August 2021 - Lawwatch : Legal Resources for Advocates

A High Court can Stay a Central Law & Make it Inoperative

By K Rajasekharan 22 August 2021Constitutional law

In 2004, the Supreme Court (SC) in Kusum Ingots and Alloys Ltd. v Union of India [(2004) 6 SCC 254] held that a High Court can pass an order in regard to the constitutionality of a Law of Parliament, it will have effect in the entire territory of India, where the law is applicable. In the above case, the Division Bench of the SC held that an order passed on a writ petition questioning the constitutionality of a Parliamentary Act, whether interim or final, will have effect throughout the territory of India subject to the applicability of the Act.

Arrest not necessary u/s 170 CrPC to file Charge Sheet

By K Rajasekharan 21 August 2021Code of Criminal Procedures (CrPC)

An arrest need not be made merely because it is lawful for the police to make an arrest of an accused, the Supreme Court (SC) reaffirmed the dictum in Siddharth v State of Uttar Pradesh (LL 2021 SC 391). Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. The Police should arrest the accused only when it is essential to do so as arrest is an act that goes against some of the fundamental rights of the person

Consumer Court can Accept WS only within 45 Days

By K Rajasekharan 19 August 2021Consumer Protection Act

The Supreme Court (SC) in M/S Daddys Builders Pvt. Ltd. v Manisha Bhargava holds that the District Forum has no power to extend the time to file the response to the complaint beyond the period of 15 days in addition to 30 days as is envisaged under Section 13 of the Consumer Protection Act, 1986.

Relaxation in Six Month’s Cooling Period in Mutual Consent Divorce

By K Rajasekharan 19 August 2021Family, Marriage & Divorce

The Supreme Court (SC) in Amardeep Singh v Harveen Kaur [(2017) 8 SCC] examined and decided whether the minimum period of six months stipulated under Section 13B (2) of the Hindu Marriage Act, 1955 (HNA) for a motion for passing decree of divorce on the basis of mutual consent is mandatory or can be relaxed in any exceptional situations.

No fresh Suit can be filed to Challenge a Consent Decree

By K Rajasekharan 19 August 2021Code of Civil Procedure 1908 CPC

No fresh or separate suit can be filed to set aside a decree, which was passed by a court on compromise between the parties of a suit, on the ground that the compromise was not based on free consent or lawful. The only remedy available to the party is to approach the court which recorded the compromise.

Multiple Roles Indian Supreme Court Plays

By K Rajasekharan 16 August 2021Constitutional law

The Supreme Court of India (SC) has original, appellate and advisory jurisdiction. The Constitution of India, in Part 5, Chapter 6, from Article 124 to Article 147, deals with the power, function, appointment, retirement, jurisdiction, etc. of the SC.

Marital Rape is a Ground to Claim Divorce

By K Rajasekharan 11 August 2021Code of Criminal Procedures (CrPC)

Marital rape is not an offence in India but it is a good ground to claim divorce, the High Court of Kerala (HC) says. This was stated by the HC in its verdict in xxx v xxx (names masked) on 30th July 2021 while disposing a set of two appeals against a family court verdict. One appeal was by the husband seeking restitution of conjugal rights and the other was by the wife for divorce. The HC upheld the divorce.

Whether a MoU is legally binding as a Contract?

By K Rajasekharan 7 August 2021Code of Civil Procedure 1908 CPC

A Memorandum of Understanding (MoU), as the term is being used now, is a written declaration by two or more parties. It expresses their common or mutual intention in regard to a project. A MoU looks like a contract. It is a less formal document than a contract. A contract is legally binding and enforceable. But a MoU is not a legally binding one in India. A MoU acts only as the foundation document. It indicates that a contract is imminent.

Hearing of the Accused on Sentence u/s 235(2) CrPC

By K Rajasekharan 1 August 2021Code of Criminal Procedures (CrPC)

If the accused is convicted for any offence, he shall have the right to be heard on the question of sentence before the court pronouncing its sentence. This is what the Section 235 (2) of the Criminal Procedure Code, 1973 (CrPC) states. This hearing usually ends up as a meaningless routine in most of the cases.