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Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     22 November 2012

Is it beneficial to combat all court battles

 

The following article of mine, was syndicated on over 140 websites/ blogs. I would love to hear the views of my brothers on the same.

_______________________________________________________________

IS IT WORTHWHILE TO FIGHT ALL COURT BATTLES?

 

This really is one factor, I wanted to write about. Is it worthwhile to fight all court battles? Couple of instances within the recent past has re-enforced my belief that some of the court battles are worth giving in. Loosing would be too harsh a word for certain sensibilities. The beneath cases might give some food for thought for some litigants. The names are not disclosed to protect the identities and I hold no opinion concerning the attorneys in these cases and also the roles are stated matter of factly.

 

Lately, one gentleman whose case was in Delhi met me via one of the forums. The background was that in some accident/ incident he was amputated as well as developed some erectile dysfunctionality. The gentleman then relocated to one of the cities in South India and took up a good job which fetched him around 50000/- monthly, the rest of the loved ones, including two children, however stayed put in Delhi. For reasons best known to each of them the legal battle ensued. Wife filed for 498a/406, CrPC 125, DV in Delhi and the husband filed RCR in South India.

 

Status of the case – when he met me the case was running for nearly 2 years. Interim maintenance in CrPC 125 was decided for Rs. 12000/- per month for wife and kids to be paid from date of filing of the application. Wife was not accepting summons for RCR. Problems were to be framed in CrPC 125 and DV. Chargesheet was awaited in 498a/406. Numerous sessions of mediation had taken place in between the parties not heading to any solution. His lawyer was asking him to challenge the interim award of CrPC 125 in High Court for the sole reason that hardware to overcome his incapacity costed around two,00,000/- each and every Two Years to this gentleman and that wife had left him w/o any valid factors. On top of it the gentleman was travelling to Delhi from South India atleast a month by air and therefore he was left with no cash to help the wife and children. Ah yes! The attorney was charging Rs. 5500/- per appearance as well.

 

After large amount of deliberations with this gentleman, it was appealed towards the Hon’ble Court that Rs. 12000/- award should be made permanent by consent order having a 10% raise every two years. Additionally the gentleman would deposit a sum of Rs. 2500/- per youngster in a Recurring Deposit in his city under his guardianship for the higher studies of the children. And also the gentleman would get access to the children with mutual conv. anytime this gentleman is in Delhi. The arrears would be cleared in subsequent two years. Both CrPC 125 and DV were therefore compromised and closed. Also, he would withdraw the RCR.

 

It took me around three months to impress this gentleman that he was gifting nearly this much cash to the airlines and forgive me for saying so – to his lawyer. The alternatives didn’t look too bright. In Delhi the HC would have asked him to deposit 50% from the arrears. He was spending anywhere between 14000 to 17000 for air travel alone each and every month. And considering the very best case scenario even when the maintenance of the wife were to be denied (which would not be as she is an housewife) no court would deny maintenance for the children. In addition, he would have access to children. As the parties would be at talking terms, the probabilities of settlement/ compromise is much more.

 

Below such conditions, I fail to understand why people can not do easy maths. Is it simply to deny the spouse and children, 1 is prepared to splurge on useless items? Or is it just that Ego Issue? Or is it that hatred requires more than reasoning?

 

DISCLAIMER: I am not the lawyer for this gentleman. He had met me via on of the forums I am associated with.

 

In yet an additional case, the maintenance case was referred to the counseling. The husband was earning about 17000/- and was stated to be spending Rs. 2000 on medication for depression monthly. Following some deliberations an amount of Rs. 4000/- per month was agreed to become given towards the wife and minor daughter.

 

Somehow, the members of the family of the husband was not happy with this arrangement. The reasoning baffles me. Let the girl run for couple of years and then she would understand. Isn’t this too defeatist?

 

DISCLAIMER: Even within this case, I advised the husband to go alone on first date, not to file reply and get the case referred to mediation and close it.

 

Now in both these instances, from whatever angle one looks, the husbands have given in. The wife side can claim a victory of sorts. But I’m from the opinion that in both instances, the parties have avoided prolonged litigation, and the money which they would have spent in litigation, travelling and loss of earnings is shared between the parties. Also, the mental tension is reduced shortly. The conduct of the husbands in both cases is established to be great.

 

And when both the parties know that the maintenance won’t be denied in their case, is not it better to settle exactly the same out of court? Could some parties show such maturity? Or am I missing some thing? I would love to listen to views on such kind of settlements.

