This article is written by Mariya Paliwala of 7th semester, student at Mohan Lal Sukhadiya University College of Law, Udaipur (Rajasthan).

Aadhar Card or UIDAI

Aadhar is basically a 12-digit unique identification number which is issued by the Unique Identification Authority of India (UIDAI), is a statutory authority regulated by Aadhar (Targeted Delivery of Financial and other subsidies, Benefits and Services) Act 2016. Under this Act UIDAI is responsible for aadhar enrollment and authentication which also includes the operation and management of all the stages of aadhar procedure. The procedure mainly includes developing the policy, procedure and system for issuing Aadhar numbers to individuals and perform authentication and also required to ensure the security of identity information and authentication records of individuals. 

The main objective behind creating UIDAI was to generate Unique Identification Number (UIN) which is named as Aadhar. UIDAI has a very well planned Organisational Structure for the smooth and efficient functioning. 

Meaning of Aadhar Card

Aadhar card is an identification card which consists of a 12-digit unique identification number generated and issued by UIDAI after undergoing due authentication process which deals with the looking of demographic information including name, address, place of birth, date of birth, etc, and Biometric information which involves digital fingerprints, two iris scan and a facial photograph. Mainly fingerprint and iris data are taken for authentication. Aadhar card is issued only to an India citizen, who is a resident of India so that the system can:

1. Be strong enough to eliminate fake, fabricated and duplicate identity cards.
2. It is the cost-efficient way for verification and authentication of identity of people.

Usage of Aadhar Card

• Identity card

There wasn’t any exclusive reason behind Aadhar card. This can be used for various reasons. Unlike, voter ID card, whose purpose is to permit the ID card holder to enjoy his political rights by taking part in electoral process. So aadhar card is a versatile card which can be used for all the governmental functions.

• Avail Subsidies

If in case any person is eligible to avail any kind of subsidies or benefits by the government then he/she may grab it through aadhar. For instance, the government has introduced a scheme wherein the citizens with poor economic background will be entitled for subsidies on LPG connection. All they needed to do is link their Aadhar number with their bank account, their amount of subsidy would directly come into the linked account.

• Easily available 

Aadhar card is a document which is issued by the government. It is easily available online in the name of e-aadhar, an easy print out can be taken. It reduces the risk of the document being misplaced/stolen.

• Use of Aadhar in Government Scheme

Aadhar is the most important document which can be used to avail maximum of the government schemes and processes such as:

• LPG Subsidy 
• Disbursing Provident Fund 
• Jan Dhan Yojna 
• Digital Life Certificate
• Opening bank accounts
• Acquisition of passport

Features of Aadhar Card

• Notion of Transparency

The notion of the government behind introduction of Aadhar was to increase the efficiency, good governance, transparency and to fulfill efficiently the targeted delivery of subsidies, services and benefits. Consolidated Fund of India is responsible to incur all such type of expenditure to every citizen of India through the unique identification number.

• Authenticate Digital identity 

Another function of aadhar is to provide verified and authentic digital identity to the citizens of India.

• Secure confidentiality of identity

As all the verification and authentication work is done on the basis of biometrics, the security and confidentiality of identity is ensured. 

Brief History

Back on the 28th of January 2009, UIDAI was established on the issuance of notice by the Planning Commission. Nandan Nilekani, the co-founder of Infosys was appointed as the head of the project by the then UPA government. Moreover, he was made the chairman of UIDAI, which is equivalent to the position of a cabinet minister. Nilekani launched the logo and the brand name “aadhar” in 2010, he was also of the view that he will be a supporter of the legislation which will be passed to favour data held by UIDAI. Further, UIDAI selected 15 agencies to provide training to all those people who will be involved in enrolment procedure. In January, 2012, UIDAI took a step forward and launched the online verification system for aadhar number. With the coming up of this innovation any telecom companies, banks, and government can find out that a person is a Indian resident or not by a single click.

Moreover, in 2017 the then Prime Minister Manmohan Singh launched an aadhar-linked direct benefit transfer scheme. The project was to introduce in 51 districts in 2013 and then it slowly made its root through out India.

Aadhar Services 

Aadhar card is the most important document which helps to recognise the identity and the address of a person. Moreover, just providing Aadhar number to the Indian residents is not the only task of UIDAI. It also provides both offline and online services to the card holders to solve their queries and problems.

Aadhar Enrolment

Enrolment activities are carried by the Office of the Registrar General of India (RGI), which is established by UIDAI at every district and union territory. The activities pertaining to enrolment are exclusively done by RGI. Residents except from the state of Assam and Meghalaya, all the other states and UTs are ought to register at Aadhar enrolment centre/ aadhar enrolment camps/ permanent offices.

Aadhar enrolment can be done by adhering to the following steps:

• visiting the nearest enrolment centre, 
• filling the enrolment form, 
• getting demographic and biometric data captured, 
• submitting identity proof and address proof,
• collect and acknowledge the receipt of enrolment ID.

Further, the following highlights must be acknowledged by before the enrolment:

1. The aadhar enrolment is free of cost.
2. A person going for the enrolment must take his identity and address proof.
3. Apart from PAN card or any other government document, electricity and water bills are also accepted and considered as a valid identity proof. Wide range of identity are accepted and also given in the list of supporting documents.
4. In case a person does not possess above common proofs, then the Certificate of Identity having photo issued by Gazetted Officer/Tehsildar on letterhead is also accepted as proof of identity. There must be a certificate of Address which contain photo issued by MP or MLA or Gazetted Officer. In case of rural areas, Tehsildar on letterhead or by Sarpanch or its equivalent authority, is accepted as valid proof of address. 

Aadhar Update 

There are various methods to update aadhar which are as follows:

• Online update

• By visiting the enrolment centre

In case of a change in the demographic details, the person may move to the permanent office and approach the operator for the change. The person needs to carry with him the 2 identity proofs which consist of it’s permanent address.

Document Verification is done by the operator keeping the following highlights in mind:

• Verification is done in those fields which require documentary evidence.
• Verification is normally done by the verifier who is appointed by UIDAI or Registrars present at enrolment centre or update centre. 
• The verification procedure followed must also include DDSVP Committee Recommendations followed in the process of enrolment.

Form Filling and Acknowledgement

Form filling and acknowledgement is done by the operator on update client as requested by the resident. Handles spelling, language issues, transliteration, etc. Biometric sign off will be provided by the operator after the update request.

After this the resident gets an acknowledgement receipt with Update Request Number (URN) which can be easily tracked.

Aadhar Card Scan

Aadhar card scan can be done with the help of QR code by using a scanner.

Step by step process to scan QR code given in aadhar:

Step 1. UIDAI Secure QR Code – Windows Client

The person applying must download the UIDAI Smart QR Code Reader. Then double click the installer. After that click on Install button. On the successful installation, a prompt will pop up. Then open the UIDAI Smart QR Code Reader 4.0 for use.

Step 2. Handhold Scanner Device

The device is used for scanning the Secure QR code available on Aadhaar Letter/e-Aadhaar for displaying the demographic details including photograph of the Resident.

Step 3. Scan the QR Code using Scanner Device 

•  type mobile number and email in the boxes given to verify.

Linking Bank Account with Aadhar

There are various ways in which bank account can be linked with aadhar:

Through net banking 

Step 1. Firstly login to www.onlinesbi.com

Step 2. Enter your user ID and password. 

Step 3. Under the option “My Account”, click on the “Update Aadhaar with Bank accounts(CIF)”.

Step 4. Then enter profile password for Aadhaar Registration.

Step 5. A page will open where you will be asked to enter your Aadhaar number twice.

Step 6: Select “submit” button after entering your Aadhaar number.

Step 7: On successful linking of your Aadhaar with PAN a message will be displayed on your monitor screen.

Linking in a bank

In order to prevent the deactivation of the account, the Account holders can get their account linked with Aadhaar. Here is how it can be done easily:

• Fill the bank account Aadhaar linking application form. In order to find the Aadhar linking form visit your bank’s official website. If it is not available on the website, please visit a bank branch near you.
• Mention the bank account details and Aadhaar number.
• Attach a self-attested photocopy of Aadhaar card with the form.
• Submit the form and the Aadhaar copy at the counter.
• You will be asked to furnish your original Aadhaar card for verification.
• Your application will be accepted and it may take a few days to link your bank account with Aadhaar card.
• Once it is linked, you will get a notification on your registered mobile number.

The main objective behind linking the Aadhar with the bank account is that all the benefits and subsidies under government programs can be easily transferred to the bank account holder without any hurdle and with efficiency.

Linking Aadhar with PAN card 

Step 1. Register at the income tax e filing portal, in case you are not already registered. 

Step 2. The e-Filing portal must be logged in, under the Income Tax Department by entering the login ID, password and date of birth.

Step 3: When the site is logged in, a pop up window will appear asking you to link your PAN card with Aadhaar card. If you don’t see the popup,then move your cursor to blue tab on the top bar named ‘profile settings’ and click on ‘link aadhaar’. 

Step 4: Verify the essential details such as name, gender and date of birth, which was already mentioned as per the details submitted during registration on the e-Filing portal. 

