TIPS RELATING TO LEGAL POSITION IN

CERTAIN SITUATIONS

by

CORPORATE HR (LAW)

2008-2009
 FOREWORD

To create and maintain a rudimentary level of legal awareness

amongst our employees has been our priority as a responsible Corporate.
It is with this end in mind that a booklet on Legal Awareness and its
Addendum have been brought out in the last two years. The idea of these
was to instill into our employees a sense of awareness, prudence,
alertness and confidence to deal with the legal situations as and when they
are met with.

Corporate HR (Law) has now worked upon, to bring out, in a Q&A

form, a small awareness booklet which covers issues as diverse as Motor
Accidents, Criminal Matters, Property related as well as Matrimonial issues.
We are likely to encounter such issues in our day to day lives, directly as
well as indirectly. An attempt has been made, again with a view to create an
awareness so that one is conscious about safeguarding one’s civil rights
and rights as consumers.

I am quite sure that you will find the practical situations contained in
this booklet handbook useful and handy and it will serve the purpose of
creating an awareness amongst you. You will, however, appreciate that
this handbook is only illustrative in nature. Should the need ever arise in a
real life situation; kindly do not hesitate in seeking professional legal help.
It may always be remembered that the ignorance of law is no excuse.

B. SHANKAR
GM I/c (HR&CC)
 MOTOR ACCIDENTS

Q1. Whether an accident wherein serious injury is caused to another

person, by itself amounts to an offence punishable in law.

A. An accident by itself does not amount to an offence. However, if the accident

was the result of rash and negligent driving the same would amount to an
offence. The prosecution has to prove that the person, who committed the
accident, was driving rashly and negligently and only then the offence is proved.

Q2. In a case lodged in a Motor Accident Claim Tribunal.(MACT), for

accident claim on account of a motor accident, whether the liability of the
Insurance Company is limited to a certain amount (say Rs.20,000) only.
Whether Tribunal is right in saying so and what is the remedy against said
order?

A. In a third party claim the liability of the Insurance Company is unlimited and
the same has to be assessed by the Tribunal. However, a claim under
comprehensive insurance is limited to the amount indicated in the insurance
policy. Thus, if there is no evidence on the record to show that the liability of the
Insurance Company was limited to a certain amount (say Rs. 20,000/-) only, the
finding of the Tribunal is liable to be set aside. The liability of an Insurance
Company, unless there is a prohibition to same in a contract or otherwise, is
unlimited. You can challenge the said order before the High Court in appeal.

Q3. Can a person be entitled to interest on compensation granted in a

motor accident case. What is the normal rate of interest in such cases?

A. Yes, the claimant is entitled to interest on the entire amount of compensation

awarded to him in a motor accident case. The rate of interest varies from case
to case and lies in the discretion of the court under the circumstances of the
case.

Q4. What is the legal procedure to deal with motor accidents.

A. A motor accident has two facets, one is criminal and the other is
compensation claim. The person responsible for causing the accident by
negligent driving is liable to be booked for criminal offence, further also liable to
pay compensation to the victim. However, if the vehicle is insured, the liability to
pay compensation is discharged by the insurance company.
Q5. What is the legal procedure followed, when we meet with an accident
i.e. one is going on a vehicle and unfortunately dashes a person crossing
road. The person crossing the road later dies in hospital. What is the
procedure followed to solve the case legally? Note: the driver has a perfect
driving license, the vehicle has a valid insurance, and also the driver was
not driving in violation of any rule.

A. When an accident takes place, a case is registered by the Local Police. In this
case as the person has died, the criminal case will attract Section 304 A of the
Indian Penal Code which provides for offences relating to death due to
negligence. The State has to prove that the accident took place with your vehicle
and that the same was being driven rashly and negligently. In such cases the
statements of the eye witnesses (if any) to the accident is required to be
produced during the trial. It is also to be proved that the pedestrian was not at
any fault. To claim compensation the effected party will have to file a separate
petition under Motor Vehicle Act in the Motor Accident Claim Tribunal.
Important aspect of this is that even if the fault of the driver is not proved, still the
legal heirs of the deceased will be entitled to a "no fault liability" from the
Insurance Company. In case of third party insurance, the concerned Insurance
Company will have to be separately impleaded as a party. In case of non-
impleadment there is no liability of the Insurance Company.