 

Regards,

 

Shonee Kapoor

 



Learning

 10 Replies

Tajobsindia (Senior Partner )     22 November 2012

Nothing new here to say if it is an article or strategy or wisdom or simple marketing principles applied in social Laws; well let us now open up individual views this board for discussion;

Here are my reference to context views;

There are two types of Lawyers and similarly there are two types of litigants (gender not specified here; hence word “his/him” wherever are used are used as gender neutral as per definition contained in IPC)

First two types of lawyers:-

Type one – Whose upper and lower story is full and is just doing practice for sake of name and fame and if some fees comes in it seems it is better to him. He does not show interest if justice is done to litigant or not. Only crieteria he follows in his dharma  is compromise with some hyper analytics thrown in for justification of mind.

This type will start and stick with analytics only and blunt social solutions will always cometh from him bze his upper and lower story is already full and does not apply law of 'natural justice'.

Type two – Who struggles to meet his both upper and lower story as daily grind of self sustenance and understands Law.
 
This type is most common, though he knows metaphorical illustrations in alleged article but he has to follow his only dharma and strives to somehow give to his client "natural justice'.


Now let us see who are two types of litigants:

Type one – Who realizes power of analytics from a third person and such third person who can be any one he comes in contact with, only criteria here is that, that third person alleged referred here as anyone should be street smart to grill in Law of nature / survival.  

This type is exemplified in both metaphorical illustrations thus illustration analyses are impressive to self but can never stand test of 'natural justice' the very foundation either litigant (gender here) went to Court.

Type two – Who receives enlightenment very late but does not have self power to make it happen and he ends up becoming self activist to his own (unknown) cause and this person should be left on his own path.

This type is the most vulnerable one and for him 'justice' meaning comes from his gut feeling even some price he pays and this type is the most common one we face daily in various Courts.

Now to ask such "benefit" question in its simplified form will not do complete justice to such alleged wisdom compiled now into an article form. It will only reflect as lone fame and thumps up view of a wise person. Reason being there are peculiar external circumstances for a litigant to listen to or act upon and that inner listening could be coming from his gut feeling as intuition or even from a interaction with a wise man and anyhow matrimonial litigation is not like marketing SWOT analysis to impress upon so “benefit” question itself becomes infructuous here as what a Lawyer and/or Litigant benefits at the end of any family litigation, actually nothing to add bluntly here as both end up as loosers in eyes of Law as neither applied "natural justice" principles but used street smarts aids and shown the lollipop of "benefits" and normal people hailing from any strata of life don't realise this for a very very long time.


I hope I laid critical soft bottom line analysis of why, how and when of your alleged article gist syndicated in some 140 websites as you say and according to me in either types of 'giver' and 'seeker' personalities stakes in reference to context time line is not a "benefit" forecast as either types interaction / chance meeting are all in hands of mother Nature and cannot be kept in box of generlisation?

Now allow me also to add here, what you intentionally missed telling generic readers which is about “adversial legal system in India” in reference and specific to matrimonial laws which makes either personalities (Lawyer as well as Litigants) act the way they act.  Because unless there is a fire (adversial legal system) there cannot be smoke (legal torpedo’s as some of the illustrated once here which are nothing but your gist of wisdom spoken and followed by selective readers in say some 140 websites as reply to various queries therein) and may construe as giving self publicity only).

[BTW, this piece which just got interpreted cannot be  called as an Articleit is collective wisdom specific applied to various illustrations then given a facade of an Article is what it is all about, so calling it Article will do literary injustice to Naipal’s
India and hence consider re-phrasing opening lines is my brotherly neutral views at the end of speking tree!]

Anyhow good piece for word of mouth sharing purposes.............

stanley (Freedom)     22 November 2012

 

"IS IT WORTHWHILE TO FIGHT ALL COURT BATTLES?"

It would depend on case to case basis and there is no hard and fast rule for this . From a litigant's  point of view it would be based on rebuttal ,vengenace , dominance ,family, pride and society. You have stated cases just releating towards the maintanence point of view in which you have not mentioned the wifes background wether educated working and nor are the childs ages being mentioned to talk about custody scenerio's mentioned above your post is half empty and partly full to be impressed upon .

In the first scenerio i find it rather difficult to understand how the first lady stayed put up in delhi without  any means for her lively hood was she having  a love affair with another person ?? if so than the husband would have got custody of the kids and if it was a case of desertation she would not even have got maintanence .

From a litigant point of view your maths does not work as a person  only sees that low maintanence should be passed and neither are you in a position to compromise and predict  with your own law of maths as to what the judge would predict for maintanence as there is no set formula till of date in india . Hence i dont forsee in what way you have impressed upon these Gentlemen over a period of 3 months . Had there been a set formula i would have acknowledged your impressions .

