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Conjugal Rights How to be Restored

Marriage is one of the beautiful and one of the important stages of everyone's life. It is a life-changing decision of two people who agreed to share their life with each other. But no one can predict the future, sometimes the two people who agreed to share their life might face problems in it. Marriage is considered to be a roller coaster ride which means sometimes up and sometimes down, it depends on the couple whether they are able to face the downs with the ups. Sometimes they are not, when they are not then they seek happiness in being apart from either by judicial separation or by divorce. In this blog, we will discuss what conjugal rights mean? Who can file for restitution of conjugal and where? under which law restitution of conjugal rights can be filed? How is a denial of conjugal rights grounds for divorce ?Conjugal Rights: The couple who are married agreed to share their life which means they have certain duties and responsibility towards each other. Conjugal Rights also mean the same when the couple is married they have certain matrimonial rights which should be performed by both the spouses. Conjugal Rights includes:1.    Living together: The spouses or the married couple should live together.2.    Marital intercourse: The spouses or the married couple have rights and duties together with each other and have physical or sexual relationships.3.    Comfort to each other: The spouses should give comfort to each other like; emotional and mental comfort.4.    Matrimonial Obligation: The married couple is supposed to share the responsibility of the households as well. Since the two people are sharing their life one person cannot take responsibility for everything which means they have to share the household chores.Laws that talks about conjugal rights are as follows:1.    Section 9 of The Hindu Marriage Act .2.    Section 32 of the Indian Divorce Act.3.    Section 22 of the Special Marriage Act.4.    Section 36 of The Parsi Marriage and Divorce Act.Restitution of Conjugal Rights: If any of the spouses refuse to live together or withdraw herself/himself from the society of their respective halves for no reason or refuse to enjoy the conjugal rights. Court to maintain gender equality provided some legal provisions to let the spouses have their rights. If the spouses are not enjoying the conjugal rights then the other spouse can file suit for restitution of conjugal rights. To file the suit for restitution of the conjugal rights the partner who is filing has to prove it, and certain condition needs to be fulfilled to file suit for restitution of conjugal rights:1.    The defendant has refused from cohabitation or is withdrawing from the society of the other spouse or petitioner. One of the most important things need to keep in mind that it is not necessary that they are not living together makes the other partner file suit for restitution of conjugal rights, if they are in contact or communicating and staying away is due to work or for some other valid reason then it will not be considered as a refusal from the society.2.    The statement made and mentioned by the petitioner should be true and no false statement had been made and there has to be unreasonable ground for the refusal from the society of the significant half.3.    If the relief or the application is being denied then there should not be any legal grounds mentioned for that.Procedure to file the suit for restitution of conjugal rights: When it comes to filing any type of suit or case it needs to be done in a proper manner and there are certain procedures that need to be followed by the person who is initiating any legal proceedings against any person. In this case, the procedure is as follows:1.    The spouse who wants to file the suit for restitution should contact a lawyer specialized in such cases, he/she will file the application on your behalf in the district court from which it will be transferred to High Court.2.    From there a petition copy will be sent to the other spouse or the other partner, also the date of the hearing regarding the matter.3.    On the given date of hearing both the husband and the wife has to be present in the court for the case hearing.4.    The court will send them to the counselor for their case where they will describe their issues and try to resolve the matter. In general, the court will send them for 3 sessions and there will be a 20 days time gap between each session.5.    After the 3 counseling sessions, the judge will pass the decree either in favor of the petitioner or defendant depending upon the statements of the parties and the counselor.Rejection of the application of restitution of conjugal rights: There are certain cases where the court may deny the application for the restitution of conjugal rights, but there has to be a proper reason for the denial of the conjugal rights which are as follows:1.    If the spouse or the defendant is staying away or apart is due to any type of matrimonial issues or problems then the application may be denied.2.    If the spouse or the petitioner has committed any type of misconduct or any bad behavior or there is any type of abuse, then the application for restitution of conjugal rights may be denied.3.    There is any cruelty from any party or the in-laws it would amount to a rejection of the application.4.    