FIR
A. Section 154 of CrPC define an FIR is a written document prepared by the police when they receive information about the commission of a cognizable offence only. It is is report of information that reaches the police first in point of time and that is why it is called FIR.
A. Anyone who knows about the commission of a cognizable offence can file an FIR. It is not necessary that only the victim of the crime should file an FIR.
A. Failure in the lodging of FIR by public servant in certain cases is punishable under section 166A of IPC. For this failure minimum punishment is 6 months rigorous imprisonment and the maximum punishment is 2 years. Section 166A was inserted by Criminal Law (Amendment) Act, 2013
A. You can meet the Superintendent of Police or other higher officers like Deputy Inspector General of Police and Inspector General of Police and bring your complaint to their notice. You can send your complaint in writing and by post to the SP concerned. If the SP is satisfied with your complaint he shall either investigate the case himself or order an investigation be made.
A. Zero FIR is particularly important in sensitive cases where the reporting of the crime to the justice system should be don as soon as possible so the appropriate steps could be taken to deliver justice to all.
Divorce
A. The parties intending to dissolve marriage are required to wait for at least one year from the date of marriage.
A. In the family court of the city / district where both the partners lived together for the last time, this was their matrimonial home.
A.There are different laws of divorce for different religion. Hindus are governed by Hindu Marriage Act, 1955. Christians are governed by Indian Divorce Act-1869 & The Indian Christian Marriage Act, 1872. Muslims are governed by Personnel laws of Divorce and also the Dissolution of Marriage Act, 1939 & The Muslim Women (Protection of Rights on Divorce) Act, 1986. Similarly, Parsis are governed by The Parsi Marriage & Divorce Act-1936. And there is also a secular law called Special Marriage Act, 1954.
A. The divorce petition is in the form of an affidavit, which is to be submitted to the family court.
A.
Throughout this period of 6 months when the petition is pending in the court, any of the partners is fully permitted to withdraw the mutual consent by filing an application before the court stating that he/she does not wish to seek divorce by mutual consent. In such circumstances, the court grants no divorce decree.
A.Remarriage without getting divorce is a punishable offence with seven years imprisonment.
Sec. 493
A. This section states that any man who deceives or lies to a woman to think that she is his married legally to him and makes her live with him or have sexual intercourse with him will be punished with imprisonment for maximum of ten years and will be fined.
A. Section 493 is classified as a non-cognizable, non bailable, non-compoundable offence which has a punishment of up to 10 years of imprisonment and fine. The offence can be tried by the First class Magistrate.
A. Non-cognizable offences mean less serious offences where the police cannot make arrests without a warrant.
Bailable offence:
Under non bailable offences, the bail of the arrested person is a matter of discretion of the court. (refer to Section 437, Code of Criminal Procedure)
A. It means that in the cases that have been classified under non-compoundable offences, the accused and the victim cannot enter into a compromise or out of court settlement and the complaint once made cannot be withdrawn.
A. The ingredients of section 493 are deceit by the man which has led the woman to believe that they have been married because of which they start living together (cohabitation) or having a sexual intercourse with each other.
In the case Ram Chandra Bhagat v. State of Jharkhand, it has been ruled that the fact of marriage according to the customs and personal laws of the man or the woman does not have to be proved. But the inducement (the events which led someone to do something) by the man to make the woman change her marital status from unmarried to married through deceit has to be proved.
Bigamy ( sec.494 and sec.495 IPC)
A. A person commits bigamy when he/she: When husband or wife living, marries ,but such marriage is void, by reason of its taking place during the life of husband or wife.
A. Bigamy is an offence provided, first husband or wife is alive. Section 5 of the Hindu Marriage Act, 1955, clearly states that a marriage could be valid only if neither of the party has a living spouse at the time of marriage. Section 11 of the Act declares a second marriage to be null and void. Bigamy shall not apply if: the first husband or wife is dead, or the first marriage has been declared void by the Court of competent jurisdiction, or the first marriage has been dissolved by divorce, or the first spouse has been absent or not heard of continually for a space of seven years. The party marrying must inform the person with whom he or she marries of this fact.
