📘 Frequently Asked Legal Questions
What are the legal grounds for divorce in India?
In India, the legal grounds for divorce vary depending on the religion and the personal law applicable to the parties. For Hindus, the Hindu Marriage Act, 1955 governs divorce. For Muslims, divorce can be under personal Sharia law or through the Dissolution of Muslim Marriages Act, 1939. Christians are governed by the Indian Divorce Act, 1869, and Parsis under the Parsi Marriage and Divorce Act, 1936.
Under the Hindu Marriage Act, grounds for divorce include:
1. **Cruelty** – Physical or mental harm making it impossible to live together.
2. **Adultery** – Voluntary sexual intercourse with another person.
3. **Desertion** – Continuous desertion for at least 2 years without any justification.
4. **Conversion** – Conversion to another religion.
5. **Mental Disorder** – Unsound mind or severe mental illness.
6. **Incurable Disease** – Like leprosy (though repealed in recent amendments).
7. **Renunciation** – Renouncing the world and entering religious order.
8. **Presumed Dead** – Absence for 7 years with no contact.
Apart from these, **mutual consent divorce** is a significant provision where both spouses agree to dissolve the marriage. Conditions include:
- At least 1 year of marriage.
- Mutual agreement.
- Living separately for a year or more.
- No chance of reconciliation.
Muslim men can divorce via **Talaq**, **Talaq-e-Biddat** (now banned), and **Talaq-e-Ahsan**. Muslim women can seek divorce under 9 specified grounds including cruelty, impotence, and absence.
For Christians, grounds include adultery, conversion, desertion, or cruelty.
Divorce involves filing a petition in the Family Court. Depending on whether it's contested or mutual, proceedings and timelines vary. Mutual consent divorce may be completed within 6 months to 1 year. Contested divorces may take 2–5 years or more.
Legal advice is crucial to evaluate evidence, draft petitions, and negotiate terms of alimony, child custody, etc.
Reach out to Advocate Panchanand Shaw for expert divorce representation in Kolkata.
How can I evict a tenant legally?
To legally evict a tenant in India, landlords must follow a proper legal process based on the applicable rent control laws of their state, and the agreement made with the tenant.
First, review the terms of the rental agreement. A well-drafted rent agreement typically includes duration, rent amount, termination clause, notice period, and grounds for eviction. In most states, eviction can be initiated for reasons such as non-payment of rent, subletting without consent, causing damage to property, nuisance, illegal activities, or expiry of the lease term.
The landlord must send a **legal notice** to the tenant, usually providing a 15–30 day period to vacate. This notice must state valid reasons for eviction. If the tenant fails to comply, the landlord can file an **eviction suit** under the **Rent Control Act** of the respective state in the **Civil Court**.
The court will issue summons and allow the tenant to present a defense. The court evaluates both sides and may pass an order for eviction. Once the decree is passed, the tenant is legally required to vacate. If not, the landlord can file for **execution of decree**, after which the tenant can be forcefully evicted with police help.
It's important not to use force or change locks without court order as it can lead to criminal charges against the landlord.
Hiring an experienced lawyer is critical to draft the notice, file the eviction suit, and argue the case effectively. Advocate Panchanand Shaw provides expert assistance in landlord-tenant disputes across Kolkata.
What is anticipatory bail and how to apply?
Anticipatory bail is a legal provision that protects individuals who apprehend arrest for a non-bailable offense. Under **Section 438 of the Criminal Procedure Code (CrPC)**, a person can apply for anticipatory bail even before being arrested.
It is typically sought in cases where there is a chance of false implication or personal enmity. Common scenarios include matrimonial disputes, business rivalries, or land disputes.
To apply for anticipatory bail, a petition must be filed before the **Sessions Court** or **High Court**. The application should mention the facts of the case, the FIR number (if available), reasons for apprehension of arrest, and supporting documents like previous complaints or summons.
The court may issue a notice to the police and the public prosecutor. If satisfied, it grants bail with conditions such as:
- Cooperating with investigation
- Not leaving jurisdiction
- Not tampering with evidence or witnesses
Anticipatory bail can be regular or time-bound, and courts may cancel it if conditions are violated.
Timely filing and a well-drafted application play a crucial role. Advocate Panchanand Shaw has successfully secured anticipatory bail for clients in complex cases involving Sections 498A, 420, 376, 307 IPC, etc.
Can I file a case for cheque bounce under Section 138?
Yes, if a cheque issued to you is dishonored due to ‘insufficient funds’ or ‘exceeds arrangement’, you can file a criminal complaint under **Section 138 of the Negotiable Instruments Act, 1881**.
Steps involved:
1. **Cheque Dishonor**: Must be presented within 3 months of issue date.
2. **Demand Notice**: A legal notice must be sent to the drawer within 30 days of dishonor, demanding payment within 15 days.
3. **Failure to Pay**: If the drawer fails to pay, you can file a complaint in the Magistrate Court within 30 days from expiry of 15-day period.
Documents required:
- Original cheque
- Bank memo of dishonor
- Copy of demand notice
- Postal receipt or email proof
- Proof of legal liability (loan, invoice, etc.)
Punishment: Up to 2 years imprisonment or fine up to double the cheque amount, or both. Compensation can also be sought through a civil suit.
Cheque bounce cases are technical and must be handled meticulously. Contact Advocate Panchanand Shaw for swift legal action under NI Act.
What is the procedure for mutual consent divorce?
Mutual Consent Divorce is the simplest and fastest way to end a marriage legally under **Section 13B of the Hindu Marriage Act, 1955** or similar provisions under other personal laws.
Eligibility:
- Husband and wife have been living separately for at least 1 year.
- Both agree that marriage has broken down irreparably.
- No coercion, fraud, or undue influence in filing.