Now going away from your post there are other ways to counter maintanence like paying voluantry maintanence in the court where Mr Tajobs has very explained in his post and as a PIP have tried and tested it out being a party in person to my case and it has worked . Where in the opposite counsel is baffled since he cant claim any interest whatsoever as and when the maintanence is passed :-). And believe me or not it creates an impression on the judge and you get a sabash from the judge wherein the opposite counsel is given a bashan from the judge as towards the apperciation on paying voluantry. 

Another scenerio would be when you appear party in person you dont have to pay any lawyers fees . Hence the more the case prolongs to come to a conclusion the more the opposite person suffers in terms of Vitame M (lawyers fees ) . so this is another way of bleeding the opposite party . And belive me i have seen the oppoiste party arguing/pressurising their own lawyers to get the orders passed which dosent happen so easily since law requires both parties consent to come to a concusion :-)

Now from the lawyers point of view

I would say there are three types of lawyers 

1. One who is forced to practise for society to acknowledge his degree and for his sustenance . And the words are encrypted on his wall . If case you are in need of any help please do get in touch with me . "I will try my best to help you out and convert you into my client " ....clients should come by word of mouth and not by advertising .

2. The second type when met upon is more of a lair than a lawyer who tries to impress his clients with yarns and yarns stating that i fought so and so case and in just two hearings i converted WS into affidivat and so and so story and won the case such that the applicant who filed the case was never seen and hearrd of in court after the battle forever :-). This type even does a setting with the opp counsel to prolong the case so that their bread and butter continues for the next few years . 

3. The third type who has built up his reputation not by his words but by his deeds in winning N no of cases which can be seen not through his own words but by the acknowledgement and by word of mouth his name is spread all over and mentions on his walls out rightly i am not here to seek clients either heed my advise or you are at liberty to see the next ...............:-)

Munirathnam (Scientist)     22 November 2012

Hi,

 

The Situation and the method to be adopted would helps the people (husband/wife) insted of understanding about many types of people (husband/wife) being those stories may not help the husband/wife.

 

If any one says particular menthod is suitable to husband/wife, then those circumstances maybe explained to husband/wife.

 

Any how above people are experts and respect their views.

 

Some times saving money also may not give peace of mind because of some society isses as point by one of the above. If everything colud be in one way then otherways people might have neglected by this time.....

vijay (M)     23 November 2012

My personal opinion is, had it been for the math only, there would not have been litigation at all.   Woman are most  happy if they get the man's money minus the man.  And men wish the other way round.  So all are in a soup.

victim (master)     23 November 2012

sir this was posted by you in one forum on 25/9/2008

https://www.498a.org/forum/viewtopic.php?f=46&t=3579&sid=43ed483166e2c1e5a7db2c73ea17090c&start=0

Hi Friends!

Along all other factors that weigh us down in 498a/ DV etc. One thing in particular is worrisome. That is paying maintenance to the lovely 498a wife. It is not that I am against the maintenance of wife in any manner. I am against the practise of these women first bleed us slowly and then use our hard-earned money against us by paying to their lawyers and by filing new cases everyday. I have personally known a couple of lawyers, who charge 50% of maintenance amount and do not charge anything else for fighting the case from the girl side. Here are my two bits on how you can reduce the burden, pay no maintenance. I am sure your counsels are intelligent people but no harm in being fore-armed with some judgements and knowledge.

First whether its CrPC 125 or 24HMA, the factors considered for grant of maintenance broadly are following:

1. Reasonable needs of the petitioner.
2. Income of the petitioner and respondent.
3. Liabilities of the respondent.
4. Liabilities of the petitioner (Read kids)
5. Any special needs of the petitioner/ respondent or dependents.

One factor diffirentiates in CrPC125 and 24HMA. Most of the High Courts have rulings which states that if the wife is earning/ has a permanant source of livelihood, she is not entitled for maintenance under CrPC 125. Whereas in 24HMA she can still claim maintenance, because this section empowers her to stay in the same kind of comfort/ life-style, which she was living in her matrimonial home.

if above underlined part is behind the claim for maintenence then if we follow maths and exhibits maturity then may be the same type of lawyers projects our maturity as our disability and weakness in front of their clients and after some time they may claim more amount or share in property or any such unreasonable demand. 

Sorry if i mentioned anything wrong, whatever little i know about this subject is through this forum only and through senior members only. correct me if i am wrong.

regards

victim
 

Tajobsindia (Senior Partner )     23 November 2012

Originally posted by : victim
 
sir this was posted by you in one forum on 25 / 9 / 2008

https://www.498a.org/forum/viewtopic.php?f=46&t=3579&sid=43ed483166e2c1e5a7db2c73ea17090c&start=0 

 
 

 

So in 4 years since last syndication stand have changed and now “compromise with mathematical wizardry” is on Board ;)

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     24 November 2012

Reply to comments:

In case someone missed "all" was word in the title.

