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True Colors of a Vile Wife

Tag: Sandeep Pamarati

Sandeep Bhavan Pamarati Vs Anuradha Kovi (Nullity petition)

Posted on June 7 by ShadesOfKnife

After lot of dilly-dallying, I filed a petition before Family Court, Ongole, Prakasam District, AP, seeking Declaration of Nullity of my marriage under Section 11 read with Sections 5(i), 17 and 21B of Hindu Marriage Act.


Here is the Petition copy.

Sandeep Bhavan Pamarati Vs Anuradha Kovi (Nullity petition)

As expected (because same thing happened in DVC Criminal Appeal also), the Respondent remained exparte. Me happy!


After recording my evidence (Examination in Chief), subsequently, Written Arguments were also filed.

Sandeep Bhavan Pamarati - Written Arguments

Awaiting favorable Order, to be used in CFR for FIR for 494 and 495 IPC

 


Index of my cases is here.

Posted in Sandeep Pamarati | Tagged Sandeep Bhavan Pamarati Vs Anuradha Kovi (Nullity petition) Sandeep Pamarati | Leave a comment

Shrikrishna Vs Sunita Bai on 02 May 2024

Posted on May 11, 2024 by ShadesOfKnife

A single judge of MP High Court at Indore bench held as follows,

From Para 13,

13. From the record, it is evident that learned JMFC has passed the order by dismissing the application under Section 125 of Cr.P.C. on the ground that
since the respondent did not get divorce from her earlier husband and without getting divorce she entered into second marriage. Hence, she cannot be
ascertained as a legally wedded wife of the petitioner and she is not entitled for the claim of maintenance.

From Paras 15-18,

15. It is unearthed from the aforesaid provision that an illegitimate child is entitled to get maintenance but an illegitimate wife is not entitled to get maintenance. The intention of legislature is obvious that maintenance can only be granted in favour of legally wedded wife. On this issue the law laid down by the full Bench in the case of Savitaben Somabhai Bhatia vs. State of Gujarat and Ors. reported as 2005 Lawsuit (SC) 466, is also poignant to be pointed out here:
“There may be substance in the plea of learned counsel for the appellant that law operates harshly against the woman who unwittingly gets into relationship with a married man and Section 125 of the Code does not give protection to such woman. This may be an inadequacy in law, which only the legislature can undo. But as the position in law stands presently there is no escape from the conclusion that the expression ‘wife’ as per Section 125 of the Code refers to only legally married wife.“
16. In view of aforesaid settled propositions and provisions of law, it is crystal clear that the wife should be a “legally wedded wife” for claiming maintenance from her husband. A woman, having solemnized second marriage to another person is only entitled to get maintenance from that person, when the first marriage has been declared either null and void or she has obtained a divorce decree from her first husband. The aforesaid view has recently been endorsed by this Court in the cases of Sangeeta Rathore W/o Naresh Rathore Vs. Naresh Rathore, 2023 LawSuit (MP) 470 and Kewal Singh Vs. Durgabai, 2024 LawSuit (MP) 179.
17. In conspectus of the aforesaid settled proposition, in this petition filed under Section 125 Cr.P.C., the term “wife” under Section 125 Cr.P.C. envisages a situation wherein she, having a living spouse, cannot seek maintenance from her second husband without getting divorce from her earlier husband. Nevertheless, this Court finds it unfortunate that many women, specially those belonging to the poorer strata of society, are routinely exploited in this manner, and that legal loopholes allow the offending parties to slip away unscathed and unquestioned. In spite of the social justice factor embedded in Section 125 Cr.P.C., the objective of the provision is frustrated as it fails to arrest the exploitation which it seeks to curb. In the instant case, while the Court sympathizes with the position of the Respondent, it is constrained to deny her maintenance as per the law of the land which stands as of today. However, the Respondent has the liberty to avail other remedies that may be better suited to the facts and circumstances of this case, such as seeking of compensation under Section 22 of the D.V. Act.
18. In the result thereof, the order of the learned Revisional Court awarding the maintenance to the respondent is found against the law and is also suffering from infirmity and illegality. Accordingly, the impugned order of the learned Revisional Court is set aside and the order of learned trial Court dated 06.09.2021 is hereby affirmed.

Shrikrishna Vs Sunita Bai on 02 May 2024

Index of Maintenance cases u/s 125 CrPC is here.

Posted in High Court of Madhya Pradesh Judgment or Order or Notification | Tagged 1-Judge Bench Decision Catena of Landmark Judgments Referred/Cited to CrPC 125 or BNSS 144 - Order for Maintenance of Wives Children and Parents CrPC 125 or BNSS 144 - Women Whose Earlier Marriage Subsists Not Entitled To Maintenance Landmark Case Sandeep Pamarati Shrikrishna Vs Sunita Bai | Leave a comment

Om Prakash Sharma Vs State of MP on 25 Mar 2021

Posted on August 9, 2023 by ShadesOfKnife

A single judge bench at Gwalior of Madhra Pradesh High Court held as follows,

From Para 5,

5. The aforesaid decisions of the Apex Court in Suresh Chand Jain & Sakiri Vasu (supra) have held the field till date which is evident from perusal of following subsequent verdict of Apex Court rendered after relying upon Sakiri Vasu with approval.

6. In the instant case, as informed by learned counsel for petitioner, no offence has yet been registered by the police. It is also informed that the concerned police station has not yet given any report to the learned Magistrate despite repeated reminders. It is also not denied that the learned Magistrate has not proceeded to record statement of the complainant u/S.200 Cr.P.C. Therefore, in sum and substance, the entire matter hangs fire and is in a state of suspended animation leaving the petitioner-complainant high and dry with no hope of justice coming his way.

