Frequently Asked Questions
Yes, a case can be filed against women and minor person in the Domestic Violence Act, the Supreme Court in Hiral P. Harsora and Ors. v. Kusum Narottam das Harsora and Ors.(6th October, 2016) struck down the word “adult male” from the definition of Respondent in Section 2(q) of the Domestic Violence Act, 2005 and allowed the cases to be filed against any person. Now after this judgment, the definition under Section 2(q) states as follows:
“Respondent” means any person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:
Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.
While dealing with word “adult”, Supreme Court stated that – “It is not difficult to conceive of a non-adult 16 or 17 year old member of a household who can aid or abet the commission of acts of domestic violence, or who can evict or help in evicting or excluding from a shared household an aggrieved person. Also, a residence order which may be passed under Section 19(1)(c) can get stultified if a 16 or 17 year old relative enters the portion of the shared household in which the aggrieved person resides after a restraint order is passed against the respondent and any of his adult relatives. Examples can be multiplied, all of which would only lead to the conclusion that even the expression “adult” in the main part in Section 2(q) is restrictive of the object sought to be achieved by the kinds of orders that can be passed under the Act and must also be, therefore, struck down, as this word contains the same discriminatory vice that is found with its companion expression ‘male’.”
Yes, Indian law allows the wife to obtain divorce on the ground that marriage happened before the age of fifteen years. In Hindu law, a girl who got married before age of Fifteen years can get Divorce after attainment of age of fifteen years under Section 13(2)(iv) of Hindu Marriage Act, 1955. But, the option of Divorce on this ground is only available up to the age of 18 years. After attaining the age of 18 years, Divorce cannot be granted for the reason that marriage got solemnized before the age of 15.
In Muslim law, if a girl has been given in marriage by her father or other guardian before she attained the age of fifteen years, she can repudiate the marriage before attaining the age of eighteen years under Section 2 (vii) of The Dissolution of Muslim Marriages Act, 1939. But, on the condition that the marriage must not have been consummated.
Section 3 of the Prohibition of Child Marriage Act, 2006, allows the annulment of marriage (declaration of marriage as null and void, like it never happened) by either boy or girl who was child (For male, who is not of 21 years or for female who is not of 18 years) at the time of their marriage. This petition to get their marriage annulled has to be filedby the girl or boy and if they are minor, it can be filed by their next friend. This can only be filed up to the age of 2 years after majority (i.e. up to the age of 20 years).
Irretrievable Breakdown of Marriage is a special ground on which only the Supreme Court can grant Divorce while using its constitutional power under Article 142 of The Indian Constitution. Irretrievable breakdown of marriage means when it is impossible to save the marriage and all efforts are made in that regard and the Court is convinced beyond any doubt that there is actually no chance of the marriage surviving and it is broken beyond repair; Marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably.
71st report of the Law commission of India in March 2009, also suggested that immediate action be taken to introduce an amendment in the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 for inclusion of ‘irretrievable breakdown of marriage’ as another ground for grant of divorce.
The earliest instance that can be found where the Supreme Court discussed Irretrievable Breakdown of Marriage in detail is Ms. Jordan Diengdeh v. S.S. Chopra, (1985 AIR 935, 1985 SCR Supl. (1) 704), recommended it to be inserted as a ground in law for Divorce.
In Recent judgment of Munish Kakkar v. Nidhi Kakkar on 17th December 2019, Supreme court granted divorce while stating that when the continuity of marriage is fruitless and also causing further emotional trauma and disturbance to both parties, an end to this marriage would permit the parties to go their own way in life after having spent two decades battling each other, and there can always be hope, even at this age, for a better life, if not together, separately. The Supreme Court also added a caution with its judgment provided in R. Srinivas Kumar v. R. Shametha, [(2019) 9 SCC 409], that powers under Article 142 are exercised not in routine, but in rare cases, in view of the absence of legislation in this behalf, where it is found that a marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably. The court stated that the provisions of Article 142 of the Constitution provide a unique power to the Supreme Court, to do “complete justice” between the parties, i.e., where at times law or statute may not provide a remedy, the Court can extend itself to put a quietus to a dispute in a manner which would benefit the facts of the case. It is with this objective that we find it appropriate to take recourse to this provision.
Section 13B of the Hindu Marriage Act, specifies the procedure for divorce by mutual consent. In cases, where both the parties involved want a divorce a memorandum of understanding needs to be drafted between the parties and submitted along with the petition for first motion before the Family Court.
