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Shareholder Agreement (SHA)

A company having equity investors must have an SHA which acknowledges their contribution in a safe and secure manner. A Shareholder Agreement is a contract between the shareholders of a company which helps to establish a fair professional bridge between the stakeholders and the operation of the company.

Key Terms & Conditions of a Shareholder Agreement

• Parties to be defined;

• Business activity and its scope to be outlined clearly;

• Authorized and Paid Up capital to be defined;

• Issuance of further capital must be through the written consent of the shareholders;

• Rights and Obligations of the shareholders;

• Rights of the shareholders to appoint and remove the Board of Directors. They can also appoint themselves to be the Directors;

• Board Meetings & Shareholders’ Meetings;

• Rights to appoint a Quorum, voice a VETO, etc;

• Resolutions regarding nature and business activity undertaken by the Company, taking up loans, declaration of dividends, etc. should be taken through the written consent of the Board of Directors and Shareholders only;

• Appointment of auditors by the shareholders and their removal;

• Shareholding Threshold for enjoyment of rights under SHA;

• The power to sell the shares should not be over-amplified but also shouldn’t be undermined – the shareholder desiring to sell his shares should first express his desire to the other shareholders and if they are not interested, he should be allowed to sell it to any other interested party;

• Transfer of shares and lock-in period including right of first refusal, preemptive rights, buy-back rights, right of the first offer, etc;

• Governing Laws and jurisdiction of competent court;

• Non-compete and non-solicitation clause;

• Dispute Resolution – preferably arbitration clause.

Statutory Law References

Indian Contract Act, 1872

The Companies Act, 2013

Securities Contracts (Regulation) Act, 1956

Depositories Act, 1996

Landmark Judgments

V. B. Rangaraj v. V.B. Gopalakrishnan, AIR 1992 SC 453

Messer Holdings Limited v. Shyam Madanmohan Ruia, [2010] 159 Comp. Case 29 (Bombay High Court)

Russell v Northern Bank Development Corporation Ltd, [1992] 1 WLR 588

Important Do(s) & Don't(s)

• Lawyer consultation or online legal advice should be the preferred way of drafting an SHA.

• Neatly draft the Articles of Association while your company’s incorporation and not just copy-paste them.

• SHA does not bind third parties unless their affairs form part of public domain.

Offence Of Abetment To Suicide (306IPC) Can’t Be Quashed On Settlement Between Parties - Bombay HC

On 2^nd March 2017, the Bombay High Court refused to quash the FIR against a person who had filed a writ petition for quashing the same on the grounds of the settlement with the victim’s father.

Case Name

Mohd. Asgar Choudhari and Ors. v. State of Maharashtra and Anr., WP No. 31 0f 2017 (Bombay HC)

Where it all began

The FIR was registered against Mohd. Asgar Choudhari, i.e., the Petitioner, under Sections 498A (cruelty), 306 (abetment to suicide) & 406 (punishment for criminal breach of trust) of Indian Penal Code, 1860. The petitioner was in a relationship with the victim. The first informant (father of the victim) registered the FIR on the grounds of abetment to suicide of his daughter. However, his affidavit in an order dated 2^nd January 2017 spoke otherwise, stating that “he was in a shocked state of mind due to the sudden demise of his daughter and his daughter committed suicide under depression.” This contrary statement has raised doubts over the veracity of the facts of the case. The petitioner then filed a writ petition before the Bombay High Court to quash the said FIR registered against him as the settlement has been reached between the petitioner and the first informant.

The Masqueraded Settlement

The petitioner scored a settlement with the first informant behind the curtains for an amount of Rs 8 lakhs. His cousin sent a letter dated 17-02-17 to the Senior Inspector of Police, Deonar Police Station, Mumbai mentioning the same.

The Verdict

The bench of Justice A. S. Oka and Justice Anuja Prabhudessai refused to quash the FIR on the ground that the victim of the alleged offence is no more and therefore, rejected the writ petition. However, it observed that the petitioner would not be precluded from applying for discharge.

