April 16

How to file a suit and the procedures involved

The law dictionary defines a suit as a “proceeding initiated on the production of a plaint in a civil court”. The plaint is a statement of claim filed by the plaintiff who is the person who institutes the suit and has a  cause of action to file the same.  It is followed by a written statement which is a reply that is filed by the defendant answering the claim of the plaintiff within a period of 30 days as allowed by the Order VIII of Civil Procedure Code. After the written statement has been filed the suit enters the stage of admission denial of documents and the discovery and inspection of documents which is carried out according to the provisions of Order XII and Order XIII of the Code of Civil Procedure.
Then comes the stage where the court proceeds with the suit and determines the real issues involved in the suit in relation to the matter or any of the matters in controversy and the issues are then framed by the court after prima facie examining the witnesses of the parties and examining the evidence and the pleading on record. This stage of the suit is termed as the “framing of issues” and is governed by Order XIV of the code of civil procedure.  The issue framing stage is then followed by evidence taking stage where the evidence of the witnesses, parties and the documentary evidence available before the court or which has been produced by the parties are examined by the court . The evidence taking stage is governed by Indian Evidence Act, 1872 dealing with relevancy of facts, the admissions, the manner in which the corroboration and examination in chief and cross examination has to be done and the procedure which has to be followed in this stage has been categorically stated in Order XVI of the Civil Procedure Code which with the attendance of witnesses and Order XVII which deals with hearing and examination of witnesses.
 It is then followed by a judgment and decree by a court which has to be made in accordance with the Order XX of Code of Civil Procedure. The distinction between the judgment and decree has been mentioned in the definition clause but stating it very precisely a decree is a formal expression of the court with regards to an issue or issues and a judgment is the decision which is given by the judge of the grounds of an order or decree. The code of civil procedure defines an order in negative terms as any decision or adjudication of the court which is not a decree.
The proceedings in a civil suit though comes to an end after the judgment has been delivered but in practice the procedure is then followed by the procedure of getting the decree executed by the person in whose favour the decree has been passed who is called the decree holder in law. The process of execution of decree can be initiated in the court which passed the decree or the court to which the decree is sent for execution. The manner and the procedures regarding the execution of different types of decree be it a money decree, decree of specific performance is executed by the court according to the provisions of order XXI read with Section 36 to Section 50 of the code of civil procedure.
The entire process of instituting the suit to the examination of witnesses, the delivery of a judgment and decree and then the execution is carried out according to the different orders and rules and section as laid down under the provisions of the Code of Civil Procedure which is the ultimate manual to understand how the suit is instituted and the various stages through which a suit goes till the time the issues are settled and adjudicated by the court and the decision of the court is given the form of a judgment or a decree. 



The author is a practicing lawyer at the courts of Delhi and can be contacted at lawyer.soniasaini@gmail.com 
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April 5

The concept of ‘maintenance’ under Indian law

The concept of maintenance flows from the concept of the marriage and the duty of the husband after marriage to maintain his wife and minor children and also to maintain his old parents throughout their life. Maintenance in comman parlance would mean the providing of food, shelter and money which is fair and reasonable. The article would cover the issues relating to the persons entitled to maintenance , the grounds and circumstances under which it can be granted and the modification and  forfeiture of same.
Laws for granting Maintenance: The laws under which Maintenance in India can be granted are :
  • Section 125 Criminal Procedure Code( Cr.P.C.)
  • Section 20 of Protection of women from Domestic Violence
  • Section 18 of Hindu Adoption and Maintenance Act
  • Section 24 of Hindu Marriage Act
  • Section 25 of Hindu Marriage Act
  • Personal Laws
Who can be granted Maintenance: The maintenance in law can be granted to the following persons :
·         Wife
·         Minor legitimate or Illegitimate Son
·         Minor Legitimate or Illegitimate Daughter
·         Adult Son or Daughter unable to maintain himself or herself due to some mental deformity
·         Father and mother
On what grounds it is granted : In order to get a maintenance order in ones favour it is necessary for the party to prove that the party has no means to maintain himself or herself and the other party has the “sufficient means “ and fails to maintain the contesting party. While granting maintenance the courts looks at the following factors :
  1. Status of the husband and wife.
  2. Salary/ Income of the husband
  3. Salary /Income of the wife
  4. Liabilities of husband, if any
  5. Dependants
  6. Reasonable wants of claimant.
  7. Financial Background
  8. Movable & Immovable properties of the Husband
A married woman loses her right to be maintained if she marries any other person after her divorce or establishes a relationship which is adulterous in the eyes of law with any other person or fails to live with the husband without any reasonable cause or has agreed to take divorce by mutual consent in case the maintenance application is filed after divorce or with it. The maintenance amount once decided can be varied if there is a change in circumstances and if an order of maintenance has been passed by any other court or it has so been decided by the personal law governing the parties.
The author is a practicing lawyer and can be contacted at lawyer.soniasaini@gmail.comor 9873658554
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April 3

What are summons? What should be done when summons are received?

