Arbitration Award – Execution of

A perusal of Section 42 of the Arbitration and Conciliation Act, 1996 clearly indicates that if in respect of an arbitration agreement any application under Part I is made in a Court, that Court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that Court and no other Court. The first application which is made before a Court should have jurisdiction to entertain subsequent applications. Secondly for the purpose of applicability of Section 42 of the Arbitration Act, the Court has to decide whether the first application was the application provided in the first part of the Arbitration and Conciliation Act, 1996. Since the application under Section 11 of the Act was an application under Part I of the Arbitration and Conciliation Act, 1996, Section 42 of the Arbitration and Conciliation Act, 1996 will be attracted to the proceedings under Section 34 of the Act. The award passed at New Delhi can be executed in the Court at Gautam Buddh Nagar in view of the judgement of the Hon’ble apex Court in Sundaram Finance Ltd. v. Abdul Samad and Another, (2018) 3 SCC 622. Hasmukh Prajapati v. Jai Prakash Associates Ltd., 2022 (152) ALR 154.

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Transfer Application – Litigation Expenses Being Paid

Once the applicant has moved application under Section 24 of the Hindu Marriage Act, 1955 which was allowed and uninterrupted litigation expenses is paid to her, she cannot mobve transfer application on the ground of distance and financial stress. Similarly, in case the proceedings is at the verge of final hearing, any interference in transfer application would only delay the proceedings. Therefore under such circumstances, no interference is warranted and transfer application is liable to be dismissed. Smt. Shalinee Dubey v. Abhishek Tripathi, 2022 (152) ALR 580.

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Mutual Divorce – Factors to be Considered for Waiving the Statutory Waiting Period

For exercise of the discretion to waive the statutory waiting period of six months for moving the motion for divorce under Section 13-B(2) of the Hindu Marriage Act, the Court would consider the following amongst other factors:

  • The length of time for which the parties had been married;
  • How long the parties had stayed together as husband and wife;
  • The length of time the parties had been staying apart;
  • The length of time for which the litigation had been pending;
  • Whether there were any other proceedings between the parties;
  • Whether there was any possibility of reconciliation;
  • Whether there were any children born out of the wedlock;

Whether the parties had freely, of their own accord, without any coercion or pressure, arrived at a genuine settlement which took care of alimony, if any, maintenance and custody of children, etc. Amit Kumar v. Suman Beniwal, 2022 (152) ALR 692.

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Non-Payment of Maintenance Allowance – Powers of Magistrate

On a plain reading of sub-section (3) of Section 125 CrPC, it is apparently clear that in the event of any failure on the part of any person to comply with an order to pay maintenance allowance, without sufficient cause, the Magistrate is empowered to issue warrant for levying the amount due in manner provided for levying of fines for every breach of the order. Section 421 CrPC prescribes the manner for levying fine and clause (a) of sub-section (1) of Section 421 provided for issuance of warrant for levy of the amount by attachment and sale of any movable property belonging to the offender. In other words, in the event of any failure without sufficient cause to comply with the order for maintenance allowance, the Magistrate is empowered to issue distress warrant for the purpose of realisation of the amount, in respect of which default has been made, by attachment and sale of any movable property, that may be seized in execution of such warrant. Sub-section (3) of Section 125 CrPC makes it further clear that the jurisdiction of the Magistrate for sentencing such person to imprisonment would arise only after the maintenance allowance, in whole or in part, remains unpaid after the maintenance allowance, in warrant. It is only after the sentence of imprisonment is awarded by the Magistrate under sub-section (3) of Section 125 that the occasion may arise for issuance of warrant of arrest for bringing the person concerned to Court for his committal to prison to serve out the sentence.             It is further apparent that the Magistrate has no jurisdiction to issue warrant of arrest straight away against the person liable for payment of maintenance allowance in the event of non-payment of maintenance allowance within the time fixed by the court without first levying the amount due as fine and without making any attempt for realisation that fine in one or both the modes for recovery of that fine as provided for in clauses (a) or (b) of Sub-Section (1) of Section 421 CrPC say by issuance of distress warrant for attachment and sale of movable property belonging to the defaulter as contemplated under Section 421(1)(a) and without first sentencing the defaulter to imprisonment after the execution of the distress warrant. Vipin Kumar v. State of U.P., 2022 (152) ALR 478.

