| Kishan Dutt Kalaskar |
| Advocate (Retired Judge) |
| Malleswaram, Bengaluru. |
| Ph: 9686971935 |
| CONTRACT FARMING & THE NEW ORDINANCES THAT AFFECT THE FARMERS |
| The scenario in India |
| The concept of contract farming is not new to India. Under the model APMC act, 2003 contract farming was legalized and the Agricultural Produce Marketing Committee (APMC) with given the responsibility to record the contracts. Presently, contract farming requires registration with APMC in few states. This means that the contractual agreements are recorded with the APMCs, which can also help in resolving the disputes arising out of these contracts. |
| The centre's new ordinance, i.e."The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Ordinance" is an endeavour to provide a national framework for contract farming by bringing uniformity in the provisions of contract farming under the various state regulations enacted under APMC acts. It provides for a three-level dispute settlement mechanism: The Conciliation Board, Sub-divisional magistrate and Appellate Authority. |
| The ordinance has three significant features: |
| 1. Farmers may get into a written agreement, which may specify the terms and conditions of the quality, grade, and time of supply price and extension of services. |
| 2. The agreement can be from a period ranging from 1 to 5 years. |
| 3. If there is any price variation that takes place, it has to be a part of the agreement. If there is any additional amount over the agreed price, the prevailing price in the APMC portal will be the benchmark. |
| Advantages of Contract Farming (To the farmers). |
| • It helps in skilling of farmers as they learn to use a spread of resources efficiently like fertilizer, pesticides and find involved with new technology in some cases. |
| • Farmers get the chance for diversification of crops. |
| • Price risk is considerably reduced as many contracts specify prices ahead. |
| • Contract farming can open up new markets, which might otherwise are out of stock to small farmers. The farmers may also get easy credit from the Bank under contractual agreements. |
| • In the case of agri-processing level, it ensures a regular supply of agricultural produce with quality, at the proper time and lesser cost. |
| To the Client |
| • They get uninterrupted & regular flow of stuff of top quality, which helps, in protection from fluctuation in market pricing |
| • Long term planning of business is feasible, as they need an infatuated supplier base of stuff. |
| • Concept of contract farming will be extended to other crops also, which helps to get goodwill for the organization. |
| Limitations |
| • Contract farming actions are often criticized for being biased in favour of firms or large farmers while exploiting the low bargaining power of small farmers. |
| • Problems faced by growers like an unwarranted quality cut on produce by firms delayed deliveries at the factory, postponed payments, low price and pest attack on the contract crop, which raised the value of production. |
| • Contracting agreements are often unwritten or informal in nature, and even written contracts often do not provide legal protection in India that will be observed in other countries. Lack of enforceability of contractual provisions may end up in a very breach of contracts by either party. |
| - Single Buyer – Multiple Sellers |
| - Adverse gender effects: Women have less access to contract farming than men do. |
| The new ordinance of June 2020 makes a good move in that course by stating the intention to promote contract farming. |
| Understanding The New Reforms For Farmers |
| Around three months ago, the Government of India had issued three ordinances, all these three ordinances are in relation to agriculture, farming, and it has the spirit of reforms to create ease for the farmers. |
| Usually, ordinances are issued only as emergency laws and later on, they have to be converted into proper legislation. Recently the Lok Sabha has passed one such ordinance, and the other two is in the pipeline. |
| This has led to protest by farmers in states like Punjab and Haryana, and the agitation might soon spread to Rajasthan, Madhya Pradesh and Uttar Pradesh too. Withstanding the pushback PM Modi has created that the farmers will eventually benefit from these ordinances. |
| Understanding the Ordinance |
| The first ordinance is the "Farmers Produce trade and commerce ordinance". This ordinance attempts that the farmers are able to sell their produce at other places except the APMC (Agricultural Produce Market Committee) regulatedMandis. The whole idea behind this is to expand the choice given to farmers, and if a farmer gets a better deal somewhere with a private buyer, he can opt-out from the APMC Mandi and sell it there. |
| The other two bills have not yet been passed, but this article will throw some light on it. The second bill, i.e. The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Ordinance provides a regulated framework so that farmers could enter into contract farming. |
| The third bill, i.e."The Essential Commodities (Amendment) Ordinance" allows the economic agents to get the food article stocked freely without the fear of being prosecuted for hoarding. |
| Therefore, what we observe is the idea of all these three bills was mainly to liberalize the market for farmers and to make the whole system more efficient for or better price realizations for all the concerned people, especially the farmers. |
| Why are the Farmers agitated? |
| The first ordinance in effect is the existing Mandi that is established under APMC have been excluded from the definition of trade area under the new legislation. Government has the defence that the creation of an additional trade area outside the Mandi will provide farmers with the freedom of choice to conduct trade in their produce. |
| The protesters say that this legislation will confine APMC Mandi to the physical boundaries and give a free hand to big corporate buyers. |
| The farmers are mainly concerned about the future of the minimum support price (MSP). Every year the government gets into a huge procurement program to buy massive quantities of wheat and rice at MSP, cause of which the farmers got an assured price per quintal, which was good income. The Mandi and APMC system is diluted or dismantled, and then there is no guarantee that the farmer will get the assured minimum price. Therefore, the government procurement system acts as a safety question and asked to the bargaining power of the farmers. The second point is that the new legislation has broadened the definition of traders; it defines traders as 'any person with a pan card can buy from the farmers who have to produce in the trade area.' |
| Secondly, in the present Mandi system, arhatiyas(commission agents) have to get a licence to trade in Mandi, protestors say that are arhatiyas half credibility as a financial status is verified using the licence approval process, but in the present law there is no press verification process as such for the farmer to trust the trader. |
| Interpreting the impacts of the legislation |
| We can look at the changes through two diametrically opposite ways. |
| 1. It was believed that the plan on paper would come into existence perfectly in real life, which would mean that the farmers will be able to get out of the clutches of the monopoly of APMC Mandi. A farmer will be able to choose and pick whom he wants to sell his product and at what price, after making an informed and well-researched decision. The farmers will not only make more money, but they will also be able to escape the exploitation by Arhatiyas and APMC Mandis. |
| 2. The second scenario that is possible is that the protesting farmers see this legislation as a law by the government to get away from its traditional role of being the guarantor of minimum support price (MSP). This is because minimum support price functions only in the APMC Mondays and not in private deals with other traders. |
| On the other hand, one can understand that why the farmers are so sceptical about these markets, a good example of this is a ban on onion exports; the government prioritized the interest of the consumers over the interest of the farmers. This has not happened for the first time; there are many incidents wherein the decision of the government to protect the consumer from high prices has resulted in farmers being robbed. It can be argued that MSP is the embodiment of this distrust. |
| Government's Defence |
| Government has assured and said that these provisions would be beneficial for everyone, be it, farmers, consumers or traders as almost all the agricultural experts were struggling for these reforms in the agricultural sector for a long time. It will lead the farmers to realize a better price as this is forward-looking legislation, and it is a win-win situation for everyone. |
| Conclusion |
| As we are unable to get a clear picture of what impact this legislation will have on the farmers, traders and consumers, the only thing we can do is to wait and watch the implementation of these legislations. At present, the government shall try to devise a mechanism to convince the farmers that this legislation eventually will benefit them, and sort out the distress over the minimum support price, which the farmers possess, as it gave them a fixed income. |
| The author of this blog/Article is Kishan Dutt Kalaskar (No.74, 1st Floor, Opp:Upadhya Skin Clinic, 6th Cross, Sampige Road, Malleswaram-560003, Bengaluru), a Retired Judge and practising advocate having an experience of 35+ years in handling different legal matters. He has prepared and got published Head Notes for more than 10,000 Judgments of the Supreme Court and High Courts in different Law Journals. From his experience he wants to share this beneficial information for the individuals having any issues with respect to their related matters. |
| M. K. Viswanath |
| Adv. Chennai |
| MARRIAGE HALL CONTRACTS – LEGAL STATUS of BOTH PARTIES in the LIGHT OF COVID-19 |
| It is quite true that the COVID 19 pandemic has devastated the normal pace of life. There have been many businesses which were affected, and one such business contract which have been commonly entered into by many persons is the booking of marriage halls. Marriages are conducted in great pomp and splendor in India. The general Indian notion is that a marriage is a once-in-a-lifetime event and worth spending a lot of money. Marriage halls are booked well in advance, and in most cases, the rent for the marriage halls is paid much early, even six months before the marriage. Such contracts for the letting out of the marriage halls get frustrated because of the Government imposed regulations of the conduct of such functions. |
| Let us delve into the legal position. An agreement to do an impossible act is declared void under sec. 56 of the Indian Contract Act. More importantly, an agreement to do an act which has become impossible after the contract is made, due to some event which the promisor could not prevent, becomes void. The contract is valid on the inception, but it becomes void due to the reason, the agreement cannot be performed.. |
| Reference must be made an old English case TY v. CL 2. In this case, agreement was in relation to the let out of a music hall on certain dates. However, the said music hall caught fire before the first date of the concert, due to fault of neither parties. The plaintiff sued the defendant for the losses. The Bench opined that the contract was not absolute, and subject to an implied condition that the parties shall be excused in case, before breach, the contract becomes impossible without the performance of the contractor. |
| Now, there is a clash of two contentions. The contractees claim the principle of absolute liability in relation to the sanctity of the contract. The contractors raise take shelter of the principle that the shared contractual assumption that has been destroyed under the circumstances. The court will take into consideration as to whether any untoward event supervenes the performance of the contract. |
| Beyond all these, it must be remembered that law is dependent on social dynamics. These legal principles may not alter the general mindset of the parties. The return of the amount is inevitable, but a recovery suit for the same is unthinkable, given the general prevalence of a notion that civil suits take a long time to get adjudicated. The marriage halls are in a dominant position and the contractees are in a subservient position, owing to the fact that the payment has been made already. |
| Nevertheless, all the above circumstances are based on contracts read in isolation. If a marriage hall refuses to refund the advance paid, the said refusal must subsist for a number of such contracts, considering the fact the pandemic has been in existence for months together. So, when he is put to defend a number of lawsuits together, it would be catastrophic for him, if not placing him in a situation of formulating a common method of settlement. If he does not treat the contractees with parity, he is put to greater civil liability under the common law remedy for his ulterior discrimination. Thus, there is no incidence of unjust enrichment. |
| This is one understanding of how the object of law is upheld at all times by social action. The victims who impose faith in the remedy and recourse available are never left unprotected. |
| M. K. Viswanath |
| Adv. Chennai |
| HOW THE SUPREME COURT HAS STRUCK DOWN "ARBITRARY ARBITRATION" |
| The focal point of this article is the judgement of the Hon’ble Supreme Court in PEA s and ANRR v. HSCC, in Arbitration Application no. 32/2019, dated 26.11.2019. |
| Law changes according to societal dynamics. The concept of arbitration, mediation and alternative dispute resolution has entered the facade of the justice delivery system and is gaining momentum nowadays. Nevertheless, there are a lot of dissidents to the inclusion of arbitration clause to a private agreement. There are a cluster of sceptics who do remain incredulous to the fact that consent can create an adjudicating body, create jurisdiction and invest life and breath in it. However, opponents to such currents of thought opine that the huge burden of cases can dissolve only by reasonable and amicable justice delivery systems, and of course, consent to a dispute resolution system does not amount to waiver of fundamental rights. |
| Now, let us accept consent can create and invest jurisdiction, for the sake of legislative acceptance. The nature of the consent granted must be consent rendered, and not consent obtained. To spot the hair line of difference, let us see a typical form of contract, called “standard form contracts”, or otherwise known as “contract of adhesion”. Lord Denning J commented, “No customer in a thousand ever read the conditions. If they had stopped to do so, they would have missed the train or bus”. One party is put in a dominant position and the other is in a subservient position. Possibly, one person among a thousand might bother to read the clauses in the software terms and conditions, even before looking for the “I AGREE” button. Nobody reads the jurisdictional clause behind a courier receipt. The customer who signs or accepts such terms of contract is one whose consent has been obtained, not one who has rendered actual consent. It is because of the apparent circumstances which draw him to sign the agreement under compulsion. |
| The most popular of such contracts of adhesion are credit card and personal loan contracts. And invariably, such contracts contain an arbitration clause. (It’s notable that an arbitration clause should be treated as a separate agreement in itself). The financial institution obtains consent, not that the borrower is unwilling to sign them, however, in such a circumstance that the borrower would not be able to alter the terms. In such contracts, the lender includes an arbitration clause authorising themselves to appoint a sole arbitrator to adjudicate any disputes arising thereupon. Moreover, the venue of such arbitration would be quite afar from the place where any part of the cause of action arises, near to the head office of such financial institution. |
| This has been struck down by the judgement of the Hon’ble Supreme Court in PEA and ANRR v. HSCC, in Arbitration Application no. 32/2019, dated 26.11.2019. The Supreme Court has rightly observed, “Naturally, the person who has an interest in the outcome or decision of the dispute must not have the power to appoint a sole arbitrator. That has to be taken as the essence of the amendments brought in by the Arbitration and Conciliation (Amendment) Act, 2015 (Act 3 of 2016) and recognised by the decision of this Court in TRF Limited.” By virtue of this precedent, one party to the arbitral proceeding cannot appoint a sole arbitrator. In other words, no person can be a judge of his own cause. |
| Ajay N.S. |
| Adv. High Court of Kerala |
| COVID 19’S IMPACT IN INDIA - AGREEMENTS AND CONTRACTS |
| COVID-19 has posed a threat to human life across the globe so much so that it has now been termed a ‘global pandemic’ by the World Health Organization. People in most of the countries in this globe have been infected with the virus and reporting new cases every day. On 11th March 2020, the World Health Organization declared COVID-19 as a pandemic after noting that COVID-19 has increased day by day in all countries other than China. Governments have also declared COVID-19 an epidemic, in order to invoke the emergency provisions of the Epidemic Diseases Act, 1897. Recently, even the Supreme Court of India had invoked its Special powers under Article 142 of the Constitution to extend the ‘limitation period’ (by way of suspension) in all cases against the usual timeline as enumerated under the Limitation Act, 1963. |
| There has been adverse impact on the world as well as Indian economy. The impact of COVID-19 on domestic and international businesses is severe, across countries and sectors. The spread of Covid-19 and the lockdowns that have followed have thrown the economy and government finances into turmoil. The spread of corona virus presents unique issues for employers seeking to protect themselves, their employees and the public. Parties may cite this pandemic as a ground for opting re-negotiation of price and terms of the contract. Now is the time to pull out your contract and consider how the contract’s delay, time extension, or force majeure clauses, as well as other contract clauses and legal theories, allocate this unusual risk between the parties. Are there possible liability clauses, issues, and defenses that you are overlooking? This Alert looks at how typical construction contracts allocate risk for COVID-19, as well as how Indian law treats relevant clauses, including potential relief outside the contract terms. |
| Some of the similar situations were faced in Great Recession 2008 in Indian Economy. India escaped the direct adverse impact of the Great Recession of 2008-09, since its financial sector, particularly its banking, is very weakly integrated with global markets and practically unexposed to mortgage-backed securities. However, India’s “real economy” is increasingly integrated into global trade and capital flows. It thus did suffer “second round” effects when the financial meltdown morphed into a worldwide economic downturn. India's GDP growth has slowed down to 5 per cent. the lowest in six years, instantly triggering a gloomy mood across sectors, which was already under pressure due to weak consumer demand and a credit squeeze from 2018.But the COVID-19 made complete uncertainty, as it appears no one can actually and accurately predict what is going to happen; the extent, range, scale and length of time of the damage, especially to the global economy, as a result of COVID-19. The immediate results were supply-chain disruptions, unintentional and imminent delay in performance and carrying out of the contractual obligations. |
| Force Majeure and Hardship |
| Most of the contracts concluded today include a clause called 'force majeure'. These clauses generally state the events that constitute force majeure and then explain the actions that the parties may take if these events occur and the legal consequences thereof. In view of the COVID-19 pandemic, the 'Force Majeure' clause will now come under perlustration, especially in relation to commercial contracts. The term Force Majeure meaning superior force appeared in the common law world in the 1900s .It is a common clause in contracts that essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties, such as a war, strike, riot, crime, epidemic or an event described by the legal term act of God (hurricane, flood, earthquake, volcanic eruption, etc.), prevents one or both parties from fulfilling their obligations under the contract. In practice, most force majeure clauses do not excuse a party's non-performance entirely, but only suspend it for the duration of the force majeure. A force majeure provision in a commercial arrangement is an express provision of circumstances in which performance under the contract will be excused or suspended temporarily. The impossibility of performance may be due to factual or legal reasons. For this reason, while examining the results of the pandemic, the administrative measures taken for fighting against the disease should be followed closely and their effects should be evaluated. |
| If the difficulty was due to circumstances outside a party's control and was so great that no reasonable person in similar circumstances would be likely to overcome it, then that might be an exception. At this unfortunate affairs, parties to commercial contracts and legal experts, nationally and internationally are continuously reviewing and assessing their contractual provisions for seeking suitable rights and obligations, specifically on the potential routes for discharging the commercial arrangement or contract, particularly force majeure. |
| Execution of contracts |
| A contract is an enforceable agreement. This term ‘enforceable’ simply means a contract having the force of law (ie, it fulfils all other criteria essentials for it to be deemed a contract) must be performed by all the parties to it, and in event of failure to do so the party aggrieved may bring a civil suit in a court of law or refer it for adjudication or arbitration as the case may be. |
| Doctrine of frustration as enshrined in Section 56 of the Indian contract act 1872 deals with those cases where the performance of contract has been frustrated and the performance of it has become impossible to perform due to any unavoidable reason or condition. This doctrine is treated as an exception to the general rule which provides for compensation in case of breach of contract. But section 56 only deals with cases of subsequent impossibility as opposed to cases of initial impossibility. Section 56 is based on a common law principle known as ‘Doctrine of Frustration’ propounded by English judges through a series of case. As per this Doctrine there can be two grounds upon which even a legal contract can be termed ‘frustrated’ or, in other words, absolving all the parties from the liability of performance on account of certain intervening factors: (1) performance of contract is physically impossible, and (2) the object of contract has failed. The legal effect of a finding that a contract is frustrated is that all parties are discharged from their obligations. It is a high threshold, but in current circumstances, the Indian courts might be more open to frustration arguments. |
| These principles have been upheld by the Supreme Court to be well within the ambit of Section 56 and thus we conclude that frustration as a result of COVID-19 will be safeguarded by the present contractual law. When in situations where it would be physically impossible to perform a contract owing to restrictions imposed on individual or an area, say, delivery of goods in a locality where all movement of people are restricted will fall within the present law, and both promisor and promise would be relieved from any contractual duty and liability in case of non-performance. |
| Breach of Contract |
| Sec. 73 deals with Compensation for loss or damage caused by breach of contract. When a contract is broken, the party who suffers by such breach is entitled to receive compensation for any loss or damage caused to him from the party who has broken the contract. The same time when there is a breach of contract, party to the contract cannot determine as to who has committed breach. Damages could be recovered from the person who has committed breach only after the same is determined. The conditions of contract would be considered as liquidated damages and could be recovered and no power has been conferred on the other contracting party to determine the damages. |
| Key actions that you should immediately take to properly evaluate and plan for a force majeure event: |
| 1. Review your contract. |
| Re-assess and review the contract .Identify key clauses implicated by COVID-19. What relief are you entitled to under these clauses? What do you need to do to preserve your rights to claim this relief, in terms of notice and other documentation? |
| 2. Identify specific impacts and document. |
| What delays is your company facing? How are your downstream vendors and suppliers affected? What notices should you be sending out, if any? Answer these questions and document impacts as they emerge and evolve. It is critical to document all delays and how the delays were caused. |
| 3. Formulate a plan. |
| All parties have a legal duty to mitigate COVID-19 impacts. Identify these impacts and the steps you can take to lessen their effect. Are there other scopes of work under the contract you could be performing despite all the governmental shutdowns? Maintain communication with clients, contractors, suppliers, etc. Monitor updates to legislation and other governmental orders, keep a strict record of the various notifications and orders by government and administrative bodies. The same may be evidenced during the litigation/arbitration stage. |
| 4. Communicate to inform, not to agitate. |
| Formal notices and other written and verbal communications among the parties should be precise, factual, and without emotion or hyperbole. The point is to inform while also satisfying technical notice requirements. Attacking the other side and putting them on the defensive may yield a short term tactical advantage, but it can also have the opposite effect and make it more difficult to mitigate or resolve anything in both the near term and long term. Mutually along with the other parties to the contract analyze the impact of the outbreak of COVID-19 on the contract and its performance. |
| Supreme Court has taken Suo Motu cognizance of the situation arising out of the challenge faced by the country on account of Covid-19 Virus and resultant difficulties that may be faced by litigants across the country in filing their petitions/applications/suits/ appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under Special Laws. So we can expect more judgments in the above aspects after the Covid-19 days. |
| Ajay N.S. |
| Adv. High Court of Kerala |
| DIVORCE BY MUTUAL CONSENT - PROCEDURES IN COURT |
| Mutual Consent Divorce is a simple way of coming out of the marriage and dissolves it legally. Important requirement is the mutual consent of the husband and wife. There are two aspects on which Husband and Wife have to reach to consensus. |
| Mutual Consent Divorce between Hindu Couple is governed by The Hindu Marriage Act, 1955, under Section l3B.Mutual Consent Divorce in case of Court marriage is governed by The Special Marriage Act, 1954 under Section 28.Mutual Consent Divorce in case of Christian Couple is governed by The Divorce Act, 1869, under Section 10 A. |
| When can the divorce by mutual consent be filed? |
| The parties intending to dissolve marriage are required to wait for at least one year from the date of marriage.They have to show that they have been living separately for a period of one year or more before the presentation of the petition for divorce and that during this period of separation they have not been able to live together as husband and wife. |
| Divorce by Mutual Consent. 13 B Procedures in court. |
| The Conditions required under section 13B of the Hindu Marriage Act are as follows: (i) Husband and wife have been living separately for a period of one year or more, (ii) That they are unable to live together, (iii) And that both husband and wife have mutually agreed that the marriage has totally collapsed, hence marriage should be dissolved. Under the above circumstances a Divorce by Mutual consent can be filed. |
| Steps in Court Procedure (13 B) |
| In all there are two court appearances in a mutual divorce. 1. First A joint petition signed by both parties is filed in court. Secondly In the first motion statement of both parties are recorded and then signed on paper before the Honourable Court. 2. Thirdly The 6 month period is given for reconciliation, (the honourable court gives a chance to the couple to change their mind) 3. Fourthly 6 months after the first motion or at the end of the reconcile period if both parties still don't agree to come together. Then the parties may appear for the second motion for the final hearing. 4. Divorce decree will be granted as the Honourable Court may deem fit. |
| Under sec. 28 of the Act, which primarily deals with the provisions relating to obtaining a divorce by mutual consent in respect of a marriage solemnized and/or registered under the Act, a petition for divorce by mutual consent may be presented to the District Court. A few key points to be considered while seeking a divorce by mutual consent are as follows: |
| 1. A petition for divorce must be presented to the District Court by both parties together. |
| 2. The petition must be on the grounds, • that they have been living separately for a period of one year or more, • that they have not been able to live together, and • that they have mutually agreed that the marriage should be dissolved. |
| 3. The petition may be presented only after one year from the date of entering the certificate of marriage in the Marriage Certificate Book. However, relaxation may be provided in cases where exceptional hardship is suffered by the petitioner or in cases of exceptional depravity on the part of the respondent. |
| 4. The petition seeking divorce by mutual consent could be presented to a District Court / Family Court , within whose jurisdiction, either, • the marriage was solemnized, • the respondent resides, or in case the wife is the petitioner, where she is residing, • the parties to the marriage last resided together, or • the petitioner resides, in cases where the respondent is residing outside the territories to which the Act extends. |
| 5. Between 6 months after, and within 18 months of, the date of presentation of the petition seeking divorce by mutual consent, both parties must make a motion together seeking grant of a decree of divorce. |
| 6. Before passing a decree of divorce, the District Court considers the following, among other aspects: • that the petition has not been withdrawn yet, • that a marriage has been solemnized under the Act, • that the averments in the petition are true, • that consent for divorce has not been obtained by force, fraud or undue influence • that there has not been any unnecessary or improper delay in instituting the proceedings. |
| Thus, the provisions and the procedure for obtaining divorce by mutual consent under the Special Marriage Act are fairly simple and straight forward. |
| Can any one party withdraw the mutual consent petition after filing in the court? What will happen by that? |
| During this period of 6 months when the petition is pending in the court, any of the partner is fully entitled to withdraw the mutual consent by filing an application before the court stating that he/she does not wish to seek divorce by mutual consent. In such circumstances, the court grants no divorce decree. |
| Where to file a divorce petition: |
| 1. The court can be one where couple seeking divorce last lived. |
| 2. The court can be one where the marriage was solemnized. |
| 3. The court can be one where the wife is residing as of present. |
| The Supreme Court held that the minimum cooling period of six months for granting the decree of divorce under the Hindu law can be waived by a trial court if there was no possibility of cohabitation between an estranged couple. |
| M. K. Viswanath |
| Adv. Chennai |
| INTERROGATORIES UNDER THE CIVIL PROCEDURE CODE, 1908 |
| Litigants are wary of delay in civil Court proceedings. There exists a general notion that a civil suit may take years, even decades together. Here, there are many tools strewn across the Civil Procedure Code which enable the victims of delayed justice achieve their ends and cross the stages of a civil suit quickly. One among such tools is the discovery of evidence through interrogatories. |
| INTERROGATORIES - MEANING |
| Discovery of evidence by interrogatories are provided for under Sec. 30 and Order 11 of the CPC. The meaning of interrogatories may not be directly clear, but the form of interrogatories portrayed in Appendix C to the Civil Procedure Code, 1908 provide us a fair idea. To put it simply it is a list of questions, in the form of a questionnaire which is served on the other party/parties. It is also notable that the interrogatories in Appendix C are in the form of leading questions. |
| POINTS TO NOTE |
| • The leave of the Court must be obtained. |
| • An affidavit must be filed seeking the leave of the Court as provided for in Form 1 of Appendix C to the CPC, which must be accompanied by the interrogatories. |
| • A separate order must be obtained in case a party wishes to deliver more than one set of interrogatories to the same party |
| • An affidavit to answer the interrogatories must be filed within ten days from the date of service, or within such other time as the Court may allow. |
| • The interrogatories need not be answered personally, but may be answered through a recognized agent. |
| • Any one or more of the answers to the interrogatories may be used in trial as evidence. |
| • Interrogatories which do not relate to any matters or the question in the suit shall be deemed irrelevant, even if they might be admissible in the cross examination of the witnesses. |
| • A interrogatory may be set aside on the ground that they are exhibited unreasonably or vexatious. |
| • An interrogatory may be struck out on the ground that they are prolix, oppressive, unnecessary or scandalous. |
| • An application for the above purpose may be made within seven days after the service of the interrogatories. |
| • Alternatively, an affidavit for answer can contain objections to the interrogatories on the ground that they are scandalous, not bona fide and immaterial at that stage of suit. |
| • If a party interrogated omits to answer, or answers insufficiently, the party interrogated may apply to the Court requiring the interrogated party to answer the omitted question, or to further answer the question which is insufficiently answered. |
| UTILITY OF INTERROGATORIES |
| • Interrogatories are an essential tool to save time and protect the adversary against delay. The evidence stage is an important part of civil proceedings, and consumes a lot of time. This is primarily because, the presence of the parties and witnesses are necessary. Further, there may be documents which have to be submitted the Court which requires time. But, when the deposition required to be taken against the opposite party is simply recorded without the presence of the party, but has the same value as such, it may halve the time consumed in the evidence stage. It is notable that the limitation to answer the interrogatories is ten days. |
| • It must be noted that the affidavit submitted in response to interrogatories have huge evidentiary value. Most lawsuits rest upon one straight question, if the opposite party put to answer, will make him lose his morale, as he may not have a direct answer. For example, in a case for bare injunction, the plaintiff is not entitled to the remedy if he does not have the possession. Such a straight question, if posed by the defendant, will make the plaintiff reconsider the feasibility of the lawsuit in entirety. |
| • The mens legis behind this provision is the curtailing of unnecessary costs and expenditure. The appearance of the parties for simple questions may be unthinkable in many cases. |
| Kishan Dutt Kalaskar |
| Advocate (Retired Judge) |
| Bengaluru |
| THE PROCEDURE FOR POLICE CLEARANCE CERTIFICATE |
| By Kishan Dutt Kalaskar, A Police Clearance Certificate (PCC) is an official record given to a person by the Indian Police or an approved Indian Government official. It recognizes any criminal records that an individual may have against their name and, gives a clearance certificate if such records are clear which, might be needed for Indian or foreign nationals who are residing or have resided in India,for the following purposes: |
| • Going after professional jobs requiring freedom |
| • Looking to move or get visas of different nations |
| • Fulfilling an organization's solicitation |
| An Indian PCC does not have the time of legitimacy supported on the declaration. For the most part, it is legitimate for a half year. It should further be noted that a PCC is given uniquely to people who are more than 18 years of age. |
| Significance of Police Clearance Certificate |
| In any case, if it's for work, schooling, or travel use, having a legitimate police clearance certificate implies that you have no criminal records covering the time or stay in the nation. Suppose in any capacity, whatsoever, you have been engaged with any criminal behaviour or were captured because of law infringement. In that case, special notes relying upon the responsible nation will show up on your PCC expressing the infringement subtleties. So to break it down further, having a police clearance certificate shows how moral and mindful you are as a visitor or a resident. Incapable of providing PCC brings up issues from employers and travel specialists testing that you probably would not be a well-behaved resident of the nation. |
| Some components that influence Police Clearance Certificate: |
| • You have a significant criminal record- |
| If you have been sentenced or detained, then it will show records on your PCC. Remember that being detained, for over a year may influence your police check. Additionally, unpaid advances or service bills would make it hard for you to acquire a PCC. |
| • Relationship to a criminal gathering- |
| If you are an individual from an association, club, or sorority with a criminalrecord, this may affect the believability of your PCC. Any contribution to the gathering, particularly those with crimes, will raise doubts. |
| • Record of unethical character- |
| Your over significant period records show how upstanding you are as a resident. If in any way, shape, or form the specialists feel that you are not decent, or can be a danger to the nation, they are qualified to deny you a police leeway declaration. |
| Applying for an Indian PCC |
| People applying for an Indian PCC can broadly be classified into the followingclasses, in light of their identity and a current spot of habitation: |
| • Indian nationals living in India |
| • Indian nationals living external India |
| • Far off nationals residing in India |
| • Indian nationals dwelling in India |
| The Indian Government has changed the PCC application measure for Indian nationals living in India to a self-improved model where candidates can apply for a PCC online through the Passport Seva Kendra (PSK). These are the means associated with the application for a PCC through PSK: |
| • Complete the online application structure, pay the expense and timetable an arrangement to present the reports to the closest PSK |
| • Present the records at PSK: You should by and by present your archives |
| • Police check: Personal presence is required |
| • Gather the PCC from PSK: It might be gathered face to face. There is likewise a choice to have the PCC dispatched legitimately to the candidate's location from the PSK through enlisted/speed post. |
| Overall, it takes 15 - 20 working days from the date of accommodation of the application to get a reaction. |
| Procedure |
| For Online Form Submission |
| Step 1 Register through the Passport Seva Online Portal. (Click on "Register Now" link on the Home Page). |
| Step 2 Login to the Passport Seva Online Portal with the Login ID created in Step 1. |
| Step 3 Click "Apply for Police Clearance Certificate" link. |
| Step 4 Fill in the required details in the form and submit. |
| Step 5 Click the "Pay and Schedule Appointment" link on the "View Saved/Submitted Applications" screen to schedule an appointment. (Online Payment has been made mandatory for booking appointments at all PSK/POPSK/PO.) |
| Step 6 Click the "Print Application Receipt" link to print the application receipt containing Application Reference Number (ARN)/Appointment Number. |
| Note: Carrying printout of Application Receipt is no longer required. An SMS with your appointment details is also accepted as proof of appointment during your visit to the Passport Office. |
| Step 7 Visit the Passport Seva Kendra (PSK)/Regional Passport Office (RPO) where appointment has been booked, along with original documents. |
| For E-Form Submission |
| Step 1 Download the e-Form through the "Download e-Form" link available on the Home Page. |
| Step 2 Fill the downloaded e-Form and click the Validate and Save button in it.This will generate an XML file, which will be required later for uploading in the system. |
| Step 3 Register through the Passport Seva Online Portal. (Click on "Register Now" link on the Home Page). |
| Step 4 Login to the Passport Seva Online Portal with the registered Login Id. |
