FIR

FIR: All you need to know

What is a FIR?

First Information Report (FIR) is a written document prepared by the police when they receive information about the commission of a cognizable offence. It is a report of information that reaches the police first in point of time and that is why it is called the First Information Report.

It is generally a complaint lodged with the police by the victim of a cognizable offence or by someone on his/her behalf.

Anyone can report the commission of a cognizable offence either orally.

What is a cognizable or non-cognizable offence?

A cognizable offence is one in which the police may arrest a person without warrant. They are authorized to start investigation into a cognizable case on their own and do not require any orders from the court to do so.

A non-cognizable offence is an offence in which a police officer has no authority to arrest without warrant. The police cannot investigate such an offence without the court's permission. or in writing to the police. Even a telephonic message can be treated as an FIR.

Why is a FIR important?

An FIR is a very important document as it sets the process of criminal justice in motion. It is only after the FIR is registered in the police station that the police takes up investigation of the case.

Anyone who knows about the commission of a cognizable offence can file an FIR. It is not necessary that only the victim of the crime should file an FIR. A police officer who comes to know about a cognizable offence can file an FIR himself/herself.

You can file an FIR if:

* You are the person against whom the offence has been committed;

* You know yourself about an offence which has been committed;

* You have seen the offence being committed.

The police may not investigate a complaint even if you file a FIR, when:

* The case is not serious in nature;

* The police feel that there is not enough ground to investigate.

However, the police must record the reasons for not conducting an investigation and in the latter case must also inform you. —[Section 157, Criminal Procedure Code, 1973]

The procedure of filing an FIR is prescribed in Section 154 of the Criminal Procedure Code, 1973.

• When information about the commission of a cognizable offence is given orally, the police must write it down.
  
  
• It is your right as a person giving information or making a complaint to demand that the information recorded by the police is read over to you.
  
  
• Once the information has been recorded by the police, it must be signed by the person   giving the information.
  
  
• You should sign the report only after verifying that the information recorded by the  police is as per the details given by you.
  
  
• People who cannot read or write must put their left thumb impression on the document after being satisfied that it is a correct record.
  
  
• Always ask for a copy of the FIR, if the police do not give it to you. It is your right to get it free of cost.

What should you mention in your FIR:

* Your name and address;

* Date, time and location of the incident you are reporting;

* The true facts of the incident as they occurred;

* Names and descriptions of the persons involved in the  incident; Witnesses, if any.         

Things you should not do: 

* Never file a false complaint or give wrong information to the police. You can be prosecuted under law for giving wrong information or for misleading the police. — [Section 203, Indian Penal Code 1860]

* Never exaggerate or distort facts.

* Never make vague or unclear statements.

What if the police refuse to register my FIR:

• You can meet the superintendent of Police or other higher officers like Deputy Inspector  General of Superintendent of Police is satisfied with your complaint; he shall either investigate the case himself or order an investigation to be made.
  
  
• You can file a private complaint before the court having jurisdiction.
  
  
• You can also make a complaint to the State Human Rights Commission or the National Human Rights Commission if the police does nothing to enforce the law or does it in a biased and corrupt manner.

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Divorce, legally?

Divorce in India, Legally?

Divorce, also known as dissolution of marriage, is the process of ending a marriage or marital partnership. 

Divorce implies the re-organisation or cancellation of legal responsibilities and obligations of marriage, therefore severing the bonds of matrimony between a married couple under the country’s or state’s unique rule of law.

A divorce is a traumatic experience to go through, be it any stage of life. It can be a long-winded and costly affair with respect to the divorce process in India. 

This article provides a step-by-step procedure of how to file a Divorce in India!

The rules of divorce in India are connected to religion and in this article, how to file a divorce in India is spoken about. 

1. Hindus, Sikhs, Buddhists, and Jains are governed by the Hindu Marriage Act, 1955. 

2. Muslims are governed by the Dissolution of Muslim Marriages Act, 1939. 

3. Parsis are governed by the Parsi Marriage and Divorce Act, 1936. 

4. Christians by the Indian Divorce Act, 1869 

5. Marriages between two religions are governed by the Special Marriage Act, 1956. 

The divorce in India started with the Hindu Marriage Act, 1955. Under this act, both the husband and wife have been given a right to get their marriage dissolved on more than one ground, specifically with regards to Section 13. 