From Para 9.1

9.1 Thus, it is incumbent upon the Magistrate u/S.156(3) Cr.P.C. to not only direct for registration of cognizable offence wherever it is found to be not registered by the Police but also to ensure that theinvestigation conducted by the police is fair, expeditious and without any element of prejudice towards anyone, with the sole object ofreaching the truth. The role of the Magistrate u/S.156(3) Cr.P.C. is thus of great significance. Prompt and appropriate exercise of poweru/S.156(3) Cr.P.C. can, not only bring succor to the victim but also to the society at large by bringing the delinquent to the book and in theprocess instilling enough fear in the mind of the miscreant so as to dissuade him from indulging in delinquency again.

From Paras 15-20

Law laid down:
(1) The guidelines laid down for the Magistrates for adjudication of application u/S.156(3) Cr.P.C. complaining about delayed/improper investigation filed along with complaint u/S.200 Cr.P.C.
(2) The complaint u/S.200 Cr.P.C. filed along with 156(3) application need not be kept pending owing to bar contained in Sec.210 Cr.P.C. for more than 60/90 days or any other longer period statutorily provided on expiry of which the police fails to file the final report u/S.173(1) Cr.P.C.
(3) On failure of police to file final report u/S.173(1) Cr.P.C. within 60/90 days or any other longer period statutorily provided, the Magistrate to prevent the complaint u/S.200 Cr.P.C. from suffering a state of stalemate, should proceed by invoking powers contained in Chapter XV and XVI Cr.P.C.
If during pendency of proceedings under Chapter XV and XVI Cr.P.C., invoked as above, Police files the final report then the final report and the complaint case both should proceed as if both have arisen out of police report.

Om Prakash Sharma Vs State of MP on 25 Mar 2021

Citations:

Other Sources:

https://indiankanoon.org/doc/55499395/

https://www.indianemployees.com/judgments/details/om-prakash-sharma-vs-state-of-m-p-and-another

Posted in High Court of Madhya Pradesh Judgment or Order or Notification | Tagged 1-Judge Bench Decision Catena of Landmark Judgments Referred/Cited to CrPC 156(3) - Any Magistrate Empowered u/s 190 May Order Such an Investigation as above-mentioned CrPC 200 - Examination Of Complainant Landmark Case Om Prakash Sharma Vs State of MP Reportable Judgement or Order Sakiri Vasu Vs State of U.P. and Ors Sandeep Pamarati | Leave a comment

Dhananjay Mohan Zombade Vs Prachi Dhananjay Zombade on 18 Jul 2023

Posted on August 4, 2023 by ShadesOfKnife

A single judge at Aurangabad Bench of Bombay High Court held as follows,

From Para 9,

9. In the backdrop of aforesaid provisions, if the precedents are considered, then it is clear that the Hon’ble Apex Court no doubt, in the case of Kamatchi (supra) has held that the proceedings under the DV Act are essentially in the nature of civil proceedings. It is however, pertinent to note that the said judgment is passed in the context of challenge to the order passed by the Trial Court holding that the proceeding fled before it is barred by limitation. It is held in paragraph No. 20 of the judgment that :
“20. It is thus clear that the High Court wrongly equated fling of an application under Section 12 of the Act to lodging of a complaint or initiation of prosecution. In our considered view, the High Court was in error in observing that the application under Section 12 of the Act ought to have been fled within a period of one year of the alleged acts of domestic violence.”
Thus, by implication applicability of the provision of Section 468 of Code of Criminal Procedure is excluded. In respectful view of this Court, in the said judgment, the issue whether or not the provisions of Section 482 of the Code of Criminal Procedure has application to DV Act, was not involved nor decided therein.

From Para 13,

13. No doubt, the provisions of Section 482 of the Code of Criminal Procedure cannot be invoked as a matter of course. The Hon’ble Apex Court in the case of Gian Singh vs. State of Punjab, (2012) 10 SCC 303, has held that if the High Court finds that any proceedings is abuse of process of Court then in that case, non-invocation of provisions of Section 482 of the Code of Criminal Procedure would not be justified. It needs to be recorded that merely because the enactment of DV Act is to provide for more effective protection of the right of woman, it would not mean that a proceedings which is palpably not tenable shall be allowed to be continued. If it is allowed so, then it will be nothing less than sheer abuse of process of Court. Thus, in the considered view of this Court, the present application for quashment of proceeding under DV Act is maintainable.

From Paras 16, 17 and 18,

16. Learned counsel for the respondent opposed the said submission by stating that the said issue cannot be decided at this stage as the same would be subject matter of trial after leading evidence.
17. In order to decide this controversy, it would be relevant to take note of provisions which define “aggrieved person” and “domestic relationship”. Section 2(a) of DV Act defines “aggrieved person” which reads thus :-
2(a) “aggrieved person” means any woman who is, or has been, in domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.
Section 2(f) states “domestic relationship” to be “a relationship between two persons who live or have, at any point of time, lived together in a shared
household when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family”.
According to these definitions, domestic relationship between aggrieved person and respondent is sine qua non to maintain any proceeding under DV Act. In order to constitute relationship between two persons as domestic relationship, they must live or at any point of time lived together in a shared household when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. Admittedly, the relationship of respondent with applicants No. 4 to 6 is as a family member. Thus, in order to constitute domestic relationship, the family members of the aggrieved person must be living together with aggrieved person as joint family. It is, therefore, essential that the applicant pleads that there is domestic relationship between her and respondent and that the other family members have lived or are living together as a joint family, to maintain any such complaint/application under the provisions of the DV Act.
18. In the instant case, applicants No. 4 to 6 have come out with a specific case that they never lived as joint family with the respondent. In order to substantiate the said contention,documentary evidence such as Aadhar Card etc. is placed on record. Genuineness thereof is not challenged. On the other hand perusal of the complaint/application to the Magistrate does not show pleadings that these applicants have lived or living with the respondent together as members of joint family. Thus, for want of specific pleadings, and in view of unimpeachable evidence placed on record by these applicants showing their separate place of residence, the application/complaint against such applicants could not have been entertained as these applicants do not come within the definition of domestic relationship with the respondent.