| Step 5 Upload the XML file (generated in Step 2) through the "Upload e-Form" link. Do not upload the PDF form at this stage as only XML file is accepted by the system. |
| Step 6 Click the "Pay and Schedule Appointment" link on the "View Saved/Submitted Applications" screen to schedule an appointment. (Online Payment has been made mandatory for booking appointments at all PSK/POPSK/PO.) |
| Note: Carrying printout of Application Receipt is no longer required. An SMS with your appointment details is also accepted as proof of appointment during your visit to the Passport Office. |
| Step 7 Click the "Print Application Receipt" link to print the application receipt containing Application Reference Number (ARN)/Appointment Number. |
| Note: Carrying printout of Application Receipt is no longer required. An SMS with your appointment details is also accepted as proof of appointment during your visit to the Passport Office. |
| Step 8 Visit the Passport Seva Kendra (PSK)/Regional Passport Office (RPO) where appointment has been booked, along with original documents. |
| Note:Only emergency/medical cases and preapproved categories may visit Passport Seva Kendra without an appointment. Service will be provided at the discretion of Passport Seva Kendra in-charge/Passport Officer. |
| Resubmission of application form is required; in case the applicant does not visit the Passport Seva Kendra within 90 days from the online form submission. |
| Disregarding Tickets and Fines |
| On the off chance that you have different unpaid tickets or challans, you will get a notice to pay compensation or challenge the tickets. |
| Some traffic violation related examples, causing suspension or abrogation include: |
| • Failure to respect a crisis vehicle |
| • Failure to comply with a railroad-crossing signal |
| • Causing an accident in a development/construction zone |
| • Reckless driving |
| • Drag dashing or road hustling |
| • Driving Under Intoxication (DUI) or exasperated DUI |
| • Refusing to take, or falling flat, a medication or liquor test. |
| Collecting a specific number of focuses can prompt a permit suspension too. With outcomes so severe, it pays to pay your traffic tickets, and even recruit an accomplished traffic ticket lawyer to assist you with dodging significant punishments. |
| Effect of traffic violations on PCC |
| In July 2015, the Kerala High Court held that the police specialists could not decline to allow a Police Clearance Certificate (PCC) to a resident referring to his association in a criminal case, and PCC must be given in the wake of remembering the subtleties of the case for it. The order was given by Justice K Vinod Chandran in the wake of considering an appeal recorded by OP , of Airport Nagar at Vappalassery in Ernakulam. OP is a cab driver working on the premises of Cochin International Airport Ltd (CIAL) and was asked by CIAL to create a PCC to proceed with his work there. Accordingly, to get the PCC, OP documented a solicitation before the sub-monitor of the Nedumbassery police headquarters. Nonetheless, PCC was declined to him by calling attention to that he is involved in a criminal case. Following this, OP documented an appeal under the steady gaze of the high court scrutinizing the police's disavowal of PCC and made the sub-overseer and Ernakulam country SP inverse gatherings for the situation. |
| Administering against the police's position that PCC cannot be given to those engaged with criminal cases, the court held that if the applicant is involved with wrongdoing, authentication must be given expressing the idea of the offence wherein the solicitor is involved. The Police Authorities cannot decline to issue a testament to the applicant. |
| For the most part, minor traffic offences (like speeding and running a stop sign or red light) are dealt with uniquely in contrast to more genuine infringement of the law. The punishments for minor petty criminal offences are less severe, and the court systems less formal. Furthermore, in many states, the municipal court, where cases including minor driving infringement normally go, is unique concerning criminal court. |
| The Supreme Court held that an individual submitting offences under the Motor Vehicles Act like over speeding and rash driving couldlikewise be reserved under the Indian Penal Code as both the rules work with full power, in their free circles. It further expressed that with quickly expanding mechanization, India is confronting an expanding weight of street traffic injuries and fatalities. A bench of Justices Indu Malhotra and Sanjiv Khanna put aside an order for the Gauhati High Court of December 22, 2008, which held that an individual reserved for over speeding, hazardous driving, and other related offences under the Motor Vehicles Act, could not be indicted under the IPC. |
| While as per Section 6 of the Passports Act, 1967, the identification application could be dismissed if an individual has a criminal history or cases forthcoming. It very well may be done to guarantee they are accessible in the nation for the length of the preliminary. On the off chance that they have been involved with a criminal examination, in any case, the charges against them were dropped, at that point, they may need to present the endorsement avowing the equivalent. It will likewise incorporate situations where there are warrants given in their name. |
| In any case, in 2018, to get control over traffic violators in the Pune city, Commissioner of Police Dr K Venkatesham had cautioned that such people would not get a police declaration (PCC), which is fundamental to get a visa. Numerous organizations likewise demand PCC during position hiring. |
| Venkatesham expressed that they are setting up a rundown of the traffic violators just as will impart their subtleties to the concerned office and, such people would not get PCC. Individuals should confirm and keep traffic rules since road accidents have been a severe cause for concern across the Indian subcontinent. In 2018 alone, the country reported around 151 thousand fatalities due to road accidents. Each year, approximately three to five percent of the country’s GDP was invested in road accidents. Notably, while India has about one percent of the world’s vehicle population, it also accounted for about six percent of the global road traffic incidents. Almost 70 percent of the accidents involved young Indians who drive carelessly and jeopardize the lives of other people too. |
| Conclusion |
| A Police clearance certificate is an essential document as it is a clear indication that an individual doesn’t have any criminal record, and it further helps an individual to prove his/her innocence. However, the process to acquire a PCC certificate is lengthy; therefore, to avoid such circumstances, it is always recommended to hire a professional who can legally procure such certificate. |
| The author of this blog/Article is Kishan Dutt Kalaskar, a Retired Judge and practising advocate having an experience of 35+ years in handling different legal matters. He has prepared and got published Head Notes for more than 10,000 Judgments of the Supreme Court and High Courts in different Law Journals. From his experience he wants to share this beneficial information for the individuals having any issues with respect to their related matters. |
| Kishan Dutt Kalaskar |
| Advocate (Retired Judge) |
| Bengaluru |
| FRIVOLOUS COMPLAINTS UNDER THE SEXUAL HARASSMENT ACT |
| Inappropriate behaviour at the workplace does not only make the workplace unreliable and threatening for women, but it also discourages their ability to convey themselves in the present contending world in accordance with the circumstances. The nature of social construct a male member has in the society continues to justify the violence that is happening against women. |
| "The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013" was India's first legislation that particularly raised the issue of sexual harassment at the workplace. In this year, 2013 there was also the promulgation of the criminal law amendment act (2013), which has criminalized offences such as sexual harassment stalking and voyeurism |
| Definition |
| In 1997, in the landmark verdict v. the State of Rajasthan, the Supreme Court of India defined sexual harassment at the workplace, well-defined anticipatory, prohibitory and redressal measures, and gave directions towards a legislative authorization to the guidelines proposed. |
| Sexual Harassment includes but is not limited to the following: |
| 1. Actual or attempt of rape or sexual assault. |
| 2. Unwanted intentional touching, leaning over, cornering or pinching. |
| 3. Unwanted sexual banter, jokes, remarks or questions. |
| 4. Whistling at someone. |
| 5. Kissing sounds, howling and smacking lips. |
| 6. Touching an employee’s clothing, hair or body. |
| 7. Touching or rubbing sexually against another person. |
| The scope of the present Act |
| The present Act prescribes the constitution of internal committees comprising of a female as the presiding officer and other members made up of one-half females. There is also provision for another district level ‘local complaint committee’ for receiving complaints from workplaces with less than ten employees. Internal Complaint Committee or Local Complaint Committee members will hold their position not exceeding three years from the date of their nomination or appointment. But this Act falls short of Vishakha judgment on numerous critical fronts and due to these controversial clauses in the Act; the Government has come in for sharp criticism by the Justice Verma Committee Report. The Act prescribes that The Internal Committee, before initiating an investigation under Section 11 and at the request of the pained woman take steps to reconcile the matter between her and the respondent through conciliation. |
| However, taking into consideration the unequal position of women in society, this provision may be abused. This also violates the mandate that is prescribed by the Supreme Court in Vishakha, which was a guiding force to the State ‘to ensure a safe workplace/ educational institution for women’. Apart from it, according to this Act, it has also been clearly provided that information related to the enquiry cannot be provided under the Right to Information (RTI) and it is the third subject, after the National Nuclear Safety Regulatory Authority Bill and National Sports Development Bill- where restrictions have been imposed particularly on the RTI. Additionally, though it is made mandatory for the employers by this Act to constitute internal complaints committees for looking into all cases of sexual harassment in the workplace, the Act is faulty as it also envisions a situation in which the offender may be an employer, as in the Tehelka case thereby making in almost all cases the autonomous and unprejudiced functioning of the internal complaints committees impossible. |
| Frivolous Complaints |
| The Act also puts some emphasis on seeking to punish false and malicious complaints along with the new rule that has been framed under this clause stating that the committee that has been formed by an employer on finding the accusation of sexual harassment to be malevolent or based on forged papers can punish the women even with the cessation of their jobs. Though it is clearly outlined in the Act that simple incapability to authenticate a claim would not be punishable, it has been found out that the existence of this clause along with the latest rule of punishing for false and malicious complaints will inexorably deter the women complainants from filing any complaints as it is sought by the executor to ascertain in almost every complaint that the complaint is bogus and woman may be hounded for her inability to prove their allegations. Section 14 stipulates to penalise a woman for filing a bogus complaint. Such a stipulation is a completely insulting provision and is intended to nullify the purpose of the law. |
| However, implementing a restraint does not mean creating antagonistic surroundings which will make every employee anxious abo¬ut filing a complaint. Employees must be confident to bring into picture everything, which is uncomfortable and disagreeable to them. The ambition is to avert the exploitation of the provisions designed to guard women at the workplace. This deterrence cannot be made by setting an illustration of someone who was punished for filing a malicious complaint as every employee who files a complaint under this Act is protected by the provision providing for secrecy. |
| First significant instrument here is that of awareness. The employer needs to generate alertness amongst its employees regarding the penalty of filing a malicious complaint. Employees need to be appropriately trained about the dissimilarity between complaints, which are not proven, and complaints which fall under the class of being malicious. Every instance a complaint is filed/ is about to be filed, the employee needs to be reminded of the cost of filing a malicious complaint. If guidance events (conferences, seminars, awareness programs etc) are held on the subject of Sexual Harassment, consequences of filing a malicious complaint under the Act also needs to be made clear. |
| Requisites after filing the complaint |
| Once a complaint has been filed, it is very significant to not assume maliciousness. If the administration has any intelligence or information that indicate a conspiracy or spiteful intent behind a grievance, it is practical that conciliation be encouraged and appropriately guided. Conciliation should not be suggested or imposed by the organization, but the person who brings the charges should know that she has a right to choose for conciliation. Conciliation is an alternating means of dispute resolution where an effort is made to resolve the dispute without a face off or further hardship. If the person who filed the complaint indicates a purpose to opt for conciliation, an impartial and experienced conciliator should meet the parties independently in an endeavour to resolve their differences. This procedure needs to be properly monitored in order to diminish the violence of the settlement procedure and extortionist claims. Focal point needs to be on condition that suitable apologies and arriving at an agreement; and not on monetary compensation – which is in any case barred by law. But if it doesn’t work out as intended, one needs to remain for the ICC to submit its Inquiry Report before taking any pace. |
| Due to the character of the work at hand, ICC needs to do its job very well. This is not very simple because it is hard to differentiate a complaint with no virtues with that of a complaint with a malicious intent. Therefore, it is greatly suggested that the members of ICC are trained about how proof needs to be appreciated and what are the recommendations, which need to be prepared. |
| Evidence, which comprise accounts of behaviour, messages & e-mails, should not be taken out of their framework, but considered contextually. The state of affairs that led to such proof needs to be appreciated and correlated appropriately to the matter at hand so that its context can be comprehended. |
| Court Precedents |
| Vis v. State of Rajasthan-In this case, the petitioner, was employed with an Indian government-owned development bank who had filed a complaint of sexual harassment against the General Manager of the Bank who was also her supervisor. However, there was no action on the part of the employer. Thus, to get justice, she took her case to the Trial Court where Court acquitted the accused for a reason stated as lack of the medical shred of evidence. By virtue of which so many women’s groups and organizations went for appeal against the judgments, and finally public interest litigation was filed in the Supreme Court of India against sexual harassment at the workplace. Therefore, the contentions put forward by the employee however challenged the validity of the Order before the Court under Article 226 of the Constitution of India and that a higher punishment should be imposed on the Supervisor as well. This landmark case raised so many issues in the state of affairs of sexual harassment which took place at a workplace, and the subject which was raised stated that whether the employer had any liability in the case of sexual harassment by its employee or to its employees at workplace or not. Therefore, the Supreme Court held that occurrence sexual harassment of a woman at a workplace would be the violation of her fundamental rights of gender equality and right to life and liberty. The court concluded in its judgement that such an act would be considered as a violation of women’s human rights. |
| U.C.S v. Madras Refineries- In this case, the Madras High Court witnessed a complaint of sexual harassment made by the employee of Madras Refineries Ltd, which was a public sector undertaking. The employee stated that she was denied her study leave with pay, salary and promotion since she refused the advances of the general manager of her department. Further, the complaint committee was established, but the employee continuously delayed the inquiry hence it was stated that her allegations of sexual harassment were purely a weapon used to negotiate for a promotion, study leave and pay which was opposed to company policy. After inspecting the facts, the court held that the employee’s allegations with regards to her promotion and study–leave was unjustified as both decisions arose in accordance with the company policy. The bench further urged the other courts to carry in mind the facts of each case individually without assuming that the woman is a victim and also stated that similar to Domestic Violence Cases and Dowry Harassment Laws there are a massive number of people who are jeopardized with false prosecution. It is equally difficult for a man who has been falsely implicated in proving his innocence in a similar way as a woman find it burdensome to accept and tell the people if she has been assaulted sexually |
| The Delhi High Court, in ASH v. Union of India & Ors,in recent times imposed a fine of INR 50,000 on a lady who had filed a grievance of workplace sexual harassment but was unable to establish any evidence or witnesses to authenticate her case. The petitioner was functioning as an Assistant Director with ESI Corporation. The petitioner filed a complaint to the Director-General of ESI Corporation claiming workplace sexual harassment by the accused. A second occurrence was mentioned stating that the accused told the petitioner to come unaccompanied in the male toilet to confirm the shortcomings in the presence of the employees and other members. An Internal Complaints Committee was constituted to scrutinize the grievance of the petitioner |
| The Committee scrutinized the petitioner, who could not remember the names of any of the persons present at the instance of the aforesaid incidents. The petitioner was shown the appropriate papers relating to the staff members present on that day but still, she could not remember the names. |
| Failing to prove anything that was even slightly associated with her case made the case look like a frivolous one. It became an effort to outline and contaminate the record of the accused. The employee record of the petitioner also was brought forward, which evidently pointed that she was not an worker who regularly followed the rules of manner, and the complaint hence reeked of ‘ulterior motive’. The case was decided against the accused to prove him not guilty, as it was found that none of the witnesses corroborated with the petitioners’ testimony from the day when the alleged workplace sexual harassment had taken place. Hence, she was fined INR 50,000 for filing the frivolous complaint. |
| Conclusion |
| Regardless of many years of consideration, lawful activity, and support, this examination of information, research, and experience demonstrate that inappropriate behaviour stays a genuine and inescapable issue crosswise overall industry areas and work environments. We found that no division stays immaculate by lewd behaviour, nor unaffected by its effects: Sexual badgering harms the lives, wellbeing, monetary freedom, and chances of innumerable exploited people, and costs organizations in lawful charges, however in lost efficiency, spirit, viability, and talent. By and by the time is over of talk to verify the working women against lewd behaviour; it's a high time to adhere to the laws to shield the working ladies which will, finally, offer a positive hint to set up a created and dynamic culture. |
| Even though it is beyond the realm of imagination to expect to prepare and change the demeanour of everybody, it is surely conceivable to prep and changes the frame of mind methodologies of some based. Further, women's associations should assume an urgent job to make lawful mindfulness among the majority. They ought to associate with neighbourhood individuals in spreading mindfulness about their genuine rights and responsibilities. |
| The POSH Act, 2013 was enacted with the reason of helping the sufferers of sexual harassment seek speedy justice. But, it is awful to see the unashamed misuse of the law in order to satisfy some individual vendetta and needs stringent measures, such as one imposed by the Honourable High Court in this case. Frivolous cases squander the time of the Court and augment the burden of pendency as well. Substantial fines and restrictions/prohibition need to be imposed for filing fake cases so that there is no loss of reputation of the individual being accused of such atrocious crime and no loss of court time as well. |
| Due to these reasons, the question of enforcing this legislation in informal, unregulated workplaces would remain. |
| The author of this blog/Article is Kishan Dutt Kalaskar, a Retired Judge and practising advocate having an experience of 35+ years in handling different legal matters. He has prepared and got published Head Notes for more than 10,000 Judgments of the Supreme Court and High Courts in different Law Journals. From his experience he wants to share this beneficial information for the individuals having any issues with respect to their related matters. |
| Kishan Dutt Kalaskar |
| Advocate (Retired Judge) |
| Bengaluru |
| THE PROCEDURE FOR FILING A COMPLAINT AGAINST A LAWYER |
| By Kishan(Retired Judge) Lawyers are the medium through which his client connects with the judiciary. However, as the demand for the legal industry has increased, it is also noticed that mishaps in this industry have increased. Some lawyers tend to use this situation to extract a hefty amount of money from their clients without providing proper services. To combat this situation, a person can file a legal complaint against the lawyer if he/she is not satisfied with the service provided by the legal person. |
| Following are the steps to file a complaint against a lawyer |
| Step 1: A complaint against an advocate needs to be filed through the mode of a petition. It is to be duly signed and verified as needed under the Code of Civil Procedure. A complaint is often filed either in English or Hindi or, in any regional language where the language has been declared to be a state language. In those cases where the complaint is in Hindi or another regional language, the State Bar Council shall translate the complaint into English whenever a disciplinary matter is shipped to the Bar Council of India as per the Advocates Act. Every complaint shall be attachedwith the fees prescribed bythe Bar Council of India Rules. |
| Step 2: The Secretary of the Bar Council may require the complainant to pay the prescribed fees if the right fee has not been paid. He/she can alsocall the complainant to cater to any defects and attach the particulars or copies of the complaint or other documents whichneeds to be further submitted. On a complaint being found, it shall be registered and placed before the Bar Council for such order which may deem fit to be passed. |
| Step 3: The complaintcan be dropped solely due to it having being withdrawn, settled, or because the complainant doesn't want to proceed with the inquiry. Before referring a complaint about the misconduct of an advocate to its disciplinary committee, the Bar Council may require the complainant to further furnish any requiredparticulars within a time fixed by the Council. |
| Step 4: Once the Bar Council has referred the complaint to a Disciplinary Committee, the Registrar should expeditiously send a notice to the advocate. The notice will ask the concerned advocate to point out cause within a specified dateon the complaint made against him and to submit the statement of defence, documents, and affidavits in support of the defence. It will also further inform him that just in case of his non-appearance on the fixed date of hearing, the matter shall be heard and determined in his absence. An appearance usually includes the presence of an advocate or through a duly authorized representative. |
| Step 5: The Chairman of the Disciplinary Committee will fix the date, hour, and place of the inquiry. This date won't ordinarily be later than thirty days from the receipt of the reference. The Registrar is responsible for giving notice of the date, hour, and place to the complainant or other person aggrieved, the advocate concerned,the Attorney General or the extra lawman of India or the Advocate General, in simple language, to whom so ever, the case is concerned. |
| Step 6: The notices shall, subject to necessary modification, be in Form Nos. E-1 and E-2. It shall be sent to the advocates appearing for the parties. Notice to a celebration not appearing by the advocate shall be sent to the address as furnished within the complaint or the grounds of appeal. The value of the notices shall be borne by the complainant unless the Disciplinary Committee otherwise directs. The notices could also be sent ordinarily through messenger or by registered mail and served on the advocate or the party concerned or his agent or another person as provided in the Civil Procedure Code. |
| Step 7: Parties can appear face to face or through an advocate who should file a vakalatnama giving the name of the Bar Council, his residential address, phone number if any, and his address for service of notices.The Bar Council or its Disciplinary Committee may at any stage of the proceeding appoint an advocate whose role will be amicus curie, i.e. a friend of the court. Such an advocate could also be paid such a fee depending upon the decision of the Council or the Committee. |
| Proviso: If in an inquiry on a complaint received, either the complainant or the respondent does not appear before the Disciplinary Committee despite service of notice, the Committee may proceed ex-parte or direct fresh notice to be served. Any such order for proceeding ex-parte could also be put aside on sufficient cause being shown, when an application is formed supported by an affidavit, within 60 days of the passing of the ex-parte order. The provisions of Section 5 of the Limitation Act, 1963 shall apply to the present sub-rule. |
| Proceedings and Exhibits- |
| The Disciplinary Committee shall hear the Attorney General or the extra lawman of India or the Advocate General because the case could also be or their advocate and parties or their advocates. |
| The matters can be heard and determined based ondocuments and affidavits. Cross-examination is not permitted unless the committee believes that it is in the interest of justice to permit cross-examination of the partiesor to take oral evidence, in which case the procedure for the trial of civil suits shall as far as possible be followed. On every document admitted, the subsequent endorsement shall be made which shall be signed by the Chairman or any member of the Committee: |
| The exhibits shall be marked as follows: – |
| • Those of the complainant as C1, C2, and so on. |
| • Those of Respondent as R1, R2, and so on. |
| • Those of Disciplinary Committee as D1, D2, and so on. |
| • The Disciplinary Committee may, at any direct the parties or their advocates to furnish such further and better particulars, because it considers necessary. |
| Recording of Evidence- |
| Any member of the Committee or any other person authorized by the committee shall record the evidence given before the Disciplinary Committee, preferably in English. The evidence so recorded shall be signed by the Chairman or by the other member of the committee if the Chairman isn't available. |
| In the case where the records of evidence are in any other language than English,then the same has to be sent to the Bar Council of India or its Disciplinary Committee, then an equivalent hasto be translated into English. Such a translation thereof in English has to be made by an individual nominated by Committee or Registrar. |
| Dropping of Enquiries on Certain Grounds- |
| In the case of the death of the complainant during the inquiry proceedings (and if no representative is willing to conduct the case), the Disciplinary Committee may be having regard to the allegations made in the complaint and the evidence available, make a suitable order either to proceed with the inquiry or to drop it. |
| In the case of an inquiry against one advocate only, on his death, the Disciplinary Committee shall record the fact of such death and drop the proceedings. |
| Where the inquiry is against more than one advocate, on the death of 1 of them, the Disciplinary Committee may continue the inquiry against the other advocate unless it decides otherwise. |
| Step 8: All proceedings before a Disciplinary Committee of the Bar Council shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code. The Disciplinary Committee of the State Bar Council, after giving the advocate concerned and therefore the Advocate-General a chance of being heard, may make any of the subsequent orders, namely: |
| • dismiss the complaint or, where the proceedings were initiated at the instance of the State Bar Council, direct that the proceedings be filed; |
| • reprimand the advocate; |
| • suspend the advocate from practicefor such period as it may deem fit; |
| • remove the name of the advocate from the State roll of advocates |
| Appeal |
| Appeal to the Bar Council of India- a person aggrieved by order of the Disciplinary Committee of a State Bar Council made under section 35, or the Advocate-General of the State may, within sixty days of the date of the communication of the order, prefer an appeal to the Bar Council of India. The Disciplinary Committee shall hear every such appeal of the Bar Council of India which may pass such order including an order varying the punishment awarded by the Disciplinary Committee of the State Bar Council thereon as it deems fit. However, as long as no order of the Disciplinary Committee of the State Bar Council shall be varied by the Disciplinary Committee of the Bar Council of India to prejudicially affect the person aggrieved without giving him reasonable opportunity of being heard. |
| IAn appeal to the Council from the State Bar Council shall be in the form of a memorandum in writing. If the appeal is in other languages apart from English, it shall be translated into English. In every appeal, all persons who were parties to the first proceedings alone shall be impleaded as parties. In an appeal by the advocate against an order for misconduct, in case of death of the complainant, the legal representatives of the complainant shall be made parties. The appeal has to be presented on or before the last day of limitation. Any appeal could also be admitted after the amount of limitation if the appellant satisfies the Disciplinary Committee that he has sufficient cause for not preferring the appeal within such a period. An affidavit shall support any such application for condonation of delay. |
| The memorandum of appeal shall contain necessary particulars as in Form G. The memorandum of appeal shall state when the order was communicated to the appellant with the time mentioned. Along with the memorandum of appeal, the appellant shall file: |
| • The certified copy of the order appealed against, signed by the Registrar of the Disciplinary Committee, or |
| • If there is only one respondent, five additional copies of the memorandum of appeal and the order appealed against. |
| • If there is more than one Respondent, such number of additional copies as may be necessary. |
| All copies shall be certified as true copies by the appellant or by his counsel. Every memorandum of appeal shall be amid the prescribed fees in cash. If the papers filed in an appeal aren't sufficient, the Registrar shall require the appellant to get rid of such defects within a specified time. |
| Exhibits and Records in Appeal- |
| The appellant shall be required to file six typed sets of the papers properly paged and indexed if there's just one respondent. In the case of multiple respondents, as many sets as there may respondents, for the use of the Disciplinary Committee and by the other parties and for the record. |
| The papers to be filed are: – |
| • The complaint and the statement in defence of the advocate. |
| • The oral and documentary evidence and such other papers on which parties shall rely. |
| • Any other part of the record as may be directed by the Committee. |
| Where any of the above papers are in a language other than English, English translations thereof will be filed. The respondent shall, if he so desires, or if so-called upon, file six sets of typed papers of any a part of the record on which he intends to rely. He shall also file English translations of papers that aren't in English. |
| TAppeal to the Supreme Court- Any person aggrieved by an order made by the Disciplinary Committee of the Bar Council of India under section 36 or section 37 or the Attorney-General of India or the Advocate-General of the State concerned, because the case could also be, may within sixty days of the date on which the order is communicated to him, prefer an appeal to the Supreme Court and thus the Supreme Court may pass such order including an order varying the punishment awarded by the Disciplinary Committee of the Bar Council of India thereon as it deems fit. Provided that no order of the Disciplinary Committee of the Bar Council of India shall be varied by the Supreme Court to prejudicially affect the person aggrieved without giving him a reasonable opportunity of being heard. |
| Conclusion |
| We live in a country where most of us are dependent upon the judicial power of the court as most of us trust the legal system of our country. The constitution of India underArticle 21 grants every citizen of India the “Right to Speedy Justice”, and if this is delayed or hindered due to any reason, then it is a clear violation of the fundamental right of an individual. These scenario arises when lawyers instead of providing justice to the clients shift their focus in extracting money from their clients which in turn leads to a difficultsituation in India, as people here rely upon the judicial system for any trouble faced due to legalities of the country. Therefore, it becomes of utmost importancethat an individual chooses a lawyer very carefully as this whole process is financially as well as emotionally draining. |
| The author of this blog/Article is Kishan Dutt Kalaskar, a Retired Judge and practising advocate having an experience of 35+ years in handling different legal matters. He has prepared and got published Head Notes for more than 10,000 Judgments of the Supreme Court and High Courts in different Law Journals. From his experience he wants to share this beneficial information for the individuals having any issues with respect to their related matters. |
| Kishan Dutt Kalaskar |
| Advocate (Retired Judge) |
| Bengaluru |
| DIVISION OF FAMILY ASSETS - RELINQUISHMENT DEED – NOC BY COPARCENERS |
| Division of assets, also commonly known as division of property, is one of the most debatable topics in India. Earlier, through the implementation of Hindu Succession Act, 1956 a girl in a particular family was allowed to claim her part of the propertyequally like her brothers unless there is a will executed by her father for the division of property. However, due to certain ambiguity and due to non-flexibility of this law, a recent amendment was made to this legislation. The recent amendment in the existing law has allowed the women who are born before the year 2005 to claim the property. |
| However, there are still a lot of cases, where the women of the family do not claim her share in father’s property. In such circumstances, her share needs to be entitled to someone in the family, and this process is known as the division of assets. Normally, a woman transfers her rights to share in the property to her brother as he mostly already has a share in the property. |
| Ways through which transfer of property can happen |
| This article focuses on how a daughter or sister can transfer her part of share in the ancestral property to someone else in the family. There are mainly two ways to do it. |
| 1. By signing a Non-objection certificate |
| 2. Through the process of relinquishment deed |
| By signing of the non-objection certificate (when there is no will executed) |
| As the name suggests, a non-objection certificate is signed when an individual legally wants to explain that he/she has no objection in doing a particular thing. Therefore, such scenario arises when a will is not executed as there is no proof how the property is to be divided between members of the family. |
| When a daughter signs a non-objection certificate (NOC), she states that she has no objection in transferring her share of the property to someone else in the family. This certificate is one of the most important certificates that is required to transfer the property in the case where no will is executed by the deceased of the family. |
| • Through the process of relinquishment deed (when there is no will executed) |
| An individual who receives a legacy under the will, or who obtains a property after the death of a person automatically without even the execution of a will is called the legatee or legal heir. However, if the legal heir chooses to give up rights in the share of the property, he or she will have to present a written letter in favor of other heirs (NOC), stating they are giving up their claim in the said property and in such a case, the children of this said person will also not be able to stake claim over the property in future. |
| • Through the process of relinquishment deed (when there is no will executed) |
| What is a relinquishment deed? |
| Relinquishment deed is a legal instrument where a legal legatee gives up or releases his legal rights in a hereditary parental property for another legal heir. |
| The expression relinquishment refers to the disposingoff and giving up of the rights, title, and interest, by one co-owner of property for the other co-owners. The subsequent scenario of relinquishment of one co-owner’s share in possessions is the extension of the shares of the other co-owners. |
| Essentials Elements of Relinquishment Deed |
| • Legal document: Relinquishment deed is a legal document. Through this legal document, an inheritor can reassign or discharge his legal right of the innate property. |
| • Consequences: The result of such transfer of rights is the discharge of the share of one co-owner and the augmentation of the shares of the other co-owners. |
| • Irrevocable: A release or relinquishment deed is binding and irrevocable in nature even if it made without any monetary consideration. For a valid relinquishment deed, more than one individual must be the owner of the property. |
| • Relinquishment cannot be done for a 3rd person: Relinquishment of assets can’t be made in favour of an individual other than a co-owner. If a relinquishment is made in favour of a person who is not a co-owner, the contract will be treated as a gift. |
| • Must be in writing: The relinquishment of property when the property is immovable - is necessary to be executed through a written document called relinquishment deed, that must be signed by all the parties to the deed and that has to be attested by at least two witnesses. |
| • Must be registered: Relinquishment deed falls within the ambit of Section 17 of the Registration Act, 1908 and hence, a discharge of rights in the immovable property must be registered. The registration has to be placed in the office of the sub-registrar within whose jurisdiction the property is located. |
| • Consideration: A relinquishment deed can take place with or without any consideration. |
| • Simple process: A relinquishment deed can be completed and registered in only some days, and this procedure is not costly. |
| Who can Relinquish a Property? |
| Any person who has a share in the property and who is capable of making relinquishment of property. In a circumstance that there is more than one proprietor in a property, either of the co-owners can do the relinquishment. For a valid relinquishment, the basics of a valid agreement are to be followed other than the reimbursement other than the consideration. |
| Registration of Relinquishment Deed |
| A relinquishment deed is a document by which an individual formally gives up his assets to another person, and the said deed must be methodically executed and registered in accordance Section 17 of the Registration Act, 1908. |
| For attainment a relinquishment deed registered, it is recommended to seek advice from a lawyer who can prepare the deed for you, and in case you know the legal methodology and terminology, you can do that on yourself. The steps mentioned below are to be followed to get a relinquishment deed registered: |
| • Preparation of Relinquishment Deed: A Relinquishment Deed is to be made on a stamp paper of Rs.100. Make sure that every aspect of the relinquished property is clearly cited in the deed. |
