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"..

92. Age in view of amendments in Juvenile Justice Act

In Hari Ram vs State of Rajasthan and Another the SUPREME COURT on 05 th May 2009 evaluated the Juvenile Justice (Care and Protection of Children) Act, 2000, ss.2(k), 2(l), 7A, 15, 20, 49 and 64 (Provisions as stood amended vide amendment Act, 2006) - Juvenile Justice Rules, 2007, rr. 12 and 98 . the question was: could a person who was not a juvenile within the meaning of the 1986 Act when the offence was committed, but had not completed 18 years, be governed by the provisions of the JJ Act, 2000, and be declared as a juvenile in relation to the offence alleged to have been committed by him? The Supreme Court answered in positive on conjoint reading of ss. 2(k), 2(l), 7A, 20 and 49 r/w rr. 12 and 98 of Rules, 2007 .The court held that Scheme is rehabilitatory in nature and not adversarial. the court imphasised upon requirement of complete change of mind set for implementing the said law. It was held that two main questions on the subject on which controversy at hand depends, is at rest now; first question was settled in 'Pratap Singh vs. State of Jharkhand & Another [(2005) 3 SCC 551]' after which amendment was brought in 2006 in JJ Act 2000, second question was also settled therein but is now overruled vide such amendment; firstly, juvenility of a person in conflict with law has to be reckoned from the date of the incident and not from the date on which cognizance was taken by the Magistrate, secondly, provisions of JJ Act, 2000 were also made applicable to juveniles who had not completed eighteen years of age on the date of commission of offence. Thus all persons who were below the age of 18 years on the date of commission of the offence even prior to 1st April, 2001(commencement date of JJ Act, 2000), would be treated as juveniles, even if the claim of juvenility was raised after they had attained the age of 18 years on or before the date of commencement of the Act and were undergoing sentence upon being convicted. such position stands re-emphasised by virtue of amendments introduced in s. 20, by inserting proviso and explanation.

91. s. 138,N.I.Act - when drower says cheque was lost

Whether return of a cheque by the bank on the ground that it was reported lost by the drawer would attract the penal provisions contained in Section 138 of the Negotiable Instruments Act, 1881 (for short "the Act")?

In Raj Kumar Khurana v. State ( NCT) of Delhi decided by apex court on 05/05/09 the appellant kept two blank cheques in his office along with some stamp papers. They were said to have been stolen from his office. Information as regards missing of the said cheques was given to the bank and he lodged a First Information Report with regard thereto.

The blank cheques were allegedly filled up on 24.06.2001. They were presented before the bank but the same were returned dishonoured with the remarks "said cheque reported lost by the drawer".

After complaint being filed appellant filed an application under Section 482 of the Code in the High Court of Delhi praying for quashing of the proceedings under s. 138 0f N.I.Act on the premise that the same was not maintainable. The High Court dismissed the application u/s 482.

On appeal the supreme court held that a bare perusal of s. 138 would clearly go to show that by reason thereof a legal fiction has been created. A legal fiction, as is well known, although is required to be given full effect, has its own limitations. It cannot be taken recourse to for any purpose other than the one mentioned in the statute itself .A penal provision created by reason of a legal fiction must receive strict construction. Such a penal provision, enacted in terms of the legal fiction drawn would be attracted when a cheque is returned by the bank unpaid. Such non-payment may either be: (i) because of the amount of money standing to the credit of that account is insufficient to honour the cheque, or (ii) it exceeds the amount arranged to be paid from that account by an agreement made with that bank.

The supreme court held that the parameters for invoking the provisions of Section 138 of the Act, thus, being limited, refusal on the part of the bank to honour the cheque would not bring the matter within the mischief of the provisions of Section 138 of the Act.

In this case a contention was also raised that the appellant did not have sufficient funds in his bank account. But Such an allegation had not been made in the complaint petition.The supreme court said that in any event, it was for the bank only to say so, as the complainant is not supposed to have knowledge in regard to the amount available in the account of the appellant.

