106. Penal provisions relating to road accidents

Penal provisions to combat road accidents can be found in following three enactments:

(i) Indian Penal Code, 1860

(ii) Motor Vehicles Act, 1988

(iii) National Highways Act, 1956

(i) Indian Penal Code, 1860

Sections 279, 304A, 336, 337, 338, IPC are deal with cases of road accidents . These provisions are as under:

Section 279. Rash driving or riding on a public way. “Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.”

Section 304A. Causing death by negligence. “Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”

Section 336. Act endangering life or personal safety of others. “Whoever does any act so rashly or negligently as to endanger human life or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to two hundred and

fifty rupees, or with both.”

Section 337. Causing hurt by act endangering life or personal safety of others. “Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.”

Section 338. Causing grievous hurt by act endangering life or personal safety of others. “Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.”

*****

Rash or negligent act is an ingredient in all the above sections. A rash act is primarily an overhasty act, opposed to a deliberate act, but it also includes an act which, though it may be said to be deliberate, is yet done without due deliberation and caution. In rashness, the criminality lies in running the risk of doing an act with recklessness or indifference to consequences. Negligence means breach of duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate conduct of human affairs would do or doing something which a prudent or reasonable man would not do. Culpable negligence is acting without consciousness that illegal or mischievous effects will follow, but in circumstances which show that the actor has not exercised the caution incumbent on him, and that if he had, he would have had the consciousness. Generally, in the case of rashness, the guilty person does an act and breaks a positive duty; in the case of negligence, he does not do an act which he was bound to do, because he adverts not to it. ‘Rashness’ conveys the idea of recklessness or the doing of an act without due consideration; ‘negligence’ connotes want of proper care or

the standard of conduct which a reasonably prudent person would exercise in a similar situation.

To be guilty of an offence under section 279, IPC the accused must drive a vehicle in such a rash or negligent manner as to endanger human life or to be likely to cause hurt or injury to any other person. Driving at a high speed or non-sounding of horn by itself does not mean that the driver is rash or negligent. Place, time, traffic and crowd are important factors to determine rashness or negligence.

Section 304A, which was inserted in the IPC by Act 25 of 1870, postulates a rash and negligent act entailing death of another. The provisions of this section apply to cases where there is no intention to cause death, and no knowledge that the act done in all probability would cause death; it should not amount to culpable homicide. Section 304A is directed at offences outside the range of sections 299 and 300, IPC.[1]

Section 279 covers only those cases which relate to driving on public way endangering human life, while offence under section 304A extends to any rash or negligent act falling short of culpable homicide.

Rash and negligent acts which endanger human life, or the personal safety of others, are punishable under section 336 even though no harm follows, and are additionally punishable under sections 337 and 338 if they cause hurt, or grievous hurt. Element of volition or intention is foreign to the set of offences under sections 336 to 338, IPC. Offences defined by these sections as well as section 279 are minor offences in comparison with the offence under section 304A where death is caused by a rash or negligent act.

Recently, the Supreme Court has observed that if a person willfully drives a motor vehicle into the midst of a crowd and thereby causes death to some person, it will not be a case of mere rash and negligent driving and the act would amount to culpable homicide.[2]

Dealing with sentencing of a convict for offences under sections 279 and 304A, IPC, the Supreme Court in Dalbir Singh v. State of Haryana [3] held:

“When automobiles have become death traps any leniency shown to drivers who are found guilty of rash driving would be at the risk of further escalation of road accidents. All those who are manning the steering of automobiles, particularly professional drivers, must be kept under constant reminders of their duty to adopt utmost care and also of the consequences befalling them in cases of dereliction. One of the most effective ways of keeping such drivers under mental vigil is to maintain a deterrent element in the sentencing sphere. Any latitude shown to them in that sphere would tempt them to make driving frivolous and a frolic.

…

13. Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, criminal courts cannot treat the nature of the offence under Section 304-A IPC as attracting the benevolent provisions of

Section 4 of the Probation of Offenders Act. While considering the quantum of sentence to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence. A professional driver pedals the accelerator of the automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion. He cannot and should not take a chance thinking that a rash driving need not necessarily cause any accident; or even if any accident occurs it need not necessarily result in the death of any human being; or even if such death ensues he might not be convicted of the offence; and lastly, that even if he is convicted he would be dealt with leniently by the court. He must always keep in his mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of the vehicle he cannot escape from a jail sentence. This is the role which the courts can play, particularly at the level of trial courts, for lessening the high rate of motor accidents due to callous driving of automobiles.”

In Rattan Singh v. State of Punjab [4], the Supreme Court had held:

“5. Nevertheless, sentencing must have a policy of correction. This driver, if he has to become a good driver, must have a better training in traffic laws and moral responsibility, with special reference to the potential injury to human life and limb. Punishment in this area must, therefore, be accompanied by these components. The State, we hope, will attach a course for better driving together with a livelier sense of responsibility, when the

punishment is for driving offences.”