| • Submission the deed before Sub-Registrar of Assurances: Once the deed is prepared on a stamp paper, it is presented before sub-registrar of declaration within whose jurisdiction the property is located for registration along with a registration fee which differs from state to state, but it is somewhere between Rs. 100 – Rs. 250 in all states |
| • Witnesses and other requirements: Signatures of two witnesses will be necessary to get a deed registered. Other documents such as passport size photos, identity proof (driving license, Aadhar card, etc.) will be essential. |
| Case Laws |
| Case I |
| Facts of the case: |
| PS held vast properties. He died unmarried and issueless as well as was determined to give away the said properties to his two sisters named Mrs PS and GR by executing a gift deed in 1935. There had been no partition between them. Mrs Dayabai was survived by appellants 2,3and 4. Gracebai survived by appellant 1, named Mrs LJ, and respondent no. 3, namely Mrs PR. The 5.74 acres of land was divided between the survivors of Gracebai. Respondent no. 3 sold her share to Respondent no. 2 for Rs. 14,000/-. Later on, the transferee commenced digging the land to raise a structure. It was objected to by appellant no.1 as well as a suit was filed by Respondent 2. |
| The Trial Court dismissed the suit since the vendor was not in possession as well as the sale did not confer any right or title on them, whereas they can get their money refunded. The Court held that the respondent no 3 was in exclusive possession of the land, whereas rightfully sold it to the respondent no. 2. |
| Final Judgment: |
| The Madhya Pradesh High Court highlighted that it is the strength of the plaintiff's title and not the absence of the defendant&s title that matters. A purchaser of the undivided property from a co-owner&s share is not entitled to possession of any particular part of the joint property. His right would be for joint-ownership and not for exclusive ownership of any part of the joint property. A transferee is not in a better position than the co-owner himself. Section 44 of the Transfer of Property Act gives sanction to this principle. Therefore, the High Court held that the respondents were entitled to enforce the partition of the joint estate. The Court did not accept the sale of the exclusive property and allowed the appeal. |
| Case II |
| A single bench of the High Court of Delhi, vide judgment dated 20 May 2020 in the matters of Tripta Kaushik v Sub Registrar VI-A, Delhi & Anr and Ramesh Sharma v Government of N.C.T. of Delhi & Ors., has dealt in depth with the distinction between a relinquishment deed and a gift deed. The Court laid down a test to determine whether a particular deed is a gift deed or a release deed and held that if the relinquishment by the co-owner is in favour of only one of the co-owners and not all the co-owners, that particular document will be a gift deed and not a relinquishment deed. |
| - The character of the transaction intended by the co-owner is the deciding factor in determining whether the document is a release or gift deed and not the other factors or the language of the document; |
| - Determining the nature of the document is not a pure question of law; |
| - Mere usage of the words like “consideration” and “transfer” will not affect the true character of the transaction; this is applicable in case the co-owner is renouncing its share in favour of another co-owner; |
| - Co-owners can be through both inheritance and purchase; |
| - If the relinquishment is in the favour of only one of the co-owners and not against all, the document would then be considered a gift deed and not a release deed. |
| Through this judgment, the Delhi High Court has laid down a consolidated test to make it convenient for the comman man to gauge the difference between a release deed and a gift deed. |
| Conclusion |
| The transfer of ancestral property between legal heirs is a matter of concern always as it becomes a tough job, especially when there is no will executed by the owner of the ancestral property. In many circumstances, even when a will is executed, there are high chances that the heirs may not be satisfied with it and eventually challenge the will in the desired courts. Through the new amendment in the law, where a daughter can equally claim for her share in the property it has become important that the will is drafted in such a manner that it satisfies all the necessary prevailing laws in the country. |
| However, in most of the circumstances, a daughter refuses for her share in the property and often ends up in giving up her share of the property to her brother or mother. Such a process needs to be complied with the process explained above, for it to it be a legal and valid transfer in the eyes of the law. |
| The author of this blog/Article is Kishan Dutt Kalaskar, a Retired Judge and practising advocate having an experience of 35+ years in handling different legal matters. He has prepared and got published Head Notes for more than 10,000 Judgments of the Supreme Court and High Courts in different Law Journals. From his experience he wants to share this beneficial information for the individuals having any issues with respect to their related matters. |
| Kishan Dutt Kalaskar |
| Advocate (Retired Judge) |
| Bengaluru |
| ADULTERY UNDER THE INDIAN LAW |
| The word adultery derived its meaning from the Latin verb adulterium that means - to corrupt. According to the dictionary meaning, a married man commits adultery if he has intercourse with a married woman with whom he has not entered into wedlock. However, with an increase in the means of communication and media, it is no longer forbidden to speak about it in the present scenario, especially in the metropolitan towns where adulterous relationships are at an increasing due to which marriages are breaking. The relationship of marriage is sacred in all senses. If someone commits adultery, that person renounces the marriage vows and breaches the trust and love on which is the base of a marriage. |
| Introduction |
| Adultery means a predetermined sexual contact between two people of the opposite gender who are unmarried under the law. In other words, it is a physical relationship with someone outside marriage and the dishonesty by a married person to their spouse. It is also known as lust, vulgarity, infidelity, unchastity of thought, or an act for someone else’s spouse. |
| It is different from rape in the context that adultery is voluntary. Whereas, in rape, there is no consent of both the individuals for a physical or intimate relationship. But it is a must in the case of adultery. The term adultery was, however, associated with the married woman only who got involved in an adulterous act with someone who wasn’t her husband. |
| Adultery categorized into two types: - |
| 1. Single- If the relationship is between a married person and an unmarried person. |
| 2. Double- If both the partners involved are married to someone else. |
| Landmark judgement |
| In the case of Joseph Shine v Union of India 2018, the Supreme Court held its historic decision on September 27, 2018, by striking off the 158-year old law on adultery from the criminal statute book (Section 497 of the Indian Penal Code that punished adultery) since it became obsolete. |
| The law was challenged by Joseph Shine, an Indian who settled abroad. He found the law to be obsolete, prejudiced, and irrational. He stated that the choice to prosecute their deceiving spouse should be given to both husband and wife since the objective of the law is to protect the faith of marriage. Whereas the initial provision permitted only the husband to file a case of adultery against the other man with whom his wife was having an extramarital affair. He further pointed out that provision worked on the concept of husband’s consent as no case under this section was filed if a husband consented to his wife for having an illegitimate relationship with a stranger, inconsiderate of the woman’s consent. |
| Highlights of the argument that provoked the Judgement |
| The law does not make it an offence for a married man to engage in the act of sexual intercourse with a single woman and the wife is restrained from prosecuting her husband for being involved in an adulterous relationship. |
| It is only an adulterous man who can be prosecuted for committing adultery, not an adulterous woman regardless of the relationship is consensual. Thus, an adulterous woman is not treated as an abettor to the offence and is immune from criminal liability. |
| It was evident from reading section 497 of IPC that women were treated subordinate to men since it laid down that if there was a consent of the man, then there was no offence of adultery by the woman. Therefore, this treated the woman as totally inferior to the will of the master, which gave an impression of the social dominance that was prevailing when the penal provision was drafted. |
| Section 497 does not treat men and women equally since women are not subject to prosecution for adultery and cannot prosecute their husbands for adultery as well. Additionally, if there was consent or connivance of the husband of a woman who has committed adultery, no offence can be established. The section lacks an adequately determining principle to criminalize consensual sexual activity and is therefore violative of Article 14. |
| According to section 198(2) of CrPC, wife of an adulterer is not considered as an aggrieved person. The principle of the provision suffers from an absence of logicality of approach. Therefore, it undergoes the vice of Article 14 of the Constitution remarkably being arbitrary. |
| Article 15(1) prohibits the State from discriminating on the grounds of sex. Still, the husband is considered an aggrieved party by the law if his wife engages in sexual intercourse with another man, but it is not same with the wife if her husband does the same. Therefore, the offence of adultery distinguishes a married man from a married woman on the ground of sex. Thus, the provision is discriminatory and violative of Article 15(1). |
| Violation of dignity of woman and Article 21 [Right to life]-Section 497 diminishes the fundamental dignity which a woman is entitled to have by creating distinctions based on gender stereotypes which creates an indentation in the individual dignity of women. Therefore, the same offends, Article 21. |
| Adultery continues to be a ground for divorce- There can be no shadow of a doubt that adultery can be a ground for any kind of civil wrong, including dissolution of marriage. |
| Adultery as a ground for Divorce |
| Marriage is regarded as a sacrament as well as a civil contract; hence adultery is considereda sin. Personal laws all around the world denounce adultery, and it is treated as a ground for divorce or judicial separation. However, couples cannot use adultery as a ground for divorce if they lived together for six months after knowing about the act of adultery. |
| Adultery as a ground for divorce under Hindu Law |
| Adultery as a ground for divorce in India has been defined under Section 13(1) of the Hindu Marriage Act, 1955, as an act of having voluntary sexual intercourse with a person who is not the spouse of that person. Hence, it becomes essential for the petitioner to establish that the marriage took place between them and that the respondent had voluntary sexual intercourse with another person. |
| Adultery was treated as an immoral act before the enactment of the Marriage Laws, 1976, and was subjected to shame as well as irrespective of gender. However, it was not a ground for divorce. Adultery was considered as the grounds for judicial separation and divorce after the 1976 amendment, which marked a great development in the Hindu Personal Laws. |
| Section 10 of the Hindu Marriage Act, 1995 declares adultery as a ground for judicial separation. The provision states that the parties to a marriage may file a case of judicial separation under any grounds specified in Section 13(1) regardless of the marriage being solemnized after or before the commencement of this act. |
| In the case of SB v. Prof. KKB, according to the husband, the wife frequently visited the house of the co-respondent where she was often found in a compromising situation with him and even used to neglect her duties. Thus, the decision was taken in favour of the petitioner on the basis of evidence provided due to which judicial separation was granted. |
| Adultery as a ground for divorce under Muslim Law |
| According to the Quran, adultery is a severe offence which must be dealt with punishment to death which is not the case in most democracies since the constitutions call for the humane treatment of its citizens. The husband has a complete right to divorce his wife if he is competent to prove that his wife had an adulterous relationship, but it is not the same for the wife. She may only in circumstances of false accusations can either ask her husband to repudiate the accusations or divorce him under lien. However, if the husband repudiates the claims and withdraws from the act of adultery, the wife’s claims is thus cancelled. |
| In the case of TAM v. JKn, the Allahabad Court held that only such wives who are not guilty of adultery may use this as a ground for divorce or judicial separation. |
| The Dissolution of Muslim Marriages Act, 1939 defines little in Section 2(viii)(b) that where a husband falsely accuses his wife of adultery with an intention to create her evil reputation, she can sue him on the ground of cruelty. |
| In the case of ZH v. UR, the plaintiff’s wife alleged that her husband declared before several persons that she had an adulterous relationship with her brother. Thus, the court held that if a Muslim woman is falsely accused of adultery and she can plead for divorce on that ground. But the wife cannot file a divorce if the allegation of adultery is true. |
| Adultery as a ground for divorce under Christian Law |
| The law regarding divorce and judicial separation among Christians in India is contained in the Indian Divorce Act, 1869 and the Indian Christian Marriages Act, 1872. Section 22 of the Indian Divorce Act bars divorce mensa et toro, however, it makes provisions for a decree of judicial separation on the grounds of adultery. |
| The procedure for divorce in India under the Indian Christian Marriage Act is dual in nature. Firstly, the couple has to obtain an annulment from the Church and then they may approach the court for a decree of divorce. However, under the Act, the wife had to prove the presence of other grounds along with adultery such as such as, cruelty, change in religion, insanity, etc., whereas the husband only had to prove that his wife had indulged in an adulterous Act. Section 11 of the Act, however, provides that the adulterer has to be pleaded as co-respondent. |
| TThe Bombay High Court in the case of Pragati Varghese vs. Cyril George Varghese, commented upon this bystating that this puts unnecessary pressure on the wife and is blatantly unfair, and allowed adultery as an independent ground. In the case of Ammini E.J. v. Union of India, the Kerala High Court held that a Christian woman having to prove the offence of cruelty or desertion coupled with adultery is violative of Section 21 of the Constitution of India. |
| The provisions for Judicial separation under the Indian Divorce Actallows Christian women to file judicial separation on the grounds of adultery. Section 22 of the Indian Divorce Act bars a decree of divorce, but states that a judicial separation may be obtained by both the husband and the wife on the grounds of adultery. |
| The Special Marriage Act, 1954 |
| The Special Marriage Act recognizes adultery and states that if the respondent has after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his/her spouse, and it is a valid ground for divorce. |
| The Act has recognized adultery itself as an offence, and no additional offence has to be proved in order to obtain a decree of divorce or judicial separation. The present position on the concept of burden of proof has also been relaxed under the Special Marriages Act, 1954. |
| In the case of SR v. KL, it was stated that adultery may be proven by a preponderance of evidence and need not be proved beyond reasonable doubt as prima facie evidence as to the act of adultery may not be present and circumstantial evidence will have to suffice. |
| Court Precedents |
| Mr. White vs Mrs. White and Others (AIR 1958 SC 441): |
| In this case, the husband filed a decree of divorce on the grounds of adultery. The trial court granted the divorce decree, but the high court reversed the judgement of the high court. The case went on appeal to the Supreme Court. The question before the Supreme Court, in this case, was whether just an inclination to have sexual intercourse and thereby leading to adultery would arise in this case or not by living in one room as the respondent and the appellant wife stayed in one room for a night. The court held that her conduct as shown by the evidence clearly justifies that she has committed adultery and therefore Supreme Court reversed the order of the high court and thereby granting the decree of divorce to the husband. |
| Mr.ABC Vs Mrs.ABC (AIR 2001 SC 1285): |
| In this case, the respondent that is the wife filed a petition for divorce seeking judicial separation against her husband. Accordingly, the high court of Karnataka granted a decree for judicial separation and ordered the husband to give maintenance charges to his wife and daughter. But the husband after two years filed a petition for divorce under section 13(1-A) (a)of the Hindu marriage act, 1955 on the ground that there has been no resumption of cohabitation between the parties for more than one year after passing the decree of judicial separation. Hence the question before the Supreme Court was that whether this can be taken as a ground of divorce even after the husband and the wife as in this case are living under the same roof even after the passing of the decree of judicial separation. The court held that husband who continued to live in adultery even after the passing of the decree of judicial separation with his wife will not succeed for a petition of divorce under section 13(1-A) (a). |
| Condonation of Adultery- The fact that the husband cohabited with the wife even after the knowledge that she had been guilty of cohabiting with another person would be sufficient to constitute condonation. The husband's condonation of adultery disentitles him to the decree of divorce, even if such condonation is for the sake of the dignity of the family. |
| Evidence required by the court to prove Adultery as a ground of divorce |
| Adultery is one of the major reasons for getting a divorce and one can easily obtain a divorce on the grounds of infidelity. |
| What are the valid pieces of evidence for proving of adultery in India? |
| Not statutory but still these presumptive grounds are accepted by the court to prove adultery. |
| HSM Vs SND (AIR 2001 SC 1285): |
| 1. Circumstantial evidence, |
| 2. Contracting venereal disease, |
| 3. Evidence of visit to houses of ill-repute, |
| 4. Admissions made in previous proceedings, |
| 5. Confessions and admissions of the parties. Mere suspicion is not sufficient. |
| Customary rules prescribe the types of evidence that can be offered to prove guilt or innocence. There must be a showing by the prosecutor that the accused party and another named party had sexual relations. Depending on state statutes, the prosecutor must show that either one or both parties to the adultery were wed to someone else at the time of their relationship. |
| Evidence that the defendant had the chance to have sexual relations coupled with a desire, or opportunity and inclination, might be sufficient to prove guilt. Photographs or testimony of a witness who observed the couple having sexual intercourse is not necessary. The fact that a married woman accused of adultery became pregnant during a time when her husband was absent might be admissible to demonstrate that someone other than her spouse had the opportunity of engaging in illicit sex with her. |
| Letters in which the accused parties have written about their amorous feelings or clandestine encounters may be introduced in court to support the assertion that the parties had the inclination to engage in sexual relations. Character evidence indicating the good or bad reputation of each party may be brought before the jury. Evidence of a woman's sexual relationships with men other than the party to the adultery generally cannot be used; however, if her reputation as a prostitute can be demonstrated, it may be offered as evidence. |
| Suspicious activities and incriminating circumstances may be offered as Circumstantial Evidence. |
| In India s. 112 of the Evidence Act 1872 lays down that if a person is born during the continuance of a valid marriage between his mother and any man or within two hundred and eighty days after its dissolution, the mother remaining unmarried, it shall be the conclusive proof of his legitimacy as a son of that man unless it is proved otherwise. The standard of proof for rebuttal of legitimacy is beyond reasonable doubt and not merely the balance of probability. |
| Letters in which the accused parties have written about their amorous feelings or clandestine encounters may be introduced in court to support the assertion that the parties had the inclination to engage in sexual relations. Character evidence indicating the good or bad reputation of each party may be brought before the jury. Evidence of a woman's sexual relationships with men other than the party to the adultery generally cannot be used; however, if her reputation as a prostitute can be demonstrated, it may be offered as evidence. |
| Suspicious activities and incriminating circumstances may be offered as Circumstantial Evidence. |
| In GK v State of West Bengal, the Supreme Court has laid down the propositions of law as to the permissibility of blood test to prove paternity which is as follows: |
| 1. The courts in India cannot order blood test as a matter of course. |
| 2. Whenever applications are made for such prayer in order to have a roving inquiry, the prayer for blood test cannot be entertained. |
| 3. There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under s. 112 of the Evidence Act. |
| 4. The Court must carefully examine as to what would be the consequence of ordering the blood test, whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman. |
| 5. No one can be compelled to give a sample of blood for analysis. |
| Different types of Evidences |
| With today’s heavy influence on technology, more and more people use text messages and email their preferred methods of communication. During a contested divorce, it is sometimes necessary to provide evidence that supports an individual case for abuse or other negative actions. Under certain circumstances, it is possible to use text messages as supporting evidence during the proceedings.In order for a text message to be usable in a divorce case, it must be authenticated. To authenticate a text message, the other party must readily admit to the text, a witness must attest that he or she saw the message being created, or reply authentication must be demonstrated. Hearsay is an issue that must be addressed before a text message can be admitted to a divorce case. A text message can only be used in court if it fits a hearsay exception. |
| Hotel Cases- Where the adultery is alleged to have been committed in a hotel or a boarding house with an unknown person, the court views such case with suspicion. There is a need in some cases for the petitioner to prove the background of an adulterous association. The court makes a finding of adultery where a hotel bill is produced and a witness from the hotel is called to say that the respondent and a person of the opposite sex were in the bedroom together. |
| Adultery After Petition: Ante-Nuptial Intercourse- A petition for divorce on the ground of adultery should be based on adultery committed prior to the presentation of the petition. But evidence of acts of adultery subsequent to the filing of the petition is admissible for the purpose of drawing inference by the court about the course of conduct of the respondent. But there may be necessary to file a supplementary petition incorporating those subsequent acts of adultery. The general rule is that it is not permissible to plead ante-nuptial intercourse, because it is said that marriage operates as oblivion to all that has passed. But ante-nuptial intercourse may be pleaded where adultery is charged with the same person with whom ante-nuptial intercourse took place. Cohabitation between the spouses prior to the marriage is relevant in relation to ancillary relief. This suggests that other relations prior to the marriage with other persons may likewise be relevant to the facts of a particular case. |
| The Supreme Court ruled that a DNA test can be ordered by courts as a legitimate and scientifically perfect tool to establish adultery in divorce cases which was a significant shift from the age-old legal convention that prioritized a child's legitimacy in marriage over a divorce being sought on the ground of infidelity by a partner. |
| The DNA tests are now being often ordered by courts for determination of paternity but allowing such scientific examinations for deciding upon the issue of infidelity too tends to move away from legal precedents. |
| In the case of Ravinder Yadav vs Padmini Payal, the High Court of Punjab & Haryana while deciding a divorce petition under Section 13 of the Hindu Marriage Act noted that to prove cogent adultery evidence is required and that ordinary wear and tear in married life does not lead to divorce. |
| The Court stated "…. As a matter of fact, adultery cannot be considered without impleading the alleged adulterer as per Rule 10 of Hindu Marriage (Punjab) Rules, 1956. Rather unsubstantiated and uncorroborated testimony associating the respondent with an adulterer has caused mental cruelty to the respondent". |
| Private detective agencies |
| Substantial evidences are required to establish adultery at the time of filing for a divorce on grounds of the same. The aggrieved party is required to gather compelling evidence backing their case to prove adultery by the spouse. This can be achieved with the help of a detective agency which may assemble information and photographs that may help the aggrieved party to justify their spouse’s adulterous act. The evidences must relate to places and dates where the adulterous party and co-respondent may have privately met. |
| Private Detective Agencies handles private investigations and inquiry in cases related to divorce, insurance or criminal cases for the specific individual or group. At present, it is not obligatory for them to be registered or have a license so as to operate in India since there is no law till now to regulate the activities of Private detective agencies as well as the private detectors hired by them. However, bill to provide a system of licensing for such Agencies and to regulate their conduct has been introduced as Private Detective Agencies (Regulation) Bill, 2007 but is still pending in the parliament. |
| Are Private Investigating Agencies legal in India? |
| In India, the Private Investigation agencies are Legal, but there is no law to regulate the conduct of such agencies. Government hardly have any control over these agencies. They are free to operate in India without any restrictions because of the absence of any law to regulate them. |
| The Private Detective Regulation Bill, 2007 is still pending in the Parliament. The proposed bill seeks to bring the Private Detective Agencies within the scope of Legal ambit in order to prevent the Agencies from getting involved in illegal activities like terrorism, etc. |
| Does the Evidence found by a Private Detective have an Evidentiary Value in the Court of Law? |
| As the demand of hiring the private detective is increasing particularly, in some sensitive and sensational cases, the question which arises in the mind of people is whether the evidence found by Private Detective has any evidentiary value in the court of law or not? In General terms, the Evidence collected by the Private Detectives is admissible in the Court of Law. Such evidence helps the judges in reaching a decision. But the Evidence so gathered by the Private Detectives need to fulfil certain requirements which are: - |
| The Private Detective Regulation Bill, 2007 is still pending in the Parliament. The proposed bill seeks to bring the Private Detective Agencies within the scope of Legal ambit in order to prevent the Agencies from getting involved in illegal activities like terrorism, etc. |
| 1. The Private Detective Agency hiring such Private Detectives must be having Licence to operate in India; |
| 2. The Evidence must have been legally obtained; |
| 3. Such Evidence has been obtained without violating any procedure of Law. |
| 4. It Should not violate the people’s right to privacy. |
| P v. Mrs P & Mr. - In this case, it was held that a very high degree of probability of evidence is required to prove adultery or cruelty. Therefore, while accepting the evidence of Private Detective, due diligence and necessary care must be shown by Judges and the parties. |
| Conclusion |
| Adultery had been discouraged throughout the history of mankind. In India, till 1976, a petition for divorce on the grounds of adultery could be filed only when the spouse was “living in adultery”, but now a petition can be filed on the grounds of adultery even when there has been only on the instance of voluntary sexual intercourse outside the marriage. |
| The Courts have taken a serious view of adultery and granted contested divorce in India taking into consideration various social conditions and circumstances of the party seeking a divorce, including the presence of children. Delay in filing of the petition, especially when there are children involved is taken lightly. |
| There is no steadfast rule that can be commonly used for all adultery-related cases. The court has the discretion to treat each case on its own merits and demerits. These might include children, society, and also the economic status of the parties. |
| The author of this blog/Article is Kishan Dutt Kalaskar, a Retired Judge and practising advocate having an experience of 35+ years in handling different legal matters. He has prepared and got published Head Notes for more than 10,000 Judgments of the Supreme Court and High Courts in different Law Journals. From his experience he wants to share this beneficial information for the individuals having any issues with respect to their related matters. |
| Kishan Dutt Kalaskar |
| Advocate (Retired Judge) |
| Bengaluru |
| NRI'S POWER OF ATTORNEY TO SELL PROPERTY IN INDIA |
| By Kishan Dutt Kalaskar There might be numerous occasions in an individual's life wherein he may be required to manage assets, properties, financial balances, and so forth, however,under certain circumstances, he may not be in the right condition to fittingly execute his/her obligations because of unanticipated conditions like being sick, being abroad (in the event of an NRI) or the individual is too old to perform his obligations. Therefore, during conditions where a monetary exchange must be completed, in situations where the presence of the individual who cannot show up actually, at that point the primary arrangement towards this is to delegate his powers, i.e., to act on behalf of the person. This procedure of delegation of power is called Power of Attorney (POA).An unanticipated circumstance where the legitimate proprietor cannot use his capacity is the point at which a Power of Attorney deed is executed. This practice is exceptionally famous for transferring one's powers to a trustworthy and honourable individual to direct activities like sale, leasing, registrations and so forth given that individual is busy or unavailable. |
| Suppose you are a non-resident Indian and need to lead the immense monetary exchange in India, for example, selling the property. In that case, this could turn into a huge problem if one needs to make a trip to India and back at all times. There is a simpler and straightforward answer to this. By drawing up the Power of Attorney for the non-resident Indians to sell their property in India, one can undoubtedly complete their exchange without in a real sense heading out to India. A power of attorney to sell property in India is not complicated. Notwithstanding, in 2011, the Supreme Court of India in a landmark judgment saw that transferring property title through a General Power of Attorney (GPA) is illicit. Be that as it may, before learning the legitimateness of the Supreme Court request let us comprehend the idea of a Power of Attorney. |
| What is a Power of Attorney? |
| A Power of Attorney is an authorization granted by a written formal instrument whereby an individual named as the principal/donor authorizes another individual named as the attorney/agent/donee to act on his/her benefit. In India, a power of attorney is utilized by numerous property purchasers to help them with transactions engaged with purchasing a home. It could incorporate a capital acquisition of the place that is known for home, renting, selling the property or the home loan. When purchasing a home, a person should hire a dependable and reliable power of attorney who can assist an individual with the buy procedures. The POA is frequently utilized by NRIs hoping to purchase property in India. In the simplest terms, it is the power (right) that an individual (Principal) awards to an attorney (a legal representative). A principal-legal representative relationship is established between the two, and the acts of the legal representative would bound the Principal. For example, suppose an individual has bought a property in India and cannot be physically present to handle the registration. In that case, he can assign these rights/obligations to any family member/companion through a registered power of attorney. |
| Kinds of POA |
| • Special POA: In a special POA, a power of attorney is confined and restricted to a particular purpose. A special POA might transaction-specific, and the POA ceases on the culmination of a transaction. |
| • General POA: Under a general POA, expansive powers are allowed to the representative to make decisions in the interest of the Principal. Additionally, the representative can likewise complete the different activities for the benefit of the Principal with no impediment on transactions. |
| • Durable POA: A durable POA stays effective for a lifetime except if it is expressly revoked. A particular condition can be inserted in the document, expressing that the representative's capacity would stay legitimate regardless of whether the Principal gets incapacitated. |
| Usage of Power of Attorney |
| Even before the COVID-19 pandemic, frequently travelling was impossible for some NRIs, in light of their jobs, occupied timetables and even affordability. Thus, the majority of them utilized the power of attorney instrument to lead different organizations in the nation of their origin. Under this legal course of action, one can endow anybody to represent them to conduct specific businesses on their behalf. Regardless of whether the NRI can return to India to make the purchase, eventually, they need to employ a legal representative, for asset management purposes. Utilizing the POA instrument, an NRI can conduct different real estate-related organizations in India, including sale, purchase, leasing, mortgaging, etc. Additionally, if a property is together held, it very well may be hard for all the co-owners to present themselves and complete an exchange. Via granting a POA to one individual, the joint owners can move ahead without any issues. |
| Power of Attorney in Real Estate:In Real Estate, a power of attorney plays a critical function in the transaction of the buy or sale of a home. For a long time, the authority of the POA was mishandled as they were utilized to avoid the payment of a capital gains taxwhich led to the investment of black money. In light of this issue, the Supreme Court passed a law expressing that POA should just be utilized for genuine transactions and not for the transfer of the title or right to someone else or property. On the other hand, any POA that is assigned to help with the exchanges of the property should be registered with a sub-recorder who is situated in the jurisdiction where the purchaser lives. If the home-purchaser is an NRI, the POA picked should be certified by the consulate of the nation they live in. |
| What are the basic provisions in a Power of Attorney? |
| While initiating a Power of Attorney, it is fundamental to cover explicit mandatory provisos relying on the kind of power of attorney that is being made. Coming up next are the basic provisos that must be remembered for a Power of Attorney deed: |
| • Complete details of the Principal/donor making the Power of Attorney like his name, age, address as well as his present occupation. |
| • Important information of the agent/attorney/donee that is the individual who is getting the authority. |
| • The reason to grant the power to someone else must be clarified and be legitimate. |
| • The time, a date just as the place of making the Power of Attorney deed and its execution date also (date from which the Power of Attorney comes into force). |
| • If the Power of Attorney is time-bound, at that point, the planned date of the end of the Power of Attorney and on the off chance that there is no mention of the limit of the same it is to be referenced whether the Power of Attorney is durable or non-durable. |
| • Suppose there should arise an occurrence of a general power that is being granted. In that case, the Deed must specify the complete details of all the acts as well as the areas of allowing the said power. For example, if a general power about a property is granted, at that point, the Principal can grant the ability to lease or purchase any property while not being authorized to sell any of the properties. |
| • In the event of extraordinary power, the grant of the particular duty/assignment that should be performed by the agent/attorney must be specified in the Deed. |
| • The Deed should likewise indicate the time limit of the special power within which the obligation must be finished. |
| How can a Power of Attorney be executed in India ? |
| If an NRI is available in India, he could execute the POA from India itself, before travelling to another country - |
| Stage 1: The NRI needs to get the ideal matter of the POA drafted and composed on non-legal stamp paper of good worth which is by and large Rs 100. |
| Stage 2: Along with the legal representatives and two witnesses, the individual is needed to visit the Sub-Registrar's Office. |
| Stage 3: It should be guaranteed that all the people setting off to the Sub-Registrar's Office are conveying their valid identity proof. Copy of the POA, alongside the first duplicate, should likewise be brought. |
| Stage 4: At the Sub-Registrar's office signatures, photos and fingerprints of the gathering will be gathered. |
| Stage 5: Now, a person needs to gather the registered POA on the due date from the Sub-Registrar's Office. It may take three-five days after the formalities have been finished. |
| Consider the possibility that you are outside India. |
| On the off chance that you are settled abroad and won't have the option to visit India, you may execute a POA from the nation of your residence through the Indian Embassy/Consulate. There are two different ways to execute a POA from abroad: |
| Legalization: For this situation, signatures of the notary or judge before whom the POA is executed are needed to be verified by the appropriately authorized representative of the Indian Embassy/Consulate. As indicated by Section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948, notarizing a deed from an approved official of the Indian Consulate/Embassy would be viewed as a legitimate public accountant. Such a POA is not needed to be stopped at the hour of execution. Be that as it may, it should be stamped within three months from the date of receipt of the POA in India. Stamp obligation would be payable as indicated by Section 2(17) read with Schedule-I of the Indian Stamp Act, 1899, when the Deed is presented for registration in India. |
| Apostallisation: The Deed of POA executed external India is demonstrated through an apostallisation cycle which is administered by The Hague Convention, 1961. Otherwise called super legalization, an apostille is a certificate which affirms and checks the signature/seal of the individual who authenticated the document. Be that as it may, this Deed, as well, requirements to follow Indian laws, for example, the Indian Registration Act, 1908, and the Power of Attorney Act, 1882. A person likewise needs to pay the stamp obligation on this. |
| Regulation of Power of Attorney: A POA paper should be interpreted to incorporate all the vital powers for its execution. The POA must be given a strict interpretation, and no additional rights should be interpreted except if they are explicitly referred. For example, if the POA refers to "option to rent", the "option to sell" cannot be credited to it. |
| The representative needs to act inside his scope and cannot bind the Principal by his acts which are beyond his power. As an NRI, you cannot be sued or considered answerable for the extortion of the agent, except if it is demonstrated that the misrepresentation was done in intrigue with you. |
| Repudiation of Power of Attorney |
| Suppose the Principal feels that the legal representative is abusing power allowed to him or cannot appropriately discharge the duties allotted to him. In that case, he has the choice to renounce the POA. Repudiation may likewise be required if the Principal thinks that now he is in a situation to deal with his assets. |
| How to deny a Power of Attorney? |
| • You may deny a POA during your lifetime. |