From Para 21,

21. Unfortunately, similar trend seems to have been adopted and proceedings under DV Act are filed at even distant place i.e. place where aggrieved person resides as per Section 2(s) of Act and not only husband and joint family members residing under one roof are made respondents but distant relatives those who have no domestic relationship are also roped in order to cause harassment and to build pressure on husband. In considered view of this Court the observations made by Hon’ble Apex Court, while dealing with offence under Section 498-A of Indian Penal Code, apply to the cases under DV Act, which are filed in clear abuse of process of Court. The present case is squarely covered by illustrations (1), (3) and (7) in case of Bhajanlal (supra) and hence such proceeding cannot be permitted to be continued.

Dhananjay Mohan Zombade Vs Prachi Dhananjay Zombade on 18 Jul 2023

Citations:

Other Sources:

 

https://www.barandbench.com/news/bombay-high-court-concern-rise-trend-women-misusing-domestic-violence-act

 

Bombay High Court Raises Concern Over Misuse of Domestic Violence Act by Estranged Wives

 

Posted in High Court of Bombay Judgment or Order or Notification | Tagged 1-Judge Bench Decision CrPC 482 - Defence Documents may be Examined for Quash CrPC 482 – DVC Proceeding Quashed Dhananjay Mohan Zombade Vs Prachi Dhananjay Zombade Legal Terrorism No Domestic Relationship Exists No Shared Household PWDV Act Sec 2(f) - Domestic Relationship Sandeep Pamarati | Leave a comment

Sandeep Pamarati Vs Ungrateful Knife (Bigamy under 494 and 495 IPC)

Posted on July 18, 2022 by ShadesOfKnife

After lot many delays, I moved forward on the Bigamy complaint against the disgruntled knife at Ongole.

2022-07-18

Went to Ongole to attend the Spandana Programme to submit my complaint of Bigamy against the Knife. The Staff at the SP Office directed me to the Taluka PS which is adjacent to the SP Office. The Writer heard me and took me to the CI. Questions raised are as follows:

  1. Why complain now after a gap of many years?
  2. Why here and not in Hyderabad or Pune?
  3. Why not talk and settle matter?
  4. Why for a NC (non-cognizable case), came to Ongole all the way from Vijayawada?
  5. Without taking legal opinion, how can we register FIR immediately?
  6. Why evidences are attached?

2022-08-22

Came to Taluk PS to ask for FIR and give my 161 CrPC Statement, if FIR was done. Of course, as expected the responsible persons were on Bandobast duty and hence not available at Police Station. So with this, CrPC 154(1) is complied and completed. Next CrPC 154(3) and the follow it up with another visit to Ongole SP Office on a Spandana-Monday.


2022-09-05

Went to SP office straight and waited for my turn. First time experiencing a public grievance system. My issue was documented into a template and I was asked to appear before a DSP. I wanted for my turn and when it was time, I went in and sat before the DSP. After a lot of questions and answers (from me, obviously), the DSP directed (both orally on the phone) and on the template to register an FIR and investigate. Hurrraaayyyyyyyyy!

I got successfully registered my complaint at Spandana (weekly once public grievance program in all Govt offices of AP)

The interaction was interesting and I found another lead to pursue my other goal. Conduct free legal awareness sessions.

DSP: Being advocate, don’t you know that Police cannot directly register a 494 IPC case? (I did not hear the work ‘Cognizable’)
SP: It is made cognizable in AP sir.
DSP: (Surprised) Is it?
SP: Yes sir, here is the 2-page copy of the State amendment.
DSP: Immediately dials the Assistant Direction of Prosecutions to confirm. Call ends in 15 seconds with positive news.
SP: Not many are aware of this amendment sir. Even I came to know about this only from AP High Court judgments (like here and here).
DSP: This is news to me, it was not covered in the training imparted to the Police attendees.
SP: (Flash lights in my mind) Not just this sir, another issue in PWDV Act is also horribly implemented in AP and I filed petitions before the AP High Court.
DSP: Calls the CI of the Taluka PS, Ongole. No response. Calls the Writer in the Taluka PS. Comes to know the regular CI is on leave and only in-charge is in the Station. Call in-charge and orally directs that a case has to be registered for 494 IPC and the victim is an advocate and it will be difficult for you (in-charge/regular CIs) if he goes to High Court.
SP: Thanked the DSP profusely and offered to send the case laws to him over phone. Obtained his contact and immediately sent both the case laws. Later offered to take up any issue, with his support and guidance.

Overall, a good day, indeed!


2022-09-17

  • Received a call from a Head Constable asking me to appear before CI, Taluka PS, Ongole. After a quick conversation, informed him that I will appear on Saturday for the same.
  • Went to Taluka PS, Ongole at 11AM and waiting until 1.30PM. Then had lunch and went to meet DSP DTC, Shri G Rama Krishna garu. Had a worthwhile conversation and requested him to remind the CI, Taluka PS to register FIR and inform me to record my statement u/s 161 CrPC. If no FIR done, then I am to appear before SP, Prakasam District on a Monday (in the Spandana Program), Sep 26, 2022.

Hope this time around the FIR will be registered.


2025-06-07

  • Whatever happens, happens for our own good, so will NOT hurry this CFR matter until I get favorable Order in Nullity case here.

 


Index of all cases laid on me is here.