If the parties are causing or willingly dragging the case for no reason then the application may get rejected.What happens when the application is rejected or the proceeding is taking time: Legal proceeding takes time and also depends upon the statements and the evidence if the court is satisfied there is a proper reason for staying apart or the spouse have a valid reason for withdrawing from the other spouse’s society then the court may grant the degree in favor of the defendant.If the petitioner gets rejected or the petitioner loses the case then the petitioner has the right to file a case for judicial separation or for divorce.If the case is taking longer than the petitioner or the court expected then the application may get rejected and the petitioner can file for judicial separation and divorce.If the decree is passed in the favour of the petitioner but the defendants refused to comply or failed to perform and came back within one year then again, the petitioner can file for judicial separation or divorce.Judicial Separation: Sometimes a couple does not want to officially call their marriage off but needs some time to sort things out or need time to think but not ready to part their ways for forever, so they go for judicial separation. It suspends their marriage for some time which makes the couple realize how important their marriage is and the significant half is for them also gives them time to solve the issues they are having.Grounds for judicial separation:1.    Adultery: It is one of the main reasons for judicial, when any of the spouses is sexually involved with someone else or other than the spouse, it is called adultery.2.    Cruelty: When any of the spouses has committed any type of cruelty towards the other spouse. For any type of abuse then it will become the ground for judicial separation.3.    Desertion: When any of the spouses or the party deserts the other spouse or the party without any reason or consent for 2 continuous years then the spouse who gets deserted can file for judicial separation.4.    Unsound Mind: If one of the spouses has an unsound mind or not in his/her senses then the other spouse can file for judicial separation.5.    Conversion: When one of the spouses opt for any other religion or convert himself/herself into some other religion then the other spouse can file for judicial separation.6.    Leprosy: If one of the spouses is suffering from any disease which is incurable or long term then the other spouse can file for the judicial separation.7.    Missing for 7 years: If the spouse is not being found or haven’t seen for 7 years then the other spouse can file for judicial separation.Divorce: When a married couple no longer wants to continue their marriage or are unable to resolve the issues they have or they have any issues which make them unable to continue their marriage, they seek court’s help in dissolving their marriage or getting divorced.Grounds for divorce:1.    Desertion: When any of the spouses leave the other spouse for no reason and without consent then the spouse who is getting deserted can file for divorce.2.    Cruelty: If any spouse mistreats their spouse or behaves badly or abuses verbally or physically then the other spouse can ask for a divorce.3.    Adultery: When any of the spouses are having affairs with some or involved in sexual activity with another person then their spouse the other spouse can file a case for divorce.4.    Unsound Mind: When any of the spouses is insane or becomes insane due to any reason and the other spouse does not want to continue their marriage then he/she can file for divorce.5.    Leprosy: If the spouse is suffering from a disease that is incurable or has a long time effect then the other spouse can ask for a divorce.6.    Conversion: When one of the spouses converts himself/herself into some other religion then the other spouse can file for divorce.7.    Mutual Consent: When both the party or the spouses think that it's better to call their marriage off or think that they are not happy together anymore and should part their ways then they can file for divorce on this ground, where they both agree for it.8.    Customary Divorce: When the divorce is performed by following the rules of the customs is customary divorce.9.    Breakdown of marriage: If the spouses or any one of the party claims that there is no cohabitation of the marriage or they are not enjoying the conjugal rights or there is no restitution of conjugal rights for up to the period of 1 year then they can seek divorce.Cases on Conjugal Rights with respect to Constitutional Validity:T. Sareetha v. T.Venkata Subbaiah: In this case, the Court held that restitution of conjugal rights is a violation of Articles 14, 19, and 21 of the Indian Constitution. Court held that this right violates the freedom of a woman. It took away the rights of the woman that when and how she wants to live her life or consume her marriage. Hence the court held that it should be held void and arbitrary.Harvinder Kaur v. Harmandar Singh: In this case, the court states the objective of restitution of conjugal rights, the court held that the object behind this right is to make the married life stable for husband and wife and to encourage reconciliation and conjugal rights do not talk about sexual intercourse only it talks about the marital relationship overall which makes it valid.Saroj Rani v. Sudarshan Kumar: In this case, the Court held that restitution of conjugal rights is not violating any of the fundamental rights of the spouse or is not violating Article 14,19, or 21 of the Indian Constitution. On the other hands, it is stopping a marriage from being dissolved which means it is serving a social purpose but if any of the spouses is not complying with the decree of restitution of conjugal rights for 1 continuous year then they can get a divorce on this ground as a court cannot force a person to have a physical relationship or sexual intercourse.Conclusion: Hence it is concluded that conjugal rights include all marital rights not just sexual intercourse, conjugal rights talk about the rights of spouses to living together, sharing household chores, fulfilling responsibility as husband or wife towards each other and the family and just because spouses are not living in the same house does not mean they are not cohabiting, if they are having a conversation or communicating that will ask for restitution of conjugal rights. Also, it is not unconstitutional or it does not violate the fundamental rights of the spouses.*****