Step 5: After the details match, enter your Aadhaar number and captcha code and click on the “link now” button.

Step 6: You will receive a pop up mail on the successful linking of aadhaar with PAN card. 

Aadhar card centre near me

In order to enrol for Aadhaar for yourself or for your family member, you will be required to visit an Aadhaar Enrolment Center. In case your Demographic details (Name, Address, DoB, Gender, Mobile Number, Email)is not up-to-date in your Aadhaar, you can get the same updated by visiting an Aadhaar Enrolment Center. Aadhaar holders children, who have turned as 15 years or others in need of updating Biometrics details including Fingerprints, Iris & Photograph are required to visit an Enrolment center too. Please get valid Address proof documents.

Find for a nearest Enrolment centre by selecting any of the following given mode:

Search By:

• State
• Pincode
• Search box

Aadhar card Problem

As every coin has two faces, aadhar brings with itself lots of efficiency and transparency but at the same time it carries with it some disadvantages leading to the problems faced by the citizens. Some of the most common problems are stated below:

1. Misprints and spelling mistakes. 
2. Chances of leak of identity and demographic information.
3. Biometric authentication is time consuming and not 100% accurate. 
4. Bank accounts linked with aadhar are likely to get hacked. 
5. Mis-match of gender and facial photograph.
6. Address error.
7. Relationship error.
8. Name error.
9. Lack of Awareness.

Aadhar legislation and Article 21 of the Constitution

Article 21 of the Constitution pertains to the right to life and personal liberty, wherein right to life includes right to privacy also. So with the coming up of Aadhar legislation it was felt by the people that capturing biometric information and recording demographic information is the interference in their privacy, thereby the state is infringing the citizen’s right to life under Article 21 (Part III) of the constitution. 

In the case of KS Puttaswamy v. UOI which is also known as ‘Aadhar case’ was first filed by ninety-two year old Justice KS Puttaswamy, the 1st petitioner, who contended that Aadhar legislation must not be enforced on the citizens. On the ground that it was an infringement of the right to privacy of the citizens by the government and lack the legislative backing. In 2017 a judgement delivered by the Supreme Court passed a judgement wherein right to privacy was added to Article 21 of the constitution and passed a legislation called Aadhar Act so as to back the project by UIDAI.

Conclusion 

Wherefore, it is well said that the grass always looks greener on the other side. Such procedure to collect data by the government is not only done in India but also in other countries like China. Earlier, when such legislation was absent there were various problems faced in governance like transferring subsidies under government policies, etc. Now, when it is implemented it is hampered because of the lack of awareness, procedural flaws etc. 

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

The post Relevance of Aadhar in Present Era appeared first on iPleaders.

This article is written by Suryash Kumar, graduated from Bangalore Institute of legal studies. The article talks about the Contract of Guarantee.

Guarantee contract

Contract of Guarantee is a specific performance contract. It is called specific performance because it is an equitable relief. This is not the usual legal remedy where compensation for damages is adequate. Damages and specific performance are both remedies available upon breach of obligations by a party to the contract; the former is a ‘substitutional remedy’, and the latter a ‘specific remedy’.

The law prescribes that in an event where the actual damage for not performing the contract cannot be measured or monetary compensation is not adequate, one party can ask the court to direct the other party to fulfil the requirements of the contract.

It is also a discretionary relief, that is, it is left to the court to decide whether specific performance should be given to a party asking for it.

Why Contract of Guarantee is Specific performance?

Contract of Guarantee is Specific performance because the remedy is not the damages awarded by the court. The party has to fulfil its obligation under the contract i.e. perform a certain action he promised to do, instead of just paying money for his failure to fulfil obligations under the contract. It is the guarantor who commits to pay in case of default by the person for whom he has guaranteed. The nature of relief is of specific nature since guarantor has to perform the specific obligation, which he had undertaken under the agreement i.e. pay the assured.

Contract of Guarantee

Section 126 defines the Contract of Guarantee– A contract of guarantee involves three parties. It relates to the performance of contract on behalf of the third person whereby fulfilling his obligation under the contract by the guarantor

The person who gives the guarantee is called the ‘’Surety’’; the person in respect of whose default the guarantee is given is called the ‘’Principal Debtor’’, and the person to whom the guarantee is given is called the “Creditor”. A guarantee may be either oral or written. 

Purpose of Contract of Guarantee

It enables a person to get a loan, or goods on credit or employment. Some person comes forward and ensures the lender or the supplier or the employer that he may be trusted and in case of any untoward incident, “I undertake to be responsible”.

In the old case of Birkmyr v Darnell the court said: Where a collateral guarantee arises when two persons come to shop, one of them to buy, the other to give credit, thereby promising the seller stating if he doesn’t pay I will’’. This is a collateral guarantee.

In English law, a guarantee is defined as ‘’a promise to pay for the debt, default or failure of another’’. “Guarantees are a backup when the principal fails the guarantee act as second pockets’’.

Parties

The person who gives the guarantee is called the Surety, the person in respect of whose default the guarantee is given is called the Principal Debtor and the person to whom the guarantee is given is called the Creditor.

Independent liability different from guarantee

There must be a conditional promise to be liable on the default of the principal debtor. A liability which is incurred independently of a default is not within the definition of guarantee. 

This principle was applied in Taylor v Lee where a landlord and his tenant went to the plaintiff’s store. The landlord said to the plaintiff: Mr Parker will be on our land this year, and you will sell him anything he wants, and I will see it paid.

This was held to be an original promise and not a collateral promise to be liable for the default of another and, therefore, not a guarantee.

Essential Features of Guarantee

1. Principal debt: “A contract of guarantee is a tripartite agreement which contemplates the principal debtor, the creditor and the surety’’. There should exist an independent debt. It is critical that there should be a principal debtor who has taken debt from the creditor. There can’t be a surety without a principal debtor.
2. Consideration: One of the essential elements of contract is consideration which should be present in a contract of guarantee. It can be in any form which largely benefits the principal debtor.

Illustration: A sells and delivers goods to B. C afterwards requests A to forbear to sue B for the debt for a year, and promise that, if he does so, C will pay for them in default of payment by B. A agrees to forbear as requested. This is a sufficient consideration for C’s promise. 

1. Misrepresentation and concealment: A contract of guarantee is not a contract uberrimae fides or one of complete good faith.. Where a customer had a precarious credit position. The surety wasn’t aware of this and acted as a guarantor of the customer. It was held that the bank is under no obligation to disclose this fact to the surety. However, it is the duty of a party taking guarantee to provide the surety with important facts so that he can make an informed decision. Facts which will affect his responsibility under the contract of guarantee.
2. Writing not necessary: Section 126 says that a guarantee may be either oral or written. In England, guarantee is not enforceable unless it is “In writing and signed by the party to be charged”.

The extent of the Surety’s Liability

Section 128 speaks about one of the cardinal principles relating to the contract of guarantee. It states that the liability of the surety is co-extensive with that of the principal debtor. The surety may, however, by an agreement place a limit upon his liability.

Section 128- The liability of the surety is co-extensive with that of the principal debtor unless it is otherwise provided by the contract.

Illustration- A guarantees to B the payment of a bill of exchange by C, the acceptor. The bill is dishonoured by C. A is liable not only for the amount of the bill but also for any interest and charges which may have become due on it.

1. Co-extensive: The first principle governing surety’s liability is that it is co-extensive or common with that of the principal debtor. He is liable for the whole amount for which the principal debtor is liable and he is liable for no more. Where the principal debtor acknowledges liability and this has the effect of extending the period of limitation against him the surety also becomes affected by it.
2. Condition precedent: Where there is a condition precedent to the surety’s liability, he will not be liable unless that condition is first fulfilled. Section 144 to an extent is based on this principle: Where a person gives a guarantee upon a contract that creditor shall not act upon it until another person has joined it as co-surety, the guarantee is not valid if that other person does not join.

An illustration in point is National Provincial Bank of England v Brackenbury: The defendant signed a guarantee which was intended to be a joint and several guarantees of three other persons with him. One of them did not sign. There is no agreement between the bank and the co-guarantors to dispense with his signature, the defendant was held not liable.

Proceeding against surety without exhausting remedies against the debtor

The defendant guaranteed a bank’s loan. A default had taken place, the defendant was sued. The trial court decreed that the bank shall enforce the guarantee in question only after having exhausted its remedies against the principal debtor. The Supreme Court overruled it stating that the very object of the guarantee is defeated if the creditor is asked to postpone his remedies against the surety. Solvency of the principal is not a sufficient ground for restraining execution of the decree against the surety.

Suit against surety alone

A suit against the surety without even prosecuting the principal debtor has been held to be maintainable. In this case, the creditor, in his affidavit, had shown sufficient reasons for not proceeding against the principal debtor. 

Death of Principal debtor

A suit was filed against the principal debtor and surety. The suit against the principal debtor was found to be void ab initio because of his death even before the institution of the suit. The surety was held to be not discharged.

2. Surety’s right to limit his liability or make it conditional

The surety may restrict his liability in the agreement. He can do this by expressly declaring his guarantee to be limited to a fixed amount. In such a case the surety cannot be liable for any amount beyond what is stated in the agreement. There might be a possibility that the principal debtor owes a greater amount but the surety will not be responsible for the amount exceeding what is stated in the agreement.