Q6. The injured of the road accident files simultaneously the criminal case
and claim under MACT In the MACT case the driver, owner, and the
insurance company are impleaded as parties. The owner takes the defense
that the vehicle was unauthorisedly / illegally taken away by the unknown
person who now is pleaded as driver in the case. Can the insurance
company be absolved of its liability under MACT on plea of the owner that
vehicle was driven by unauthorized person. The valid insurance
contract/cover with the owner is, however, not disputed.

A. The owner is liable for the wrongs committed by his servants, only if there was
consent/ permission from the master to the servant. If the owner is able to prove
otherwise, successfully, the owner will not be liable to pay compensation and
consequently insurance company will not be liable as the insured / owner.

Q7. How is compensation in case of death of a person calculated ?

A. In the case where the fault of the driver is not proved, the legal heirs of the
deceased are entitled to no fault liability which is presently fixed at Rs. 50,000/-.
In case the death has occurred due to the fault of the driver the compensation is
calculated on the basis of the life expectancy of the deceased multiplied by his
income. The income for the purposes of this calculation is 50% of the actual
income which deceased used to receive as the rest is deducted as the self
expenditure. The state of the health of the deceased and his past health record is
also taken into consideration while deciding the compensation.
Q8. In case of an accident who is liable in the claim for compensation. Is
the driver or the owner who has to be impleaded as a party ?

A. In case of an insured vehicle , in case of an accident, both the owner and the
driver are to be impleaded as parties. In such cases the liability of the driver is
only vicarious in nature while the owner has an absolute liability.

Q9. Normally public carrier companies are used to transport Goods/House-

hold goods and on some occasions the goods given to the Company for
transportation are lost/damaged in the transit. These Companies also
execute agreements with customers which provide that they shall not be
liable for any loss or damage. If a case is filed against such Company for
loss of goods, what is their liability?

A. A common carrier in India is not merely a bailee as we understand and his

liability against the loss or damage is more than what Sections 151, 152 and 161
of the Indian Contract Act 1872 provide for. In the absence of a special contract
under Section 6 his liability is absolute. By entering into a special contract under
Section 6 of the Act, the common carriers' liability may either be governed by the
Indian Contract Act 1872 or by the English Common Law. Therefore, the
condition printed on the consignment note to the effect that the carrier
company would stand discharged from all liability for any loss or damage,
does not result in absolving the carrier company of the liability in absence
of special contract signed by owner of goods. Further, if a suit is brought
against a common carrier for loss, damage or non-delivery of the goods
entrusted to it, it is not for the plaintiff to prove that the loss, damage or
non-delivery was due to the negligence of the carrier, his servants or
agents. Negligence is presumed from loss of or injury to goods.
 CONTRACTUAL ISSUES

Q10. Can two parties orally agree that a particular court only will be able to
hear any case filed by one of them?

A. Jurisdiction of the Court is based on law and cannot be decided by parties to a

contract.

Q11. You enter into an agreement to buy a flat and the seller fails to give
the possession of the flat after the contract was concluded and earnest
money paid. What remedies are now available to you ?

A. You are entitled to the refund of money paid by you to the seller on account of
his failure to perform his part of the contract. In case the seller fails to refund the
said amount, you can file a suit for damages caused by breach of contract by the
seller. You can also file a suit for specific performance of the contract, if you want
to take the flat. You can also move Consumer Forum for remedy.
 BOUNCED CHEQUES

Q12 What is the legal recourse available when you come to acquire, during
one of the transactions, a 500 Rupee note, which later turns out to be a
fake. What should you do?

A. You should immediately contact the Local Police Station and lodge complaint
against the person/source from whom you have received the note. This is
important for you to prove your bonafide.

Q13. What can one do when a cheque is dishonoured for the reason of
insufficient funds. What legal action one can take to get the amount
cleared?