Procedure:
1. **Joint Petition**: Filed in Family Court with affidavit by both spouses.
2. **Cooling Period**: Minimum 6 months waiting period (can be waived by Court under SC guidelines).
3. **Second Motion**: After cooling period, both appear again to reaffirm consent.
4. **Decree of Divorce**: Court records satisfaction and grants divorce.
Documents:
- Marriage certificate
- Address proof
- Passport-size photos
- Proof of separation
- Details of any settlement (alimony, custody)
Timeline: 6 to 18 months.
It ensures dignity and privacy for both parties. Advocate Panchanand Shaw ensures hassle-free mutual divorce with full documentation and court process support.
What steps to take after a cyber fraud?
If you're a victim of cyber fraud in India (UPI scam, fake links, phishing, OTP theft), immediate action can help recover losses.
1. **Freeze Transaction**: Contact your bank's fraud department and request immediate blocking of your account or card.
2. **Dial 1930**: Call the **Cyber Crime Helpline** for instant response to fraud.
3. **File Online Complaint**: Visit [https://cybercrime.gov.in](https://cybercrime.gov.in) and register a complaint with necessary evidence.
4. **Gather Evidence**: Screenshot of messages, sender numbers, fake links, bank statements.
5. **FIR at Police Station**: Submit a written complaint under IPC sections (419, 420, 66C, 66D IT Act).
You can also approach the local **Cyber Cell**. In major frauds, an investigation is initiated. Victims are advised to avoid sharing OTPs or installing screen-sharing apps.
Consult Advocate Panchanand Shaw for expert help in cyber fraud recovery, notice to banks, and legal filing for refund or damages.
How to register a will in India?
Registering a will is not mandatory in India, but it adds legal credibility and reduces the risk of disputes. The Indian Succession Act, 1925, governs the execution and validity of wills for most communities, except Muslims who are governed by personal laws.
To register a will:
1. **Draft the Will**: Include details of the testator (person writing the will), list of assets, names of beneficiaries, and distribution instructions. Appoint an executor who will carry out the will.
2. **Sign in Presence of Witnesses**: The testator must sign in the presence of two independent witnesses, who also sign the will. Witnesses should not be beneficiaries.
3. **Go to Sub-Registrar’s Office**: The testator must visit the local Sub-Registrar under the Indian Registration Act.
4. **Submit Documents**:
- Original will
- ID and address proof of testator and witnesses
- Passport-sized photographs
- Registration fee (varies by state)
5. **Biometric & Photograph**: The Registrar records biometric data and photograph.
6. **Registration**: Will is officially recorded and returned with a registration number.
The will can be revoked or changed anytime before death. A registered will helps prevent forgery and challenges in court. It's advisable to store a copy in a safe and inform the executor and family.
Consult Advocate Panchanand Shaw for legal drafting and registration assistance to protect your legacy.
What are the rights of a wife under 498A IPC?
Section 498A of the Indian Penal Code protects women from cruelty by their husband or in-laws. ‘Cruelty’ includes physical or mental harassment, particularly related to dowry demands.
Rights of the wife under 498A:
- **File FIR**: A wife can file an FIR at any police station or women’s cell alleging cruelty.
- **Immediate Arrest**: The police may register an FIR and arrest the accused, but recent SC guidelines mandate preliminary inquiry before arrest.
- **Protection Orders**: Can seek protection under Domestic Violence Act for residence, maintenance, and no-contact orders.
- **Right to Residence**: Wife cannot be evicted from shared household without court order.
- **Maintenance**: Can claim maintenance under CrPC Section 125 or DV Act.
- **Counseling & Mediation**: Many police and court setups encourage mediation before full trial.
- **Trial**: Offense is cognizable and non-bailable, trial occurs in Magistrate Court.
However, misuse of 498A has led courts to add safeguards. Legal counsel is important to ensure fair enforcement. Advocate Panchanand Shaw represents victims and also offers defense in false 498A cases.
Can police refuse to register an FIR?
No, under **Section 154 of the CrPC**, police are duty-bound to register an FIR for a cognizable offense. Cognizable offenses include murder, rape, theft, dowry harassment, etc. Police must register the case and begin investigation.
In case of refusal:
1. **Write to SP**: Send a written complaint to the Superintendent of Police.
2. **Judicial Magistrate**: File a complaint under Section 156(3) CrPC to direct police to register FIR.
3. **Online Complaint**: Use police website or national portals (like NCRP).
4. **RTI Inquiry**: File RTI to ask why FIR was not registered.
5. **High Court Writ**: File a writ petition for violation of fundamental rights.
Supreme Court in *Lalita Kumari v. State of UP (2013)* held that police must register FIR on receiving info of cognizable offense.
Delays weaken cases. Advocate Panchanand Shaw can help draft legal complaints, RTI, and court filings for FIR registration.
Is online defamation punishable?
Yes, online defamation is punishable under both civil and criminal law in India. If someone publishes false, harmful content about you on websites, social media, or emails, you have legal remedies.
Criminal Defamation:
- Under **Section 499 and 500 of IPC**, publishing any false statement that harms a person’s reputation is an offense.
- Punishment: Up to 2 years jail, fine, or both.
- Complaint must be filed before Magistrate within 3 years.
Cyber Defamation:
- Section 66A (struck down) replaced by provisions in IT Act and IPC.
- File complaint with **Cyber Cell** or police station.
- Evidence: Screenshots, URLs, post metadata.
Civil Defamation:
- File a civil suit claiming monetary damages.
- Court may also issue injunction to remove/postpone further publication.
Also, platforms like Facebook, Instagram, and YouTube can be sent takedown notices under IT Rules 2021.
Consult Advocate Panchanand Shaw to file FIRs, send legal notices, or sue for damages in cases of social media defamation or false news.