Posted in Sandeep Pamarati | Tagged IPC 494 - Marrying again during life-time of husband or wife IPC 495 - Same offence with concealment of former marriage from person with whom subsequent marriage is contracted Sandeep Pamarati | Leave a comment

Are State Bar Councils Statutorily empowered to Levy Fees for Gaps in academics during Enrollment?

Posted on May 15, 2022 by ShadesOfKnife

Goal: To question the legal basis on which Bar Council of AP is charging fees for any gaps in academics of a LL.B Graduate during Advocate enrollment process, apart from taking an affidavit to that effect.


During my enrollment process, Bar Council of Andhra Pradesh (BC-AP) had asked me to pay Rs.7000/- towards 10+ years of gap between my last graduation and LL.B degree. Since I did not believe then that BC-AP (no State Bar Council, for that matter!) never had any statutory power to levy and collect such fees, I paid the said fees duly through SBI Bank challan. My enrollment finished successfully with BC-AP on 17 March 2022 and I became an advocate enrolled with BC-AP (AP/646/2022)… Yippeee!!!

But later, I noticed from other friends who enrolled with Other State Bar Councils, that they were NOT charged any fees for gaps in their academics. This led me to dig deeper and to my astonishment, yes, indeed, no State Bar Council has any statutory power to levy any fees other than that is prescribed in Advocates Act 1961. This decision from Kerala High Court nailed it here (WP before single bench) and here (appeal to Division Bench). The icing on the cake is Hon’ble Supreme Court dismissed the SLPs with a 1-liner here. Armed with this information, I decided to challenge BC-AP on this aspect and recover my fees from them.


Steps Taken:

1. Filed a 1-page Representation to BC-AP


2. Filed a 1-page RTI application to BC-AP

 

I received a missed call from Bar Council landline on 23-May-2022, but none spoke when I called back. Hmmmm!


3. Received this reply from BC-AP. Interesting Answers!

2022-06-02 Reply to RTI application

Interestingly, BCI has earlier in March replied to my RTI application stating that, they do NOT have any knowledge if any State Bar Council is charging fees for gaps in academics. The following is the proof. So BC-AP doing naughty things without knowledge of (AND necessary ratification/approval from) BCI. Spooky…!

2022-03-05 BCIND R E 22 00126-No Knowledge as to State BC taking fee for Gap during enrollment

4. Filed another RTI seeking more information about the resolution that BC-AP passed basis which they are levying unauthorized fees for gaps in academics.


5. Got a reply on 27-Jun-2022.

P10 2022-06-27 Reply to RTI application dt 2022-06-14

6. WP against BC-AP and make BCI as respondent no.2. Petition ready. To be filed on 23rd August, 2022. After 3 weeks of to and fro with Filing Section, the Writ Petition is numbered and will be listed next Monday, tentatively.

Here is the copy of petition filed.

2022-09-12 WP against Gap fees by BC-AP v2.0

7. The WP is listed before Court-14, for Sep 19, 2022 Monday for Initial hearing before Hon’ble Single Bench to issue notices to Respondents. But the Judge was on leave so obtained a new date from Justice Ninnala Jayasurya.


8. As per the interim Order passed, the WP was supposed to be listed on 21-Sep-2022, but it was not listed. What do I do now?

2022-09-19 Sandeep Pamarati Vs the Secretary BCAP and Anr

9. Today noticed that a senior advocate has filed vakalath in the case. Nice…


10.Sent an email to BCI (at [email protected]) hoping for some positive help…

… and waiting for listing of the case… Not going to mention the matter. Let’s see…


11. The email kind of worked! Actually I had reached out to the Standing Counsel for BCI at AP High Court also with same request to transfer my WP also to Supreme Court just like others here. But I was made aware about this case by my dear friend Dr. Parasar Sarvepalli (https://498anlr.wordpress.com) in March 2024!!!

… Phewwwwwwwwww… In total there are 10 more cases tagged with mine… Hehe… Mine got tagged to them…


Since I was not aware about this case until March 2024, I could not participate in the case proceedings virtually. Considering that my original WP at AP High Court is no longer relevant, I stopped pursuing it before APHC. I less headache.


2023-Oct-17

My petition [hehe actually BCI’s transfer petition against my WP at APHC: Transfer Petition (Civil) No.2734/2023)] was listed and heard.

Secretary BCI Vs Sandeep Pamarati and Anr on 17 Oct 2023

Notice was issued, but I received no notice, that is because my address in the memo of parties is old address where I do not live anymore. 🙁 So sent another email on 08-Mar-2024 (Mahasivarathri)…


The bundle was last listed on 2024-01-17. Next computer-generated date is on 18-03-2024 before 3-Judge FULL bench (Court-1 of CJI)


Do not know what happened on 18-03-2024 but the case (and the bundle) is adjourned to 08-04-2024.

2024-03-18 Gaurav Kumar Vs Union of India and Ors on 18 Mar 2024

Seems my case was not reached on 08-04-2024. The case is adjourned to 22-04-2024.


22-04-2024:

Arguments heard and concluded. Judgment reserved.

2024-04-22 Gaurav Kumar Vs Union of India and Ors on 22 Apr 2024

30-07-2024:

Judgment pronounced. I won. But not all prayers are granted.

2024-07-30 Gaurav Kumar Vs Union of India and Ors on 30 Jul 2024

18-12-2024:

Filed the below Written Arguments, only to get this WP closed. I have no hope that HC Registry will close it proactively.

2024-12-16 Written Arguments in W.P. No. 30232 of 2022

Index of my life goals here.