| • POA is additionally renounced when the Principal dies or gets insane or is declared insolvent. |
| • POA can be revoked on commonly agreed terms between the Principal and the representative. |
| • A POA is repudiated when the particular exchange for which it was executed has been accomplished. |
| Revocation of POA must be conducted in a similar way in which it was executed. If the POA was registered with the Sub-Registrar, you need to get it revoked from a similar office. Likewise, the representatives and the parties concerned should be appropriately educated about the cancellation of the POA. If the interests of an enormous number of individuals are included, it is suggested that a notification be distributed in a paper. A notification about the repudiation of the POA could likewise be posted on the property where it tends to be obvious to the general public. |
| Court precedent |
| There have been numerous situations where individuals resort to property deal through POA to evade instalment of stamp obligation, which is illegal. Besides, selling properties where the proprietor has just right over possession, and no right over ownership through POA is additionally illegal. A fair exchange of title and proprietorship cannot occur if the deal is done through a POA and not using a sale deed. |
| The Supreme Court of India in 2011 announced that "a power of attorney is not an instrument of transfer concerning any right, title or interest in an immovable property". Following the equivalent, the Indian Apex court coordinated the metropolitan bodies not to change or register properties dependent on such archives. The Supreme Court, notwithstanding, restored those legitimate exchanges that have been brought out through GPA would be lawful. |
| The court additionally stated, "Nothing keeps influenced parties from getting registered deeds of conveyance to complete their title. The said exchanges may likewise be utilized to acquire explicit execution or to protect ownership under Section-53 An of the Transfer of Property Act, 1882." |
| Because of this Supreme Court order, various states across India disallowed the registration of properties that were sold through a GPA. Besides, this landmark judgment of the Supreme Court has just assisted with limiting the free progression of black money somewhat in the real estate in India, where property titles are controlled way time and again. Other than this, because of this, a ton of property exchanges where costs were rounded off till now will be influenced. |
| Notwithstanding, after a total restriction on such properties was forced, the Delhi government at long last consented to allow registration of properties for the legitimate proprietor's spouses, children, siblings as well as any other family member or individual of trust of the enlisted proprietor. |
| Conclusion |
| As an NRI living abroad, it is frequently difficult to keep steady over the procedures of your new home and dive into the basic essential details of the buy or sale. Consequently, allotting a POA is not just practical yet additionally accorded protection. If a new rule imposed by the government or property developer, you may be required to sign some documents and your POA can sign them on your behalf. Alternatively, if you are the victim of fraud during the real estate dealings, you POA can be presented as evidence in court. The way toward naming a POA is basic and direct, and as an NRI, it is emphatically suggested that you select one in your nation of origin to fill in as your delegate for any land exchanges. |
| The author of this blog/Article is Kishan Dutt Kalaskar, a Retired Judge and practising advocate having an experience of 35+ years in handling different legal matters. He has prepared and got published Head Notes for more than 10,000 Judgments of the Supreme Court and High Courts in different Law Journals. From his experience he wants to share this beneficial information for the individuals having any issues with respect to their related matters. |
| Kishan Dutt Kalaskar |
| Advocate (Retired Judge) |
| Bengaluru |
| EMPLOYMENT CONTRACT – VALIDITY OF EMPLOYMENT BOND |
| By Kishan Dutt Kalaskar, an employment contract is an agreement that discusses in detail the working rapport of a company and an employee. It helps both parties to comprehend their obligations and the stipulations of employment. |
| Importance |
| A good quality employment contract is valuable to both the employee and the employer. It spells out the privileges and obligations of each party, protects the job security of the employee and protects the employer from certain risks such as the discharge of confidential employer information after the period of employment ends. Some jurisdictions require employment contracts for particular positions. |
| • Term- Most employment contracts have a specific term of employment. This assures that employeeshavea secured position in the company as long as they do not disobey the terms of the contract, and also permits employers to release the employee at the ending of the term. |
| • Termination-A good employment contract will accurately mention what acts can amount to termination of the employee. This, in a way, helps both parties, because it allows the employee to know which activities are allowed and which are forbidden, thus rendering the possibility a serious breach less likely. The labour law of the concernedjurisdiction should be crosschecked to ensure that the terms of the contract do not disagree with legal requirements. |
| • Non-competition Covenants-If the employee will have accessibility to confidential company information, it is imperative from the employer' s point of view to comprise a clause preventing the employee from revealing this information to others. An employer might also desire to prevent the employee from working for competitors, although the labour laws of various jurisdictions differ on the satisfactoriness of such a clause. In both cases, non-competing clauses are typically binding on the employee for a certain time being after the employment ends. |
| • Duties-The duties of both the employer and the employee should be clearly stipulated in the employment contract. This section should comprisean employee' s job duties, salary, benefits, and any overtime bonus. The employer's right to shift the employee to a better position should also be mentioned. |
| • Dispute Resolution -A good employment contract will indicate dispute resolution procedures that reduce the time and expenditure of a courtroom battle. Arbitration procedures offers lesser time and expense, although appeals from arbitration decisions are usuallycomplicated, it is a more preferred resolution method. |
| • Suppose there should arise an occurrence of a general power that is being granted. In that case, the Deed must specify the complete details of all the acts as well as the areas of allowing the said power. For example, if a general power about a property is granted, at that point, the Principal can grant the ability to lease or purchase any property while not being authorized to sell any of the properties. |
| Essentials of Employment Contracts |
| When a person drafts an employment contract, he/she shall ensure that these particulars are present in the contract: |
| • Title of Contract: When a company has to draft an Employment Contract, the company should begin with giving a title to the Employment Contract. The title of the Employment Contract need not give any details about the terms and conditions of the Contract. In general, the title ' Employment Contract' is considered more than enough. |
| • State the Parties: It is crucial that the name and identity of the parties to the Contract must be mentioned in the contract explicitly. Generally, in the case of Employment Contract, the parties comprise the name of the Company and the name of the Employee. In addition, the locality of the Company must be particularly written in the Contract. |
| • List Terms and Conditions: The most important aspect in drafting an Employment Contract, are the stipulations of the contract.By and large, the bare minimum requirement of an Employment contract is salary, hours of employment, and the severance packages provided in terms and conditions. |
| • Delineate Position Duties: It ought to be kept in mind that the employee should not be astonished by any new accountability or work, and the employer is getting what needs to be done. For ensuring these things, it is vital to write an outline of things, and it is important to write a detailed outline of the duties of the person applying for such a position. A complete list should be prepared with the Employment Contract for providing transparency about the tasks associated with the position. |
| • Be Clear on Compensation: The compensation facet of your contract must be unambiguous and direct. This way, there will not be any perplexity or disagreement regarding the employee is first or second retribution. |
| • Miscellaneous Clauses: On the basis of the nature of the Company and the kind of business, the company may consider adding other clauses in the contract which include, i) Non-Solicitation Clause- which bans the employees from soliciting the customers from any particular geographical area and taking them with him ii) Privacy- this clause says that the employee shall not have expectations of confidentiality in the employer-issued devices. iii) Probationary Clause- this clause provides the authority to an employer to remove an employee within a particular period of time. |
| After the Company has finished drafting the Employment Contract, it is essential to seek advice from an attorney to methodically review the contract. This way can unpredictably lower the chances of facing litigation arising out of the contract. The legal document should be combined with the prior oral or written negotiations that took place between the parties. |
| Legal Validity of Employment Bond |
| Employment bonds are employment agreements, which comprise of a negative covenant. In Indian Law, the employment agreements with negative covenants areconsidered to be valid and legally enforceable if the parties agree to have free consent, i.e. without fraud, coercion, undue influence, mistake and misrepresentation. The Indian courts are of theopinion that in the event of a breach of contract by the employee, the employer shall be allowed to recuperate damages only if the employer bore a considerable amount of expenditure. Indian law makes it compulsory the employment bonds be "reasonable" in order to be legitimate. The expression reasonable remains vagueas it is not defined in the Indian law, and therefore the courts have given connotation to "reasonable" depending upon the facts and circumstances of the cases. The suggestion which has emerged till now is that state of affairs predetermined in the contract should be vital to protect the attention of the employer and pay reimbursementto the losses caused by the breach of contract. Additionally, the punishment or compulsory employment period fixed should not be disproportionate. |
| Can one challenge the Enforceability of employment bond? |
| The legality of Employment bonds can be challenged based on Section27 of the Indian Contract Act. Section 27 of the Indian Contract Act, 1872 imposes a prohibition on any agreement in restraint of trade and profession. |
| As per the authority of Section 27, any terms and conditions of an employment contract which directly or indirectly makes it compulsory for the employee to provide service to the employer or puts a constriction on them joining the competitor or other employer will not be not valid under the Indian law. The employee has the complete right to leave the employment even if there has been an agreement in the employment bond to serve the employer for a precise period of time. |
| For an employment bond to be legitimate under Indian law, it has to be proved that it is essential for the autonomy of trade. In a circumstance, where the employer is able to establish that the employee is, joining the competitor to reveal the trade secret then the court may issue an injunction order restricting the employee from joining the competitor. If an agreement is challenged on the basis of violating the provision relating to restraint of trade, the burden is on the party supporting the contract to show that restraint is reasonably essential to protect his interests. |
| Important Judgements |
| SI & Anr. v. ABC Company Limited&aOrs. (SLP (CIVIL) NO: 1170 OF 2019) |
| Here, in this case, Dr. AG, (the deceased) husband of the Appellant, Mrs. SIG had entered into a contract with the Rotary Eye Institute on May 4, 1996, and the contract was titled as ' Contract for Services as Honorary Ophthalmic Surgeon at Rotary Eye Institute' . The insured, i.e. the Institute, had taken up a ' Private Car B' policy from the New IndiaAssurance Company Limited (the Respondent) wherein the Institute had paid an extra premium or an endorsement of IMT-5 (the Insurance Policy). That insurance policy further gave accidental personal coverage to unnamed passengers other than the ones insured, his paid driver, cleaner or a person employed by the insured and coming within the scope of Workman Compensation Act, 1923 to the scale of 100% compensation in case of death. Due to the incautious and negligent driving of the bus driver, the deceased while travelling in a mini-bus owned by the Institute, suffered some serious injuries and eventually died. |
| Therefore, the Appellant filed a petition before the Motor Accidental Claim Tribunal under Section 166 ofthe Motor Vehicles Act, 1988 against the Respondent, the Institute as well as the driver of the mini-bus and claimed a compensation of wherein the Tribunal held that the employment arrangement between the deceased and the institute to be a ' Contract for Service&. Hence the deceased was not an employee of the institute. Therefore, the for the above-stated reason, the Tribunal directed the Respondent, the institute and the driver of the mini-bus to pay a compensation of Rs. 37,63,100/- as well as interest at the rate of 8% p.a.Discontented by order of the Tribunal, an appeal was filed by the Respondent before the High Court of Gujarat wherein the Court relied upon the limitation of liability clause under the Insurance Policy which discharged the Respondent from any liability to a third party since the death has taken place in the course of the employment of such person. |
| Moreover, the Court was of the opinion that since the contract between the insurance company and the dead person was a ' Contract of Service' , the accountability of insurance company towards the deceased was narrowed to the extent ofRs.50, 000/-.Thereafter, being upset by the decision of Gujarat High Court, the Appellant filed an appeal before the Supreme Court for increasing the amount of compensation. The Court referred tovarious judgments which and the tests laid down to adapt the difference between a ' Contract for Service' and a ' Contract of Service' . The Court diligently assessed precedents for this aspect and observed that there were no established tests that can be practised and that each fact would be examined for drawing a conclusion on this aspect. Furthermore, the Court observed that the preliminary tests where an employer exercises control over the person engaged could not be enforced in separation. |
| SG v. ABC Mfg Co. Ltd (1967 AIR 1098) |
| In this famous case, a foreign producer entered into a with a company manufacturing tyre yarn, which expressed that the company would preserve the secrecy of all technicalinformation. In execution of the agreement, the company signed a non-disclosure agreement withthe appellant at the time of his employment. The Supreme Court of India identified the tests toregulate the rationality of restrictive agreements in terms of Section 27 of the Contract Act.Considering the above-stated facts, the agreement was held to be valid, and the appellant wasduly restrained from serving elsewhere for the duration of the agreement. The Supreme Court held that there is an implied term in a contract of employment that a previous employee may not make use of his previous employer's trade secrets. Disregarding this exception, the employee is authorized to utilize most of the knowledge and skill possessed by him. The Court depended on Lord Halsbury's Laws of England which held that as a general principle an individual was authorized to implement his lawful trade or calling whenever he wills, as well as the law, had resentment restrained against intervention with trade even at the risk of intervention with freedom of contract, as it was a public policy to combat all restraints upon freedom of individualaction which isdetrimental to interests of trade. This principle was based upon public policy, which is an effectual concept that changes and evolves depending upon time and needs. |
| PD (India) Pvt. Ltd. v. ZK & Anr.[Appeal (civil): 5573-5574 of 2004] |
| In this case, it was held by the Supreme Court that a restrictive contract extending beyond its terms is void and non-enforceable. The Court further held that the doctrine of restraint of trade does not apply during the continuation of the contract of employment, and it is applied only when the contract comes to an end. Moreover, it was observed that the doctrine of restraint of trade is not constricted to contracts of employment but is also significant to all other contracts. |
| GB v. CC Ltd.(1995 AIR 2372) |
| In this case, the Supreme Court distinguished that in the past, nations frequently went to war for the conservation and improvement of their economic interests, but things have changed with the passing time. Whereas during this time of competition and high employee turnover rate, the employers generally try to safeguard their trade secrets so as to direct to engage in the market,make their employees sign contracts/agreements which limit their employees from revealing the job profile, henceforward, competing with the same establishment or workingwith the same competitors. Thus, such agreements entered between the employer, and the employee should not hinder the growth of employees and secure the interests of the employer. |
| Conclusion |
| The notion of the employment agreement is analogous to any other contract in force. A comprehensive employment contract provides the significant duties and responsibilities of the employee. The duties and responsibilities help him to comprehendaccurately what his employer is expecting him to do. The major objective of an employment contract is to avoidrevelation of information, non-competition, non-solicitation as well as fortification of confidential information, so it is always prudent to implement a written agreement of employment between the employer and the employee. The employee signs the employment contract. An appointment letter is generally executed with a view to cover the probation period of an employee until the time such employee is made permanent in the organization by the employer. |
| The author of this blog/Article is Kishan Dutt Kalaskar, a Retired Judge and practising advocate having an experience of 35+ years in handling different legal matters. He has prepared and got published Head Notes for more than 10,000 Judgments of the Supreme Court and High Courts in different Law Journals. From his experience he wants to share this beneficial information for the individuals having any issues with respect to their related matters. |
| Kishan Dutt Kalaskar |
| Advocate (Retired Judge) |
| Bengaluru |
| PRE-ARREST NOTICE - SECTION 41-A OF CRIMINAL POCEDURE CODE |
| Under Article 21 of the Indian Constitution, the right to life has been offered a principal status by the judiciary. Article 21 and 22 ensure against arbitrary detainment and arrest and the legal judiciary now. In a few cases, it has defended this interest and restricted the leader's power to make pointless arrest and confinement. Police have been charged over and over for making an unlawful arrest with no justification, and because of this, an average person, particularly from lower strata of society, needs to suffer a greater amount of this since he/she doesn't know about the law at the hour of arrest and the subsequent reason being that he/she can't draw in an Attorney soon the arrest is made, due to which the Police utilizing their capacity, abuse individuals under their authority and gets away with it without any problem. This Article attempts to analyze Section 41A of the Code of Criminal Procedure, 1973. |
| What Is Section 41a of Cr. P.C.? |
| As per Section 41 A of the Code of Criminal Procedure (hereinafter, 'Cr. P.C.'), if any police officer requires the participation of any individual who is not requiredto be fundamentally arrested under Section 41(1) of Cr.P.C. or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, the official can give a notice for the equivalent. The individual to whom the Notice is served is obliged to show up at the specified place and time. The individual confirming to the Notice will not be arrested except if in any case considered fit by the Police for which the official is duty-bound to record reasons in writing. Inability to consent to the Notice is a ground for arrest. |
| History of The 'Notice Of Appearance' |
| Section 41A was added by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009). However, recently after the enactment of this Amendment, representations were received by the Union Government. Thus, some specific amendments were brought in by the Code of Criminal Procedure (Amendment) Act, 2010 (41 of 2010). |
| The earlier sub-section (1) of Section 41A read: "The police officer may, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice." |
| The 2010 amendment ensured that a police officer issues such Notice by substituting 'shall' in place of 'may' vide section 3(a) of the 2010 amendment Act. The Amendment also enacted a proviso to section 41(1)(b)(ii) providing for recording of reasons for not arresting an accused. However, the Supreme Court directed in Mr.AKr case that issuing a notice of appearance under Section 41A was thoughtfully implemented. The Supreme Court held that their endeavour in this judgment is to ensure that a police officer does not arrest any accused unnecessarily, and the Magistrate does not authorize detention casually and mechanically. To confirm what the Top Court observed above, it gave the following direction: |
| (1) All the State Governments instruct its police officers not to automatically arrest when a case under Section 498-A of the I.P.C. is registered but to satisfy themselves about the necessary details before that arrest under the parameters laid down above flowing from Section 41 of Cr. P.C.; |
| (2) All police officers must be given a checklist that contains specified sub-clauses under Section 41(1)(b)(ii) of Cr.P.C.; |
| (3) The police officer should forward the checklist duly filed and produce the reasons and materials which necessitated the arrest while taking the accused before the Magistrate for his further detention; |
| (4) The Magistrate while authorizing detention of the accused shall pursue the report produced by the police officer in terms aforesaid and only after recording their satisfaction, the Magistrate will authorize detention; |
| (5) The decision of not arresting an accused, must be forwarded to the Magistrate within two weeks from the date of the institution of the case with Police to the Magistrate which may be extended further by the Superintendent of Police of the district for the reasons to be recorded in writing; |
| (6) The Notice of appearance in terms of Section 41A of Cr. P.C. must be served on the accused within two weeks from the date of institution of the case, which may further be extended by the Superintendent of Police of the District for the reasons to be recorded in writing; |
| (7) A failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for their departmental action; shall also be held liable for contempt of court, which is to be instituted before High Court having territorial jurisdiction |
| (8) Authorizing detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for their departmental action by the High Court having territorial jurisdiction. |
| Finally, the Supreme Court added that the directions as mentioned earlier do not apply to the cases that fall under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the matter in hand, but also such instances in which the offence is punishable with imprisonment for a term not less than seven years, or which may extend to seven years; either with fine or without fine. |
| In AKr's case, the directions laid down are a statutory set of instructions to avoid unnecessary arrest. However, in this case, the safeguards deal with the incident of arrest and the power of arrest itself is not curtailed thereby. |
| In the case of ASJ vs State of N.C.T. of Delhi and Anr., the Delhi High Court has laid down a model format for issuance of Notice under section 41A of the Cr.P.C., containing a warning at the end of the model notice format which states that the failure to comply with the terms of this Notice, can render a person liable for arrest under Section 41A (3) and (4) of Cr. P.C. |
| Sub-section 3 of Section 41A contains a broader premise for arresting even though an accused appears before the investigating officer responds to the Notice of appearance. The said sub-section reads, "where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer believes that he ought to be arrested." |
| Difficulties underlying Section 41-A |
| Section 41 A orders Notice's issuance to the blamed where the arrest for the individual isn't needed according to Section 41(1). Nonetheless, two peculiarities surface up;firstly, the authoritative content of Section 41(1) itself offers discretion to the Police in issues of arrest, as is obvious from the utilization of the word 'may' in the provision. Henceforth, it is open for the Police to decide whether a specific issue falls inside the ambit of Section 41(1) or 41A. Along these lines, the provision which was consolidated to restrict the power of arrest vested to Police under 41(1) has left it upon the Police himself to choose the relevance of the equivalent. Hence, if the Police consider the issue to be good for arrest under Section 41(1), he can at present do as such without any respect to the provisions of Section 41A. |
| Also, the utilization of subjective terms in the provision, for example, "reasonable complaint", "credible information", "reasonable suspicion" open space for maltreatment of such powers and leaving tremendous degree for the Police to practice their prudence. Further, 41A (3) furnishes the Police with an occasion to arrest an individual even after confirming with the Notice if the Police believes that the arrest is vital. Additionally, the quick attentiveness to choose consistency with the Notice is vested in the Police. This provision especially builds the Police's ambit to arrest without a warrant – extending it to violations that don't fall under the limits of Section 41(1). The current peculiarities have not controlled themselves to administrative provisions, there have been various cases where abuse of the force vested under Section 41A has been affirmed or demonstrated. |
| In TR v. State of Assam and Ors., an F.I.R. under Section 420 and 406 being held up against the accused, three police officers from the Dispur Police Station powerfully took the Petitioner to the police headquarters at 1:00 am regardless of opposition from the candidate. She was confined discretionarily, for extended periods without being given any explanation, after which Notice was served to her under Section 41A. The game-plan received by the Police in the current case was uncalled-for. The Court descended intensely upon the Police Officials while holding their activities to be in contradiction of Section 46(4) of the Cr. P.C. Furthermore, not following what Section 41A specifies to deter the force under Section 41A of Cr.P.C., the investigatingofficer may control the F.I.R. Although the control of F.I.R. was not demonstrated in the moment case, such action isn't altogether uncommon. |
| Analysis |
| According to Section 41- A of the Cr.P.C., on the off chance that Police feels that arrest isn't of need, at that point it would be legitimately judicious to give a notice which coordinates an individual against whom a sensible protest has been made and wherein a sensible doubt keeps on continuing, guiding the blamed being referred to show up before the official or at any place determined by Notice. It is the lawful obligation of the individual against whom the Notice has been coordinated to follow the Notice, and as long as he keeps on conforming to the states of the Notice, he will not be arrested, and wherein he neglects to do as such, he is subject to be detained relying on requests passed by a Competent Court. |
| The Police's optional power is practically limitless as they have limitless powers, particularly upon the perspective on the sub-section (3) of Section 41A which records that the Police can make arrests notwithstanding consistency from the charged. One should address whether this is in rebellion of the administrative aim of the provision. |
| A line of argument can be created which centres around a potential polarity between arrests made under Section 41 and 41A. Section 41A is summoned simply after; the Police utilizing their tact concludes that arrest of the speculated individual or people isn't needed. This is to state that, the Police have mulled over the entirety of the conditions referenced under Section 41 (1), preceding sending the speculated individual a notice according to Section 41A. Likewise, the High Court of Orissa held that this implies that the cases covered by Section 41(1) have been barred from the domain of Section 41-A. Thus, it is most likely to contend that the idea of arrests under the two sections is unique. This would also imply that the rules and the strategy set up in resulting decisions aremade under Section 41 and hence can't be applied to arrests made under Section 41A. |
| Presently on the off chance that we fathom a circumstance where, the accused's arrest is ordered under Section 41 (1), and the conditions and justification for arrest as determined in Section 41 are satisfied, and still, at the end of the day Section 41A can make a proviso helping the Police. It owns the Police itself to determine if the conditions in Section 41 were met or not to raise a reasonable ground for the utilization of Section 41A. It could offer ascent to occasions where the Police apply Section 41A and send a notice of appearance rather than straightforwardly capturing the individual. The explanations behind such an activity could be various. It may very well be done to dodge strategies set down by Mr.AKr concerning arrests made by the Police without a request. The methodology set up is to be followed compulsorily, and Section 41A permits the Police to get away from these techniques and arrest discretionarily. The Section likewise adds a purpose behind the Police to arrest a speculated individual – arrest for rebelliousness with the Notice's conditionsand consequently expanding the arrest forces. |
| Likewise, as the Section offers discretion to the Police, this all-around degenerate police power can manhandle this one case, the Police may require the presence of the blamed individual through Notice, while in a similar case another indistinguishably arranged individual to arrest. Subsequently, there is each probability that the Police will abuse this provision for ulterior reasons. |
| Another problematic part of the Section is that under the Section the Police can arrange the presumed individual to show up before the official at "such other place as determined in the notice". This would imply that the individual could be arranged to visit any place where the Police would require him and not merely the police headquarters. |
| Henceforth, note that the Police have abused the provision of Section 41-A. The said Section has exclusively vested its forces upon the Police along these lines, leaving space for it to be misused. The validity of the reports delivered by the Police to feature non-collaboration concerning the charges with exploring organizations or showing that they didn't show up when gathered should likewise be addressed. It isn't past the genuine to expect that a few notices are made after the individual has been arrestedin order to show that Notice was given on past dates. The extension for this provision to be authoritative is amazingly huge and that it has been demonstrated that the Police have utilized this provision to badger charged people, as found on account of Mr.Am Singh. It was never the aim of the assembly to consider blameless people to be annoyed by the Police, and it is incredibly remembered that while assessing the utilization of the provision of 41-A by the Police. |
| Presently to handle these rising misbehaviors through a change, the governing body set up a severe method to be followed while the issuance of a notice under Section 41A. In any case, the judgment and the methodology are tricky in their regard. A significant case for the assessment of Section 41-A is that of Mr.AMS versus the State of N.C.T. of Delhi. For this situation, the applicant advanced that notwithstanding consistency before the specialists, an F.I.R. came to be enrolled against him under Sec 498A and 406 of the I.P.C. He also featured how he was regularly brought to show up before the police headquarters. No composed notification was available in a few occurrences, which is an essential condition under Section 41-A. He affirmed both that the rules of Section 41-A disagreed and that these weren't sufficient to guarantee the security of the individuals called subjects of criminal examinations. The significant rules set somewhere near the Mr.AMS case included allowing rescheduling of the gathering if it isn't adverse to the Police and sensible. It additionally focused on the significance of consenting to the provisions of Section 41-A concerning the issuance of a notification by the Police. |
| Notwithstanding, what is additionally noteworthy is that the judgment gave a route to the investigating officerto set down conditions other than those referenced by the Court which essentially must be followed, the disappointment of which would make an individual subject to be arrested as per Section 41-A (3). Ongoing judgments that have referenced the rules have not set up an away from the strategy given in Mr.AMS judgment; however, have marked the technique to be "rigidly and obligatorily applied". |
| Conclusion |
| From the above discussion, because an examining officer having powers under the Cr.P.C can arrest an accused person for the reasons under Section 41 of the Cr.P.C, it isn't important to arrest a charged individual for each situation where a criminal offence is enlisted and is under scrutiny. |
| A decent measure of discretion must be left with the investigating officer to be reasonable for the public purpose behind the investigation, which is to discover reality on account of criminal offences, which are traditionally treated as offences against the tranquillity of the general public at large. Notwithstanding, this can't be at the expense of fundamental procedural fairness.The off chance that procedure is codified for shielding an accused from pointless arrest and for pre-FIR preliminary inquiry should be interpreted to protect an accused from unnecessary harassment. Subsequently, such a method can't be suggested by any implication to bias a prospective accused or accused individual. |
| The author of this blog/Article is Kishan Dutt Kalaskar, a Retired Judge and practising advocate having an experience of 35+ years in handling different legal matters. He has prepared and got published Head Notes for more than 10,000 Judgments of the Supreme Court and High Courts in different Law Journals. From his experience he wants to share this beneficial information for the individuals having any issues with respect to their related matters. |
| Kishan Dutt Kalaskar |
| Advocate (Retired Judge) |
| Bengaluru |
| BANDHS – EVIL CONSEQUENCES ON LITIGANTS AND COURTS TO FUNCTION |
| "Bandh" is a Hindi word which signifies "shut" Bandhs, Hartals, tumults, and civil disobedience are incessant in India. They are considered an acclaimed technique for expressing dissent, drawing in the Government's interest to specific requests of an association or community, thereby forcing the specialists to yield the necessities set forward. It upsets the general individuals' ordinary life. It causes loss to private property and injury to the health of general individuals. Mostly affected parties are the retailers. The transport frameworks are likewise upset. India saw Bharat Bandh for the whole day and Chakka jam till 3 P.M. on 8th December 2020 called by the farmer's union challenging the new homestead area laws or farm laws on the ground.Despite having a few rounds of talks with the Central Government; they didn't yield any result. |
| Hence, Bandhs, Hartals and Chakka jam hold an issue of relevance here whether it's a legal right, fundamental right or a constitutional right. However, there are many cases where the Courts have held that "Bandh" is illegal as they meddle with our basic rights. Ideological groups and associations coercively close shops and end public vehicles. Individuals notice these fights under dread. In this way, the achievement of any such fights can't be ascribed to general assessment as it might not have been noticed intentionally. The assessment of general individuals isn't considered. |
| The Legality of Bandhs |
| The Supreme Court of India has understood the evil effects of the Bandh and has pronounced Bandh unlawful and illegal. Individuals who are apprehensive and who don't support such sort of exercises ought to understand that they have their set of fundamental rights and there are numerous laws and not to fail to remember the most important one, that is the Indian Penal Code, 1908 which criminalizes limitation, force, terrorizing during bandhs and even hartals. |
| Supreme Court and different High Courts of the State have made it clear that the Bandh meddles with residents fundamental liberty and freedom through different decisions and causes a public loss from numerous points of view. |
| The fundamental rights of residents must be given an essential spot, and can't be seen as ignorable to an individual's privileges or a few general public segments. The essential explanation of the Court disdaining towards Bandh is that they comprehend that under the Bandhs, hartal and strike no one has the right to cause inconvenience to others or make a cause of danger to life, freedom and property in particular Government or public property. |
| Court Precedents |
| On 6th January 2010, Guwahati High Court announced that "Bandh" is unlawful and illegal. It disregards the citizen's fundamental rights. Chief Justice Jasti Chelameswar and Justice Arun Chandra Upadhyay in the light of a 1997 Supreme Court request maintaining a Kerala High Court's Judgment proclaimed bandhs are unlawful. Guwahati High Court gave the Judgment in the wake of hearing two separate Public Interest Litigations (PILs) filed by two residents in 2005, looking for the revelation of "bandhs" as unlawful and illegal. The Petitioners said that regular "bandhs" influence the economy and education. |
| In 2004, the Bombay High Court fined the Shiv Sena and BJP to the tune of Rs. 20 lakhs for organizing a bandh in Mumbai to protest bomb blasts. The Court licenses general strikes which protest against a particular establishment. In any case, they don't uphold the total strike. In Bharat Kumar's landmark judgment, the Kerala High Court's full bench has pronounced "Bandhs" organized by political parties occasionally as unlawful and being violative of the individuals' fundamental rights. The Court did not acknowledge it as an activity of freedom of speech and expression by the concerned party requiring the Bandh. |
| When a bandh is called, individuals are expected not to travel, not carry on their trade or business, or not attend their work. A threat is held out either explicitly or impliedly that any endeavor to conflict with the call for Bandh may bring about physical injury. A call for Bandh is different from a call for general strike or hartal. There are chances of destruction of public property during Bandh. The High Court has directed that a call for Bandh by any association or political group and enforcing it is illicitand unlawful. The High Court has likewise directed the State and all its law enforcement organizations to do all that might be important to offer impact to the court request. The Supreme Court has acknowledged the Kerala High Court's decision and would not meddle with the High Court decision. The Court has acknowledged the High Court's differentiation between a "bandh" and a "strike". A bandh meddles with different residents' fundamental freedom, notwithstanding causing loss from numerous points of view. |
| In Ranchi Bar Association v. Province of Bihar, following the Apex court decision noticed above, the Patna High Court has decided that no party has a privilege to arrange a "Bandh" making the individuals forcibly prevent them from practicing their regular lawful exercises. The Government is duty-bound to prevent unlawful exercises like Bandh, which attacks people's life, freedom and property. The Government will undoubtedly pay compensation to the individuals who suffer the loss of life, freedom or property because of a bandh in light of the Government's failure to discharge its public obligation to protect them. In some cases, even the organizers of the Bandh might be directed to pay. Any association meddling with the courts' workingshall be held liable for contempt of Court and punished accordingly. A peaceful strike which doesn't meddle with the rights and properties of individuals is not in anyway unlawful. In the present case, the High Court granted pay against the State Government for loss of property and demise of an individual during the Bandh for the authorities' failure to make a right move and give satisfactory assurance to the people's life, freedom and property. The Government neglected to discharge its public obligation to protect the individuals during the Bandh. |