A. On the dishonour of a cheque, one can file a suit for recovery of the cheque
amount along with the cost and interest under order XXXVII of Code of Civil
Procedure 1908 ( which is a summary procedure and) can also file a Criminal
Complaint u/s 138 of Negotiable Instruments Act for punishment to the
signatory of the cheque for having committed an offence. However, before filing
the said complaint a statutory notice is liable to be given to the other party. On
receipt of the information about the dishonour of the cheque , immediately issue
a notice within 30 days from the receipt of the information of dishonour of cheque
to the party. If the party still does not pay the amount within 15 days from the
receipt of the notice, you can file a complaint under Section 138 of the
Negotiatble Instruments Act. A bounced cheque on which action, as per
aforesaid provision, could not be taken, within the time frame, can be presented
once again to set the aforesaid process in motion afresh.
 CRIMINAL MATTERS

Q14. Can police arrest someone without a warrant? Which are the
situations where this can be done?

A. There are various situations in which a person can be arrested without

warrant. The Code of Criminal Procedure 1973 provides for some of these
situations. Section 41 of the said Act prescribes for many such situations which
are discussed hereunder: i) a person who is concerned in any cognizable offence
or against whom a reasonable complaint has been made or credible information
has been received or reasonable suspicion exists of his having been so
concerned. ii) if a person is found in possession of any implement of house
braking without lawful excuse . iii) if a person is proclaimed offender . iv) if a
person is found in possession of a property suspected to be stolen and there is
reasonable suspicion of his committing the offence v) if a person obstructs a
police officers in execution of his duty or has escaped or attempts to escape from
lawful custody. vi) if a person is reasonably suspected of being a deserter from
any Armed forces of the Union. vii) a person against whom a reasonable
complaint has been made or credible information has been received or
reasonable suspicion exists of having been concerned in any act committed
outside India which would have been a punishable offence, if committed in India,
and for which he is under any law relating to any extradition, or otherwise, liable
to be apprehended or detained in custody in India. viii) a person who, being a
released convict, commits a breach of any rule made under sub-section (5) of
Section 365. xi) a person for whose arrest any requisition, whether written or oral,
has been received from another police officer, provided that the requisition
specifies the person to be arrested and the offence or other cause for which the
arrest is to be made and it appears there from that the person might lawfully be
arrested without a warrant by the officer who issued the requisition. Under
Section 42 of the said Act any person can be arrested who, in the presence of a
police officer, has committed or has been accused of committing a non-
cognizable offence refuses, on demand of such officer, to give his name and
residence or gives a name or residence which such officer has reason to believe
to be false, he may be arrested by such officer in order that his name or
residence may be ascertained. But when the true name and residence of such
person have been ascertained, he shall be released on his executing a bond,
with or without sureties, or appear before a Magistrate if so required. Provided
that, if such person is not resident in India, the bond shall be secured by a surety
or sureties resident in India. But if the true name and residence of such person
could not be ascertained, within twenty-four hours from the time of arrest, or if he
fails to execute the bond, or, if so required, to furnish sufficient sureties, he shall
forthwith be forwarded to the nearest Magistrate having jurisdiction. Under
Section 43 of the said Act a person can also be arrested by a private person who
in his presence commits a non- bailable and cognizable offence, or any
proclaimed offender, and, without unnecessary delay, shall make over or cause
to be made over any person so arrested to a police officer, or, in the absence of
a police officer, take such person or cause him to be taken in custody to the
nearest police station. If the police officer has a reason to believe that such
person comes under the provisions of Section 41, a police officer shall re-arrest
him. If there is reason to believe that he has committed a non-cognizable
offence, and he refuses on the demand of a police officer to give his name and
residence, or gives a name or residence which such officer has reason to believe
to be false, he shall be dealt with under the provisions of Section 42; but if there
is no sufficient reason to believe that he has committed any offence, he shall be
at once released. Under Section 44 of the said Act when any offence is
committed in the presence of a Magistrate, whether Executive or Judicial, within
his local jurisdiction, he may himself arrest or order any person to arrest the
offender, and may thereupon, subject to the provisions herein contained as to
bail, commit the offender to custody. Any Magistrate, whether Executive or
Judicial, may order arrest of a person in circumstances to issue a warrant. But in
all these cases the person arrested has to be produced before the Magistrate or
the officer in charge of the police station without unnecessary delay as per
Section 56 of the said Act. Also a person cannot be detained in custody for more
than 24 hours without the permission of the Magistrate as per Section 57 of this
said Act. Police in all such cases has to report to the District Magistrate or the
Sub-Divisional Magistrate about the arrest and also the status of bail as per
Section 58 of this said Act. A person can also be arrested without warrant as per
certain local laws as applicable from place to place. For example in Delhi as per
the Delhi Police Act 1978, a person can be arrested without warrant if an
offence u/s 11 of Prevention of Cruelty to Animals Act, 1960, is committed in
presence of the Police Officer. Thus it also depends on the area of your
residence or on the place where the alleged act in contravention of law is
committed and the local law applicable there. (As per press clippings the
President has recently assented to a proposal that a person alleged to be
committing an offence, where the maximum sentence is seven years’
imprisonment, shall not be arrested but shall be called in the Police Station for
inquiry and only on his refusal he can be arrested . However, formal notification
to this effect has not been issued).