Posted in Judicial Activism (for Public Benefit) | Tagged PIL - Are State Bar Councils Statutorily empowered to Levy Fees for Gaps in academics during Enrollment? Sandeep Pamarati | 2 Comments

D.Suryaprakash Venkata Rao Vs State of AP on 06 Dec 2019

Posted on April 27, 2022 by ShadesOfKnife

A single judge bench of AP High Court held as follows:

Time and again this Court is coming across many cases, wherein the deposit of passport is being ordered by the Courts at the time of granting bail etc. The Hon’ble SupremeCourt of India in Suresh Nanda’s case (1 supra) has very clearly laid down that impounding of passport is not power that is available to the police. The police have a right tomerely seize the passport under Section 102 Cr.P.C., but they do not have the power to retain the passport. The Hon’ble Supreme Court of India has already clearly held that the retention of a passport for a long time also amounts to impounding of the passport. This is very clearly laid down in the judgment of Suresh Nanda’s case (1 supra). Apart from that the Hon’ble Supreme Court of India also clearly held thatafter the passport is seized and if the State was of the opinion that the petitioner was likely to flee the country or that he is at a flight risk, the only option available to the State or theprosecution is to file an appropriate application before the Passport Authorities to impound the passport for the reasonsmentioned in Section 10(3) of the Act. The Passport Authorities shall give a notice to the accused and after hearing the accused, they will have to pass an order. Sincethe cancellation of the passport is an order having severe civilconsequences, the accused also has a right of being heardbefore the passport is impounded. The Passport Act, being a special law will prevail over the general law.

Next Para,

In that view of the matter, irrespective of the fact that whether in the present case the issue relates to the voluntary deposit of the passport or deposit pursuant to an order of the Court, the fact remains that neither case is supported by the law. If the counsel made a wrong concession, the same cannot be enure to the benefit of the prosecution. A party should not suffer for any mistake committed by the counsel. If the same is a part and parcel of the lower Courts order, then it is clearly opposed by the law as interpreted by the Hon’ble Supreme Court of India in Suresh Nanda’s case (1 supra). Therefore, for both these reasons, this Court holds that the condition about the deposit of the passport cannot be imposed by a Court while granting bail or for any other reason. The only option left in such cases, when the passport is seized is to take steps under the Act for cancellation/impounding. Learned Public Prosecutor has stated that the original passport is lost and the accused has applied for a duplicate passport and has flouted the Court
order. Basing on the written instructions received by him, he states that petitioner/A.1 is also liable for contempt of Court. This is also not correct and the order of the Court does not seem to suggest this. As mentioned earlier, neither the Court can impose such a condition nor can the counsel give a
concession and deposit the passport. Even if the passport is deposited pursuant to the concession made by a counsel, the same cannot be retained indefinitely by the Court or the Police till the trial is concluded.
In fact, in the decision of Suresh Nanda (1supra), the Hon’ble Supreme Court of India noticed that under Section 10(a) of the Act, even the Central Government can only retain the passport for four weeks. Thereafter, a further order from Passport Authorities is necessary for retention of the passport.
After clarifying the law on the subject and holding that the impugned order passed by the I Additional Chief Metropolitan Magistrate is contrary to law, this Court leaves it open to the prosecution to take such steps as are warranted by law, if they are so advised to cancel the passport of the accused.

D.Suryaprakash Venkata Rao Vs State of AP on 06 Dec 2019

Citations :

Other Sources :

https://indiankanoon.org/doc/130750295/

Posted in High Court of Andhra Pradesh Judgment or Order or Notification | Tagged 1-Judge Bench Decision Courts Can Not Impound Passport D.Suryaprakash Venkata Rao Vs State of AP Landmark Case Obligation To Record Reasons For Impounding Only Passport Authority Can Impound Passport Sandeep Pamarati Suresh Nanda vs C.B.I. | Leave a comment

Public Prosecutor, High Court of A.P, Hyd Vs Nese Jilakara Sreeramulu on 29 Aug 2003

Posted on August 1, 2021 by ShadesOfKnife

A Full Bench gave this decision upon a reference from a Division bench of AP High Court on the question as to whether the law laid down by a Division Bench of this Court in Ayyala Rambabu v. State of Andhra Pradesh, 1993 (1) Andh LT (Cri) 73 and by a learned single Judge of this Court in Nunna Venkateswarlu v. State of A. P., 1996 Cri LJ 108 is good law.

The answer was a NO.

From Paras 17-19,

17. The definition of “dowry”, the object of the Act and the above decisions of the Apex Court clearly show that any property or valuable security given or agreed to be given comes within the purview of “dowry” on three occasions in which any property or valuable security comes within its purview. They are — (i) before the marriage, (ii) at the time of marriage, and (iii) “at any time” after the marriage. The third occasion may appear to be an unending period, but the crucial words are “in connection with the marriage of the parties”. This means, giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties.

18. The Legislature in its wisdom while providing for the definition of “dowry” has emphasized that any money, property or valuable security given as consideration for marriage “before, at or any time after” the marriage would be covered by the expression “dowry”, and this definition as contained in Section 2 of the Act has to be read whenever the expression “dowry” occurs in the Act, The meaning of expression “dowry” as commonly used and understood is different from the peculiar definition thereof under the Act.

19. Under Section 3 of the Act, if a person gives or takes are abets the giving or taking dowry shall be punished. Under Section 4 of the Act mere demand of dowry is sufficient to bring home the offence to an accused. Thus, any demand of money, property or valuable security, made from the bride or her parents or other relatives, or the bridegroom or his parents or other relatives, or vice versa, would fall within the mischief of “dowry” under the Act, where such demand is not properly referable to legally recognized claim and relatable only to the consideration of the marriage.