Posted By

Kishan Dutt Kalaskar Retired Judge

4 days ago

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How to Deal with False Cheque Bounce Case?

A very reputed businessman, who had established various branches of his brand in different cities across India was accused of false cheque bounce case by a bank. The amount charged on him was huge as well. But he took the right decisions quickly without wasting time thinking about how his reputation is now harmed. He collected all the apposite documents and files and contacted a lawyer to  file a legal notice  within the timespan of 30 days. And since it was a false allegation on him, it was not much of a task for the bank to be proven guilty. If he would not have taken the said actions quickly and did not submit the notice on time ,i.e, within 30 days of receiving the notice from the bank, a warrant might have been issued against him and he would also have had to actually pay the amount for the false cheque bounce imputation. These accusations are generally to affect the reputation of a person and bring him down or go to jail. Although it might end up being a mistake on the banks side or the depositor of the cheque in some cases but mostly it is to bring down the prestige and position of the recipient of the cheque in the market.  If you also are incriminated by a false cheque bounce case or just want to be aware about such happenings in the real world, this blog is for you. Everything starting from a basic definition of what is a cheque and cheque bounce to what you can do (other than panicking and stressing out ) if ever you are stuck in such a situation. To under false cheque bounce, first you must know what is a cheque, cheque bounce and the reasons for cheque bounce. Cheque: A Cheque is an important part of the financial system in various countries across the world. A cheque is regarded as an important document which can be used by an individual, company or government for transactions of various amounts. A Cheque is also termed as a negotiable document to transport money in a physical form or even to perform inter-account transfer.Cheque Bounce: The situation of cheque bounce means that the process of depositing cheque in the bank has been unsuccessful. It might be due to several reasons:1.    When there are insufficient funds in the account of the issuer. It is therefore advised to be aware and careful while issuing a cheque to ensure that there is sufficient balance in the account of the issuer. 2.    When the date mentioned on the cheque is disfigured or when the numbers are scribbled or even if the date on the cheque is 3 months old from the present date, then the bank can bounce the cheque.3.    When the signature does not match with the bank’s records.4.    When there is a difference in the amounts mentioned in numbers and words.5.    When the cheque has too many stains or marks.6.    When there is overwriting, scribbling or correction on a cheque. False Cheque Bounce: Many people still prefer making their payments through cheques because of various reasons like cheques allow to make payment to people who do not have a bank account or few are not yet comfortable with net banking. But cheque bounce cases are rising in today’s time and the Indians courts are filled with these cases which are filed under Section 138 of the Negotiable Instruments Act,1881. These cases are usually to extract money from someone or to harm and spoil his/ her reputation. However, some cheque bounce cases amongst these cases are false cases and are not genuine cases which targets some innocent people who then end up facing legal issues because they lack the knowledge on what should be done.How would you deal with a False Cheque Bounce Case?The victim in such cases need not worry much about it as it is a false accusation and generally easily proved with the valid documents that there was enough balance or fund in the bank account of the issuer which would ensure there was no cheque bounce. Some important measures to take when a situation of false cheque bounce arises: 1.    Collecting all the important documents – The most wise and smart thing to do when there is any false accusation to a person is to collect proof which will show him guilty of the charge put on him. Similarly, this case is no different and collecting the relevant documents which would prove me innocent and the bank guilty.2.    