How to file a divorce in India? 

Section 28 of the Special Marriage Act, 1954 and Section 10A of the Divorce Act, 1869, also provide for divorce of Mutual Consent. Please note for worst-case scenarios, if the concept of consented divorce is not feasible then ‘Contested Divorce’ is the last resort, this is when the other party is not agreeing for divorce. 

There are conditions that have to be followed and the procedure for Divorce in India falls under Section 13B of the Hindu Marriage Act, and they are as follows: 

1. The partners have been living separately for a minimum period of a year 

2. They are unable to reconcile their differences and live together 

3. The partners have mutually agreed that the marriage has come to an end, and must be dissolved. 

A mutually consented divorce can be filed. 

The divorce process in India begins with the filing of a divorce petition. 

Now, if your questions are: 

How to file a divorce petition? 

The process:

The entire process of filing a divorce starts with the divorce petition by the parties associated with the matter. The divorce process and notice of the same are served to each stakeholder. 

According to the Hindu Marriage Act, 1955, a petition filed under ‘mutual divorce’ can be carried forward if the two parties have decided to bid adieu and part their ways, legally. 

If not, and one member wishes to part their ways with another (who isn’t willing to give consent) – it falls under ‘Contested Divorce’. 

Produce a divorce notice to your spouse, this is towards clarifying the emotions, a legal and binding platform to initiate your thoughts on discontinuing your marriage. 

Legal notice for divorce will bring clarity to the future of the relationship. The legal notice is towards the communication of current feelings and is a formal one to break the marriage. 

How much time does it take to get a Divorce in India?

Within six months, divorce by mutual consent can be achieved, although no petition in such a case can be submitted within the first year of marriage. Between the first and second motions, there must be a six-month break. In rare situations, the court may waive the cooling-off period. So, in the event of mutual agreement divorce, it normally takes 18-24 months.

Because of the complexity and likelihood that either spouse might remarry, the duration of a contentious divorce is longer, ranging from three to five years.

The procedure for mutual divorce in India is as below: 

Step 1: Petition to file for a divorce

If you are wondering ‘How to get a divorce in India from wife’ or ‘How to get a divorce from husband’ – it starts with a joint petition for disbanding the marriage. It will be presented to the family court by the parties concerned, stating that they are unable to follow the conditions and they have come to terms to part their ways. 

The parties sign the petition. 

Step 2: The parties must appear before the court

After the procedure has been initiated, the parties appear before the court and the entity shall do its due diligence. The court may try to reconcile the spouses, if in vain, the divorce process proceeds. 

Step 3: Record statements under oath 

After the petition is scrutinized and satisfied by the court, the statements of all concerned parties will be recorded under oath.

Step 4: The first motion will be passed 

The statements are recorded, an order is passed, and six months of time is provided for the second motion to be passed. 

Step 5: Final hearing of the petition 

After the parties appear for the second motion, and if everything is a smooth sail, they can proceed with the final hearings of the case. 

Step 6: Verdict on the Divorce

When it comes to a mutual divorce, both parties have given consent, and there will not be any differences regarding alimony, custody of children, maintenance, property, etc 

A harmonious agreement where the spouses are on the same page is important to dissolve the marriage. If the court is satisfied after hearing the allegations and if there is no means of reconciliation and cohabitation, the verdict shall pass on as ‘marriage dissolved’. 

If you are concerned about ‘how to file a divorce online’ – it is feasible. Lawyers, presenting your arguments in Family Court, and recurring meetings to stick to the process is crucial. 

The procedure for Contested Divorce in India is as below: 

Step 1: The petition is filed by the husband or wife:

As previously indicated, in a contentious divorce, only one side is necessary to contact a lawyer. The husband or wife seeking divorce would be expected to clarify the facts, and the lawyer would be obliged to create the petition based on the facts and circumstances as stated and narrated by the husband or wife requesting divorce.

Step 2: The court issues a summons and asks the other spouse to respond:

Once the petition has been prepared and all formalities have been fulfilled, it would be filed before the appropriate family court, depending upon the jurisdiction.

Step 3: The court may advise that the parties reconcile:

On the first day of the hearing, the court would examine the petition and hear the lawyer making the petition’s opening arguments (concerning the claims and reasons).

