Categories
Bail

Principles followed before granting bail

              Principles followed before grant of bail

The Hon’ble  Suprem Court has  time and again laid down Principles followed before granting bail in relation to exercise of discretionary power for grant of bail, particularly, when the bails are refused by the Courts below.

While considering the application for bail Courts always   consider the following conditions prior to grant of bail and Principles followed before granting bail

i)nature of the charge,
ii)the nature of the evidence,
iii)the severity of punishment to which the accused may be liable if convicted,
iv)the antecedents of the man applying for bail that might suggest that he is likely to commit serious offences while on bail.

The Hon’ble Apex Court in the case of Ash Mohammad v. Shiv Raj Singh, (2012) 9 SCC 446 observed as under:

“17. We are absolutely conscious that liberty of a person should not be lightly dealt with, for deprivation of liberty of a person has immense impact on the mind of a person. Incarceration creates a concavity in the personality of an individual. Sometimes it causes a sense of vacuum. Needless to emphasise, the sacrosanctity of liberty is paramount in a civilised society. However, in a democratic body polity which is wedded to the rule of law an individual is expected to grow within the social restrictions sanctioned by law. The individual liberty is restricted by larger social interest and its deprivation must have due sanction of law. In an orderly society an individual is expected to live with dignity having respect for law and also giving due respect to others’ rights. It is a well-accepted principle that the concept of liberty is not in the realm of absolutism but is a restricted one. The cry of the collective for justice, its desire for peace and harmony and its necessity for security cannot be allowed to be trivialised. The life of an individual living in a society governed by the rule of law has to be regulated and such regulations which are the source in law subserve the social balance and function as a significant instrument for protection of human rights and security of the collective. It is because fundamentally laws are made for their obedience so that every member of the society lives peacefully in a society to achieve his individual as well as social interest. That is why Edmond Burke while discussing about liberty opined, “it is regulated freedom”.

18. It is also to be kept in mind that individual liberty cannot be accentuated to such an extent or elevated to such a high pedestal which would bring in anarchy or disorder in the society. The prospect of greater justice requires that law and order should prevail in a civilised milieu. True it is, there can be no arithmetical formula for fixing the parameters in precise exactitude but the adjudication should express not only application of mind but also exercise of jurisdiction on accepted and established norms. Law and order in a society protect the established precepts and see to it that contagious crimes do not become epidemic. In an organised society the concept of liberty basically requires citizens to be responsible and not to disturb the tranquillity and safety which every well-meaning person desires.

Not for nothing J. Oerter stated:

“Personal liberty is the right to act without interference within the limits of the law.”

  1. Thus analysed, it is clear that though liberty is a greatly cherished value in the life of an individual, it is a controlled and restricted one and no element in the society can act in a manner by consequence of which the life or liberty of others is jeopardised, for the rational collective does not countenance an anti-social or anti-collective act.

Conclusion

The grant of bail in exercise of discretionary power of the Court         is  necessarily exercised in a judicious manner and not as a matter         of  course. Therefore it can be concluded that  prior to grant of           bail ,  certain Principles followed before granting bail  and precautions are exercised by courts considering Principles followed before granting bail. For more information click on http://taps9.com

Author

Tapan Choudhury

Advocate

Categories
Transfer Petition

Transfer Petition in Supreme Court of India

Transfer Petition in Supreme Court of India

Transfer Petition in Supreme Court of India are usually filed in Divorce Cases in Matrimonial Cases.

This happens when one party files a divorce case in one state and the other party is unable to appear due to unavoidable circumstances in the trial court of another state .

Usually when the woman who is non working is resident of another state and the husband is residing in another state, the wife may present a petition for transfer before the Hon’ble Supreme Court.

Grounds may include distance , threat or even health reasons depending upon circumstances of the case in case of Transfer Petition in Supreme Court of India.

Every transfer petition is accompanied by a copy of the matter which is pending in a trial court in another state.

         Stay of proceedings for which transfer is sought

Caveat Petition  is usually accompanied by an application for stay. It is because till the Hon’ble Supreme Court decides the transfer petition , the divorce case or any other case for which transfer is sought is stayed.

When other cases already pending in the place to which transfer is sought

For example when a wife files for transfer  petition in matrimonial cases and she has already filed cases in the trial court within the jurisdiction where she resides then it also acts as a ground that since the other party is already appearing in those cases he may as well appear in this .This makes the case stronger for the woman.

I have only expressed my opinion based  on my experiences . The examples i have cited as mostly in matrimonial cases and in most cases the grounds are similar as stated  here in above. However there are instances of    transfer petition for other matters also. For information kindly visit http://taps9.com.

Author

Tapan Choudhury

Advocate

Categories
Mutual Consent Divorce

Mutual Consent Divorce

Mutual Consent Divorce | Waiver Applications in case of  longer separation

Mutual Consent Divorce is the easiest and the fastest mode of dissolution of Marriage. Marriages which are governed by the Hindu Marriage Act or Special Marriage Act and the Indian Divorce Act all have provisions for Mutual Consent Divorce.

Requirements

S.13 B Under Hindu Marriage Act 1955
  1. One year separation prior to filing the divorce petition
  2. Proof of Marriage in the form of Photographs, marriage Certificates and Wedding Cards.
  3. Details of children if any
  4. Terms agreed upon between the parties

It basically works on the principle that when both parties have agreed to a settlement to dissolve their marriage and have agreed to each others terms and conditions nothing else is required.

The Mutual Consent Divorce Petition will contain the date of marriage, date of separation and any terms and conditions have might have been agreed upon between the parties.

There are times when both parties are working and have no children , in such cases parties resolve to dissolve their marriage without any such terms and conditions when no  payment is agreed upon. In such cases the main condition that remains is none of the parties will have any right or claim against each other after dissolution of marriage .

Once a joint petition signed by both parties are filed , Both parties are required to be present in court for the first motion wherein statement of both parties are taken.

Thereafter both parties are given 6 months time for reconciliation after which a second motion petition can be filed . In Delhi a second motion petition is filed, however in Gurgaon, Faridabad , Greater Noida  and Ghaziabad a second motion is not required to be filed , a next date after 6 months is given. In the second motion again statement of parties will be recorded. This is the last time one has to visit the court for hearing. Thereafter if the court allows within 7 days divorce decree is passed.

Now the 6 months cooling period can be waived with an application if the date of separation is more than 18 months. In such cases second motion petition can be presented for hearing within a month and so both motions can be over within a month or so. This is subject to the Court allowing the waiver application of 6 months.

In case of S.28 of the Special Marriage Act 1954 | the process is similar

S. 10A of the Indian Divorce Act 1869| 2 years separation prior to filing

However in case of Christians who are governed under he  S. 10A of the Indian Divorce Act 1869, the  only requirement which is different from other Acts is the date of separation should be more than 2 years prior to filing  Mutual Consent Divorce.petition. For more information kindly visit http://taps9.com

This whole process is very simple and easy .

If you require any assistance kindly contact at 9873628941
Author
Tapan Choudhury
Advocate
×