Arbitration For Start-up

Arbitration (Meaning and Law)
Arbitration is an alternate dispute resolution mechanism in which the dispute is submitted to a neutral third-party known as the arbitrator(s). He is appointed by both the parties, who subsequently holds the arbitral proceedings, analyzed evidence and adjudges on the matter by passing an award.

Need for Arbitration for a Start-up
• It is a faster and more simpler method of resolving disputes;
• More economical than hardcore litigation;
• Start-ups are not financially phenomenal and therefore, arbitration is financially feasible;
• Private proceedings rather than courtroom drama for a start-up;
• A judge may not be the expert in the concerned arena but an expert arbitrator in that arena may be appointed.

The Arbitration Clause
The following arbitration clause is a must for a contract. It is not a legal requirement but for a speedy out-of-court settlement:
“Any dispute or difference arising between the parties to this contract out of or in connection to this contract including the question regarding its meaning, scope, legality, existence, operation, termination, validity of its breach or of compensation payable thereof shall be settled through the means of arbitration in accordance with the Rules of International Commercial Arbitration of the Indian Council of Arbitration and the award made in pursuance to such process shall be binding on the parties hereto.”

Key Terms & Conditions of a detailed Arbitration Agreement
• Validity of the arbitration agreement;
• Enforcement of arbitration agreement;
• Appointment of arbitrators;
• Place of arbitration;
• Arbitrability of dispute;
• Choice of law (substantial and procedural);
• Type of arbitration (institutional, ad-hoc or any other);
• Multi-party agreements.

Important things to Remember
• Arbitration may be binding or non-binding upon the parties, i.e., a party may even reject the award of the arbitration;
• Arbitration award can only be set aside and not appealed;
• In some cases, the costs of arbitration may even exceed the costs of litigation;
• Indian courts may refuse to allow the choice of law between the parties on the grounds of public policy.

Statutory Law References
Indian Arbitration and Conciliation Act, 1996
Indian Contract Act, 1872

Landmark Judgments
ONCG v Saw Pipes, (2003) 5 SCC 705
Venture Global Engineering LLC v Satyam Computer Services Ltd, (2008) 4 SCC 190
Bharat Aluminium Co Ltd v Kaiser Aluminium Technical Service Inc, (2012) 9 SCC 649

Important Do(s) & Don’t(s)
• Legal consultation or online legal advice is essential for drafting arbitration agreement and arbitration proceedings;
• A start-up should always go for arbitration which is financially feasible;
• An arbitration agreement should be drafted in a detailed manner so as to outline the whole process;
• Even no. of arbitrators should not be appointed but only in odd numbers such as 1, 3, 5, 7, etc;
• Hold consolidate arbitration proceedings in case of multi-party agreements.

World’s Most Expensive Company Settlements

Business and competition are the phases of the same coin. There is cut throat competition to expand the business and it is becoming harsher day by day in the globalized World. Every company wants to become a global brand so that its presence can be appreciated world- wide in every class of consumer. The mergers and acquisitions are one of the strategies which followed by the companies to expand its horizons. The ownership of a company is acquired by the other company dealing with the same type of services or products. A legal adviser’s consultation is very crucial to facilitate a merger or acquisition. Let’s have a look on the recent settlements which happened between two companies-

 British American Tobacco Co. is going to acquire R.J. Reynolds American Tobacco Co. – 

British American Tobacco which is based in London has entered into an agreement to buy the stake in Reynolds American, based in Winston-Salem, N.C. for $49 billion. The deal is also subject to shareholders and regulatory approval. It is expected to complete in the third quarter of 2017. 

Reynolds American reported sales of $10.7 billion in 2015. British American Tobacco reported revenue of $15.8 billion, in 2015. The purchase would create the world’s largest publicly traded tobacco business, based on net sales.