Recently, the Supreme Court upheld the sentence of imprisonment awarded to the driver of a bus convicted for offences under sections 279 and 304A, IPC, following the above dicta.[5]

(ii) Motor Vehicles Act, 1988

The Motor Vehicles Act, 1988 (MVAct) is the principal instrument for regulating motor vehicles. Chapter II relates to licensing of drivers of motor vehicles, wherein section 19 confers power on the licensing authority to disqualify any person from holding a driving licence or revoke such licence, if he -

(a) is a habitual criminal or a habitual drunkard; or

(b) is a habitual addict to any narcotic drug or psychotropic substance; or

(c) is using or has used a motor vehicle in the commission of a cognizable offence; or

(d) has, by his previous conduct as driver of a motor vehicle shown that his driving is likely to be attended with danger to the public; or

(e) has obtained any driving licence or a licence to drive a particular class or description of motor vehicle by fraud or misrepresentation; or

(f) has committed any such act which is likely to cause nuisance or danger to the public, as may be prescribed by the Central Government, having regard to the objects of this Act; or

(g) has failed to submit to, or has not passed, the tests referred to in the proviso to sub-section (3) of Section 22; or

(h) being a person under the age of eighteen years who has been granted a learner’s licence or a driving licence with the consent in writing of the person having the care of the holder of the licence and has ceased to be in such care.

Section 20. Power of Court to disqualify. “(1) Where a person is convicted of an offence under this Act or of an offence in the commission of which a motor vehicle was used, the Court by which such person is convicted may, subject to the provisions of this Act, in addition to imposing any other punishment authorized by law, declare the person so convicted to be disqualified, for such period as the Court may specify, from holding any driving licence to drive all classes or description of vehicles, or any particular class or description of such vehicles, as are specified in such licence: Provided that in respect of an offence punishable under section 183 no such order shall be made for the first or second offence.

(2) Where a person is convicted of an offence under clause (c) of sub-section (1) of section 132, section 134 or section 185, the Court convicting any person of any such offence shall order the disqualification under sub-section (1), and if the offence is relatable to clause (c) of sub-section (1) of section 132 or section 134, such disqualification shall be for a period of not less than one month, and if the offence is relatable to section 185, such disqualification shall be for a period of not less than six months.

(3) A Court shall, unless for special reasons to be recorded in writing it thinks fit to order otherwise, order the disqualification of a person,-

(a) who having been convicted of an offence punishable under section 184 is again convicted of an offence punishable under that section;

(b) who is convicted of an offence punishable under section 189; or

(c) who is convicted of an offence punishable under section 192:

Provided that the period of disqualification shall not exceed, in the case referred to in clause (a), five years, or in the case referred to in clause (b), two years or, in the case referred to in clause (c), one year.

(4) A Court ordering the disqualification of a person convicted of an offence punishable under section 184 may direct that such person shall, whether he has previously passed the test of competence to drive as referred to in sub-section (3) of section 9 or not, remain disqualified until he has subsequent to the making of the order of disqualification passed that test to the satisfaction of the licensing authority.

….”

Section 21. Suspension of driving licence in certain cases.

“(1) Where, in relation to a person who had been previously convicted of an offence punishable under section 184, a case is registered by a police officer on the allegation that such person has, by such dangerous driving as is referred to in the said section 184, of any class or description of motor vehicle caused the death of, or grievous hurt to, one or more persons, the driving licence held by such person shall in relation to such class or description of motor vehicle become suspended,-

(a) for a period of six months from the date on which the case is registered; or

(b) if such person is discharged or acquitted before the expiry of the period aforesaid, until such discharge or acquittal, as the case may be.

….”

Section 22. Suspension or cancellation of driving licence on conviction.

“(1) Without prejudice to the provisions of sub-section (3) of section 20, where a person, referred to in sub-section (1) of section 21, is convicted of an offence of causing, by such dangerous driving as is referred to in section 184 of any class or description of motor vehicle, the death of, or grievous hurt to, one or more persons, the Court by which such person is convicted may cancel, or suspend, for such period as it may think fit, the driving licence held by such person in so far as it relates to that class or description of motor vehicle.

(2) Without prejudice to the provisions of sub-section (2) of section 20, if a person, having been previously convicted of an offence punishable under section 185, is again convicted of an offence punishable under that section, the Court, making such subsequent conviction, shall, by order, cancel the driving licence held by such person.

….”

Section 23. Effect of disqualification order. “(1) A person in respect of whom any disqualification order is made under section 19 or section 20 shall be debarred to the extent and for the period specified in such order from holding or obtaining a driving licence and the driving licence, if any, held by such person at the date of the order shall cease to be effective to such extent and during such period.

….”

Chapter VIII of the MVAct deals with the control of traffic. Section 112 pertains to limits of speed and prohibits driving of a motor vehicle or it being allowed to be driven in any public place at a speed exceeding the maximum permissible speed. Rule 118 of the Central Motor Vehicles Rules, 1989 provides for notified transport vehicles to be fitted with a speed governor in such a manner that the speed governor can be sealed with an official seal in such a way that it cannot be removed or tampered with without the seal being broken.

Section 113 provides for limits of weight and limitations on use. Section 118 confers power on the Central Government to make regulations for the driving of motor vehicles. Accordingly, the Rules of the Road Regulations, 1989 have been made. Section 119 provides for the duty to obey traffic signs. Section 129 provides for the wearing of helmets. Various other provisions are contained in Chapter VIII for regulation of traffic.

