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The Indian contracts act 1872, defines Contract in section 2(h) as’ Agreements enforceable by law
are contracts’, and sections 68-72 constitute situations under the Quasi-contracts.
General Contracts are entered into by interested parties voluntarily without any compulsion,
whereas quasi-contracts are imposed by law.
General Contracts can be both rights in Rem (against the whole world) and rights in Personam
(against any one person or entity),whereas quasi-contracts are only rights in Personam, these are
only available against a specific person i.e., right in personam.
For the making of a contract, liability exists according to the terms mentioned and agreed upon by both
the parties, whereas under quasi-contract, the liability comes into existence through the conduct of
the parties and is based on morality, natural justice, equity, and a good conscience.
Quasi-contract is not an actual contract though it is still enforced by law. It is based on the Latin
maxim “Nemo debet locupletari ex aliena jactura” which means, nobody should be benefited at the
cost of another or nobody should be enriched at the cost of another’s loss.
For example- A ordered a pizza from B, that is wrongly delivered to C and he doesn’t correct the
delivery boy and keeps the pizza. Here, quasi-contract arises and C will be required to pay back the
amount of pizza to A.
There is no prior agreement, offer and acceptance in a Quasi-contract. Quasi-contract is enforced
when any person enjoys the benefit of something but refuses to pay or compensate for it or the
another person might have to bear the burden of it.
To avoid unjust enrichment of one party from the loss of the other party, quasi-contract arises as an
obligation by the law and hence it is enforceable by law.Section 498A is defined in Chapter XXA of I.P.C as-
“Husband or relative of husband of a woman subjecting her to cruelty (physical or mental) shall be
punished with imprisonment for a term, which may extend to three years and shall also be liable to a
fine.”
Section 498A is cognizable (in which a police officer may arrest the accused without an arrest
warrant) and it is a non-bailable offence.
Section 498A was inserted with the idea of protecting women against cruelty, harassment, and other
violence.
A complaint can be filed –
a.by any person related to her by blood, marriage or adoption,
b. or if there is no such relative,then by any public servant as may be notified by the State
Government in this behalf.
An offence under section 498A of IPC is a continuing offence which means every time when the
woman was subjected to cruelty, she will have a new starting point of limitation.
As per section 468 CrPC, Complaints under the Section 498A can be filed within 3 years of the
incident.
But there also cases when offenders fall prey to false allegations.
The Hon’ble Delhi HC in 2008 introduced some steps to be followed to avoid the misuse of the
Section 498A by the prosecution. These are-
1. Cases under Section 498A IPC should not be registered without prior approval of DCP.
2.FIR should be registered by the police only after scrutinizing the alleged incident.
3.The arrest of the offender should be made only after thorough investigation has been done.
As Justice always prevails over injustice, men have a remedy to be sought in law against the false
accusations. Under S. 500 of IPC, husband can file a defamation case against his wife. He can also
file an FIR against his wife for false allegations. Under S. 9 of CPC, husband can file an application for
the recovery of damages, which he and his family have undergone for the false accusations of
cruelty.
If the competent authority finds that the law has been misused, the culprit is subjected to
imprisonment of 6 months or fine or both under Section 182 of IPC.In IPC, there are some rights of private defences given to the person or property to defend himself
or of any other person against an act of another, which if the private defence is not pleaded would
have amounted to a crime.
Though there are some exceptions when right of private defence cannot be exercised.
Section 99 lays down the conditions and limits within which the right of private defence can be
exercised. –There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant
acting in good faith under color of his office, though that act, may not be strictly justifiable by law.
The first two clauses of the section provide that there is no right of private defence against the
public servant or person acting in good faith in the exercise of his legal duty provided that the act is
not illegal.
The third clause restricts the right if private defence when there is sufficient time for recourse to the
public authorities.
And the right must be not be exceeded the harm caused.Section 498A states cruelty to a married woman husband or relative of a husband subjecting her to cruelty is liable to be punished with imprisonment for a term upto 3 years and fine. If the husband or any relative of husband ill- treats the woman or are causing mental, physical or psychological agony or harassment to thw woman then she can seek divorce from her husband and this section is applicable in that case.
This section further states that “any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman or harassment of woman, whether such harassment is of the view of coercing her to meet any unlawful demand for any property or valuable security or is on account of her failure to meet such demand. Dowry Death in which a woman within seven years of her marriage commits suicide because of cruelty by her husband or relatives of the husband in respect of bringing insufficient amount of dowry articles the husband and her relatives who force that woman to commit suicide are dealt with in this section of Dowry Death.
Section 498A has been there for the protection of women but some of them misuse this and put false allegations on their husband and their relatives in order to seek divorce or to cause trouble to him and his family members.
