Frequently Asked Questions

Non-Mutual Divorce

When can I file for a divorce ?

You can file for divorce only and only after completion of at least 1 year of marriage based on the numerous grounds given under the Hindu Marriage Act. However, in some extraordinary cases, the court can provide you with an option of cancellation of marriage i.e. annulment of marriage.

Where should I file for my divorce ?

A divorce can be filed at Family Court where :

  • the marriage ceremony took place, or

  • the couple last resided, or

  • the wife is residing at the time of filing for divorce.

Can I get a divorce on stamp paper ?

No, there is no provision under law to get divorce on stamp paper. Therefore, in order to get divorce you need to make a proper divorce application in the Family Court where :

  • the marriage ceremony took place, or

  • the couple last resided, or

  • the wife is residing at the time of filing for divorce.

Can I file for a divorce on behalf of some other person ?

No, you cannot file for divorce on behalf of some other person. This is because, the husband and the wife are the only parties in the divorce and therefore, they should be the ones filing the case and no one else. If someone else applies on their behalf the petition for divorce will get rejected by the court.

What are the different grounds for filing a divorce ?

The following are the grounds to file for a divorce :

  • Cruelty

  • Adultery

  • Desertion

  • Renunciation from the world

  • Not heard of being alive for 7 years

  • Conversion to another religion

  • Suffering from a Mental Disorder

  • Suffering from Venereal diseases

  • Suffering from Leprosy

Is registration of marriage mandatory to file for a divorce ?

No, registration of marriage is not mandatory to file for a divorce. However, it is highly recommended that you should get your marriage registered as the marriage certificate is helpful in validating the marriage.

How long will it take to get a divorce ?

Divorce cases ordinarily take a lot of time. Moreover, in cases of contested divorce where only one of the spouse wants divorce are usually very time taking and can take around 3 to 5 years. But in cases where both the spouses mutually decide to end marriage then it only takes 6 to 8 months.

What to do if my partner does not want to give divorce ?

In case your partner is not ready to end marriage then you must file for a Contested Divorce in the District Family Court. This happens only when one of the spouses is seeking a divorce and the other is not. Moreover, if the divorce petition is accepted by the court, the same will be sent to your spouse who shall then have to appear in the court for further proceedings.

What do you mean by mutual consent divorce ?

If you and your spouse have agreed on all the terms and conditions of divorce including :

  • Maintenance of wife and children,

  • Custody of children,

  • Division of debt,

  • Separation of joint property

Then the Court does not decide the terms and conditions of the divorce; the couple does it. It is always advisable to go in for a mutual consent divorce as it takes less time and is even a lesser expensive procedure.

Can I get maintenance after mutual consent divorce ?

In case of a mutual consent divorce, all the issues relating to maintenance shall depend on the mutual agreement between you and your spouse.

Mutual Consent Divorce

What is mutual consent divorce ?

Under Section- 13B of Hindu Marriage Act, 1955, all marriages solemnized before or after Marriage Laws (Amendment) Act 1976 can be ended before the court if both the spouses consent to divorce with mutual consent with free will and consent. Prior to filing of the petition, both the parties should come to terms and conditions regarding alimony, maintenance, child’s custody right and education and other ancillary matters. Mutual Divorce serves to be the quickest relief for a failing marriage.

How to apply for mutual consent divorce ?

Both the parties on agreeing to certain terms and conditions mutually can file the petition in Family Court of the concerned jurisdiction. Parties can file their case either at the place of their marriage or place of their current residence mentioned on ID proofs going to be attached along with the petition. The petition is filed along with affidavit declaring the contents to be true and memorandum of understanding between the parties regarding child, maintenance, property/estate or other ancillary matters.

What is the time limit to file for a mutual consent divorce ?

Mutual Divorce can only be filed after a separation of one year post marriage owing to any reason whatsoever unless the separation is challenged itself which rarely is a case in mutual divorce as parties have agreed to get separated mutually. No divorce case- mutual or consented will be accepted by the court before the completion of 1 year of marriage.

Can mutual consent divorce be granted through a notary ?

Absolutely NO. The notary in India is under no power to grant mutual divorce under any provision of law. If someone says so, beware. It’s a sham. Marriages governed under Hindu law i.e. Hindu Marriage Act, 1955 provides provision for Mutual Divorce under sec 13b through court proceedings only. A valid decree of divorce granted by family court of the appropriate jurisdiction is the only way to end a marriage legally in India under Hindu Marriage laws.

What is the procedure for filing a mutual consent divorce ?

On submission of petition, both parties have to appear in person before court (we call it First Motion) and get their statement recorded on oath, then the court grants 6 months cooling-off period to couple to reconcile or reconsider their decision. After the expiry of 6 months or within 18 months, the couple has to reappear before the same court (that’s Second Motion) and reiterate again their wish of mutual separation. Once the court is convinced, the decree for mutual divorce is granted.

How much time does it take to get a mutual consent divorce ?

Mutual Divorce is the fastest, cheapest and most stress free way of getting Divorce in India. It can take anywhere between 6 months to 18 months for getting a mutual divorce. If both the parties are unable to commit to their desire for mutual separation in 18 months, then the petition stands dismissed.

Do I have to go to the court for first and second motion ?

In most cases, yes, it is. Alternatively, camera proceedings may be allowed if the courts are convinced that the attendance of the party in question cannot be arranged by all possible means and it is totally the discretion of court to allow it, but yes that’s possible. Also, it depends on case to case.

What is the procedure for NRIs to get mutual consent divorce ?

NRIs couples who got married in India can file for a mutual divorce in India. The couple can also file a divorce petition in a foreign country, under the laws of that country in which the couple resides, but the decree passed by foreign courts should not be inconclusive of Sec 13 of the Civil Procedure Code, 1908. Hence, it is subject to discretion of the Indian Courts, if challenged otherwise. Also, the court may grant camera proceedings to take place in exceptional circumstances where one of the parties is staying abroad.

