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How Senior Citizen Parents are Protected by The Maintenance and Welfare of Parents and Senior Citizens Act, 2007?

Tue, 18 Apr 2023 18:30:02 +0000

The Buyt Desk

Once a person becomes old, he or she starts suffering from physical inability, loss of mental ability, and more problems. This kind of situation demands enhanced healthcare needs and essential financial support if they’re not earning anymore. To provide better provisions for the parent’s and senior citizens’ maintenance and welfare, the Ministry of Law And Justice initiated legislation “The Maintenance and Welfare of Parents and Senior Citizens Act, 2007”, published on December 31, 2007.

According to this act, an individual who is an Indian citizen and is 60 or more years old would be considered a senior citizen. The act makes it a lawful responsibility of children and heirs to provide the necessary maintenance to parents and senior citizens through monthly allowance.

Who can claim maintenance under section 4 of this act?

According to the Act’s section 4, a parent or a senior citizen who finds difficulty in maintaining himself from his own property or own income is entitled to claim maintenance. The eligible candidates can do so against his children (one or more) ensuring they are not minors. However, if they don’t have any child, they can claim maintenance against their relative (any legal heir not being a minor).

Significance of a Senior Citizen Act

The Act is a fast and inexpensive process to get monthly maintenance for senior citizens and parents. In India, parents are provided the same respect as given to God. Their care, protection, and welfare are given the highest importance and are considered a priority for children. But, the scornful old joint family system and traditional values have just changed this principle.

In the present day, so many senior citizens and parents either have to live alone or are abandoned completely with not enough financial, medical, emotional, and social support. Many parents are even dealing with verbal and physical abuse from their own family members.

According to a report from the National Commission on the country’s population, the percentage of elderly people in the population is believed to increase to 12.4% by 2026. So, there is a significant need for a senior citizen act that provides them with the necessary life and helps in living a comparatively better life.

Life and property protection of senior citizens

When a senior citizen has transferred his movable or immovable property as a gift or other similar transfer after the beginning of the act, but the circumstance that a transferee shall give him essential facilities and take care of the physical needs, is also linked with the transfer. In the situation when that transferee fails or denies doing those things, that property transfer shall be considered to have been made under influence, by fraud, or coercion. The tribunal can even announce that transfer as void.

Before the launch of this initiative, the only solution that senior citizens or parents had in those situations was to go to court. They ask the court for the maintenance and welfare of the children to whom they have transferred their own property. But, later that property would be the special property of the transferee. The senior citizen can’t do anything because they had no authority over that property. Thanks to this Act helps a parent and senior citizens reclaim their own property from the transferee.

Alongside parent or grand-parent, against their children who’re not minor and a childless senior citizen against their relative mentioned in clause (g) of section 2, the children’s or relative’s obligation, based on the situation, to maintain senior citizens increases to that citizen’s requirements to let them have a normal life.

The children’s responsibility to maintain their parents extends to either the father or mother or both parents’ requirements to let their parents have a normal life.

Senior citizens who have more than one relative permitted to get their property, the maintenance shall be given by that relative in the share in which they would become heir of the property.

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Living on Rent? Know Your Rights

Mon, 20 Feb 2023 18:17:40 +0000

The Buyt Desk

We are fortunate that we live in a country where everyone has certain rights which they can leverage to avoid being exploited by someone. However, to use those rights, we must know them.

Every year thousands of individuals move into metro cities for employment and live on rent. They face many difficulties while living on rent. Most of the time, they chose to remain silent because of the fear of problems.

Nevertheless, would they be aware of Model Tenancy Act 2021, they would have never lived in fear. The article gives certain rights to tenants that intend to protect their sovereignty. Let’s check the rights a tenant gets from the Model Tenancy Act 2021.

Each state has its rent control agreement which tenants living in the state must know. It is more or less similar to what we have covered here.

Get an Agreement – It is mandatory for every tenant and landlord to have a signed rent agreement . It is an agreement between two parties for the rent amount and tenure. Many landlords try to avoid making the rent agreement to save some money. However, it is a violation of the law. Without a rent agreement, both landlord and tenant have no rights to claim in case of disputes.

No Throwing Out – The landlord cannot evict a tenant from the property without giving a valid reason. The reason could be using the property for commercial purposes, damage, not paying rent on time, etc. Whatever the case, the landlord must give a 3 month advance eviction notice.