| Supreme Court judgement in the case of T.K.R vs Province of Tamil Nadu (2003), was that proclaiming the right to strike is illegal, and "bandh" is unlawful. By characterizing a bandh and punishing the Bandh members, the Court had trespassed into the authoritative function. Taking a serious note of different occasions of large scale destruction of public and private properties for the sake of agitation, bandhs, hartals and so forth, suo motu proceedings were started by the Supreme Court in cases of Destruction of Public and private properties. |
| In re case, after examining different reports filed, two committees were named; one headed by a resigned Supreme Court Judge, Justice K.T.Thomas (K.T.Thomas Committee), and other headed by Mr. F.S.Nariman, a senior member from the legal profession (Nariman Committee). Both the Committees presented their reports independently. In the wake of considering the two Committees' reports and hearing the issue, the Supreme Court held the Thomas Committee's proposals are healthy and should be acknowledged. To effectuate the reports of the two Committees, the accompanying rules are to be noticed: |
| 1. The organizer should meet the police to survey and overhaul the route to be taken and to set down conditions for a peaceful march of protest; |
| 2. All weapons, including but not limited to knives and lathis, should be disallowed during the protests; |
| 3. The organizers should guarantee a peaceful march with marshals at each applicable jurisdiction; |
| 4. The police and the State Government ought to guarantee videography of such fights to the most extreme degree possible; |
| 5. The person-in-charge to oversee the exhibit should be S.P. (if the circumstance is bound to the region) and the most noteworthy police in the State, where the circumstance extends beyond one district; |
| 6. In case the demonstrations turn violent, the officer-in-charge ought to guarantee that the events are videographed through private administrators and also request such additional data from the media and others on the episodes being referred to; |
| 7. The police ought to quickly inform the State Government with reports of the events, including any loss or damage, if any, brought about by the police; and |
| 8. The State Government ought to set up a report on the police reports and other data that might be accessible to it and file a petition including its report for the High Court being referred to make a suo motu move. |
| Ongoing Developments |
| The Kerala Government had concocted a draft bill called the Kerala Regulation of Hartal Bill, 2015 which condemns enforcement of hartals forcibly, the danger of injury, etc. Organizers are needed to get consent from the authorities and inform the public three days ahead of time. Organizers must deposit a sum as security to install compensationfor damage caused to property and injuries sustained. Bail can be granted to the accused simply in the wake of depositing a sum equivalent to the estimation of harmed property as surveyed incidentally. On the off chance that the police neglect to help general society practice their lawful rights during such hartals, it would be treated as the desolation of obligation and can likewise be punished with fine which shall not be less than Rupees Ten Thousand. The Government is additionally enabled to make rules for viable execution of the provisions. |
| The Central Government has created the draft Prevention of Damage Public Property (Amendment) Bill, 2015,whichcombines the principles suggested by the Justice Thomas Committee Report and the Nariman Committee Report. The features consolidate rebuttable presumption against the accused, obligatory video graphing of fights and Bandh, and plan for booking office transporters of associations leading Bandh and Hartal to decrease deviousness. Fines can stretch up to the market assessment of the properties damaged. Therefore, it is a positive sign that the Central Government has decided to figure out how to complete the measures proposed by both the Committees. |
| Conclusion |
| The State lawmaking bodies need to prepare enactments to deal with Bandh and Hartals harmony issues. Besides enactments, there is a vital need for the police and various other authorities and experts to keep up harmony and hinder everyday life movement during Bandh and Hartals. Changes in the police and modernization are expected to help the police restoring everyday life in mercilessness. The Government ought not to embrace a tolerant position on wrongdoers as a result of political reasons. At last, at no time should assessments be dropped, and transportation should be stopped, just because of Hartals and Bandh. It defiles the general public's purpose and supports such methods for fights to constrain the Government to yield the requests. However, if conducted peacefully and through the correct order of law, bandhs and hartals can prove vital in our society to voice opinions accurately. |
| The author of this blog/Article is Kishan Dutt Kalaskar, a Retired Judge and practising advocate having an experience of 35+ years in handling different legal matters. He has prepared and got published Head Notes for more than 10,000 Judgments of the Supreme Court and High Courts in different Law Journals. From his experience he wants to share this beneficial information for the individuals having any issues with respect to their related matters. |
| Kishan Dutt Kalaskar |
| Advocate (Retired Judge) |
| Bengaluru |
| RIGHTS OF HUSBANDS IN DOWRY AND CRUELTY-BASED COMPLAINTS |
| Dowry is one of the greatest social disasters ever confronted by our nation, and no enlightened society ought to endure this, and every effort is made to eradicate this evil practice. And on the other hand, the violence that affects an individual's life, including physical emotional and mental disturbance is known as Domestic Violence. It is an infringement of the basic human right. Different nations have recognized it as a genuine danger to an individual's overall development. India has likewise distinguished domestic violence at home as a brutal crime and provides help and security from it – sadly the help is extended just towards 'women'. |
| Furthermore, some corrupt wives unleash this devastation on her husband and his family only for the sake of luring money out of them. Domestic violence at home against men is nearly nil as there is no provision in any law to protect a man. Accordingly, we have numerous situations where women utilize their privileges to submit a bogus question against their spouses to irritate them. Besides, everybody, including our government, has neglected to address the viciousness suffered by men. |
| How husbands are affected |
| Lately, the criminal law has gone through some extremist changes to protect women, which has led to giving more teeth to the existing laws (D.P. Act, 498-A, 406 IPC and so forth). As these laws are non-compoundable and non-bailable, the chance of compromise between the spouses after suit is close to nil. It implies when the complaint is made, everyone named in the complaint is blamed in the law's eyes. |
| Section 498-A of the IPC is a criminal law wherein the wife, and her parental family can charge any or the entire husband's family of physical or mental cruelty. |
| Typically, the charged relatives in these cases include: |
| • Mostly women, of all ages (unmarried, wedded sisters of the spouse, his mother and sisters- in-law, old grandmothers and aunts.) |
| • Other maternal and fatherly family members and even small kids in the family. |
| Attributes of 498-A, Indian Penal Code- |
| • Cognizable – The charged can be arrested and imprisoned without warrant or examination. |
| • Non-Compoundable – The complainant can't be withdrawn by the petitioner (chances of living together respectively again are lost.) |
| • Non-Bailable – The accused should show up in the Court to demand bail. |
| Even on a single complaint of the wife, the husband and his whole family can be confined in a jail, with an estimated 40,000 allegations for every year and an average of 5 individuals from the husband's family implicated in each of these 498-A cases, around 200,000 individuals are straightforwardly affected by these cases. |
| It is pertinent to note here that, the genuine victims of the evil of dowry, the rural Indian women are not educated about their privileges and neglect to utilize these laws. Be that as it may, some Indian urban educated women have reversed the situation and are utilizing these laws as a weapon to release individual feud on their spouses and innocent family members. |
| The most recent addition in women's lawful cannons is 'The Protection of Women from Domestic Violence Act'. This law is pro-women and anti-men and assumes each man as a virtual torturer and assumes women to be the casualties. This law is profoundly vague and discusses verbal/financial and psychological mistreatment of women. Numerous husbands and their relatives, falsely implicated in these cases have committed suicide after being imprisoned, unfit to bear the social trauma. |
| Court Precedents |
| Hon'ble Supreme Court and different High Courts have time and again demonstrated worry over this developing danger by seeing that "By abuse of the section (IPC 498-A - Dowry and Cruelty Law) " new legal terrorism can be released. The section is expected to be utilized as a shield, and not as a professional killer's weapon says the Hon'ble Supreme Court. Simply because the section is declared constitutional, it doesn't permit deceitful people to wreck individual quarrel. |
| In the case of SKS vs Union of India and others, the Hon'ble Supreme Court held that "the object of the provision is the prevention of the dowry menace. But as has been rightlycontended by the petitioner, many instances have come to light where the complaints are not bonafide and have been filed with oblique motive. In such cases, the acquittal of the accused does not, in all cases wipe out the ignominy suffered during and before trial. Sometimes negative media coverage adds to the misery. Therefore, the question is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give unscrupulous persons a licence to wreck personal vendetta or unleash harassment. Therefore, it may become necessary for the legislature to find out how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then, the Courts have to take care of the situation within the existing framework." |
| Ample opportunity has been given to the legislators’/law implementation organizations/judges to pay notice and review these laws in the public interest to check the developing abuse of these laws to guarantee impartial justice and protect the sacred and pious institution of marriage. |
| In AK v. the State of Bihar, (2014), in an endeavour to guarantee that police officer doesn't capture the charged pointlessly, and Magistrate doesn't approve detainment nonchalantly and precisely in cases under Section 498-An IPC, the Court gave certain directions (nonetheless, the directions apply additionally to different situations where the offence is guilty with the detainment of not more than seven years) which include: |
| • Police officials not to consequently arrest the accused when a case under 498-An IPC is registered. They ought to satisfy themselves about the necessity to arrest under parameters moving from Section 41 CrPC (the judgment sets out the parameters). |
| • Police officials will fill the checklist (containing indicated sub-clauses under Section 41(1)(b)(ii) CrPC) and furnish the reasons and material requiring the arrest. |
| • The Magistrate will approve confinement exclusively after recording its fulfilment on the police officers' report outfitted. |
| • If the police officers neglect to comply with the directions, they will be at risk for departmental action and court contempt. |
| • Failure of the Judicial Magistrate to comply with the directions will make him liable for departmental action by the suitable High Court. |
| RS v. The State of U.P., 2017- In this case, the Supreme Court offered directions to prevent abuse of Section 498-An IPC, which were additionally altered in Social Action Forum for Manav Adhikar v. Association of India, 2018. These directions include: |
| • Complaints under Section 498-A and other associated offences might be examined exclusively by an assigned Investigating Officer of that area. |
| • If a settlement is made between the parties, it is available to them to approach the High Court under Section 482 looking for seeking quashing of proceedings or some other request. |
| • If a bail application is filed within at least one day's notice to the Public Prosecutor/complainant, the same might be decided as far as possible around the same day. Recovery of disputed dowry things may not, without help from anyone else, be a ground for refusal of bail if maintenance or different rights of wife/minor children can, in any case, be secured. |
| • In regard of people normally living out of India, appropriating passports or issuance of Red Corner Notice ought not to be a daily practice. |
| • These directions won't have any significant bearing if there should be an occurrence of tangible physical injuries or death. |
| RKN vs State of Madhya Pradesh [Criminal Appeal No.814 of 2020]- The Supreme Court has acquitted a man convicted by the Trial Court and the High Court in a dowry death case. In this case, the accused's wife had passed on by setting herself on fire. The dying declaration indicated that the reason for which the deceased set herself on fire was the household fight with the husband. Thus, both the Trial Court and the Chhattisgarh High Court considered this dying declaration and statements of certain witnesses to convict the accused under Sections 304- B and 498-An IPC. He was condemned to be detained for ten years. |
| Then the counsel for the accused brought to the Supreme Court's notice that the dying declaration revealed that the deceased herself poured lamp fuel oil upon her and set herself burning and that the testimony of the concerned doctor very much upheld the dying declaration. He contended that the vague claims against the accused by certain witnesses couldn't be taken to be adequate proof of dowry-related harassment. The bench including Justices L. Nageswara Rao, Vineet Saran and S. Ravindra Bhat, permitting the allure, held that the dying declaration shows that the deceased's immediate cause to set herself afire was the domestic quarrel with the husband. The dying declaration gives details as to how the deceased suffered burn injuries and disclosed the immediate cause for her to take the extreme step. There is nothing on record to indicate that the dying declaration was obtained by fraud or misrepresentation or that the statement was not correctly recorded. It was recorded by a doctor, an independent person and satisfied all the requirements. |
| Remedies available |
| In case a false complaint is registered against men by their wife, they have two choices: to defend their case and wait for the judgment or file a counter case against their wife and prover them wrong, as detailed underneath. |
| Defensive remedies |
| Men can protect themselves and their family from being sent to prison given the false complaint. They have the following alternatives to safeguard their family and themselves: |
| • Record all conversations (voice, chat, email, letters, and so on) with those threatening and keep the originals in a protected place and not produce the actual evidence before anybody. |
| • Gather evidence to demonstrate that they have neither demanded dowry nor have accepted it nonetheless. |
| • Gather evidence to demonstrate that the wife moved out of the obligation of marriage for no legitimate explanation. |
| • This evidence will be productive at the time of getting anticipatory bail or notice bail from the Court. |
| Document RCR (Restitution of Conjugal Rights)- Suppose the wife has left her husband's place after all the threatening. In that case, men can file RCR (Restitution of Conjugal Rights) referencing the conditions that she ought to concur on before she begins living with her husband once again. |
| Offensive remedies |
| Men can file counter cases against their wife to present the defence stronger and expect an earlier settlement. The following is a rundown of counter cases they can file to reinforce their case. |
| Section of 120B IPC, 1860 – Punishment of Criminal Conspiracy – Husbands can file a case against their wife alleging that she is conspiring to commit a crime against him and his family. |
| Section 167 of IPC, 1860 – Public servant outlining a wrong document to cause injury – If the husband believes that the police officers are helping their wife in submit a false complaint and framing false documents, he can file a case against them claiming their false framing of documents. |
| Section 182 of IPC, 1860 – False information, with the intent to cause public servant to utilize his legal capacity to the injury of someone else – What usually happens is that the public servant in his power accomplishes something which probably won't be a reality, so, false information is circulated to depress the evidence. |
| Section 191 of IPC, 1860 – Giving false evidence – If the husband presumes that his wife or anyone is introducing false evidence against him in the Court of law or police headquarters, he can file a case asserting that the evidence which is being utilized to prosecute him is false, which consequently make the total charges false. |
| Section 197 of IPC, 1860 – Issuing or signing a false certificate– Perjury is a crime; one can't sign a false certificate and claim it to be valid. Consequently, if somebody suffers due to some wrong certificate, he can prove himself innocent after showing adequate evidence. |
| Section 471 of IPC, 1860 – Using as genuine a forged [document or electronic record]. – Whoever falsely or unscrupulously utilizes as genuine any [document or electronic record] which he knows or has the reason to accept to be a forged [document or electronic record], will be punished similarly as though he had manufactured such [document or electronic record]. |
| Section 500 IPC, 1860 – Defamation – Reputation is one's greatest treasure. So on the off chance that somebody attempts to defame a person, he/she may use any, and all means can drag them to Court for the harm endured due to their ill-conduct. They will be qualified to pay the harms by monetary terms. |
| Section 506 of IPC, 1860 – Punishment for Criminal Intimidation – The husband can file a case against his wife, claiming that she threatens him to hurt himself or his family or property. Yet again, the evidence is the only thing which can uphold his case. |
| Section 227 of Cr.P.C., 1973 - If the husband believes that the complaint filed by his wife is false, he can file a complaint under section 227 expressing that the 498-A case filled by his wife is bogus. In case that he has enough evidence, or on the off chance that the wife needs more proof to substantiate the charges, the chances are that the judge excuses the 498-A case as it is a framed one. |
| Section 9 of CPC, 1908 – Damage recovery case – If the wife breaks into the husband's home, makes a scene, and goes to 'protection official' and falsely claims that the husband tortured her 'emotionally, physically or monetarily', the husband can file a damage recovery case under Section 9 of CPC against his wife. Legitimately, he should give notice around the same time or the following day. The suit will proceed for quite a while. |
| Conclusion |
| The false objection against men is increasing each day, and it's a significant issue as it disregards basic fundamental liberties. The issue is obscure to anyone; everyone knows how women abuse the law's provisions to satisfy their unlawful demands against their spouses. The Supreme Court is additionally working hard on bringing amendments to laws protecting Indian men. In this light, in its judgements, the Court laid out a few rules against the arbitrary arrest of men in section 498-A cases. |
| The author of this blog/Article is Kishan Dutt Kalaskar, a Retired Judge and practising advocate having an experience of 35+ years in handling different legal matters. He has prepared and got published Head Notes for more than 10,000 Judgments of the Supreme Court and High Courts in different Law Journals. From his experience he wants to share this beneficial information for the individuals having any issues with respect to their related matters. |
| Kishan Dutt Kalaskar |
| Advocate (Retired Judge) |
| Bengaluru |
| ABETMENT TO SUICIDE AN OFFENCE UNDER SECTION 306 OF INDIAN PENAL CODE (IPC), 1860 |
| A person is accountable for abetment to suicide when any of the following conditions are fulfilled: |
| • He/She instigates someone to commit suicide. |
| • He/She takes part in a conspiracy to make a person commit suicide. |
| • He/She helps the victim deliberately so he can commit suicide by doing an act or not doing something that he was bound to do. |
| Section 108 of the IPC defines the abettor. A person abets an offence, who abets either the commission of a crime or the commission of such an act, which would have been an offence if committed by a person capable by law of committing an offence with the same purpose or information as that of the abettor. |
| In accordance to Section 306 of Indian Penal Code-If any individual commits suicide, whoever abets the commission of such suicide, he/she shall be punished with the sentence of either for a term, which may extend for a period of ten years and shall also be liable to fine. |
| Section 306 |
| Section 306 states that "If any person commits suicide, whoever abets the commission of such suicide shall be punished with imprisonment of either imprisonment for a term which may extend to ten years, and shall also be liable to fine." |
| Abetment of suicide is an offence tried in a Sessions court and is cognizable, non-bailable and non-compoundable in nature. |
| Cognizable offence: A police officer can make an arrest without a warrant from a court. |
| Non-bailable offence: Bail is granted to the accused at the discretion of the court, and not as a matter of right. |
| Non-compoundable offence: The case cannot be withdrawn by the complainant even when the complainant and the accused have reached a compromise. The court will not allow withdrawal of a case involving a non-compoundable offence. |
| How did section 306 come into force |
| Section 306 of the Indian Penal Code, 1860 was added in order to prevent sati. In those days the tradition of sati was widespread in India. The suffering of the widows used to lead them to commit Sati. In order to eliminate this iniquity, this provision was added consequently. It was established that wife had committed suicide consequent to ill-treatment meted out to her by mother-in-law, sister-in-law and husband. It was held that these persons were liable to be convicted under sections 306 for abetting her to commit suicide. Due to not bringing sufficient dowry, the accused was ill-treating the deceased. The evidence on record made out case of persistent and unabated harassment and cruelty. This compelled the deceased to commit suicide by consuming a poisonous substance. The accused’s husband was held guilty under sections 306 and 498-A. Before the offence under section 306 can be proved, the presence of mens rea is of utmost importance. |
| To hold a person guilty of abetment to commit suicide under the said provision, there has to be a clear mens rea on his part to instigate another to commit suicide. There should be objective to aggravate, incite or persuade the doing of the act by the other individual. The suicide must necessarily have been committed, also, a person may abet suicide by words or conduct, or both. A person is said to have instigated another to commit suicide when he, by his acts or omissions or a continued course of conduct, created such circumstances that the other was left with no other alternative but to commit suicide. Words that a person speaks in a fit of anger or emotion without any intention of making anyone commit suicide, does not amount to abetment. Some active role in the commission of suicide by the accused needs to be proved to hold him responsible for abetting it. Without action on the part of the accused person to instigate or aid the deceased person committing suicide, the conviction is not sustainable. |
| The scope and ambit of section 306 of IPC |
| Abetment is a procedure in which there is a mental progression of instigating an individual or intentionally aiding a person in doing a particular act. The purpose of the legislature and the proportion of the cases decided by the Supreme Court is obvious that in order to charge a person |
| under section 306 Indian Penal Code, 1860 there has to be a lucid mens rea to commit the offence. It also requires a dynamic act or direct act, which led the deceased to commit suicide seeing no alternative and that act must have been intended to put the deceased into such a point that he had to commit suicide. |
| In the landmark judgement of MM v State, the Apex Court held that there should be a close link between the act of the accused and the act of committing suicide. If the link is not present, it cannot be said that the accused has instigated, or intentionally aided the commission of suicide. Meagre threats of involving the family in false and frivolous cases cannot be held to equivalent to instigation. Abetment thus essentially means some active proposition or support to the commission of the offence. |
| In GCS v. the State of Punjab, it is mentioned that the necessary ingredients of this provision are suicidal death and the abetment thereof. To encompass abetment, the meaning and involvement of the accused to aid or bring about the commission of suicide is very important. Any severance or deficiency of any of these constituents would militate against this condemnation. |
| Presumption of abetment |
| As to offence of abetment to commit suicide, section 113-A of the Evidence Act, 1872 lays down that (a) if a married lady commits suicide within seven years of her marriage; (b) if her husband or his relative had subjected her to cruelty within the meaning of the term as defined in section 498-A of the Indian Penal Code, 1860, then the Court may raise the presumption of the fact that the husband or such relative of her husband abetted the suicide. |
| As to the presumption of abetment to commit suicide dealt with in section 113-A of the Evidence Act, 1872 it is applicable when the husband or any relative of his is guilty of cruelty to the wife, he or she is punishable under section 498-A of the Indian Penal Code, 1860. In short the first requisite for attracting the presumption under Section 113-A of the Evidence Act, 1872, must be proved that the wife was subjected to cruelty as defined in section 498-A Indian Penal Code, 1860. |
| The simple fact that if a married woman commits suicide within a phase of seven years of her marriage, the assumption under section 113-A of the Evidence Act, 1872 would not automatically apply. The presumption under Section 113-A is discretionary, and the Court can consider the nature of cruelty to which the woman was subjected to, having regard to the meaning of the word "cruelty" in section 498-A of the Indian Penal Code, 1860. |
| In the case of Appasaheb versus the State of Maharashtra (the important issue of offences related to dowry) APS was convicted for the death of his wife, Bbai, after she consumed poison. A case was registered against him and his mother under IPC Sections 498A (cruelty against the woman for dowry), and 306 (abetment of suicide). Though the accused were acquitted for the offence of cruelty and abetment, the husband was convicted on the charge of dowry death. Allowing the appeal, the Supreme Court Bench quashed the conviction and said the statement of the mother of the deceased did not state that the cause for ill-treatment was a demand for money and consequent beating. |
| In the present case, the Supreme Court’s interpretation is at odds with the purpose of the legislation. Rather than looking at the enactment as social reform legislation, the judgment equates it with the legislation in the area of any trade, business or transaction. |
| Proof of concept |
| Instigation has to be collected from the situation of the case. Not all cases may be of direct evidence about instigation having a direct nexus to the suicide. There could be cases where the state of affairs produced by the accused are such that a person feels very aggravated and finds it difficult to continue survival. |
| In CKC v. State (Govt. of NCT of Delhi), the Supreme Court reiterated the legal jurisprudence that was laid down in its earlier judgment in the case of RK v. the State of Chhattisgarh and held that where the accused by his acts or continuous course of behaviour creates such circumstances that the deceased person was left with no other substitute except the option to commit suicide, an instigation may be indirect. In order to prove that the accused abetted commission of suicide by a person, it has to be recognized that: |
| • The accused kept on frustrating or annoying the deceased by words, deeds or wilful omission or conduct which may even be an unruly stillness until the deceased responded or pushed or forced the deceased by his deeds, words or wilful oversight or behaviour to make the deceased move forward more rapidly in a forward direction; and |
| • That the accused had the purpose of aggravating urge or persuading the deceased to commit suicide while acting in the way noted above, undoubtedly, mens rea is a necessary element of instigation. |
| Conclusion |
| Abetment of suicide, be it either instigating the victim or aiding the victim in the commission of the suicide. The accused can defeat the penal provisions dealing with such offence very easily, as the scope of the provision is limited to only three categories, which is actually a loophole. Therefore, there is an urgent requirement to amend the provisions which deals with the offence of abetment, in such a manner that the criminals are not unable to evade the legislations, mend the cases suiting their own requirements, and break away from the punishments. In addition, the laws are needed to be interpreted not strictly in a confined manner. However, according to the facts and circumstances of each case so that justice prevails. The current definition of abetment falls short. The section covers abetment by way of aid, instigation and conspiracy, but there are instances where the actions of the person do not strictly fall in these three categories but pressurize a person to commit suicide. |
| The author of this blog/Article is Kishan Dutt Kalaskar, a Retired Judge and practising advocate having an experience of 35+ years in handling different legal matters. He has prepared and got published Head Notes for more than 10,000 Judgments of the Supreme Court and High Courts in different Law Journals. From his experience he wants to share this beneficial information for the individuals having any issues with respect to their related matters. |
| Kishan Dutt Kalaskar |
| Advocate (Retired Judge) |
| Bengaluru |
| REMEDIES AGAINST HARASSMENT BY RECOVERY AGENTS |
| There are numerous cases of the oppressive and illegal conduct of recovery agents attempting to recover pending dues for the banks' benefit. In the past few years there have been many such instances, to showcase an example, an 81-year-old woman was seriously threatened by recovery agents, she got 375 threatening calls concerning her child's unpaid bank dues. After that, she moved to the police, and a case was filed against these agents. Another incident quoted as per media reports stated that a private bus was halted, and 42 travellers were held hostage for three hours by recovery agents, who needed to recover money from the travel company that owned the bus. These cases affirm that recovery agents/offices are feared in India. |
| A recovery agent seeks clients and organizations that owe instalments to banks. Many of these recovery agents collect the banks'clientspayment dues for a charge or a percentage of the total amount owed. These agents are generally a third-party as they are not a part of the original contract. |
| The individuals not just face humiliation before family or friends, but also face actual dangers. There are a few situations where the clients have committed suicide or faced serious medical conditions because of the recovery agents' threatening conduct. |
| Harassment |
| What is considered harassing by a lender? |
| If the lender attempts to do any of the following, it could be viewed as harassment to recover the money owed. These actions include : |
| • reaching people multiple times each day, or promptly in the first part of the day or the late evening.; |
| • seeking people on social media platforms, for example, Twitter and Facebook; |
| • putting pressure on people to sell their home or take out greater credit; |
| • threatening or continuously contacting relatives of the borrower; |
| • utilizing more than one debt collector, in turn, to pursue people for instalment; |
| • using desk work or business logos that give off an impression of being official when they're not, for instance sending people letters that seem as though they represent court forms; |
| • pressurizing people to pay all the money, or in bigger instalments when they can't afford to; |
| • attempting to humiliate people in front of the general public; |
| • telling another person aboutyour debts or using someone else to pass on messages, for example, a neighbour or a relative. |
| What isn't considered harassing by a lender? |
| Not all activities that a lender conducts can be labelled as harassment. Leasers are permitted to find a way to get back the amount customers owe them. These include: |
| • sending updates and demands for instalment |
| • calling at customer's home, as long as this is at a sensible time |
| • making a court motion. |
| In a judgment (Smart Security Secret Service Agency vs State Bank of India) the High Court of Kerala decided that solid arm strategies to recover credits by Banks and other Financial Institutions are unlawful. Expressing that the use of solid arm strategies was unlawful, deceptive and against the insurance of public interest, notwithstanding being against the general approach, the High Court guided financial organizations to adhere to the fair treatment of law in an authorized way. Likewise, this judgment was sent to the Governor of the Reserve Bank of India (RBI) to guarantee that similar occurrences would not happen later. Although the RBI has laid numerous principles against banks delegating these sorts of recovery agents, these agents are still appointed by the banks. |
| Legal Remedies |
| Legal Remedies available to defaulter in the case of harassment by recovery agents |
| • Filing a complaint at the police station: A proper complaint should be filed against the Bank and the recovery office. However, if the police do not file a complaint, the magistrate can be approached. |
| • An injunction suit against the bank and recovery agents: A civil injunction suit with an ad-interim relief can be filed in the civil court against the bank and recovery organization. It should be possible to guarantee that bank authorities and recovery agents don't visit a person's home to recover the dues. |
| • File an objection with the Reserve Bank of India: After getting a few public objections against banks and seeing a few cases recorded against the harassing recovery method, the RBI prescribed certain norms for therecovery agents in order to govern the approach towards defaulters. In this manner, if the defaulters feel undermined, they have an option to contact the organization and file a legal complaint. |
| • Defamation suit: If the debt recovery depends on incorrect data that prompted the deficiency of a person's CIBIL score, they can file a defamation suit against the bank and recovery organization. |
| • Trespass objection: On the off chance that the recovery agents of the Bank illegally invade someone's home without approved consent, at that point a trespass complaint can be filed against them for disregarding an individual's rights. |
| • Extortion grievance:If the recovery agents forcefully recovered the money, an extortion case can be filed against. |
| • Complaint to your Bank: Practically all banks have a complaint department. The client can move that department and can communicate on this matter. Generally, after recording the grievance, the client needs to wait for 30 days to tackle the matter or get an answer. |
| • The banking ombudsman: On the off chance that the Bank does not address the issue/grievance, within the specified days, the banking ombudsman can be approached. RBI selects such individual as a senior authority who redresses the grievances by clients. The ombudsman should give a lawfully binding decision to call for settlement between the Bank and the client. The complaints identified with credit cards are filed with the ombudsman whose territorial jurisdiction the client's billing address is found. |
| Legal remedies accessible to Banks and NBFCs for credit recovery |
| • When a bank or financial institution needs to recover any individual's debts; it uses Original Application (OA) to the Debt Recovery Tribunal against such individual. |
| • The secured lenders reserve a right to implement Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI ACT,2002). It allows banks or other financial institutions to auction private or business properties to recover credits. The provision of the SARFAESI Act, s applicable if the amount of the NPA loan amount surpasses INR One Lakhs and NPA credit account is more than 20% of the principal and interest. |
| • Credit taken from the Bank is under an agreement between the Bank and the borrower; hence, the general laws like Law of Contract, Transfer of Property Act, Specific Relief Act, Specific Performance and so on, apply to all banking transactions relying on the nature of the transaction. |
| • In India, the remedy accessible to moneylenders is to file an ordinary money suit for recovery against the defaulting borrower for the pending amounts. |
| Legal remedies accessible to corporates for advance recovery |
| • If the borrower neglects to repay, the company can make legal moves against the borrowers. A summary suit can be instituted under Order 37 of Civil Procedure Court (CPC) in a competent court lying under the jurisdiction. |
| • Likewise, the general laws like the Law of Contract, Transfer of Property Act, Specific Relief Act, Specific Performance and so forth, apply to all corporate transactions relying on the idea of the transaction. |
| Court Precedent |
| II Bank vs SSD &O, 2008: In this landmark judgment, the Supreme Court emphasized its stand that banks can't send musclemen to recover advances from defaulters, subsequently compelling them to take their lives. A Bench consisting of Justices Tarun Chatterjee and Dalveer Bhandari stated that they considered it proper to remind the banks and other financial organizations that we live in a socialized country and are administered by the standard of law. While rejecting the ICICI Bank's plea, the court refused to delete the Delhi High Court's comments that considered the Bank and its musclemen liable for abetting a person to commit suicide by threatening him. |
| As indicated by the court, Reserve Bank's complaints concerning infringement of the above rules and adoption of oppressive practices followed by banks' recovery agents would be seen genuinely. Emphasizing the RBI Guidelines on Engagement of Recovery Agents, the court held that the Reserve Bank might consider forcing a restriction on a bank from engaging with recovery agents in a specific area, either jurisdictional or functional, for a limited period. If there should be an occurrence of tenacious break of the above rules, Reserve Bank may consider expanding the time of ban or the area of the ban. |
| Justice Bhandari, writing the Bench's decision, expressed that RBI had communicated its concern about the number of prosecutions recorded against the banks in the recent past for engaging with recovery agents who have purportedly abused the law. ICICI Bank had moved the Supreme Court looking for the deletion of certain paragraphs in the High Court order which had said that the general reason for the death of the deceased that drove him to commit suicide was because of humiliation brought about by the Bank. |
| The High Court had noticed that the modus-operandi by the banks like ICICI for the acknowledgement of their advance money and for recovering the ownership of the vehicle against which advances are given extra-legitimate, and in no way, they can be allowed to utilize musclemen and hooligans for the recovery of their loan even from a defaulting party. The High Court order had gone ahead with an appeal filed by Shanti Devi Sharma, the deceased's mom, looking for a probe against the ICICI bank and its staff for the unlawful activity, which prompted the suicide of her 34-year-old child Himanshu Dev Sharma. Sharma committed suicide in October 2005 by hanging himself at his home after he was supposedly threatened and humiliated before his neighbours and family by recovery agents used by the Bank to recover the advance money taken to buy his motorcycle. |
| Conclusion and current norms |