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Grant of Gratuity – Last Status/Cadre and Last Wages Drawn by the Employee to be Taken Into Consideration

Sub-Section (1) of Section 4 of the Payment of Gratuity Act, 1972 provides that gratuity shall be payable to an employee on the termination of his employment; Sub-section 2 of Section 4 of the Act provides that gratuity to an employee shall be payable at the rate of fifteen days’ wages based on the rate of wages last drawn by the employee. Thus, gratuity is payable on the termination of the employment of employee as provided in Section 4(1) and amount of gratuity shall be calculated on the rate of wages last drawn by the employee. The aforesaid provisions of law specifically goes to show that earlier position/status of an employee is not taken into consideration for grant of gratuity. In other words, for grant of gratuity, his last status/cadre and last wages drawn by the employee will have to be taken into consideration for grant of gratuity amount. Laxmi Narayan Sharma v. Steel Authority of India Ltd., 2022 (173) FLR 545.

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Acquittal of Husband under Section 498-A IPC

It is true that it is open for anyone to file complaint or lodge prosecution for redressal of his or her grievances and lodge a first information report for an offence also and mere lodging of complaint or FIR cannot ipso facto be treated as cruelty. But, when a person undergoes a trial in which he is acquitted of the allegation of offence under Section 498-A IPC, leveled by the wife against the husband, it cannot be accepted that no cruelty has been meted out on the husband. Rani Narasimha Sastry v. Rani Suneela Rani, (2020) 18 SCC 247. 

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Arbitration Agreement – Scope of Arbitrator’s Jurisdiction

        Arbitration being a matter of contract, the parties are entitled to fix boundaries as to confer and limit the jurisdiction and legal authority of the arbitrator. An arbitration agreement can be comprehensive and broad to include any dispute or could be confined to specific disputes. The issue of scope of arbitrator’s jurisdiction invariably arises when the disputes that are arbitrable are enumerated or the arbitration agreement provides for exclusions as in case of excepted matters. The arbitration agreement may be valid, but the Arbitral Tribunal in view of the will of the parties expressed in the arbitration agreement, may not have jurisdiction to adjudicate the dispute. The will of the parties as to the scope of arbitration is a subjective act and personal to the parties. Vidya Drolia v. Durga Trading Corporation, (2021) 2 SCC 1.

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Application for Permanent  Alimony— under Section 25 of the Hindu Marriage Act

As per Section 25 of the Hindu Marriage Act, 1955, the prayer for permanent alimony is to be accorded consideration by the Court at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be. There is nothing in Section 25 of the Hindu Marriage Act, 1955 which may suggest that an application for permanent alimony cannot be filed during the suit proceedings. Though, once filed, it is to be addressed at the time of passing the decree or at any time subsequent thereto. Therefore, if any such application is filed, framing an issue in that regard is not prohibited. Though, such issue would have to be addressed at the time of final decision of the petition. Thus, if any such issue has been framed in a divorce petition, it is expected that a Family Court would decide the same at the time of deciding the petition or any time thereafter. Om Tiwari v. Shikha Tiwari, 2021 (147) ALR 335.  

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Joint Liability Under Section 138 of Negotiable Instruments Act

A person who is the signatory to the cheque and the cheque is drawn by that person on an account maintained by him and the cheque has been issued for the discharge, in whole or in part, of any debt or other liability and the said cheque has been returned by the bank unpaid, such person can be said to have committed an offence. Section 138 of the Negotiable Instruments Act does not speak about the joint liability. Even in case of a joint liability, in case of individual persons, a person other than a person who has drawn the cheque on an account maintained by him, cannot be prosecuted for the offence under Section 138 of the NI Act. A person might have been jointly liable to pay the debt jointly, but if such a person who might have been liable to pay the debt jointly, cannot be prosecuted unless the bank account is jointly maintained and that he was a signatory to the cheque. Alka Khandu Avhad v. Amar Syamprasad Mishra, (2021) 4 SCC 675.

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Divorce On the Ground of – Irretrievable Breakdown of Marriage

In R. Srinivas Kumar v. R. Shametha, 2020 (138) ALR 265, divorce was granted on the ground of irretrievable breakdown of marriage, after examining various judicial pronouncements. It has been noted that such powers are exercised not in routine, but in rare cases, in view of the absence of legislation in this behalf, where it is found that a marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably. That was a case where parties had been living apart for the last twenty two years and reunion was found to be impossible. Not only is the continuity of this marriage fruitless, but it is causing further emotional trauma and disturbance to both the parties. Munish Kakkar v. Nidhi Kakkar, 2021 (145) ALR 202.

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