Access to Basic Services – Getting basic facilities like water, electricity, and parking on the property comes under the tenant’s rights. A landlord cannot cut these facilities for tenants even if he is not paying the rent on time or there are dues to clear. If a landlord does so, the matter can be brought down to the concerned authorities and extend to the level of the landlord being penalized for causing the inconvenience.

Rent Limit – The property owner has to abide by the market rates to charge rent from the tenant. Additionally, he cannot increase the rent randomly. He can increase the rent only as per the agreement, and if someone wants to increase the rent contradicting the rent agreement, he has to give three-month prior notice to the tenant.

Heirs of Tenant – Suppose the person who signed the rent agreement dies in the mid-term, but his family wants to stay on the property till the tenure ends, then the landlord cannot evict the heirs. They can use the property till the end of the contract. The heirs include the deceased children, parents, deceased tenant spouse and children.

Property Maintenance – The property owner is responsible for any maintenance work. Whereas the tenant has to bear the utility and service costs he uses, such as electricity, water, parking, etc. Additionally, it is a must for the property owner to return the security deposit taken before the start of tenancy from the tenant within the month of the house being vacated. With mutual agreement, the landlord can deduct the last dues of electricity, water and other services from the deposit.

Right to Privacy – According to the Model Tenancy Act 2021, the property owner cannot barge into the property once rented. Doing this would be considered a breach of privacy. To visit the property, the owner of the property has to give prior notice to the tenant.

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What If The Bank Loses Original Property Documents?

Mon, 16 May 2022 07:19:36 +0000

The Buyt Desk

On the closure of a home loan if you find that your bank has misplaced your original property documents it could be very disturbing. Here is what you can do.

When you opt for a Home Loan, you submit all the original documents of the property to the lender. The lender has your original documents until you repay your loan. The documents are kept in the central repository all through the loan tenure. If they are needed for any purpose during the tenure, then they will be pulled out from the central repository and kept back once the work is done. At the home loan closure, you will be given back all original documents. The central repositories are mostly in Mumbai and maintained by 3rd parties. In this process, your documents are handled by many hands and there might be a moment when the documents get lost.

Losing the most critical important documents like the sale agreement or sale deed can create a lot of hassles in selling the property further. It will also not be possible to avail loan against a property with missing papers. Sometimes the bank may not accept their negligent act of losing original documents. When the lender does not take up the responsibility, the customer is left distressed, defenceless and vulnerable. In such a case, the property owner should take right and quick actions so that there is no further damage and things can be retrieved. The owner should act carefully and lenders should never turn away irresponsibly, neglecting their mistake. Here is what a borrower should do and follow the procedure as the inculcation of remedy.

What can be done by a property owner when the lender loses Original Property Documents?

1. Never accept any original document from the bank when in doubt – When you know one of the original documents is missing or a few pages of the document are missing, do not accept the documents. If you take those, the bank may say that you have taken all documents as you have signed the acknowledgement. Even if the lender assures you that they will find the missing document, do not accept the rest.

2. Do not sign any acknowledgement saying you have received the documents – Usually, banks ask you to sign an acknowledgement or undertaking even before giving you original documents. Never sign before checking the documents.

3. Give a written complaint to the bank concerning lost documents – As soon as you get to know about lost originals, register a written complaint with the bank and describe in detail the lost original document by the bank. Also, take a complaint copy with the manager’s signature and bank seal.

4. Register a police report/ FIR- It is a must to register a police FIR when you lose any government-issued document. Make sure you mention that the Bank has lost your original document which you had given for collateral.

5. Submit a copy of the Police FIR to the bank – Once you submit the copy of the Police FIR to the bank, take acknowledgement from them about receiving the Police FIR copy.

6. Submit court affidavit to banks – In the court affidavit state that the original property documents are lost by the bank. And submit the same to the bank.

7. Public notice in two newspapers – The bank will publish a public notice, one in an English newspaper and one in the vernacular language of the state. The notice states the property details and mentions that the original property documents are lost by the bank. If the public has any objection then it can be filed within 15 days.

8. Indemnity bond from the bank – Bank will issue an attested & notarized indemnity bond on stamp paper stating that original documents are lost by the bank with details of the property, Police FIR and public notice published in 2 newspapers.