Contact the bank and collect information regarding the dishonour of cheque- If your cheque bounces, the bank would send you notice informing you of the same. You have to then contact them and confirm if it has really happened and if it did what are the reasons.3.    Hire a lawyer and reply to the legal notice of the bank – It is not easy to draft a legal notice and you should not take it lightly because once the notice is drafted and sent, you would not be able to change its content and have to stick to it. You would not be able to go against the statement written by you in your notice. So you must consult with a lawyer who deals with cheque bounce cases and reply to the notice about the cheque bounce case which you would have got from the check receiver. The reply should be sent within 30 days of receiving the notice. In many such cases of fraud and false accusation, the case is withdrawn once a legal notice is sent.4.    File a counter case- You are legally allowed to file a counter civil case against the person who has filed a false cheque bounce against you. You can claim compensation for the false accusation. You can also claim the compensation for all the damages and expenses which you might have incurred for dealing with the fraud case with the bank. You can also file a defamation case against the false accuser.Documents required for filing a counter case  1.    Payment invoices 2.    Bill generated when the payment was made3.    The bank account statement4.    Copy of the cheque issued5.    Bank draft cheque It is always a good idea to keep 2-3 copies of each document because sometimes you might have to submit the copies to the authorities dealing with the case. The process becomes quicker and hassle free when the documents are handy. Section 138 in The Negotiable Instruments Act, 1881: Section 138 of the Negotiable Instruments Act 1881 provides the legal recourse to handle the situation of cheque bounce or dishonour of cheque.This section has been very recently decriminalised. On 8 June, 2020 the Ministry of Finance proposed decriminalizing various minor offences “for improving business sentiment and unclogging court processes”, which also include Section 138 of Negotiable Instruments Act, 1881. The main purpose for decriminalising this section is to promote foreign investment in our country. Due to the Coronavirus Disease, the economy of our India has been affected badly and these steps would also help in boosting India’s economy.But every action has its reaction and this step will lead the creditors to lose their confidence in the credibility of the cheque system.Punishment for cheque bounce case: Section 138 of the Negotiable Instruments Act states the dishonour of cheque or cheque bounce is a criminal offence and the punishment includes imprisonment up to two years or monetary penalty or with both. If the court is convinced that you are guilty and the case of the bank has no merit then it will provide you all the charges.Conclusion: False Cheque bounce cases along with other frauds cases are rising each passing day. It is very important to be aware about the different types of fraud and especially fraud related to monetary aspects like cheques because money is obviously involved in any job and work. Going by the saying ‘Precaution is better than cure’, it is always good to have knowledge about these frauds so that you can easily prevent that from happening or in some cases when it is not really in the hands of the person to prevent it, you at least know the cure to it. Having knowledge makes you capable of helping out someone stuck in that situation.*****

Posted By

Kishan Dutt Kalaskar Retired Judge

4 days ago

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Sidhaarth Srivastav

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An Advocate with experience of more than 25 years in litigation and paralegal work in Civil law, Criminal law. Arbitration Law. Corporate law, Consumer law, Insolvency & Bankruptcy code, Property law,Cheque Bouncing cases, Family law, Real Estate law,RERA etc. Sound experience in paralegal work like drafting and vetting of Agreements, MOUs, JVs, JDs, Collaboration, Court pleadings etc. 


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