Advocate Anirudh Kanav

Questions Answered by Advocate Anirudh Kanav

Q: Can family members raise objection on court marriage of adults

I am planning to do court marriage. Gal is above 18 and boy is above 21. After applying for court marriage, will notice goes to address of both?if yes, can anyone raise objection with reason that they don't want this marriage. Both belongs to Hindu religion

Advocate Anirudh Kanav answered
It is an essential pre-requisite for marriage that both the parties should be of legal marriageable age. You have specified that you are of legal age then there should be no problem. It is a settled law of the land that “Right to marry a person of one’s choice is integral to right to life and liberty” the Supreme Court has held. I will mention extract from the recent verdict by the Hon’ble Supreme Court “The choice of a partner whether within or outside marriage lies within the exclusive domain of each individual. Intimacies of marriage lie within a core zone of privacy, which is inviolable.” The law is with you, so there is no need to worry. Your family can coerce you, but from a legal point of view, your choices are respected. Do not worry about the notice. Go and talk to the lawyer who happens to be involved in the process of court marriages. In many cases, the marriage is done in a day or less than 2/3 days.

Q: How to get bail and stop arrest in case of IPC 306

Dear Sir, I am from Rajasthan. Let me tell you about my family. My father passed away in 2007 and we are three. One is my mom, my younger brother and me. We both are married. My younger brother's wife passed away because she took poison by herself. We couldn't save her. Her family put case against my mother and younger brother under IPC-306. Younger brother is in the jail and police are trying to find my mother to take in the jail. It's been more than one month. I am studying in delhi. My younger brother's career has already spoiled. How can I get out him from the jail and save my mom to arrest by police. Thanks

Advocate Anirudh Kanav answered
Firstly, you need to understand that IPC 306 is a very serious offence and is non-bailable. It is important to talk in detail about the facts which led to her taking such a drastic step. It can be of some help to have an insight into the facts. The first and foremost step you have to take is to apply for anticipatory bail for your mother. It might sound a bit harsh, but there is less possibility of having your brother out on bail before the next few months, depends on how the trial shall proceed in the days to come. As far as your mother is concerned you should apply for anticipatory bail at the earliest. No career is spoiled. Mere accusations won't suffice. I would suggest you do not evade the process of law, as it can be detrimental to your interests and further complicate the matter.NOTE: Please bear in mind, that the opinion is based on the factual matrix that has been provided by you and can undergo change upon addition of more facts and can be supplemented with more information.

Q: Divorce on the ground of mental torture

My employee (foreign Passport Holder) married an Indian in 2015. They lived together for some time but the harassment from her husband and his family started heavily. Traditions of both are different and now they are insisting that she should change her caste and religion - threatening her; putting her into mental torture heavily. This is going beyond limits for two years. my employee wants to apply for divorce. The marriage was registered in India. Now my employee is living in another country alone and husband threatening to become huge and she is restless. Kindly suggest how to apply for divorce from this India

Advocate Anirudh Kanav answered
Your employee can seek divorce under the relevant act which applies to them. If the employee is not a Hindu, then the marriage would be governed by the Special Marriage Act. There are a number of cases that I have dealt with in the recent past where disputes do arise in a matrimonial relationship due to numerous reasons. However, there is no need to worry. Your employee can file for divorce and also take relevant action under the prescribed law of the land. There is no need for you to worry. There are about 3-5 cases that she can file and avenge what she has gone through or be going through at the moment. Your employee can seek legal assistance and will be guided properly for the problem that she is facing. There is no need to worry. Further, your query has no mention of the place of marriage because it plays an important role in case the marriage was held somewhere else, mere registration in India will not be relevant.NOTE: Please bear in mind, that the opinion is based on the factual matrix that has been provided by you and can undergo change upon addition of more facts and can be supplemented with more information.

Q: DV case not withdrawn after the first motion

I and my wife have settled our case in Mediation centre Court. As per the terms & conditions she has to withdraw DV act within a week after first motion and FIR quashing will be done after second motion. The amount is to be paid in 3 instalments, 1st instalment on 1st motion, 2nd instalment on 2nd motion & 3rd instalment on FIR quashing. Our 1st motion was done on 23rd July,18 in which we have given her amount as agreed. But till date, she has not withdrawn the DV act case. Also, she has not appeared on the next date of hearing in DV act case which was on 9th Aug,18. Her advocate is also not appearing now. In the first motion, we have submitted the affidavit in the family court in which we have mentioned that if any party breaks the settlement deed in between then they have to pay a certain amount to the second party and also return back the amount taken. So, I want to know what action can we take against her now? Please tell me the section no. of IPC which is to be put in this case on wife by me.

Advocate Anirudh Kanav answered
This is a common practice that most of the parties follow upon the settlement of the case. However, no need to panic unless your wife has expressly denied giving her consent for the second motion. If you had apprised the Hon’ble court where the Domestic Violence proceedings are going on about the settlement between you and wife the court will not pass any adverse order against you. Further, on the next date if your wife does not appear request the court to issue court notice to the complainant. At times, the complainant appears after the court notice. Therefore, no need to panic. I would suggest you to not look for pressing the clause of damages in your settlement and rather get done with the divorce. It will take up another few months to follow the other path. As far as what you can do now, call your wife’s lawyer or her and ask her to appear and withdraw the case. If you do not wish to contact either of them then appear before the Domestic Violence court on the next date and ask the court to issue court notice. You can recover the amount that has been paid to your wife if she withdraws from her consent. Moreover, you can file a cheating case against her, but there is less likelihood of success in the criminal case, if so filed, as there are a number of judgments passed by Supreme Court of India supporting the withdrawal of consent after first motion. Nobody can compel the other party to give consent under pressure.

Q: Sec 138 Case filed but name of accused is wrong in notice and summons

I am the sole proprietor of an enterprise. I had issued a cheque to a party which got bounced. The other party has filed sec 138 case against me. In the notice and in the summon that I have received, the name of the accused is wrong I just wanted to know that is this case maintainable? since the name of accused is wrong. Please help.

Advocate Anirudh Kanav answered
If there is only a minor problem of spelling in your notice as received, it will not be a problem. However, if your name is Shyam and the notice mentions Manohar, in that case that it will be a major difference. Further, the issuance of a cheque in a 138 Case is of prime importance as a presumption lies in favour of the holder of the cheque and against the issuer of the cheque. Maintainability can be challenged in many ways, but in a summary manner I will not be able to respond on maintainability of the case. You have to appear in the matter and avail services of a lawyer to chalk our the best possible defense in the present facts and circumstances.