9. Duplicate share certificate – Ask for a duplicate share certificate from the housing society by submitting a Police FIR copy and stating original property documents lost by the bank.

10. Certified copies from the registrar’s office – Bank will pay the required charges and get the duplicate copy from the registrar.

11. Encumbrance Certificate from Registrar Office – Get the latest Encumbrance certificate from the registrar’s office after all the above processes.

12. File a complaint in the consumer forum – A complaint in the Consumer forum can be filed to claim compensation from a bank for service scarcity. The compensation claimed can be equivalent to double the value of your property.

13. Penalty on Bank – The lender is liable to pay Rs 100 per day after 15 days of loan closure till the documents reach the owner.

Who will do this entire process?

The lender /bank is responsible for losing the document and it is their responsibility to run around and do all the above steps. All the costs of getting the new documents will be borne by the bank. But you need to take a copy of every legal document in the procedure for your reference including public notice, FIR copy, indemnity bond, duplicate sale deed etc.

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What Should You Do If Your Housing Project is Delayed?

Thu, 21 Apr 2022 06:14:39 +0000

The Buyt Desk

Buying a home is not easy, especially in urban areas. A person puts all his savings into making down payments and then takes a hefty loan whose EMI he has to pay for the rest of his life if income does not increase as predicted.

And what if the same project gets stalled or delayed? Nothing is more heartbreaking than this. According to real estate consultant Anarock’s report, about 174,000 homes are stalled across seven cities whose value is over Rs 1,40,613 Crore. The maximum number of stalled projects is in National Captial Region (NCR), 113,860 and then in Mumbai Metropolitan Region (41,720).

There are many reasons behind the delay of a project, such as financial strain on the builder, raw material supply hindrance, labour shortage, etc. Whatever the reason, the hardship of stalled project has to be borne by the buyers most. And with such projects, the buyers have the least options to do. If concerning authorities have not initiated the insolvency proceedings against the builder, then here are a few things buyers can do.

Approach The Real Estate Regulator – The first option for the buyers is that they can complain against the builder to the real estate authority. It is Real Estate Regulatory Authority (RERA)

The RERA will either help buyers get refunds or instruct the builder to speed up the construction process. Besides that, the homebuyers have a few more rights – the right to receive payment against the delay and the right to get the interest. The interest is calculated based on the ROI mentioned in RERA for each month of delay till the possession.

Apart from RERA, Real Estate Appellate Tribunal (REAT) also takes care of the rights of homebuyers. RERA has the right to hold or overturn the order passed by RERA. Additionally, one can contest the REAT order in the high court.

Buyers Can Take The Legal Route – The second option available to home buyers is taking the legal route. The National Consumer Dispute Redressal Commission is a quasi-judicial commission that was set up in 1988 under the Consumer Protection Act 1986. It is the authorized body to file a complaint against the builder by homebuyers against the delayed project.

The major cities like Delhi, Mumbai, etc., have city-forum while states in India have state-forum. Homebuyers can register their complaints at these forums. They can also ask for a refund if the project has got delayed for more than a year.

Depending on the property value, courts have been segregated, and homebuyers can visit the respective forum and lodge complaints at NCDRC for the dispute redressal. For property up to 20 Lakh, the complaint needs to be lodged at District Commission. For property up to 20 Lakh to 1 Crore, the state commission needs to be approached, for the property above 1 Crore, the national commission has to be approached.

What Homebuyers Shouldn’t Do Till The Issues Resolves

Selling The Property – If exiting from the property is what you think is a solution, then you might be wrong. Stalled property’s cost is compromised because of delays in the project and other infrastructure development. So, finding a buyer will not be easy. Moreover, you will have to sell it at loss.

Don’t Stop Paying EMI – No matter what, you should never stop paying the EMI of the loan to the bank. Doing this will negatively impact you in many ways. The bank or any other financial institution has the right to take necessary action against the defaulters.

What Should Homebuyers Do In The Situation Of Delayed Project?

To make sure that the project finishes on time, the homebuyers must remain proactive. They must take action as soon as they realize that the project is missing the timeline.

Homebuyers must keep track of project progress, and if the builder denies sharing information, it is a clear indication that there is something wrong. They should seek help from concerning authorities as soon as possible.