Impossibility of main contract

A loan for development and maintenance of bee culture was guaranteed. The surety undertook to be liable jointly and severally to pay off his instalments in case of failure on the part of the debtor. The bees died in consequence of a viral infection. There was a total failure of business. The debtor became disabled from paying instalments. The surety could not escape liability under the doctrine of impossibility of performance.

The creditor’s right to recover money from the guarantor doesn’t depend on the possibility of guarantor able to recover the amount from the principal debtor.

Continuing Guarantee 

Continuing Guarantee- A guarantee which operates on a number of transactions within a particular period, is called a ‘’Continuing Guarantee’’.

This type of guarantee includes a number of transactions over a period of time. A creditor can hold the surety responsible for the default of the principal debtor for transactions that happen within a period of time.

Illustration- A guarantees payment to B, a mobile dealer, to the amount of $100, for any mobile he may supply to C as required by C over a period of time. B supplies C with mobile above the value of $100, and C pays B for it. Afterwards B supplies C with mobile to the value of $200 . C fails to pay. The guarantee given by A was a continuing guarantee, and he is accordingly liable to B to the extent of $100.

The essential feature of a continuing guarantee is that it doesn’t restrict to a specific number of transactions, but to any number of them and makes the surety liable for the unpaid balance at the end of the guarantee.

In Chorley & Tucker the distinction is explained: “A specific guarantee provides for securing of a specific advance or for advances up to a fixed sum, and ceases to be effective on the repayment thereof, while a continuing guarantee covers a fluctuating account such as ordinary current account at a bank, and secures the balance owing at any time within the limits of the guarantee…’’

A guarantee for the conduct of a servant appointed to collect rents has been held by the Calcutta High Court to be a continuing guarantee.

Joint -Debtors and suretyship

Section 132- This Section speaks about a situation when there are two guarantors who are liable to the creditor as joint-debtors. It says that the liability of the creditor is not affected by any private arrangement (Order of their liability) between the two debtors regarding one being the surety of the other even if the creditor knows of this arrangement. The creditor is not concerned with their mutual agreement that on would be a principal and the other surety.

Discharge of Surety From Liability 

When the surety is no longer liable under the agreement the surety is said to be discharged from liability. 

The Act recognises the following modes of discharge:

• By Revocation (Section-130)Revocation of continuing guarantee: The surety can revoke continuing guarantee by notifying the creditor with respect to the future transactions. 

Revocation becomes effective for the future transactions while the surety remains liable for transactions already entered into.

Illustration- A guarantees for B making purchases from C to an extent of 10000rupees. After one month A revokes guarantee by giving notice to C. A will be liable for the supplies till the point he revoked his guarantee. Let’s say until revocation C supplied B with goods worth 6000rupees. A is under obligation to pay 6000 to C.

• By death of surety (Section 131): A continuing guarantee is also terminated by the death of the surety unless parties have expressed contrary intention.The termination is only with respect to the future transactions and the heirs of surety are liable for transactions that have already taken place. 
• By variance (Section 133)- The contract of guarantee once formed becomes a contract of utmost good faith. This duty is imposed on the creditor. The surety is held discharged when, without his consent, the creditor makes any charge in the nature or terms of his contract with the principal debtor. ‘’The surety is discharged as soon as the original contract is altered without his consent’’.
• Discharge of surety by release or discharge of principal debtor (Section 134) – A surety can be discharged if there is any contract between principal debtor and the creditor, which releases the principal debtor. Any act or failure on creditor’s part which has the legal effect of discharging the principal debtor also absolves surety.

Illustration- A contracts with B for a fixed price to build a house for B within a given time, B supplying the necessary timber, C guarantees A’s performance of the contract. B omits to supply the timber. C is discharged from his suretyship.

• Release of principal debtor: The Section provides for two kinds of discharge from liability. The first one where creditor enters into an agreement with the principal debtor by which the latter is released, the surety is discharged. Where the creditor arrives at a compromise and releases the principal debtor, the surety is likewise released. 
• Act or omission: The second scenario envisaged by the Section is when the creditor does ‘’any act or failure the legal effect of which is the absolve the principal debtor,’’ the surety would also be released from his liability. For example, Where the payment of rent due under a lease is guaranteed and the creditor terminates the lease, the effect would be the release of the surety also. 

Discharge: (Section 135) Discharge of surety when creditor compounds with, gives time to or agrees not to sue principal debtor-. A contract where the creditor and principal debtor arrive at an arrangement which results in creditor making a composition with grants principal debtor with more time or undertakes not to sue the principal debtor absolves the surety. For this to operate the surety shouldn’t have assented to this arrangement between creditor and principal debtor.

The Section provides for three modes of discharge from liability: 

• Composition 
• Promise to give time, and 
• Promise not to sue the principal debtor 

Composition 

If the creditor makes a composition with the principal debtor, without consulting the surety, the latter is discharged. Composition results in altering the original contract, and, therefore, the surety is discharged. 

For Example- A settlement was entered into between the principal borrower and bank for one-time settlement without reference to the guarantor. The court said that this resulted to novation of the contract between the creditor and principal debtor to the exclusion of guarantor. The liability of the guarantor ceased to exist. 

Promise to give time- Promise to give time: when there is a fixed time, according to the agreement for the repayment of the debt. It is one of the duties of the creditor towards the surety not to allow the principal debtor more time for payment. Although, giving time to the principal will benefit the surety but it will be against the spirit of the contract of guarantee, without the consent of the surety. 

Thus, where the principal debtor was to make payment for gas supplied within fourteen days and on one occasion he having failed to pay, the supplier took a promissory note from him, this amounted to extension of time and thereupon the surety was discharged. 

By impairing surety’s remedy (Section 139): The creditor shouldn’t act in a way which is prejudice to surety’s interest. The remedy of the surety shouldn’t be affected by creditor’s action otherwise surety may be discharged.

It is one of the fundamental duties of the creditor not to do anything inconsistent with the rights of the surety. A surety after paying off the creditor, to secure his payment from the principal debtor. 

This responsibility also directs the creditor to preserve the securities, if any, which he has against the principal debtor. 

In Darwen&Pearce, The principal debtor was a shareholder in a company. His shares were partly paid and the payment of the unpaid balance was guaranteed by the surety. The shareholder defaulted in the payment of calls and the company forfeited his shares. 

By reason of the forfeiture, the shares became the property of the company. If they had not been forfeited they would have belonged to the surety on payment of the outstanding calls. Thus, the forfeiture deprived the surety of his right to the shares and he was accordingly discharged. 

Rights of Surety

Rights against the principal debtor 

Right of Subrogation(S.140): 

Rights of surety on payment or performance- The surety after paying the creditor or fulfilling his obligation under the contract takes the place of the creditor. He has all rights vested in him which the creditor had against the principal debtor.

When the surety has carried out all his obligations under the contract, he is conferred with all the rights which the creditor had against the principal debtor. The surety steps into the shoes of the creditor.

In Babu Rao Ramchandra Rao v Babu Manaklal Nehmal: “If the liability of the surety is coextensive with that of the principal debtor, his right is not less coextensive with that of the creditor after he satisfies the creditor’s debt’’.

Rights before payment

The surety may possess certain rights even before payment. We have a case where the Calcutta High Court decided on similar lines. The surety found that the amount had become due, the principal debtor was disposing of his personal properties one after the other lest the surety, after paying, may seize them and sought a temporary injunction to prevent the principal debtor from doing so. The court granted the injunction. 

2. Right to indemnity:

Section (145) Implied promise to indemnify surety- In every contract of guarantee, there is an implicit promise by the principal debtor to save the surety from harm. The surety is entitled to claim from the principal debtor whatever sum he had agreed to pay under the guarantee, but no sums which he wasn’t obligated to pay under the contract. 

Illustration: A guarantees to C, to the extent of 2000 rupees, payment for the rice to be supplied by C to B. C supplies to B rice to a less amount than 2000 rupees, but obtains from A payment of the sum of 2000 rupees in respect of the rice supplied. A cannot recover from B more than the price of the rice actually supplied. 

Rights Against creditor

• Right to securities- Surety’s right to benefit of creditor’s securities(Section 141): Surety has a right over the security which the creditor has in his possession at the time when the contract of guarantee was constructed. It doesn’t matter whether surety was aware of the security or not. The creditor, if without the consent of the surety gets rid of the security, the surety’s obligation is reduced to the extent of the value of the security disposed of.

The Section identifies the general rule of equity as observed in a case that the surety is entitled to redress which the creditor has against the principal debtor, including enforcement of every security. 

On paying off the creditor the surety is exactly in the same positions as the creditor was against the principal debtor. The right exists irrespective of the fact whether the surety knows of the existence of such security or not. 

The plaintiffs lent to B and P, who were traders, $300 for the payment of which the defendant became surety. At the time of the loan B and P assigned by deed as security for the debt, the lease of their business premises and plant, fixtures and things thereon. The plaintiff had the right to sell on default by giving a month’s notice. The default took place, but the defendant did not enter into possession. He received notice of the debtor’s insolvency but allowed them to continue in possession. Consequently, the assets were seized and sold by the receiver. It was held that the plaintiffs, by their omission to seize the property assigned on default, had deprived themselves of the power to assign the security to the surety. He was, therefore, discharged to the amount that the goods were worth. 

