Advocate Anil Kumar Thakur

Questions Answered by Advocate Anil Kumar Thakur

Q: How to add my name as a witness in A Criminal Case

Respected sir,some people have beaten up my friend in front of me and as i reached there to save him they fled away then me and my friend had gone to police station to lodge fir and as we know who had beaten up my friend so we gave their name but due to they had bribed the police.police had not written my name that i was eye witness and even didn't took my statement.so sir is there a way so that i can add my name as a witness and other people are also agreeing who has seen the incident to be the witness? Is there any provision in law that provides that if police has not written our statement in case so we can go directly to court to give the statement?please help.

Advocate Anil Kumar Thakur answered
You can approach before senior officers of police i.e. Inspector ,Dysp,S.P,D.I.G.,I.G.& D.G.P. in writings or face to face . You can advise your friend ,who is informant of the case to file a protest complaint before concerned C.J.m. in that case record.as example ----न्यायालय मुख्य न्यायिक दंडाधिकारी ,बक्सर [बक्सर (नगर) थाना कांड संख्या 21 सन 2016] सरकार बनाम सुधीर तिवारी (Protest complaint)प्रत्यर्पित अभियोग पत्र संख्या सन 2016 नाम अभियोगिनी - रीना देवी पति श्री सुधीर तिवारी निवासी सुमेश्वर स्थान ,चरित्र वन , बक्सर पो. बक्सर थाना बक्सर नगर वर्तमान पता- के.के.मन्डल महिला महा. बक्सर के सामने , बीबीगंज बक्सर थाना बक्सर नगर जिला बक्सर । नाम अभियुक्त- सुधीर तिवारी उम्र लगभग 35 वर्ष पिता विनय कुमार तिवारी निवासी सुमेश्वर स्थान , चरित्र वन बक्सर थाना बक्सर नगर जिला बक्सर नाम साक्षीगण - 1. राधिका कुमारी पुत्री स्व. जंग बहादुर यादव 2. सीता देवी पति रामजी यादव एवम अन्य जिनका नाम अभी याद नही` है सभी निवासी के.के.मंडल महिला महा. के सामने , बीबीगंज बक्सर थाना बक्सर नगर जिला बक्सर घटना की तिथि व समय - दिनांक 27 अप्रील 2011 से आज तक धारा- 498 ए .494 , भा.द.वि. निवेदन है कि प्रार्थिनी के पूर्व पति जंग बहादुर यादव की मृत्यु लगभग 11 वर्ष पूर्व हो गयी ,प्रार्थिनी को उनसे दो पुत्री व एक पुत्र है । अपना भविष्य देखते हुए प्रार्थिनी ने अभियुक्त के साथ दिनांक 27.4.2011 को मंगला भवानी,मन्दिर ,उजियार जिला बलिया (उ.प्र.) मे` की तथा दोनो पति पत्नी के रूप मे`किराये के मकान मे` के.के.मंडल महिला महाविद्यालय ,बीबीगंज बक्सर थाना बक्सर नगर जिला बक्सर मे` रहने लगे , अभियुक्त अनेक बहानो`` के साथ प्रर्थिनी को कभी भी अपने घर नही` ले गया । प्रार्थिनी अभियुक्त के साथ सहवास से पांच बार गर्भवती हुई मगर अभियुक्त प्रार्थिनी पर दबाब बनाकर जबरदस्ती गर्भपात करा देता । अभी भी प्रार्थिनी गर्भवती है तथा गर्भ लगभग 5 माह का हो गया है , अभियुक्त लगातार प्रार्थिनी को गर्भपात कराने का दबाब बना रहे है` मगर प्रार्थिनी ने इस बार अभियुक्त की बात नही` मानी तो अभियुक्त प्रार्थिनी के साथ क्रुरता पुर्वक व्यवहार कर रहे है` और विगत पांच माह से प्रार्थिनी के साथ मार पीट कर रहे है` । अभियुक्त ने अपनी शादी चंचला नाम की एक लडकी जो बडका गांव थाना सिकरौल जिला बक्सर की रहनेवाली है के साथ तय कर लिया है । प्रार्थिनी ने घटना की शिकायत पुलिस को की जिसपर उपरोक्त बक्सर(नगर)थाना कान्ड संख्या 21 सन 2016 दर्ज किया गया ,प्रार्थिनी गवाहो`के साथ पुलिस के समक्ष अपना और गवाहान का बयान कराया ,सभी गवाहो` ने पुलिस के समक्ष घटना का पुर्ण समर्थन किया ,मगर अभी तक पुलिस द्वारा कोई कार्रवाई नही` की गयी । पुलिस के रवैये से यह स्पष्ट होता है कि पुलिस अभियुक्तो` के मेल मे` आकर प्रार्थिनी का मुकदमा बिगाड देगी । अत: प्रार्थना है कि उक्त धाराओ या अन्य धाराओ मे` संज्ञान लेकर अभियुक्त को दण्डित किया जाय कि प्रार्थिनी को न्याय मिले । प्रार्थिनी दिनांक बक्सर This case is for example only ,entire story of this case is imaginary . This is a protest complaint ,if investigating officer will submit final form u/s 173 Cr.P.C. against case then this protest will come in picture and at the time of trial you can depose as eye witness.