 Chem China deals with Syngenta AG-

China National Chemical Corporation’s $43 billion offer for Syngenta AG., based in Basel, Switzerland was China’s biggest overseas deal announced last year. The takeover announced a year ago, is one of a trio of mega-deals that would reshape the global agrochemicals industry. The others are Dow Chemical Co.’s bid to merge with DuPont Co. and Bayer AG’s agreement to buy Monsanto Co. The combined transactions would whittle down six industry players to three giants: one American, one German and one Chinese. Syngenta AG said the U.S. Federal Trade Commission has asked for more time to review it's $43 billion takeovers by China National Chemical Corporation. Chem China filed for U.S. approval in January 2016. Repeated delays in the approval process, which has involved authorities on four continents, have pushed back the expected closing date for the deal. Companies authorities are hopeful that Merger could still win approval before April 12 EU deadline.

 The Shire completed merger with Baxalta-

The Shire has completed it's $32 billion mergers with Baxalta, creating the global market leader in rare diseases and other specialized disorders.

The Shire projected that the combined company would generate approximately 65% of its total annual revenues from its rare disease products revenues the company has forecast as rising to more than $20 billion by 2020.The combined company would consist of more than 22,000 employees across more than 100 countries, as well as more than 50 programs in clinical development.  

 Abbott completes the acquisition of St. Jude Medical-

Abbott has completed the acquisition of St. Jude Medical Inc., establishing the company as a leader in the medical device arena. Together the company will compete in nearly every area of the $30 billion cardiovascular market and hold the No.1 or 2 positions across large and high-growth cardiovascular device markets.

SoftBank to Buy Britain’s ARM-

In the year 2016 Japan's SoftBank acquired ARM Holdings for $32 billion, Softbank has agreed to acquire ARM Holdings, the giant semiconductor firm of U.K that supplies part of the chip design used in Apple iPhones, ARM the largest London-listed tech company by market value. ARM has a major presence in mobile processing. Its processor and graphics technology is used by Samsung, Huawei, and Apple in their in-house microchips.

 Microsoft tied up with LinkedIn- 

Microsoft acquired LinkedIn for $196 per share in an all-cash transaction valued at $26.2 billion. LinkedIn is the world’s largest and most valuable professional network and continues to build a strong and growing business. LinkedIn, based in Mountain View, California, will retain a distinct brand, culture, and independence, according to Microsoft, and LikendIn current CEO Jeff Weiner will remain in his role.

"LinkedIn and Microsoft really share a mission" of helping people work more efficiently and "There is no better way to realize that mission than to connect the world's professionals," said Microsoft CEO Satya Nadella. 

 Acquisition of  Tyco International by Johnson Controls-

Johnson Controls Inc., a U.S. maker of car batteries and heating and ventilation equipment, acquired Ireland-based peer Tyco International Plc., in a $16.5 billion deal. 

By uniting Johnson Controls, the number one provider of building efficiency solutions with Tyco International, the number one provider of fire and security solutions, the new company is uniquely positioned as a leader in products, technologies and integrated solutions for the buildings and energy sectors.

Employment Contract

An Employment Contract is a legal agreement which delineates the terms and conditions of employment between an employee and an employer such as wages, duration of works, non-compete procedures, etc. They are usually signed and executed at the time of the inception of employment. There are majorly three types of employment contracts: -

* Full-time employment contract (FTEC)

* Part-time employment contract (PTEC)

* Freelancer employment contract (FLEC)

Key Terms & Conditions of an Employment Contract

• Definitions and Interpretations;

• Acceptance of employee by the employer for the job and acceptance of job by the employee;

• Responsibilities and obligations involved in the job;

• Duration of probationary period and salary during that period;

• Salary including Basic, HRA, Medical Allowance, Education Allowance, etc;

• Status of job: Full time, part time or freelancers;

• Place of work;

• Date of starting and ending of job;

• Working hours in a day and working days in a week (for FTEC and PTEC) or assignment completion basis (for FREC);

• Overtime (for FTEC and PTEC);

• Payroll schedule: on a daily, weekly, biweekly, semi-monthly, monthly, per piece of work, etc;

• Refunds for calls travels carried out in the course of employment;

• Holidays and Paid leaves in a year;

• Unpaid leaves and exceptions to it;

• Perquisites;

• Deductions;

• Required travels: once in a week, twice in a month, 10 times in a year, etc;

• Policies and standards;

• Confidentiality and Non-Disclosure;

• Non-solicitation which may hinder the company’s interests;

• Provident Fund

• Change in duties and remuneration would not make the present contract invalid;

• Prior notice of resignation;

• Termination of employment by the employer;

• Indemnification;

• Governing Laws;

• Dispute Resolution;

• Schedule A – Job description;

• Schedule B – Confidentiality and Non-Disclosure agreement.