The Rules of the Road Regulations, 1989 contain detailed provisions regulating driving of motor vehicles, like keeping left, overtaking prohibited, caution at road junction, right of way to pedestrians, signals to be given by drivers, parking, visibility of lamps and registration marks, lane driving, respecting stop sign on road surface, distance from vehicles in front, no abrupt brake except for safety reasons, no projection of loads, non-carriage of dangerous substances on any public service vehicle, restriction on driving backwards, carrying of documents, viz., driving licence, certificate of registration, certificate of insurance of the vehicle and in case of transport vehicle the permit and

fitness certificate also.

Chapter XIII of the MVAct relates to offences, penalties and procedure. Section 177 contains the general provision for punishment of offences, which is available in the absence of any specific provision for punishment applicable in a given case; the punishment is a maximum fine of Rs. 100/- for the first offence and for the subsequent offence it is only Rs. 300/-. Section 183 provides the punishment for contravention of the speed limits referred to in section 112. Section 184 provides for punishment for dangerous driving and section 185 for driving by a drunken person or a person under the influence of drugs. These sections read as under:

Section 184. Driving dangerously. “Whoever drives a motor vehicle at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case including the nature, condition and use of the place where the vehicle is driven and the amount of traffic which actually is at the time or which might reasonably be expected to be in the place, shall be punishable for the first offence with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees, and for any second or subsequent offence, if committed within three years of the commission of a previous similar offence, with imprisonment for a term which may extend to two years, or with fine which may extend to two thousand rupees,

or with both.”

Section 185. Driving by a drunken person or by a person under

the influence of drugs. “Whoever, while driving, or attempting to drive, a motor vehicle,-

(a) has, in his blood, alcohol exceeding 30 mg. per 100 ml. of blood detected in a test by a breath analyzer, or

(b) is under this influence of drug to such an extent as to be incapable of exercising proper control over the vehicle, shall be punishable for the first offence with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both; and for a second or subsequent offence, if committed within three years of the commission of the previous similar offence, with imprisonment for a term which may extend to two years, or with fine which may extend to three thousand rupees, or with both.

Explanation.- For the purposes of this section, the drug or drugs specified by the Central Government in this behalf, by notification in the Official Gazette, shall be deemed to render a person incapable of exercising proper control over a motor vehicle.”

Section 184 deals with reckless driving dangerous to the public having regard to all the circumstances of the case. Offence defined under section 184 and the offence under section 279, IPC are essentially the same. No person is supposed to drive a motor vehicle on any public way in a manner which may endanger human life or is likely to cause hurt or injury to any other person. The law casts a duty on every user of the road

or public way to exercise due care and caution while driving a motor vehicle. The amount of care and caution required to be exercised by a driver while driving on a public way would, of course, depend upon the situation and circumstances in which he is driving. The doctrine of contributory negligence has no application in criminal law. Contributory

negligence may be a factor for consideration in determining the sentence, but it is not a defence entitling the accused to an acquittal.

Certain other provisions of Chapter XIII providing punishments are:

s. 180: allowing unauthorized persons to drive vehicles;s. 181: driving vehicles in contravention of section 3 (necessity for driving licence) or section 4 (age limit in connection with driving of motor vehicles); s. 182: offences relating to licences; s. 182A: offences relating to construction and maintenance of vehicles; s. 186: driving when mentally or physically unfit to drive; section 187: offences relating to accident; s.188: abetment of offence unders. 184, 185 or 186; s. 189: racing and trials of speed; s.190: using vehicle in unsafe condition; s. 191: sale of vehicle in, or alteration of vehicle to, a condition contravening the Act; s. 192: using vehicle without registration; s. 192A: using vehicle without permit; section 193: agents and canvassers acting without proper authority; section 194: driving vehicle exceeding permissible weight; section 196: driving uninsured vehicle; s. 197: taking vehicle without authority; s. 198: unauthorized interference with vehicle; s. 201: causing obstruction to free flow of traffic. S. 207 confers power on any police officer or other person authorized in this behalf to seize and detain a motor vehicle, if he has reason to believe that it has been or is being used in contravention of the specified provisions, posing a serious threat to the public.

(iii) National Highways Act, 1956

Section 8B of the National Highways Act, 1956, which provides that whoever commits mischief by doing any act which renders or which he knows to be likely to render a national highway in relation to whose development and maintenance there is an agreement, impassable or less safe for travelling or conveying property, shall be punished with imprisonment of either description for a term which may

extend to five years, or with a fine, or with both.

-----------------------------------------------------------------

1Naresh Giri v. State of M.P. 2007(13) SCALE 7 : (2008) 1 SCC 791

2 Ibid.

3 (2000) 5 SCC 82

4 Rattan Singh v. State of Punjab (1979) 4 SCC 719

5 B. Nagabhushanam v. State of Karnataka 2008 (7) SCALE 716

105. First Law maker of the world

There is a debate as to who was the first Law maker of the world. In Sanatan Dharma , Manu is commonly referred as first. But, a few scholars say that Manu had reproduced the rules made by Bhrigu. The last verse of Manusmriti itself referres Bhrigu and says that what have been taught in it was told earlier by Bhrigu .
In this regard I would submit my conclusion as under:

1. There are inferences by scholars that many verses in Manusmriti might have been subsequently added to the original script. Even there may have been manipulation by biased scholars with a view to override the religious practices preferred by their rival pandits. Therefore the possibility of addition of one verse at the end of the text can not be ruled out . The text that I have with me is published by “Thakur Prasad Book sellers” who are a popular publishers of Varanasi. There may be some difference in other publications.