1. Right of set-off: If the creditor owes anything to the principal debtor, the amount owed can be adjusted in the creditor’s claim against the surety. The surety can charge from the amount to be given to the creditor if the creditor has to pay the principal debtor back.
2. Right to share reduction:Reduction here refers to insolvency. A gives loan to B, C is the guarantor. Subsequently, B becomes insolvent. The property of B is attached to recover the loan he had taken. The official receiver in this particular case will create a list of creditors and pay them proportionate to the sum lent by them. The surety can ask the receiver about the amount given to A. The amount received by A through this process can be deducted by the surety.

For example, B was given the loan by the A of rupees 10,000/-, C, who is a surety in this contract gave a guarantee. A, became insolvent and when his property and assets was realised, when it was distributed by the official receiver and assignee, A got 1,000/- rupees. Now surety who is C in this case when he will make a payment to the A of rupees 10,000/-will ask the A to deduct the rupees 1,000/- which he has received from the official receiver and assignee. This right is the right available with the surety and it is known as a right to share reduction.

Right against Co-sureties

Where a debt has been guaranteed by more than one person, they are called co-sureties. 

• Effect of releasing a Surety( Section 138): Release of one co-surety does not discharge others– If there are co-sureties involved and one of them is released by the creditor, the others are still liable and the surety so released is responsible to other co-sureties in the event of default.

The released co-surety will remain liable to others for contribution in the event of default.

• Right to contribution( Section 146): Co-sureties liable to contribute equally-.This Section says when there are two or more co-sureties then each has to contribute equally to the debt or a part of the debt. If there is no inconsistent agreement between the co-sureties.

Illustration: A and B are co-sureties for the sum of 2000 rupees which has been given to D by the bank. D defaults, A and B are liable 1000 rupees each among themselves.

• Liability of co-sureties bound in different sums: Co-sureties who have different obligations with respect to the amount is liable to pay equally as long as it isn’t beyond their respective obligation.

Illustration: A, B and C as sureties for D, enter into three several Bonds each in a different penalty, namely, A in the penalty of 10,000 rupees, B in that of 20,000 rupees, C in that of 40,000 rupees, conditioned for D’s duly accounting to E. D makes default to the extent of 30,000 rupees. A, B and C are liable to pay 10, 000 rupees.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

The post A guide to Contract of Guarantee appeared first on iPleaders.

This article is written by Shruti Goel, a 5th-year student of B.L.S LLB in Government Law College, Mumbai. This article is about the Right to equality under the Indian Constitution. 

Introduction

Part III of the Indian Constitution guarantees certain basic rights to all the citizens of India irrespective of their caste, race, birthplace, religion or gender. These basic rights are known as Fundamental Rights which are justifiable. Dr. B. R. Ambedkar referred these as the most citizen part of the constitution. These are deemed an essential part of the constitution as they protect the rights and liberties of the citizens of the country against any misuse or intrusion by the government with the power delegated to them in a democracy. These are the negative obligations of the state and citizens. These rights try to achieve the goals set out in the Preamble, of justice, liberty, equality, fraternity, and dignity.

The fundamental rights are classified under six heads under the constitution:

1. Right to equality (Art. 14 – Art 18)
2. Right to freedom (Art. 19 – Art 22)
3. Right against exploitation (Art.23- Art. 24)
4. Right to freedom of religion (Art 25- Art.28)
5. Right to minorities (Cultural and educational rights) (Art 29- Art 30)
6. Right to constitutional remedies (Art. 32 – Art. 35)

Here, we are going to discuss in detail the provision of the Right to equality embedded in Article 14 to Article 18.

What is Right to equality?

“As long as poverty, injustice and gross inequality persist in the world, none of us can truly rest” – Nelson Mandela

Democracy can only thrive and flourish where the individuals in the society are treated equally and without discrimination. Thus, it was felt by the framers of the Constitution to incorporate such provision to remove the hurdle of existing social and economical inequalities and enable the diverse communities of the country to enjoy the rights and liberties guaranteed under the constitution. It was believed to be essential to remove inequalities based on religion, social norms, age-old traditions practiced in parts of India, like untouchability, casteism, race discrimination, etc. 

• The Right to equality means the absence of legal discrimination only on grounds of caste, race, religion, sex, and place of birth and ensures equal rights to all citizens. 
• It is considered basic feature of the Indian Constitution.
• The Right to equality is both a positive equality as well as a negative right.

                                         RIGHT TO EQUALITY                                                       Positive Right       ⇔      Negative Right

(demands to be treated equally)                                           (prohibits unequal treatment)                                                                                                    treatment)

Under the Indian Constitution, Right to equality is divided under the following subheadings:

1. Equality before law (Article 14)
2. Prohibition of discrimination on grounds of religion, caste, race, sex or place of birth (Article 15)
3. Equality of opportunity in matters of public employment (Article 16)
4. Abolition of untouchability (Article 17)
5. Abolition of titles (Article 18)

Under the Right to Equality, Article 14 provides a general application whereas Art. 15, Art. 16, Art. 17 and Art. 18 have a specific application. 

Right to equality under Article 14

‘The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.’

• Article 14 tries to achieve ‘equality of status’ for all people.
• It aims at establishing the ‘rule of law’ in India.
• This guarantee available to both citizens and non- citizens.
• It applies to all persons, natural as well as juristic.

Right to equality (Article 14)

Equality before the law    ⇔ Equality protection of laws                     

Equality before law

• It is taken from English Common law.
• This implies the absence of any special privileges in any person.
• Implies no discrimination before the law on inapposite grounds like rank, office, etc.
• It means that “the law should be equal and should be equally administered, that like should be treated alike.” (JENNINGS)
• States that every individual is subject to the jurisdiction of ordinary courts irrespective of their rank or position.

Equal protection of the laws

• It is corollary from equality before the law.
• It is based on the last clause of the first section of the 14th Amendment of the US Constitution.
• It directs that equal protection should be secured to all persons within the territorial jurisdiction.
• This implies that such protection should be without any favor and discrimination.
• This implies equal treatment in similar circumstances, both in the privileges and liabilities imposed by the law.
• It is a positive obligation of the state which it should achieve by bringing about necessary social and economic changes, to ensure every person enjoys such equal protection.

Rule of law

The principle of Article 14, ‘equality before the law’ to a large extent based on the concept of Rule of law as coined by A. V. Dicey. It states that all individuals, government and other institutions should obey and be governed by law and not by any arbitrary action by an individual or group of individuals. Whatever be the rank or position of a person, he should come under the jurisdiction of ordinary courts and not of any special courts. It also states that governmental decisions should be based on legal and moral principles embedded in the supreme law, in the case of India, the Indian Constitution. This theory of Dicey has three pillars, they are:

1. Supremacy of law

There should be an absence of arbitrary power and that no person should be punished except for a breach of law. An offense should be proved by the authorities of the country before the ordinary courts to punish him according to legal procedure.

2. Equality before law

All individuals, irrespective of their rank or position (poor or rich, officials or non-officials, etc.) should be subjected to ordinary law of land which is administered by ordinary courts. It seeks to ensure that law is administered and enforced in a just and fair manner. It has also been embedded in Preamble and Article 7 of the Universal Declaration of Human Rights. It implies ‘law gives equal justice to all’.

3. The Predominance of legal spirit

Dicey believed that there should be an enforcing authority to enforce effectively the above two principles. According to him, such enforcing authority should be ‘courts’.

Exceptions to Rule of law

• Delegated Legislation

Parliament neither have the time to go into minute details of every law, nor the diverse technical expertise which is needed for complicated and specific laws. Thus, parliament designs the framework and outline principles and objectives of the bill and extensive details and rules are afterward added by the cabinet and the executive.

• Administrative adjudication

Parliament has established certain tribunals and department which are equipped with some judicial and quasi judicial powers to decrease the burden of traditional courts and also to provide with technical knowledge required to adjudicate such cases. Establishment of such tribunals and departments are a departure from the traditional notion of rule of law.

The framers of the Constitution intended that India should be governed by the rule of law. Thus, traces of rule of law can be found in the Preamble, fundamental rights and other articles of the constitution.

Underlying Principle

The underlying principle behind the right to equality is not the same treatment to all but the equal treatment to the aspects which are similar and different treatment to the aspects which are different because not all humans are similar in every aspect.

To remove inequalities, there needs to be some reasonable classification of humans so that policies can be formulated accordingly which can help diminish inequalities as far as possible. It is the duty of the State to diminish inequalities by making certain socio-economic policies in favor of those who according to State need such benefits for their upliftment. But, it should be noted that all humans should be treated humanely and there should not be any classification on the basis of the humane aspect of the individuals. To achieve the objectives behind the provisions of Article 14, equals should be treated equally and unequal should be treated differently and for that reason, legislative classification is necessary.