Statutory Law References

Sec. 2(h) & 27 of the Indian Contract Act, 1872

Industrial Disputes Act, 1947

Payment of Gratuity Act, 1972

Industrial Employment (Standing Orders) Act, 1946

Factories Act, 1948

Payment of Wages Act 1936

Minimum Wages Act 1948

The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013

Employees' Provident Fund and Miscellaneous Provisions Act 1952

Landmark Judgments

Diljeet Titus v. Mr. Alfred A. Adebare and Ors. 2006 (32) PTC 609 (Del)

Niranjan Shankar Golikari v. The Century Spinning and Manufacturing Company Ltd. 1967 AIR 1098

Desiccant Rotors International Pvt. Ltd v. Bappaditya Sarkar & Anr, Delhi HC, CS (OS) No. 337/2008

Important Do(s) and Don't(s)

• Contract should be signed and executed at the time of beginning of employment;

• Lawyer consultation or online legal advice should be the priority before executing such contract;

• Bond for a minimum time period of employment should be avoided as it constrains the employee to be with the company even if the work is contrary to his expectations;

Non-Disclosure Agreement (NDA)

A Non-Disclosure Agreement is a contract which enables the parties to the contract from sharing any piece of confidential information or knowledge shared between them for the purposes of business or any other kind of access but restricts such sharing to any third party to such contract. 

There are two types of NDA in practice:

 One-way NDA – Casts the obligation of non-disclosure of information on one party only;

 Two-way or Mutual NDA – Obligation on all the parties to the NDA.

Terms & Conditions of one-way and two-way NDAs are same for both with the only difference that in the latter, the obligations apply to all the parties to the contract.

General Terms & Conditions required in an NDA

• Confidential Information and its scope to be defined;

• Obligation of Non-Disclosure of the information to any third party without the permission of the party sharing such information;

• Application of NDA to apply to all the employees and directors of the recipient company;

• Exclusions/Exceptions to NDA for sharing the information to a third party;

• Notice of any unauthorized disclosure or loss is to be sent by the legal recipient of such information to the other party;

• Use of Confidential Information is to be “As is” and it is not be construed as a license or assignment of such information or any intellectual property. Moreover, the recipient is prevented from selling or registering such confidential information without prior authorization of the other party;

• No reproduction of such information without the authorization of the providing party;

• Time duration of the contract;

• Action was taken upon breach of the contract and Injunctive Relief;

• Governing law to be mentioned;

• Dispute Resolution mechanism to be stated;

• No Assignment to be carried out by the recipient without the authorization of the other party.

Statutory Law References

Sec. 2(h) of the Indian Contract Act, 1872.

Art. 39.2 of WTO Agreement on TRIPS.

Important Judgments

• John Richard Brady and Ors v. Chemical Process Equipments P. Ltd. and Anr, AIR 1987 Delhi 372.

• Mr. Anil Gupta and Anr. v. Mr. Kunal Dasgupta and Ors, 97 (2002) DLT 257.

Important Do(s) & Don't(s)

• Lawyer consultation or online legal advice is preferable to remove any illegalities and ambiguities;

• The information is to be protected for eternity, even after the expiration of the contract unless authorized by the disclosing party;

• Insert a stringent penalty clause;

• It is preferable to have a two-way NDA as it keeps the information flow and protection balanced.