90. 'Post' and 'vacancy'

The expression "posts" and "vacancies," often used in the executive instructions providing for reservations, are rather problematical. The word "Post" means an appointment, job, office or employment. A position to which a person is appointed. "Vacancy" means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a 'post' in existence to enable the 'vacancy' to occur. The cadre-strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As consequence the percentage of reservation has to be worked out in relation to the number of post which form the cadre-strength. The concept of 'vacancy has no relevance in operating the percentage of reservation. - R.K. Sabharwal and others, Petitioners v. State of Punjab AIR1995 SC1371

89. Sentencing - Provocation, a relevant consideration

In Tan Rui Leen Russell v Public Prosecutor
[2009] SGHC 102 , decided on 27th april 2009, the singapore high court held that "Where an offence is committed as a result of a loss of self-control brought about by provocation, the culpability of the offender is reduced because, given that he committed the offence concerned while deprived of his self-control, he might not (vis-à-vis an offence which results in injury to the victim) have intended to cause the extent of the injuries which he in fact caused to the victim. Loss of self-control may be regarded as a form of temporary and transient impairment of the offender’s cognitive judgment. Where provocation has substantially or fully deprived the offender of his self-control, a deterrent sentence, whether in the form of a long term of imprisonment or caning, is pointless. The objective of a deterrent sentence will only be met if the sentence imposed can temper the offender’s propensity to lose his self-control. But, human beings are not angels. Parliament has recognised this by stipulating that grave and sudden provocation is sufficient to reduce the offence of murder to that of culpable homicide not amounting to murder (see Exception 1 to s 300 of PC 1985). For the same reason, the s 335 offence (viz, causing grievous hurt on provocation) is only punishable with imprisonment of up to four years and/or a fine of up to $2,000, as opposed to the s 326 offence (the punishment for which is imprisonment for life or for a term which may extend to ten years and, if the court deems it appropriate, either a fine or caning)."

Is retribution an applicable sentencing consideration in india also ?

88. Family law self help center

On the lines of alaska court system, we can also establish family law self help centers. In Alaska the center helps in following manner:
What is the Family Law Self-Help Center?

The Family Law Self-Help Center is a statewide service provided by the Alaska Court System to help people represent themselves in family law cases. The Center explains court procedures and which forms are options in different situations. This information helps people to resolve their family law disputes in court and move their cases along faster.

The Center currently provides information about Divorce, Dissolution, Custody, Paternity, Child Support, Domestic Violence, and referral information about Adoption, Annulment, Change of Name, Emancipation, Grandparent Rights, Legal Separation, Powers of Attorney & Health Care Directives, and Guardianship/Conservatorship.

Who can use the Family Law Self-Help Center?

All people seeking information about Alaska family law who are NOT represented by a lawyer.

An Important Caution The Self-Help Center does not provide legal advice or represent you in court. You are responsible for your own case. The Center is staffed by skilled neutral people who provide valuable legal information and educational materials as a public service. There is no attorney-client relationship between you and the staff. The Center does not take the place of an attorney, and cannot advise you on strategy or tell you what to say in court. You are strongly encouraged to seek the services of a private attorney for legal advice and strategy. Your communications with the staff are not confidential and the staff is available to help both parties. The Center personnel are not acting on behalf of the court or any judge. The judge in your case may require you to change a form or to submit a different one. The judge is not required to grant your request.

How can you get help from the Family Law Self-Help Center?

The Center provides services in 2 ways:

1. this website which includes detailed information and forms for each stage of the case
2. a statewide toll-free telephone Helpline which is staffed by highly trained court employees who can speak to you about your case. The Helpline is very busy. We encourage you to read the information on this website before calling - the answer to your question may be easier to find than you think. If you decide to call for help with filling out a form, be sure to print it out and have all of your other paperwork handy.

What happens when you call?

When you call, staff will describe what we can and cannot do. Then, we will ask you some basic questions to better understand what is going on in your case. This will help us give you appropriate information about forms and procedures to help you handle your case. The staff will also give you referral information to other legal and non-legal resources that might be helpful. Staff will provide follow-up assistance as appropriate.