Legislative Classification

For effective implementation of laws, it is necessary for legislation to group individuals according to their equal and unequal aspects. Such classification is necessary because not every law has universal application to all persons, the reason being the differences in social, cultural and economical conditions. Varying needs of different individuals require to be differently approached by the law. For public welfare, property, person, and occupations require appropriate legislation to make certain that different needs are dealt with differently. In fact, general treatment of unequal conditions might lead to inequalities in society. Thus, such special classification by the legislature on reasonable grounds becomes necessary to reduce inequalities in society. There are many instances of such special laws applying only to a particular class or classes of people like Delhi Special Police Act 1946 (applying particularly to the occupation of police), Minimum Wages Act 1948 (applying to minimum wage system of certain employments), etc. Article 14 permits reasonable classification but prohibits class classification.

Test of valid classification

• The classification must be just and reasonable and should be in relation to the need and purpose of law in respect of which classification is made.
• The object of classification should be lawful. In the case of Subramanian Swamy v.CBI, it was held that ”if the object itself is discriminatory, then the explanation that classification is reasonable having a rational relation to the object sought to be achieved is immaterial.”
• When certain classes of individuals are not included in the ambit of a particular law, there must be a reasonable basis for such exclusion. 
• A test was formulated to ensure that the classification is valid and is not arbitrary or against the right to equality. Following two conditions should be fulfilled for a valid classification:
• Intelligible differentia (Intelligent reason for classification)

1. Intelligible differentia means difference which is apparent and capable of being understood.
2. Classification distinguishing persons or things that are grouped together from others left out of the group should be based on an intelligent reason.
3. Classification must be based on a just objective to be achieved.

(2) Rational Nexus (Relationship between classification and desired result)

1. The differentia must have a rational relation to the object of the statute in question.

Application of article 14

Certain important principles have been laid down in some landmark judgments to further explain the concept of Article 14 and legislative classification. Some of which are mentioned below.

I. Single person laws

• Charanjit Lal Chowdhury v. Union of India 
• Facts- Central Government issued an ordinance which later became an Act named ‘The Sholapur Spinning and Weaving Co. (Emergency provision) Act 1950’ when due to mismanagement and neglect of the company a mill was closed. The action of the company led to the scarcity of essential commodities in the country apart from unemployment and unrest. 
• Argument- it was augmented by the petitioner that the Act was violative of Article 14 because a single company was subjected to disabilities.
• Supreme court dismissed the petition and held that a law can be constitutional even though it relates to a single individual if, on account of some special circumstances, or reasons applicable to him and not applicable to others, that single individual can be treated as a class by himself.

II. Classification without a difference

• P. Rajendran v. State of Madras
• Facts- There is a provision relating to district-wise seat distribution in the State Medical colleges according to the proportion of population in a district to the total population of the state.
• The Court struck down the provision and held that any scheme of admission should be devised to select the best available talent for admission as it is discriminatory to select a less talented candidate against a talented candidate just on a population basis. The district-wise seat distribution doesn’t meet the objective.

III. Special courts and procedural inequalities

• Maganlal Chhaganlal (P) Ltd. v. Municipal Corpn. Of Greater Bombay
• Facts- Validity of certain provisions of amended Bombay Municipal Corporation Act 1888 and of Government Premises (Eviction) Act 1955, was questioned as certain powers were conferred by the said acts on the authorities to proceed with special eviction proceedings against the unauthorized occupants of the governmental and corporation premises. 
• Argument – Availability of two procedures, one under CPC and one under the above two acts, with no guidelines as to which to follow. Thus, in violation of Art 14.
• SC held that when the statute authorizes the executive to make classification, some guidance should be provided by such statue whether in form of Preamble or objectives or other analogous provisions. When sufficient guidance is provided by the act, it is sufficient indication for authorities to proceed under the special procedure according to objective of the Act and not according to procedure of the ordinary civil court. Thus, the act cannot be struck down only because it provides for special procedure.

IV. Procedural fairness

• Maneka Gandhi v. UOI’1978
• Facts- Maneka Gandhi was issued a passport under the Passport Act 1967. The regional passport officer, New Delhi, issued a letter addressed to Maneka Gandhi, in which she was asked to surrender her passport under section 10(3)(c) of the Act in public interest, within 7 days from the date of receipt of the letter. Maneka Gandhi immediately wrote a letter to the Regional Passport Officer, New Delhi seeking in return a copy of the statement of reasons for such order. However, the Ministry of External Affairs refused to produce any such reason in the interest of the general public.
• SC held that Article 14 requires observance of principles of natural justice and the requirement of reasoned decisions.

 V. Administrative discretion 

• When classification is left to the discretion of the executive in a statue, certain guidelines or policies should be there as to how to exercise such discretion in the statue. 
• If no guidelines are given such an act will be held violative of Article 14 and such legislation would be struck down by the court.
• It is not necessary for the legislation to expressly lay down such guidance, it can be inferred from its Preamble, objectives and other analogous provisions.

VI. Basis of Classification

• Classification can be based on geographical or territorial grounds, historical considerations, nature and position of a person, nature of the business, reference of time, object of the law, etc.
• Provided that the classification has a nexus with the object of the legislation.
• Case Law- P. Rajendran v. State of Madras as discussed above.

VII. Expanding horizons of equality

• According to recent trends in the judgments of the Supreme Court, the reasonableness of the State action is required to meet the demands of Article 14. It is the duty of the State to make policies and laws which try to diminish inequalities and make equal opportunities available to those who are equal and different for those who are unequal.

Prohibition of discrimination on grounds of religion, caste, race, sex or place of birth (Article 15)

Discrimination on the grounds of religion,race,etc.

ARTICLE 15(1)

‘The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.’

• It is available against State
• Protection under this provision can be taken by any citizen when he is subjected to discrimination in relation to any rights, liabilities or privileges conferred to it by the constitution.
• Nain Sukh Das v. State of U.P

Supreme Court quashed a State law that approved elections on the basis of separate electorates for members of different religious communities as such discrimination was based on religion.

• A cause of action is available only when such discrimination is on the above-mentioned grounds, and when discrimination is not based on the above mentioned ground, the law is considered to be valid.

Religious or racial disabilities in connection with access to shops, tanks ,etc.

ARTICLE 15(2)

‘No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to-

(a) access to shops, public restaurants, hotels and palaces of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.’

• Word ‘shop’ is construed in a generic sense and will include every place where goods are sold or services are rendered.
• It should be noted that under Art. 15(2)(b), a cause of action arises only when such facilities are maintained wholly or partly by State funds or dedicated to the use of the general public.
• This guarantee is available only when such discrimination is on above-mentioned grounds only and if such grounds are not the basis of discrimination law will be considered valid.
• R. C. Poudyal v. Union of India 

The court upheld the reservation of one seat in State Legislative Assembly in favor of Sangha contending that it is not just a religious community but also a cultural and historical community. It was asserted that it was the effect and operation of the law which is important to find out if there are any grounds of discrimination rather than its purpose or motive.

Special provisions for women and children

ARTICLE 15(3)

‘Nothing in this article shall prevent the State from making any special provision for women and children.’

• It implies that the Parliament has the right to make special provision.
• This article is an exception to the rule against discrimination.
• The intention of the framers of the constitution was to protect the interests of children and women because these sections were considered comparatively weaker sections of the society and the need for such provision was felt for their upliftment.
• The language of the clause is in absolute terms and gives the power to State to make any special provisions and laws for the protection of their interest. Such special provisions are not restricted in any sense and need not be measures that are beneficial in a strict sense.
• Rajesh Kumar Gupta v. State of U.P

In the selection of primary school teachers, reservations of up to 50 percent for women was upheld by the court.

• Reservation- Widest possible interpretation should be given to these provisions for the upliftment of women and children, provided that such reservation doesn’t exceed 50 percent of the total.

Special provisions for socially and economically backward classes

ARTICLE 15(4)

‘Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.’

• Added by the Constitution (1st Amendment) Act 1951 as a result of the judgment of Supreme Court in State of Madras v. Champakam Dorairajan
• It doesn’t force the State to take any specific action for its fulfillment. It is just an enabling section.
• This guarantee is available only to citizens of India.
• For the application of this provision following two issues should be taken into consideration first:
• Determination of Backward classes

1. The definition of ‘backward classes’ is not given anywhere in the Indian Constitution.
2. However, Art. 340 in the constitution empowers the President to constitute a commission to look into the matters and conditions of socially and economically backward classes
3. It was held time and again by the Supreme Court that caste cannot be the only criterion in the determination of the class. Caste can be one of the factors of determination of class of SEBC’s but not the sole dominant factor.
4. Poverty also cannot be the sole factor for the determination of the class of SEBC’s. All other factors should be taken into consideration while determining such class.

2) Quantum of reservation of such classes

• M. R. Balaji v. State of Mysore

It was held in the given case that reservation of 68 percent made by the impugned order is inconsistent with Article 15(4) as it only enables the government to make special provisions and not exclusive provisions.

It was contended that national interest would suffer if competent and talented students are excluded from taking admissions in higher education.

• T. Devadasan v. Union of India

‘Carrying forward’ rule of unfulfilled quota to the next two succeeding year was adopted by the Central Government in the Central services for SC’s and ST’s, if suitable candidates were not available. It was invalidated because the accumulation of the unfilled quota resulted in 64 percent in the present case. It was construed that an exception cannot substantially dilute the general rule as Article 15(4) is considered an exception to Article 15(1).