WORLD’S MOST EXPENSIVE DIVORCE LAWYERS

Each party to marriage ties the knot with other with great hopes and expectations. Each party to the marriage has a right to enjoy the company of other for the solace of his life. But sometimes circumstances may arise and parties want to dissolve their marriage due to some reason or another. A divorce lawyer can help someone who wants to divorce his/her spouse. There may be some NGOs which can provide free legal advice. One can also seek a legal adviser online. In most of the cases, one has to pay a fee for hiring a lawyer for divorce. There are many divorce advocates in the world who charges a huge fee from their clients for lawyer consultation. Let’s have a look on the world’s most expensive divorce lawyers-

1. Laura Wasser- 

Laura Allison Wasser is a partner at Los Angeles-based firm Wasser, Cooperman & Mandles, established by her father, Dennis Wasser which deals in family law cases related to marriage, divorce and child custody. She joined the firm after graduating from Loyola Law School in 1996.She is one of the most expensive lawyers as she Charges $850 for an hour and requires a $250,000 retainer. It is alleged that Wasser typically only represents people who are worth more than $10 million. Laura Wasser has represented a number of high-profile celebrities in the past, including Johnny Depp in his divorce from Amber Heard, Britney Spears, Mariah Carey, Kim Kardashian West, Ryan Reynolds, Heidi Klum and more. She even represented Jolie in her divorce from Billy Bob Thornton in 2003.Angelina Jolie has hired Wasser to represent her as she has filed a divorce suit against her husband Brad Pitt where the main issue is related with custody of their 6 children.

2. Sandra Davis-

Sandra Davis is a partner and head of the Family Department of the London-based firm Mishcon de Reya, Davis charges £610 an hour and has represented celebrity clients such as the Princess of Wales, Jerry Hall, Thierry Henry and Tamara Mellon. With her 30 years of experience. Sandra specializes in complex high-net-worth and ultra-high-net-worth cases. She is a Fellow of International Academy of Matrimonial Lawyer. London Super Lawyers directory even named her one of the Top 100 Lawyers and one of the Top 50 women.

3. Fiona Shackleton (Baroness Shackleton of Belgravia)- 

Fiona Sara Shackleton is a partner in one of the London’s leading family law firms, Payne Hicks Beach which she joined in 2001. She has represented members of the British Royal Family and legendary Beatle, Sir Paul McCartney, and many more celebrities. Shackleton charges £640 for an hour plus £5k for an initial meeting.

4. Ira E. Garr- 

Ira E. Garr works with Slipe Garr, P.C. a New York based firm which deals with matrimonial issues. Garr has been listed as one of the “Best Lawyers in America” since 2008.Most of his clients are generally high net worth individuals and often celebrities, it is no wonder that Murdoch chose Garr to represent him in the $11.2 billion divorce suit with her third wife.

5. Liz Vernon-

Liz Vernon is a partner at family law firm Clintons based in London. She has over 20 years of experience. She has dealt with high profile clients from sports, media and entertainment fields and their spouses like Slavica Ecclestone and Karen Parlour.

What is Intellectual Property Assignment Agreement (IPAA)

Intellectual Property (IP) is one of the most emerging arenas in law because of its economic exploitation. Some entities or persons may reap the benefits out of an IP on their own while some assign it to other entities or persons in consideration of royalty. The Intellectual Property Assignment Agreement facilitates the whole process by assigning the concerned IP to other through a contractual agreement. These are also known as Rights Agreements/IP Transfer Agreements.

Assignment
The term “assignment” refers to the transfer of rights vested in the owner of an IP to other entity or person. It is basically a sale and purchase of IP rights. The IP may include copyrights, patents, trademarks, industrial designs or geographical indications. The person who assigns the IP is known as the Assignor and the person to whom such IP is assigned is known as the Assignee. The assignment is different from licensing as the former facilitates the transfer of ownership of such IP for indefinite or limited time period while the latter allows the transfer of limited rights for a particular amount of time and ownership is not actually transferred.

Standard Terms & Conditions of an IPAA
• It should be in writing,
• Requirements of a valid contract to be fulfilled under the Indian Contract Act, 1872,
• Identification of the assignor and assignee,
• Definitions containing general and technical terms used throughout the contract,
• Duly mention the IP to be assigned,
• It must specify all the rights (economic and moral) and obligations assigned to the assignee,
• Mention the liability and warranty in regards to the ownership of such IP,
• Indemnification in case the IP is infringed on a third party’s rights,
• The time duration of such assignment,
• Territorial extent of the assignment,
• Governing law over such agreement and dispute resolution,
• Payment of Stamp Duty on such assignment,
• A lump-sum amount or royalty payable to the assignor,
• Attachment of the list and description of IPs to be assigned.