Annulment Of Marriage

What are the grounds for annulment?

  • If either of the spouses was already married to another person.

  • If either of the spouses is suffering from a serious mental illness

  • If either of the spouse is below the minimum age (18 years for women and 21 years for men) to get married

What is the difference between annulment and divorce?

An annulment is a legal procedure which cancels a marriage between a man and a woman, annulling is as though the marriage never existed. Whereas, divorce means ending of an existing and valid marriage between a man and a woman.

Can refusal to cohabitate be a ground for annulment?

If either of the spouses refuse to complete the union of a marriage by the first marital sexual intercourse.

Can a person remarry after annulment?

If you get married after an annulment, then you are committing bigamy whereas, if you get married before the order of annulment was made by the court, then you have committed bigamy.

FAQs Cheque Bounce

Can I get punished if my cheque bounces?

Yes, the defaulter in a cheque bounce case can get maximum imprisonment of 3 years with fine that can stretch up to double the amount in the cheque.

When should I file for a case after serving the Notice?

A cheque bounce case is filed under Section- 138 of the Negotiable Instrument Act. The case must be filed within 30 days from the expiry date of 15 days from when the notice was served. Thus, within 45 days from the date after the notice was served.

What to do if the time-limit expires?

The best remedy to recover money after the expiration of the time-limit is to file for a summary suit or institute a criminal case under Section- 420 of Indian Penal Code but, that too within 3 years from the date on the cheque.

How can I recover money from a summary suit?

A summary suit is a civil case instituted to recover the due money under any cheque or written contract. Moreover, such proceedings are a little different from the general recovery suits since it’s the responsibility of the defaulter to prove that petitioner should not be made to recover money for which he has to attain leave to defend from court.

What to do when I don’t have the defaulter’s correct address?

The most important thing while sending the Legal notice to recover money is to have the correct address of the defaulter however, if the current address is not available then you should send the notice at the last known address of the defaulter.

How much time does it take for a cheque bounce case to get over?

There are a multiple factors that depend for a case to conclude like the court where your case is before, the work load on the court, court’s infrastructure. None the less, it does not take more than 2.5 years for a case to conclude.

How to know where I should file my case?

Under the Negotiable Instrument Act, a cheque bounce case is to be filed in the court which has the jurisdiction of the bank where the cheque was presented is located.

Can I recover any interest amount from the defaulter?

Yes, in all probability you can recover the interest amount from the defaulter but only if it is a recovery suit and not from the case instituted under the Section- 138 since under Section- 138 of the Negotiable Instruments Act the award is generally higher than the amount mentioned in the cheque.

Can I recover my legal expenses from the defaulter?

Yes, in all probability you can recover the interest amount from the defaulter but only if it is a recovery suit and not from the case instituted under the Section- 138 since under Section- 138 of the Negotiable Instruments Act the award is generally higher than the amount mentioned in the cheque.

Court Marriage

Can a court marriage be performed online?

A court marriage cannot be performed online, though you can procure the forms online and submit them to the marriage officer in person.

Who is eligible for court marriage?

Any person (male – 21 years female- 18 years), irrespective of their caste, religion, ethnicity is eligible to register their marriage without any social interference.

What are the number of witnesses required in a court marriage?

You need at least three witnesses at the ceremony of court marriage.

Can the marriage be objected by a third party?

Yes, a period of 30 days is given by the marriage officer for anyone to object it. However, the reasons should be valid and justified under Chapter II, section 4 of the marriage act.

Do you need a copy of the marriage certificate?

Yes, a signed copy of marriage certificate is provided which proves that you are legally married to your partner. It is the conclusive evidence of the Court Marriage.

Can you marry a foreign national through a court marriage?

The main requirement for a court marriage is that both parties should be of a legal age and opposite sex. However, the procedure is a little stringent from the normal. For further details you can contact your lawyer.

Are the parents of the parties notified about the court marriage?

There is no such notice which notifies the parents of the legal parties about the court marriage. Instead, a notice is placed at the Registrar’s office for 30 days.

Criminal Law

Can a person get bail in a non-bailable crime?

Yes, a person is eligible to get bail in a non-bailable crime.
The bail has to be applied in the Sessions or the High Court depending on the case. However, it cannot always be sure to get a bail since it totally and absolutely depends on the severity of the crime and ultimately on the discretion of the court.
Therefore, it is a must to consult an expert criminal lawyer to apply for bail.

Is it advisable to apply for bail in a bailable crime?

Yes, it is highly advisable to apply for a bail even in a bailable offence since it is the legal right of the person accused of the crime.
Moreover, in a bailable offence, the accused does not have to go to the court for the same since the bail is granted by the Station House Officer of the Police Station. However, the accused needs to fulfill some bond and surety while applying for bail.

How to know the court where anticipatory bail can be filed?

An anticipatory bail can be granted in the Sessions Court where the crime was committed or the same can be applied in the High Court of the State.

Can an anticipatory bail get cancelled?

While granting an anticipatory bail the court enforces some terms and conditions on the accused. As a result, if the accused does not follow the mandatory directions set out by the court, the court can cancel the anticipatory bail.
Moreover, a request to cancel the anticipatory bail can also be put forward by the opposite party or by the police in event the accused fails to follow the directions of the Court.

Can the accused travel abroad after getting anticipatory bail?

During the time the court grants an anticipatory bail it also enforces some terms and conditions that need to be followed by the accused sometimes including restriction to travel abroad.
Moreover, the court can even seize the passport of the accused as well which is a precautionary measure by the court to prevent the accused from absconding.
Although under exceptional cases and under extra-ordinary circumstances the court may allow the accused to travel abroad but only after being satisfied with the reasons given for traveling abroad.