A complaint under section 498A cannot be filed after divorce s this section is only applicable to married woman who is subjected to cruelty by her husband or his relatives and its scope only there till the marriage is there once divorce takes place then section 498A cannot be attracted.FIR stands for First Information Report. It is the first document which is prepared in criminal proceedings. Section 154 CrPC lays down the procedure for lodging an FIR. IT is a document which mentions the victims side of the story. Any person who has information about the admission of the cognizable offence can lodge an FIR. It should be filed in the police station of the concerned area in whose jurisdiction the offence took place.FIR is made to maintain a record of information of the cognizable offences which have been committed. It implies to the the complaint registered with police by plantiff or any person having knowledge of the cognizable offence. Any person who has the knowledge of a cognizable offence being committed can go to the police station and register an FIR after which the criminal proceedings could take place, it is not mandatory that only the victim can register an FIR but any person who is aware about the fact of the commission of a cognizable offence can get FIR registered.If the policeman refuses to register an FIR then one has an option to file a private complaint before the court having jurisdiction. One can bring the complaint to the notice of the superintendent of Police or any other concerned officer.
Case- Habib v/s State of Bihar- The court in this case states that the principle object of FIR which was to set the criminal laws in motion.
PRELIMINARY INQUIRY
Section 157CrPC deals with the procedure of Preliminary Inquiry. It is an inquiry prior to the trial which is done for the purpose of indicating the criminal nature of offence or for the reason that whether the trials should start or not. This section deals with when a police officer receives information about which offence is a cognizable offence then he is accountable to make report of it and such report shall be sent to the magistrate of that jurisdiction. A preliminary inquiry is a hearing that takes place to determine that whether there is enough evidence to justify sending the case to trial. If the judge decides that there is not enough evidence then the judge will dismiss the case and discharge the accused who is there after free to go and if there is enough evidence then the judge will order that the accused stand trial and a trial date is set.Nikah is marriage and Halala means to make something permissible and Nikah Halala involves the woman marrying someone else, consummating the marriage and then getting a divorce after which she is able to remarry her former husband. Nikah Halala is also known as taheel marriage. This is a practice in which a woman after being divorced by triple talaq has to remarry and consummates the marriage in oreder to remarry her former husband. Adultery and Nikah Halala are two different concepts and they are not similar to each other adultery on one hand means voluntary sexual intercourse between a married person and a person who is not their spouse, this is illegal, on the other hand Nikah Halala is a practice which is to be performed in order so that the divorced wife can return back to her former husband. Adultery is by wife’s desire and her own wish that she is willingly and by her own choice consenting to sexual intercourse with other person knowing that he is not his spouse whereas Nikah Halala is basically re marital sex which is to be performed. The voluntary sexual intercourse by a married person with someone other than his or her spouse is termed as adultery. The consent of both the parties and penetration are required for adultery to exist. Nikah Halala is a law that requires a woman to marry and consummate the marriage with another man to return to her first husband. In Islam a muslim man has the liberty to divorce and remarry the same woman twice but if he dissolves the marriage for the third time then the woman has to go through marriage with another man and consummate it and then seek divorce from him and only then she could return to her former husband she has to fulfill this criteria which has been laid down by Islamic law to marry her former husband again. Adultery on the other hand is against the husband’s will or he is not even aware about this act of his wife and in Nikah Halala the husband is aware about the criteria which has to be fulfilled by his wife so that she could return back to him.
What are the rights and responsibilities of a finder of goods? Suppose a child ran away from his home. His father sent his servants in search of the child. After that, he announced the reward of Rs 5000, whoever traces his child. The servant finds his child not knowing about the reward. Later he claims the reward under section 168. Is he eligible for it? Give reasons for it.
This question initiates its thread from Section 71 of ICA, 1872. This section deals with the responsibility of the finder of goods. It states that a person who finds the goods which belong to some other person, and keeps that in his possession, then he is subject to the same responsibility as that of a bailee.
This thread further extends to Sections 168 and 169 of ICA, 1872.
Section 168 deals with the right of a finder of goods. Basically, this section talks about two things. One is trouble and expenses voluntarily incurred by bailee and second where the owner/bailor had offered a specific reward for the return of lost goods. In the former case, the bailee cannot sue the bailor but he can retain the goods until he receives such compensation. But in later case, the bailee may sue and may retain goods until he receives such reward.
Section 169 deals with the goods commonly the subject of sale is lost. In this case, if the owner/bailor cannot be found or if he refuses to pay the lawful charges, then the finder/bailee may sell those goods, if the goods are in the danger perishing or losing its value or if the lawful charges (in respect of the goods found) amounts to 2/3 of the value of goods.
