Advocate Anuj Nair

Questions Answered by Advocate Anuj Nair (100+ answers)

Q: We are facing water leakage and dampness in our walls due to leakage from a neighboring property.

I am Saurabh Bhardwaj, residing at E-160, Street No. 16, Sadh Nagar, Palam. We have been facing water leakage and dampness in our walls due to leakage from our neighbor's plot for a long time. The moisture has caused the walls to smell, the paint to deteriorate, and we have even experienced occasional electric shocks, which pose a constant threat to life and weaken the wall. Despite repeated attempts to contact the plot owner, who is a police officer, to request the construction of a boundary wall to stop the leakage and dampness, we have not received any response. Please advise on the actions we can take, including sending a legal notice for water leakage or filing a complaint against the neighbor for drainage leakage, and how we can seek compensation for the damage to the wall. Thanks.

Advocate Anuj Nair answered
Hi,In this instance.This is completely fit case under Section 147 of the CrPc, which is for a 'Dispute concerning the right of use of land & water'. Essentially, you have to make out a detailed complaint (drafted by a lawyer well versed with the laws) which you should accompany with photographs, videos and forward the same to the police officer and thereafter to the office of the Executive Magistrate in your locality. You should also send a legal notice to your neighbors highlighting the same. It should be stressed that due to the non-compliance of your neighbors, there is imminent threat and danger to the life and limb of your family due to electrocution.Upon being convinced of merit of your case. The Executive Magistrate will issue notice under a Kalandra to your neighbour's to appear before them and present their version of the arguments. After arguments, the Executive Magistrate will appoint a technical expert to examine the location of the leakage to determine where the leakage is coming from. There are certain situations, wherein the leakage occurs as the outlet entry of the drainage pipes has been clogged, due to which the water travels back up from the ground floor to the first and second thereafter which could also be a cause of the leakage. Please ensure that there are no irregularities from your end and then proceed with this line of action. Once this has been completed, the Executive Magistrate will pass on order in your favour and you should be granted compensation for damages as well. Do let me know if you need further assistance.(1) Whenever an Executive Magistrate is satisfied from the report of a police officer or upon other information, that a dispute likely to cause a breach of the peace exists regarding any alleged right of user of any land or water within his local jurisdiction, whether such right be claimed as an easement or otherwise, he shall make an order in writing, stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend his Court in person or by pleader on a specified date and time and to put in written statements of their respective claims. Explanation.- The expression" land or water" has the meaning given to it in sub- section (2) of section 145.(2) The Magistrate shall then peruse the statements so put in, hear the parties, receive all such, evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence, if any, as he thinks necessary and, if possible, decide whether such right exists; and the provisions of section 145 shall, so far as may be, apply in the case of such inquiry.(3) If it appears to such Magistrate that such rights exist, he may make an order prohibiting any interference with the exercise of such right, including, in a proper case, an order for the removal of any obstruction in the exercise of any such right: Provided that no such order shall be made where the right is exercisable at all times of the year, unless such right has been exercised within three months next before the receipt under sub- section (1) of the report of a police officer or other information leading to the institution of the inquiry, or where the right is exercisable only at particular seasons or on particular occasions, unless the right has been exercised during the last of such a seasons or on the last of such occasions before such receipt.(4) When in any proceedings commenced under sub- section (1) of section 145 the Magistrate finds that the dispute is as regards an alleged right of user of land or water, he may, after recording his reasons, continue with the proceedings as if they had been commenced under subsection (1); and when in any proceedings commenced under sub- section (1) the Magistrate finds that the dispute should be dealt with under section 145, he may, after recording his reasons, continue with the proceedings as if they had been commenced under sub- section (1) of section 145.148. Local inquiry.(1) Whenever a local inquiry is necessary for the purposes of section 145, section 146 or section 147, a District Magistrate or Sub- divisional Magistrate may depute any Magistrate subordinate to him to make the inquiry, and may furnish him with such written instructions as may seem necessary for his guidance, and may declare by whom the whole or any part of the necessary expenses of the inquiry shall be paid.(2) The report of the person so deputed may be read as evidence in the case.(3) When any costs have been incurred by any party to a proceeding under section 145, section 146, or section 147, the Magistrate passing a decision may direct by whom such costs shall be paid, whether by such party or by any other party to the proceeding, and whether in whole or in part or proportion and such costs may include any expenses incurred in respect of witnesses and of pleaders' fees, which the Court may consider reasonable. CHAP PREVENTIVE ACTION OF THE POLICE CHAPTER XI PREVENTIVE ACTION OF THE POLICE149. Police to prevent cognizable offences. Every police officer may interpose for the purpose of preventing, and shall, to the best of his ability, prevent, the commission of any cognizable offence.150. Information of design to commit cognizable offences. Every police officer receiving information of a design to commit any cognizable offence shall communicate such information to the police officer to whom he is subordinate, and to any other officer whose duty it is to prevent or take cognizance of the commission of any such offence.

Q: Can you go abroad if you have civil case pending ?

Hi, I have a dispute with a past employer and they have filed a civil suit (Contract obligation), I have received a job offer from a company based in USA, my visa is already applied and approved. Is there a restriction on my travel? Can I appoint a lawyer to represent me in my absence, what happens if my employer demand my presence for a deposition in court. I am really consfused with the fact if they can stop me from getting this job?, can i travel if i have a civil case ?