Important Points to Remember
• Registration of IPAA for copyright is not compulsory.
• IPAA for the geographical indication is expressly prohibited by law.
• Non-Payment of Stamp Duty does not invalidate the agreement.

Statutory Law References
Sec. 2(h) of the Indian Contract Act, 1872
Sec. 2(4) and 23 of the Indian Stamp Act, 1899
Sec. 18, 19 & 19A of the Copyright Act, 1957
Sec. 69 & 70 of the Patents Act, 1970
Sec. 37 - 43 of the Trademarks Act, 1999
Sec. 24 of the Geographical Indications of Goods (Registration and Protection) Act, 1999
Sec. 30 of the Designs Act, 2000
Sec. 21-24 of the Semiconductor Integrated Circuits Layouts Design Act, 2000
Sec. 16 & 18 Plant Varieties and Farmers Rights Act, 2001

Important Do(s) and Don't(s)
• Before IPAA, it is better to conclude a Non-Disclosure Agreement in regards to the concerned IP,
• Register the IPAA with the concerned IP office with respect to the type of IP,
• For assignee, it is feasible to analyze the risks and due diligence involved in the assignment of IP so as to verify its ownership,
• Perform a valuation of the IP to be assigned in order to obtain a fair market price.
• Above all, lawyer consultation is necessary to draft the agreement so as to review the legalities.

What is a Founder Agreement (FA)?

When a startup company comes into existence, it requires a set of rules between the founders/promoters of that company. “Founder Agreement” is a contract which is drawn between the founders/promoters of a company on key issues in regards to their company.

Why do we need it?
• To outline mutual understanding, responsibilities, rights and obligations of each party to the FA and align their goals.
• To keep a record which will prevent ambiguities in future.
• To provide for allocation and distribution of resources.

When to enter such agreement?
 At the time of tabling the idea;
 At the time of incorporation;
 At the time of capitalization.

Standard Terms & Conditions of a FA
• Equity Investment and Shareholding Structure: Who should hold how much shares? Equity should be divided on the basis of contribution of each of the founders respectively.
• Board Management and Governance: How many founders to be on the Board and why? How the company is to be governed?
• Salary: Compute the salaries of the Founders and their increments.
• Roles & Responsibilities: Divide roles and responsibilities at the top management.
• Shareholders’ Meeting: Frequency of meetings, authorized people in the meetings.
• Fresh Issue and Transfer of Shares: Issues such as Lock-in periods, founder selling his stakes, Right of First Refusal, transfer upon death, etc.
• Approval of Debts: What will be the procedure to approve action which might incur debts to the company?
• Appointment and Removal of a CEO: It should be agreed as to how founder(s) will appoint and remove the CEO.
• Vesting: Right of the company to buy back its shares upon some contingencies is mentioned.
• Confidentiality, Non-Compete and Non-solicit: A founder not to engage in any activity (espionage, breach of confidentiality) with any other entity which would jeopardize or be adverse to the company’s interests or would directly compete with the company.
• Representation and Warranties: Founders are restricted from entering into any other contracts which would limit their obligation towards the company and also, prevent any third party rights over the Intellectual Property of the founder(s)/company.
• Amicable Exit from business: A strategy as to how to exit from the business should be devised.
• IP Rights: Intellectual Property Rights should be accorded to the company and in case of partnership, to all the partners.
• Indemnity: Founders to indemnify the investors for the loss caused by misrepresentation or warranties given to them.
• Governing Law and Dispute Resolution: The FA should mention the laws to be followed and the process of dispute resolution.

Statutory Law References
Sec. 2(h) of the Indian Contract Act, 1872.

Important Do(s) and Dont(s)
• It should be a written agreement to remove ambiguities,
• It should be entered into at the time of incorporation of the company,
• Ensure the legality of the contract and its proper execution,
• Do not provide for severability of clauses as it is not recognized under Indian laws,
• Articles of Association should contain the provisions of FA.
• Above all, lawyer consultation is necessary to draft the agreement so as to review the legalities.