Q15. What can one do if a police officer at the police station refuses to
register an FIR in relation to a cognizable offence?

A. Under the provisions of Criminal Procedure Code ,on the refusal of a Police
Officer to register the complaint you can send the complaint by Registered Post
to the Deputy Commissioner of Police/SP of that District under whose jurisdiction
that Police Station falls. This is provided under Section 154 (3) of Criminal
Procedure Code. Said DCP/SP is under duty to register the FIR if it discloses the
cognizable offence. In the event of failure on the part of either to register the
complaint, you can then file the complaint before the Metropolitan
Magistrate/District Judge under Section 190 of the Code of Criminal Procedure.

Q16. What is the punishment for a man who tortures a woman mentally,
physically or verbally?

A. It is an offence punishable under section 498A of the Indian Penal Code,

1860, which is imprisonment for a term which may extend to three years and
shall also be liable to fine.
 SERVICE RELATED ISSUES

Q17. What can one do if a private Company one is working for is not
relieving you. After tendering resignation, one has even completed serving
during the prescribed notice period.

A. If the notice period has expired, as prescribed in the contract of employment,

intimate to your employer in writing that as notice period has already expired you
will stop coming to the office from ______ (specific date) and also write about
settling your accounts/dues. This position will not apply when employed in
Govt./Semi-Govt./PSU. In these cases the resignation has to be accepted and
then the relieving has to be effected.

Q18. What are the consequences of breach of employment bond furnished

by an employee, On the employee himself, and on the company that
employs him subsequently. If the bond states that the employees can be
sued for criminal breach of trust on breach of the bond, how enforceable is
this clause?

A. As regard the breach of the employment bond furnished by an employee, it is

advised that if an employee has signed a bond to serve the company, after he
acquires training from the company, then a civil case can be filed against him for
recovery of the amount mentioned in the bond, if there is a breach. As regard the
company that employs him subsequently, there is no liability of the company,
which employs him subsequently. However, in case the subsequent employer
happens to be a PSU/Govt. such a person will not be employed unless his
relieving is unencumbered and unconditional. Breach of bond is not criminal
breach of trust, it is of civil consequences and that also have to be proved in the
Court of Law. In no manner it can be termed as criminal breach of trust.

Q19. Is a terminated employee eligible to be considered again for

employment?

A. In PSU/Govt./Semi-Govt. the word termination is generally associated with

misconduct. Hence, a terminated employee is not considered for re-employment.
However, in a private company termination is resorted to on the grounds of cost
cutting, lack of business etc. Here, there is no legal impediment for such a
consideration and it is an internal policy matter of the Company.
 PROPERTY RELATED ISSUES

Q20. Does Hindu Undivided Family Law say that grandson has any right
over the property of the grandfather ? Even if he has written a will on his
sons’ name.