Q: Wife filed a case of maintenance court passed judgement ex parte

MY WIFE HAS FILED A MAINTENANCE CASE UNDER SEC 125 CRPC. SUMMON IS ISSUED BY THE COURT, AS i WAS NOT AT HOME AND MY MOTHER WAS PRESENT, THE POLICEMAN HAS ASKED HER TO TAKE THE SUMMON WHICH IS DECLINED, THEN THEY PASTED THE SUMMON IN FRONT HOUSE DOOR. ON FIRST DATE WHICH WAS GIVEN IN THE SUMMON I DID'NT APPEARED AND COURT HAS PROCESSED IT FOR EX PARTE AND GIVEN ANOTHER DATE TO PRODUCE EVIDENCE BY MY WIFE. KINDLY ADVISE WHAT SHOULD BE THE NEXT COURSE OF ACTION FROM MY SIDE. THANKS

Advocate Anil Kumar Thakur answered
s.19(4) of the family court act , The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure, 1973,according to s.125 ((3) Cr.P.C..If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month' s allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife' s refusal to live with him.

Q: Regarding filing a case under IPC 420 After divorce

Hello Sir .. I got married with a girl before one year back.. Initially one month we spent happily. After she started making distance with me. After some time she starting insulting me and was not picking my call also. Her family is also behaving same. They havent told any reson for that. After some time one of her family member told she does not want to stay with you so give her mutual divorce. We asked about her.. That person was not ready to tell her location also. Then we filed case with section 9 . she did not appear in any hearing but she made false complaints against me(498 a ) and filed section 13 (1) Ia. In counsling she forcefully agreed me for mutual divorce and told she does not want any thing(no money) and not filed FIR, but she is still having jewelry of 10 lacs. Between that period we got proof that that is her second marriage that was the hided by her family. i want to ask that whether can we file IPC 420 after divorce.

Advocate Anil Kumar Thakur answered
You can file case u/s 494 I.P.C. which is as follows ----494. Marrying again during lifetime of husband or wife.—Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.(Exception) —This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.

Q: After how much time of marriage can one file for divorce

Shadi ke kitne time bad koi divrce le sakta h or ek terfa talaq hota h to kese kb tk hoga