Besides, I also filed RCR when my cases started and then I learnt the futility of it.

Also, those who advocate that the cases should be fought till the end, should first do so in their own cases before professing this to others. 

And I was a fast learner, when maintenance was denied to my lovely ex-498a wife, I offered to pay maintenance for my child. 

In the end I also settled my case by getting an MCD after acquittal, futility of long court battle in trial and umpteen appeals dawned on me.

We are in the habit of going through the rut in the same manner, that people before us have gone. Matrimonial Law as enforced has been changing, unless we adapt ourselves, we would be doomed. 

 

And if there were any genuine responses written between the lines, I could not gather. I don't write anything between the lines nor read the same. ;) :P

 

 

Regards,

 

Shonee Kapoor

PS: The illiterate of the 21st century will not be those who can not read and write, but those who can not learn, unlearn and relearn - Alvin Tofler (Writer of Future Shock, The Third Wave and Powershift - Highly Recommended Books)

PS1: Space we can recover, Time never - Napolean Bonaparte.

 

PPS: “To survive, to avert what we have termed future shock, the individual must become infinitely more adaptable and capable than ever before. We must search out totally new ways to anchor ourselves, for all the old roots - religion, nation, community, family, or profession - are now shaking under the hurricane impact of the accelerative thrust. It is no longer resources that limit decisions, it is the decision that makes the resources.” 

― Alvin TofflerFuture Shock

 

www.facebook.com/shoneekapoor 

Handphone: +91-8010850498

Email: harassed.by.498a@gmail.com

 

Yahoogroups: https://groups.yahoo.com/group/sahodar

1 Like

stanley (Freedom)     24 November 2012

 

Originally posted by : Shonee Kapoor


Reply to comments:

In case someone missed "all" was word in the title.

Besides, I also filed RCR when my cases started and then I learnt the futility of it.

Also, those who advocate that the cases should be fought till the end, should first do so in their own cases before professing this to others. 

Everybodies priorities in life are different and would depend on a case to case basis . Some wish to settle down and move on in life  whereas some fight for justice till the end and seek the truth rather than giving up easily 

And I was a fast learner, when maintenance was denied to my lovely ex-498a wife, I offered to pay maintenance for my child. 

Yeah you offered maintanence apperciate the same and had you not offered too than wouldnt the law takes it course and you would have to provide for your child if your ex still had custody of your child  and we all are aware maintanence for a child can never be denied ??;) 

But i apperciate the fact you you got custody of the child and your offer of maintanence disappeared like thin smoke  

In the end I also settled my case by getting an MCD after acquittal, futility of long court battle in trial and umpteen appeals dawned on me.

Apart from futility  “It has been my experience that most human stories are circular rather than linear. Regardless of the path we choose, we somehow end up where we commenced.” and so did Re- marriage dawn upon you ;) Everybodies cup of tea is different . Settling by MCD or in terms of out of court settlement would dawn upon a persons  priorities in life and as for some ,the ends of Justice would dawn upon them . 


We are in the habit of going through the rut in the same manner, that people before us have gone. Matrimonial Law as enforced has been changing, unless we adapt ourselves, we would be doomed. 

 Matrimonial  law is changing in what way ??  But  havent  gender biased laws come into force only for Women  . Now how do we adopt to gender biased law's  and save  mankind  from getting  doomed .:(

And if there were any genuine responses written between the lines, I could not gather. I don't write anything between the lines  nor read the same.  

" Nor Read the same " un quote ..........than how come a statement "if there were any genuine responses without reading between the line's " 

Regards,

 

Shonee Kapoor

 
1 Like

Tajobsindia (Senior Partner )     24 November 2012

@ Stanley

 

THAT is a damn sharp analysis I see emerging as discussion. 

A Full Circle without need of 'all' PS / PS1 / PPS:
 

”never negligently entrust your story onto larger public and say it is due to Future Shock without ensuring that the individual has a valid marriage driver’s capabilities or allowing the person to drive a marriage thru despite the individual’s past.”
  

rajiv_lodha (zz)     24 November 2012

Yes, its anybody's will to fight the cases in his own manner......one's own cost-bennefit analysis u know.

There cant be any generlization. Gandhiji made a pinch of salt to symbolically break the opressive laws of British........& he faught an exhusting battle so that there is victory of truth.

So ppl sometimes fight 4 the victory of truth rather than mathematically calculating the figures......& the fight satisfies their inner being. So be true to ur heart, if u justify the fight to ur inner-self, go ahead!

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