) any officer/official of Central or State govt. or UT Administration or PSU/Autonomous bodies whose identity can be established
Click here for Affidavit

Q. When will I get a response?

You should be getting a response normally within 15 days in case of registration of marriage under Hindu Marriage Act and 60 days under Special Marriage Act.

Solemnisation of Marriage under Special Marriage Act

Special Marriage Act, 1954 provides for solemnisation of marriages in accordance with the provisions of the Act. SDMs/ADMs/Deputy Commissioners have been authorised as Marriage Officers for this purpose.

Q. Where do I have to go and during which hours?

To the office of Sub-Divisional Magistrate in whose jurisdiction any of the husband or wife resides, during 9.30 a.m. to 1.00 Noon on any working day. Click Here to obtain the contact address of the SDM in whose jurisdiction in your colony lies.

Q. Which papers/documents/fees, do I take with me?

1. Application form duly filled and signed by the bride and the groom.
2. Fee of Rs.15/- is to be deposited with cashier of District and the receipt should be attached with the form.
3. Documentary evidence of date of birth of both parties (Matriculation Certificate/Passport/Birth Certificate).
4. Documentary evidence regarding stay in Delhi of one of the parties for more than 30 days (ration card or report from the concerned SHO).
5. Separate affidavits from bride and groom giving:
1. Date of birth.
2. Present marital status: unmarried/widower/ divorcee.
3. Affirmation that the parties are not related to each other within the degree of prohibited relationship defined in the Special Marriage Act.
6. Passport size photographs of both parties (2 copies each) duly attested by a Gazetted Officer.
7. Copy of divorce decree/order in case of a divorcee and death certificate of spouse in case of widow/widower.
8.  

Q. What will be the criteria used while deciding my case?

For solemnization of marriage, presence of both parties is required after submission of documents of issuance of notice of intended marriage. A copy of the notice is pasted on the office notice board by the SDM. Any person may within 30 days of issue of notice , file objection to the intended marriages. In such a case, the SDM shall not solemnise the marriage until he has decided the objection, within 30 days of its receipt. If the SDM refuses to solemnise the marriage, any of the parties may file an appeal within 30 days to the District Court. In case no objection is received, the SDM solemnises the marriage after 30 days of the notice. Both parties alongwith 3 witnesses are required to be present on the date of solemnisation of marriage. It is advisable to submit names of witnesses atleast one day in advance.

Q. What are the relevant Forms?

Click here for relevant Form

Q. When will I get a response?

You should be getting a response normally within 60 days.

source : http://delhi.gov.in/wps/wcm/connect/DoIT/delhi+govt/community/marriage+certificate+and+registration

The author is a lawyer practicing in the Delhi High Court and other courts of Delhi and can be contacted at lawyer.soniasaini@gmail.com or 9873658554

Name change and the formalities involved .

How do I change my name? what are the steps involved ?

As a budding lawyer I have got this query from my known people many a times. Having guided them from time to time, I am putting here the procedures involved in getting ones name changed in a simple and easy language. For the sake of brevity I have categorized the procedure into steps.

Steps involved:

Step 1: Getting an affidavit is the first step to get your name changed. For this you can visit the nearest court or the nearest notary and get an affidavit made. The content of the affidavit can be taken from the internet very easily and there is no need to pay the notaries as extra amount for the content which they normally charge. The affidavit should not cost you more than 100 rupees.

Step2:  The second step is getting your intention to get you name changed published in at least 2 local newspapers. For this you can step into office of any newspaper and they would guide you with the content that would be published in the newspapers in this regard. After the same is published in the newspaper you should preserve the copy of the newspapers as well as keep extra copies for future reference.

Step 3: The step 3 is getting the same published in the official gazette of your respective state , when you apply to them they would be sending you the copy of the published information once it is published.

Step 4: This would be to get your name changed in driving license, aadhar card, passport etc by attaching the copy of the documents mentioned above.

The author is a lawyer practicing in the Delhi High Court and other courts of Delhi and can be contacted at lawyer.soniasaini@gmail.com or 9873658554

Cyber Crimes in India; a quick guide .

My facebook page is hacked? What next? What remedy do I have in law?

What is a cyber crime?