Proving extra marital affair can be difficult in a court

Adultery is defined as a consensual sexual relationship between two individuals who are not married to each other. Since this kind of relationship is intentional, therefore under the eyes of the law, it is a criminal offence. It is also regarded as one of the major ground for divorce but proving it in the court is usually quite difficult. Usually, there is no direct evidence of adultery. It can ONLY be proven in the court with the help of circumstantial evidence i.e. objectionable pictures of a spouse with the third person. It can be proved more easily indirectly by placing their letters, SMS, emails etc. as evidence

Important points

1. The pleadings of allegations of adultery must be very clear and specific. 

2. The allegations must be substantiated with particulars such as timing, the name of other individual and proofs such as SMS, Photos, Email etc which specifically establish an act of sexual relationship post-marriage between the parties involved. Mere the intention to have such relationship in future can't constitute as ground for divorce

3. Mere a suspicion is not enough to constitute a ground of adultery. 

4. A single act of adultery can constitute as ground for divorce

5. The adultery offence comes under section 497 IPC. 

6. The Husband and wife both can lodge an offence under section 497 IPC against their spouse who has committed it. 

Statutory law Ref.: - 

1. Section 497 IPC 

2. Section 13(1)(i) of the Hindu marriage act 1955 

Important Judgments 

1. Vishwanath S/o Sitaram Agrawal Vs. Sau. Sarla Vishwanath Agrawal 2012(3) RCR(Civil) 702

2. Smt. Sadhana Srivastava wife of Sri Arvind Kumar Srivastava daughter of Late Sri Parmanand Srivastava Vs. Sri Arvind Kumar Srivastava son of Late Sri Shiv Shankar Lal AIR 2006 A ll7

3. Devidas Ramachandra Tuljapurkar Vs. State of Maharashtra and Ors. AIR 2015 SC 2612

4. Dipanwita Roy Vs. Ronobroto Roy 2014(4) RCR(Civil) 724

Do 

1. Disclose all details related to your spouse with the lawyer. 

2. Share all documents related to marriage. 

3. Collect and share all proofs related to adultery such as email, SMS, Pictures etc. 

Right to Maintenance (Law)

To combat the social injustice and prevent the neglected people from falling into destitution, a universal legal weapon has been provided under Section 125 of the Criminal Procedure Code, 1973, which is not bound by the shackles of caste and religion and vests the right to claim maintenance for those people.

Who can claim maintenance under Sec. 125?
• Wife: Under Hindu law, for the wife to claim maintenance, marriage should have been solemnized in accordance with the Hindu rites and rituals and be valid under the Hindu Marriage Act, 1955.

Under Muslim law, women have the right to claim maintenance even after the conclusion of her iddat period. But marriage should be valid under Muslim Personal law.

Place of claim – where husband or wife resides or where the husband is physically present currently or where husband last resided with his wife.

• Children: Both legitimate and illegitimate male and female children can file for maintenance until they reach the age of majority. But adult unmarried daughters can claim for maintenance from their fathers.

• Parents: Mother and father can also claim maintenance from any of their children or all of them.

Place of Claim – where they reside or the child resides.

Important Points to remember while claiming maintenance:
• The person claiming maintenance should be incapable or unqualified to earn.
• The person must have neglected the claiming party or refused to pay maintenance.
• Burden of proof lies with the husband that he did not refuse or neglect to pay maintenance.
• The standard of living matters the most. Husband is legally obliged to restore the previous (before separation) standard of living off her wife. It should not be more or less than the amount required to restore the same.
• The interpretation of live-in relationships has shifted from a casual look to a serious one where a valid marriage may be presumed.
• Maintenance is usually on a monthly basis.
• A financially unsound or physically incapable person would not be forced to provide remuneration.
• Proceedings u/s 125 are civil in nature.

Filing claim for Maintenance under Sec. 125 (Process):
1. The claim for maintenance is filed before the Judicial Magistrate 1st class. 
2. The period of limitation is 1 year from the date the maintenance fell due.