Step 4: Witnesses and evidence are examined and cross-examined:

Once the court is satisfied that the case should go to adjudication, it will issue a notice to be served on the opposing party. After then, the other party would receive a copy of the petition and the notice, and he or she would be required to attend in court with their counsel on the next hearing date. The opposing party would be required to respond to the divorce petition as well as any further applications that may be filed.

Step 5: Both sides attorneys make their last arguments:

To begin, the Court will attempt to mediate the dispute between the parties and may order them to attend Mediation in order to achieve an acceptable agreement. After appearing in front of a mediator for mediation, if the mediation is unsuccessful or fruitless, the court will proceed with the divorce procedures.

Step 6: The court issues a divorce decree:

The court would next proceed to formulate issues and record evidence in the case. Both parties would have to present evidence, be cross-examined, and provide supporting witnesses. This is the most important component of the entire process since it determines the case’s outcome.

During the discussions between both parties, there are three aspects one must consider to reach a consensus: 

i) Alimony and maintenance issues. As per law, there is no minimum or maximum amount. It could be no money or any money. 

ii) Custody of their young ones is a crucial aspect the spouses must consider. This must be spoken to amongst the stakeholders and they must come to a consensus on shared or exclusive custody of the children. 

iii) Property is the next issue. Husbands and wives should integrate their assets and distribute them accordingly. This includes movable and immovable property. It must be agreed by both parties – even to the minute of the decisions – which includes bank account(s). 

Documents that are required to successfully continue the divorce process:

1. Address proof of the spouse
2. Certificate of marriage
3. Passport size photograph (4) of husband and wife
4. Evidence to support the claim that husband and wife have been living apart for more than one year.
5. Evidence to support the failed attempts to pacify each other and reconcile the marriage.
6. Income tax statements for 3 years
7. Professional details
8. Family background details
9. Details of properties that are owned by both parties

- Adv. Sunita Nagpure

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Civil Suit Stages

Stages of a Civil Suit

The Civil Suit is basically a dispute which arises between two people or two organisations wherein a subject for dispute is limited to monetary transaction and dispute related to immovable property. 

The Civil Suit, if it is personal in nature than it is governed under Civil Procedure Code and if it is related to business transaction then Commercial Court Act also plays a great role to set out the procedure. The Parties in the Civil Suit are addressed as Plaintiff and Defendant.

Broadly, a civil suit passes through the following five stages:

• Institution of a Civil Suit (Plaint, Written Statement, Replication, etc.)

• Framing of issues.

• Summoning and attendance of witnesses.

• Hearing of Suit and Examination of Witness.

• Decree/Order and the Judgment.

STAGES OF CIVIL SUIT

There are total 18 stages in a Civil Suit which are mentioned herein below:-

1. Plaint

The document in which the fact of the case is mentioned that document is known as Plaint in legal world. The entire Civil Suit is based on Plaint and the Plaint is starting point or the starting stage for all the Civil Suit. Order VII deals with the contents of Plaint and some of the points mentioned under Order VII is mentioned herein below:-

• Particulars

• Name of the Court

• Details of the Party

• Facts of the Dispute involved between the party

• Relief Sort

• Jurisdiction

• The Documents on which the party is relying upon.

2. Summons

After a Plaint is filed the Court may either accept the Plaint or they may reject the Plaint if the Plaint is accepted the Court may call the Party i.e. Defendant against whom the dispute is filed and Court calls party by issuing Summon. Defendant to whom the summons is issued may appear in person or through the legal representative. If the Summons are addressed within the jurisdiction of the Court than the same is addressed under Section 27 of the Code and if the Defendant doesn’t reside in the jurisdiction of the Court but the same resides in the same Country than the Summons are addressed under Section 28 of the Code but if the Defendant is residing outside the Country than the Summons are addressed under Section 29 of the Code. The Summons is also addressed when Plaintiff or Defendants want to produce a witness in the Court, the procedure relating for calling for witness is mentioned under Section 31 of the Code. The procedure for the Service of Summons is mentioned under Order V of the Code.

3. Appearance of the Party

The Party to whom summon is addressed needs to be present before the concerned court and if the person failed to appear before the concerned Court than as per Order V rule 20 an Ex-parte order is passed by the Concerned Court. If both parties are not present on the concerned date thrn the court after giving due chance ay dismiss the matter.