My answer is NO to the second part of the above question. For that, we have to see Section 2(7) of the Sales and Goods Act, 1930. This section defines “Goods”. It includes stock and shares, growing crops, grass, and things attached to the land and things like that. It nowhere considers human beings and goods. So, the above fact is outside the purview of Section 168 of ICA, 1872.As it is said that a coin has two parts same can to said for this case it can be dealt in two ways but specifically talking about the case in regards of the section 168, then:
Yes , according to section 168 the servant is obliged to refuse the custody of the child as it is said under the section that if a owner has made any specific reward for the return of the good than the finder has all to rights to retain the goods until and unless he is paid the reward.
But taken another aspect of the case we can also judge the case in this below mentioned way -that is
No, he cannot refuse to send the child back though the section 168 says that the finder has all the rights to retain the good until and unless he receives his reward. But in this case the finder is the servant who already owes a duty to his master, and also the reward was declared after the servant left in the search of the child so the communication for the reward was not made directly to the servant and also there was no acceptance of the offer as per the Indian Contract Act.
And if the servant claims the reward under section 168 then he is bounded by the law to return the custody of the child or else he can be sued for refusing to send the child backAccording to the given scenario, the general aspect that strikes is that a child is considered to be a living being and shouldn’t be treated as Goods, the similar is mentioned in Section 2(7) of the Sales of Goods Act, 1930, where the goods certainly mean objects and non-living items, thus excluding the fact that a human being could be considered in the purview of Section 168 of the Indian Contract Act, 1872.
So under Section 168 of Indian Contract Act, highlighting the term ‘Finder of Goods” which particularly includes goods and not a person can also be an interpretation of what the law creators have implied on by clearly mentioning goods and not concerning the section in relation to human beings.
Backing it with law, although Section 168 gives the permit to the finder of goods to retain the goods in case of not receiving the due compensation for the expenses incurred, but in the given circumstances the servant is entitled to receive a reward for finding the child and not compensation as of which he has no right to retain the child as well as legally considering the servant has the right to sue under the Right of Lien in order to receive the specific reward that he/she is being entitled to by the owner of the goods.
Other than that the reward offer of Contract Law clearly states that past consideration is no consideration, which means after finding the lost boy by the servant and coming across the reward put up, there is no point in claiming for it because the offer that is implied has already ended with the boy being found. The ignorance of the offer by the servant in no way could lead to the entitlement of the reward and thus the child had to be returned to the father with due diligence.
As well as after finding the child, humanely taking things into consideration if the child is retained under this Section that would be against his/her will and that could be termed as abduction for forcefully keeping the child.
So in my opinion, the answer is no, kept into mind given the above reasons.State the relationship of Section 48 with sections 13 and 32 of IEA, 1872?
These three sections deal with matters related to ‘rights and customs’. Generally, third-person has no say in the proceedings in the court of law. But there are many exceptions to this rule; one of them is Section 48.
Section 48 deals with the opinion as to the existence of right or custom, when relevant. It says that when there is the question of the existence of any general custom and right and on which the court has to form an opinion, the opinion of persons who are aware of the existence of such general custom or right is relevant.
Section 48 deals with general customs and general rights unlike Section 13 which deals with facts relevant when right or custom is in question. Section 13 is confined to all kinds of rights or customs whether public or private. Private customs or rights are totally excluded from the operation of Section 48.
Section 32 deals with the opinion as to public right or custom, or matters of general interest. Section 32 talks about the opinion of dead persons or the person who cannot be called as a witness, is admissible, whereas Section 48 concerns with the opinion of living persons only.
In Gururadhwaja PD v. S.P. Singh (1900), the Privy Council held that the opinion of the witness as to the existence of a family custom based upon information derived from the deceased person is relevant.Ques: State the relationship of Section 48 with sections 13 and 32 of IEA, 1872.
According to Section 48 of the Indian Evidence Act 1872, when a court is been provided with the opinion as to the existence of a right or custom, such opinion by a person who has knowledge about the same are relevant in deciding the case brought before it. Firstly, it is to be understood that courts (here meant to be judges) are not expected to be an expert in every arena that is needed to decide a case that’s been brought before them. So, in case of the absence of knowledge, courts can ask for opinions by a person with expected knowledge about the issue in question. When the power has been granted now, the question would be about the validity of such opinions. So, the section thereby clarifies that the opinions provided are relevant in courts. But the section does not acclaim that opinions brought under the section are per se relevant. Then there comes the aid of surrounding sections.
As per Section 13 of the Indian Evidence Act the following facts, that are derived out of opinions are relevant when a right or custom is in question. They are, when facts assert any transaction or also in cases when facts assert particular instances through which the right or custom in question was (i) created, claimed, modified, recognized, asserted or (ii) denied or (iii) found to be inconsistent with its existence or (iv) departed from. In an ordinary trial, the person who gave opinion ought to present himself before the court on anytime he sought to, in the process of deciding the relevancy. Hence there arises a question what if the person who has made such opinion subsequently dies or disappears or any other situation that makes him impossible to participate in order to determine the relevancy factor.
