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Discussion > Family Law > How to challenge 'case laws' referred by opposite party?   Unanswered Threads Post New Topic

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There are 16 Replies to this message


Sakshi Sakshi


Self employed
[ Scorecard : 161]
Posted On 05 September 2010 at 15:41 Report Abuse

How to challenge 'case laws' referred by opposite party?

All the thaughts are welcome. Rgds.



Kiran Kumar


Lawyer
[ Scorecard : 16476]
Posted On 05 September 2010 at 16:35 Report Abuse

you refer the case laws suitable to your facts and the given controversy.

 

referring to case laws is necessary to elaborate the facts and law together.

 

seek help of your lawyer.



Total thanks : 1 times

Thangapandian


Advocate
[ Scorecard : 16509]
Posted On 05 September 2010 at 17:01 Report Abuse

you just go through the case law which is submit by your opposite party, try to get points in favour to you.. i mean if any contravercy between your case and the case law's facts.. thats all.. there you atre the king. simple logic if you put your concentration mean you can make face any citations or case laws.



Total thanks : 1 times

Thangapandian


Advocate
[ Scorecard : 16509]
Posted On 05 September 2010 at 17:02 Report Abuse

you just go through the case law which is submit by your opposite party, try to get points in favour to you.. i mean if any contravercy between your case and the case law's facts.. thats all.. there you atre the king. simple logic if you put your concentration mean you can make face any citations or case laws.



Total thanks : 1 times

Member (Account Deleted)


Advocate
[ Scorecard : 5650]
Posted On 05 September 2010 at 17:55 Report Abuse

I am thankful to you for asking the question.  For a long time, I have been thinking of placing my opinion on this point, as often I have been seeing on this web-site, several judgments placed by the members for proving their cases / arguments.  Tthey do not prove their case at all or if proved that only within the limited territorial jurisdiction of the High Court, which passed the order, that too, if there is no different  judgement delivered by the division bench of the same High Court.

First of all, in every judgment, there are two parts.  The first part is "ratio decidendi" (rational part - reasoning part) which has got binding in its nature.  On whom it is binding is different issue and I deal it later.  The other part is "obiter dicta"(Passing reference).  This is not binding in nature.  It shows how the particular judge is feeling about the issues, about the state of affairs like that.  For example, if a judge in a judgment says " Delhi has become a rape city.  Here women are not feeling safe any more after 7.00 P.M.", ""In these days, women are misusing Section 498-A",  "In Section 24 of Hindu Marriage Act, women are not revealing their real income.  They are cheating their husbands" and "in these days, no one is telling truth before the courts of law".  All these are personal remarks, passing comments and have no binding nature and on the basis of these comments teh fate of other cases cannot be decided.  But, if in a judgment, a judge says "After alleging several cruel acts perpetrated by wife, if the husband files Restitution of Conjugal Rights application, it is deemed those cruel acts are condoned".  It is placing a legal principle in the judgment and it is binding.  If in a judgment that the court rules - "A hindu man and Muslim woman' marriage  cannot be treated as marriage under Hindu Marriage Act, even though the customs and rites are followed,  till the muslim woman converts into hindu religion as per established customs", it is ratio and binding.

Now Whose judgments are binding on whom?

The Supreme Court's Constitutional bench having 13 judges, 11 judges, 9 judges, 7 judges, 5 judges (in most cases 5 judges would sit) judgments are binding through out India, except J& K.  The three judges bench decisions are binding on two judges of Supreme court and all other courts in India except J& K.  The two judges bench decisions are binding on other two judges benches and other courts in India except J&K.  Now if there is any conflict of decisions between the two judges benches on the same issue, the matter has to be referred to three judges bench.  With due respect, I say that we see some deviation in this principle in the cases pertaining to ""irretrivable breakdown of marriage"  cases and S. 376 cases, dealt by S.C. 

Now same formula applies in the case of High Court.  High Court's decisions are binding only within its territorial jurisdiction.  The Delhi High Court Judgements are valid only in Delhi.  They have persuasive values and not binding nature on other courts.  Here aso, full bench decisions, three judge bench decisions, two judge bench decisions and finally single judge bench decisions will be binding in that seratum. If a single judge is deviating another single judge's ratio, it is prudent upon him to refer the matter to the chief justice asking him to get the matter decided by two judges.  Otherwise judicial indiscipline increase and anarchy will spread in the judicial system.  I reiterate that one high court's even full bench decisions are not binding upon the single judge of the other High Court.  In the case of district courts (Sessions courts), civil judge (magistrate court), they are bound by the decisions of Supreme Court first and next its own High Court.  If a division bench of H.C. decision and Single bench of H.C. decision is put before the district judge on the same point, whatever he may think, he is bound to follow the division bench judgement.

Now before the District judge, two judgements of its high Court (single judge) are placed, which gave ratio on the same issue but with contradictory result.  Now the D.J. has to decide first whether both the judgments have dealt with the same issue.  Then he has to come to his own opinion whether they are really contradictory in nature.  Finally if so, he has to go through the entire judgements.  If one judgement dealt by referring all the previous binding judgements on the same issue and other judgement is not referring any precedents, the prudent judge follows the first judgment.

Now, you see, in the courts at higher level, some judges will not  refer the judgements given by the parties and in some cases, they even not mention the judgements, which are referred by the parties.  If they mention those judgments, they have to give logical reasoning that why they are not following the ratio laid down in such precedents.  It is more difficult for a single judge if he wants to deviate the division bench judgment.  But what common man thinks is that the judgement passed by a single judge is binding from Kashmir to Kanyakumari.  Some people knowing all these facts, only to mislead the people, give more propaganda to such judgements which have no binding nature beyond its territory and already there exist contra judgement delivered by the division bench.

Now, on the basis of above descripttion, you may contest the case law filed by the opposite counsel. 



Total thanks : 5 times

swatirswatir


Professional
[ Scorecard : 396]
Posted On 05 September 2010 at 18:02 Report Abuse

very well explained.


tusharcosmic


Properties and Finances
[ Scorecard : 1742]
Posted On 06 September 2010 at 09:50 Report Abuse

Mr Prabhakar has explained the matter quite exhaustively,I feel,though I know the logic but not the law.


N.K.Assumi


Advocate
[ Scorecard : 21881]
Posted On 06 September 2010 at 14:42 Report Abuse

I completely agree with the view of Prabhakar. That is why we need Video camera in every Courts for recording the court  proceedings, otherwise the Judges will do whatever they think is right in black and white and this trend is very dangerous to the judiciary.



Total thanks : 2 times

Sakshi Sakshi


Self employed
[ Scorecard : 161]
Posted On 06 September 2010 at 20:02 Report Abuse

Please accept my sincere thanks to all who gave comments and

Special thanks to Mr Prabhakar ji

 

Thanks & Regards


tusharcosmic


Properties and Finances
[ Scorecard : 1742]
Posted On 07 September 2010 at 18:57 Report Abuse

 

I suggest a drastic method to keep a constant vigil on each and every move of the Govt. Officials including judges and police.


Each and every counter of Govt. officials be video graphed including police and  Judiciary and these videos should be easily available for general public on demand through RTI. RTI should be made more powerful and the response time of RTI be shortened from 30 to 15 days.



If banks can do the same for the vigilance of their ATM centers why it could not be done by our Govt.During these days technique has made everything very easy and inexpensive.



This move ,according to me,can reduce the bureaucratic terrorism and corruption to a great extent,if not fully.


Plz. Contribute and suggest things from your side.




Total thanks : 1 times


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