4. Interlocutory Proceeding

Everyone knows that Suit is a Long process as it has many steps before passing Judgment so before starting the stages of Suit sometime the Court has to intervene in the matter to maintain the position as it prevailed. Such Intervention is known as “STATUS QUO”. The Plaintiff can ask for Status Quo order by filing Notice of Motion in the City Civil Court or by filling Interim Application in respective High Court. Following intervention matter are entertain by the Civil Court:-

• Temporary Injunction (order 39)

• Appointment of Court Receiver (order 40)

• Appointment of Court Commissioner(order 26)

• Arrest and Attachment before Judgment (order 38)

5. Written Statement

In the simple language Written Statement is a Document in which the Defendant mentions his/her side of facts of the case and mentions his defence to the Plaint. Order VIII of the code deal with Written Statement. Before Amendment in 2002, there was no limitation period for filing the Written Statement but after the amendment, it is mandatory to file Written Statement within 90 days, after the limitation period is expired it is at the discretion of the Court whether to accept the Written Statement. Under this discretion, the Court will give additional days to file Written Statement but those days won’t exceed 90 days.

6. Examination of Party

After the Written Statement is filed the Court may ask the parties whether they admit the allegation or they deny the allegations pressed by the Plaintiff and such acceptance or denial should be recorded.

7. Framing of Issues

The Court after the Suit is filed and after the Written Statement is filed by the Defendant then the Court may ask the parties to produce Draft Issues and after examining the draft issues the Court may frame Final issues. Order XIV of code deal with Framing of Issues.

8. List of Document relied by the Party

After the Framing of Issue, the Court will ask the Parties to submit a List of Documents on which they are relying upon. The parties submit the list in the form of Affidavit.

9. Discovery and Inspection

After the Document is produced in the Court the Party can apply for inspection of Document. Order XI of the code deals with the Discovery and Inspection of documents. After taking leave from the court the parties can Inspect the Document.

10. Admission and Denial of Document

After the Party has ascertained the Document they may either Admit the Document or they may deny the Document. The Admission and Denial of the Documents are dealt under Order XII of the code.

11. Production of Documents

After the List of Document is relied upon by the Party and after Admission and denial of the Document, the next stage is to produce the Document in the Court. The Party has to submit all original documents in the concerned court. Order XIII of code deals with the production of the Documents.

12. Hearing and Cross Examination of the Witness (Order XVIII)

After the Production of Document, the next stage of a civil suit is hearing of suits and examination of witnesses commence. The first right to begin is of the plaintiff. The plaintiff has to submit the evidence that was earlier marked if any evidence was not marked earlier then it will not be considered by the court. And the defendant’s advocate will cross-examine the plaintiff and also to the witnesses who are from the plaintiff’s side. And the defendant also presents his side of the story supported by his witnesses and evidence from his side and the plaintiff advocate also cross-examined the defendant.

13. Argument

As soon as the stage of the hearing of suits and examination of witnesses is over then the suit is kept for the next stage i.e. argument. Once the evidence has been submitted and cross-examination is conducted by both parties, then both sides are allowed to present a summary of the case and evidence to the judge in the final session.

14. Judgment

After the concerned court has heard the matter the Court will pass Judgment/Decree. The provision related to Judgment and Decree is in Section 33 read with Order XX of the Code.

15. Appeal, Review and Revision

After the Judgment is pronounced and if the concerned party are not satisfied with the Judgment/Decree passed than they can either apply for Review (Section 114 read with Order XLVII) within Thirty Days from the date of pronouncement of Judgment/Decree or the aggrieved party can apply for Revision (Section 115) to the higher court within thirty days of pronouncement of Judgment, or the aggrieved party can also go for an Appeal (section 96 to 110 along with Order XLI to XLV) to the Higher Court within 60 or 90 days from the pronouncement of the Judgment/ Decree.

16. Execution of the Decree

In this stage, decree-holder compels the judgment-debtor to out the mandate of the decree or decree or order as the case may be. It is the process by which a decree-holder recovers the fruits of the judgment. The execution is complete when judgment creditor or decree-holder gets money or other thing awarded to him by judgment, decree, or order.