Advocate Anil Kumar Thakur answered
2 years after desertion, S-13 H.M.A.Divorce. —(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party—16 [(i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or]16 [(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or]16 [(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or](ii) has ceased to be a Hindu by conversion to another religion; or17 [(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.Explanation .—In this clause,—(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or](iv) has 18 [***] been suffering from a virulent and incurable form of leprosy; or(v) has 18 [***] been suffering from venereal disease in a communicable form; or(vi) has renounced the world by entering any religious order; or(vi) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; 19 [***] 20 [ Explanation. —In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.] 21 [***]22 [(1A) Either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground—(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of 22 [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 22 [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.](2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,—(i) in the case of any marriage solemnised before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnisation of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or(ii) that the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or 23 [bestiality; or]24 [(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) [or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898)], a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or25 [(iv) that her marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.]Explanation. —This clause applies whether the marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)*.] State Amendment Uttar Pradesh: In its application to Hindus domiciled in Uttar Pradesh and also when either party to the marriage was not at the time of marriage a Hindu domiciled in Uttar Pradesh, in section 13—(i) in sub-section (1), after clause (i) insert (and shall be deemed always to have been inserted) the following clause, namely:— “(1a) has persistently or repeatedly treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party; or”, and “(viii) has not resumed cohabitation after the passing of a decree for judicial separation against that party and—(a) a period of two years has elapsed since the passing of such decree, or(b) the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of other party; or(ii) for clause (viii) (since repealed in the principal Act) substitute (and shall be deemed to have been substituted) following clause, namely:—[ Vide Uttar Pradesh Act 13 of 1962, sec. 2 (w.e.f. 7-11-1962)].(i) Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society, to which the parties belong, their social values, status, environment in which they live. Cruelty need not be physical. If from the conduct of the spouse it is established or an inference can be legitimately drawn that the treatment of the spouse is such that it causes apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty; Maya Devi v. Jagdish Prasad, AIR 2007 SC 1426.(ii) Making false allegations against husband of having illicit relationship and extramarital affairs by wife in her written statement constitute mental cruelty of such nature that husband cannot be reasonably asked to live with wife. Husband is entitled to decree of divorce; Sadhana Srivastava v. Arvind Kumar Srivastava, AIR 2006 All 7.(iii) The expression “Cruelty” as envisaged under section 13 of the Act clearly admits in its ambit and scope such acts which may even cause mental agony to aggrieved party. Intention to be cruel is not an essential element of cruelty as envisaged under section 13 (1) (ia) of the Act. It is sufficient that if the cruelty is of such type that it becomes impossible for spouses to live together; Neelu Kohli v. Naveen Kohli, AIR 2004 All 1.(iv) The levelling of false allegation by one spouse about the other having alleged illicit relations with different persons outside wedlock amounted to mental cruelty; Jai Dayal v. Shakuntala Devi, AIR 2004 Del 39.(v) Mental disorder for relief under section 13 (1) (iii) should be of such a degree that it is impossible to lead normal marital life or it is unreasonable to expect a person to put up with a spouse with such condition; B.N. Panduranga Shet v. S.N. Vijayalaxmi, AIR 2003 Karn 357(vi) Due to the criminal complaint filed by the wife, the husband remained in jail for 63 days and also his father and brother for 20 to 25 days. Therefore, even though the case of cruelty may not have been proved but as the facts emerging from the record clearly indicate that the living of the two as husband and wife would not only be difficult but impossible, the court has no alternative but to grant a decree of divorce; Poonam Gupta v. Ghanshyam Gupta, AIR 2003 All 51.(vii) Unless the entire genesis of the quarrels in the course of which, one of the spouses holds out a threat to take his or her life is placed before the court, the very fact that some threat in the course of a quarrel is held out, cannot be viewed in isolation or construed as mental cruelty to the other spouse; Nalini Sunder v. G.V. Sundar, AIR 2003 Kar 86.(viii) A husband cannot ask his wife that he does not like her company, but she can or should stay with other members of the family in matrimonial home. Such an attitude is cruelty in itself on the part of the husband; Yudhishter Singh v. Sarita, AIR 2002 Raj 382.(ix) Removal of mangalsutra by wife at the instance of her husband does not amount to mental cruelty; S. Hanumantha Rao v. S. Ramani, AIR 1999 SC 1318.(x) A threat to commit suicide by the wife amounts to infliction of mental cruelty on the husband but it should not be uttered in a domestic tiff; Pushpa Rani v. Vijay Pal Singh, AIR 1994 All 220.(xi) Solitary instance of cruelty would not constitute cruelty so as to grant a decree for divorce rather the behaviour of the other party has to be persistently and repeatedly treating the other spouse with such cruelty so as to cause a reasonable apprehension in the mind of the husband/wife that it will be harmful or injurious for him or her to live with the other party. The expression “persistently” means continue firmly or obstinately and the expression “repeatedly” means to say or do over again; Vimlesh v. Prakash Chand Sharma, AIR 1992 All 261.

Q: Want to file for divorce how to determine jurisdiction

Hi, I belong to UP and got married in Kanpur (UP) only thereafter my parents has shifted to Indore (MP). My husband still resides in UP and my parents resides in MP. The reason to shift is studies of my younger brother. I would like to proceed for divorce from MP only as my family is there. Can i initiate the proceedings from MP?? It is not a mutual divorce, I am filling it due to mental and physical harassment from my husband & his family.

Advocate Anil Kumar Thakur answered
yes, you were admittedly married at Kanpur (U.P.) and your parents shifted to Indore (M.P. ) ,Your husband deserted you lastly at Indore (M.P.) so you got cause of action also at Indore(M.P.) Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society, to which the parties belong, their social values, status, environment in which they live. Cruelty need not be physical. If from the conduct of the spouse it is established or an inference can be legitimately drawn that the treatment of the spouse is such that it causes apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty; Maya Devi v. Jagdish Prasad, AIR 2007 SC 1426.