• State of Kerala v. N. M Thomas

The exemption was given to SC’s and ST’s from passing a departmental test for some years for the purpose of their promotion in the department. In a particular year, the reservation for them was 68 percent.

The court upheld the exception stating that Article 15(4) is not an exemption to Article 15(1). Rather, Article 15(4) is a direction to the State to enforce the concept of equality in society. The State could make adequate reservations for the upliftment of its citizens.

• Indira Sawhney v. Union of India (Mandal Commission Case)

It was held in this case that except for any extraordinary circumstances, total reservation should not exceed 50 percent. Moreover, such quota will not include those SEBC’s who get selected on merit and will be adjusted towards the open category.

Such limit only applies to the reservation and not to concessions, exemptions, and relaxation.

‘Carry forward’ rule is permissible as long as the limit is observed.

 Reservation to educational institutions

ARTICLE 15(5)

‘Nothing in this article or in sub-clause G of clause 1 of Article 19 shall prevent the state from making any special provisions, by law, for the advancement of any socially and educationally backward classes of citizens and scheduled castes or tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the state, other than the minority educational institutions referred to in clause 1 of Article 30.’

• It was added by the Constitution (93rd Amendment) Act’ 2006
• Special provisions can be made after this amendment only by law and not by executive action.
• Central Educational Institutions (Reservation in Admission) Act 2006 was introduced after this amendment. A petition was filed challenging the validity of the act and of the amendment stating that such provision is violative of Art. 15(4). It was held by the court that such provision and act doesn’t invalidate Article 15(4) of the constitution.
• The court suggested review of the reservation after every 10 years and negated the notion of application of the provision of time limit to the Act of reservation.

Equality of opportunity in matters of public employment (Article 16)

(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of , any employment or office under the State.

(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to any office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.

(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

[(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion with consequential seniority to any class] or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.]

[(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty percent . reservation on the total number of vacancies of that year.]

(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.’ 

Article 16(1)

• Equal opportunity should be there in matters relating to employment and appointment to any office under the State for all citizens.
• It provides only the right to equal ‘opportunity’ which means it confers only a right to be considered for such employment and appointment to any office of the State.
• There is no rule of equality between separate and independent classes of services.
• Requisite conditions and qualifications can be laid down by the State required for a particular designation. 
• The selection procedure for such employments and appointments should not be arbitrary and should be based on some reasonable grounds.
• Guarantee of employment in this clause also covers:

1. Initial appointments
2. Promotions
3. Termination
4. Matters relating to salary, gratuity, pensions, etc.

• Guarantee of appointment in this clause also covers: Termination or removal from services.

• Article 16 is a facet of principle of right to equality enshrined in Article 14 as stated in Indra Sawhney v. UOI case by SC. Thus, enables reasonable classification by the State for providing opportunities for the upliftment of backward classes.

Article 16(2)

• Prohibits discrimination in respect of any appointment under the State on the grounds of

1. Religion
2. Race
3. Caste
4. Sex 
5. Descent
6. Place of birth
7. Residence

• It is available only against public employment.
• Private bodies can employ on the basis of grounds prohibited in this section.
• B. Venkataramana v. State of Madras

Reservation of posts in favor of Hindus, Muslims, and Christians was held to be violative of Art. 16(2).

Article 16(3)

• Parliament is conferred with the power to regulate the extent to which State can depart from the law laid down in clause (2).
• Such power is restricted only to State appointments and not the Union appointments.

Article 16(4)

• Reservation of appointments or posts for any backward classes which in the opinion of State not adequately represented in the services under the State.
• It can only be exercised to reserve posts for ‘backward class’.
• As there is no definition of backward class in the Constitution, it has been left on the State to determine whether a particular class is backward or not, provided, it is based on some reasonable criteria. If it is based on irrelevant considerations, it can be challenged in court.

Article 16 (4-A)

• It was added by the Constitution (77th Amendment) Act, 1995
• It was added after the Mandal Commission case, to make the judgment inapplicable on SCs and STs.
• It provides reservations with respect to promotions in favor of SCs and STs.
• It is an enabling section and is not a fundamental right and the state should try to balance it with Art. 14 and Art 16(1).

Article 16 (4-B)

• It was added by the Constitution (81st Amendment) Act, 2000.
• It was introduced to overcome the disability of the State to make special recruitment drives after the Mandal Commission case.
• Introduced the exception to 50 percent limit for the purpose of filling the backlog vacancies.
• It is not just confined to SCs and STs.

Article 16(5)

• Appointments related to posts of religious institutions may be restricted to persons of that particular religion and will not be considered violative of Article 16(1).

Abolition of Untouchability (Article 17)

‘“Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “Untouchability” shall be an offense punishable in accordance with the law.’

• The word “untouchability” in this clause has been used in inverted commas which indicates that word should not be construed in a literal or grammatical sense but with reference to its historical background in the country.
• Under Art. 35 of the constitution, Parliament has been given the power to make laws prohibiting such acts of untouchability.
• Exercising the powers and duties conferred in Art. 17 and Art. 35, the following acts, were made by Parliament from time to time:

            In 1955- Untouchability (Offences) Act’1955 

⇓

                                                            (punishments under the act were felt inadequate)

In 1965, Committee on Untouchability, Economic and Educational Development of SCs

⇓

                (to recommend amendments to present Act)

In 1976, Act was amended and renamed as “Protection of Civil Rights Act’1955”. (‘Civil Rights’ were defined in the act as any  right accruing to a person by reason of abolition of untouchability under Art.17.) 

Abolition of titles (Article18)

‘(1)No title, not being a military or academic distinction, shall be conferred by the State.

(2)No citizen of India shall accept any title from any foreign State.

(3)No person who is not a citizen of India shall, while he holds any office of profit or trust under the State, accept without the consent of the President any title from any foreign State.

(4)No person holding any office of profit or trust under the State shall, without the consent of the President, accept any present, emolument, or office of any kind from or under any foreign State.’

• Balaji Raghavan v. Union of India

The constitutional validity of four awards introduced by Government of India which are, Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Shri was challenged before the court. SC upheld the constitutional validity of these award stating that such awards don’t violate the provisions of Art. 18 as they do not come under the ambit of titles. It held they could not be added as a prefix or suffix to the names of the awardees.

Conclusion

The right to equality is considered basic feature of the Indian Constitution and plays an important role in achieving social and economic justice in our society where upliftment of certain classes is considered necessary for our country to flourish. Its emphasis on the fundamental unity of individuals by providing equal opportunities and treatment to all. All other privileges and liberties follow from the right to equality. It provides every individual of the country with all the elements essential for the development of its personality.

Thus, courts that are considered the guardians of the Constitution make certain that the right to equality is construed in widest connotation so as to achieve the ends intended by the framers of the Constitution. 

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

The post Right to Equality : A Fundamental Right appeared first on iPleaders.

This article is written by Suryash Kumar, graduated from Bangalore Institute of legal studies. The article talks about the various aspects of Doctrine of frustration.

Origin of the Doctrine of frustration

The doctrine of frustration of contract owes its origin to Roman law. Its application was seen in the Roman Contract law, where the parties were discharged because the thing has been destroyed or the purpose of the contract has become unattainable.

The Origin of Frustration of Contract is closely related to the English Rule: Subsequent impossibility of performance cannot be a valid defence by the defendant in cases of breach of an obligation under the contract. This rule was laid down in: Paradine vs Jane, 1647 (82) ER 897: 1647 Alyen 26. Brief facts of the case are: Jane was sued for rent due to Paradine. The defendant argued that the German Prince had invaded the area where the property was situated (Occupied the property), therefore he couldn’t use the property to make any profits. He had planned to pay the rent out of the profits which he would have made, had he used the property.

The defence was not held valid; as the obligation under the contract was absolute with no exception whatsoever. Though the defendant’s proposition was a reasonable and strong one- he couldn’t have done anything about the situation- the Judge held that responsibility under the contract should be honoured under all circumstances.

The Doctrine of frustration was evolved as a response to the aforementioned doctrine. There were cases where the contract couldn’t be performed through no fault of the defendant, and the rigidity of the English rule was found to be unreasonable, unfair, hence an exception to this rule was necessary. The doctrine of Frustration was incorporated in the contract law as a remedy to the above situation.

Meaning

A contract is an agreement or set of obligations to be fulfilled by the parties to the contract. Sometimes, subsequent to the construction of contract an unforeseen circumstance may arise, which render the performance of the contract impossible. The object of the contract ceases to exist. This change in circumstance is not caused by the parties and it changes the nature of obligations, different from what was contemplated by the parties.

As with most laws in India, the contract act is influenced by English laws/doctrines(The act was passed when India was under colonial rule), this doctrine constitutes the Indian Contract Act,1872, as Section 56 (Agreement to do impossible act). 

It speaks about two impossibilities i.e. Initial impossibility and Subsequent Impossibility. Initial impossibility undergirds the fundamental proposition that ‘’An agreement to do something that is intrinsically impossible is void’’. For example, an agreement to bring a person back to life who is dead, being impossible of performance, is void.