A. In Sarla Mudgal v. Union of India (1995 AIR 1531 SC), the Supreme Court held that a man who has adopted Islam and renounced Hindu religion, marries again without taking divorce from the first wife, then such marriage is not legal. The person shall be punished for committing bigamy under section 494 of Indian Penal Code (IPC).
A. The person aggrieved can file a case of bigamy either in court or at the police station. The father of an aggrieved wife can also make a complaint under section 494/495 of the Indian Penal Code. A petition for declaring the second marriage as void can be filed by the parties of second marriage and not the first spouse.
A. The punishment for bigamy is imprisonment, which may extend till 7 years or fine or both. In case the person charged of bigamy has performed the second marriage by hiding the fact of first marriage, then he shall be punished with imprisonment of up to 10 years or fine or both.
IPC 494 and 495 are Non-Cognizable offences, Bailable offences and are tried in the court of Magistrate First Class.
Marriage through fraud (s. 496)
A. IPC Offence: A person with fraudulent intention going through the ceremony of being married knowing that he is not thereby lawfully married.
A. The punishment for IPC 496 is 7 Years + Fine.
A. IPC 496 is a Non-Cognizable.
A. IPC 496 is a Bailable offence.
A. IPC 496 is tried in the court of Magistrate First Class.
To establish a charge under sec. 496 IPC, it is not enough to show that the marriage may be set aside on the ground of fraud or declared a nullity, it is incumbent upon the prosecution to go further and to prove that the accused knew that there was no valid marriage and he has gone through a show of marriage with a fraudulent or ulterior object in view.
POSCO
A. The POCSO Act defines:-
- offences of sexual assault, sexual harassment, pornography and safeguarding the interest and well-being of children.
- It also sets out a child-friendly procedure regarding the recording of evidence, investigation and trial of offences, establishment of special courts and speedy trial of cases.
- The aim of the act is to provide protection to the child at every stage of judicial process.
- The Posco act 2012, defines a child as any person below the age of 18 years and provides protection to children under the age of 18 years from sexual abuse.
- It also intends to protect the child through all stages of judicial process and gives paramount importance to the principal of best interest of the child.
- Any act using a child for sexual gratification of/by the more powerful person.
- Acts of abuse may or may not include touch.
- Child sexual abuse takes place in the context of a relationship where responsibility, trust or power are abused by the perpetrators.
Abortion
A. Abortion is completely safe and legal in India on certain grounds.
A. The Medical Termination of Pregnancy Act, 1971.
A. According to the laws of abortion in India, every woman has a right to freedom to get the healthcare services up to 20 weeks of gestation.
A. From married to unmarried, a woman can abort a child if she is not ready to raise a baby.
A. A medical abortion is performed up to 12 weeks of pregnancy and surgical abortion is performed up to 12 to 20 weeks according to The Medical Termination of Pregnancy Act, 1971.
A. Yes, if there is a minor and unmarried woman, parental consent is required to get an abortion done.
A. No a girl, who is an adult (above 18 years) and unmarried, does not require any parental consent.
A. Abortion can be done if unwanted pregnancy is caused by rape.
A. Yes, legal abortion can be made by the consent of registered medical practitioners.
A. An abortion can be made either in any government hospital or in a private hospital or clinic, with legal permission to carry out abortions.
Sec. 366, 366A, 366B, 372, 373 of the IPC
A. This section states that any person who has kidnapped or abducted a woman with the intention or knowledge of the fact that the she (the woman) will be forced or compelled to marry someone or have an illicit intercourse with someone against her will or forces her to go to a place for the same shall be punished with imprisonment up to ten years and will also be liable to fine
A.Kidnapping as an offence is used for minors. It means only a person who is minor or underage can be kidnapped. Hence, consent of the minor is immaterial for the offence of kidnapping. Whereas, abduction is moving an adult from one place to another against their consent or will. The means used in kidnapping may be force or enticement (luring the minor), but abduction requires force, compulsion or deceit. In kidnapping, the intention of the kidnapper (the accused) is irrelevant, but, in abduction, the intention (guilty mind or mens rea) of the accused is important for determining the guilt of the accused person.