87. Precedents- some guidelines

• Stare decisis is not a dogmatic rule allergic to logic and reason – it does not prohibit a fresh look in changed facts and circumstances - AIR 2006 SUPREME COURT 212 "State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat"
• -Binding force attaches only to ratio decidendi of a judgment - every observation found in a judgment is not binding. AIR 2006 SC25
• -Decision in election petition - Cannot be treated as judicial precedent. AIR 2006 SC 543
• -Foreign case Law - When Law in India is clear and settled, no occasion arises to rely upon foreign case Law laying down a wider proposition. AIR 2006 SC1148
• A decision is available as a precedent only if it decides a question of law. AIR 2004 SC 2890 "Mehboob Dawood Shaikh v. State of Maharashtra"
• when court based its decision on basis of concession, the decision not a binding precedent AIR 2001 SUPREME COURT 1273 "Kulwant Kaur v. Gurdial Singh Mann"
  

86. Important points regarding s.138, NI Act

To constitute an offence under s. 138 of NI Act, following ingredients must be fulfilled :

1. cheque should have been issued to discharge any debt or liability
2. cheque should have been presented within 6 months or its validity whichever is earlier
3. the payee should have issued a notice in writing to the drawer within 30 days of dishonor of cheque
4. after receipt of the said notice the drawer has failed to pay the cheque amount within 15 days of receipt of notice. offence is not committed if payment is made within 15 days but even if payment is made on 16^th day one can not escape from rigors of s. 138.
5. commission of offence is governed by s. 138 and prosecution is governed by s. 142. under criminal law commission of offence is one thing and prosecution is other
6. notice is not necessary when drawer can not after due search be found
7. limitation for filing a complaint before magistrate is 30 days from the date of expiry of 15 days after receipt of notice by drawer.

Compounding: the offence under the NI Act is compoundable.

Trial: trial for this offence will be conducted in summary manner.

Law commission’s recommendation: the law commission has recommend

85. Remand of accused on change of investigating agency

Whether with the change of an investigating authority, police custody of the accused on remand can be sought for, although cognizance of theoffence had already been taken ?

In Mithabhai pashabhai patel v. State of Gujrat (Crl. Appeal no 941 of 2009) decided by supreme court on 06/05/2009, the accused were remanded to police custody in terms of sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973. Upon completion of investigation, a charge sheet was submitted. The matter was committed to the Sessions Court and cognizance of the offence was taken by the Sessions Judge. They

were granted bail by the HighCourt .

The matter had came up before the supreme Court and the supreme court appointed a Special Investigation Team. Pursuant to or in furtherance of the said direction the State of Gujarat issued a Notification on 1st April, 2008 constituting a Special Investigation Team to investigate into cases arising out of Godhra incident and communal riots erupted thereafter in the year 2002.

Thereafter An application was filed sessions judge by Assistant Superintendent of Police, seeking remand of the

accused for a period of 14 days. The reasons assigned therefor were that that offences under some provisions were added and investigation with respect to the said offences from the accused could not be carried out therefor in respect of certain points mentioned therein.

By reason of a judgment and order dated 23rd May, 2008 the said application was rejected by the learned Sessions Judge, on the ground that Police remand can be granted only by the committal court. Therefore, after getting cancellation of bail order, applicant member of Special Investigation Team is also directed to first of all approach the learned Judicial Magistrate First Class Prantij-committal court for Police custody in the present case because this court is a Sessions Court not competent to grant remand order unless and until that prayer is

rejected by Magistrate.

Against the order of sessions judge, the State preferred a revision application before the High Court and the High Court reversed the decision of the Sessions Judge and directed that the appellants be remanded to custody. The High Court in support of its order opined :

a) Having regard to the constitution of the Special InvestigatingTeam, further investigation is required to be made and Section 167(2) of the Code gives ample power for further investigation.

b) Further investigation is required to be made in the facts and circumstances of the case as earlier investigation was carried out in a most perfunctory manner.

c) Since new sections are added, further enquiry/investigation would be required to be conducted in the matter and the investigating agency cannot be denied such a right and to have the custody of the appellants. For the said purpose, the fact that the appellants had been granted bail would be of no relevance.

d) Section 167 (2) and not the proviso appended to Section 309 (2) of the Code would be applicable in a case of this nature.

e) As the Special Investigating Team has the power to reinvestigate, it is not necessary to seek for cancellation of bail.

f) The committal order having been passed, the Sessions Judge should have exercised its jurisdiction under Section 397 of the Code.