Is it required to get regular bail even after getting an anticipatory bail?

No, the accused does not have to apply for a regular bail since the anticipatory bail stays valid till the trial process concludes, unless the court cancels the anticipatory bail.
Moreover, a request for cancellation of anticipatory bail can also be put forward by the opposite party or by the police in event the accused fails to follow the directions of the Court.

How long does the anticipatory bail stay valid for?

The time- duration of an anticipatory bail depends on-

  • Time duration decided and directed in order by the court itself.

  • And if not set by the court then till the end of the trial proceedings.

What if there is no provision to get bail in a state?

If in a state there is no provision to apply for an anticipatory bail, then the accused can always apply for a stay on arrest in the court. As a result of the said order, the police cannot arrest the accused or the parents of the accused without prior approval of the court.
Moreover, the procedure to obtain a stay on arrest is quite similar to the procedure of getting an anticipatory bail.
However, hiring an expert criminal lawyer is advisable in such cases to avoid any legal trouble.

Can a woman refuse to be searched by a male police officer?

Yes, a woman can always refuse a male police officer to search her since it is within the rights of a woman to be searched and arrested by a lady police officer only.

Can a woman be detained in the police custody?

Yes, a woman can be detained in police custody however, the police officer, who makes the application to detain the woman, shall be completely responsible for her safety and fair custody.

Trademark

What is the trademark application commonly rejected?

  • If your trademark is similar to an existing trademark

  • If your trademark results in hurting the religious sentiments of a group of people

  • If your trademark contains geographical names or common words

  • If your trademark is likely to cause confusion.

Can a trademark be transferred?

Yes, a trademark can be transferred in the form of a trademark assignment, wherein, there is a transfer of ownership of a trademark application or trademark registration from one entity to another. The transferring party is called assignor whereas the receiving party is called assignee.

What can be registered as a trademark?

A trademark can be any distinctive mark such as a word, symbol, phrase or a combination of all whereas, trademarks which are descriptive of quality or character of goods or services are difficult to register.

What is a trademark class?

Trademark registry has a list of 45 classes under which all types of goods and services are represented. The trademark applicant must mention in the application the type of goods and services the trademark will represent under one or more classes and trademark will then be granted for that specific class of goods and services.

Will my trademark application be valid across the world?

No, a trademark registered in India will only be valid in India. However, some countries use the trademark filing in India as a basis for registering the trademark in their country.

Can a foreign company apply for a trademark in India?

Yes, a foreign person or entity can apply for trademark registration in India

How long is a registered trademark valid for?

Registered trademarks are valid for 10 years from the date of filing. However, the trademark owner can file for a renewal to keep the protection intact.

How can I know if my mark has already been trademarked?

You can do a quick search on a database called Intellectual Property Database. You can search your symbol, word or phrase and the results will show if there is a similar mark like you trademarked or not.

Sole Proprietorship

What is Sole Proprietorship?

A sole proprietorship is a business organisation owned, managed and controlled by a single individual i.e. it is headed by one person who is the sole recipient of all profits and losses. It is headed by one man who takes independent decisions regarding his business.

Who can be a sole proprietor?

Anyone who is an Indian citizen with a current account in the name of their business can start a sole proprietorship. Registration is not mandatory unlike LLP (Limited Liability Partnership) and OPC (One Person Company). However, to open a current account in the name of the sole proprietor, a requirement of Shops andEstablishments Registration is required.

Is Sole Proprietorship business age bound?

No, there is no age limit to become a sole proprietor, even if you are below the age of 18 years you can start a sole proprietorship. There is no legal prohibition, however, opening a bank account and finding counterparties who are willing to enter into an agreement with a minor is a must.

What documents are required for opening a current account in the sole proprietor’s name?

Proof of the existence of your business establishment is necessary. Banks will mostly ask for a Shops and Establishments Act Registration. Additionally, a PAN card and address and identity proofs is needed.

Can I be a sole proprietor and still hire employees?

Yes, a sole proprietor can hire as many employees as it thinks fit, however, as the employer, sole proprietor is responsible for tax filing and proper administration of these hired employees.

How much time does the process take for establishing a business with Sole Proprietorship?

A Sole Proprietorship does not take more than 15 days to start running. The business structure being less time consuming and less cumbersome makes it attractive to the masses.

Is sole proprietorship a legal entity?

No, Sole Proprietorship is not a legal entity which entails that, it has no separate existence from its owner. Income and losses are taxed on the individual’s personal income tax return.

What documents are needed for registration of a Sole Proprietorship?

If the turnover of your business in a financial year exceeds 20 lakhs (10 lakhs in the case of North Eastern states), it is compulsory to get a GST registration. For businesses involved in selling goods or services to customers out of a commercial establishment, it is mandatory to register under Shops and Establishments Act.

Can the registrations be applied online?

Central Government controlled registrations can be done online, whereas state government registrations might not be available online.

Can I convert from sole proprietorship to partnership or private limited company?

It is common for sole proprietors to convert into a partnership firm or a private limited company after being in the market for a certain period of time.

Restitution of Conjugal Right

What is meant by Restitution of Conjugal Right

If either the husband or the wife, without reasonable excuses, withdraws from the society of the other, the aggrieved party may approach the court for restitution of conjugal rights.

What are the conditions for moving an application under Section 9 (Restitution of Conjugal Rights)?

  • Spouses must not be staying together.

  • There has been withdrawal of a party from the other without having any reasonable ground on doing the same.

  • The aggrieved party must have applied for restitution of conjugal rights.

Who has the burden of proof under Restitution of Conjugal Rights?

Substantially, the petitioner has the burden of proof that the respondent has left him/her. When this is proved successfully, the burden shifts to the respondent to give a reasonable explanation as to why the respondent left the petitioner.

What can the aggrieved party do?