Subsequent Impossibility as the term suggests something that happens later, i.e. after the parties have got into a contract. Sometimes, it happens that at the time when the contract was constructed, the performance of the contract wasn’t an issue, but subsequently, because of the change in circumstances or factors, the performance becomes impossible or unlawful. An example here would be where a contract is made for the import of goods, and the import is thereafter forbidden by a Government Order.

Application of Doctrine under different scenarios:

In Taylor vs Caldwell, the court pointed out that the rule stated in Paradine vs Jane ‘’is only applicable when the contract is positive and absolute, and not dependent on any contingency either explicit or implicit’’.

 Facts were as follows: the defendants agreed to let the plaintiffs operate on their premises for a concert. Subsequently, before the scheduled concert the premise was destroyed by fire without any fault of either party. It was held that the contract was not absolute, because its performance depended on the existence of the hall. It was, therefore, ‘’subject to a tacit understanding that the parties shall be expunged in a case, preliminary to breach, accomplishment becomes impossible from the exterminating of the thing without fault of the contractor’’.

This decision brought to the fore- the constant struggle between two conflicting doctrines-the principle of inviolability of contract which supports the principle of the paramountcy of contract and the principle that a contract is discharged when the common object or assumption has been annihilated by certain happenings or incidents.

Not Limited to Tangible Things 

Furthermore, Krell v Henry (Coronation case) highlights that the above principle is not restricted to physical impossibilities. It also extends to cases where the performance of the contract is achievable tangibly, but the purpose for which the parties had constructed the agreement has failed to materialise. To better illustrate this point, we should discuss the facts of Krell v Henry, which are:

The defendant agreed to rent a flat from the plaintiff for two days, on which days it had been announced that the crowning would take place, and, therefore, a parade would pass along that place. Some portion of the rent was paid before the event. Later, the parade was dropped because the King was ill, the defendant objected to pay the remaining amount.

The court concluded that the real intention of the parties, which was given effect by the contract, was to have a view of the parade. This was the cornerstone of the contract; With the Coronation process not taking place on the given date, the object of the contract was frustrated. As a result, the plaintiff was not qualified to recover the balance of the rent. It is a perfect example of the court not restricting itself to physical possibilities.

Frustrating Events

1. Destruction of subject-matter: The doctrine applies where the actual and specific subject-matter of the contract has ceased to exist. Taylor vs Cadwell best illustrates this point.
2. Supervening illegality: Performance of the contract becomes impossible in the manner and the time contemplated ensuing from the change in circumstance. If the legislature passes law after the contract is constructed to deal with the changed situation, which makes the contract frustrated. A, a company in India dealing with exports and imports of dry fruits. A gets into an agreement with B, a supplier of dry fruits in Pakistan. Subsequently, war breaks out between India and Pakistan, as a result, the legislature passes a law, thereby making the imports from Pakistan illegal, the contract is frustrated by supervening illegality. 
3. Death or Incapacity of Party: When there is a contract that depends on the particular skill or specific act of the promisor, his death or incapacity terminates the contract. A classic case on this point would be Robinson vs Davison: A contract between the plaintiff and the defendant’s spouse(famous pianist), that she will be performing i.e. playing the piano at a concert organized by the plaintiff on a particular day. On the morning of the said day, she apprised the defendant that she was ill, and will not be playing the piano. The concert had to be postponed and this was a loss for the plaintiff. The court dismissed the case stating that she had the option to not play if she was sick to do so. The contract was clearly contingent on the fact that she was well enough to perform.
4. Delay: The contract can also be frustrated by the inordinate delay. However, the delay must be serious which defeats the purpose of the contract. In Bank Line Ltd v Arthur Capel & Co where the ship was to be chartered for 12 months from April 1915 to 1916. The vessel was requisitioned until September 1915. It was held that the contract was frustrated by the delay. Freights had risen and it would be unfair to the owner if the old contract was enforced.

Limits of the Doctrine

The norm is that the parties will be held responsible for breach of the obligation under the contract and the parties getting discharged due to frustration is an exception. Acting in consonance with this approach, the courts have made an observation that change of circumstances must be ‘’such as to upend the object of the contract. Some impediment or some deviation is very common in all transactions, and it cannot be assumed that any agreement has been made on the implied understanding that such a thing will not take place to any extent’’.

‘’Commercial hardship’’ or ‘’Bad bargain’’ is an important limit to the doctrine. 

Davis Contractors Ltd v Fareham UDC perfectly illustrates this point. Brief facts of the case are: Davis Contractors agreed with Fareham UDC to build 78 houses over eight months. Time taken to complete the project was 22 months because the plaintiff was short on labour and materials.

The plaintiff’ contended the delay had increased the costs, and the delay was caused due to circumstances beyond anybody’s control. They pleaded to the court to declare the contract frustrated, therefore were entitled to quantum meruit for the value of work done. The decision was in favour of the defendant. No doubt that the contract had become more onerous but in no way, this can be interpreted as the frustration of contract. This is what lord Reid stated as the difference between the contract becoming more onerous and it becoming frustrating.

Doctrine of Frustration in India

Section 56 of the Indian Contract Act: As with most laws in India, the contract act is influenced by English laws/doctrines(The act was passed when India was under colonial rule). This doctrine constitutes the Indian Contract Act,1872, as Section 56( Agreement to do impossible act). An agreement to do something, which was possible or lawful when the contract was constructed, but subsequently, becomes impossible or unlawful without any fault of either party, then such an act will be void.

Major Indian Case related to this doctrine

Satyabrata Ghose v Mugneeram Bangur and Company & Anr.: The defendant company launched a scheme related to developing the land into a housing colony. The plaintiff was granted a plot on payment of advance money. The company committed to constructing the roads and drains necessary for improving the land, thereby making it suitable for building and residential purposes. Following the completion of development work, the purchaser was to pay the remaining amount to complete the conveyance. Meanwhile, a large part of the land was taken over by the State during the Second World War for war purposes. The company attempted to rescind the contract on the ground of supervening impossibility.

Held: The court dismissed the defendant’s suit stating that the ‘’impossibility’’ under Section 56( Agreement to do impossible act) doesn’t mean in the physical or literal context. It refers to change in circumstances which completely upsets the very foundation upon which the parties rested their bargain. The requisition orders, it must be noted were temporary in nature. There was no timeline mentioned within which the project had to be completed. With the absence of any deadline whatsoever in the contract, and when it was natural for some restrictions to be in effect during the war, thereby causing difficulties and delay in the project. This delay caused by the requisition order didn’t affect the fundamental objective or struck at the roots of the adventure.

Sushila Devi vs Hari Singh

This case expanded the scope of the Doctrine of Frustration. ‘’Impossibility’’ under Section 56 of the Contract act should not be restricted to humanely possible scenarios. In this case, lease of certain property was the subject matter of the agreement. Later, because of partition the property to be leased became a part of Pakistan, thereby making the terms of agreement impossible.

Grounds Of Frustration

1. Destruction of subject-matter:The doctrine of impossibility is befitting ‘’where the specific subject-matter of the contract is annihilated. ‘’Taylor vs Cadwell’’ as discussed previously is a good example.
2. Change of circumstances: A contract will frustrate ‘’where certain situations arise which make the accomplishment of the contract impossible in the way contemplated’’. Justice Kapur of the Punjab High Court in Pameshwari Das Mehra v Ram Chand Om Prakash explained the principle thus: ‘’It is clear that if there is entirely unforeseen occurrence the critical point that has to be pondered upon, whether this occurrence has influenced the responsibility of the parties in the contract to such an extent as to make it virtually impossible or even perilous or hazardous. If that be the case, the occurrence not having been brought about by the fault of either party, the courts will not enforce the contract’’. For example, A ship was chartered to load cargo but on the day she should have proceeded to her berth, an explosion occurred in the auxiliary boiler, which made it impossible for her to undertake the voyage at the scheduled time, the House of Lords held that frustration had occurred in the circumstances.
3. Non-occurrence of contemplated event: There are times when the performance of contract is entirely possible, but only if a specific event occurs, which if doesn’t affect the core objective of the contract. It makes the purpose of the contract unattainable.The coronation case is the best example here. This has been discussed earlier in the article.
4. Death or incapacity of party:’’A party to a contract is exempted from the obligation if it is contingent upon the survival of a given person, if that person dies’’. The essence of these type of cases that it requires individual to use his particular skill, in this case the promisor, his death or incapacity puts an end to the contract. An illustration where A contract between painter, and the person to draw his picture on a particular date. The painter dies before that date, hence the parties are automatically discharged.
5. Government, Administrative or Legislative intervention: Contract will be dissolved when by the operation of legislative or administrative action which strikes the objective or purpose of the contract, thereby changing the fundamental nature of the contract. Thus, where a vendor of land could not complete the sale-deed because he was no longer the owner due to a law which came into effect, it was held that the contract had become impossible of performance.
6. Intervention of War: War or War like situations has often raised difficult questions for the courts. In a particular case, appellants had agreed to sell to the respondents three hundred tons of groundnuts.The usual route at the date of the contract was via Suez Canal. The shipment was to be in November/December, but due to certain geopolitical development the canal was closed until April next year. It was stated that the appellants could have shipped through the alternate route which was Cape of Good Hope. Appellants refused to ship goods via Cape. The appellant’s argument was that it was a tacit understanding between the parties in the contract that the shipment should be via Suez. It was held that such an understanding was wrong. What the appellants could have done was shipped the shipment through Cape route,and they were bound by law (Sale of Goods Act,1893) to do this. Although this would have been more expensive for the appellants, but it didn’t render the contract fundamentally or radically different, hence there was no frustration of contract.