The decree shall agree with the judgment; it shall contain the number of the suit, the names and descriptions of the parties, their registered addresses, and particulars of the claim, and shall specify clearly the relief granted or other determination of the suit.

17. Appeal, Review, Revision 

A. Appeal :-

An appeal may be an appeal from order or an appeal from decree. All orders are not appealable and complete discretion of the appealable order has been given in order 43 of the code of Civil Procedure Code. The appeal has to be preferred within prescribed limitation period before the appellate court. The limitation period for appeal to High Court is 90 days and appeal to District Court is 30 days. If the period of limitation is expired, then application for condonation of delay also is required to be moved.

B. Review :- 

The right of review is having very limited scope under the Civil Procedure Code

A review application is maintainable only when the following conditions are satisfied,

1. If involves a decree or order from which no appeal is allowed or if allowed it is not preferred.

2. The appellant was aggrieved, on the ground, that because of the discovery of a new and important matter of evidence, which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time of decree or on account of some mistake, apparently on the face of the record, or for any sufficient reason, desires to obtain a review of such decree. The other side will be granted an opportunity to be heard, when any review application has been granted.

C. Revision :- 

The High Court in its revision jurisdiction can interfere in any case decided by subordinate court under certain circumstances.

The High Court may call for the record of any case which has been decided

by subordinate court and in which no appeal lies, if such subordinate court appears -

1. To have exercised, a jurisdiction not vested in it by law, or 

2. To have failed to exercise a jurisdiction so vested, or

3. To have acted in exercise of its jurisdiction illegally; or with material irregularity.

18. Execution of Decree (Order 21) :- 

Execution is the medium by which a decree- holder compels the judgment-debtor to carry out the mandate of the decree or order as the case may be. It enables the decree-holder to recover the fruits of the judgment. The execution is complete when the judgment-creditor or decree-holder gets money or other thing awarded to him by judgment, decree or order. 

-  Adv. Sunita Nagpure

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What is a will?

A will is a legal document that dictates the handling of all the assets and their distribution among the children or other parties on the event of death of a person. 

The document is a clear conveyer of your wishes after the incident of passing away.

How to make a property will in India?

To make a will of property in India, you can either consult a lawyer or follow the below given process:

Start with a declaration stating that this is your last will and you are creating it in your senses, free from any pressure. Additionally add name, age and address here.

List down your assets along with its value and details of the necessary documents for those assets. The assets may include property, bank deposits, shares and other funds among other assets.

Now make a list of beneficiaries who shall inherit the assets after your death. Make all the provisions and carefully make the list to eliminate any ambiguity.

You’ll have to carefully lay down provisions for your children as well if they are below 18 years of age. Mention the guardianship and people responsible for them in your absence.

It is important to mention the executor of the will in this legal document. This person will be responsible to execute the will after your death.

If you wish to mention anything in particular or any other wishes, mention them in the will

Now that you have documented everything, sign the will and get two adult witnesses to sign it as well at the time of registration of the will.

I know notarising and registering your will is not mandatory according to Indian law but it is highly advisable to do so in order to avoid any conflicts or frauds; and to ensure that the will is executed properly.

Now that you know how to write will for property, here is what you should know about who can make the will.

Who can make the will?

According to the Indian Succession Act 1925, Section 59, the maker of the will must be of sound mind and above 18 years of age.

What is the format of a will?

There is no prescribed form of a will. In order for it to be effective, it needs to be properly signed and attested. It must be initialed by the testator at the end of every page and next to any correction and alteration. 

Is handwritten will legal in India?

Yes, the handwritten Wills are legal in India. However, they need to be legible and should also follow the criterions or the essentials of a valid will. What is a valid Will in India? If any Will has the essentials mentioned in it along with the proper intention of the testator, it is valid.

What is will registration?

The registration of a document provides evidence that the proper parties had appeared before the registering officers and the latter had attested the same after ascertaining their identity. In India, the registration of wills is not compulsory even if it relates to immovable property. The non-registration of a will does not lead to any inference against the genuineness of a will.

Does a Will need to be registered in India?

In India, registration of Wills is not compulsory. Once a Will is registered, it is placed in the safe custody of the Registrar and cannot be tampered with, destroyed, mutilated or stolen. However, non-registration of a Will does not lead to any inference against its genuineness.