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Stay away from Digital Lending Apps

Sat, 27 Feb 2021 11:38:09 +0000

The BuyT Desk

How relieving it is to get an instant, paperless, and hassle-free loan in your time of need? It is problematic only when this instant relief is short-lived. The increase in the use of mobile phones and the internet even in remote areas has led to a boom of digital lending apps. They provide short-term loans of small amounts without any paperwork. Such easy loans are attractive for all. In an emergency, you may hurriedly borrow money without realizing the devious terms and conditions of the loan. If you do not repay the loan on time, these companies levy a late payment charge.

However, the main disadvantage is that they levy interest of about 1 to 2% daily. As a result, the interest rate comes out to be 30 to 60% in a month. Eventually, a small loan amount becomes quite high and you are stuck in a debt trap. This is not all. The digital lending apps insult the borrower, misuse his personal and official data, and harass him and his family, friends and relatives in case he/she delays the repayment. The lack of rules and regulations in this sector has put the borrowers in a tight spot whereas these companies are having a field day.

Circle of debt

Digital lending companies have a very notorious way of recovering debt. It is very easy to download a digital lending app on iOS and Android. At the time of the download, the app asks for various permission from you without which it won’t go further. In the series of permission, they will also take ask permission for the use of your phonebook and photo gallery. If you deny these you will not be able to download the app.

Getting a loan is easy but then comes the tough part. If the repayment is delayed, the once helpful digital lending company will turn into a goon. The threat and mental torture are not just restricted to the borrower but his friends, family even his/her colleague are contacted through the phonebook. They will start blackmailing the borrower by telling him/her that they have full control of your phone’s photo gallery and threaten to upload the picture with morphed images on social media platforms.

They can even get hold of your personal sensitive data like your PAN card and details of your Aadhar number which could be misused. The police can dismiss your problem by saying that you have given permission for the use of a phonebook and photo gallery yourself. Finally, the pressure is too much to handle and the borrower is forced to either borrow more from relatives or take another loan to get rid of these goons. Until then the loan of a meagre Rs.5000 will have snowballed into a huge amount due to daily interest and late payment fee. This creates a circle of bad debt.

Be careful of short duration loans

Short-duration loans, also known as PAYDAY, have a short tenure of 10 to 15 days. Stay away from such loans. In case you take such a loan, assess the genuineness of the digital lending company.

When the lending company is charging you even before the start of loan processing, it is better to look for another lender. This means that in addition to the processing fee, they will even ask for a pre-processing fee.
Every lender decides on a loan repayment schedule. If the lender has not prepared the repayment schedule, then their genuineness is doubtful.
A genuine lending company will ask for income proof details to assess whether you have the repayment capacity or not.
The complete KYC process should be done.
The lender should have a tie-up with a bank/ NBFC/ schedule bank.
The lending process is genuine only when the company provides a loan agreement on the company’s letterhead to the borrower.

The Reserve Bank of India regulates banks and NBFCs. In June 2020, the RBI highlighted the guidelines about loan recovery. According to the loan recovery guidelines, the lender should not call the relatives or friends of the borrower. Also, they should not insult the borrower in any way. However, digital lending apps do not come under the category of either banks or NBFCs. They take advantage of this loophole and harass borrowers.

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Rights of Air Travellers in the Case of Flight Delays or Cancellations

Sun, 14 Feb 2021 17:29:24 +0000

The BuyT Desk

Flight delays or cancellations can disrupt work schedules. Missing important meetings or losing valuable business transactions can ultimately cause economic loss. In these untoward situations, airline carriers have specific responsibilities towards passengers. You must have noticed a sign at the check-in counters intimating the passengers to ask for their rights when a flight is cancelled or delayed. Additionally, the airline provides a copy of the Passenger Charter with the ticket to help the passengers know about their compensatory rights in such conditions. The Passenger Charter, issued by Civil Aviation Ministry, states the airline passenger’s rules and rights.

As per the guidelines by the Directorate General of Civil Aviation (DGCA), airline passengers have the following rights with respect to flight delays

Scenario: Passenger has checked-in on time, but the expected delay is of:
2 hours or more where the total time of flight is up to 2.5 hours, or
3 hours or more and the total flight time is between 2.5 hours to 5 hours, or
4 hours or more and the total flight time is more than 5 hours.