The aggrieved party can file a petition in the district court and if the court gets satisfied with the aggrieved party’s contentions then the court may pass a decree of restitution of conjugal rights in the aggrieved party’s favour.

Can the wife ask for maintenance during restitution of conjugal rights?

Yes, the wife can claim maintenance under the Hindu Marriage Act. The decree has to be obeyed, otherwise, court can attach the judgment debtor’s properties. Further, if the decree is not obeyed for more than a year of the decree date, then the divorce ground is created.

Recovery of dues

What is the importance of a legal notice?

A legal notice is an extremely important legal document because in majority of the disputes the main dispute or issue gets settled with mere receiving of the notice. Therefore, a legal Notice is the key to institute a case in the court.

Sending a legal notice is actually mandatory since it also provides good opportunity to the defaulter to pay back the money.

Is there any advantage of sending a legal notice to recover my dues?

Yes since it is the primary step towards recovering your money. A legal notice is a communication of your intention to proceed with legal action against the defaulter for non- payment of money. In addition, more often than not the defaulter gives in to the threat to the legal consequences and pays back the money.However, if the defaulter still fails to reply to the legal notice, you can always approach the court to get your money back.

How fast can I get my money after sending the notice?

A Legal Notice is merely a pre-requisite prior to instituting a legal case against the defaulter. Moreover, the court suitably acknowledges legal notices in recovery of money matters where sufficient time is already provided to pay back the dues. Subsequently, post sending of the legal notice, you must file the case in court.

What if the defaulter does not reply at all?

If the defaulter does not reply to the legal notice and even fails to repay the due amount within the 30 days of obtaining the notice then you must file a complaint to initiate the legal proceedings.

What all civil remedies do I have to recover my dues?

A summary suit by the creditor is the most standard civil relief to recover money covered under Order- 37 of the Civil Procedure Code. Moreover, in comparison to ordinary suits, a summary suit is disposed of quicker.

Another civil remedy is under the Negotiable Instruments Act, which solely deals with recovery of money that arises from instruments like cheque or monetary exchange.

What is Order- 37 of Civil Procedure Code?

Order- 37 of the Civil Procedure Code provides for the summary procedure. This provision has been brought in keeping in mind certain suits, to avoid the unjustified barrier placed down by the defaulter. Not similar to other civil suits, the summary suit begins after the court allows leave to defend to contest the suit.

Can I file a criminal case against the defaulter?

Yes, you have the option of filing a criminal case against the defaulter under the Indian Penal Code by either filing a case of criminal breach of trust or cheating, or even mischief.

Patent

What does the patent constitute of?

A patent constitutes an invention which can be either a product or process that is new, involving an inventive step and capable of industrial application. It must not fall into the non-patentable categories under section 3 and 4 of the Act

How does a patent expire?

A patent expires 20 years from the date of filing for a provisional or a permanent patent. After this, the patent falls in the public domain.

Can I use my patent protection worldwide?

Patent protection is territorial and therefore It is effective within the territory of India. However, filing an application in India enables the applicant to file a corresponding application for the same invention in convention countries, within or before the expiry of twelve months from the filing date in India. Thus, separate patents need to be obtained in each country where the applicant requires protection of his invention in those countries. There is no patent valid worldwide.

Who can apply for a Patent?

A patent can be filed either by a true and first inventor or his assignee, either alone or jointly with any other person. However, the legal representative of any deceased person can also make an application for patent.

How can I know if my invention has already been patented?

The database InPass provides a detailed account of all patients filled so far (both accepted and rejected) with all the details of persons/companies filing for such patent. For instance, one can search for patents or applications by doing a keyword search, application name search or through the inventor’s name search (or a company name, if you are looking for anyone in particular)

Domestic Violence

What is domestic violence?

  • Any kind of abuse that causes injury or harm to the mental or/ and physical health of a woman.

  • Any kind of abuse that compromises the safety and life of a woman.

  • Any kind of harassment for dowry.

  • Any kind of any form of unlawful demand from a woman.

  • Any kind of threats to cause harm or injury to a woman.

The 4 kinds of abuse identified under Indian law are-

  • Physical abuse- any act causing hurt or injury to the body of a woman. For example- slapping, punching, beating, pushing, kicking etc.

  • Verbal abuse- any act that insults, humiliates or ridicules the woman especially relating to not being able to conceive a child/ male child or repeated verbal threats to cause physical pain to the woman etc.

  • Sexual abuse- any sexual act that is degrading or humiliating to a woman. For example- husband forcing wife to have sexual intercourse (marital rape), forcing woman to watch porn against her will etc.

  • Economic abuse- any act that deprives or restricts the woman of any kind of economic or financial resources.

Who can a woman file a domestic violence complaint against?

A woman who is married, or is part of a relationship that is in the nature of marriage (not necessarily marriage, can be live-in relationship also) then the woman can file a domestic violence complaint against the man as well as the relatives (both male and female) of her male partner/ husband who have perpetrated the violence or have been accomplices in the violence.

What can a woman get from filing a domestic violence complaint?

  • Protection order which prevents the perpetrator from

    • entering woman’s office/ residence,

    • communicating with the woman

    • causing any violence

    • taking any financial action against the woman

  • Residence order which prevents the woman from getting evicted from the place

  • Monetary relief which allows the woman to meet daily expenses as well as payment of medical bills etc.

  • Compensation order which are for the hurt/ injuries sustained by the woman

  • Custody order which allows the woman to seek temporary custody of her children

  • Interim/ ex-parte order which ensures the woman is not harmed during the course of the court/ case proceedings

What if the perpetrator continues to commit violence even after Court order?

It is a crime under law to violate or not comply with the Court order. In such an event, the woman can file a complaint to the Police, the Police officer concerned (protection officer) or the Magistrate.