2. All the puranas and other epics unanimously refer the manu as first and principal creator of manav shastra or dharm shastra.

3. In sanatan dharma no one is first. There is a cycle of happenings and exploration of knowledge. All the scriptures authored by Badrayan ( = Krishna dvaipayan = Vedvyas ) are compilations of pre-existing knowledge and stories. But, He is known as the author of 18 purans and several other epics. In Geeta, Krishna himself said that he is exploring the pre-existing knowledge and there is nothing new in his teachings.But, Geeta and it’s principles are identified with Krishna. Patanjali was also compiler of the principles of yoga – the practices taught by him were practiced earlier to him - Hiranyagarbh can be referred as original acharya of yoga . But, yoga shastra is identified with Patanjali

4. Similarly manu would have been first compiler of rules of ethical tradition and there may have been many earlier rulers and rishis including Bhrigu who would have made rules according to needs of the time.

104. The Court can not dismiss the suit when plaintiff fails to pay the costs

Section 35B of CPC deals with costs for causing delay. Relevant portion of the said section extracted below :

"35B. Costs for causing delay. - (1) If, on any date fixed for the hearing
of a suit or for taking any step therein, a party to the suit--

(a) fails to take the step which he was required by or under this Code to
take on that date, or

(b) obtains an adjournment for taking such step or for producing evidence
or on any other ground,

the Court may, for reasons to be recorded, make an order requiring such
party to pay to the other party such costs as would, in the opinion of the
Court, be reasonably sufficient to reimburse the other party in respect of
the expenses incurred by him in attending the Court on that date, and
payment of such costs, on the date next following the date of such order,
shall be a condition precedent to the further prosecution of--

(a) the suit by the plaintiff, where the plaintiff was ordered to pay such
costs,

(b) the defence by the defendant, where the defendant was ordered to
pay such costs.

----------------------------"


Thus, section 35B provides that if costs are levied on the plaintiff for causing delay, payment of such costs on the next hearing date, shall be a condition precedent to the further prosecution of the suit by the plaintiff.
If the Legislature intended that the suit should be dismissed in the event of non-payment of costs by plaintiff, or that the defence should be struck off and suit should be decreed in the event of non-payment of costs by the defendant, the Legislature would have said so. On the other hand, Legislature stated in the rule that payment of costs on the next date shall be a condition precedent to the further prosecution of the suit by plaintiff (where the plaintiff was ordered to pay such costs), and a condition precedent to the further prosecution of the defence by the defendant (where the defendant was ordered to pay such costs). This would mean that if the costs levied were not paid by the party on whom it is levied, such defaulting party is prohibited from any further participation in the suit. In other words, he ceases to have any further right to participate in the suit and he will not be permitted to let in any further evidence or address arguments. The other party will of course be permitted to place his evidence and address arguments, and the court will then decide the matter in accordance with law.
With the above observations the Supreme Court in CIVIL APPEAL NO. 7554-7555 OF 2009 Manohar Singh v. D. S. Sharma & Anr. Decided on 13/11/2009, rejected the contention of the that section 35B contemplates or requires dismissal of the suit as an automatic consequence of non-payment of costs by plaintiff.

The Supreme Court also discussed some incidental and related provisions and said that when section 35B states that payment of such costs on the date next following the date of the order shall be a condition precedent for further prosecution, it clearly indicates that when the costs are levied, it should be paid on the next date of hearing and if it is not paid, the consequences mentioned therein shall follow. But the said provision will not come in the way of the court, in its discretion extending the time for such payment, in exercise of its general power to extend time under section 148 of CPC. Having regard to the scheme and object of section 35B, it is needless to say that such extension can be only in exceptional circumstances and by subjecting the defaulting party to further terms. No party can routinely be given extension of time for payment of costs, having regard to the fact that such costs under section 35B were itself levied for causing delay.

Referring to the provisions of Rule 1 of Order XVII of CPC which deals with grant of time and adjournments, the Court observed that it is evident from Rule 1(2) proviso (e) of Order 17 that where a witness is present in court but the other side is not ready to cross-examine the witness, the court can dispense with his cross-examination. But where a genuine and bona fide request is made for adjourment, instead of resorting to forfeiture of the right to cross-examine, the court may grant time by levying costs.

Thus the Supreme Court held that “a conspectus of the above provisions clearly demonstrates that under the scheme of CPC, a suit cannot be dismissed for non-payment of costs. Non-payment of costs results in forfeiture of the right to further prosecute the suit or defence as the case may be. Award of costs, is an alternative available to the court, instead of dispensing with the cross- examination and closing the evidence of the witness. If the costs levied for seeking an adjournment to cross-examine a witness are not paid, the appropriate course is to close the cross-examination of the witness and prohibit the further prosecution of the suit or the defence, as the case may be by the defaulting party.



