Lawwatch : Resources for Learners

Power under Article 227 to be used Sparingly

By K Rajasekharan 11 May 2022Constitutional law

The powers under Article 227 of the Constitution should be exercised sparingly. The exercise of such powers under the Article should be to keep the Tribunals/ subordinate courts within the bounds of their authority. Under the article 227 the High Court is not expected to correct mere errors of law or fact or just because another view than the one taken by the Tribunals or Courts subordinate to it, is possible.

Written Statement can be Filed after 90 days in Hard Cases

By K Rajasekharan 10 May 2022Civil law

The time limit for filing of the written statement under Order VIII Rule 1 of Code of Civil Procedure is not mandatory except in commercial suits, the Supreme Court (SC) reiterates it in Bharat Kalra v Raj Kishan Chabra. The SC relied on the judgement in Kailash v Nankhu & Ors.[ (2005) 4 SCC 480]. Therefore, the delay in filing of the written statement could very well be compensated with costs but denying the benefit of filing of the written statement is unreasonable.

Regularisation of Temporary Employees is illegal

By K Rajasekharan 8 May 2022Constitutional law

In a claim for regularisation of temporary employees in LIC in a case ( Ranbir Singh vs S.K. Roy, Chairman, LIC ) spanning four decades, the Supreme Court (SC) categorically said that a public employer such as LIC cannot be directed to carry out a mass absorption of over 11,000 workers on such flawed premises without following a recruitment process, relying on the constitutional bench judgement in Secretary, State of Karnataka v Umadevi.

Need for Woman’s unequivocal Consent in Sexual Intercourse

By K Rajasekharan 6 May 2022Criminal law

The consent expressed by a woman involved in a sexual act must be an unequivocal voluntary agreement or willingness to participate in the specific sexual act. It can be communicated by the woman by words, gesture or any form or verbal or non-verbal communication.

Difference between Attachment & Charge

By K Rajasekharan 22 April 2022Property & Succession

Attachment creates no charge or lien upon the attached property. It merely prevents and avoids private alienations. It does not confer any title on the attaching creditors. There is nothing in any law which makes the attaching creditor a secured creditor or creates any charge in his favour over the property attached. A charge on the other hand creates no interest in or over a specific immovable property, but is only a security for the payment of money.

Recording wife’s telephone Conversation Unlawful

By K Rajasekharan 30 January 2022Civil law, Evidence law

Recording of telephonic conversation of wife, without her knowledge, is a clear-cut infringement of her privacy, observes the Punjab & Haryana High Court in Neha v Vibhor Garh delivered on 12 November 2021.

Arrest & Detention of JD in Execution Petition

By K Rajasekharan 28 January 2022Civil law

One of the modes of execution of a decree for payment of money, exceeding Rupees two thousand, is arrest and detention of the judgment debtor (JD) in a civil prison. The purpose of this write up is to discusses the mode and procedure for putting a judgment debtor (JD) in civil prison, as part of execution of a decree, when he is unable to satisfy the decree against him.

Admission & Its Relevancy u/s 17- 23 & 31 of IEA

By K Rajasekharan 26 January 2022Evidence law

Admission, under Indian Evidence Act, 1872 (IEA), is a statement in oral, documentary, or electronic form by a party to the case or his authorised agent or by the other parties the statute permits. The statement must be indicative of some inference relating to the matter in dispute or a related fact. By admission the person agrees that the fact asserted by the other party is true. Admission of fact in court helps in dispensing with the production of evidence during judicial proceedings.

Criminal Conspiracy and related Offences

By K Rajasekharan 25 January 2022Criminal law

A conspiracy takes place when two or more people make an agreement to commit or cause to be done, an illegal act or a legal act through illegal means and to take some step consequent to the agreement. Conspiracy does not require that the illegal act to be completed. A group of individuals can be convicted of conspiracy to commit burglary even if the actual burglary never happens. In a conspiracy an accused can be charged with both the offences: the conspiracy to commit a crime, and the crime itself.

Perjury or Forgery in Court: How to Proceed on it?

By K Rajasekharan 21 January 2022Criminal law

The act of giving false oral evidence (perjury) or giving false written statement (forgery) is a criminal offence, punishable under Indian Penal Code, 1860 (IPC). The word perjury is not used in IPC, but forgery is described in Section 463 IPC.

HC can’t direct Police not to Arrest the Accused

By K Rajasekharan 19 January 2022Criminal law

The High Court (HC) cannot direct the investigation agency not to arrest the accused during the course of investigation or to ask the Trial Magistrate to admit the accused on bail while dismissing the application of the accused for quashing the Fist Information Report (FIR) under Section 482 Criminal Procedure Code, 1973 (CrPC).

Family Court can declare extra judicial Muslim Divorce

By K Rajasekharan 17 January 2022Family, Marriage & Divorce

Kerala High Court (HC) in Asbi K N v Hashim M U has formulated some guidelines for the Family Court to be followed when any party files a petition seeking its endorsement to an extrajudicial divorce duly concluded under Muslim Personal Law. The judgement was delivered on 12 October 2021. The HC declared the nature of enquiry and trial procedures to be made by the Family Court in such cases. The courts can declare such marital status under Section 7 of the Family Court Act, 1984.