Contents of the Memorandum
Name, address and particulars of the Parties, including the place where they last cohabited.
Date and venue of Wedding
Time spent living separately
Maintenance- monthly or lump sum
Exchange of movable items and Stridhan
Distribution of mutually owned immovable assets
As per Section 105 of Indian Succession Act, 1925 if the legatee (person named in will as, successor of the property or, one who receives legacy in will) dies before the testator (person who makes the will regarding succession of his property), then the will or legacy cannot take effect.
However, as per Section 106 of the Act, 1925 in case of joint legatees, the legacy does not lapse and the property of the departed legatee goes to the surviving legatee, unless the testator has not provided any other instruction in will that the property of departed legatee will go to some other person.
Also, as per Section 109 of the Act, 1925 in case the legatee is a child or lineal descendent of testator, dies leaving a lineal descendent (children, grand-children, great grandchildren and so on) of him who survives the testator then, the will or bequest shall not lapse and will take effect as the death of the legatee had happened immediately after the death of the testator, unless a contrary intention appears by the Will.
So, by above statements it is clear that in case of death of sole legatee, the will cannot operate. In case of joint legatee, if the departed legatee is a child or grandchild (lineal descendent) of testator and has his own child (lineal descendent) then, the share of the departed legatee in “will” will be succeeded by his lineal descendent by the rule of general succession after the death of testator. In case joint legatee is not a lineal descendent of testator or do not have any lineal descendent of his own, then the share of departed legatee will be given to the surviving legatee.
Yes, Balance sheet entries can amount to acknowledgment of debt u/s 18 limitation act. This was held by the Supreme Court in the Case: Asset Reconstruction Company (India) Limited v. Bishal Jaiswal (CA. 323 OF 2021), The Supreme Court has held that entries in balance sheets can amount to acknowledgement of debt for the purpose of extending limitation under Section 18 of the Limitation Act.
A bench headed by Justice RF Nariman set aside a judgement of Full Bench of NCLAT in the case V.Padmakumar v. Stressed Assets Stabilization Fund which held otherwise.
Yes, ADR proceedings are ideal for a highly technical area of expertise such as pharmaceuticals in general. This is because plaintiffs and defendants are both seasoned traders in the same sector, who understand well the ins and outs of the industry the dirty tactics and the legitimate manoeuvres of the players in the market, therefore, they will be talking business within carefully articulated and constructed legal arguments within the confines of the law, in the language and the mentality they are bound to understand.
Ideally, mediation is the best option, because psychologically both parties sit down round a table as equals. Arbitration is another alternative, but it can be complex and costly especially when a compromise has to be agreed upon, with the richer party having an upper hand and cunningly doctoring the outcome of the arbitration proceeding.
- Alternate dispute resolution procedures allow tailoring arbitration and mediation proceedings to meet parties’ needs.
- Lengthy legal procedures in a court of law cost money, in ADRs procedures are more expedite.
- Confidential Nature of proceedings
- The Possibility for the parties to appoint arbitrators with sector-specific expertise.
- Greater use of enforceability of arbitral awards internationally.
- To make highly technical and scientific information accessible to arbitrators and their own counsel.
- Parties should seek to enter into appropriate confidentiality arrangements with each other when disclosing documents or expert reports in proceedings.
- Identifying appropriate counsel and arbitrators is a tricky task in Pharmaceutical industry whereas, in other industries a pool of suitable candidates is available.
Yes, arbitral tribunal is mandatorily has to give a reason to judgement on its own jurisdiction. Under section 16 of Arbitration and Conciliation Act any party to dispute can raise a plea of jurisdiction on the first instance that means on the first date of hearing itself and the arbitrator or the arbitral tribunal has to give a reason judgement on its jurisdiction and then it can proceed with a matter i.e. the option no.1 with the arbitration. The second option with the arbitration is that it can wait till infidelity of the case and along with the award it can give the judgement on its own jurisdiction, of course that the judgement on its own jurisdiction if any party have any objection on it he can file the objection under section 37 before the court.
Case: SAIL v. Indian Council of Arbitration, (2013 SCC Online Del 4490), The Delhi High Court held that the wordings of Sections 16(2) and 16(5) do not place any mandatory condition of deciding preliminary objections to jurisdiction of the Tribunal at the threshold.
Case: M/s Indian Farmers Fertilizers Co-operative Limited v. M/s Bhadra Products (Civil Appeal No. 824 of 2018), The Supreme Court restricted the scope of section 16 (1), declaring that issue of limitation is not covered under the primitive sense of the term ‘jurisdiction’.