divorce in united states

(1)      Divorce in united states is governed by State Law rather than Federal Law.

(2) the laws of state of residence at the time of divorce govern

(3) the laws of the state where couples married , will not be applied.

basic approaches 

fault based

no fault divorce

no fault based divorce 

It does not require any allegation or proof of either party for dissolution of marriage.

grounds

incompatibility, irreconcilable differences etc

fault based

it requires allegations for dissolution of marriage

defences

collusion

condonation

connivance

provocation

recrimination etc

collaborative divorce

in such a divorce parties decide according to their own will and interest and in this way they come to agreed resolution because of trained attorneys.

summary divorce

jointly filed divorce petition

basically it means that the husband and wife discussed  the  terms required by state law and they have  reached a mutual agreement.

divorce ruins family life it is as painful as death 

cognizance

what is cognizance

cognizance is the  application of judicial mind to the facts of a case to determine whether the  facts disclosed constitute an offence ( 1985 SCMR 1314)

Section 190 provides for cognizance of offences by Magistrate ; by its subsection(  1) all  Magistrates  of 1 st  Class or any other Magistrate especially empowered by provincial Government on the  recommendations  of  the High  Court may take cognizance of any offence

(a) upon receiving a complaint

(b) upon a police report

(c) upon information received from any person other  a police officer; or upon his own knowledge or suspicion;

that such offence has been committed  which he may try or send to the Court of Session for trial

Upon receiving a complaint

The provision in section 190 empowers a Magistrate to take cognizance of an offence upon receiving a complaint which constitute an offence .

Complaint { sec 4( 1) clause h

The allegations made orally or in writing to a Magistrate with a view to his taking action under this code that some person , whether known or  unknown , has committed an offence

but

it does not include the report of a police officer.
section 200

it requires that a Magistrate taking cognizance of an offence on complaint shall at once

(a) examine the complainant upon oath

(b) substance of the examination shall be reduced  to writing 

(c) shall be signed by the complainant and also by Magistrate 

section 201

it provides that if the complaint has been made in writing to a Magistrate who is not competent to take cognizance of the case, he shall return the complaint for presentation to the proper court with an endorsement to that effect.

section 202

it says any court on receipt of a complaint to postpone the issue of process for compelling the attendance of the accused  person and to enquire into the case itself or direct an inquiry or investigation to be   made by  any justice of the peace or by a police officer.

A Court of Session may direct  the investigation to be made by a Magistrate subordinate to  it for the purpose of ascertaining the truth   or falsehood   of the complaint.

section 203

The Court before whom a complaint is made or to whom it has been transferred or sent may dismiss the complaint if after considering the statement on oath of the complainant and the result of the investigation or inquiry if any under section 202 there is in his  judgment no sufficient ground

for proceeding. In such case he shall briefly record his reasons for so doing.

cognizance

cognizance of offence upon a police report

The report contemplated by sub section(1)  clause (b)  of section 190 is the police
report under section 173 Crpc
complaint and final report
Report made by the police under section 173 Crpc based on investigation of a cognizable or on investigation of  a non   cognizable offence  with  the permission of the Magistrate comes within the  ambit of clause  (b) of section 190(1).But report submitted by a police officer under section 173 is not a complaint as envisaged in section 190(1)(a) Crpc

1996  P.Cr.L.J.735

Upon personal information  of the Magistrate

When the Magistrate takes cognizance of an offence under clause (c) of sub section (1) of 190 that is upon information received from any person other than a police officer or upon his knowledge or suspicion that such offence has been committed, the accused person has under section 191 a right to be informed that he is entitled to have the case tried by another court, and if the accused objects  to his being tried by such Magistrate,the case shall instead of being tried by such Magistrate, be sent to the Sessions Judge for transfer to another Magistrate.