Indiankanoon version:

Public Prosecutor, High Court of A.P, Hyd Vs Nese Jilakara Sreeramulu on 29 Aug 2003 (IK Ver)

Casemine version:

Public Prosecutor, High Court of A.P, Hyd Vs Nese Jilakara Sreeramulu on 29 Aug 2003 (CM Ver)

Citations : [2004 EASTCRIC 3 48], [2004 ALT 2 504], [2004 ALD CRI 1 519], [2003 SCC ONLINE AP 830], [2003 SUPP ACC 875], [2004 CRI LJ 1629], [2004 HLR 2 144]

Other Sources :

https://indiankanoon.org/doc/1945624/

https://www.casemine.com/judgement/in/5608f835e4b0149711141c0f

Posted in High Court of Andhra Pradesh Judgment or Order or Notification | Tagged 3-Judge (Full) Bench Decision Catena of Landmark Judgments Referred/Cited to DP Act 2 - Definition of Dowry DP Act 3 - Giving Abeting to Give Taking Abeting to Take are offences DP Act 4 - Penalty for Demanding Dowry Landmark Case Legal Procedure Explained - Interpretation of Statutes Not Authentic copy hence to be replaced PIL - Dowry Givers should be Prosecuted Public Prosecutor High Court of A.P. Hyd Vs Nese Jilakara Sreeramulu Reportable Judgement or Order Sandeep Pamarati | Leave a comment

Braj Mohan Mahajan Vs Bar Council of State of Madhya Pradesh and Ors on 11 Sep 2018

Posted on March 17, 2021 by ShadesOfKnife

MP High Court held that, a person who is not convicted but merely accused cannot be denied entry into the State Bar Council rolls.

Braj Mohan Mahajan Vs Bar Council of State of Madhya Pradesh and Ors on 11 Sep 2018

Citation :

Other Sources :


Later on, this advocate had trouble with AIBE exam also here.

Posted in High Court of Madhya Pradesh Judgment or Order or Notification | Tagged Advocate Antics Advocates Act Section 24A - Disqualification for enrolment Braj Mohan Mahajan Vs Bar Council of State of Madhya Pradesh and Ors Sandeep Pamarati Work-In-Progress Article | Leave a comment

Dr.P.Pathmanathan and Ors Vs V.Monica and Anr on 18 Jan 2021

Posted on January 19, 2021 by ShadesOfKnife

A very good judgment regarding PWDV Act 2005 (Act) and the procedure to be following, in detail. Snippets from the same follow along with the 14 directions issued for the Judicial Magistrate to be followed by them in disposing DV cases in Tamil Nadu.

UPDATE: This judgment is overruled by Supreme Court here.

From Paras 3 and 4,

3. Upon a close reading of the D.V Act, this Court found that the nature of rights that were protected and enforced under the Act were purely civil in nature. However, considering the forum which was dealing with such applications, and the procedure adopted, a criminal color has been unwittingly given to these proceedings. Like a chameleon changing its colour depending on the situation, the proceedings under the D.V Act were also camouflaged due to the nature of the forum provided under the Act.

4. On the flip side, this faulty understanding of the nature of the proceedings has also given rise to a tendency to misuse these proceedings as a weapon of harassment against parties who are unrelated to the proceedings by making them stand before a Magistrate like accused persons. It is mainly on account of this abuse of process that a deluge of petitions came to be filed for quashing the proceedings under Section 12 of the D.V. Act. This sorry state of affairs was a clear clarion call that impelled this Court to undertake this exercise to bring the situation under control by laying down certain guidelines for the disposal of the applications under Section 12 of the D.V Act.

Proceedings and Offences under the Act

18. Before examining this issue, it is necessary to notice the nature of the jurisdiction exercised by the Magistrate under the D.V Act. The procedure to be followed by a Magistrate in dealing with an application for reliefs under Chapter IV is set out in Section 28 of the Act. A close reading of Section 28 would show that it draws a distinction between “proceedings” (Section 12, 18 to 23) and “offences” (Sections 31 & 33) and states that they will be governed by Cr.P.C. This general rule is subject to two exceptions. The first exception is contained in the opening words of Section 28(1) of the Act which begins with the expression “save as otherwise provided by this Act”, the effect of which is to exclude the application of the Code in areas where the procedure has been expressly set out in the D.V Act or the Protection of Women from Domestic Violence Rules, 2006 (hereinafter referred to as “D.V Rules” or “the Rules”). The second exception is found in Section 28(2) of the Act which is in the nature of a non-obstante clause expressly authorizing the Court to deviate from the procedure set out in Section 28(1) and lay down its own procedure for disposal of an application under Section 12 or a proceeding under Section 23(2) of the Act.
19. In the first instance, it is, therefore, necessary to examine the areas where the D.V. Act or the D.V. Rules have specifically set out the procedure thereby excluding the operation of Cr.P.C as contemplated under Section 28(1) of the Act. This takes us to the D.V Rules. At the outset, it may be noticed that a “complaint” as contemplated under the D.V. Act and the D.V Rules is not the same as a “complaint” under Cr.P.C. A complaint under Rule 2(b) of the D.V Rules is defined as an allegation made orally or in writing by any person to a Protection Officer. On the other hand, a complaint, under Section 2(d) of the Cr.P.C. is any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown has committed an offence. However, the Magistrate dealing with an application under Section 12 of the Act is not called upon to take action for the commission of an offence. Hence, what is contemplated is not a Officer as contemplated under Rule 4(1) of the D.V Rules.
20. Rule 6(1) sets out that an application under Section 12 of the Act shall be as per Form II appended to the Act. Thus, an application under Section 12 not being a complaint as defined under Section 2(d) of the Cr.P.C, the procedure for cognizance set out under Section 190(1)(a) of the Code followed by the procedure set out in Chapter XV of the Code for taking cognizance will have no application to a proceeding under the D.V. Act. To reiterate, Section 190(1)(a) of the Code and the procedure set out in the subsequent Chapter XV of the Code will apply only in cases of complaints, under Section 2(d) of Cr.P.C, given to a Magistrate and not to an application under Section 12 of the Act.
21. Consequently, the stage for issuance of process contemplated under Section 204, Cr.P.C has no application to a proceeding under the D.V Act as the Magistrate, in an application under Section 12 of the D.V Act, is not taking cognizance of any offence, but is only dealing with an application for civil reliefs. Furthermore, as has already been pointed out, the respondent before the Court in an application under Section 12 of the Act is not an accused. Hence, the requirement of
framing a charge does not arise either. (See V. Palaniammal v. Thenmozhi (2010) 1 MWN Cri 217).