A. For this section, the onus of proof lies on the prosecution to prove that the accused had the intention of forcing the woman to marry someone else against her will or had the knowledge of the same.
A. Any person who is less than 18 years of age is regarded as a minor or an underage person.
Any person who is 18 years or older is considered an adult, person of age or a major.
A. Illicit intercourse means a sexual intercourse between two people who are not married to each other or who are not under any union or a tie which is considered as quasi (almost) marital relation according to the personal laws or custom of either one or both the peoples’ communities.
Section 366 is classified as a cognizable, non bailable, non-compoundable offence which has a punishment of up to 10 years of imprisonment and fine. The offence can be tried by the session courts and the higher courts.
A. It states that any person who kidnaps any minor girl (female) with the motive or knowledge of forcing or seducing that girl into illicit intercourse with another person will be imprisoned for ten years or less and will also be fined.
Section 366A is classified as a cognizable, non bailable, non-compoundable offence which has a punishment of up to 10 years of imprisonment and fine. The offence can be tried by the session courts and the higher courts.
A. It states that any person who imports or brings a girl (female) who is less than 21 years of age to India (from a foreign country) with the intention, motive or knowledge of forcing or seducing that foreigner into an illicit intercourse with another person will be punished with imprisonment of 10 years or less and fine.
Section 366B is classified as a cognizable, non bailable, non-compoundable offence which has a punishment of up to 10 years of imprisonment and fine. The offence can be tried by the session courts and the higher courts.
It states that whoever sells or send any minor person (male, female or transgender) to a person who manages or owns a brothel for the purpose of prostitution, illicit intercourse or for any unlawful or immoral purpose in present or in future will be imprisoned for of maximum 10 years and will be fined.
Section 372 is classified as a cognizable, non bailable, non-compoundable offence which has a punishment of up to 10 years of imprisonment and fine. The offence can be tried by the session courts and the higher courts.
For this section, the onus of proof lies on the accused to prove that the minor was not used or forced into prostitution, illicit intercourse or for any unlawful or immoral purpose after being sent to a person who owns or manages brothels.
The court will presume that the minor (especially female) was sent to the brothel for the purpose of prostitution until the contrary is proved.
A. It states that whoever buys, hires, or employs any minor person (male, female or transgender) for the purpose of prostitution, illicit intercourse or for any unlawful or moral purpose in present or in future will be imprisoned a maximum of 10 years and will be fined.
Section 373 is classified as a cognizable, non-bailable, non-compoundable offence which has a punishment of up to 10 years of imprisonment and fine. The offence can be tried by the session courts and the higher courts.
A.For this section, the onus of proof lies on the accused to prove that the minor was not used or forced into prostitution, illicit intercourse or for any unlawful or moral purpose after being bought by a person who owns or manages brothels.
The court will presume that the minor (especially female) was brought to the brothel for the purpose of prostitution until the contrary is proved.
Acid Attack (Sec. 326A)
The Criminal Law (Amendment) Act, 2013:-
As per the recommendation of Verma Committee, Criminal Law (Amendment) Act, 2013 was passed which inserted 326A in IPC thus making special provisions for acid attacks.
A. Section 326A of the IPC, punishes a person who causes grievous hurt voluntarily by use of acid.
- The offender should have caused permanent/partial damage or deformity to body or
- The act of the offender should have caused injury such as burns/maims/disfigures/disables any parts of the body or
- The act has caused grievous hurt to the victim
- Injury must have been caused by throwing or administering acid on the victim
- Offender should have full knowledge as well as intention to cause such an injury to the victim.
A. Acid has been defined as any substance which has a corrosive nature, it may include bleach, bathroom and toilet acid, Harpic, etc.
A. Life imprisonment or 10 years and fine to the victim. Any fine that is collected under section 326A is granted to the victim for medical expenses.