In this case, the supreme court observed that “the plaintiff has harassed the defendants and its witness by seeking repeated adjournments. In view of it, plaintiff's right to cross-examine DW2 stood forfeited. However, as costs were levied, but were not paid, the court should have closed the evidence of DW2, permitted the defendants to produce any further evidence (without any right to plaintiff to cross-examine such witnesses) and then ought to have proceeded to dispose of the suit on merits by considering the material available and hearing the arguments of defendant. The court could not have dismissed the suit.”
In view of the above, the Supreme Court allowed the appeals and set aside the judgments of the High Court and the trial court and restored the suit to its file, subject to the following :

“ (i) The right of the plaintiff to cross-examine DW2 stands forfeited and he is barred from prosecuting the suit further.

(ii) The trial court shall however permit the defendants to let in any further evidence, hear arguments and then dispose of the suit.

(iii) However, if plaintiff-appellant tenders the costs with an appropriate application under section 148 CPC, the trial court may consider his request in accordance with law. Even if the court extends the time for deposit, permits the plaintiff to pay the costs and prosecute the suit further, that will not entitle the plaintiff to cross-examine DW2.”

99. Divorce in U.K. – Basic rules (2)

Children and divorce

Before starting a divorce petition, kindly read preceding article (No. 98 in this blog) or leaflets D183 (About divorce) and D184 (I want to get a divorce - what do I do?) of Her Majesty’s Court Service.
Will the court be concerned with all the children of the marriage?
No, only those who still need your care and financial support because of their age and circumstances.
You will have to name all living children of the family, no matter how old they are, when you fill in paragraph 4 of your petition. See leaflet D184 (I want to get a divorce - what do I do?).
The court will be concerned with any child who was born to you and the respondent, or who has been treated by you as though they had been born to you, who is:
• under 16; or
• between 16 and 18 and still at college or school full time.
These children are referred to as “children of the family”.
This includes children you have both adopted. It does not include foster children.
Why you have to give the court details about the children?

The court must consider the arrangements you propose for the children after the divorce. In exceptional circumstances it can hold up the final decree (the “decree absolute”) until satisfactory arrangements are made for them.
What will the court want to know?
The court will want to know:
• where they live;
• who they live with;
• whether the other parent will see them and how often;
• about their day-to-day care;
• about their health;
• where they will go to school;
• what financial support they will receive; and
• that any special arrangements to help or protect them have been made.
Does this mean you must ask the court to make orders about all these things?
No. It is better if you and the respondent (and the children if they are old enough to understand) can agree these things together without the court having to make an order (referred to as “exercising its powers under the Children Act 1989”).
Whether or not you and the respondent agree about the children the court will only make an order about them if it would be better for the children than making no order at all.
Parenting Plans is a free guide which aims to help you and your ex-partner agree what the future arrangements for your children will be, and is available from your local divorce court, or by phoning The Stationery Office on 0870 600 5522or online at www.tsoshop.co.uk (by typing ‘parenting plans’ into the search box).
How will you tell the court about the arrangements proposed for the children?
When you start your divorce you must fill in form D8A (statement of arrangements for children) which sets out the proposals you are making.
The respondent can also sign the form D8A to show that he or she agrees with what you propose.
What will happen if the respondent will not sign the form D8A?
The court will send the respondent a copy of form D8A with your petition. He or she will be asked to fill in form D10 (acknowledgment of service) to say whether or not they agree with what you have proposed.
If they do not agree they can make their own proposals on a form D8A and send it to the court. If this happens, the court will send you a copy.
When will the Judge consider the arrangements for the children?
Normally when the Judge looks at the papers after you apply for “directions for trial”. See leaflet D186 (The respondent has replied to my petition - what must I do?). You will not normally have to attend court when this happens.
What will happen if the Judge is satisfied with the arrangements for the children?
The court will send you form D84B (notice of satisfaction with the arrangements for the children). This will tell you that the court does not need to “exercise its powers under the Children Act 1989”.
Form D84B will be sent to you and the respondent with form D84A, the form which tells you when your decree nisi will be pronounced. Leaflet D187 (I have a decree nisi – what must I do next?) will tell you what happens after your decree nisi is pronounced.
What can the Judge decide if he is not satisfied with the arrangements proposed for the children?
In exceptional circumstances he can decide you cannot obtain your final decree (“decree absolute”) until satisfactory arrangements are made for the children.
In that case you will be sent a copy of form D66 (notice that decree should not be made absolute).
In other cases the Judge can decide any of the following:
• That he needs further information about the children. You will be told what extra information you have to provide.
OR
• That an appointment should be fixed for you and the respondent to come and see the Judge about the children. The appointment will be held in the Judge’s room (called “chambers”). Normally only you, the respondent and the Judge will be there.
OR
• That a welfare report should be prepared about the children. A Cafcass children and family reporter will contact you and the respondent and make an appointment to see you both. He or she will want to talk to the children as well. The Cafcass practitioner will prepare a report and when it is ready it will be sent to the court office. The court will tell you how you can get a copy.
OR
• That it would be better for the children if the arrangements you are proposing, or some other matter about them, should be in a court order. If this happens you will need to apply formally to the court. You should ask a solicitor to help you.
Form D84C will tell you what will happen next and what you need to do.
What kind of orders can the court make?
The most common types of order are orders for financial support and “section 8” orders.
There are different types of section 8 orders:
• “residence orders” which say who the children should live with.
• “contact orders” which say who the children are allowed to see, or receive letters or telephone calls from.
• “prohibited steps orders” which prevent a child’s parents, or any other named person, from taking certain steps, such as taking a child abroad without first getting the court’s permission.
• “specific issues orders” which set out precisely how a particular matter about the children should be handled such as their schooling.
The court can also make orders such as “care orders” or “emergency protection orders” where the children are being abused or at risk of harm.
Where can you apply for financial support?
If you are asking for maintenance for a child, in most cases you should apply to the CSA. If you are asking for a capital lump sum or a property adjustment order for a child, you should make an application to the court, whether or not you are also applying to the CSA for a maintenance calculation.
There are some situations in which the CSA does not have power to make a child maintenance calculation, including where the Respondent is the step-parent of the child. In these situations, you may be able to make an application to the court.
A leaflet about the Child Support Agency is available from any court office. The leaflet will tell you how to make an application.