As a result of this complaint, the perpetrator can get arrested. Also, violation of a court order can attract imprisonment for a maximum period of 1 year or/ and a fine of Rs. 20,000/-.

Can a minor seek relief in a domestic violence case?

Yes, even minors (i.e. any child below the age of 18 years including any adopted, step or foster child) through a legal guardian/ mother/ father can seek relief against domestic violence.

What should an accused do in a 498A case?

One must instantly apply for an anticipatory bail in either the Sessions court or the High court. Moreover, consulting an expert criminal lawyer to draft and file the anticipatory bail application is the key. In addition, the accused must also try to collect as much evidence as possible against the wife and her family so as to prove their guilt in court.

Can police still arrest under 498A when already granted anticipatory bail?

No, the police cannot arrest a person who has been granted anticipatory bail by the court without any valid reason. Although, if the accused does not follow the directions of the court with regard to being available to the police for further questioning etc. or attending the court proceedings, the court may cancel the bail and subsequently make the arrest.

Judicial Separation

How is a legal separation different from dissolution of marriage?

A divorce decree brings a marriage to an end whereas judicial separation you are still legally married to your spouse even though you are living apart.

What is the purpose of a judicial separation?

Judicial Separation is a step prior to a divorce. The purpose of a judicial separation is to provide an opportunity to the parties to reconcile their difference.

How many years do you have to be separated before divorce?

One year is the standard requirement for judicial separation, however, it can be reduced in limited circumstances. In no fault divorce, if the couple has no minor children and enters into a written separation agreement, the divorce may be granted after six months of living apart without cohabitation.

Is it considered adultery if you cheat while being judicially separated?

Judicial Separation is an instrument which gives time to the parties to resolve their issues.

Hence, having intimate relations with another person will lead to adultery.

Can you be judicially separated and living in the same house?

If you and your spouse are still living in the same house for economic or family obligation but staying in separate rooms, you need to show proof that you are not engaged in any sexual intercourse.

What to do in case after judicial separation where the parties want to resume cohabitation?

If you want to resume cohabitation, it is necessary for the court to annul the order of judicial separation. Normally the court rescinds the degree on presentation of the petition by consent of both parties.

What to do in case husband tries to establish physical separation forcefully with his wife while undergoing a judicial separation?

In case husband tries to establish physical relationship with wife during the period of judicial separation he will be charged under Sec 376(A) of the IPC, wherein he will be punished with imprisonment up-to 2 years and a fine.

Succession Certificate

What is a succession certificate?

A divorce decree brings a marriage to an end whereas judicial separation you are still legally married to your spouse even though you are living apart.

What is the importance of a succession certificate?

Judicial Separation is a step prior to a divorce. The purpose of a judicial separation is to provide an opportunity to the parties to reconcile their difference.

How can I apply for a succession certificate?

  • An application to be made to The District Court Judge.

  • The applicant must sign and verify the application.

  • Mention the residence of the family and relatives.

  • Mention the names of all the heirs.

  • Mention the right of the applicant.

  • Either the last residence of the deceased or the property in question must be within the jurisdiction of the court.

  • Mention the debts and securities as to which the succession certificate is applied for.

  • Mention if there is no obstruction from anyone.

Property Registration

How much does property registration cost?

Under property registration only 2 kinds of costs have to be paid i.e.

  • stamp duty

  • registration fees

Moreover, both of the above are calculated after the valuation of the property. However, both the costs differ remarkably in every state in India with many states even making the gender of the person applying for the registration as a significant factor while deciding the registration cost.

How can I calculate the stamp duty to be paid?

It is a percentage of the settlement price of the property. However, cost of stamp duty differs in different states in India.

For instance, cost of stamp duty in Delhi is accumulated at 6% of the value of the property in case of a man and similarly, at 4% in case of a woman.

Is my presence mandatory while getting my property registered?

Yes, it is mandatory for the applicant to be present during property registration. Moreover, you are also required to bring in 2 witnesses with you during the procedure of registration.

How much time does it take to register the property documents?

Ordinarily, the registration of property is done very same day, however it can take up to 7 days to get all the relevant documents in the correct sequence.

Where does the registration procedure occur?

The complete property registration procedure occurs at the office of the Sub-Registrar or the Registrar.

How important is it to hire a lawyer for property registration?

First, it is not mandatory for you to hire a lawyer for your property registration, however allowing an expert property lawyer to assess all your property documents can really help you in getting the right assistance in your property registration procedure by getting it done sooner and by avoiding legal troubles.

One Person Company

Who can form an OPC?

Any Indian citizen or a Resident in India (person who has resided in India for a period of at-least 182 days in the immediately preceding calendar year) can form an OPC. No foreign citizen, NRI or Minor can form an OPC.

Who can register an OPC?

An OPC can only be registered by an Indian citizen and that too only once as per the specifications of the Ministry of Corporate Affairs.

What are the documents required for OPC Registration?

  • DIN, DSC, and PAN Card of the Director and Shareholder.

  • Photographs of Director and Shareholder

  • ID Proof and Address Proof of Director and Shareholder

  • Address Proof of the location/registered office of the OPC

Why to form OPC?

  • Only one director id required to form an OPC

  • OPC gives limited liability to the business owner which means that the liability is limited to the amount you have invested in the business and no personal possessions can be attached to pay the debts of the business.

  • An OPC has a separate legal entity, so, if the director dies, the OPC does not come to the end unlike sole proprietorship. Whereas, the ownership passes on to the nominee director, thus one-person company does not cease to exist.

  • An OPC needs to have its books audited annually, it has greater credibility among vendors and lending institutions.

What is the minimum capital required to start an OPC?

An OPC can be started with a minimum authorised capital of Rs 1 lakh, however, there is no mandatory requirement for a paid-up capital. Hence, you can start as an OPC with a capital contribution as low as Rs 1.

Is FDI allowed for OPC in India?