Can a will be registered anywhere in India?

Will is to be registered at the office of Sub-registrar of Assurances which is in the jurisdiction of the residence of the person who made the Will. There are no government fees for registration of a Will except scanning and photocopy charges which is very nominal.

Who can witness a will in India?

Witnesses should be adults, i.e. above 18 years of age. While choosing the witness you must keep in mind that they should survive you as they may need to testify the Will after your death. It is important to ensure that your witness does not have any potential bias or conflict of interest.

How long is a will valid after death India?

Once the contents of the will are carried out the will is considered to be executed. There are no specific laws regarding longevity/ period of time for the will in Indian law. Once the period of 12 years is passed, the will is said to be Permanent.

Can a beneficiary be a witness to a will in India?

Inheritor Witnessing Will

As per the Indian Succession Act, an inheritor mentioned in the Will or his or her wife or husband cannot be a witness to the Will. Hence, it is important that any person mentioned as an inheritor or beneficiary in a Will not witness or attest the Will.

Which will is valid in India?

The Will of the testator must be written by people with sound and clear mind means any person under a state of intoxication, illness or any similar cause cannot make a Will; Either the Will is registered or the probate proceedings have the authority if the Will has been made with due process of the law.

by- Adv. Sunita Nagpure

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Alimony in India

Alimony is a very important matter to deal with during the litigation of a divorce case.

The very perception of right to claim the financial support for post-divorce maintenance was not quite a familiar concept among the Indian divorce seekers, especially women few years back. 

Since the rate of divorce is increasing in India at a rapid speed, people are becoming aware of the various details related to divorce laws. The era of feminist campaigns and spread of education among women, have contributed to the growing applicability of alimony in divorce cases.

The alimony or the spouse support is an obligation by laws in almost all the countries of the world. It is expected that both the spouses irrespective of gender must bear the maintenance support during and after marriage.

The concept of alimony came in vogue due to the indissolubility nature of marriage. According to marriage conventions, marriage is a sacred union. Once the knot is tied, the duties and obligations of marriage are to be carried out for the rest of the life even if there is mental disparity or physical separation between the husband and the wife. The husband is bound to take up the responsibilities for the maintenance of his wife in spite of sharing an estranged relationship. As time changed, the laws and education empowered woman and divorce came as a spontaneous solution for an unsuccessful marriage.

The present society treats men and women equal, as a result the burden of alimony can now fall upon either side of the party depending upon the financial circumstances of the spouses. Even though in the present age of equality, both men and women are equal before the law, in practice men are more liable to provide interim support to his ex- spouse during the litigation procedure.

After divorce either of the spouse has the right to claim alimony. Though not an absolute right, it can be granted by the court depending upon the circumstances and financial conditions of both the spouses.

The following are the conditions depending on which alimony is awarded by the court:

Alimony is generally not granted to the seeking spouse if he or she is already receiving support during the time of divorce. Although the rewarding of alimony can be revised in such events based on the arguments for claiming the support.

In case of a contested divorce, often spouses fail to come to any understanding regarding alimony. In such situations, the court takes up the task of making a decision on the amount of alimony to be paid.

Only under certain compelling situations the court steps out to change the already framed alimony. Sometimes the court might even hand over the burden of paying for the maintenance to a public body.

The following are the factors that influence the duration and amount to be paid as alimony:

The amount and duration of alimony generally depends upon how long the marriage existed. Marriages that lasted more than 10 years are entitled to be granted a lifelong alimony.

Age of the spouse is also taken into consideration while awarding alimony. Normally a young recipient of alimony gets it for a short period of time if the court thinks that he or she will soon be able to become financially sound through prospective career excellence.

Alimony is also in vogue in order to equalize the economic condition of both the spouses. The higher earning spouse is entitled to pay a heavy amount as alimony.

The spouse who is projected to be enjoying a prosperous career is liable to pay high alimony amount.

If one of the spouses is suffering from poor health, the other is subjected to payment of high alimony to ensure proper medication and wellbeing of the other spouse.

The terms and conditions of payment of alimony in India vary from one personal law to another. None of the Indian personal laws are spared from criticism due to existence of laws in framing definite rules for granting alimony.

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