98. Divorce in United Kingdom - Basic rules (1)

How can you get a divorce?
By filling in a form called a “petition” and taking it to any divorce county court or to the Principal Registry in London.
This leaflet gives you a list of all divorce county courts.
The addresses and telephone numbers of all divorce county courts are listed in the telephone directory under Courts.
When can you get a divorce?
You cannot start a petition for divorce unless you have been married for more than one year.
You must explain why you want a divorce
You must be able to prove to the court that you have reasons (or “grounds”) for saying the marriage is at an end. The expression the court will use is that the marriage has “irretrievably broken down”.
The court will accept one or more of the following “facts” as proof:
• that your husband or wife has committed adultery and that you find it intolerable to live with him or her;
• that your husband’s or wife’s behaviour has been so bad that you can no longer bear to live with them;
• that your husband or wife deserted you at least two years ago;
• that you and your husband or wife have lived apart for at least two years and he or she agrees to a divorce; or
• that you and your husband or wife have lived apart for at least five years.
Do You have to live in U.K. to get a divorce there?
You and your husband or wife, must both have your permanent homes (‘domicile’) in England or Wales when the petition is started; or
You and your husband or wife must both be living in England or Wales when the petition is started; or
You and your husband or wife must both have had your last home in England or Wales and one of you must still be living in either of these countries when the petition is started; or
Your husband or wife must be living in England or Wales when the petition is started; or
You must have been living in England or Wales for at least a year on the day the petition is started; or
You must have your permanent home in England or Wales and have been living in either of these countries for at least six months on the day the petition is started.
You may also get a divorce in England and Wales in other specific circumstances. You should contact a solicitor, law centre or Citizens Advice Bureau if you need help deciding which statement applies to you.
Will you need a solicitor?
Probably not. But you will find it useful to have some legal advice before starting your petition if:
• you do not know whether you have grounds for a divorce;
• your husband or wife is not likely to agree to a divorce;
• you have not agreed with your husband or wife who the children should live with;
you have not agreed about any financial support for the children or yourself, or about any property.
The court will give you the forms you need and tell you what to do next. The forms are free.
If you do need help filling in the forms a Citizens Advice Bureau will help.
Remember that court staff are not solicitors. They cannot give legal advice or answer questions like:
• Should you claim financial support?
• Do you have proper reasons for a divorce?
• What will happen to the house you own with your husband or wife?
Will you have to attend a court hearing?
If you can agree with your husband or wife about financial support, property and the arrangements for any children, you may not have to attend a court hearing at all.
You may have to attend a court hearing if you ask the court to make an order for financial support or cannot agree about the arrangements for the children.
How much will the divorce cost?
You may have to pay a court fee for the following:
• when you submit your application for divorce to the court, and
• when you apply to the court for a decree absolute which shows that you are divorced;
• if you submit any applications for financial support or regarding any children in the marriage.
Please ask the court staff for a copy of the leaflet EX50 - County Court Fees. This lists
the most common family fees. It is also available on our website www.hmcourts-service.gov.uk.
What if you can’t afford the fee?
You may not have to pay a court fee or you may only have to pay a contribution towards the court fee depending on your circumstances. For further information, or to apply for a fee concession, ask court staff for a copy of the combined booklet and form EX160A - Court fees - Do I have to pay them? This is available from any county court office, or a copy of the leaflet can be downloaded
from the internet at: www.hmcourts-service.gov.uk.
How can you pay the fee?
By cheque, cash or postal order. Make your cheque or postal order payable to Her Majesty’s Courts Service (HMCS). Please note that courts cannot accept payments by debit or credit cards and we would recomend that you don’t send cash through the post.
Will you need a copy of your marriage certificate?
Yes. You will have to give a copy to the court when you start your petition. It will be kept on the court file. The copy must not be a photocopy.
Where can you get a copy of your marriage certificate if you do not have one?
If you were married in England or Wales, you can get a copy from:
• the office of the Registrar of Births, Deaths and Marriages for the district in which you were married. You can get the address from the phone book. You will have to pay a fee, and they will tell you how much it is.
• You can also get a copy from:
The General Register Office
PO Box 2
Southport
Merseyside
PR8 2JD
Tel: 0845 603 7788
You cannot order in person at the General Register Office. You can apply for certificates
online at www.gro.gov.uk, or by phone 0845 603 7788, lines are open Monday to Friday 8am to 8pm and Saturday 9am to 4pm. Alternatively, you can apply by post to the above address.
There will be a charge for your copy certificate. The office will tell you how much it is.
The office you go to will want to know:
• the date and place of your marriage;
• your full name; and
• the full name of your husband or wife.