Grounds of Rejection of Claim:
• If the woman has committed adultery;
• If she was living separately from her husband without any just cause;
• If she has remarried;
• If both of them were living separately with mutual consent;
• If she was aware of her husband’s first marriage which is still in force.

Statutory law References:
Section 125 of the Criminal Procedure Code, 1973

Important Judgments:
Chanmuniya v. Chanmuniya Virendra Kumar Singh Kushwaha and Anr (2011) 1 SCC 141
Mohd. Ahmed Khan v. Shah Bano Begum 1985 SCR (3) 844
Danial Latifi v. Union of India 2001 (7) SCC 740 
Shah Bano v. Imran Khan AIR 2010 SC 740
Mansi Vohra v. Ramesh Vohra CRL.M.C. 2474/2012

If not complied with the order for maintenance, the court-
• can issue a warrant for levying the amount due;
• can attach the property and sell to recover such due amount;
• may award imprisonment for a maximum of 1 month after the execution of the warrant or until payment if sooner made.

Restitution of Conjugal Rights (Law)

Marriage is a religious sacrament which constitutes the very basis of a social entity.  It is based on duties, rights, affection between husband and wife. But when such affection and togetherness goes into hiding, it is necessary to unearth the same through various matrimonial remedies one of which is the restitution of conjugal rights. The word ‘restitution’ refers to restoration and ‘conjugal’ refers to marriage or relating to it, i.e., comfort and affection of the spouses towards each other. When the relation goes haywire, people leave their partners in the heat of the moment or ongoing callousness. If any of the spouses leaves his/her counterpart or withdraws from the society of the other without any reasonable excuse, the latter is entitled to file a petition for the restitution of conjugal rights. The duty of the court is to restore their love and affection by making them live with each other forcefully.

Essentials to be fulfilled:

• The spouse must have withdrawn from the society of another,

• No reasonable excuse for such withdrawal,

• Aggrieved spouse files for restitution of conjugal rights.

Important Points to remember while filing a petition for Restitution of Conjugal Rights:

• Under Hindu Law, the petition is filed under Section 9 of the Hindu Marriage Act, 1955 before the district court.

• Muslims are not adjudged by any specific provisions and are guided by general laws only. Moreover, under Muslim law, a suit is filed before the civil court and not a petition.

• The burden of proof is twofold – first, the petitioner needs to establish that the respondent has left from his/her society and second, the reasonability of the excuse becomes due on the one who left. 

• In reality, it’s not possible to compel the person to start living with his/her corresponding person through a decree of the court. The court can attach the properties of the judgment debtor in order to forcefully execute the decree.

• If the decree remains unexecuted for more than one year, it becomes a valid ground for divorce under Section 13(1A) of the Hindu Marriage Act, 1955.

Step-by-Step Petition Filling Process:

1. File the petition before the District Court having territorial jurisdiction in the matter. The copy of such petition would be sent to the respondent.

2. The court would call them for counseling to settle the matter.

3. Counselling may take 4-5 sessions.

4. In the background, the wife may file for legal expenses from her husband under Sec. 24 of the Hindu Marriage Act, 1955.

5. If accepted by both the parties, the petition for restitution is granted.

Grounds of Rejection of Petition:

• If the petitioner was involved in some kind of matrimonial misconduct. For e.g., adultery, desertion, domestic violence, etc.

• If the respondent has a valid claim to any matrimonial relief.

Misuse of the petition:

Misuse of this remedy is widely in practice where one spouse files such petition for the restitution of conjugal rights with the knowledge that his/her counterpart would not agree for the restoration of such comfort and cohabitation. Subsequently, it becomes a legal excuse for divorce.

Statutory law References:

Section 9, 13(1A) & 24 of the Hindu Marriage Act, 1955

Important Judgments:

Saroj Rani v Sudarshan Kumar Chadha AIR SC 1984 1562

T. Sareetha v. T. Venkatasubbaiah A.I.R. 1983 A.P. 356

Do(s) and Don't(s):

• If you (husband) face the threat of Sec. 498A of IPC, don’t file for restitution of conjugal rights.

• If the petition has been rejected, it is better to file for divorce.