| A bank and corporate organizations' performance analysis can't be exclusively founded on resources mobilized or advances made. Resource mobilization, the arrangement of resources, and reusing resources are three primary places of banking and corporate business tasks. In this way, recovery is similarly a significant action. Any deferral in recovery hampers the reuse of assets, and banks' capacity to restore the advances to financial institutions is also hindered, because of which honest borrowers suffer. Consequently, the quick recovery of credit for the proper working of a business is fundamental. |
| The Reserve Bank of India has issuedrules under Asset Reconstruction Companies (ARCs) to prepare recovery agents not to disturb borrowers by setting up a fair practices code, and a complaint redressal system that will likewise be set up for quicker resolution of genuine objections made by the borrowers, as stated by the RBI. Additionally, RBI held that the ARCs should share the name and number of the assigned complaint redressal official with the borrowers. The mechanism will fundamentally review genuine complaints, which incorporates dealing with administrations furnished by the outsourced office alongside the recovery agents. |
| The author of this blog/Article is Kishan Dutt Kalaskar, a Retired Judge and practising advocate having an experience of 35+ years in handling different legal matters. He has prepared and got published Head Notes for more than 10,000 Judgments of the Supreme Court and High Courts in different Law Journals. From his experience he wants to share this beneficial information for the individuals having any issues with respect to their related matters. |
| Kishan Dutt Kalaskar |
| Advocate (Retired Judge) |
| Bengaluru |
| CONJUGAL RIGHTS HOW TO BE RESTORED |
| Marriage is one of the beautiful and one of the important stages of everyone's life. It is a life-changing decision of two people who agreed to share their life with each other. But no one can predict the future, sometimes the two people who agreed to share their life might face problems in it. Marriage is considered to be a roller coaster ride which means sometimes up and sometimes down, it depends on the couple whether they are able to face the downs with the ups. Sometimes they are not, when they are not then they seek happiness in being apart from either by judicial separation or by divorce. In this blog, we will discuss what conjugal rights mean? Who can file for restitution of conjugal and where? under which law restitution of conjugal rights can be filed? How is a denial of conjugal rights grounds for divorce? |
| Conjugal Rights: |
| The couple who are married agreed to share their life which means they have certain duties and responsibility towards each other. Conjugal Rights also mean the same when the couple is married they have certain matrimonial rights which should be performed by both the spouses. Conjugal Rights includes: |
| 1. Living together: The spouses or the married couple should live together. |
| 2. Marital intercourse: The spouses or the married couple have rights and duties together with each other and have physical or sexual relationships. |
| 3. Comfort to each other: The spouses should give comfort to each other like; emotional and mental comfort. |
| 4. Matrimonial Obligation: The married couple is supposed to share the responsibility of the households as well. Since the two people are sharing their life one person cannot take responsibility for everything which means they have to share the household chores. |
| Laws that talks about conjugal rights are as follows: |
| 1. Section 9 of The Hindu Marriage Act. |
| 2. Section 32 of the Indian Divorce Act. |
| 3. Section 22 of the Special Marriage Act. |
| 4. Section 36 of The Parsi Marriage and Divorce Act. |
| Restitution of Conjugal Rights: |
| If any of the spouses refuse to live together or withdraw herself/himself from the society of their respective halves for no reason or refuse to enjoy the conjugal rights. Court to maintain gender equality provided some legal provisions to let the spouses have their rights. If the spouses are not enjoying the conjugal rights then the other spouse can file suit for restitution of conjugal rights. To file the suit for restitution of the conjugal rights the partner who is filing has to prove it, and certain condition needs to be fulfilled to file suit for restitution of conjugal rights: |
| 1. The defendant has refused from cohabitation or is withdrawing from the society of the other spouse or petitioner. One of the most important things need to keep in mind that it is not necessary that they are not living together makes the other partner file suit for restitution of conjugal rights, if they are in contact or communicating and staying away is due to work or for some other valid reason then it will not be considered as a refusal from the society. |
| 2. The statement made and mentioned by the petitioner should be true and no false statement had been made and there has to be unreasonable ground for the refusal from the society of the significant half. |
| 3. If the relief or the application is being denied then there should not be any legal grounds mentioned for that. |
| Procedure to file the suit for restitution of conjugal rights: |
| When it comes to filing any type of suit or case it needs to be done in a proper manner and there are certain procedures that need to be followed by the person who is initiating any legal proceedings against any person. In this case, the procedure is as follows: |
| 1. The spouse who wants to file the suit for restitution should contact a lawyer specialized in such cases, he/she will file the application on your behalf in the district court from which it will be transferred to High Court. |
| 2. From there a petition copy will be sent to the other spouse or the other partner, also the date of the hearing regarding the matter. |
| 3. On the given date of hearing both the husband and the wife has to be present in the court for the case hearing. |
| 4. The court will send them to the counselor for their case where they will describe their issues and try to resolve the matter. In general, the court will send them for 3 sessions and there will be a 20 days time gap between each session. |
| 5. After the 3 counseling sessions, the judge will pass the decree either in favor of the petitioner or defendant depending upon the statements of the parties and the counselor. |
| Rejection of the application of restitution of conjugal rights: There are certain cases where the court may deny the application for the restitution of conjugal rights, but there has to be a proper reason for the denial of the conjugal rights which are as follows: |
| 1. If the spouse or the defendant is staying away or apart is due to any type of matrimonial issues or problems then the application may be denied. |
| 2. If the spouse or the petitioner has committed any type of misconduct or any bad behavior or there is any type of abuse, then the application for restitution of conjugal rights may be denied. |
| 3. There is any cruelty from any party or the in-laws it would amount to a rejection of the application. |
| 4. If the parties are causing or willingly dragging the case for no reason then the application may get rejected. |
| What happens when the application is rejected or the proceeding is taking time: Legal proceeding takes time and also depends upon the statements and the evidence if the court is satisfied there is a proper reason for staying apart or the spouse have a valid reason for withdrawing from the other spouse’s society then the court may grant the degree in favor of the defendant. |
| If the petitioner gets rejected or the petitioner loses the case then the petitioner has the right to file a case for judicial separation or for divorce. |
| If the case is taking longer than the petitioner or the court expected then the application may get rejected and the petitioner can file for judicial separation and divorce. |
| If the decree is passed in the favour of the petitioner but the defendants refused to comply or failed to perform and came back within one year then again, the petitioner can file for judicial separation or divorce. |
| Judicial Separation: Sometimes a couple does not want to officially call their marriage off but needs some time to sort things out or need time to think but not ready to part their ways for forever, so they go for judicial separation. It suspends their marriage for some time which makes the couple realize how important their marriage is and the significant half is for them also gives them time to solve the issues they are having. |
| Grounds for judicial separation: |
| 1. Adultery: It is one of the main reasons for judicial, when any of the spouses is sexually involved with someone else or other than the spouse, it is called adultery. |
| 2. Cruelty: When any of the spouses has committed any type of cruelty towards the other spouse. For any type of abuse then it will become the ground for judicial separation. |
| 3. Desertion: When any of the spouses or the party deserts the other spouse or the party without any reason or consent for 2 continuous years then the spouse who gets deserted can file for judicial separation. |
| 4. Unsound Mind: If one of the spouses has an unsound mind or not in his/her senses then the other spouse can file for judicial separation. |
| 5. Conversion: When one of the spouses opt for any other religion or convert himself/herself into some other religion then the other spouse can file for judicial separation. |
| 6. Leprosy: If one of the spouses is suffering from any disease which is incurable or long term then the other spouse can file for the judicial separation. |
| 7. Missing for 7 years: If the spouse is not being found or haven’t seen for 7 years then the other spouse can file for judicial separation. |
| Divorce: When a married couple no longer wants to continue their marriage or are unable to resolve the issues they have or they have any issues which make them unable to continue their marriage, they seek court’s help in dissolving their marriage or getting divorced. |
| Grounds for divorce: |
| 1. Desertion: When any of the spouses leave the other spouse for no reason and without consent then the spouse who is getting deserted can file for divorce. |
| 2. Cruelty: If any spouse mistreats their spouse or behaves badly or abuses verbally or physically then the other spouse can ask for a divorce. |
| 3. Adultery: When any of the spouses are having affairs with some or involved in sexual activity with another person then their spouse the other spouse can file a case for divorce. |
| 4. Unsound Mind: When any of the spouses is insane or becomes insane due to any reason and the other spouse does not want to continue their marriage then he/she can file for divorce. |
| 5. Leprosy: If the spouse is suffering from a disease that is incurable or has a long time effect then the other spouse can ask for a divorce. |
| 6. Conversion: When one of the spouses converts himself/herself into some other religion then the other spouse can file for divorce. |
| 7. Mutual Consent: When both the party or the spouses think that it's better to call their marriage off or think that they are not happy together anymore and should part their ways then they can file for divorce on this ground, where they both agree for it. |
| 8. Customary Divorce: When the divorce is performed by following the rules of the customs is customary divorce. |
| 9. Breakdown of marriage: If the spouses or any one of the party claims that there is no cohabitation of the marriage or they are not enjoying the conjugal rights or there is no restitution of conjugal rights for up to the period of 1 year then they can seek divorce. |
| Cases on Conjugal Rights with respect to Constitutional Validity: |
| T. S v. T.V: In this case, the Court held that restitution of conjugal rights is a violation of Articles 14, 19, and 21 of the Indian Constitution. Court held that this right violates the freedom of a woman. It took away the rights of the woman that when and how she wants to live her life or consume her marriage. Hence the court held that it should be held void and arbitrary. |
| HK v. HS: In this case, the court states the objective of restitution of conjugal rights, the court held that the object behind this right is to make the married life stable for husband and wife and to encourage reconciliation and conjugal rights do not talk about sexual intercourse only it talks about the marital relationship overall which makes it valid. |
| SR v. SK: In this case, the Court held that restitution of conjugal rights is not violating any of the fundamental rights of the spouse or is not violating Article 14,19, or 21 of the Indian Constitution. On the other hands, it is stopping a marriage from being dissolved which means it is serving a social purpose but if any of the spouses is not complying with the decree of restitution of conjugal rights for 1 continuous year then they can get a divorce on this ground as a court cannot force a person to have a physical relationship or sexual intercourse. |
| Conclusion |
| Hence it is concluded that conjugal rights include all marital rights not just sexual intercourse, conjugal rights talk about the rights of spouses to living together, sharing household chores, fulfilling responsibility as husband or wife towards each other and the family and just because spouses are not living in the same house does not mean they are not cohabiting, if they are having a conversation or communicating that will ask for restitution of conjugal rights. Also, it is not unconstitutional or it does not violate the fundamental rights of the spouses. |
| The author of this blog/Article is Kishan Dutt Kalaskar, a Retired Judge and practising advocate having an experience of 35+ years in handling different legal matters. He has prepared and got published Head Notes for more than 10,000 Judgments of the Supreme Court and High Courts in different Law Journals. From his experience he wants to share this beneficial information for the individuals having any issues with respect to their related matters. |
| Kishan Dutt Kalaskar |
| Advocate (Retired Judge) |
| Bengaluru |
| GUIDELINES TO BE FOLLOWED BY REGISTERED MEDICAL PRACTITIONERS TO DISPENSE MEDICINES |
| According to the World Health Organization, dispensing refers to the practice of preparing and giving medicine to a person based on a prescription from a registered medical practitioner (RMP). Dispensing of medicines by an RMP has been legalized for the convenience of the patients. It allows the availability of consultation, treatment-related supplies, prescription and drugs under one roof, i.e. the doctor’s clinic to the patients. Many issues border the practice of dispensing of medicines by registered practitioners. It is not uncommon for RMPs to exercise the option of prescribing as well as dispensing medicines, especially in semi-urban and rural areas yet this dual practice of prescribing and dispensing medicines raises many ethical and legal concerns. |
| Can Medical Practitioners dispense medicines? |
| The question of whether clinical specialists should sell medicines at their clinic has been raised on several occasions but still remains unanswered.In India, the manufacturing, storing, transportation, conveyance, and administering of drugs and medicines are governed under various statutes, including the Drugs and Cosmetic Act, 1940; Indian Medical Council Act, 1956; the Pharmacy Act, 1948; and the Narcotic Drugs and Psychotropic Substances Act, 1985. S.42 of the Pharmacy Act requires mandatory registration of pharmacists selling medicines but exempts RMPs from this requirement. Recently, the Pharmacy Council of India had unanimously adopted a resolution requiring an amendment of S.42 of the Pharmacy Act permitting RMPs to sell medicines to their patients. Rajan B Rajan, former President of the Kerala State Pharmacy Council, also demanded following up on the implementation of this resolution. It is argued that since RMPs are unregistered drug specialists, they should not be allowed to sell drugs. |
| Rules governing dispensing of medicines by RMPs in India |
| Primary legislation dealing with the dispensation of drugs by medical practitioners is the Drugs and Cosmetics Act, 1940 (DCA). Form 20B of the DCA discharges the RMPs from procuring a license to dispense medicines. The rules framed under DCA, namely the Drugs and Cosmetic Rules, 1945 (hereinafter referred to as ‘Rules’), extensively lay down the requirements that allow an RMP to commence dispensing medicines. Schedule K of the Rules regulates the selling of medicines by medical practitioners. RMPs can supply drugs to their own patients provided the following conditions are fulfilled: |
| a. The RMP must not keep an open shop |
| b. He must not sell across the counter |
| c. He must not be engaged in the import, manufacture, distribution or sale of drugs in India to such an extent that makes him liable for the breach of provisions of Chapter IV, DCA or the Rules. |
| d. The drugs must be purchased by a licensed manufacturer or dealer, and records of such purchase should be maintained and shall be open for examination at all times by the Inspector appointed under DCA. |
| e. The drugs must be stored under proper conditions as prescribed on the label. |
| f. No drug shall be sold beyond its expiry date mentioned on its label or wrapper. |
| These conditions also apply in case a drug mentioned in Schedule C of the Rules is provided by the RMP to another medical practitioner at their request. |
| In Schedule K of the Rules, additional conditions have been prescribed if the medicine to be dispensed is mentioned in Schedules G, H or X of the Rules. |
| These are: |
| a. The medicine must bear a label mentioning the name and address of the RMP to whom it is supplied. |
| b. Route of administration is also to be labelled |
| c. A register has to be maintained by the RMP, listing out the name of medicine or ingredients of preparation and quantities, the dose prescribed, the name of the patient, date and time of supply, and the person who prescribed the medicines. |
| d. Each entry in the register shall be numbered, and such a number must be written on the label of the container. |
| e. The register and the prescription upon which the medicines were issued shall be preserved for at least two years from the date of the last entry in the register or the date of the prescription. |
| Non-compliance with these conditions will render the RMP liable for penalty under Chapter IV of the DCA. According to S.27(d), any person acting in contravention of the Rules shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to two years and with fine which shall not be less than twenty thousand rupees. Furthermore, the State Medical Council can proceed against the RMP. |
| Although RMPs are not required to obtain a license for dispensing medicines to their own patients, if the drug to be dispensed is a controlled drug declared under S.2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), the RMP needs to secure a license to procure, transport, stock and dispense these controlled drugs. Furthermore, the Narcotic Psychotropic Substances Rules, 1985, govern the dispensation of controlled drugs by RMPs. Under Rules 52H and 52R, every RMP is required to maintain a separate record for each patient in Form no. 3E. Form no. 3D is to be filled detailing a day-to-day account of all transactions of essential narcotics. RMPs are also required to maintain a record of all receipts and disbursements of essential drugs in the manner prescribed in Form no. 3H. |
| SB M. v. State of Kerala and Ors. is a landmark judgement of the Kerala High Court wherein the Court held that “no person other than a registered pharmacist shall compound, prepare, mix or dispense any medicine on the prescription of a medical practitioner. However, the said provision shall not apply to dispense by a medical practitioner of medicine for his/her own patients, or with the general or special sanction of the state government for the patients of another medical practitioner. |
| Ethical guidelines for Registered Medical Practitioner dispensing medicines |
| There has been a debate regarding the practice of RMPs to sell medicines in their own clinic. It is regarded as an ethical violation as doctors would benefit by prescribing expensive medicines to the patients. There is an inherent conflict of interest in this dual role as prescriber and seller of medicines of the RMP. In India, it is not unethical or illegal for an RMP to sell medicines to his patients, provided certain conditions are fulfilled. The Medical Council of India, with the approval of the Central Government, has notified regulations regulating the professional conduct of RMPs in India under S.33(m) of the Indian Medical Council Act, 1956.This code is known as the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002. According to these regulations, RMPs should not run an open shop to sell medicines prescribed by him. This restriction does not apply in the case of the sale of medical or surgical instruments. The aim of this prohibition is to prevent the RMP from exploiting his patients. Subsequent to the amendment in 2016 to these regulations, the RMP is now required to legally prescribe drugs with their generic names, preferably in capital letters. Furthermore, it is now the responsibility of the RMP to ensure rational prescription and use of drugs. |
| Responsibility of RMPs |
| There is an inherent danger of the profit motive of the medical practitioners in dispensing medicines. The RMP selling medicines to people has a dual interest in making profits as well as treating his patients. One must maintain a balance of interests for an ethical and efficient medical practice. Besides fulfilling the conditions prescribed by law, RMPs must disclose all relevant information to the patient. They should clearly reveal the name of the medicine, its efficacy, side-effects, economically friendly alternatives or substitutes of the prescribed medicines. The RMPs should refrain from taking any share in the profit from the sale of the medicines. The medical practitioner should not, under any circumstance, pressurize the patients into purchasing the medicines from him. |
| Conclusion |
| As there is a great deal of ambiguity present in understanding this matter, the Indian Medical Association has also requested the Government to form an ordinance for ‘one drug-one company-one price’ to curtail the practice of prescribing expensive medicines in order to make profits by the RMPs and to govern this issue under |
| The author of this blog/Article is Kishan Dutt Kalaskar, a Retired Judge and practising advocate having an experience of 35+ years in handling different legal matters. He has prepared and got published Head Notes for more than 10,000 Judgments of the Supreme Court and High Courts in different Law Journals. From his experience he wants to share this beneficial information for the individuals having any issues with respect to their related matters. |
| Kishan Dutt Kalaskar |
| Advocate (Retired Judge) |
| Bengaluru |
| ACCOUNTABILITY OF POLICE |
| The incidence of police brutality, abuse of power and pre-trial detention in India has always remained a serious issue of human rights violations and has increased manifold in the recent past. The police are the most important law enforcement agency entrusted with preventing and detecting crime within a country. The police must maintain law and order in society and ensure peace. More often than not, one comes across news of manhandling and illegal detention by the police of innocent persons. There is mounting national and international pressure to protect and conserve certain basic human rights of all individuals. |
| Physical and verbal abuse |
| The recent case of custodial death in Tamil Nadu's Tuticorin of the father-son duo, Pj and BNKs, has brought into light the need for generating awareness regarding the protection of human rights of persons in custody. Jayaraj and Benicks were taken into custody for violating Covid-19 curfew hours and died in custody two days after their release. The family suspected that they had been tortured. According to the family, the duo was taken to a government hospital on 20thJune 2020, where they were found in bad shape, and their pants were soaked in blood. As the gruesome details became known, the case sparked outrage on and off social media and soon gained national attention, and the Madras High Court took up suo moto cognizance of the matter and directed the Kovilpatti Judicial Magistrate to inquire into the matter. On the basis of a report of the local Magistrate investigating the deaths, the High Court stated there was a prima facie case of murder against the main accused. The Court also cited the serious injuries listed in the post-mortem report and testimony of the eyewitness, a female constable at the police station. Hours later, the five policemen were arrested. |
| According to the Magistrate, the CCTV footageof the assault had been erased, and the officers had initially refused to submit the batons they had used to beat the two men with. The officers who were accused in the deaths were initially transferred, and, as demands for more severe action grew, they were suspended. |
| There are have been several instances where the police have severely manhandled the citizens irrespective of whether they have been arrested or whether they are innocent bystanders who approach the police to register a complaint. For instance, in April 2020, MKM was beaten with lathis and rifle butts for venturing out of his home, attempting to buy biscuits. After such gruesome treatment was meted out to him, he succumbed to injuries after two days. Legally speaking, no police officer can physically beat any person to make an arrest or compel their production in a police station. |
| Available Remedies |
| Denial of basic rights to persons in custody constitutes an ascertained blow on human dignity, having the effect of destroying an individual's personality. The Courts in India have been vigilant against the infringement of the human rights of those detained by giving a liberal and expansive interpretation of life and personal liberty. Obtaining an effective remedy for complaint against the police is integral so as to protect the rights of citizens. According to the National Crime Bureau, there are about 54, 916 complaints were reported in 2015, out of which only 16,308 complaints were inquired into, but only 1122 police officers were actually prosecuted, and only 25 of them have been convicted. There seems to be no logical explanation for such poor rates of conviction of police personnel. |
| 1. Police Complaint Authority |
| In the landmark judgement in PH v. Union of India, the Supreme Court, upon an extensive review of past authorities, cases alleging misuse of powers by the police and reports of various Commissions set up to give recommendations for greater accountability of police in India, directed inter alia, the establishment of a Police Complaint Authority (PCA) in all states by the enactment of appropriate legislation. Consequently, in October 2006, the Ministry of Home Affairs set up a committee known as the Soli Sorabjee Committee for producing a draft Model Police Bill to be incorporated by all states in preparing their respective legislations dealing with the police in the State and replace the Police Act, 1861. The Model Bill lays down a detailed section establishing and regulating authorities dealing with complaints against the police. |
| The Court had prescribed the minimum basic standards that the Bill must entail for the oversight of police. The Bill creates a PCA comprising of a Chairperson who shall be a retired Judge of a High Court and five other members at the state level. A Commission is also established at the district level for better administration and effective disposal of complaints against the police. The PCA is authorised to investigate into complaints alleging any type of misconduct against any police officer who is of or above the rank of Superintendent of Police and into complaints against officers below the rank of Superintendent of Police alleging death, grievous hurt, rape or attempt to rape against a woman in police custody or extortion, take of land and/or house and incidents involving severe abuse of authority or any other misconduct referred to it by the State Police Chief or the District Authorities. In respect of matters being inquired into by the PCA, the Authority shall have the powers of a civil Court under the Code of Civil Procedure, 1908. The Commission can also take suo moto cognisance of the alleged abuse. |
| 2. Liability under law |
| This liability finds its basis in the constitutional and administrative law against the violation of the fundamental rights of the citizens. A police officer abusing his authority to violate the right to life and liberty, protection against discrimination, protection against arbitrary and illegal detention, freedom to move freely throughout the territory of India etc. can be held liable under the Constitutional law and can be directed to pay compensation to the victim for the harm or injury caused by him. |
| In SD v. Union of India (1984), the Apex Court granted compensation to two ladies who were tortured, agonised and harassed when they went to file a missing person report of their husbands. These women were taken to an army camp in Manipur by army officials, and their missing husbands were never produced. Similarly, in SLi v. Commissioner of Police (1990), compensation was granted for causing death by beating up a nine-year-old child in custody. |
| In Uttarakhand SS v. State of UP (1996), it was held that acts of wrongful restraint and detention, the deliberate shooting of unarmed agitators, planting of evidence to show false recoveries, committing rape, tampering with evidence and harassing an individual cannot be said to be acts done or purported to be done in the discharge of a police officer's official duties. Accordingly, exemplary damages were awarded to the persons killed as well as women raped or molested by the police. |
| 3. Action by the National Human Rights Commission |
| Under the Protection of Human RightsAct, 1993, the National and State Human Rights Commissions are bestowed with the power to take cognisance either suo moto or on a complaint made to it alleging violation of human rights by any person. In pursuance of this power, the NHRC has the authority to intervene in any proceedings against the police officer and make recommendations in this regard. Acts of custodial violence and death, false encounters, atrocity by the police officer, cases relating to women and children can be reported to the NHRC for scrutiny. |
| The Commission has consistently pointed out that the hostile attitude of law enforcement agencies, in turn, breeds lawlessness and contempt for the enforcing authorities. One way of ensuring the reduction of such instances is to ensure strict action, including prosecution, against the perpetrators of all forms of custodial violence. The Commission has also recommended disciplinary action against the deviant officials and granted monetary relief to the victims or their next of kin. |
| Conclusion |
| With the steady increase in the number of cases of police brutality in India, it has become an inordinate concern of human rights violation that requires immediate action. It is highly inappropriate that the police take the law into its own hands and abuses the process of law. The statistics show that the rate of police accountability and conviction of such officers is considerably low. Police being the primary law enforcement authority and an integral structure of the State, abuse of legal processes and powers by it is highly dangerous to democracy and can lead to a state of anarchy. |
| It is essential that legislative and executive actions are taken to ensure a free and fair investigation or inquiry into the matters of police atrocities. Many a times, the officials responsible for such gruesome acts go unpunished. Senior police officers should not protect the persons responsible for custodial crimes. An attitude of sensitivity towards human rights should be inculcated through training and awareness programmes. Mechanisms should be developed to properly investigate the matter by setting up a fair and impartial Committee to look into the matter. It is required that prompt and effective action is taken against the persons responsible for human rights violation, and mere suspension must not be taken recourse to. |
| Although the Supreme Court directed the State legislatures to established a PCA at the state and district levels, only 18 states have done so. Furthermore, there is a severe lack of awareness of the existence of the PCA amongst the general public. It is also highly recommended that the appointments to the Authority are made by an independent, unbiased and impartial body. Another major drawback of the PCA is that its recommendations are not binding and merely of a directive nature. Nonetheless, the establishment of PCA is a step in the right direction; effective implementation and awareness would protect and preserve the rights of the public and the spirit of democracy. |
| Recently, to protect the interests of persons brought into the police station for investigation, the Supreme Court in PSS v. BS and O.,directed the government to ensure the installation of CCTV cameras and recording equipment in all interrogation rooms, lockups used by various investigative agencies. |
| The author of this blog/Article is Kishan Dutt Kalaskar, a Retired Judge and practising advocate having an experience of 35+ years in handling different legal matters. He has prepared and got published Head Notes for more than 10,000 Judgments of the Supreme Court and High Courts in different Law Journals. From his experience he wants to share this beneficial information for the individuals having any issues with respect to their related matters. |
| Kishan Dutt Kalaskar |
| Advocate (Retired Judge) |
| Bengaluru |
| HOW TO DEAL WITH FALSE CHEQUE BOUNCE CASE? |
| A very reputed businessman, who had established various branches of his brand in different cities across India was accused of false cheque bounce case by a bank. The amount charged on him was huge as well. But he took the right decisions quickly without wasting time thinking about how his reputation is now harmed. He collected all the apposite documents and files and contacted a lawyer to file a legal notice within the timespan of 30 days. And since it was a false allegation on him, it was not much of a task for the bank to be proven guilty. |
| If he would not have taken the said actions quickly and did not submit the notice on time ,i.e, within 30 days of receiving the notice from the bank, a warrant might have been issued against him and he would also have had to actually pay the amount for the false cheque bounce imputation. These accusations are generally to affect the reputation of a person and bring him down or go to jail. Although it might end up being a mistake on the banks side or the depositor of the cheque in some cases but mostly it is to bring down the prestige and position of the recipient of the cheque in the market. |
| If you also are incriminated by a false cheque bounce case or just want to be aware about such happenings in the real world, this blog is for you. Everything starting from a basic definition of what is a cheque and cheque bounce to what you can do (other than panicking and stressing out ) if ever you are stuck in such a situation. To under false cheque bounce, first you must know what is a cheque, cheque bounce and the reasons for cheque bounce. |
| Cheque |
| A Cheque is an important part of the financial system in various countries across the world. A cheque is regarded as an important document which can be used by an individual, company or government for transactions of various amounts. A Cheque is also termed as a negotiable document to transport money in a physical form or even to perform inter-account transfer. |
| Cheque Bounce: |
| The situation of cheque bounce means that the process of depositing cheque in the bank has been unsuccessful. It might be due to several reasons: |
| 1. When there are insufficient funds in the account of the issuer. It is therefore advised to be aware and careful while issuing a cheque to ensure that there is sufficient balance in the account of the issuer. |
| 2. When the date mentioned on the cheque is disfigured or when the numbers are scribbled or even if the date on the cheque is 3 months old from the present date, then the bank can bounce the cheque. |
| 3. When the signature does not match with the bank’s records. |
| 4. When there is a difference in the amounts mentioned in numbers and words. |
| 5. When the cheque has too many stains or marks. |
| 6. When there is overwriting, scribbling or correction on a cheque. |
| False Cheque Bounce: |
| Many people still prefer making their payments through cheques because of various reasons like cheques allow to make payment to people who do not have a bank account or few are not yet comfortable with net banking. But cheque bounce cases are rising in today’s time and the Indians courts are filled with these cases which are filed under Section 138 of the Negotiable Instruments Act,1881. |
| These cases are usually to extract money from someone or to harm and spoil his/ her reputation. However, some cheque bounce cases amongst these cases are false cases and are not genuine cases which targets some innocent people who then end up facing legal issues because they lack the knowledge on what should be done. |
| How would you deal with a False Cheque Bounce Case? |
| The victim in such cases need not worry much about it as it is a false accusation and generally easily proved with the valid documents that there was enough balance or fund in the bank account of the issuer which would ensure there was no cheque bounce. |
| Some important measures to take when a situation of false cheque bounce arises: |
| 1. Collecting all the important documents – The most wise and smart thing to do when there is any false accusation to a person is to collect proof which will show him guilty of the charge put on him. Similarly, this case is no different and collecting the relevant documents which would prove me innocent and the bank guilty. |
| 2. Contact the bank and collect information regarding the dishonour of cheque- If your cheque bounces, the bank would send you notice informing you of the same. You have to then contact them and confirm if it has really happened and if it did what are the reasons. |
| 3. Hire a lawyer and reply to the legal notice of the bank – It is not easy to draft a legal notice and you should not take it lightly because once the notice is drafted and sent, you would not be able to change its content and have to stick to it. You would not be able to go against the statement written by you in your notice. So you must consult with a lawyer who deals with cheque bounce cases and reply to the notice about the cheque bounce case which you would have got from the check receiver. The reply should be sent within 30 days of receiving the notice. In many such cases of fraud and false accusation, the case is withdrawn once a legal notice is sent. |
| 4. File a counter case- You are legally allowed to file a counter civil case against the person who has filed a false cheque bounce against you. You can claim compensation for the false accusation. You can also claim the compensation for all the damages and expenses which you might have incurred for dealing with the fraud case with the bank. You can also file a defamation case against the false accuser. |
| Documents required for filing a counter case |
| 1. Payment invoices |
| 2. Bill generated when the payment was made |
| 3. The bank account statement |
| 4. Copy of the cheque issued |
| 5. Bank draft cheque |
| It is always a good idea to keep 2-3 copies of each document because sometimes you might have to submit the copies to the authorities dealing with the case. The process becomes quicker and hassle free when the documents are handy. |
| Section 138 in The Negotiable Instruments Act, 1881: |
| Section 138 of the Negotiable Instruments Act 1881 provides the legal recourse to handle the situation of cheque bounce or dishonour of cheque. |
| This section has been very recently decriminalised. On 8 June, 2020 the Ministry of Finance proposed decriminalizing various minor offences “for improving business sentiment and unclogging court processes”, which also include Section 138 of Negotiable Instruments Act, 1881. The main purpose for decriminalising this section is to promote foreign investment in our country. Due to the Coronavirus Disease, the economy of our India has been affected badly and these steps would also help in boosting India’s economy. |
| But every action has its reaction and this step will lead the creditors to lose their confidence in the credibility of the cheque system. |
| Punishment for cheque bounce case: |
| Section 138 of the Negotiable Instruments Act states the dishonour of cheque or cheque bounce is a criminal offence and the punishment includes imprisonment up to two years or monetary penalty or with both. |
| If the court is convinced that you are guilty and the case of the bank has no merit then it will provide you all the charges. |
| Conclusion |
| False Cheque bounce cases along with other frauds cases are rising each passing day. It is very important to be aware about the different types of fraud and especially fraud related to monetary aspects like cheques because money is obviously involved in any job and work. Going by the saying ‘Precaution is better than cure’, it is always good to have knowledge about these frauds so that you can easily prevent that from happening or in some cases when it is not really in the hands of the person to prevent it, you at least know the cure to it. Having knowledge makes you capable of helping out someone stuck in that situation. |