As a comman person we often hear about the word cyber crime being used when a computer system, computer resource is hacked or compromised in such manner as to cause a wrongful loss to a person. Cyber crimes can be in other forms too , below is the list of cyber crimes which find a mention in the Information Technology act :

1)      Tampering with the computer system

2)      Sending messages which are offensive and menacing in character

3)      Sending messages such as to fake or confuse the person receiving the messages as to the identity and the origin of the messages

4)      Sending messages with the intent to cause injury, annoyance, mischief etc

5)      Receiving and possessing stolen computer, communication device, computer system and computer resource

6)      Identity theft crimes

7)      Cheating

8)      Cheating by personation

9)      Publishing obscene data

10)   Hindering the privacy of an individual by transmitting, publishing his private photographs

11)   Child pornography and different forms , even browsing collecting and storing of data related to child pornography is an offence under the provisions of law

12)   Cyber terrorism

The cyber crimes that a normal person is faced with every day is either a stealing of his passwords or getting an access to his computer system without due permission or using his fake profile to cause an injury to his reputation or publishing his photographs online in such a manner that appear an hindrance of their privacy or are pornographic in nature. When a person is faced with such cyber crime he generally does not what to do, here is a checklist for the people to prepare before reporting the matter to the cyber crime department, the information and address of whom I would be putting at the end of this article. The check list is as follows:

If you are a victim of hacking

Carry the following information

• Server Logs
• Copy of defaced web page in soft copy as well as hard copy format, if your website is defaced
• If data is compromised on your server or computer or any other network equipment, soft copy of original data and soft copy of compromised data.
• Access control mechanism details i.e.- who had what kind of the access to the compromised system
• List of suspects – if the victim is having any suspicion on anyone.
• All relevant information leading to the answers to following questions –
• what ? (what is compromised)
• who? (who might have compromised system)
• when?(when the systme was compromised)
• why?(why the system might have been compromised)
• where?(where is the impact of attack-identifying the target system from the network)
• How many?(How many systems have been compromised by the attack)
• If your are a victim of e-mail abuse, vulgur e-mail etc.
  
  Carry  the following information- 
• Extract the extended headers of offending e-mail .
• carry  soft copy as well hard copy of offending e-mail.
• Please do not delete the offending e-mail from your e-mail box.
• Please save the copy of offending e-mail on your computers hard drive.

The cyber crime cell  details are : 