Advocate Anuj Nair answered
Hi, Regarding your query, I entirely understand your concerns given the present state of the economy and with the already heightened visa entry restrictions in the United States, this new job would be of your utmost concern at the moment. I also understand that you would not want to jeopardize your career with your new employer. In view of the same, you should take relief in the following facts:1) No. There is no restriction on your travel abroad, unless the Court has specifically injuncted you in the orderAs you mention this is a matter of contractual obligation unless the Plaint is seen and the relief which is sought it cannot be ascertained. However, in ordinary circumstances, you will have no trouble travelling abroad.2) The fact is that the present case is a Civil Suit and not Criminal in nature. As a matter of procedure, in criminal matters, the Court orders for the appearance of the accused on each and every date unless cogent reasoning is provided as to their non-appearance In matters which are civil in nature, the only period where your presence would be required is at the time of deposition. However you should also be aware, that the procedural aspect of deposition is at a belated stage of the suit and would usually take around 2-3 years before the deposition actually takes place. You will not have to appear in the period in between.2) Regardless, you should engage your lawyer and file an appropriate application highlighting the circumstances of your impending departure to the United States and any presence of yours would be effectuated through your pleader or an authorized representative on your behalf. 3) Ordinarily no, this would not prevent you from getting your job. However, since you do mention that its a matter of contractual obligation unless the ex-employee has accused you of theft of data, clients etc. it should not affect your job.

Q: Can a guarantor withdraw his guarantee ?

Sir, I want to withdraw from being a guarantor for my husband since he is physically mentally torturing me and my baby. He is on bail now. how to withdraw from being a guarantor in india ?

Advocate Anuj Nair answered
It is not difficult. At any time you can file an application before magistrate to discharge the bond. Section 444 of The Code of Criminal Procedure,1973 lays down procedure for the same.444. Discharge of sureties.(1) All or any sureties for the attendance and appearance of a person released on bail may at any time apply to a Magistrate to discharge the bond, either wholly or so far as relates to the applicants.(2) On such application being made, the Magistrate shall issue his warrant of arrest directing that the person so released be brought before him.(3) On the appearance of such person pursuant to the warrant, or on his voluntary surrender, the Magistrate shall direct the bond to be discharged either wholly or so far as relates to the applicants, and shall call upon such person to find other sufficient sureties, and, if he fails to do so, may commit him to jail.

Q: Gay husband - married for his family reputation

I need advice on the case that the boy is gay and has done a big fraud with the girl by marrying her just for the family reputation. When girl got to know, she continuously supported him by taking him to doctors, he never took medicines never behaved properly with the girl, and now have started torturing the girl mentally, what could be the charges in such cases. Please help. They are threatening by saying we have lawyers in our family. And more importantly the girl is an independent girl and was earning around 1.5 lac per month before the marriage, they have ruined around 20 months of the girl. can i divorce my husband if he is gay ? Please suggest something.

Advocate Anuj Nair answered
Hi, Regarding this. It is advisable that you speak with a lawyer immediately to help ascertain whether the charges brought against your inlaws can come under the purview of Domestic Violence Act.Furthermore, by your statements, it would be safe to assume that there has been non-consumation of the marriage.The Supreme Court has already ruled that non-consummation itself would constitute mental and physical cruelty to a married woman and would be a ground for divorce under the Hindu Marriage Act (HMA) 1955. Granting divorce to a woman, the bench said ``Spouses owe rights and duties to each other and in their relationship they must act reasonably."The Bench said: ``Under Section 13 (1) (iii) mental disorder as a ground for divorce is only where it is of such a kind and degree that the appellant cannot reasonably be expected to live with the respondent. Where the parties are young and the mental disorder is of such a type that sexual act and procreation are not possible, it may furnish a good ground for nullifying the marriage because begetting children is one of the principal aims of Hindu marriage where "sanskar" is advised for progeny and offspring.''Do get in touch for further advise.

Q: What is the procedure for filing for divorce from my husband and seeking child custody in India, esp

Hello, I have been living with my husband and our 14-month-old baby. My husband refuses to agree to a divorce. I want to divorce him and seek custody of my child afterward. Can I apply for divorce online, or what is the procedure to initiate unilateral divorce proceedings?

Advocate Anuj Nair answered
Hi,Regarding your query.In this situation, you will need to establish the grounds for which you are seeking divorce. Mere 'wanting' to divorce someone is not sufficient to grant divorce. You have to establish grounds under which you can seek divorce which are as under:1) Adultery2) Cruelty3) Desertation4) Conversion to another religion5) Unsoundness of mind6)Scizophrenia7) Virulent and incurable leprosy 8)Venereal disease in communicable form9)Entering new religious order10)Presumption of death when there has been no contact for over 7 yearsAs your husband is unwilling to give you a divorce, you will have to file a contested divorce application and in most cases, divorce is sought on grounds of cruelty- mental harassment, frequently abusive, to the mental emotional and physical health of the Respondent. You cannot apply for it online and it has to be filed through a lawyer at the place of residence of your husband, or of your own residence, where the marriage took place (eg. South Delhi- The Family Court of Saket will be the jurisdiction) or where your matrimonial home is ( Eg. Golf Links Residence - The Family Court of Patiala House)After filing the petition, you will have to be present on the first date before Court and summons will be issued to your husband. The procedure may take many years, or may come to a close within a period of 1-2 years depending on the efficiency of the lawyer.