24. A close reading of the aforesaid provisions would show that the procedure set out in the D.V Act and the Rules makes a conscious deviation from the traditional modes of a criminal court taking cognizance, issuing process and then trying the accused under the provisions of the Cr.P.C. save in the case of offences under Section 31 & 33 of the Act. Thus, the application of the Cr.P.C. to an application under Section 12 is residuary in nature by virtue of the mandate of Section 28(1) of the D.V Act.

So, 482 CrPC does not apply to a DV proceeding, which is civil in nature…

40. As the proceedings before a Magistrate exercising jurisdiction under Chapter IV is not a criminal proceeding before a Criminal Court, the next question is whether a petition under Section 482 of the Code would lie to quash an application under Section 12 of the D.V. Act. It is settled law that a petition under Section 482, Cr.P.C would lie only against an order of a criminal court.

41. As pointed out by a Division Bench of this Court in Rajamanickam v State of Tamil Nadu, 2015 (3) MWN Cri 379, Section 482 Cr.P.C preserves only the inherent criminal jurisdiction of the High Court. Thus, a petition under Section 482, Cr.P.C would be maintainable only if the order complained of is passed by a criminal Court or by a Court in exercise of powers under the Cr.P.C. Quashing an application under Section 12 of the D.V Act does not fall in either category, as what the Court is called upon to do at that stage is to interdict the exercise of civil jurisdiction by the Magistrate at the threshold. As indicated supra, since the Magistrate is exercising only a civil jurisdiction in granting reliefs under Chapter IV of the Act, it follows that a Magistrate is not a criminal court for the purposes of proceedings under Chapter IV of the Act. It follows that an application under Section 482, Cr.P.C does not lie to quash an application under Section 12 of the D.V Act.

So, no remedy then…? (IMHO, apart from Article 227, a petition under sec 151 C.P.C. should also be available to quash the DV proceeding, if it is necessary for the ends of justice or to prevent abuse of the process of the Court.)

42. This does not, however, mean that an aggrieved respondent is remediless. The Magistrate exercising jurisdiction under Chapter IV of the D.V Act, is certainly a subordinate Court for the purposes of Article 227, and a petition under Article 227 of the Constitution would still be available challenging the proceedings under Chapter IV of the D.V Act, in an appropriate case.

Class for the lower trial Courts…

51. It has been brought to the notice of this Court that in several cases, Magistrates continue to mechanically follow the drill of the procedure set out in Sections 190(1)(a), 200 to 204, Cr.P.C and issue summons as if the respondents before it are accused of offences. To compound the confusion, in most of these cases all and sundry are roped in as respondents before the Magistrate. These respondents, upon being summoned, file petitions under Section 205, Cr.P.C to dispense with their personal attendance and thereafter file petitions under Section 482, Cr.P.C to obtain a stay of all further proceedings in the case, and in most cases their personal appearance before the Magistrate is also dispensed with, and the case is then thrown into the backburner. All of this, it appears, is on account a perceptible lack of clarity in the procedure followed by the Magistrates while deciding applications under the Act.

Directions follow:

52.While it is no doubt true that the Court of Magistrate is invested with a great deal of flexibility under Section 28(2) of the Act to devise its own procedure for disposal of an application under Section 12 of the Act, the twin principles of consistency and clarity dictate that this Court must now lay down some broad guidelines, in exercise of its power of superintendence under Article 227 of the Constitution & in respect of Judicial Magistrates under Section 483 of the Cr.P.C, for the proper disposal of applications under Section 12 of the D.V Act. A corrective mechanism is available in the D.V Act itself for aggrieved parties to agitate their grievances and obtain redress.

The following directions are, therefore, issued:

i. An application under Section 12 of the D.V. Act, is not a complaint under Section 2(d) of the Cr.P.C. Consequently, the procedure set out in Section 190(1)(a) & 200 to 204, Cr.P.C as regards cases instituted on a complaint has no application to a proceeding under the D.V Act. The Magistrate cannot, therefore, treat an application under the D.V Act as though it is a complaint case under the Cr.P.C.
ii.An application under Section 12 of the Act shall be as set out in Form II of the D.V Rules, 2006, or as nearly as possible thereto. In case interim ex-parte orders are sought for by the aggrieved person under Section 23(2) of the Act, an affidavit, as contemplated under Form III, shall be sworn to.
iii. The Magistrate shall not issue a summon under Section 61, Cr.P.C to a respondent(s) in a proceeding under Chapter IV of the D.V Act. Instead, the Magistrate shall issue a notice for appearance which shall be as set out in Form VII appended to the D.V Rules, 2006. Service of such notice shallbe in the manner prescribed under Section 13 of the Act and Rule 12 (2) of the D.V Rules, and shall be accompanied by a copy of the petition and affidavit, if any.
iv. Personal appearance of the respondent(s) shall not be ordinarily insisted upon, if the parties are effectively represented through a counsel. Form VII of the D.V Rules, 2006, makes it clear that the parties can Magistrate either in person or through a duly authorized counsel. In all cases, the personal appearance of relatives and other third parties to the domestic relationship shall be insisted only upon compelling reasons being shown. (See Siladitya Basak v State of West Bengal (2009 SCC Online Cal 1903).
v. If the respondent(s) does not appear either in person or through a counsel in answer to a notice under Section 13, the Magistrate may proceed to determine the application ex-parte.
vi. It is not mandatory for the Magistrate to issue notices to all parties arrayed as respondents in an application under Section 12 of the Act. As pointed out by this Court in Vijaya Baskar (cited supra), there should be some application of mind on the part of the Magistrate in deciding the respondents upon whom notices should be issued. In all cases involving relatives and other third parties to the matrimonial relationship, the Magistrate must set out reasons that have impelled them to issue notice to such parties. To a large extent, this would curtail the pernicious practice of roping in all and sundry into the proceedings before the Magistrate.
vii. As there is no issuance of process as contemplated under Section 204, Cr.P.C in a proceeding under the D.V Act, the principle laid down in Adalat Prasad v Rooplal Jindal (2004 7 SCC 338) that a process, under Section 204, Cr.P.C, once issued cannot be reviewed or recalled, will not apply to a proceeding under the D.V Act. Consequently, it would be open to an aggrieved respondent(s) to approach the Magistrate and raise the issue of maintainability and other preliminary issues. Issues like the existence of a shared household/domestic relationship etc., which form the jurisdictional basis for entertaining an application under Section 12, can be determined as a preliminary issue, in appropriate cases. Any person aggrieved by such an order may also take recourse to an appeal under Section 29 of the D.V Act for effective redress (See V.K Vijayalekshmi Amma v Bindu. V, (2010) 87 AIC 367). This would stem the deluge of petitions challenging the maintainability of an application under Section 12 of the D.V Act, at the threshold before this Court under Article 227 of the Constitution.
viii. Similarly, any party aggrieved may also take recourse to Section 25 which expressly authorises the Magistrate to alter, modify or revoke any order under the Act upon showing change of circumstances.
ix. In Kunapareddy (cited supra), the Hon’ble Supreme Court upheld the order of a Magistrate purportedly exercising powers under Order VI, Rule 17 of The Code of Civil Procedure, 1908 (hereinafter referred to as “C.P.C.”), to permit the amendment of an application under Section 12 of the D.V Act. Taking a cue therefrom, it would be open to any of the respondent(s), at any stage of the proceeding, to apply to the Magistrate to have their names deleted from the array of respondents if they have been improperly joined as parties. For this purpose, the Magistrate can draw sustenance from the power under Order I Rule 10(2) of the C.P.C. A judicious use of this power would ensure that the proceedings under the D.V Act do not generate into a weapon of harassment and would prevent the process of Court from being abused by joining all and sundry as parties to the lis.
x. The Magistrates must take note that the practice of mechanically issuing notices to the respondents named in the application has been deprecated by this Court nearly a decade ago in Vijaya Baskar (cited supra). Precedents are meant to be followed and not forgotten, and the Magistrates would,
therefore, do well to examine the applications at the threshold and confine the inquiry only to those persons whose presence before it is proper and necessary for the grant of reliefs under Chapter IV of the D.V Act.
xi. In Satish Chandra Ahuja (cited supra), the Hon’ble Supreme Court has pointed out the importance of the enabling provisions under Section 26 of the D.V Act to avoid multiplicity of proceedings. Hence, the reliefs under Chapter IV of the D.V can also be claimed in a pending proceeding before a civil, criminal or family court as a counter claim.
xii. While recording evidence, the Magistrate may resort to chief examination of the witnesses to be furnished by affidavit (See Lakshman v Sangeetha, 2009 3 MWN (Cri) 257. The Magistrate shall generally follow the procedure set out in Section 254, Cr.P.C while recording evidence.
xiii. Section 28(2) of the Act is an enabling provision permitting the Magistrate to deviate from the procedure prescribed under Section 28(1), if the facts and circumstances of the case warrants such a course, keeping in mind that in the realm of procedure, everything is taken to be permitted unless
prohibited (See Muhammad Sulaiman Khan v Muhammad Yar Khan, 1888 11 ILR All 267).
xiv. A petition under Article 227 of the Constitution may still be maintainable if it is shown that the proceedings before the Magistrate suffer from a patent lack of jurisdiction. The jurisdiction under Article 227 is one of superintendence and is visitorial in nature and will not be exercised unless there exists a clear jurisdictional error and that manifest or substantial injustice would be caused if the power is not exercised in favour of the petitioner. (See Abdul Razak v. Mangesh Rajaram Wagle (2010) 2 SCC 432, Virudhunagar Hindu Nadargal Dharma Paribalana Sabai v. Tuticorin Educational Society, (2019) 9 SCC 538.) In normal circumstances, the power under Article 227 will not be exercised, as a measure of self-imposed restriction, in view of the corrective mechanism available to the aggrieved parties before the Magistrate, and then by way of an appeal under Section 29 of the Act.

 

Dr.P.Pathmanathan and Ors Vs V.Monica and Anr on 18 Jan 2021

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Posted in High Court of Madras Judgment or Order or Notification | Tagged Article 227 - Power of superintendence over all courts by the High Court Catena of Landmark Judgments Referred/Cited to Dr.P.Pathmanathan and Ors Vs V.Monica and Anr Issued or Recommended Guidelines or Directions or Protocols to be followed Landmark Case Legal Procedure Explained - Interpretation of Statutes Legal Terrorism PWDV Act Sec 28 - Procedure Sandeep Pamarati State of Haryana Vs Ch Bhajan Lal State Of Orissa Vs Debendra Nath Padhi | Leave a comment

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