Source: The Court Service Website , U.K.

97. Jurisdiction of Civil Court in labor matters - when not barred.

Jurisdiction of a civil court in an industrial dispute is not barred in case the dispute relates to violation of fundamental rights of a workman or the violation of general law of contract is involved. Jurisdiction of civil court is rule, exclusion is exception. This verdict has been given by the Indian Apex Court in Civil Appeal No. 328 0f 2005 Rajsthan SRTC v. Bal Mukund Bairwa, decided on 12/02/09.

The Supreme Court held that even in a case where jurisdiction of a civil court is sought to be barred under a statute, the civil court can exercise its jurisdiction in respect of some matters particularly when the statutory authority or Tribunal acts without jurisdiction.

The question as to whether in a case where violation is alleged as regards compliance of principles of natural justice either on common law principles or in terms of the statutory Regulations framed by the Corporation, which is a fundamental right in terms of Article 14 of the Constitution of India, a civil suit will be maintainable or not, had not been taken into consideration in any of the decisions of Supreme court.

A dispute arising in between an employer and employee may or may not be an industrial dispute. The dispute may be in relation to or arising out of a fundamental right of the employee, or his right under a Parliamentary Act and the Regulations framed thereunder, and/or a right arising under the provisions of the Industrial Disputes Act or the sister laws and may relate to same or similar rights or different rights, or even may be based on common law right or contractual right. The question in regard to the jurisdiction of the civil court must, therefore, be addressed having regard to the fact as to which rights or obligations are sought to be enforced for the purpose of invoking or excluding the jurisdiction of a civil court.

If an employee intends to enforce his constitutional rights or a right under a statutory Regulation, the civil court will have the necessary jurisdiction to try a suit. If, however, he claims his right and corresponding obligations only in terms of the provisions of the Industrial Disputes Act or the sister laws so called, the civil court will have none. The Supreme Court held that “it would not be correct to contend that only because the employee concerned is also a workman within the meaning of the provisions of the 1947 Act or the conditions of his service are otherwise governed by the Standing Order certified under the 1946 Act ipso facto the Civil Court will have no jurisdiction. This aspect of the matter has recently been considered by this Court in Rajasthan State Road Transport Corporation & ors. vs. Mohar Singh [(2008) 5 SCC 542]. The question as to whether the civil court's jurisdiction is barred or not must be determined having regard to the fact of each case.”
If the infringement of Standing Order or other provisions of the Industrial Disputes Act are alleged, the civil court's jurisdiction may be held to be barred but if the suit is based on the violation of principles of common law or constitutional provisions or on other grounds, the civil court's jurisdiction may not be held to be barred. If no right is claimed under a special statute in terms whereof the jurisdiction of the civil court is barred, the civil court will have jurisdiction.

Thus in the court’s view, "In the event it is found that the action on the part of State is violative of the constitutional provisions or the mandatory requirements of a statute or statutory rules, the civil court would have the jurisdiction to direct reinstatement with full back wages."
In a case where no enquiry has been conducted, there would be violation of the statutory Regulation as also the right of equality as contained in Article 14 of the Constitution of India. In such situation, a civil suit will be maintainable for the purpose of declaration that the termination of service and the consequences flowing there from was illegal . Thus this verdict of the Supreme Court of India removes all doubts regarding jurisdiction of Civil court with regard to disputes relating to employment and it has far reaching effect as principles laid down in this decision will not be limited to labor Laws only, but will be applicable to all branches of employment Laws. Now Lawyers and litigants should not hesitate in filing a civil suit where the grievances are covered by the above judgement.

96. Insurer is not liable if DL expired

Recently the supreme court has held that only in the event an application for renewal of licence is filed within a period 30 days from the date of expiry thereof, the same would be renewed automatically which means that even if an accident had taken place within the aforementioned period, the driver may be held to be possessing a valid licence. The proviso appended to Sub-section (1) of Section 15, however, clearly states that the driving licence shall be renewed with effect from the date of its renewal in the event the application for renewal of a licence is made more than 30 days after the date of its expiry. It is, therefore, evident that as, on renewal of the licence on such terms, the driver of the vehicle cannot be said to be holding a valid licence, the insurer would not be liable to indemnify the insured." - Ram Babu Tiwari v. United India Insurance Co. Ltd. & Ors. (2008) 8 SCC 165.