Cognizance of offence by Court of Session

Except as otherwise expressly provided by Crpc or  any other law for the time being in force , no Court of Session can take cognizance of any offence as court of original jurisdiction unless the case has been sent to it under section 190(3

pretrial steps

Pre _Trial Steps

Before a regular trial  can commence , the following pre trial steps are necessary to be taken:

(1)  Determination of place of trial 

(2) Cognizance of offence by Court 

(3) issue of process to procure the attendance  of the persons accused 

(4) other matters e.g 

(a) supplying copies 

(b) accused counsel 

(c) fixing date of hearing 

 

(d) trial of complaint  and police  cases arising out of the same offence 

section 540

section 540

Power to summon material witness or examine person present

Any Court may, at any stage of any inquiry,trial or other proceeding under this code, summon any person as a witness ,or examine any person in attendance, though not summoned as a witness,or recall and reexamine any person already examined ;and the Court shall summon and examine or recall and reexamine any such person if his evidence appears to it essential to the just decision of the case.

Object of section 540

PLJ 2010 FSC 8

The object of section 540 is  to enable the Court to arrive at the truth.

2012 YLR 2302

The provisions of section 540 Crpc in examining ,recalling or summoning any witness were incorporated to confer jurisdiction on the Court to arrive at the truth in accordance with law and technicalities  should not be allowed to interfere with that function

2011 SCMR  474

Court has wide powers to call or recall any witness but such powers are not to be exercised to fill in lacuna left by any party.

Discretionary power

The section gives wide discretionary powers to a Court to examine any witness as a court witness at any stage of the case .(NLR 1999 Cr. 358)

The section consists of two parts:

(A) ONE  give discretionary power to the court
(B)the other imposing  an obligation on it.
PLD 2013 SC 160
At  any stage

The powers conferred by this section can be exercised at any stage of the inquiry or trial. PLD 1992  Kar.91

Parties to be informed beforehand about witnesses  to be examined

In fairness to parties and  with a view to afford them  an opportunity of proper cross examination , the Court should ordinarily inform them beforehand of the name of witnesses whom the Court intends to examine.But no such notice need be  given where the order summoning the witness is passed  in the presence of a party (PLD 1974 Lah. 14)

Examination of accused

Every accused has to be given a fair and reasonable opportunity of being heard and he should not be punished or penalized due to the pre occupation of his counsel (PLD 1991 Kar.351)

Essential to the just decision 

Where any evidence is essential for just decision of the case it is obligatory upon Court to allow its production and examination(2011 SCMR 713)

Example

in all important cases such as murder and dacoity it is essential to call the investigation police officer
Recalling of witness
Under the section the court is empowered to recall and reexamine  any person who has already been examined by  the court( 2011 MLD 470)

Production of documents

2004 MLD 1099

Provisions of section 540 does not at all refer to documents but it talks of summoning or examining of persons as witnesses or to recall or reexamine any person already examined.

1990 SCMR 895

SECTION 540 read with Article 161 QSO 1984

It is the duty of the judge where an essential document has been overlooked, to have it admitted in evidence by recalling a witness at any stage of the trial.

Rebuttal evidence

where a witness is examined under this section the other party against whom the evidence is givenis not entitled,as of right,to have an opportunity to produce evidence in rebuttal (PLD 1952 Lah.388(DB)
However if the evidence of a court witness is prejudicial to the accused ,opportunity to rebut such evidence must be given to the accused.(1993 SCMR 51)

section 342 crpc

section 342

Power to examine the accused

(1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him  , the Court may,at any stage of any inquiry or trial without previously warning the accused, put such questions to him as the Court considers necessary, and shall,, for the purpose aforesaid, question him generally on the case after the witness for the prosecution have been examined and before he is called on for his defence.

(2) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them; but the Court may draw such inference from such refusal or answer as it thinks just.

(3) The answers given by  the accused may be taken into consideration in such inquiry or trial and put in evidence for or against him in any other inquiry into or trial for, any other offence which such answers may tend to show he has committed.

(4) Except as provided by section 340 (2) , no oath shall be administered to the accused.

basis of section ( 2005 SCMR 364)

The section is based on the principle involved in the maxim

Audi alteram partem

no one should be condemned  unheard.

Applicability (AIR  1926 Lah. 667)

This section applies to cases triable by Magistrates.

Proceedings under section 488

This section does not apply to  proceedings under section 488.

Stage at which examination made 

PLD 1973 Lah.824

The examination of the accused generally on the case must be after the close of the prosecution case and before the accused is called on to enter upon his defence.

Evidence 

The word evidence  means evidence already given at the trial  at the time of the examination.
who may examine
The court alone is authorized to examine the accused person and the counsel for the complainant or the prosecution should not be allowed to take  part in the examination.