Right: To receive free of charge meals and refreshments.

Scenario: The expected delay is more than 6 hours.

Rights: a) An option of either an alternate flight that departs within 6 hours or a full refund of the ticket amount.

b) Rescheduled time of flight should be communicated at least 24 hours prior to the originally scheduled time of departure.

Scenario: The expected delay is more than 24 hours or more than 6 hours for flights scheduled to depart between 2000 hours and 0300 hours.

Right: Free hotel accommodation.

Rights of passengers when the flight is cancelled:

Scenario: An airline informs passenger about the flight cancellation two weeks to 24 hours before the scheduled time of departure.

Right: Arrangement of alternate flight or refund as acceptable to the passenger.

Scenario: An airline does not inform a passenger about flight cancellation 24 hours before the scheduled time of departure and the passenger has missed connecting flight booked on the same ticket number.

Rights: The airline should either provide an alternate flight as per passenger’s suitability or compensation, in addition, to a full refund. However, if the passenger has not provided adequate contact information at the booking time, no compensation shall be payable.

Compensation of Rs.5, 000 or basic one-way fare plus airline fuel charge, whichever is less, when the total flight time is up to one hour.
Compensation of Rs.7, 500 or one-way basic fare plus airline fuel charge, whichever is less, when the total flight time ranges from one to two hours.
Compensation of Rs.10, 000 or basic one-way fare plus airline fuel charge, whichever is less, when the total flight time is more than two hours.

If certain extraordinary circumstances cause flight cancellation, then the airline is not liable to pay compensation. Political instability, natural disasters, air traffic restrictions, computer glitch, riots, explosion, government order affecting the aircraft, strikes and labour disputes, etc. causing cessation, and the slowdown or interruption of work are some such circumstances.

Scenario: Passenger reports for the original flight and waits for an alternate flight.

Right: Airline must provide free of charge meals and refreshments in respect of waiting time.

Scenario: The alternate flight offered is scheduled to depart/arrive from/to an airport or terminal other than the originally booked terminal or airport.

Right: The airline will bear the cost of transferring the passenger to/from the airport or terminal from/to the airport or terminal booked. If the airline informs about the change of at least 6 hours prior, the passenger is liable to make his/her own arrangements.

Ways to avail your rights

You can lodge a complaint and claim compensation at help desks placed at departure stations.
If not satisfied with the resolution, you can file the AirSeva app or web portal’s grievance.
If you are still not satisfied, approach any statutory body or court set up under the relevant applicable laws.

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Consumer Court, RERA and NCLT- Home buyer can approach all the three simultaneously

Tue, 20 Oct 2020 09:08:57 +0000

A home buyer has the legal right to approach 3 platforms at the same time for his/her grievance redressal. He/She can raise his/her complaint in consumer forum, RERA authorities and if need be in National Company Law Tribunal (NCLT) simultaneously.

Punjab & Haryana High Court recently in the case of Experion Developers Pvt Ltd vs State of Haryana and others has observed that a homebuyer while fighting a case in a consumer forum can also pursue remedies under Real Estate Regulatory Authority as well.

A division bench of Justices Dr S Muralidhar and Avneesh Jhangan held that it is not mandatory that a pending matter in front of consumer forum has to be transferred to adjudicating officer of RERA. Senior Partner and Chairman of Aureus Law Partners, Niki Kantawala says “ The same is beneficial for a lot of stranded homebuyers whose money is stuck at the developer’s end and are waiting year-by-year for their lawful possession. This would help in getting a faster remedy.”

Time and again our judiciary has reiterated that legal remedies available to home buyers under Consumer Protection Act and RERA are concurrent. In the past, the Delhi High Court in September 2019 , rejected 62 petitions filed by various developers arguing that buyers can’t sue them at multiple forums. But Delhi High Court ruled in favour of home buyers and supported the stand that aggrieved can approach both at the same time.

When RERA was freshly implemented, RERA chiefs of various state had a view that buyer should not be allowed to approach consumer forum when an existing real estate law is in effect.

In fact, even Supreme Court in 2019 in Pioneer Urban Land & Infrastructure Ltd Vs Union of India case had held that “remedies given to the allottee of flat/apartment are concurrent, and such allottees are in a position to avail remedies under CPA, RERA as well as trigger the provision of Insolvency and Bankruptcy Code.”