A. Grand-son has no right in the property of his grand-father. Grandfather is

competent to give the property to his son by writing a WILL, if the property is the
self acquired property of the grand father. If the property is an ancestral property
then no WILL can be made, and in such a case the grandson will only get a
share out of the share of his father.

Q21. What are the legal duties & responsibilities of an unmarried financially
independent daughter above 21 years of age towards her parents? How is
the property of a Hindu male divided after his demise.

A. Section 20 of the Hindu Adoption & Maintenance Act, 1956 provides for
maintenance of the children and aged parents. Under the provisions of the said
section, Hindu is bound, during his or her life time, to maintain his or her
legitimate or illegitimate children and his or her aged or infirm parents. Thus, an
unmarried, financially independent daughter has a legal duty to maintain her
parents. However, a child may claim maintenance from his or her father or
mother so long as the child is minor, i.e. a person who has not completed 18
years of age. When a Hindu male dies intestate his property devolves around his
legal heirs. Section 10 of the Hindu Succession Act, 1956 gives in detail the list
of Class I heirs who are to be given first preference while dividing the property of
the deceased. Rule 1 of this Section provides for a share of property for the
widow of the deceased. Rule 2 of this Section provides for a share each for the
surviving sons and daughters and the mother of the deceased. In case there are
only two surviving daughters and a son, each one will get a share equal to 1/3 of
the undivided share in the property. In case one of the sisters is willing to
relinquish her share in favour of the other sister, she can do so by executing a
relinquishment deed in her favour. The sisters can not claim partition of the
residential house till the son chooses to divide the respective shares in the said
house.

Q22. Can one institute a suit with respect to two properties, belonging to
the same person who is a resident of Delhi, in the courts at Delhi, when one
of the properties is situated in the local limits of Delhi and another in
Faridabad.
A. Yes, the suit can be instituted in the courts at Delhi. Since, one of the
properties is situated within the jurisdiction of the Delhi Court. In terms of Section
17 of the Code of Civil Procedure, the Courts at Delhi will be fully competent to
try the suit relating to both the properties.

Q23. In a certain case the premises had been leased out, under a duly
executed contract / lease deed. The lease was made for a period of three
years, but the same was not executed on a stamp paper nor was registered.
One of the terms in a lease deed mentioned that the payment of house-tax
would be made by the tenant, during the period of lease. The tenant,
however, has failed to honour the said terms and did not pay the house-tax
for the period. Can one file for recovery of the house-tax from the tenant,
who has refused to pay the same.

A. Since the lease executed is for a period of over one year, the same is bound
under law to be registered. Since, the said lease deed has not been registered, it
cannot be looked into and as such the terms regarding payment of property tax
cannot be got enforced by you in law. The filing of suit, in the court of law would
be meaningless since no purpose would be achieved out of the same. However,
this defect can be cured by payment of penalty and thereafter, the document
would be an admissible evidence.

Q24. A living Hindu male gifts, during his life time, his properties to
various persons, some of whom are living and some were yet to be born.
He dies immediately after making the Will. What right do the persons who
were not born at that time and were born subsequently, have in the
property.

A. Where a gift is made to a class or series of persons, some of whom are in

existence and others are not, the gift is valid with regard to persons who are in
existence at the time of death of the testator and invalid as to rest.

Q25. Can one enter into a benami transaction to purchase a property in the
name of son and unmarried daughter . Is it legally permissible to do so?

A. Benami transactions are prohibited under the law. However, one can purchase
benami property for the benefit of one’s wife or unmarried daughter but not for
son.
Q26. In Delhi, Bombay, Chennai and Kolkata many property sales deals are
conducted through POWER OF ATTORNEY. Are such transactions legal,
because if any registration is effected thereby not paying the relevant
Stamp Duty/Registration fees under the Indian Stamp Act and The
Registration Act. Can such Power of Attorney be revoked by the
executant?

A. Transaction of property by way of agreement to sell with power of attorney is

valid transaction. In such cases the purchaser does not get the title but his
possession is always protected under Transfer of Property Act. Power of
Attorney with consideration is irrevocable. Since such documents do not give
title, so there is no question of any payment of Stamp Duty. Stamp Duty will be
charged on the Registration of Proper Sale Deed.