No, FDI into a One-Person Company is restricted.

What are the conditions required for conversion of an OPC into Private Limited Company or a Public Limited Company?

If an OPC hits an average three-year turnover of over Rs 2 crore or has a paid-up capital of over Rs 50 lakh, it must be tuned into a private limited company or public limited company within 6 months. Under any of these conditions, the OPC is necessarily required to inform the relevant ROC through Form INC-5 within 60 days of the exceeding threshold limits. However, an OPC cannot voluntarily change itself into any type of company within 2 years of its incorporation, except under any of the two cases of exceeding the threshold limits.

What are the tax benefits available to an OPC?

No tax benefits are granted to an OPC. OPC’s are taxed in the following ways:

  • Corporate Income- Tax 30% of the Total Income/Net Profits.

  • Surcharge: 5% of such income, if it exceeds One Crore.

  • Education Cess: 3% of the total income-tac and surcharge.

  • Divident DistributionTax (DDT): 15%.

NRI Divorce

Is it mandatory for an NRI to come to India to file for a divorce?

No, it is not mandatory to visit India just to file for divorce. In fact, anyone can file for a divorce from the current place of residence of the spouse applying for the divorce or from the place where the married couple last resided with each other. However, the wife is entitled to file for a divorce from wherever her current location is post separation from the husband.

What is the procedure to get mutual consent divorce for NRIs?

In India, every NRI couple who has got married in India is eligible to file for a mutual consent divorce. However, the same can also be done as per the divorce laws of the country where the couple currently reside, although the judgment given by that country’s court must not be inconclusive of Section- 13 of the Indian Civil Procedure Code. Therefore, it all depends on the desire of the Indian Courts, if questioned otherwise by either of the spouse.

How many times do I need to be present in court to get a divorce?

In a non- mutual consent divorce it completely depends upon the circumstances of the case. For instance, if the cross examination is over on the very same day then you won’t have to come again since lawyers can take care of the rest of the court proceedings. However, in the event of a divorce by mutual consent each spouse has to attend the court twice for recording his/ her statement in the court.

But, since a couple of years multiple courts have been seen recording statements through video conferencing though even that is totally on the discretion of the court.

What is the average time-limit to get a mutual consent divorce in India?

In India, couple can get a divorce in 6 months from the time of filing of the case. However, it is also possible to get a mutual consent divorce even within 6 months as experienced in many of the judgments of the Supreme Court.

What all documents do I need for filing a divorce by mutual consent?

  • Proof of address

  • 4 passport size photographs of the spouse applying for the divorce

  • marriage invitation card (if available)

  • Certificate of marriage

  • Photographs of the marriage

  • Identity proof like Passport, Aadhaar card, PAN card, Driver’s license

Every foreign decree shall be ultimate everywhere provided that it is adjudicated upon the same spouses except where-

  • The decree was given by a competent court.

  • The decree was not on the basis of the merits of the case.

  • The decree was based on a wrong outlook of the International law.The decree refused to recognize the applicability of the Indian law in cases where such law was actually applicable.

  • The decree from the court proceedings is in violation of natural justice.

  • The decree was fraudulently obtained.

  • The decree was founded on the basis violation of Indian law.

Legal Heir

Who can be a legal heir?

The following individuals are regarded to be the legal heirs of the deceased under the Indian laws-

  • Daughter

  • Son

  • Spouse

  • Mother and

  • Father

What is a legal heir certificate?

It is a certificate containing personal details of the legal heir like name, age, relationship with the deceased person as well as the marital status of all his surviving family members.

Why is a legal heir certificate important?

No, you cannot directly approach the court, since the defaulter must be given a fair chance to repay the amount mentioned in the cheque which can only be given in the form of a written notice.

Therefore, under Section- 138 of the Negotiable Instruments Act the defaulter is given a total of 45 days to repay the cheque amount before the litigation begins.

What are the different documents required for a legal heir certificate?

  • Self-undertaking by the legal heir

  • Letter from the government department of the deceased to get legal heir certificate from DC office

  • Identity proof of legal heirs

  • Residence proof of all legal heirs

  • Birth proof of all legal heirs

  • Residence certificate of the deceased

  • Original death certificate of deceased employee

  • Any other document as required by the government department

Recovery of dues from employer

Who is an employee?

An employee is an individual who works for a company or an organization on either full-time or part-time basis and receives a salary for the services he renders in the company.

Who is an employer?

An employer is the company or organization which puts to work, hires and employs the services of the employee. Moreover, the employer can either be a small business, an individual, an agency, a government entity, a store, a professional services firm, a non-profit organization or an institution or a non-profit association.

What is the importance of a legal notice?

A legal notice is an extremely important legal document because in majority of the disputes the main dispute or issue gets settled with mere receiving of the notice. Therefore, a legal Notice is the key to institute a case in the court.

Sending a legal notice is actually mandatory since it also provides good opportunity to the defaulter to pay back the money.

When can I send a legal notice for recovery of my money from employer?

You can send a legal notice to the employer after you leaving the company, but not receiving the salary due to you, and when the payable salary has been due for over 90 days.

However, the best option is to call the company/ employer and try to recover the unpaid amount before instituting the court case.

What if the company is refusing to pay me my dues?

A company cannot illegally hold back your full and final neither can it make any illegal, unauthorized deduction from it. However, any other dues that the company might owe you are covered under your employment contract.

Moreover, the right legal action that can be taken against the employer against non- payment/delay in settlement of dues mainly depends on the terms of the employment contract.

Can I send the notice without the help of a lawyer?

Yes, you can send a notice yourself for recovery of your dues. However, it is always beneficial to send the notice with the help of an expert lawyer who makes your intent to proceed with legal action clear if dues are not cleared.

Muslim Divorce

What is nikah?