Assam CID HQ,Dy.SP. Assam Police contact Details Ph: +91-361-252-618       +91-9435045242 E-mail: ssp_cod@assampolice.com	Chennai Address: Assistant Commissioner of Police Cyber Crime Cell Commissioner office Campus Egmore, Chennai- 600008 Contact Details: +91-40-5549 8211 E-mail id: s.balu@nic.in For Rest of Tamil Nadu, Address: Cyber Crime Cell, CB, CID, Chennai ph: +91 44 2250 2512 E-mail id: cbcyber@tn.nic.in
Bangalore  (for whole of the Karnataka) Address: Cyber Crime Police Station C.O.D Headquarters, Carlton House, # 1, Palace Road, Bangalore - 560 001 Contact Details: +91-80-2220 1026 +91-80-2294 3050 +91-80-2238 7611 (FAX) Web site: http://www.cyberpolicebangalore.nic.in/ Email-id: ccps@blr.vsnl.net.in, ccps@kar.nic.in	Hyderabad Address: Cyber Crime Police Station Crime Investigation Department, 3rd Floor, D.G.P. office Lakdikapool, Hyderabad – 500004 Contact Details: +91-40-2324 0663 +91-40-2785 2274 +91-40-2785 2040 +91-40-2329 7474 (Fax) Web site:http://www.cidap.gov.in/cybercrimes.aspx E-mail id: cidap@cidap.gov.in, info@cidap.gov.in cybercell_hyd@hyd.appolice.gov.in
Delhi CBI Cyber Crime Cell: Superintendent of Police, Cyber Crime Investigation Cell Central Bureau of Investigation, 5th Floor, Block No.3, CGO Complex, Lodhi Road, New Delhi – 3 Contact Details: +91-11-4362203 +91-11-4392424 Web site: http://cbi.nic.in/  E-Mail: cbiccic@bol.net.in	Thane Address: 3rd Floor, Police Commissioner Office Near Court Naka, Thane West, Thane 400601. Contact Details: +91-22-25424444 Web site: www.thanepolice.org E-Mail: police@thanepolice.org
Pune Deputy Commissioner of Police(Crime) Office of the Commissioner Office, 2, Sadhu Vaswani Road, Camp,Pune 411001 Contact Details: +91-20-26123346 +91-20-26127277 +91-20-2616 5396 +91-20-2612 8105 (Fax) Website: www.punepolice.gov.in E-Mail: crimecomp.pune@nic.in punepolice@vsnl.com	Gujarat DIG, CID, Crime and Railways Fifth Floor Police Bhavan Sector 18, Gandhinagar 382 018 Contact Details: +91-79-2325 4384 +91-79-2325 0798 +91-79-2325 3917 (Fax)
Jharkhand IG-CID,Organized Crime Rajarani Building,Doranda Ranchi, 834002 Ph: +91-651-2400 737/ 738 E-mail: a.gupta@jharkhandpolice.gov.in	Mumbai  Address: Cyber Crime Investigation Cell Office of Commissioner of Police office,Annex -3 Building, 1st floor, Near Crawford Market, Mumbai-01. Contact Details: +91-22-22630829 +91-22-22641261 Web site: http://www.cybercellmumbai.com E-mail id: officer@cybercellmumbai.com
Haryana Cyber Crime and Technical Investigation Cell, Joint Commisioner of Police Old S.P.Office complex,Civil Lines Gurgaon E-mail: jtcp.ggn@hry.nic.in	Himachal Pradesh CID Office , Dy.SP Himachal Pradesh Contact Details  Ph: +91-94180 39449 E-mail:soodbrijesh9@gmail.com
Jammu SSP,Crime CPO Complex,Panjtirthi Jammu-180004 Contact Details Ph: +91-191-257-8901 E-mail: sspcrmjmu-jk@nic.in	Kerala Hitech Cell Police Head Quarters Thiruvananthapuram Contact Details Ph: +91-471 272 1547        +91-471 272 2768 E-mail: hitechcell@keralapolice.gov.in
Meghalaya SCRB,Superintendent of Police Meghalaya Ph: +91 98630 64997 E-mail: scrb-meg@nic.in	Orissa CID,Crime Branch Orissa Ph: +91 94374 50370 E-mail: splcidcb.orpol@nic.in
Bihar Cyber Crime Investigation Unit Dy.S.P.Kotwali Police Station, Patna Ph: +91 94318 18398 E-mail: cciu-bih@nic.in	Punjab Cyber Crime Police Station DSP Cyber Crime, S.A.S Nagar,Patiala, Punjab Ph: +91 172 2748 100
Uttar Pradesh Cyber Complaints Redressal Cell, Nodal Officer Cyber cell Agra, Agra Range 7,Kutchery Road, Baluganj,Agra-232001 Uttar Pradesh Ph:919410837559 e-mail: info@cybercellagra.com	West Bengal CID, Cyber Crime West Bengal Ph: +9133 24506163 e-mail:occyber@cidwestbengal.gov.in
UttaraKhand Special Task Force Office Sub Inspector of Police, Dehradoon Ph: +91 135 2640982        +91 94123 70272

  The author is a lawyer practicing in the Delhi High Court and other courts of Delhi and can be contacted at lawyer.soniasaini@gmail.com or 9873658554

Cheque bounce and the Law .....

The cheque issued to me has bounced, what do I do?

This is the most comman legal problem we all face and we all get in a case of panic and helplessness when we get intimation from the bank that the cheque which was deposited by us has bounced. Before going to the legal remedy and the law, let us understand what cheque bouncing is :

“The cheque bounce in normal terms means the returning of cheque by the bank to which it is deposisted due to either lack of fund in the persons account from which the amount had to be paid or the cheque amounts exceeds the amount which the contract between the customer and bank allows.”

Now the question arises, what the person should do..

1)      Within 30 days from the issue of intimation by the bank issue a notice to the person who issued the cheque to make the payment of the amount.

2)      If the person fails to make the payment within 15 days from the receipt of such notice file a complaint under 138 of negotiable instruments act within 30 days.

3)      Consult a lawyer to file a complaint

The relief which the person can get is either twice the amount of the cheque money or imprisonment of the person for 2 years who issued the cheque

 The author is a lawyer practicing in the Delhi High Court and other courts of Delhi and can be contacted at lawyer.soniasaini@gmail.com or 9873658554