95. Writ of mandamus - some guide lines

A writ of mandamus is issued against a person who has legal duty to perform but fails in doing so. it is issued in favour of a person who establishes a legal right to be enforced. some of the key points to be kept in mind while seeking a mandamus are:

• the person against whom mandamus is sought must be under statutory obligation to perfom that duty
• the petitioner must have legal right to be enforced
• in cases of inaction or slow action mandamus can be issued
• normally a mandamuss can not be issued against a private individual
• administrative instructions/Departmental orders can not be enforced by writ of mandamus
• mandamus can not be issued to Government to enforce cabinet decision
• mere recomendation of an authority can not be enforced by madamus
• mandamus can be issued to comply with the orders of superior tribunal
• mandamus can not be issued in contradiction with statutory provisions
• mandamus can not be issued to legislature or government to make laws or rules
• mandamus can be issued to take decision on an application/representation if it is pending since long
• mandamus can not be issued to enforce contractual obligations

94. Dissolution of unregistered firm

0n 20/02/2009 the apex court has held that a suit for dissolution of can be filed by a partener of unregistered firm. the supreme court declared maharastra amendment made in 1984 in partenership Act is unconstitutional. Sub-section 2A which was introduced by the Maharashtra

Amendment 1984 states as follows :

"(2A) No suit to enforce any right for the dissolution of a firm or for accounts of a dissolved firm or any right or power to realize the property of a dissolved firm shall be instituted in any court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or have been a partner in the firm, unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm Provided that the requirement of registration of firm under this sub-section shall not apply to the suits or proceedings instituted by the heirs or legal representatives of the deceased partner of a firm for accounts of a dissolved firm or to realize the property of a dissolved firm."

The supreme court held that "a partnership firm, whether registered or unregistered, is not a distinct legal entity, and hence the property of the firm really belongs to the partners of the firm. Sub-section 2A virtually deprives a partner in an unregistered firm from recovery of his share in the property of the firm or from seeking dissolution of the firm."

The court said that :

"The effect of the Amendment is that a partnership firm is allowed to come into existence and function without registration but it cannot go out of existence (with certain exceptions). This can result into a situation where in case of disputes amongst the partners the relationship of partnership cannot be put an end to by approaching a court of law. A dishonest partner, if in control of the business, or if simply stronger, can successfully deprive the other partner of his dues from the partnership. It could result in extreme hardship and injustice. Might wouldbe right. An aggrieved partner is left without any remedy whatsoever. He can neither file a suit to compel the mischievous partner to cooperate for registration, as such a suit is not maintainable, nor can he resort to arbitration if any, because the arbitration proceedings would be hit by Section 69(1) of the Act (Jagdish Chandra Gupta vs. Kajaria Traders (India) Ltd. AIR 1964 SC 1882)."

The court said that:

"The primary object of registration of a firm is protection of third parties who were subjected to hardship and difficulties in the matter of proving as to who were the partners. Under the earlier law, a third party obtaining a decree was often put to expenses and delay in proving that a particular person was a partner of that firm. The registration of a firm provides protection to the third parties against false denials of partnership and the evasion of liability. Once a firm is registered under the Act the statements recorded in the Register regarding the constitution of the firm are conclusive proof of the fact contained therein as against the partner. A partner whose name appears on the Register cannot deny that he is a partner except under the circumstances provided. Even then registration of a partnership firm is not made compulsory under the Act. A partnership firm can come into existence and function without being registered. However, the Maharashtra Amendment effects such stringent disabilities on a firm as in our opinion are crippling in nature. It lays down that an unregistered firm cannot enforce its claims against third parties ...."

thus the court held that : the restrictions placed by sub-section 2A of Section 69 introduced by the Maharshtra Amendment Act, for the reasons given above, are arbitrary and of excessive nature and go beyond what is in the public interest. Hence the restrictions cannot be regarded as reasonable."

"Since sub-section 2A of Section 69 as introduced by the Maharashtra Legislature clearly violates Articles 14, 19(1)(g) and 300A of the Constitution, it is in our opinion ultra vires and is hence declared unconstitutional."

Thus the Supreme Court's decision gives a great relief to business comunity trading through an unregistered firm.

Congratulations to business comunity.

93. Right to water

on 28th April 2009 a bench of the supreme court speaking through M Katzu,J. directed the central govt. to form a committee to solve the water crisis in the country. the court observed that :

"Despite having immense reservoirs of water in the form of the Himalayas in the North and the Arabian sea, Indian Ocean and the Bay of Bengal in the West, South and East of India, there are water shortages everywhere often leading to riots, road blocks and other disturbances and disputes for getting water"...............................

"In our opinion it is science alone which can solve this problem ( as well as the other gigantic problems facing the country)........................

" India has a strong heritage of science. With the aid of science we had built mighty civilizations thousands years ago when most people in Europe (except in Greece and Rome) were living in forests. We had made outstanding scientific discoveries and inventions in the past (see Will Durants' `The Story of Civilization : Our Oriental Heritage). However, we subsequently took to the unscientific path of superstitions and empty rituals, which has led us to disaster. The way out therefore for our nation is to once again turn to the scientific path shown by our ancestors - the path of Aryabhatta and Brahmagupta, Sushrut and Charak, Ramanujan and Raman.".............

" It is indeed sad that a country like India which scientifically solved the problem of town planning 6000 years ago in the Indus Valley Civilization and which discovered the decimal system in Mathematics and Plastic Surgery in Medicine in ancient times, and is largely managing Silicon Valley in U.S.A. today has been unable to solve the problem of water shortage till now. In our opinion there is no dearth of eminent scientists in the field who can solve this problem, but they have not been organized and brought together and not been requested by the Central and State Governments to do their patriotic and sacred duty to solve this problem, nor given the facilities for this."

"In our opinion the right to get water is a part of the right to life guaranteed by Article 21 of the Constitution"..