The question is answered in section 32 of the Indian Evidence Act. The section reads as follows, where the opinion was made either written or oral, and the person dies before deciding the relevancy, courts can consider the opinion relevant where the statement was as to the existence of public right or custom or matter of public or general interest.
Hence one can find the relationship that flows between Sections 48, 13, and 32 of the Indian Evidence Act, 1872 which in general falls under the head of relevancy of customs, rights out of general practices, and anything of that sort.By analysing the verbatim of the bare act it could be understood that the three of them are related in the context of deciding over the existence of a particular custom or a right. Section 13 talks about the things or the necessary conditions or the prerequisite facts to be considered while deciding on the existence of a particular right or custom. Since a custom is usually a defined as a traditional and widely accepted way of doing a specific thing in a particular society, place or time, which means for evaluating someone’s right or a custom to do a particular job is related to time per se, due to this same reason for courts to establish a particular custom they usually take in account whether there was any transaction which could help in establishing a right or custom which is mentioned in 13(a), for the same if any person who cannot be called as a witness according to the section 32 of the Indian evidence act, their statements can be accounted when it is in relation of determining the continuance of a custom or right according to section 32(7). However, the court when wants to form an opinion regarding the existence of a right or custom then the court has the power to take in consideration the opinions of the local people which can help in determining the same.
According to my understanding of the three sections Section 13 acts has a broader ambit where the prerequisites or necessary facts for deciding over existence of custom or right is mentioned about and one such condition can be satisfied by using the statement by a man who cannot testify due to him bring dead or other such conditions mentioned in the section 32(7),the section 48 acts as an additional evidence in the means of opinions of local people used by the court in order to form an outlook of the continuance of an right or custom along with the section 13.section 13 = existence of custom
section 48 = continuance of a customIn a free fight, right to private defence is not available to any of the parties and everyone is responsible for their own acts. It is like Volenti non fit injuria and the person involved in free fight is acknowledge about the consequences of his acts. The right of privete defence is available in those situation when the person is in the danger of getting harm and not in giving harm to the others. It is used in the retaliation of the attacks not as the exemption from those acts under the guise of the right of private defence. Thus, it can’t be used as a shield to justify the aggression. Generally, in a free fight people tries to defeat the person in whatever way they can do it. They don’t care about the life of the others or what injury or damage can be caused to the other. The only thing that is in their mind is how to defeat the others and not about the consequences of the acts done in pursuance to acheive the goal.
The right to private defence is a question of fact which needs to be determined on the facts and circumstances of each case. This right commences as reasonable apprehension on the body arises from an attempt or threat to commit such offence. Moreover, in free fight there is always an apprehension of the threat but both the parties are aware of this apprehension and this is not the reasonable apprehension for taking the plea of right to private defence. It is a defensive and not a punitive or retributive right so the parties are not allowed to take this defence.In a free fight, right to private defence is not available to any of the parties and everyone is responsible for their own acts. It is like Volenti non fit injuria and the person involved in free fight is acknowledge about the consequences of his acts. The right of privete defence is available in those situation when the person is in the danger of getting harm and not in giving harm to the others. It is used in the retaliation of the attacks not as the exemption from those acts under the guise of the right of private defence. Thus, it can be used as a shield to justify the aggression. Generally, in a free fight people tries to defeat the person in whatever way they can do it. They don’t care about the life of the others or what injury or damage can be caused to the other. The only thing that is in their mind is how to defeat the others and not about the consequences of the acts done in pursuance to acheive the goal.
The right to private defence is a question of fact which needs to be determined on the facts and circumstances of each case. This right commences as reasonable apprehension on the body arises from an attempt or threat to commit such offence. Moreover, in free fight there is always an apprehension of the threat but both the parties are aware of this apprehension and this is not the reasonable apprehension for taking the plea of right to private defence. It is a defensive and not a punitive or retributive right so the parties are not allowed to take this defence.In a free fight, no right of private defence is available to either party and everyone is responsible for their own acts.
The right of private defence, as the name suggests, is an act of defence and not of an offence. Consequently, it cannot be allowed to be used as a shield to justify an aggression. This requires a very careful weighing of the facts and circumstances of each case to decide as to whether the accused had in fact acted under this right. Assumptions without any reasonable basis on the part of the accused about the possibility of an attack do not entitle him to exercise this right.
For example, A is trying to stab B with a knife suddenly B picked a rod lying nearby him and threw it at A making him bleed, he can exercise his right to private defence.