I often get panic calls from some of the clients that they have received a summon from the court. Any order or any notice from the court or police often generates a fear in the mind of a layman. So here I am dealing with the issues concerning summons, what do they mean, what is done when a person on whom a summons has to be served is not found and what are the duties of a person on whom the summons are served . For the sake of brevity I would be covering the different topics under different heads

What is a summon?

A summon is a court order to an individual to appear in court at a specified time and place. A summon may be issued in both criminal and in civil cases.

How Is A Summon Served
  1. Every summon shall be served by a police officer, or by an officer of the court issuing it or any other public servant.
  2. The summon shall if practical, be served personally on the person summoned, by delivering or tendering to him one of the duplicates of the summons.
  3. Every person on whom a summon is served shall sign a receipt on the back of the other duplicate.
Service When Persons Summoned Cannot Be Found

Where the persons summoned cannot be found, the summons may be served by leaving one of the duplicates for the person with some adult male member of the family residing with him, and the person with whom the summon is left, shall sign a receipt on the back of the duplicate.
A servant is not a member of the family.

Summons May Be Served By Post To A Witness

A court issuing summons to a witness may simultaneously direct a copy of the summons to be served by registered post addressed to the witness. When an acknowledgment purporting to be signed by the witness or an endorsement is made by the postal employee that the witness refused to take delivery of the summons has been received, the Court issuing the summons may declare that the summons has been duly served.
In case the service of summons is evaded the court may issue bailable or non-bailable warrants.

Proclamation For Person Absconding

If any court has reason to believe that any person against whom a warrant has been issued has absconded or is concealing himself so that such warrant cannot be executed, such court may publish a written proclamation requiring him to appear at a specified place and time within 30 days of publishing such proclamation.
The proclamation shall be published as follows:-
  1. It shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;
  2. It shall be affixed in some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;
  3. A copy thereof shall be affixed to some conspicuous part of the court house;
  4. The court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which person resides.
Attachment Of Property Of Person Absconding

The Court issuing a proclamation may, at any time after the issue of the proclamation, order the attachment of any property, movable or immovable or both, belonging to the proclaimed person:
Provided where at the time of issue of the proclamation the Court is satisfied that the person in relation to whom the proclamation is to be issued –
  1. is about to dispose of the whole or any part of his property, or
  2. is about to remove the whole or any part of his property from the local jurisdiction of the Court
It may order the attachment simultaneously with the issue of the proclamation.
Your Duties
  1. To accept the summons and sign the duplicate if required.
  2. To treat the officer serving the summon with respect.
  3. To appear on the date mentioned in the summons or engage a lawyer to appear on your behalf.


The author is a practicing lawyer and can be contacted at lawyer.soniasaini@gmail.com or 9873658554.


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March 31

Getting marriage registered ….


How to get marriage registered?


This is one of the queries which I receive as a budding lawyers and people are generally misguided by touts who often demand an  huge amount in getting marriage registered which is such a simple procedure that anyone can themselves do without any problem. There is the procedure in a simplified version for all those wanting to get their marriage registered:

1)    Where to go ?
 To the office of Sub-Divisional Magistrate in whose jurisdiction any of the husband or wife resides, during 9.30 a.m. to 1.00 p.m. on any working day.Click Here to obtain the contact address of the SDM in whose jurisdiction in your colony lies.

2)     Which papers/documents/fees, do I take with me?