| The author of this blog/Article is Kishan Dutt Kalaskar, a Retired Judge and practising advocate having an experience of 35+ years in handling different legal matters. He has prepared and got published Head Notes for more than 10,000 Judgments of the Supreme Court and High Courts in different Law Journals. From his experience he wants to share this beneficial information for the individuals having any issues with respect to their related matters. |
| Kishan Dutt Kalaskar |
| Advocate (Retired Judge) |
| Bengaluru |
| HOW TO FILE A COMPLAINT IN REGARDS TO VIOLATION OF CYBER LAWS |
| The idea of cybercrime has increased in scope as a result of the widespread use of the internet and its associated benefits. The Information Technology Act of 2000, which was later updated to the IT Amendment Act of 2008, is the Indian legislation that deals with penalties linked to such offences. |
| Hacking has been increasingly popular in recent years, and cyber-crime in India is on the rise. Many government websites have been hacked and are vulnerable today. Cyberstalking, pornography, morphing, online harassment, libellous or unpleasant comments, trolling or bullying, blackmailing, threat or intimidation, e-mail spoofing, and impersonation are some of the most common and often reported types of cybercrime against women. |
| The Code of Criminal Procedure, 1973 governs the procedure for criminal proceedings, including how to file a criminal complaint or FIR against an accused person, as well as the procedure for criminal trial and disposition of a criminal case. Similarly, the Code of Civil Procedure, 1908 governs the procedure for civil cases, including how the plaintiff can begin the proceedings by submitting a plaint in civil court and how the defendant can respond to the plaintiff with a written declaration. |
| It also lays out the method for the full civil action as well as the resolution of the civil complaint. But the main question is as to how can a victim of cybercrime file a case against the perpetrator? |
| What is cybercrime? |
| Simply put, cyber-crimes in India are wrongdoings or crimes committed via the use of technology. There is no particular definition of cyber-crime; however, it is a white-collar crime when any illicit or criminal conduct is carried out utilising a computer as the principal means of operation. Cybercrime is a wide phrase that refers to criminal activity that involves the use of computers or computer networks as a tool, a target, or a location for illegal activity. It encompasses anything from electronic theft to denial-of-service assaults. It is a broad word that encompasses crimes like phishing, credit card fraud, bank robbery, illegal downloading, industrial espionage, child pornography, child abduction through chat rooms, scams, cyber terrorism, virus production and dissemination, and spam, among others. |
| In India, there are cyber cell departments in practically every state established to deal with cyber concerns. Since the number of reports of cyber-crime complaints, both online and offline, has risen dramatically in India, cyber cell departments and cyber police have recognised a variety of cyber-crimes. |
| Types of Cyber Crime in India |
| Many sorts of cyber offences have been established under India's cyber legislation. The six most common issues that one encounters and deals with are as follows: |
| 1. Cyber Stalking - After hacking, cyber-stalking is the most commonly reported cyber-crime online complaint or cyber-crime cell complaint. It is a crime of online harassment, which is mostly committed against women. |
| 2. Online Theft- When a criminal extorts money from a victim, they use the internet to gain access to the victim's personal bank account, credit card, debit card, and other sensitive information. |
| 3. Cyberbullying- Cyberbullying is when a person is harassed, defamed, intimidated, or harassed via the internet, mobile phones, or social media. |
| 4. Cyber Terrorism - Cyber terrorism occurs when a person is threatened with extortion or other forms of extortion. |
| 5. Hacking- In India, it is one of the most frequent kinds of cybercrime. When a person virtually hacks into another person's computer in order to get access to personal and sensitive information such as banking data, e-mail accounts, and so on. As more and more things become digital, the chance of being hacked rises. |
| 6. Phishing- Sending bogus messages or e-mails with a link to a certain webpage in order to trick victims into inadvertently entering personal information (such as contact information, bank account information, and passwords) or infecting victims' devices with hazardous viruses as soon as they click the link. |
| 7. Cyber terrorism and cyber extortion- Hacking into someone's computer and encrypting all of the data and files on it, then demanding a ransom to decode it. |
| 8. Child solicitation and abuse- When a youngster is approached over the internet to be used in the creation of child pornography |
| There has been the usage of technology, such as electronic devices (computers, computer networks, or mobile phones) and the internet, in the circumstances stated above (social media, e-commerce websites, fraudulent web pages and e-mails, etc.). Everything linked to computers, computer networks, computer equipment, software, the internet, e-mails, websites, data storage devices, and other electronic devices is referred to as "cyber" (mobile phones, ATM machines, etc.). As a result, a cybercrime is defined as a crime committed with or through the use of a computer, computer network, internet, or any other online service or electronic device. |
| How to file a Cyber Crime complaint |
| Complaints about cybercrime can be filed with the cybercrime cells. The victim can file the complaint both online and offline, and he or she can select which method is most convenient for him or her. Because cybercrime falls under the purview of global jurisdiction, the victim does not need to file a complaint with the cybercrime cell in the city where he or she resides or where the crime was committed. Instead, the cybercrime complaint can be filed with any of the cybercrime cells established in India. Cybercrime cells have been formed in several Indian cities to make it easier for people to receive help in the event of an accident or harm caused by a cybercrime perpetrated against them. These cells have also been raising awareness about cybercrime and the steps that may be taken to avoid being a victim. Cybercrime cells keep track of cybercrime reports and conduct investigations. |
| If the victim does not have access to any of the cybercrime cells, he or she can file a police report under Section 154 of the Code of Criminal Procedure at the local police station. If the cybercrime conducted against the victim is a punishable offence under the Indian Penal Code, the police officer is required to file an FIR. If the police officer refuses to submit the victim's report, the victim can file a formal complaint with the Judicial Magistrate in his or her district, who can then order the police officer to begin an investigation. The materials needed to file a cybercrime FIR vary depending on the type of cybercrime perpetrated against the victim (Social Media Crime, Cyber Bullying, and so on). |
| How to file a Cyber complaint online |
| The online portal where a victim can file a cyber-crime complaint is https://cyber crime.gov.in/Accept.aspx , a Government of India initiative that caters to complaints pertaining to online Child Pornography (CP), Child Sexual Abuse Material (CSAM), or sexually explicit content such as Rape/Gang Rape (CP/RGR) content, as well as other cyber-crimes like social media crimes, online financial frauds, ransomware, hacking, cryptocurrency crimes, The portal also allows users to make an anonymous complaint regarding Child Pornography (CP) or sexually graphic content like Rape/Gang Rape (RGR) content. To report a cyber-crime online, follow the procedures outlined below: |
| STEP 1: Go to here |
| STEP 2: Click on 'Report other cyber crimes' on the menu. |
| STEP 3: Click on 'File a Complaint. |
| STEP 4: You can either report anonymously if you are a woman or child or click on "Report other Cyber Crimes." |
| STEP 5: Read the conditions and accept them. |
| STEP 6: Register your mobile number and fill in your name and State. |
| STEP 7: Fill in the relevant details about the offence. |
| Note: You can also report the offence anonymously. After reporting, you can track your report on the same website. |
| How to file a complaint against Cyberstalking |
| The continuous use of the internet, e-mail, social media, instant messaging, or other digital technologies to annoy, harass or threaten individuals is known as cyber stalking. There was no particular statute prohibiting it before to the February 2013 modification; currently it is covered under the Criminal Law Amendment Act of 2013, which added Section 354D to the Indian Penal Code, 1860, that defines what constitutes as "Stalking." |
| If a guy follows a woman and tries to contact her in order to develop a personal relationship, notwithstanding the lady's aversion to it, he is committed to stalking and can be prosecuted with it under Section 354(d). Stalking is also committed when a guy observes a woman's usage of the internet, e-mail, or any other kind of electronic communication. |
| The procedure for filing a complaint about Cyber Stalking is as follows: |
| 1. Submit a written complaint to the city's nearest cyber cell. |
| 2. Fill out an FIR form at your local police station. In the event that your complaint is not accepted, you can always take it to the municipal commissioner or court magistrate. |
| 3. You will be supplied with legal advice and support in order to help you file a case. |
| How to file a complaint against Cyberbullying |
| Cyberbullying is a form of bullying that occurs via the use of digital devices such as computers, laptops, smartphones, and tablets and results in humiliation. It also includes disseminating, transmitting, or spreading bad, rude, or misleading information about another person in order to humiliate them, a practice known as character assassination. |
| Most social media networks, such as Facebook, WhatsApp, Instagram, Twitter, and others, have explicit reporting and anti-bullying policies. These platforms may be able to assist you in getting the objectionable content removed. You may report the cybercrime on cybercrime.gov.in, following the steps mentioned above. Furthermore, if you are a woman or child that has been a victim of cyberbullying, you may report cyberbullying in India by sending a detailed complaint to complaint-mwcd@gov.in. You may also file a complaint with your local cyber cell. |
| If the cyber cell refuses to submit or accept your cyber complaint, you can make a direct complaint with the local Judicial Magistrate, noting that the complaint was not accepted under any/certain conditions. |
| Crimes against women and children |
| The increase of cyber-crime has resulted in the most vulnerable members of society, namely women and children, being targeted. Cyberstalking, pornography, morphing, online harassment, trolling and bullying, threat and intimidation, and e-mail spoofing are the most common and often reported types of cyber-crimes against women. Cybercrime against children includes the distribution of paedophilic videos/messages, child pornography, and other forms of child pornography. The level of depravity has reached a point where rapes and child pornography are among the top searches for a porn site. |
| The procedure for filing a complaint online, i.e., the National Cyber Crime Reporting Portal, allows for the registration of cybercrime under two distinct categories: (1) Cybercrime against women and children; and (2) Other cybercrime. Additionally, it enables anonymous reporting of Child Pornography, Child Sexual Abuse Material, and Sexually Explicit Content (Rape/Gang Rape) by the victim/complainant. |
| Additionally, the "Report and Track" option enables the complainant to monitor the progress of his or her complaint. The complainant is needed to provide information about the event that occurred, the suspect of the crime committed, and the complainant's identity (save for the "Report Anonymously" option). |
| Additionally, the complainant receives a copy of the complaint that was submitted on the site. After a complaint is successfully registered, a PDF of the complaint is created and may be downloaded from the site. If the victim does not have access to the internet, they can file an FIR at their local police station. |
| With an estimated cost of Rs. 223.198 crores (approx.), the Ministry of Home Affairs launched the Cyber Crime Prevention against Women and Children (CCWC) scheme to effectively tackle cyber-crimes against women and children in the country and formulated- |
| 1. The unit for reporting cyber-crime online, |
| 2. Unit of Forensic Science, |
| 3. Unit for Capacity Building, |
| 4. Units of Research and Development and |
| 5. Unit for raising awareness. |
| Procedure for filing complaint offline |
| Making a written complaint to the cybercrime cell has proven to be the most acceptable method of reporting the crime, as some individuals still cannot pay internet costs or lack the necessary information. A cybercrime victim can register a written complaint with the nearest cyber-crime cell or any other cyber-crime cell in India. The written complaint must be submitted to the Cybercrime Cell's Head and include the following details about the victim or the person filing the complaint: Name, phone number, and mailing address |
| The type of cybercrime perpetrated against the victim determines what further documents must be included in the complaint. It is required to include these documents in both offline and online complaints. |
| Conclusion |
| Cybercrime, which includes phishing, identity theft, and fraud, has risen dramatically in the last year. However, the present laws do not adequately or comprehensively address it. Consolidation of cybercrime infiltration is also anticipated. This highlights the need of developing more effective and deterrent regulatory frameworks and strict rules to combat cybercrime. The passage and implementation of the Personal Data Protection Bill, 2019, was a significant cyber law development in India for 2021. India has hitherto lacked a distinct data protection legislation. In December 2019, the government introduced the Personal Data Protection Bill 2019 in Parliament. By 2020, the aforementioned Bill would have been actively considered by a Joint Parliamentary Committee. Apart from enhancing proper protection for personal data, enacting the personal data privacy legislation would boost the Indian information technology ecosystem. |
| The author of this blog/Article is Kishan Dutt Kalaskar, a Retired Judge and practising advocate having an experience of 35+ years in handling different legal matters. He has prepared and got published Head Notes for more than 10,000 Judgments of the Supreme Court and High Courts in different Law Journals. From his experience he wants to share this beneficial information for the individuals having any issues with respect to their related matters. |
| Kishan Dutt Kalaskar |
| Advocate (Retired Judge) |
| Bengaluru |
| BENAMI TRANSACTION – ITS IMPLICATIONS |
| We are all aware of a famous phrase from Shakespeare, "what's in a name?", well the Law of the Land says "a lot !!". And with that thought in mind, along with the essential need of curbing the increasing 'Black money' problem, acts like the 'Benami Transactions Act', our topic for today, was passed. |
| Benami Transactions Act, 1988, now known as Prohibition of Benami Property Transaction Act, 1988 after the amendment of 2016, is an Act dealing with the prohibition of certain kinds of transaction. 'Benami' literally means 'without a name'. Benami property meaning is that it means any property, the owner of which is different from the person who has consideration for buying it. It may be a movable or immovable, tangible or intangible asset without a legal owner. 'Benami' transaction is a type of transfer of property in which property is transferred to one person and the consideration of it is given by another person. This Act was introduced in order to check the problem of Indian black money. This property declares Benami transactions as void and the Government can recover such property without giving any compensation to the holders. This is a very short Act, consisting of only 9 sections but its impact is far-reaching. |
| The Benami transactions act is partly prospective and partly retrospective in nature. For this, we need to know what prospective law is and what retrospective law is. 'Retrospective' are usually those laws that are to take effect before the passing of the law. Thus, its effect exists on other laws before its passing. 'Prospective' laws have effects in the future but do not interfere with the laws made before the passing of the concerned Benami Transaction Act. |
| The law categorizes the following as a Benami transaction: |
| 1. A transfer where the owner of the property is not the person who has given consideration for the property. However, it is held for the future benefit of the person providing consideration, directly or indirectly. |
| 2. A transaction carried out by using a made-up name. |
| 3. A transaction of a property where the owner is not aware of his ownership. |
| 4. A transaction where the person giving consideration is not traceable or is fictitious. |
| However, in the following cases, the transaction is not a Benami transaction: |
| 1. Any property held by the Karta of a Hindu undivided family for any of the members of the family and the consideration is given out of the common source of the family. |
| 2. An individual buys a property in the name of his/her spouse or children and the consideration is given out of the known resources of the individual. |
| 3. An individual buys a property in the name of his brother or sister or lineal ascendants or descendants and they appear as joint- owners and the consideration is given by the individual. |
| 4. A person standing in a fiduciary relationship with any other person receiving the benefit like a trustee, executor, partner, depository, etc. |
| The scope of this law can be divided into 4 categories: |
| 1. Suits filed before the Act came into force by the real owner or the plaintiff. |
| 2. Suits filed after the Act came into force by the real owner or the plaintiff. |
| 3. Suits filed before the Act came into force by the Benami/ ostensible owner or someone else and the real owner or someone else is the defendant. |
| 4. Suits based on Benami transactions that have been filed by the Benami/ ostensible owner or someone else and the real owner or someone else is the defendant who has not yet filed the written statement before the Act came into force. |
| Benefits: |
| It was actually designed with the noble idea of holding all the black money from India. However, due to some in-build disputes, it could not be fully implemented before the amendment of 2016. Benami transactions are also used if they want to hide the true ownership of the Benami property from their creditors or from the bank. This is also caught and checked under this Act. It also has a provision in which the Benami property would automatically vest in the Government, thereby increasing the profit of the Government. Also, the Benami property vested in the Government may be given to the landless laborers in need. To cross-check, the Act prohibits resale of the Benami property from the benamidar to the real owner and such transfer would be null and void. |
| Grounds of Offence |
| Whether a transaction is Benami or not, the burden of proof is on the person asserting to prove the same. Such things need to be proven based on legal evidence of a definite nature. It is a case of 'men's rea' where the intention of the transaction is important, which is often shrouded by a thick veil. However, the question is largely based on fact. To determine whether a transaction is Benami or not, the following guidelines may be followed: |
| 1. The source for the consideration of money. |
| 2. The nature and possession of the property, after the purchase. |
| 3. The motive of the transaction |
| 4. The position and the relationship between the claimant and the alleged benamidar. |
| 5. The custody of the title deeds after the sale. |
| 6. The conduct of the parties dealing with the property after the sale. |
| CONCLUSION |
| In case of doubt regarding the nature of the transaction (whether Benami or not), the ostensible title cannot be displaced except upon clear evidence. The primary test for Benami transactions is the source of the consideration money. However, if a female is accompanied by her husband, it cannot be presumed that it is a Benami transaction. Spouses and children are an exception to it. Also, there is nothing to doubt if the custody of the title deed is with the wife after the purchase. Thus, the Benami Act provides the grounds of offence as the above-given circumstances. |
| The author of this blog/Article is Kishan Dutt Kalaskar, a Retired Judge and practising advocate having an experience of 35+ years in handling different legal matters. He has prepared and got published Head Notes for more than 10,000 Judgments of the Supreme Court and High Courts in different Law Journals. From his experience he wants to share this beneficial information for the individuals having any issues with respect to their related matters. |
| Kishan Dutt Kalaskar |
| Advocate (Retired Judge) |
| Bengaluru |
| NRI'S RIGHT TO PURCHASE PROPERTY IN INDIA |
| Can NRIs buy real estate in India? Most people ask this question, and the answer to this question is yes. The RBI's circular now allows Non-Resident Indians to purchase certain types of property. However, other types of property can also be purchased after it is approved by obtaining special permits. |
| NRIs buying real estate in India should understand the legal requirements for owning real estate within the country. According to the Foreign Exchange Management Act's (FEMA) provisions, Person of Indian Origin (PIO) and NRIs are treated the same when investing in real estate in India. |
| Types of properties where NRIs can invest |
| NRI investors do not need to request special permission from RBI, nor do they need to send communications or intimations regarding the RBI. The RBI, through a circular, has granted general permission to NRIs for acquiring any number of residential or commercial properties. The income tax law also allows NRIs to own any amount of residential or commercial real estate. |
| Joint ownership |
| NRIs can act as the sole owner or jointly purchase real estate with other NRIs. However, Indian residents or other persons who are prohibited from investing in real estate in India cannot become the co-owners of the property, regardless of the co-owner's contribution to the purchase. |
| Property ownership after becoming NRI |
| What if someone who owns a property in India later becomes an NRI? Such a person can still own that property in India even after residing outside India. NRIs are also allowed to continue to hold any agricultural land, plantation property, or farmhouse they owned when they become an NRI, which they are not allowed to purchase otherwise after becoming an NRI. It depends on when you bought it. The rent received from such property can be remitted after appropriate Indian taxes have been paid on such rent. Similarly, any NRI real estate can be sold or let out to anyone living in India. You can also gift or transfer any property other than agricultural land, farmhouse or plantation property to any NRI. |
| Characteristicsof NRI Investment in India |
| • NRI cannot purchase agricultural land or plantation property in India. However, they can buy residential and commercial properties. If there is a reason behind scouting for agricultural land, the Reserve Bank of India (RBI) will review such interest on a case-to-case basis. |
| • There's no limitation to the amount of home loan one may take to buy a property in India. If an NRI wants an agent to conduct transactions on your behalf, such as registering property, they must provide the agent with a Power of Attorney (PoA). The PoA holder represents the NRI by submitting a copy of the PoA to the relevant authority to sign. |
| • Like any other real estate purchase in India, NRI is responsible for paying the necessary taxes: stamp duty, registration fee, annual property tax after purchase, and even goods and services tax on property construction. |
| NRIs can also invest in real estate in India to earn rental income. They would be taxed at 30% via tax deducted at source (TDS), and the balance can be remitted to the country under FEMA regulations. |
| • In the case of proceeds earned through the sales of immovable properties, it can be repatriated after a reduction of between 20% and 30% TDS, depending on whether it is long-term or short-term capital gains. |
| • For various reasons, NRIs purchase property in India as a long-term investment, as a place to stay during their visits home, because they are emotionally connected to India, or for their families back in India. Once an NRI embarks on the process, they will realize that buying real estate in India requires them to complete a few formalities and documentation. |
| General checklist |
| Documents for buying a property |
| • Passport or OCI card: An NRI must show their Indian passport. If they hold a foreign passport, they can purchase a property in India provided they have either of the cards, i.e., a PIO card or an OCI card. |
| • PAN Card: It is always mandatory for property-related transactions. |
| • Power of attorney: NRIs must give a power of attorney if they're outside India for executing the purchase transaction. It must be noted that the NRIs will need a special power of attorney registered and notarized and not a general power of attorney to execute a property transaction. Also, the POA must be signed by the NRI in the presence of a consulate officer or notary in their country of residence and also have to be attested by them. |
| Which property documents are required? |
| For a smooth purchase transaction and hassle-free ownership of a property, it is necessary to verify all the essential papers like: |
| • Title deed (in the seller's name). Some states have specific paperwork that the NRIs need to be aware of. For example, if they plan to buy property in Mumbai, they must check for e-Khata (in the seller's name) for property taxes. |
| • Approved plan |
| • Building permit |
| • Occupation certificate (if it is a ready building) |
| • Older title deeds(optional) |
| • Encumbrance certificate (updated) |
| • Share certificate (if it is a cooperative housing society) |
| • NOC from the society |
| • RERA registration (if applicable) |
| If these documents are in order, an NRI can prepare the sale agreement for purchasing the property. |
| What are the documents required for registration? |
| Except for the IDs (like passport or PAN card), an NRI will need to submit their recent address proof documents (like utility bills) and passport size photographs for the sale deed registration. |
| Funding and Financial Transactions |
| When buying a property in India, NRIs must carry out all transactions in Indian currency and through local banks. It means NRIs that want to invest in a property in India must have an NRI account in one of the authorized Indian banks. |
| NRIs can smoothly obtain funds for buying properties if the paperwork is as required. Many financial institutions offer various NRI home loan schemes. However, first, they need to make sure that they can invest at least 20 per cent of the property value from their sources. It means that they can get funding for up to 80 per cent of the property's value. |
| As NRI investors are required to route all their transactions through Indian banks, they must ensure they use their NRO/NRE accounts for all inward money remittances. They can also submit post-dated cheques or opt for Electronic Clearance Service (ECS) from their NRO, NRE, or Foreign Currency Non-Resident (FCNR) accounts. |
| Before approaching a bank for funds, NRIs must get all their documents verified by a competent lawyer to ensure they are in order. In addition, they should obtain a certificate from the seller stating that the property that is being purchased has is no lien attached to it. If it is joint property or inherited by the seller, it is necessary to ensure that the title deed is cleared. Lastly, NRIs must ensure that no bills or other dues with any authorities are to be cleared. |
| What documents are needed for getting a home loan? |
| NRIs must furnish the following documents: |
| • Copy of Indian passport and visa |
| • In case an Indian passport is unavailable |
| PIO Card if they hold a foreign passport |
| OCI card if their parents are Indian citizens |
| • Work permit/employment contract/appointment letter of the country where they reside. |
| • Recent salary certificate / Payslips for the past six months |
| • Recent income tax returns |
| • Bank statements of NRE and NRO account for the last year |
| • Bureau report of the country of residence |
| • Power of attorney in the format as given by the bank (in case they are out of India for executing the purchase transaction) |
| Tax Benefits: |
| NRIs are eligible for a major part of the tax benefits available to resident Indian buyers. If they sell the property they bought within three years; the earnings will then be taxed as it is deemed to be short-term capital gains. However, if the property is sold after three years, they can exercise the option of cutting down the long-term capital gains tax payable by buying another property. |
| Conclusion |
| Except for agricultural land, farms and plantations, NRI has no restrictions on purchasing commercial or residential properties in India. NRI has different rules and regulations for investing in Indian real estate; however, this is not as difficult as people think. As a result, the availability of necessary documents simplifies and speeds up property purchases. |
| The author of this blog/Article is Kishan Dutt Kalaskar, a Retired Judge and practising advocate having an experience of 35+ years in handling different legal matters. He has prepared and got published Head Notes for more than 10,000 Judgments of the Supreme Court and High Courts in different Law Journals. From his experience he wants to share this beneficial information for the individuals having any issues with respect to their related matters. |
| Kishan Dutt Kalaskar |
| Advocate (Retired Judge) |
| Bengaluru |
| CAN COUPLES GET SEPARATED WITHOUT A DIVORCE? |
| In India, divorce is still considered a social taboo. Couples often tend to neglect things in a relationship and carry on with the same situation, sometimes due to societal and family pressure. In the 21st century when same sex marriage has been declared legal by India, it is important to understand that Divorce is a natural process as much as solemnization of marriage is, and there is no big deal when a couple decides to get a legal divorce and lead their own life. But at the same time, it is equally important to know that there are other ways too through which a couple decides to live separately on mutually agreed terms without actually involving real legalities and lengthy procedures of divorce. |
| The present couples of this generation are well aware of their rights and duties and therefore also know that there are other ways too through which a couple can legally separate. This article will throw light onhow a couple can legally separate themselves. Usually, legal agreements are drafted for such situations, however, the legal enforceability of these agreements is debatable and therefore talking and knowing about these agreements is necessary. |
| Separation Agreements |
| As the name suggests, separation agreements are post-matrimonial agreements where a couple mutually decides to separate their ways without any judicial intervention, which means there is zero interference of court in such agreements. Therefore, without any divorce petition or decree for judicial separation, the couple parts their ways.One of the most significant thing about separation agreements is that they are entered into after the union of marriage takes place. As such agreements are drafted after solemnisation of marriage, these couples decide on the issue of maintenance, property division, and child custody without any type of judicial intervention. However, In India, a separation agreement is considered against public policy. Hence, courts do not give emphasis to such an agreement. |
| The validity of Separation Agreements in India |
| In simple language, a separation agreement does not hold a plausible ground regarding validity as well as enforceability under the Indian legal system or the Indian Judiciary. Therefore, the Indian court on various cases hasruled out the option of the separation agreement between a husband and a wife. |
| It might come to a surprise for the readers, but in India, there exist a system of chutti-chutta, which is a customary form of mutual divorce which is mostly same as separation agreements. Talking about the Hindu Marriage Act, through which all the Hindu marriages take place is silent on the issue of separation agreements in India. The Act neither encourages nor neglects the enforceability of such agreements in the country. |
| In a lot of different cases, the court has stated that there is no legal status of separation agreements in India, but this does not mean that it is altogether worthless. The separation agreement paints a picture of the intention of the parties. |
| Most of the cases in Indian courts are dealing with the issue of separation agreements are cases where Indian couples have been staying for a considerable time in a foreign land. This is due to as this concept of separation agreements is mostly adopted by the western world. |
| The Hindu law upon the subject of separation agreement still retains its archaic character. As it states that marriage in this respective law is not merely a contract but also a sacrament, and the rights and duties of the married parties are determined solely by the law and are incapable of being varied by their agreement. |
| Important clauses in a Separation Agreement |
| Introductory Clauses |
| These clauses are the introduction part of an agreement. It includes general clauses such as Date of the agreement, Name of husband and wife, property description. These all together will form the part of the introductory clause. |
| • Information about the parties which includes their salaries, income and occupations. |
| • If there is any family property, details of it haveto be mentioned. |
| • These clauses generally gathers all the information that is related to everything that the couple owns either individually or together with such as House, bank, car, accounts etc. |
| Maintenance Clause |
| It is one of the most important clauses in any agreement. Maintenance clause in a separation agreement should be designed carefully. Things to consider in a maintenance clause are: |
| • It includes questions like, who will pay the maintenance. It will be the husband who will pay the maintenance or the wife who is financially and equally stable like the husband. The questions will also be related to what would be the maintenance amount depending upon the financial stability of both the husband and the wife. A lot of different questions arises when a maintenance clause is thought of as it includes various things to be taken care of. |
| • When a maintenance clause is drafted,it is important to be very cautious. It has to be noted that the clause should be in such a way that does not oppose any existing law or public policy. |
| • This clause will also deal with questions such as the time frame for which the maintenance will be paid, conditions when the maintenance of flow will stop, etc. |
| Child Custody |
| One of the biggest reason, a couple never opts for divorce is due to their children. A child in a marriage is a big full stop to people who are seeking for divorce as a child puts a lot of responsibilities on a single parent. However, when a couple is agreeing through the terms of a separation agreement, it is necessary to discuss the clause of Child Custody into it. This clause will discuss the issue related to child care and his/her upliftment. This clause will solve the issue of the financial development of the child. |
| Vehicle |
| Both the parties agree that each will retain the vehicles that are right now in the individual’s possession, including but not limited to automobiles, recreational vehicles, and that they will deliver whatever documents are necessary to effectuate and reflect any changes in the record ownership of such vehicles. |
| Property Division |
| The clause on the division of property in a separation agreement divides the personal property of both the husband and wife that has not already been divided between them. This includes a wide range of things. Properties, both movable (vehicle, jewellery, etc.) and immovable property such as a house. Vehicle or retirement benefits are the best examples of property division. |
| Post-retirement benefits |
| Both the husband and the wife agree to waive any rights each may have in the pension of the other. All other various retirement accounts now individually maintained and held will be and remain the separate property of the spouse inwhose name the asset is now held. |
| Full Disclosure Clause |
| This clause is normally mentioned in every agreement and is like an undertaking by both the husband and wife that they have not unintentionally or intentionally hidden any important or material facts on debts or any other asset. Such a clause helps both the parties to not hide anything. |
| Merits of a Separation Agreement |
| There are some reasons for which a couple opts for a separation agreement and not a divorce. They are: |
| 1. In a separation agreement, the couple gets time to fix things up. A lot of time, fixing up of things won’t happen, and then this couple may go for a legal divorce. |
| 2. Sometimes, an individual does not have health insurance. Therefore, under this, insurance coverage can continue for a spouse who doesn’t have health insurance of his/her own. |
| 3. The couple may be entitled to receive some tax benefits that can help to stabilize the financial picture of an individual before settling for a divorce. |
| 4. A separation agreement can positively affect someone’s ability to qualify for a higher Social Security amount or pension benefits. |
| 5. Any religious or ethical issues about divorce can be addressed and resolved (when possible). |
| 6. When a couple finally decides to get divorced, during that time, a separation agreement can be transformed into a divorce decree, making the actual process of divorce very easy and of mere paperwork. |
| Couples involved in a separation agreement should carefully weigh the benefits of a legal separation agreement and then opt for it. The couple should talk to legal advisors and then take necessary steps. |
| Demerits of a Separation Agreement |
| Although there are a lot of positives to consider when choosing legal separation over a divorce, there are some negative points to consider as well. Couples shouldn’t just enter into a separation because it sounds like the first step to a divorce. |
| 1. There issome cost involved in a legal separation agreement when compared to a divorce. The couple might need to come to an agreement or try it in court to get the court’s order. This whole process can get expensive. |
| 2. Such agreements may become emotionally taxing and leave people in limbo not sure if they are trying to work it out or just biding time to end it. |
| 3. There are chances that Joint account may become susceptible to one spouse using more than agreed upon. A single spouse doesn’t have all the control over joint bank or investment accounts,and therefore this can lead to money disappearing as one spouse decides to plan the final divorce. |
| 4. It is not necessary that all insurance policies extend coverage to a separated spouse. This solely means that if you are doing it for a practical purpose, you may be thwarted in your efforts. |
| 5. At times, there are some state restrictions which prevent a separated spouse from entering into a new relationship. This could make a separated couple more eager to file for a divorce rather than just going for an agreement as it allows an individual to start a new relationship. |
| This article focuses on both the advantages and disadvantages of a separation agreement. As every coin has two sides, similarly, a separation agreement has both its positive and negative effects to be looked upon. |
| Are there any alternatives to a separation agreement in India? |
| After mentioning all the pros and cons of the separation agreement, it becomes important to look for some alternative option too, as a separation agreement might not be a suitable couple for everyone and some of them may be willing to go for some other better option. One of the alternatives to a separation agreement is "Judicial Separation". |
| Judicial Separation |
| Sometimes, we do tend to get bored due to the same routine every day,and we often seek for a break at some point of time in life. Judicial separation works on the same concept. It is a legal break that is provided to the couples for a specific period of time on valid grounds. Any legally married couple can approach the court for a judicial separation on legal grounds. |
| 1. Judicial separation is adecree by the court which allows the couples to live separately for a certain period. However, in a judicial separation, the couples are still married. Judicial separation is a last resort before the divorce. |