Courts have made it clear that remedies to a consumer run parallel to each other and do not interject each other so that one is not deprived of any recourse. This question is raised again and again because of Section 71(1) of the RERA act. But SC had clarified that Sec 71(1) gives an option to withdraw from consumer fora to go before RERA but this is in addition to Section 88 which states that provision of the Act are “in addition to, and not in derogation of the provisions of any other law for the time being in force.”

Distinguishing the role of AO under RERA Act and the role of other authorities, the bench of Punjab & Haryana has clarified that the scope of relief with AO(under RERA) would be limited to compensation or interest. The bench has held that –

“If, however, such person opts to withdraw his complaint before the consumer fora to come to the AO, the scope of the relief he seeks would be limited to the compensation or interest. He will, therefore, have to take a conscious decision. If the relief he is seeking in the complaint before the consumer fora is in addition to seeking compensation or interest in the form of compensation, for instance refund of the amount and interest thereon, then he will have to take a conscious decision on restricting his relief before the AO to one of compensation or interest by way of compensation.”

So its upto the buyer what is the remedy that he wants, senior lawyer Niki Kantawala explains, “ Thus the consumer can go to all the three forums i.e Consumer Court, under RERA or the NCLT. However the nature of reliefs has to be different. So to say, that if the Consumer is seeking a relief of refund of money paid, then, the consumer should go to either the Consumer Court or the NCLT. However, if the consumer is only seeking of compensation and penalty etc for delay- then RERA would be the right Forum. The consumer can complain in NCLT too simultaneously. However, it would be ideal in cases where the buyer is keen to exit the project.”

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What to do When Police Refuses to File an FIR or Complaint?

Mon, 19 Oct 2020 07:21:06 +0000

FIR stands for first information report, which is a written document prepared by police when there is a commission of any cognizable offence. The victim or anyone on behalf of that victim can lodge the complaint either orally or in writing. The FIR is considered an important document because it sets the process of the criminal justice system in motion. This document is considered as a base to start an investigation related to any case and becomes the first impression of the prosecution case.

Cognizable offences are those where a police officer can arrest a person without a warrant, as per the first schedule of the Criminal Procedure Code, 1973 (“CrPC”). After arrest, the accused is to be produced before the Magistrate who may require the police officer to investigate the matter further.

According to sub-Section (c) of Section166(A) of CrPC, if any public servant fails to record any information given to him (regarding cognizable offence) under Section 154 (1) of CrPC, he will be liable to be punished with rigorous imprisonment for a term which shall not be less than six months and can be extended to two years. The officer in question can be fined too.

Sometimes the police are unwilling to register an FIR whenever someone complains about the commission of an offence. This may happen when the police do not possess the requisite jurisdiction or legal capacity to take cognizance or the crime is non-cognizable. However, where the police refuse to file the complaint without any substantial legal ground, it is contrary to law.

A vague, indefinite or unauthorized piece of information cannot be regarded as first information merely because it was received first in point of time. Likewise, an unclear message over the phone simply stating that a person is lying dead on the road does not amount as First information report.

Remedies when the police refuse to register “FIR”

The police officer can only refuse to file FIR when he thinks that registration of FIR is not required to proceed or when he thinks it is a non-cognizable offence, but he cannot do so in case of a cognizable offence. The aggrieved person can take the following measures-

1.File a complaint to the Superintendent of Police

2. Approach a Judicial Magistrate

3. File a writ petition

4. Can go to State and National Human Rights Commission.

Complaint before Superintendent of Police

If the concerned officer in charge refuses to register an FIR on the commission of a cognizable offence within his territorial jurisdiction, the informant can approach any senior officer of police or the Superintendent or Commissioner of Police with a written complaint. If, after analyzing the complaint he is satisfied that the complaint discloses a cognizable offence, he may investigate the case himself or give directions to his subordinate to register the FIR and initiate an investigation in the matter.

Complaint before a Judicial Magistrate.

After submitting a complaint to Senior Police officials if no FIR is lodged then the informant is legally entitled to file a complaint to the Judicial Magistrate/ Metropolitan Magistrate u/s 156(3) read with Section 190 of the CrPC, thereby requesting the FIR to be registered by the police and commencing investigation into the matter.