Nikah is substantially a contract rendered in a ‘Nikahnama’ extracted between the wife and husband. Nikah has a mandatory consideration i.e. Meher paid by the husband to the wife which is to be paid at the time of the marriage. However, this can be waived off by the wife according to her own will.

What is Talaq-e-Ahsan?

It is the most appropriate way of divorce where the husband pronounces talaq in a single sentence during the period of tuhr i.e. when the woman is not menstruating and as a result has to wait for the iddat to get over.

The iddat period for a divorced wife is ordinarily 3 months and it is forbidden for her to marry another man in this period. However, if before the iddat period gets over, the husband resumes to co-habitat with his wife or says he wants to retain his wife, the divorce gets cancelled.

What is Talaq-e-Hasan?

It is another appropriate way of divorce where 3 continuous pronouncements of talaq by the husband in 3 continuous tuhrs i.e. the period when the wife is not menstruating. During this period, the pronouncement can be made after the interval of 30 days between the continuous pronouncements. However, this way of talaq can be cancelled whenever before the 3rd and final pronouncement of talaq.

What is Talaq-e-Biddat?

Also known as Talaq-ul-Bain, this literally means irrevocable divorce. It is another form of instant triple talaq where as soon as "Talaq" is pronounced thrice becomes binding. In this, the 3 pronouncements can be uttered in a single tuhr i.e. when the wife is not menstruating.

There are 2 other methods for a husband to divorce his wife which are Ila and Zihar.

  • Ila- when the husband promises to not have sex with his wife and as a result, the husband stops co-habiting with his wife for a span of 4 months and after the expiry of this period, the marriage gets terminated.

  • Zihar- when the husband compares his wife with another woman from his restricted relationship like his sister or his mother.

    In such a scenario, the wife can always approach the court.

What is instant- talaq?

It is fundamentally Talaq-e-Bid’ah.

Bid’ah means innovation in religious matters and principally every Muslim is advised to not introduce ‘bid’ahs’ in to the religion.

This method of talaq was originally advocated by Caliph Umar, but has been constantly challenged by all the Muslim women who have approached the Supreme Court to bring reform to triple talaq. Though, the Muslim Personal Law Board claims that the dispute can be resolved internally.

Can I re-marry my wife after pronouncing her 3 rd talaq?

No, you cannot marry your wife after pronouncing the 3 rd talaq.

This is because after the 3 rd talaq, the wife is expected to marry a different man then consummate that marriage, and only after following all this as a part of the process of talaq-e-sunnah, the wife can get married to the former husband once again.

This practice is barbaric and there have been multiple demands to ban its practice.

This practice is barbaric and there have been multiple demands to ban its practice.

  • Talaq-e-Tafweez and

  • Talaq-e-Khula

Under talaq-e-tafweez, the husband has the power to delegate his power to give talaq to his wife or a 3 rd person. This delegation of right is supposed to be in the form of a contract which must have specific conditions like ‘if the husband gets married again’ then that may amount to divorce etc. The contract does not have to be absolute.

Under talaq-e-khula divorce is at the ‘request’ of the wife. In such an event, the wife has to make the offer of divorce to her husband. The husband must accept the divorce offer with proper consideration, which frequently means the wife, has to return the Meher that she got at the time of marriage. Post this, a Khula is granted. The wife has to frequently approach a Qazi court also to demand a Khula. Ultimately, there has to be an execution of khulanama to get divorce.

Medical Negligence

What does medical negligence mean?

Negligence simply implies failure to practice due care. Medical negligence is when a doctor/hospital neglects to perform his duty as per his professional standards.

What is a medical malpractice?

Any claim of medical negligence done by any of the following

  • Nurse

  • Doctor

  • Dentist

  • Hospital

  • Hospital worker

  • Technician

because of whose medication towards a patient is in violation of the standard of care that has to be met by professionals with similar experience and training and due to the violation has resulted in physical or mental harm to the patient.

Does Consumer Protection Act cover Medical Negligence?

Yes, medical negligence is covered under the Consumer Protection Act after the inclusion of medical profession by the Supreme Court in 1995 and as a result the medical treatments also got labeled as services.

Who can file a medical negligence case?

Generally, there is no assurance of a successful medical result. Therefore, every unexpected or unsuccessful result does not essentially mean negligence on the part of professionals. As a result, to successfully challenge a medical negligence case, a consumer has to prove that an injury or a damage has been suffered that was resulted from the medical professional's genuine failure.

Can I ask the Doctor to guarantee me absolute success for my treatment?

No, you cannot ask the Doctor to guarantee you absolute success in any medical treatment since the same differs in different cases which also depend on the health and age of the patient with the body response as well as the stage of the illness of the patient.

What to do after suffering from Medical Negligence?

The various rights of the patients are as follows:

  • The first step is to send a formal written complaint to the Medical Superintendent of the Hospital with a copy to Chief Medical Officer or the Civil Surgeon of the area.

  • However, if you don’t get a reply or if is not satisfactory, then you must send a formal written complaint to the State Medical Council.

  • In a situation you are not completely satisfied with their reply then you must send a formal complaint to the Medical Council of India.

  • Moreover, if the negligence is criminal in nature then the aggrieved consumer must file a formal complaint with the concerned Police Station. Although, expert opinion is needed to register the police complaint.

  • In addition, a complaint can also be filed with the Consumer Forum, Civil Court as well as a Criminal Court as the negligence may be, to seek compensation arising out of it.

What should I annex with my complaint?

You must approach the Consumer Court by filing a complaint by stating out the facts starting from the first contact/ visit to the last contact/ visit with the hospital/ doctor. In addition, an expert opinion is a must to support your negligence claim, along with the medical records.

What are the different rights available to a patient?

The various rights of the patients are as follows:

  • Right to be told about their illness and to have their medical records explained.

  • Right to be made aware of the side effects and risks of the illness.

  • Right to clarify all the doubts about their illness.