| 2. When comparing a separation agreement to judicial separation, the parties do not need to appear in the court for seeking permission to live separately. While in a judicial separation, it is the court which permits the couple to live separately. |
| 3. Some of the grounds on which a couple can seek divorce are: |
| • Where either of the party involved in the marriage has deserted the other party in a marriage for more than two years continuously. |
| • On the grounds of cruelty, where it appears either to the wife or the husband that, it will be harmful or injurious for them to stay with their partner, the court might grant a judicial separation. |
| • Insanity, adultery, conversion of religion, an incurable form of leprosy, renunciation of the world by entering into a religious order, not heard of being alive for seven years are few more to name. |
| Conclusion |
| After reading the article, the readers will be sure that a separation agreement is easy to go solution. But, the important thing to note is that it has some repercussions too. The other party involved in the separation agreement might argue that the same was signed under undue influence, coercion, etc. Therefore, before entering into a separation agreement, it is better to watch out for all these points. |
| The author of this blog/Article is Kishan Dutt Kalaskar, a Retired Judge and practising advocate having an experience of 35+ years in handling different legal matters. He has prepared and got published Head Notes for more than 10,000 Judgments of the Supreme Court and High Courts in different Law Journals. From his experience he wants to share this beneficial information for the individuals having any issues with respect to their related matters. |
| Kishan Dutt Kalaskar |
| Advocate (Retired Judge) |
| Bengaluru |
| ONLINE FILING OF CONSUMER COMPLAINT |
| A Consumer is the backbone of the Indian Economy by purchasing the goods and services provided to them; therefore, it is necessary to protect their interests. It is the right of the consumers to receive standard quality products. But in certain situations, these consumers become the victim of the profound deficiency of goods and services. Thus a Consumer Court was established under Consumer Protection Act, 1986 to provide timely and effective adjudication of disputes connected to Consumers. The Consumer Courts are formed at three levels: District, State, and National Level, depending upon the monetary valuation fixed by Law. |
| The Consumer Protection Act, 2019, got the presidential assent on 9th August 2019, and it came into effect from 20th July 2020, replacing the old Consumer Protection Act, 1986. For the speedy and effective disposal of consumer cases, the New Act introduced online filing of complaints and meditation proceedings. |
| Who can file a complaint in a Consumer Court? |
| ➢ A consumer [The person who has purchased goods or has availed some services for personal use only in exchange for money] |
| ➢ Voluntary consumer association Any registered association under the Companies Act, 1956, or under any other law |
| ➢ One or more consumers who have the same interest |
| ➢ In cases of death of a consumer, his legal heir or representative. |
| ➢ The Central or the State Government |
| The procedure to file a complaint in the Consumer Court |
| Step 1: Intimation via Notice |
| It is advisable for the aggrieved party to send a notice to the opposite party before filing a complaint to communicate the Complainant's intentions about the deficiency in service or defects in goods. This notice attempts to settle the dispute without approaching the court, i.e., if the opposite party is willing to offer any remedy for the damage caused. |
| Step 2: Draft the Consumer Complaint |
| If the opposite party provides no remedy, then a formal complaint is filed under the Consumer Protection Act, 1986. This step can even be done without a lawyer. These details must be specified in the formal Complaint: |
| 1. Name, description and the address of the Complainant (s) and the Opposite Party or parties. |
| 2. Cause of Action, the approximate date, time and venue. |
| 3. Relevant facts relating to the cause of action. |
| 4. The Relief or Remedy claimed by the Complainant in accordance with the facts of the case. |
| 5. Signature and Verification by the Complainant or his authorized agent. |
| Step 3: Attaching Relevant Documents |
| All the relevant documents and material evidence supporting the case must be attached. These documents may include: |
| A receipt of delivery, copy of the bill, Warranty/Guarantee certificates, record of online booking of the goods bought, packaging of a product, a copy of the written Complaint and notice sent to the seller/manufacturer. |
| Step 4: Appropriate Forum |
| Decide the forum in accordance with the pecuniary jurisdiction for filing the Complaint,which is estimated in reference to the total valuation of goods and servicesfixed by Law. |
| Step 5: Court Fees |
| The requisite Court fee has to be paid along with the Complaint filed depending on the forum. This fee depends on the value of goods bought and the amount of compensation sought. |
| Step 6: Submit an Affidavit |
| The Complainant also has to submit an affidavit in the Consumer Court. The affidavit must includethe facts presented and the statements made by the consumer are true to his knowledge. |
| How to approach Consumer Forum |
| How to approach the District Consumer Forum? |
| Here, the Complaint can be made on a plain notarized paper and can be filed by a complainant or authorized agent. The Complainant needs to file four additional copies for each party. The requisite Court Fee is Nil for people holding Antyodaya Anna Yojana cards for valuation of suit upto 1 lakh and in other cases is Rs. 100. The court fee is Rs 200 for suits valued upto 5 lakhs, Rs 400 for suits valued upto 10 lakhs, and Rs. 500 for value uptoRs 20 lakhs. This fee has to be submitted through a demand draft to the President, Consumer Disputes Redressal Forum (name of) district. |
| How to approach the State Consumer Forum? |
| Here, the Complaint must be filed, deciding the pecuniary jurisdiction limit fixed by Law. The Court Fee is Rs 2,000 for complaints valued between Rs 20 lakhs and Rs 50 lakhs and is Rs 4,000 for value uptoRs 1 Crore. This fee is deposited via a demand draft in favour of the Registrar, (name of) State Commission payable in that particular State only. |
| How to approach the National Consumer Forum? |
| Here, the Complainant can either file a complaint directly, if it is within the pecuniary jurisdiction or file an appeal from the order of State Forum within 30 days of passing of the order. The requisite fee for filing a complaint is Rs 5,000, and the demand draft is to be made in the name of The Registrar, National Consumer Disputes Redressal Commission, but no fee is required for appealing before State or National Commission. |
| Complainant may approach the Supreme Court against the orders of the National Forum within a period of 30 days of the passing of the order. |
| "Online Filing" of Consumer Complaint |
| The New Act of 2019 introduces the option of "Online Filing" of Consumer Complaint for speedy disposal of cases. The Institution of Consumer Complaint happens in a similar way as mentioned above, but everything is performed online: |
| Step 1: Issuance of Notice |
| This notice is sent to the opposite party before filing the formal Complaint. |
| Step 2: Determining the Jurisdiction |
| It is necessary to file the Complaint within the Pecuniary and Territorial Jurisdiction. |
| Step 3: Submission of Complaint |
| The Complainant can register complaints on Consumer Helpline . Here the Complaint can be submitted in the form of Writing or Online. The Complainant will receive his login credentials and then file the Complaint by filing in all the necessary details. He can even file through the Mobile App NCH, Umang or Consumer App. Fees for the Complaint can be submitted through the online payment portal. |
| Step 4: Contents of the Complaint |
| The Complaint must contain all the necessary information attaching the relevant documents as discussed above. |
| Step 5: Limitation for filing Complaint/Appeal: |
| The Complainant must file the Complaint before the District Commission within two years from the date of the dispute. The appeal must be filed within forty-five days from the date of order of the District Commission before the State Commission. Further, an appeal to the National Commission must be made within thirty days from the date of the order from the lower forum. |
| Mediation Proceeding |
| The New Act of 2019 introduces an Alternative Dispute Resolution Mechanism for consumer cases' speedy and effective redressal. |
| The Initiation of Mediation Proceedings can be done if the commission is convinced that there is a probability of settlement of the dispute, then it can be sent to the Mediation Cell. This request can be made to District, State or National Commission mentioning the nature of the dispute, details of the parties involved, amount of dispute, relief sorted and Proposal for appointment of Mediator [Qualification, Language, experience, etc.] |
| Conclusion |
| The Consumer Courts have proved to be the finest ways to protect the interests of the consumers and provide them with a remedy by addressing their grievances. It is a very cost-effective and easy measure to file a complaint as compared to the other forms of litigation. The territorial jurisdiction plays an important role in deciding which district forum a consumer can approach. The Government has taken a huge step in speedily resolving consumers' grievances by introducing the online form of Complaint through the New Act of 2019. |
| During the pandemic, this online measure can prove to be a very user friendly and productive procedure. The introduction of Alternative Dispute Resolution Mechanism through Mediation proceedings was a step towards achieving a peaceful settlement of dispute between the parties involved, which would have had a huge impact on both the service provider and the consumer in the long term. Therefore, this resolution mechanism through Mediation had saved the parties from the long, tedious procedure by helping them resolve the issue in the initial stage itself. |
| The author of this blog/Article is Kishan Dutt Kalaskar, a Retired Judge and practising advocate having an experience of 35+ years in handling different legal matters. He has prepared and got published Head Notes for more than 10,000 Judgments of the Supreme Court and High Courts in different Law Journals. From his experience he wants to share this beneficial information for the individuals having any issues with respect to their related matters. |
| Kishan Dutt Kalaskar |
| Advocate (Retired Judge) |
| Bengaluru |
| FILING OF COMPLAINTS AGAINST BIASED JUDGES - PROCEDURE ✍ |
| Complaint in case of a judge cannot be about a poor judgment or order. For that, there is a facility of correction, analysis, or appeal to the higher Judiciary.So, in what circumstances can people complain against judges?Plausiblebad or irresponsible behaviour of judge include being impolite to other people or having bad body language, actions or behaviour towards the other person |
| It can be when a judge is making natural or inconsiderate behaviour in making irrelevant or insensitive statements or comments which doesn’t go by rules of what judge is expected to do inline with judicial duty.Here it is vital to add that though India has taken over many provisions and procedural laws from British, one won’t be able to find such clear and complete information on any formal website within India. |
| Where and to whom to contact for sending of complaint? |
| Our past master of various courts has been making complaints as per jurisdiction below: |
| ⚬ Subordinate Judiciary: Registrar General of the concerned High Court, District administrative judge |
| ⚬ HC judges: Chief Justice of the concerned High Court |
| ⚬ SC judges: Chief Justice of India |
| ⚬ Chief Justice of HC: Chief Justice of India |
| For official and formal information: The citizen’s charter PDF file obtainable from the Department of Justice webpage providesvarious contact information for grievances. The person could contact them over phone/email to find out directly how and where to file a complaint about a particular jurisdiction/court http://doj.gov.in/citizen-charter |
| Vision: |
| Easing management of Justice that makes sure easy access and well-timed delivery of Justice to all. |
| Mission: |
| Making sure adequacy of courts and judges, including servicing of appointment of Judges to the higher judiciary, modernization of courts and procedures, policies for judicial reforms and Legal aid to the poor for improved justice delivery. |
| The Department of Justice Guidelines has the vital information about grievances against Judiciary which has been extracted and given below: |
| ✱ Department of Justice (DOJ) getsa large number of grievances from citizens through the online CPGRAMS platform and on the email of the officers. DoJ gets issues from Presidents Secretariat, Vice Presidents Secretariat, PMO, Department of Administrative Reforms & Public Grievances/other Ministries/Departments & also directly. While almost all the grievances are regardingJudiciary, grievances in concern to other Ministries or Departments in the Central Government and pertaining to the State Governments or the Union Territories are also addressed to them. The grievances related to Judiciary are addressed by the Department of Justice, and the grievances related to the other Departments/Ministries/State Governments/UTs are forwarded to the offices concerned. The guidelines mentioned belowrelated to the disposal of grievances in the Department of Justice are transmitted for information/guidance/benefit of grievance owners. |
| ✱ Grievances regarding the Judiciary are redirected to the Secretary-General of the Supreme Court of India or the Registrar General of the concerned High Court, for further action, as appropriate. |
| ✱ Any Grievance regarding the verdicts of the Courts is not handled as a grievance. This kind of grievance holder is suggested to take the proper legal remedy in the appropriate Court of Law as per rules. Grievances regarding the verdicts of the Courts will be taken by the Department of Justice. Grievances concerned with the procedure of the Court or cases mainly judicial in nature can be handled through the Court of Law only. Such grievances will be handled by the Department of Justice. |
| ✱ Grievances in concern with the Judges of SC are redirected to the Chief Justice of India, and grievances concerned with Judges of the High Courts are forwarded to CJ of the connected High Courts for appropriate action. (As the Judiciary is self-sufficient, Government does not ask for steps taken, nor sends reminders to them. Grievance holders are suggested to get information from the concerned Courts directly in this matter. |
| ✱ Disposal of the pending cases in courts is within the sector of the Judiciary, which is aself-sufficient organ of the State under the Constitution of India. The Government of India does not obstruct the working of the Judiciary/proceedings in courts as pendency of a Court Case is a subjudice matter which is under consideration of the Court. |
| ✱ In a matter of any grievance relating to delay in judgement or not a fair judgement or miscarriage of Justice, the petitioner is suggested to go for judicial remedy by making an appeal or any other events before the appropriate Court of Law within the allotted time limit. |
| ✱ According to the guidelines made by the SC of India regarding the grievances/complaints against members of the Subordinate Judiciary, it is seen that this type of grievances is to be sent along with a duly promised affidavit and validated material to prove the claims made therein. Such grievances, along with a sworn affidavit, should be sent directly to the Registrar General of the concerned High Court. |
| ✱ Grievances redirected by the Department of Justice are seen and examined by the Judiciary as per their own system and the system or procedure to deal with grievances thataregenerally not shared. In such acts, the Department of Justice is not in place to inform the outcome to grievance holders. |
| ✱ Grievance owners are suggested to lodge their grievances on the Public Grievance Portal cpgrams-darpg@nic.in only. As the Government has introduced the platform to get grievances online, grievances received by the Department of Justice on the email I. Ds of officers will not be accepted. |
| ✱ So, complaints can either be directly sent to the High Court if relevant or to cpgrams-darpg@nic.in, and no complaints should be sent to individual officers’ email ids. |
| The person having grievance are suggested to send the grievances relating to the Supreme Court, High Courts directly to them on the below-written mails in order to dispose of their grievances in a fast manner: |
| ✔ High Court name and email ID |
| Supreme Court of India → supremecourt@nic.in |
| High Court of Allahabad → rg@allahabadhighcourt.in |
| High Court of Tripura → thc.vigilance@gmail.com |
| High Court of Guwahati → regv.ghc@gmail.com |
| High Court of Kerala → rsjhc.ker@nic.in |
| High Court of Jharkhand → admn.misc.jhcranchi@gmail.com |
| High Court of Uttarakhand → rg.ukhc@indiancourts.nic.in |
| High Court of Meghalaya → rg.mglhc@indiancourts.nic.in |
| High Court of Delhi → aojestablishment2.dhc@nic.in |
| Bombay High Court → rgsid-bhc@nic.in |
| Sikkim High Court → cpc-sik@nic.in |
| Punjab & Haryana High Court → reg.vig-phc@indianjudiciary.gov.in |
| HP High Court → arvindm@aij.gov.in |
| High Court of Chhattisgarh → vv-hc.cg@gov.in |
| Andhra Pradesh High Court → svsrmoorty@gmail.com |
| Gujarat High Court → rg-hc-guj@nic.in |
| Rajasthan High Court → regadmn-rhc-rj@gov.inrajinder.tuteja@aij.gov.in |
| Jammu & Kashmir High Court → myakhoon@gmail.com |
| Karnataka High Court → grievance@hck.gov.in |
| Patna High Court → phcgrievance-bih@gov.in |
| Madhya Pradesh High Court → usdey15@gmail.com |
| Madras High Court → regrvigil.tn@nic.in |
| Manipur High Court → nd.grievance-hcm@gov.in |
| Orissa High Court → rg.orihc@indiancourts.nic.in |
| Calcutta High Court → cpc-cal@indianjudiciary.gov.in |
| NALSA → nalsa-dla@nic.in |
| Court Precedent |
| In the year 1995 judgment in C Ravichandran Iyer case, the Court had held that if members of the bar had any material about “misconduct” or “bad conduct” of a judge, they should meet the high court chief justice concerned or the Chief Justice of India to apprise them of the material against the judge. The apex court stated that they should wait for a reasonable time period to permit the administrative head of the High Court or the Supreme Court to take appropriate steps or action. |
| In the S Ramaswami 1992 judgment by a five-judge SC bench, headed by Justice J S Verma, it had said that the issue of whether allegations against a sitting judge warranted an inquiry, was to be seen by Parliament on permitting a motion for removal of the judge moved by the requisite number of MPs. However, in the inquiry, the sitting judge should have full right of defence. |
| In the case of Sahara Birla Paper, it was seen that the Supreme Court had given a biased verdict in favour of the Government. An NGO had filed the petition, consisting of the allegations against the Government. The Court had set aside the petition and ended the complete issue by stating the lack of evidence to make the offence in question. Instead of asking the petitioner to avail the remedies, the Court adjudicated the matter by declaring the diary entries inadmissible. In this case, Biasness can be seen through the actions of the judge by ignoring the evidence, as he had declared the diary inadmissible and had given the verdict without considering the evidence. |
| Conclusion |
| The predisposition of a judge, a legal attorney, or anyone who is related to the judicial matters, either against or in favour of one of the parties, is known as judicially biased. A judicial decision is supposed to be free from all kinds of biasness to be fair and just in its real sense. Judicial biasness can be pointed out in decision-making, appointments, or remarks made. Biasness is not theoretically encouraged by the judiciary. Having a just and fair judicial system is difficult but not impossible, and a country must take all the required steps in order to ensure that its judicial system is free from all forms of unfair practices and malicious intentions. |
| The author of this blog/Article is Kishan Dutt Kalaskar, a Retired Judge and practising advocate having an experience of 35+ years in handling different legal matters. He has prepared and got published Head Notes for more than 10,000 Judgments of the Supreme Court and High Courts in different Law Journals. From his experience he wants to share this beneficial information for the individuals having any issues with respect to their related matters. |
| Kishan Dutt Kalaskar |
| Advocate (Retired Judge) |
| Bengaluru |
| WITHDRAWAL OF MUTUAL DIVORCE PROCEEDINGS |
| When both parties agree on the dissolution of marriage in a friendly manner, rather than battling in court and defaming each other, it is more harmonic. They can file a petition in a District Court under Section 13B of the Hindu Marriage Act, 1955, and the Court can award them a divorce decision. The divorce will not be affected by proceedings before the Panchayat; the parties must resolve it through Matrimonial Courts. The Marriage Law (Amendment) Act of 1976 included this clause not included in the Hindu Marriage Act. |
| The Hindu Marriage Act of 1955, Section 13B, is based on the same grounds as the Special Marriage Act of 1954, Section 28. Section 13B (2) states that the parties must wait at least six months after presenting the petition, and before the conclusion of the eighteen months, they must take a step forward to the court together. After reviewing the case, if the court believes all facts are accurate, it can approve the divorce petition. |
| The following grounds can be used to submit a petition for mutual consent divorce: |
| 1. Both parties must bring the petition to the court at the same time. |
| 2. Both parties shall file a motion before the court hearing the petition. |
| 3. Parties must live apart for a period of one year. |
| 4. Parties are unable to cohabitate. |
| 5. The parties mutually decided that the marriage should be dissolved. |
| 6. The parties must wait for a minimum of six months before proceeding. The six-month period began when the parties filed a divorce petition with the court. |
| 7. Concerned parties must file an application with the court for a decree before the eighteen-month period expires from the day the petition is filed. |
| According to Sec 23(1) (bb) of the Family Law Act, permission in the case of mutual consent divorce shall not be gained by fraud, force, or undue influence as per Sec 23(1) (bb) of the Hindu Marriage Act,1955. |
| Can consent be withdrawn in mutual consent divorce? |
| Suppose one partner changes their mind and wishes to salvage their marriage. In that case, they can make an application with the court where their divorce is being processed, declaring that they want to withdraw their permission for the divorce and give their marriage a second opportunity. If both the husband and wife agree to the withdrawal, the case can be amicably withdrawn, and the court can dismiss the petition. |
| If one spouse withdraws the divorce petition? What remedy does the other spouse have? |
| If one spouse files an application with the court stating that they do not wish to pursue Divorce by Mutual Consent, the court will not give a divorce decree. It is possible during the six months when the petition is pending in court. |
| If the court determines that the unilateral withdrawal of consent is not genuine, it might issue a divorce judgment and dissolve the marriage. As a result, the court will disregard the withdrawal of consent and issue the decree. |
| It cannot be regarded as an actual act if the money is taken later and the wife withdraws her permission and has not made any effort to reconcile in the past seven years. |
| In other circumstances, the wife withdraws her permission by filing a court action to demand more permanent alimony than what was agreed. The act of withdrawing can be used as a means of harassment. |
| Is it possible to withdraw the permission after filing for Divorce by Mutual Consent? |
| In JSRL v UYT, the court decided that neither party can withdraw from the joint petition for divorce unless and until both parties consent to the withdrawal. |
| In the case of NSingh v HKr , the court decided that once the parties voluntarily submit a petition for divorce by mutual consent and all of the requirements set out in Section 13B(1) of the Hindu Marriage Act, 1955 are met, the consent is irrevocable. |
| In the case of SD vs. OSD, the court found that mutual consent should exist unless and until a divorce decision is issued. The six-month time frame was chosen to allow the parties to change their minds. Both parties are not required to modify their minds. A single party can also do it. |
| Later, in the case of Asa v RRT, the court held that mutual consent should be maintained until the divorce judgment is issued, even if one of the spouses does not withdraw their consent within the 18 months. |
| In AKKn vs. MU, the court noted that consent obtained by the parties when filing the petition must be maintained until the case is brought up for order and a divorce judgment is issued. The Supreme Court can issue many directions to offer comprehensive justice to the party while exercising its exceptional power under Art. 142 of the Constitution. |
| If the party withdrawing the consent does not convey it to the court, either directly or via their counsel, the court will assume the consent to be ongoing. |
| The Rajasthan High Court's Division Bench ruled that an affirmative act must withdraw the party's permission to divorce at the time of the second motion. |
| If there is no sufficient reason for the withdrawal of permission, the court will assume that the consent was withdrawn under duress. After jointly consenting to divorce, one party withdraws their approval, which is considered mental cruelty. |
| In the case of SS vs. SJY , the husband did not appear at the second stage after filing a joint divorce petition. Because one party had abandoned the case, the Family Court decided that mere silence did not constitute a withdrawal of consent. As a result, the conclusion must be reached in favor of consent rather than the absence of consent. In the case of SS vs. SJY, the husband did not appear at the second stage after filing a joint divorce petition. Because one party had abandoned the case, the Family Court decided that mere silence did not constitute a withdrawal of consent. As a result, the conclusion must be reached favoring consent rather than the absence of consent. |
| Conclusion |
| Opting a mutual consent divorce avoids squabbles and saves a significant amount of time and money. Mutual consent divorce is one of the best-provided possibilities, considering the increasing number of divorce applications As a result, it is the simplest type of divorce and the least expensive and time-consuming compared to disputed divorce. It is an easy and hassle-free divorce method, too, because even during the six months between the first and second motions, any party can withdraw by submitting an application with the court saying that they do not want to get a divorce by mutual consent. The opposite party would only have one choice in such a situation: petition for disputed divorce. Hence It is the shortest type of divorce, saving time, money, and even mental anguish. |
| The author of this blog/Article is Kishan Dutt Kalaskar, a Retired Judge and practising advocate having an experience of 35+ years in handling different legal matters. He has prepared and got published Head Notes for more than 10,000 Judgments of the Supreme Court and High Courts in different Law Journals. From his experience he wants to share this beneficial information for the individuals having any issues with respect to their related matters. |
| Kishan Dutt Kalaskar |
| Advocate (Retired Judge) |
| Bengaluru |
| VALIDITY OF NARCO-ANALYSIS IN INDIA – CRIME DETECTION TECHNIQUE |
| Narco-analysis is a crime detection technique in which a test is conducted upon an accused person to reveal the facts of the case and important proof of the commission of an offence. The test is generally administered by injecting about 3 grams of chemicals like sodium pentothal or scopolamine dissolved in 3000 millilitres of distilled water into the accused person's body. This makes the accused go into a hypnotic state, and the test is conducted while constantly monitoring his blood pressure and heart rate. An expert then asks carefully constructed questions to the accused and records the answers. It is said that the chemical acts as a truth serum that enables the expert to extract the truth from the subject. In turn, this information extracted acts as a guiding point in detecting various ingredients required to prove the commission of an offence. The narco analysis test was introduced for the first time in India in 1936 but was first used in 2002 in the Godhara Carnage Case. |
| Ground Analysis |
| As opined by Dr. M.S Rao, Chief Forensic Scientist for the government of India, these deception detection tests play a vital role in uncovering and sometimes even preventing terrorist activities. Considering the rise of India's crime rate, this technology aids in discovering evidence by the police by soliciting information from even hardened criminals. These tests act as a good alternative to the traditional methods of torture employed by the police, which impinge upon the rights of the persons. Since the subject is put in a subconscious state by the drugs, there is very little possibility of modifying the truth by the subject, which helps establish or corroborate the guilt of the accused. Narco-test has proved to be useful in many cases, such as the Abu Salem case, which uncovered his involvement in many offences. |
| Nonetheless, many issues surround the administration of narco tests. Since a chemical is introduced in the body of the subject, the excessive dosage could lead to coma or even death of the person. Another issue is that since the accused's mental and physical state is severely altered, the reliability of the information received is questionable. On several instances, it has been alleged that the administration of such deception deduction techniques violates the right against self-incrimination guaranteed under Article 20(3) of the Constitution. Article 20(3) provides that ‘no person shall be compelled to be a witness against himself’ and narco-test impinges upon this fundamental right of the citizens. It is dreaded that even a small mistake on the part of the person conducting the test can result in serious danger to the life of the subject. |
| Administration of narco-test involves a complex interplay of law and technology where the need for crime detection and protection of rights of the accused need to be balanced. While technological and scientific developments are largely welcome in the Indian criminal justice system, they cannot be allowed to take away any person's rights. |
| Court Precedents |
| In the case of NUP, the Apex Court held that no person could be allowed to extract incriminating statements from the accused as the accused has a right to remain silent during the course of an interrogation. |
| Similarly, in the case of SSD v. State of Gujarat, the Court upheld the order for the administration of Narco Analysis test on the accused SSD. It was observed by the Court that in a situation where all possible alternatives to discover the truth or capture the offenders have been exhausted, the prosecuting agency has no other remedy than the recourse to scientific methods of deception detection tests. These tests help overcome any obstacles or guide the police when the investigation reaches a dead end. On the basis of such revelation, if the prosecuting agency comes across some clues or records or a statement that helps or assists in further investigation of the offence, then there will not be any violation of Article 20(3) of the Constitution of India. |
| In the case of SSP v. State of Karnataka, it was held by the Supreme Court that involuntary administration of narco-test is ‘cruel, inhuman and degrading’ in the light of Article 21 of the Constitution. Any information obtainedthrough involuntary narco-tests cannot be admitted as evidence in the Court of law. The decision of the Court was based upon the reasoning that a person has no conscious control over the results of such tests, and unless a person consents to the procedure, it cannot be held to be valid. Involuntary administration of narco-analysis test is a violation of Article 20(3) of the Constitution. No person shall be forced to subject himself/ herself to such tests as it would amount to an unwarranted invasion into the personal liberty of such person. |
| However, the Court laid down various guidelines to be followed while conducting the tests with the consent of the accused. According to the Court, a subject must be made well aware of the consequences, both legal and health, before the test is done upon him, i.e. informed consent must be obtained. In case the accused desires to subject himself to these tests, he must be provided access to a lawyer. Physical, emotional, psychological and legal consequences must be explained to the subject. Consent of the accused must be recorded before a Magistrate, and it is the duty of the Magistrate to ensure that such consent is voluntary. Information revealed in these tests will not amount to a confessional statement in court proceedings. All tests have to be recorded, and factual narration of the same must be taken on record. |
| Conclusion |
| The efficiency of narco-analysis as a crime detection has been questioned in several instances. It has been repeatedly argued that it violates the right against self-incrimination of an accused subjected to a narco-analysis test. While these tests use drugs meant to put them in a subconscious state and have little or no control over the outcome. Nonetheless, it cannot be denied that they assist the police in solving cases. To balance the interests of the accused and the police, the Court has allowed the conduction of deception deduction tests after an informed consent taken by the accused in the presence of a lawyer as well as a medical professional. |
| The author of this blog/Article is Kishan Dutt Kalaskar, a Retired Judge and practising advocate having an experience of 35+ years in handling different legal matters. He has prepared and got published Head Notes for more than 10,000 Judgments of the Supreme Court and High Courts in different Law Journals. From his experience he wants to share this beneficial information for the individuals having any issues with respect to their related matters. |
| Kishan Dutt Kalaskar |
| Advocate (Retired Judge) |
| Bengaluru |
| GROUNDS FOR REFUSAL OF A TRADEMARK APPLICATION |
| Intellectual property rights provide for the rights to the owners of intellectual properties to preserve their ownership and to sustain and receive the benefits of their creativity and genius. Trademark is one of the most prominent intellectual property rights. A trademark is a tool that helps a company distinguish itself from other brands to beat the competition. A brand is not necessarily a trademark, but a trademark is always a brand. A trademark is a name, word, or symbol that distinguishes goods from those of other businesses. Marketing goods or services by procedure becomes considerably easier with a trademark because product recognition is secured and made easy. The owner can prevent a competitor from using his mark or symbol. |
| Trademark law in India |
| An Indian Trademark Law was enforced in the 1940s. This law was enforced because of the continuous infringement of the registered and non-registered trademarks. As trade and commerce grew rapidly after the trademark legislation was implemented, demand for trademark protection skyrocketed. The Trademark and Merchandise Act, 1958 replaced the old Trademark law. It provided better protection of trademarks and prevented misuse or fraudulent use of marks on merchandise. This act as well was replaced with the Trademark Act, 1999, by the government of India following the TRIPS (Trade-related Aspectsof Intellectual Property Rights) obligation imposed by the World Trade Organization. The Trademark Act's goal is to protect trademark users by directing property conditions and providing legal remedies for trademark rights enforcement. |
| Trademark identifies the owner of the product. Trademark piracy is defined as the use of a trademark for commercial gain through unauthorised or illegal means. If a registered trademark is infringed, the owner of the registered trademark can file a case, whereas an unregistered trademark's only alternative is passing off. Anyone claiming to be the owner of a trademark or claiming to have to use it in the future may submit an application in writing to the competent registrar in an authorised manner. The application must include the name of the goods, mark, and services, the class of goods and services in which it falls, the applicant's name and address, and the mark's term of use. A person here refers to a group of firms, a partnership firm, a corporation, a trust, a state government, or the federal government. |
| Grounds for refusal of a Trademark |
| Section 9 of the Act defines the absolute grounds for the refusal of registration of the trademark. Trademarks that are devoid of distinguishing qualities or consist solely of marks or signals that might be used in commerce to represent the kind, fine, quantity, alleged grounds, values, or geographical origin, may be rejected. Acreation of time of things or the rendering of offers, or various features of goods or offerings, consisting entirely of signs or signals that have become common in today's language. That trademark is not eligible for registration. Unless it is proven that the mark has acquired a new character as a result of use before the application date. It further provides that a mark shall not be registered as a trademark if: |
| 1. It deceives or confuses the people. |
| 2. There is something that can harm religious sensitivity. |
| 3. It is indecent or scandalous in nature |
| 4. Its use is forbidden. It states that a trademark cannot be registered if it only contains (a) the shape of products that form the nature of goods, (b) the shape of goods that are required to achieve a technical result, or (c) the shape of goods that gives substantial value to goods. |
| 5. It is prohibited under the Emblems and Names (Prevention of Improper Use) Act. 1950. |
| Test of similarity |
| If two marks appear to be deceptively similar, the key qualities of both must be considered. They should not be placed side by side to see if there are any design discrepancies and if they have the same personality to avoid one design being mistaken for the other. It would be sufficient if the challenged mark is so similar to the registered mark that a person who normally deals with one would accept the other if presented to him. Apart from structural, visual, and phonetic similarity or dissimilarity, the question must also be considered in terms of human intelligence and incomplete collecting. The question of his impressions is viewed as an entire third. |
| "It is general knowledge that 'bidis' are utilised by those belonging to the impoverished and uneducated or semi-literate class, the court said in MIL v. MWM. Their level of expertise is limited. It is unrealistic to expect children to comprehend and comprehend the subtle differences between the two labels that can be found by comparing the two labels. Given the foregoing, the two labels appear to have a misleading resemblance." |
| The Act's Section 11 lays forth the relative grounds for a trademark's refusal to be registered. A trademark cannot be registered if there is a likelihood of confusion due to (I) its identity with an earlier brand and resemblance of goods or services, or (II) its similarity to an earlier trademark and similarity of goods. It also states that a trademark that is identical or similar to an earlier brand cannot be registered. Also, if, or to the extent, the earlier trademark is well recognised in India, it must be registered for goods and services that are not identical to those for which an earlier trademark is registered in the name of a different proprietor. It further states that a trademark cannot be registered if or to the extent that its use in India is likely to be prohibited by law. |
| Conclusion |
| Intellectual property rights are a new yet booming field of law in today’s time. Trademark is one of the most essential intellectual property rights for a business. It is essential to build their brand, their brand value and their image in the market. People need to know the grounds on which a trademark can be refused. In order to make sure that such grounds for non-refusal are satisfied, which makes it faster for the business to set up and commence their business and function as an independent brand in the market. |
| The author of this blog/Article is Kishan Dutt Kalaskar, a Retired Judge and practising advocate having an experience of 35+ years in handling different legal matters. He has prepared and got published Head Notes for more than 10,000 Judgments of the Supreme Court and High Courts in different Law Journals. From his experience he wants to share this beneficial information for the individuals having any issues with respect to their related matters. |
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