Q27. What are the documents required to legally own a house?

A. Ownership of a house can be by one of the following ways : i) By way of

allotment by the Development Authorities like DDA, GDA, HUDA and other such
authorities. In such cases Allotment letter issued by the authorities is the title
document. ii) By way of allotment by Co-operative Group Housing Societies. In
such cases Share Certificate would constitute title document. iii) By purchase
from a private builder/person. In such cases a Sale/Conveyance/Transfer deed
,duly registered on payment of required Stamp Duty, would be the legal title
document to own a house.

Q28. You purchase an immovable property after paying all the money.
After the sale deed is executed, it comes to your knowledge that the
property is already mortgaged by the bank as an equitable mortgage and
that the loan account of the vender in bank going in very bad condition. So,
in future the bank can take any action to recover the loan. In this procedure
the bank can sell the property by auction. What can one do to save the
property?

A. The law is well settled that in any transaction buyer has to be beware. If the
property has been purchased without seeing and taking original sale deed from
the seller then it is a blunder, as ignorance of law is no excuse. The Bank has full
right to take over and sell the property in case of default in repayment of loan. It
is better to pay the amount, due to the bank and file recovery suit against the
Seller. The Sale Deed in your favour may contain the clause that the property is
free from all the encumbrances. On that you can also file the criminal complaint
of cheating against the Seller.
Q29. What does a WILL actually mean. How do you make it. Also, the way
of registering?

A. WILL is a legal declaration of the intention of a person with respect

to his property or a state, which he desires to take effect after his death.
WILL is an untitled document which states, how the property belonging to him is
to be distributed, after the death of the person making the deposition. It is a
document which can be revoked , modified or substituted by the person
executing the will, at any point of his time, during his life time. For executing the
Will the person must be fully competent, as much as he should not be a minor
and should not be a person of unsound mind. The Will has to be in writing and it
has to state that the person executing the same is making it out of his own free
will and in a sound disposing state of mind. It has to be signed by the executor of
the Will and has to be attested by two witnesses at least. The WILL under law is
not required to be compulsorily registered. It can be executed even on a plain
paper and it can be fully valued even if unregistered. In the event of the person
desiring WILL to be registered, he has to approach the office of the Sub-
Registrar and has to be accompanied by the person who have signed as
witnesses on the said WILL .The executor of WILL as well as the attesting
witnesses have to put their signatures and thumb impressions in the register
maintained by the Sub-Registrar. There are Sub-Registrars defined for various
district and you have to inquire for in this regard from the concerned office as to
which Sub-Registrar you are required to get your WILL registered. The Sub-
registrar would be as per the place of the residence of the person executing the
WILL.

Q30. Is it true that one cannot name his daughter as a successor in his will
and give her all of his property? If yes, what happens if a person has only
daughter and no son?

A. It is wrong to say that a person cannot give his/her property to his/her

daughter in his WILL. Person can give anything to his daughter in a WILL. Even if
there is no WILL and a person dies and his only successor is a daughter, the
daughter automatically becomes the owner of all the properties/assets of the
deceased.

Q31. If someone makes a WILL only in his sons’ name then are the
daughters entitled to any thing. Also, if a person dies without making a
WILL then are daughters entitled legally for a right in the property?
A One can make a WILL in favour of the son(s) by excluding the daughters. If no
WILL is made, on death of the person, all the legal heirs which includes
daughters, have equal share in the property along with the sons.

Q32. A Lady owns a flat in her name. Can she sell the flat to her son or it
has to be gifted or willed only ? The lady has 3 daughters as well.

A. Executing a WILL in favour of the son is the cheapest mode. To further

ensure, it would be advisable to take an affidavit from the daughters that they
know about the execution of WILL in favour of the son and that they have no
objections. Otherwise Gift or Sale Deed is the safer mode. Out of these two, Gift
is a preferable mode. It has to be executed on appropriate stamp paper
(depending upon the value of the property) and registered with the Sub-
Registrar.
 MATRIMONIAL ISSUES

Q33. A Hindu Boy wishes to marry a Muslim girl or vice-versa . Is it

possible?