A Complaint Petition can be filed before the judicial magistrate under Section – 190 of CrPC.

File a Writ Petition

Any person to whom an Officer in Charge of the police station refuses to file FIR for any cognizable offence within his territorial jurisdiction can file a writ petition in the Hon’ble High Court for the-

Issuance of writ of mandamus against the defaulting police officer. To give the reason for non-registration of FIR, and why he should not be suspended for interfering in the administration of justice and disturbing the accused person.
And ask for damages/compensation for the frustration and for the deprivation of life and liberty under article 21 of the Constitution of India.

Complaint before State and National Human Rights Commission
Any person to whom an Officer in Charge of the police station refuses to file an FIR for any cognizable offence within his territorial jurisdiction can file a complaint before
State Human Rights Commission of that State or
National Human rights Commission.

The said complaint must make out why a particular police officer is not doing his duty of enforcing the law which is made to be enforced for public welfare, and that they are so negligent, biased and wholly corrupt, that they ignore the injustice, mental trauma and frustration faced by the victim.
The above stated recourse can be taken by a complainant in case a police officer refuses to file a complaint thus, ensuring that complete justice is given and no person should be left unheard.

Disclaimer– This is not a substitute for legal advice. Readers are encouraged to obtain appropriate legal advice before acting in pursuance of this article. Views are personal.

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7 Rights of a Woman When She Files a Police Complaint

Sun, 11 Oct 2020 06:15:47 +0000

Aniket Bhargava and Shruti Dutt from Aureus Law Partners

The National Crime Record Bureau’s ‘Crime in India 2019’ reveals a horrifying statistic of crime against women. NCRB report tells us that every 16 minutes a woman is raped somewhere in our country. In 2019, every day 88 rape cases were reported. Total of 4,05,861 cases of crime against women were registered in 2019, which was a 7.3% increase from 2018. These shocking numbers are being reported from a country which claims to worship women and consider women to be equivalent in stature to a goddess. But the truth is that women of all ages are being discriminated against, subject to eve-teasing, stalking, sexual harassment, domestic violence and rape amongst other horrendous crimes. In such a scenario, access to justice must be secured and made fully available for women of all ages and backgrounds in order to restore a sense of confidence in the criminal justice system.

When a woman approaches a police station to file a complaint, it oftentimes happens that she is either quoted wrongly, her grievance ignored or she is harassed and humiliated for her statements. Such instances create a sense of dismay and fear in the mind of a woman and deter her from approaching the police to lodge a complaint.

There is a strong need to ensure that proper care and assistance is provided while dealing with the complaint of women in a police station. For this purpose, there are certain special provisions in place for filing of a police complaint by a woman to ensure that she is not harassed or ignored by the police while dealing with her for purpose of registration of complaint and proceeding for further investigation.

Here are 7 Women Rights that you should know about when you approach a police station.

Right to Register a Zero First Information Report “FIR” and Mandatory Registration of FIR in Certain Offences.

The Criminal Law (Amendment) Act, 2013 enabled registration of a Zero FIR i.e. registration of an FIR at any Police Station irrespective of place of crime and area of jurisdiction. However, after such registration, the investigation will be transferred to the Police Station of the place of occurrence. The sanctity of legal process remains the same in Zero FIR. This is very helpful for women, as it removes the inconvenience of searching for the right Police Station for lodging the FIR.

The police cannot refuse to register an FIR in certain sexual offences related to women such as rape, molestation, sexual harassment, eve-teasing etc. The police officer is bound to register an FIR in such cases or he is liable to be punished in accordance with Section 166A of Indian Penal Code “IPC”.

Right to Free Legal Aid and assistance.

National Legal Service Authority and State Legal Service Authorities ensure that if a woman requires so, she is provided with free legal aid and assistance. Women are entitled to free legal aid irrespective of the income or financial status. The same is provided for by virtue of Section 12(c) of Legal Service Authorities Act, 1987.

Also, if women require any assistance while making a complaint, the State Commission for Women or even Nation Commission for Women can be approached through their complaint channels. Commission for Women makes sure that women are not harassed during the registration of complaint in Police Station in any way and also ensures justice to the woman complainant by ensuring that proper investigation procedure is followed.