A. Though acid attack is a crime which can be committed against any man or woman, it has a specific gender dimension in India. Most of the reported acid attacks have been committed on women, particularly young women for spurning suitors, for rejecting the proposal of marriage, for denying dowry etc. The attacker cannot bear the fact that he has been rejected as seek to destroy the body of the women who have dared to stand up to him.
Complaint at NHRC
NHRC is the National Human Rights Commission of India.
A. NHRC does an inquiry or investigates cases of human rights violation that are taken up by the commission suo moto (on its own) or are based on a complaint filed by a victim or any person or on the order of direction of any court.
A. Human Rights means the rights relating to life, liberty, equality and dignity of the any person (human being) guaranteed by the Constitution of India or mentioned in any International Treaties or Conventions which are enforceable by courts in India.
A. The nature of work done by NHRC are-
- At the time of breach of Human Rights.
- When police Officer negligently prevents any violation of the rights.
- It can also intervene in any court proceeding that involves any allegation of violation of human rights with the approval of the court.
- It does jail visits on a regular basis to prisons which are under the state government to keep a check on the persons detained or locked for purpose of the treatment, and also checks on the living conditions of the inmates and makes recommendations accordingly.
- It also checks on the factors like an act of terrorism that prevents the enjoyment of any human rights and makes recommendations.
- The commission studies treaties and international instruments on Human Rights and recommends for their effective implementation.
- Intensive research in human rights is also conducted under the commission’s keen eye.
- Spreads human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights through publications, the media, seminars, and other available means.
NHRC also encourages the efforts of non-governmental organisations and institutions working in the field of human rights.
A. Complaint can be filed through online and offline modes.
A. Online complaint can be filed by going on the NHRC website (www.nhrc.nic.in or https://hrcnet.nic.in/HRCNet/public/webcomplaint.aspx) and following the steps given.
Complaint through offline mode can be made by downloading and filling out the application from the official website of the commission (www.nhrc.nic.in) and submitting it within the given period of time by the following means.
- By post: National Human Rights Commission, Manav Adhikar Bhawan, Block-C, GPO Complex, INA, New Delhi – 110023
- By fax: (011) 23386521
- By email: covdnhrc@nic.in (general)/ jrlaw@nic.in (for complaints)
- Complaints can be made in the 24 hours mobile number of the Commission: +91 9810298900
- If police refuses to make an FIR, then, written complain can be made to the NHRC or State human right commission for it.
There are few guidelines provided by the NHRC for filing of complaints.
The guidelines are as follows:
- Complains should be made by the victim or any other person on their behalf.
- Complains should be in Hindi or English or any language included in eighth schedule of the Constitution.
- The complaint shall disclose,
- Violation of human rights or abetment thereof
- Negligence in the prevention of such violations, by a public servant.
- The jurisdiction of the Commission is restricted to the violation of human rights alleged to have been committed within one year of the receipt of the complaint by the Commission.
There are certain types of complaints that are not taken or entertained up by the NHRC.
The types of complaints not entertained by NHRC are:
- Vague, anonymous or pseudonymous (with a false name) complaints
- Complaints that are trivial or frivolous in nature
- The matters which are pending before a State Human Rights Commission or
- any other Commission
- Any complaint filed after one year from the date on which the act which violated the human rights of the victim has been committed
- Allegation that is not against any public servant
- The issue raised relates to civil dispute, such property rights, contractual obligations, etc.
- The issue raised relates to service matters
- The issue raised relates to labour/industrial disputes
- Allegations that do not make out any specific violation of human rights
- The matter is sub judice before a Court/ Tribunal
- The matter is covered by judicial verdict/decision of the Commission
There are some limitations of NHRC
The limitations of NHRC are:
- It can only recommend and does not have the power to enforce decisions.
- It cannot inquire in any case, if the complaint is made after one year of the incident. This shows that there is a limitation period in which the victim has to complain. It is, therefore, clear, that the act which are found to be beyond the limitation period, NHRC cannot inquire even if the violation was too extensive.