1      Application form duly signed by both husband and wife.
2      Documentary evidence of date of birth of parties (Matriculation Certificate / Passport / Birth Certificate) Minimum age of both parties is 21 years at the time of registration under the Special Marriage Act.
3      Ration card of husband or wife whose area SDM has been approached for the certificate.
4      In case of Special Marriage Act, documentary evidence regarding stay in Delhi of the parties for more than 30 days (ration card or report from the concerned SHO).
5      Affidavit by both the parties stating place and date of marriage, date of birth, marital status at the time of marriage and nationality.
6      Two passport size photographs of both the parties and one marriage photograph.
7      Marriage invitation card, if available.
8      If marriage was solemnized in a religious place, a certificate from the priest is required who solemnized the marriage.
9      Rs. 100/- in case of Hindu Marriage Act and Rs.150/- in case of Special Marriage Act to be deposited with the cashier of District and the receipt should be attached with the application form.
10    Affirmation that the parties are not related to each other within the prohibited degree of relationship as per Hindu Marriage Act or Special Marriage Act as the case may be.
11    Attested copy of divorce decree/order in case of a divorcee and death certificate of spouse in case of widow/widower.
12    In case one of the parties belong to other than Hindu, Budhist, Jain and Sikh religions, a conversion certificate from the priest who solemnized the marriage(in case of Hindu Marriage Act).
13    All documents excluding receipt should be attested by a Gazetted Officer.



3) What will be the criteria used while deciding my case?

A) Hindu Marriage Act
Verification of all the documents is carried out on the date of application and a day is fixed and communicated to the parties for registration. On the said day, both parties, alongwith a Gazetted Officer who attended their marriage, need to be present before the SDM. The Certificate is issued on the same day.
B) Special Marriage Act

Both parties are required to be present after submission of documents for issuance of public notice inviting objections. One copy of notice is pasted on the notice board of the office and copy of the notice is sent by registered post to both parties as per address given by them. Registration is done 30 days after the date of notice after deciding any objection that may have been received during that period by the SDM. Both parties along with three witnesses are required to be present on the date of registration.
4)  What are the relevant Forms?
Click here for Application Form for registration of marriage under Hindu Marriage Act.
Click here for Application Form for registration of marriage under Special Marriage Act.
Click here for Identification Certificate a)any person having PAN of income Tax (OR) b) any officer/official of Central or State govt. or UT Administration or PSU/Autonomous bodies whose identity can be established
Click here for Affidavit

Q. When will I get a response?
You should be getting a response normally within 15 days in case of registration of marriage under Hindu Marriage Act and 60 days under Special Marriage Act.


Solemnisation of Marriage under Special Marriage Act

Special Marriage Act, 1954 provides for solemnisation of marriages in accordance with the provisions of the Act. SDMs/ADMs/Deputy Commissioners have been authorised as Marriage Officers for this purpose.

Q. Where do I have to go and during which hours?
To the office of Sub-Divisional Magistrate in whose jurisdiction any of the husband or wife resides, during 9.30 a.m. to 1.00 Noon on any working day. Click Here to obtain the contact address of the SDM in whose jurisdiction in your colony lies.

Q. Which papers/documents/fees, do I take with me?
  1. Application form duly filled and signed by the bride and the groom.
  2. Fee of Rs.15/- is to be deposited with cashier of District and the receipt should be attached with the form.
  3. Documentary evidence of date of birth of both parties (Matriculation Certificate/Passport/Birth Certificate).
  4. Documentary evidence regarding stay in Delhi of one of the parties for more than 30 days (ration card or report from the concerned SHO).
  5. Separate affidavits from bride and groom giving:
    1. Date of birth.
    2. Present marital status: unmarried/widower/ divorcee.
    3. Affirmation that the parties are not related to each other within the degree of prohibited relationship defined in the Special Marriage Act.
  6. Passport size photographs of both parties (2 copies each) duly attested by a Gazetted Officer.
  7. Copy of divorce decree/order in case of a divorcee and death certificate of spouse in case of widow/widower.
  8.  
Q. What will be the criteria used while deciding my case?
For solemnization of marriage, presence of both parties is required after submission of documents of issuance of notice of intended marriage. A copy of the notice is pasted on the office notice board by the SDM. Any person may within 30 days of issue of notice , file objection to the intended marriages. In such a case, the SDM shall not solemnise the marriage until he has decided the objection, within 30 days of its receipt. If the SDM refuses to solemnise the marriage, any of the parties may file an appeal within 30 days to the District Court. In case no objection is received, the SDM solemnises the marriage after 30 days of the notice. Both parties alongwith 3 witnesses are required to be present on the date of solemnisation of marriage. It is advisable to submit names of witnesses atleast one day in advance.

Q. What are the relevant Forms?
Click here for relevant Form

Q. When will I get a response?
You should be getting a response normally within 60 days.

source : http://delhi.gov.in/wps/wcm/connect/DoIT/delhi+govt/community/marriage+certificate+and+registration

The author is a lawyer practicing in the Delhi High Court and other courts of Delhi and can be contacted at lawyer.soniasaini@gmail.com or 9873658554




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