Advocate Tushar Sharma

Questions Answered by Advocate Tushar Sharma

Q: Action as gynecologist's negligence causes baby's clavicle fracture

Hello, I want to filed a case and FIR against gynecologist. My daughter born in dec 2017 by normal delivery but after the delivery of my daughter, she was diagnosed with Clavicle fracture in her right shoulder. Since then she is not moving her right arm & hand properly and diganosed with brachial plexus. Even the doctor treated me very badly and unprofessionally.

Advocate Tushar Sharma answered
I would like to state that you can file a complaint at the concerned police station emphasizing on all the specific issues that led to this blunder on the part of the gynecologist. If the police does not act on our complaint, we can approach the concerned court, seeking direction for the registration of FIR.It may be noted that upon receiving the complaint, the matter may get referred to the Delhi Medical Council or Indian Medical Council. The council with then establish a committee to analyze your issue and can also revoke the doctor's licence. Meanwhile, we will continue to pursue the criminal matter against the doctor.I had recently filed a similar case against moolchand hospital and have gotten good success through the same line of action.

Q: Can I use the final document of FIR quashing available online

Hi, Please suggest if final document of FIR quashing which is available online would work for future or do you require signed copy of it?

Advocate Tushar Sharma answered
It may be noted that the online copy of the order is usually sufficient and solves most purposes. However, having said that, for the safer side, I would recommend you to apply for the certified copy of the same through the lawyer who has his vakalatnama on record. The aforesaid process may take some time and meanwhile the internet generated copy will solve your purpose.PS: check if your lawyer has mentioned for "dasti"(by hand) copy at the time of the hearing, if yes, then you may get the signed copy same day after filing the requisite application.

Q: Legal action against boy for fake promise of marriage

Hi my friend has levied rape charge on false promise of marriage as guy have cheated her had physical with her and she has some mails in which he has promised marriage to her .how much chances are there to get justice.

Advocate Tushar Sharma answered
At the outset of my opinion, I wish to throw some light on the definition of “Rape” as laid down under section 375 of Indian Penal Code. Section 375 of IPC:375. Rape.—A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de¬scriptions:—(First) — Against her will.(Secondly) —Without her consent.(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.(Fourthly) —With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be law¬fully married.(Fifthly) — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe¬fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.(Sixthly) — With or without her consent, when she is under sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.Upon analysing the aforesaid definition, it is clear that to constitute an offence u/s 376 IPC, your friend will have to satisfy the conscience of the court that the act of getting physical was done without obtaining the “due consent” of your friend. “IPC does not define consent in positive terms. But what cannot be regarded as consent is explained by Section 90 which reads as follows:Consent given firstly under fear of injury and secondly under a misconception of fact is not consent at all. Therefore it is clear that in order to constitute an offence of Rape, it has to be established that the consent was obtained deceitfully under misconception of fact i.e. by giving false assurances of marriage.However, it appears that the judicial consensus i.e. previous stands taken by various courts on similar circumstances, reveals that to establish that the consent was taken fraudulently under a misconception of fact, it has to be analysed if the intention of cheating was from the very inception and all the following acts were done in lieu of the same.Similarly there are number of judgments which clearly states that a false promise to marry cannot fall under misconception of fact and that the consent given by the woman to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact but they added that there is no strait jacket formula for determining whether consent given by the woman to sexual intercourse is voluntary, or whether it is given under a misconception of fact and that the courts needs to look at surrounding circumstances and weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.Conclusion: It may be concluded that there is no straight jacket formula to establish ‘consent” and the future of the case would depend upon the facts and circumstances of each case. I would therefore advise you state the facts of the case to get a better/exact analysis of the whole situation. Also, it may be noted that subsequent to analysing your facts, I can also assist you with the judgments supporting your views and take it forward.