A. Such marriages can be solemnised under Special Marriage Act, in case

none of them wants to change their religion. In case one of them changes their
religion then their marriage can be registered under their respective Marriage
Acts.

Q34. How long after marriage can a person seek divorce Under Hindu Law?

A. Under Section 14 of the Hindu Marriage Act, 1955, no petition for divorce can
be filed within one year of the marriage. But in case the petitioner's case is of
exceptional hardship then the High Court is empowered to grant leave to file the
case before the expiry of one year.

Q35. What is the minimum required age to marry under The Hindu Law?

A. According to Section 5 ( iii) of the Hindu Marriage Act, the bridegroom has to
complete 21 years of age and the bride 18 years of age. Any marriage in
contravention of this attracts simple imprisonment, which may extend to 15 days
or fine, which may extend to Rs.1000/- or with both.

Q36. What is the procedure to file a joint petition for divorce by mutual
consent. How should one proceed? How much time will it take for the
divorce? When can a person marry again after obtaining a decree of
divorce?

A. Divorce by mutual consent can be obtained by Husband and Wife in terms of

Section 13 B of the Hindu Marriage Act, 1955. The provisions of the said
Section require that the husband and wife should be living separately for a period
of more than 1 year and they are not able to live together any further. In one of
the case the term "Living Separately" has been interpreted by the Supreme Court
as "not living as husband and wife and not performing marital obligations",
even if the husband and wife are living under the same roof. A joint petition has
to be filed in this regard and after the filing of the same the Court grants a
minimum period of six months (and maximum 18 months) for the parties to come
again and make a statement confirming the said consent. It is only after this
second consent having been given by both the parties after six months of the
filing of the petition for mutual consent, that a decree for divorce is passed by the
Court. If during this period of six months after the filing of the petition, any of the
parties withdraws the consent, the divorce can not be granted. Further, apart
from the same, before passing a decree of divorce, the court has also to be
satisfied that the consent has not been obtained by force, fraud or undue
influence. With regard to the re-marriage after divorce, Section 15 of the Hindu
Marriage Act, 1955, provides that after a decree of divorce has been granted, in
case there is no right of appeal against the decree or if there is a right, the time
has expired without an appeal having been presented or if the appeal filed has
been dismissed, it shall be lawful for either party to marry again. The period of
appeal as provided under Section 28 of the Hindu Marriage Act is 30 days from
the date of the decree or order.

Q37. If the wife has left the house of her husband and was living away from
him without any reasonable cause, can the husband be entitled to judicial
separation or divorce? Is there a time period for filing of divorce petition?

A. In case the wife has left the house of the husband and is living away from him
without any reasonable cause, the husband is entitled to judicial separation or
divorce. The condition however, is that the desertion of the wife should be for a
continuous period of not less than two years, immediately preceding the
presentation of the petition for grant of judicial separation or divorce. Thus, in
order to entitle one to file a petition for divorce, one would be required to prove
that the wife has deserted, without any reasonable cause, and has been living
separately for a continuous period of two years.

Q38. Can the daily domestic quarrels between husband and wife entitle
either of the two to file a petition for divorce against the other? Can
grounds for mental cruelty be pleaded to claim a divorce from the other
spouse, even if there is no physical cruelty by the spouse to the other
spouse?

A.. Daily domestic quarrels between husband and wife do not entitle either of the
two to file a petition for divorce against the other. It is well settled that the
domestic quarrels do not entitle a spouse to seek divorce. Mental cruelty can
certainly be pleaded to claim divorce from the other spouse even if there is no
physical cruelty. The cruelty however, should be of such a nature that it causes
reasonable apprehension in the mind of the spouse claiming divorce, that it
would be harmful and injurious for him /her to live with the other spouse.

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DISCLAIMER: The aforesaid Q&A has been prepared on the basis of in-house
research and contains information of a primary as well as secondary nature. This
is intended to create awareness only. The legal situations are unique and differ
from case to case. Kindly do not hesitate in seeking professional legal advice
when faced with an actual situation.