Denovo Trial 

Where the Magistrate trying the case is transferred and his  successor begins the trial he should examine the accused once again .( PLD 1956  Lah. 511)

Question him generally  on the case ( 2011 SD 675 ( FSC)

Without previous warning

Court may put such  questions to an  accused as the Court considers necessary at  any stage of any inquiry or trial without previously warning the accused.

Separate examination of accused

Where there are several accused, the case of each of them should be individually considered and each of them should be questioned with reference to the particular position brought out by the evidence against him.(PLD  1962 Pesh. 62)

Effect of answer on co accused

A statement of  an accused made under 342 may be used for or against him but cannot be used against any person other than the one who made it.(PLD 1961 Lah.  146)

Examination of accused in cross case

Where a case and a counter or cross case are both pending , the examination  of the accused in the one case , as a witness  in the  other , constitute a grave irregularity.( 11 Cal. 358)

SECTION 342(4) AND SECTION 340(2)

NO  contradiction or conflict exists between the two provisions of Crpc( PLD 1986 Lah. 222)
They are independent provisions

section 340 (2)

section 340(2)

Any person accused of an offence before a criminal court or against whom proceedings are instituted under this code in any  such court shall, if he does not plead guilty , give evidence on oath in disproof of the charges or allegations made against him or any person charged or tried together with him at the same trial:

Provided that
he shall not be asked, and ,if asked, shall not be required to answer, any question tending to show that he has committed or been convicted of any offence other than the offence with which he is charged or for which he is being tried, or is of bad character,

unless-

(1) The proof that he has committed or been convicted of such offence is admissible in evidence to show that he is guilty of the offence with which he is charged or for which he is being tried;

(2) He has personally or by his pleader asked questions of any witness for the prosecution with a view to establishing his own good character,or has given evidence of his good character;

(3) He has given evidence against any other person charged with or tried for the same offence.

opportunity to disprove allegations

Provisions of section 340 (2) is in the nature of an advantage which provided an opportunity to accused persons to disprove allegations against him.

cannot be compelled to be a witness

Accused cannot be compelled to be a witness against himself under section 340(2)crpc   and as such the provisions are not violative  of Article 13 (b) of the constitution.(  1990P.Cr.L.J. 1073 (DB)

Statement on oath

If the accused makes a statement on oath under section 340(2) he is to be cross examined by the prosecutor .

incrimating questions

During the cross examination the prosecutor is bound to ask him questions which may incriminate him in the commission of the offence, which will in fact amount to compelling him to be a witness against himself.,which is prohibited by clause (b) of Article 13 of the Constitution.

PLJ1989 Cr.C. 64

It is pretty evident that the section 340 (2) is inconsistent   with clause (B) of Article 13 of the Constitution.

section 342 and 340 (2) provides  valuable rights

Section 342 and section 340(2) are valuable rights which accrue to an accused for explaining incriminating evidence standing against him as well as for defending himself in his capacity as a witness. These are basic rights. Therefore opportunity ought to be provided with respect to his examination under section 342 or for his appearing as his own witness under section 340(2) so that he is left with no grievance of having not been heard personally. (NLR 2004 Cr. 326 (DB).

STATEMENT UNDER SECTION 342 CANNOT BE  TREATED AS STATEMENT UNDER SECTION 340(2)

Statement of accused on oath under section 340(2) cannot be equated with the statement required to be recorded under section 342 crpc because the purpose of examination of accused under section 342 is almost different from his examination under section 340 (2) .Under section 342 explanation of accused is sought about important and material pieces of prosecution evidence appearing against him, while under section 340(2) evidence is offered to disprove the case set up by the prosecution ( 2007 P.Cr.L.J. 133)

section 340(2) mandatory provision 

Provisions of section 340(2) are mandatory ,court is duty bound to examine accused on oath and accused has to give evidence on oath when called upon by the court  to meet the requirements of section 340(2) as accused can not escape doing so.

Omission causes illegality

Omission to record statement of accused on oath would be  an illegality and not an irregularity curable under section 537 crpc

Basic difference between section  342 and section 340

Section 340(2) is directed to the person accused.

Section 342 is directed to the Court.

PLD 1988 Lah.368