On appeal the supreme court held that : Indisputably the investigating agency in terms of sub-section (8) of Section 173 of the Code can pray before the Court and may be granted permission to investigate into the matter further. There are, however, certain situations, where such a formal request may not be insisted upon. It is, however, beyond any cavil that `further investigation' and `re- investigation' stand on different footing. It may be that in a given situation a superior court in exercise of its constitutional power, namely under Articles 226 and 32 of the Constitution of India could direct a `State' to get an offence investigated and/or further investigated by a different agency.Direction of a re-investigation, however, being forbidden in law, no superior could would ordinarily issue such a direction. Besides discussing the case law elaborately, the supreme court cited in Ramachandran v. R. Udhayakumar, [(2008) 5 SCC 413] wherein Pasayat, J opined as under :-

"7. At this juncture it would be necessary to take note of Section 173 of the Code. From a plain reading of the above section it is evident that even after completion of investigation under sub-sectio (2) of Section 173 of the Code, the police has rightto further investigate under sub-section (8), but not fresh investigation or reinvestigation..."

The supreme court held that “a distinction, therefore, exists between a re-investigation and further investigation.

The pre- cognizance jurisdiction to remand vested in the subordinate courts, therefore, must be exercised within the four-corners of the Code.The power to remand, indisputably, is vested in a Magistrate in terms of sub-section (2) of Section 167 of the Code of criminal procedure."

The power of remand in terms of the aforementioned provision is to be exercised when investigation is not complete. Once charge-sheet is filed and cognizance of the offence is taken, the court cannot exercise its power

under sub-section (2) of Section 167 of the Code. Its power of remand can then be exercised in terms of sub-section (2) of Section 309 Appellants had been granted bail. They are not in custody of the court. They could not be taken in custody ordinarily unless their bail was not cancelled. The High Court, in our opinion, was not correct in holding that as further investigation was required, sub-section (2) of Section 167 of the Code gives ample power for grant of police remand.

84. Conditional legislation and delegated legislation

In the case of conditional legislation, the legislation is complete in itself but its operation is made to depend on fulfillment of certain conditions and what is delegated to an outside authority, is the power to determine according to its own judgment whether or not those conditions are fulfilled. In case of delegated legislation proper, some portion of the legislative power of the Legislature is delegated to the outside authority in that, the Legislature, though competent to perform both the essential and ancillary legislative functions, performs only the former and parts with the latter, i.e., the ancillary function of laying down details in favour of another for executing the policy of the statute enacted. The distinction between the two exists in this that whereas conditional legislation contains no element of delegation of legislative power and is, therefore, not open to attack on the ground of excessive delegation, delegated legislation does confer some legislative power on some outside authority and is therefore open to attack on the ground of excessive delegation.

In Sardar Inder Singh v. State of Rajasthan, AIR 1957 SC 510 it was laid down that when an appropriate Legislature enacts a law and authorizes an outside authority to bring it into force in such area or at such time as it may decide, that is conditional and not delegated legislation. Following this decision in State of T.N. v. K Sabanayagam, AIR 1998 SC 344 the Supreme Court held:

“The distinction between conditional legislation and delegated legislation is this that :

in the former the delegate's power is that of determining when a legislative declared rule of conduct shall become effective : Hampton and Co. v. U.S., (1927) 276 US 394, and the latter involves delegation of rule-making power which constitutionally may be exercised by the administrative agent. This means that the legislature having laid down the broad principles of its policy in the legislation can then leave the details to be supplied by the administrative authority. In other words by delegated legislation the delegate completes the legislation by supplying details within the limits prescribed by the statute and in the case of conditional legislation the power of legislation is exercised by the legislature conditionally, leaving to the discretion of an external authority the time and manner of carrying its legislation into effect as also the determination of the area to which it is to extend; [The Queen v. Burah, (1978) 3 App Cas 889; Russel v. The Queen, (1882) 7 App Cas 829, 835; King Emperor v. Benoarilal Sarma, (1944) 72 Ind App 57 : (AIR 1945 PC 48); Sardar Inder Singh v. State of Rajasthan, (1957) SCR 605 : (AIR 1957 SC 510)]. Thus when the delegate is given the power of making rules and regulations in order to fill in the details to carry out and subserve the purposes of the legislation the manner in which the requirements of the statute are to be met and the rights therein created to be enjoyed it is an exercise of delegated legislation. But when the legislation is complete in itself and the legislature has itself made the law and the only function left to the delegate is to apply the law to an area or to determine the time and manner of carrying it into effect, it is conditional legislation."