Right to file virtual complaints

In case a woman is not able to go to the Police Station due to any reason, she can approach the Senior Police Officer or Superintendent of Police through a letter or an email. Some states have also introduced online complaint channel for the same. Thus, a woman is no longer required to go to the Police Station, rather the Police will come to her residence for purpose of registration of complaint or any other such purpose.

Right against disclosure of the identity of victim.

Section – 228A of IPC, punishes the act of disclosure of the identity of a woman who is victim of offence under Section 376 of IPC i.e. Rape. The same is punishable, except where it is required for the purpose of investigation or is given by consent of the victim or by her legal guardian in case she is of unsound mind or not in position to give consent for the same.

Such a provision has been brought in place in order to prevent social victimization or ostracism of the woman who is the victim of a sexual offence.

Right to Privacy while giving statement

Women who are victims of any sexual offence such as rape, molestation, sexual harassment etc. are entitled to the right to record her statement in private, in front of the Magistrate without being overheard by anyone else. They are also free to record their statement before a lady constable or a police officer in personal. Section 164 of the Criminal Procedure Code, 1973 “CrPC”, ensures privacy to such victim such that she can express herself without any fear and hindrance.

Right to get a copy of FIR and Medical Report

Upon registration of an FIR, the victim of the offence should be served with a copy of FIR free of cost by the Police Station. Further, in cases where the offence is a sexual offence, a copy of the medical report is also served to the victim.

In case of sexual offences, the copy of the FIR cannot be refused on the ground that the doctor gives an opinion that an offence has been committed. A victim of rape is medically examined as per Section 164A of CrPC and only the medical report can serve as admissible evidence in such a case, not the opinion of the doctor.

Right to not being interrogated in the police station

Under Section 160 of CrPC, the police possess the power to require attendance of the woman who is the victim and she cannot be called for interrogation to the police station. She can be questioned at her home in the presence of a woman constable and her family or friends.

Thus, the Legislature has ensured through various provisions, amendments to existing laws, guidelines of various concerned authorities and various Commissions established for the said purpose. This is done so that women do not face any trouble or harassment while going to make a police complaint or approaching police authorities for the purpose of putting forward their grievances.

Disclaimer: This is not a substitute for legal advice. Readers are encouraged to obtain appropriate legal advice before acting in pursuance of this article. Views are personal.

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How to File a Consumer Complaint Online? 6 Things to Know

Tue, 29 Sep 2020 12:31:12 +0000

By Priyanka Sambhav

There may have been a number of times when you would have made up your mind to make a complaint against a company on the grounds of a substandard product or service. But it never happened because you could not take out the time to visit the forum. Not anymore, Consumer complaint system goes online, and now filing a complaint is just a click away.

6 Steps to File a Consumer Complaint Online

1- You will be able to electronically file your complaint through the online portal https://edaakhil.nic.in. Once you open the site go to the Complainant/Advocate section and register your email id. For registration, you must have a valid identity card like- your voter card, PAN card, passport, Ration card, BPL/AAY card or a driving licence- any one of them. This ID proof has to be uploaded and it needs to be in PDF format.

2. After your account is activated you need to log in. You will once again click on the Complainant/advocate section and this time you will log in with your e-mail id, password, and a captcha code.

3. Now you are on the home page of your account. You will select ‘Filing’ and there will be a drop-down menu. This will give you various options like – file a new complaint and rejoinder, check case status, pending draft, pending payment, and view the approved cases list.

4.For filing a fresh complaint you need to have to upload a few documents. Keep this paperwork ready-

Index
List of dates
Memo of parties( with complete address and contact details)
Complaint with Notarised attested affidavit
Fee payment detail- if you are making an offline payment then a demand draft in favor of the respective forum
Supporting documents in favor of complaint- receipt, voucher, etc
Application for condonation of delay with an affidavit if there has been a delay of more than 2 years when the incident occurred.

5. You will now give all the case details and the claim amount that you are seeking. Fill out the details of the opposite party and if you want to add a few more associates of opposite parties then include their details too. This is when you will upload the documents and submit your complaint. Once you finalize and submit you will not be able to make any changes.

6. Payment can be made online or offline mode. If you choose offline mode then you will have to make this payment through demand draft.

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