  • Right to know the qualifications of the doctor.

  • Right to be handled with consideration as well as due regard for their modesty when being examined physically by the doctor.

  • Right to maintain privacy/ confidentiality regarding their illness.

  • Right to a second opinion if they are in doubt about the treatment recommended.

  • Right to know what a recommended treatment is for and the probable risks involved due to it.

  • Right to attain all their case papers/ medical records on request.

  • Right to get complete details of the bills.

Faulty product or Service (Consumer)

How important is it to send a Legal Notice against faulty product or service?

According to recent legal statistics, a whopping 73% of the cases where legal notice were send to defaulters gets disposed of at a much better and faster rate in the Consumer Courts. This is because a finely drafted notice in the most appropriate language can easily make your case powerful and get you the desired relief sooner.

What is the importance of a legal notice?

A legal notice is an extremely important legal document because in majority of the disputes the main dispute or issue gets settled with mere receiving of the notice. Therefore, a legal Notice is the key to institute a case in the court. Sending a legal notice is actually mandatory since it also provides good opportunity to the defaulter to pay back the money.

Who is a Consumer?

Anyone who utilizes a service for consideration or buys a product either to earn his livelihood by means of self-employment or for personal use is a consumer.

The consideration may be-

  • Paid

  • Promised

  • Partly paid and

  • partly promised.

Who is not a Consumer?

Anyone who-

  • utilizes any service or purchases any goods for completely free of charge,

  • hires a service or purchases goods for commercial purpose,

  • utilizes any service in the contract of employment is not a consumer.

What can be a defect in product or services?

A defect is any imperfection, fault or deficiency in the purity, quantity, quality, potency or the standard which has to be maintained as under the law in force or as promised under any contract.

What are Services?

Services include facilities made available to future users related to financing, banking, processing, transport, construction, entertainment, insurance, board or lodging or both, distribution of electrical or other energy, amusement or the purveying of news or other information. However, it does not cover supplying of any service free of cost or under a personal services contract.

What is deficiency in service?

A deficiency is an imperfection, fault or insufficiency in the nature, quality and manner of performance required to be maintained under the law or under the contract.

What is Unfair Trade Practice?

Any trade practice that supports deceptive or unfair practice or method while promoting any supply, use or sale of any goods or services is termed as an unfair practice. For instance,

  • When the goods and services are falsely represented

  • When the goods and services don’t match the desired grade, quality or standard,

  • When the product is second hand but, after renovating them are sold as new,

  • When the goods and services don’t match the claimed benefit, usefulness, use

  • When the goods and services don’t have the claimed guarantee/ warranty,

  • When the cost of the product or service is deceptive.

  • When the goods and services are being sold through false and misleading advertisement.

  • When the seller offers gifts and prizes only to lure buyers with absolutely no intention of giving them.

  • When the goods and services don’t match the safety standards set up by the government.

  • Accumulating or eliminating goods with the sole intention of increasing the cost of these and similar goods that are then manufactured in greater number so as to manipulate the prices in the market.

What are the different rights of consumers available under law?

  • The right to safety

  • The right to be informed about the goods and services

  • The right to choose the product and services

  • The right to be assured

  • The right to redressal

  • The right to consumer education.

When can you file a complaint?

The complaint must be in writing under the following situations that the-

  • loss or damage has been caused to the buyer due to the unfair trade practice of the service provider or the trader

  • goods bought by the consumer are defective

  • services utilized by the consumer suffer from deficiency

  • trader has excessively charged for the goods and services

  • goods and services are being sold even when they are hazardous to life, nature and property.

Where can I file the complaint?

Under the Consumer Protection Act a complaint can be filed in

  • District Consumer Disputes Redressal Forum

    If the claim is up to Rs. 20 lakh

  • State Consumer Disputes Redressal Commission

    If the claim exceeds Rs. 20 lakh but is below Rs. 1 crore

  • National Consumer Disputes Redressal Commissionrong

    If the claim exceeds Rs. 1 crore

How can I file a complaint?

Here are the steps to be followed to file a complaint-

  • It should be written on a plain paper.

  • No need for a stamp paper for declaration.

  • It must contain complete details of the complainant and the defaulter.

  • The complainant can get the complaint registered in person or through the agent or by post sent to the Redressal Agency.

Moreover, it is not mandatory to hire a lawyer to file the complaint. The fee charged is quite nominal according to the claim value.

Is there a time-limit in filing a complaint?

The complaint must be filed within 2 years from the date of the deficiency in service/ defect in goods witnessed.

Although, the complaint can even be filed after the expiry of the stipulated period of 2 years but only if the complainant convinces the District Forum that there were adequate reasons for not filing the complaint earlier.

  • loss or damage has been caused to the buyer due to the unfair trade practice of the service provider or the trader

  • goods bought by the consumer are defective

  • services utilized by the consumer suffer from deficiency

  • trader has excessively charged for the goods and services

  • goods and services are being sold even when they are hazardous to life, nature and property.

What are the Reliefs available to Consumers from Consumer Fora?

The aggrieved buyer is eligible to numerous different reliefs from the consumer court. For instance,

  • Replacement of all faulty goods

  • Removal of all defects from the goods

  • Removal of defects or deficiencies in the services

  • Refund of the paid amount

  • Award of compensation for the injury and loss suffered

  • Terminate and not to repeat the unfair trade practice or limiting trade practice

  • To remove goods that can be hazardous from being sold

  • To terminate manufacturing of hazardous goods and refrain from offering hazardous services in nature

  • If the injury or loss has been suffered by a huge number of consumers who cannot be recognized easily, to pay the amount which is not less than 5% of the total value of the defective services and goods, which will be calculated by the court

  • To furnish restorative advertisement to counter-balance the effect of deceptive advertisement

  • To supply appropriate costs to complainants.

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