The supreme court said that conditional legislation can be broadly classified into three categories :-

In the first category when the Legislature has completed the task of enacting a Statute, the entire superstructure of the legislation is ready but its future applicability to a given area is left to the subjective satisfaction of the delegate who being satisfied about the conditions indicating the ripe time for applying the machinery of the said Act to a given area exercises that power as a delegate of the parent legislative body. When the Act itself is complete and is enacted to be uniformly applied in future to all those who are to be covered by the sweep of the Act, the Legislature can be said to have complied its task. All that it leaves to the delegate is to apply the same uniformly to a given area indicated by the parent Legislature itself but at an appropriate time. This would be an act of pure and simple conditional legislation depending upon the subjective satisfaction of the delegate as to when the said Act enacted and completed by the parent Legislature is to be made effective. As the parent Legislature itself has laid down a binding course of conduct to be followed by all and sundry to be covered by the sweep of the legislation and as it has to act as a binding rule of conduct within that sweep and on the basis of which all their future actions are to be controlled and guided, it can easily be visualised that if the parent Legislature while it enacted such law was not required to hear the parties likely to be affected by the operation of the Act, its delegate exercising an extremely limited and almost ministerial function as an agent of the principal Legislature applying the Act to the area at an appropriate time is also not supposed and required to hear all those who are likely to be affected in future by the binding code of conduct uniformly laid down to be followed by all within the sweep of the Act as enacted by the parent Legislature. However, there may be second category of conditional legislations wherein the delegate has to decide whether and under what circumstances a completed Act of the parent legislation which has already come into force is to be partially withdrawn from operation in a given area or in given cases so as not to be applicable to a given class of persons who are otherwise admittedly governed by the Act. When such a power by way of conditional legislation is to be exercised by the delegate a question may arise as to how the said power can be exercised. In such an eventuality if the satisfaction regarding the existence of condition precedent to the exercise of such power depends upon pure subjective satisfaction of the delegate and if such an exercise is not required to be based on the prima facie proof of factual data for and against such an exercise and if such an exercise is to uniformly apply in future to a given common class of subjects to be governed by such an exercise and when such an exercise is not to be confined to individual cases only, then even in such category of cases while exercising conditional legislative powers the delegate may not be required to have an objective assessment after considering rival versions on the data placed before it for being taken into consideration by it in exercise of such power of conditional legislation.

Where the delegate proceeds to fill up the details of the legislation for the future which is part of the integrated action of policy-making for the future, it is part of the future policy and is legislative. But where he merely determines either subjectively or objectively - depending upon the "conditions" imposed in the Statute permitting exercise of power by the delegate - there is no legislation involved in the real sense and therefore, applicability of principles of fair play, consultation or natural justice to the extent necessary cannot be said to be foreclosed. The fact that in such cases of 'conditional legislation' these principles are not foreclosed does not necessarily mean that they are always mandated. In a case of purely ministerial function or in a case where no objective conditions are prescribed and the matter is left to the subjective satisfaction of the delegate no such principles of fair play, consultation or natural justice could be attracted. That is because the very nature of the administrative determination does not attract these formalities and not because the determination is legislative in character. But there may be a third category of cases wherein the exercise of conditional legislation would depend upon satisfaction of the delegate on objective facts placed by one class of persons seeking benefit of such an exercise with a view to deprive the rival class of persons who otherwise might have already got statutory benefits under the Act and who are likely to lose the existing benefit because of exercise of such a power by the delegate. In such type of cases the satisfaction of the delegate has necessarily to be based on objective consideration of the relevant data for and against the exercise of such power. May be such an exercise may not amount to any judicial or quasi-judicial function, still it has to be treated to be one which requires objective consideration of relevant factual data pressed in service by one side and which could be tried to be rebutted by the other side who would be adversely affected if such exercise of power is undertaken by the delegate. In such a third category of cases of conditional legislation the Legislature fixes up objective conditions for the exercise of power by the delegate to be applied to past or existing facts and for deciding whether the rights or liabilities created by the Act are to be denied or extended to particular areas, persons or groups. This exercise is not left to his subjective satisfaction nor it is a mere ministerial exercise