Application to leases: The “English Law’’ on application to leases is unsettled. In India this was discussed by the Supreme Court in Raja Dhruv Dev Chand v Raja Harmohinder Singh, where it was observed ‘’Authorities in the courts in India have generally taken the view that Section 56 of the Contract Act is not applicable when the rights and obligations of the parties arise under a transfer of property under a lease’’. This was one of the cases arising out of the partition of the country into India and Pakistan. The lease in question was that of an agricultural land for one year only. The rent was paid and the lessee was given possession. Before the land could be used for any crops, came partition which left the land in Pakistan and the parties migrated to India. The action was to recover the rent paid. It wasn’t successful because the respective judges pointed out that completed transfers are completely outside the scope of Section 56.

In a subsequent case of Sushila devi v Hari Singh the Supreme Court concluded that In this particular case there is no concluded contract since no deed was written or registered. It was an agreement to lease and that came within the scope of Section 56.There was frustration of the Contract as the parties could not go to give or take possession.

Effects of frustration

Frustration should not be self-induced: The frustration should not be caused because of any of the parties’ fault or action.One of the case illustrates this points where the exporter had an export licence to supply 3000 tons of sugar beet pulp pellets. They had applied to the government to increase their quota but that was refused. After exporting 1500 tons to the first buyer with an option to supply 1500 tons later. They also contracted with another buyer to supply them with 1500 tons of sugar . This was clearly beyond their limit under the licence. To get out of this exporters apportioned the 1500 tons between the two buyers equally. One of the buyers sued the exporters for the breach of the contract. The suppliers pleaded frustration. 

This was not accepted, though the court referred to the principle stated in the American Uniform Commercial code that in such a situation the seller may apportion supplies in any case which is prudent and just but found no basis for applying the principle into English law.

The case of Thompson v . ASDA-MFI Group plc

This case represents an interesting scenario relatively ignored by the texts. How to the English Law should be interpreted where a party claims to be excused from performance because of his own action, not directly amounting to breach of the contract,has brought about a situation in which the contract provides for discharge of his obligations. The discharging term may be a condition precedent. For example where an estate agent’s entitlement to the commission was dependent on the sale of the principal’s property from which the principal withdrew. Or it may be a condition subsequent, as in New Zealand Shipping Co. ltd, where a shipbuilding contract had become void after a delay in delivery which the buyers alleged was caused by the builders’ own actions.

Thompson concerned a condition subsequent. In this case, a company which offered shares to its own employees and employees of its subsidiary and after an employee of a subsidiary had accepted the offer, the company’s subsidiary was sold to a bidder and the employee was informed that the scheme lapsed but he sued the company for breach of contract. Rule 5 of the scheme provided that the right to exercise an option depended on the option holder being employed by ASDA or its subsidiaries.

In order to attract the principle that a party is not to rely on his own act in not fulfilling a condition subsequent and thereby bringing a contract to an end, the act has to amount to a breach of duty owed to the other party under the contract. If a term cannot be implied into a contract that a party would not do an act which, if done, would prevent the fulfilment of a condition precedent or would cause a condition subsequent to be fulfilled, the contract takes effect according to its tenor.

In keeping the above principle in mind, the court held that the Company is not liable. If ASADA were so bound, it would be incapable of exercising other contractual rights, such as dismissing the plaintiff for misconduct, without incurring liability under the option contract.

• Frustration operates Automatically: Frustration operates independently and is conditioned to discharge the parties in a contract in certain circumstances. “irrespective of the parties affected, their dispositions and their interest and circumstances’’.

The legal effect doesn’t depend on the parties’ intention or opinions, or even knowledge, as to the event. This is particularly true of Indian law as Section 56 of the Contract act ‘’lays down a rule of positive law and does not leave the matter to be determined according to the intention of the parties.

• The adjustment of rights: The rights of the parties are adjusted under Section 65 of the Act.

Issues affecting the Operation of the Doctrine

1. Negligence: When the frustration is caused by the negligence of one of the parties’. It also depends upon the particular facts of a case whether negligence will affect the operation of the doctrine.
2. In circumstances where the incident leading to the frustration is anticipated and provided for by inserting a force majeure clause into a contractual agreement, frustration shall not apply. This is the case, however, only if the said clause adequately covers all eventualities.

In Jackson v. Union Marin Insurance Co. ltd, it was held that such an extensive damage was not covered under the expressed exceptions.The contract was frustrated.

Conclusion

The Doctrine of Frustration came into existence to deal with certain situations, where through no fault of the parties’, the contract was frustrated. The law is dynamic and takes shape according to the needs of the society. Perhaps, to an extent doctrine of Frustration brings clarity on the conflicting positions: the paramountcy of contract which supports the principle of absolute liability and the principle that a contract is discharged when the common object or assumption has been destroyed by the change of circumstances.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

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Mock Test 2 

1.) Insurance is: 

A.) Contract of Indemnity 

B.) contingent contract 

C.) contract of guarantee 

D.) wagering contract 

2.) X agrees to pay Rs. 5000 to Y if Y’s car is burnt. It is : 

A.) void 

B.) voidable contract 

C.) valid contract 

D.) wagering contract 

3.) Which of the following is not an essential requirement of a valid contingent contract: 

A.) The happening of the event must be outside the control of the parties 

B.) The event must be uncertain 

C.) The performance must be conditional 

D.) The event must be an act of God 

4.) A offers to B, by letter, to sell his car for Rs.2 lakhs. The letter is written on 4th March, posted on 5th March and reaches B on 8th March. The communication of offer completes on: 

A.) 5th March 

B.) 8th March 

C.) 4th March 

D.) 9th March 

5.) An agreement without free consent is : 

A.) Illegal agreement 

B.) valid contract 

C.) voidable contravt 

D.) void contract 

6.) When two parties negotiate on an arms length basis and have no individual or fiduciary relationship with one another, which of the following grounds of challenge to the contract is least likely to succeed: 

A.) Undue Influence 

B.) coercion 

C.) misrepresentation 

D.) Fraud 

7.) Which of the following are examples of a fiduciary relationship? 

A.) Master and servant 

B.) Solicitor and client 

C.) Doctor and Patient 

D.) All of the above 

8.) In an application for temporary relief the plaintiff will have to establish that: 

A.) Prima facie case is in his favour 

B.) he may suffer irreperable loss 

C.) Balance of convenience is in his favour 

D.) All of the above 

9.) An Agreement in restraint of marriage of any person other than a minor is a : 

A.) Legal Contract 

B.) Void contract 

C.) Fraudelent Contract 

D.) Voidable Contract 

10.) A Contingent contract dependent on the happening of an impossible event is : 

A.) void contract 

B.) voidable contract 

C.) valid contract 

D.) illegal contract 

11.) Consideration must be at the desire of : 

A.) Promisee 

B.) Stranger 

C.) Promisor 

D.) Third Party 

12.) Which of the following agreements with minor is/are not valid : 

A.) Agreement imposing an obligation on the minor 

B.) Agreement for agreement for supply of necessities 

C.) benefits of the minors 

D.) all of these 

13.) Which section of the Indian Contract Act defines the term ‘agreement’? 

A.) 2(b) 

B.) 2 ( e ) 

C.) 2 ( c ) 

D.) 2 (d) 

14.) Under the Specific Relief Act, no suit for recovery of possession of immovable property can be instituted: 

A.) Against a public company 

B.) Against a private company 

C.) Against the government 

D.) Against all of these 

15.) Which section of the Specific Relief Act lists out the situations when an injunction cannot be granted by a court? 

A.) Section 41 

B.) Section 40 

C.) Section 37 

D.) Section 29 

16.) Which of the following contracts cannot be specifically enforced : 

A.) Execution of a formal deed of partnership 

B.) contract for the construction of any building or execution of any other work on land 

C.) contract which determinable in its nature 

D.) Contract to execute a mortgage or furnish any other security for repayment of any loan which the borrower is not willing to repay at once 

17.) The Sale of Goods Act applies to the sale of the following: 

A.) Negotiable Instrument 

B.) Land 

C.) Tangible movable goods 

D.) Immovable property 

18.) As per the Negotiable Instruments Act, a bill of exchange, cheque and a promissory note can: 

A.) Be negotiated by endorsement 

B.) None of the instruments can be endorsed 

C.) Only promissory notes can be endorsed 

19.) A paid some money to B by mistake which was in fact Only bills of exchange and promissory notes due to C, in this case : 

A.) A is not entitled to recover money as there is no contract between A and B 

B.) A is not entitled to recover money as the mistake makes the arrangement between A and B void 

C.) A is entitled to recover money since he paid by mistake 

D.) B is not liable to pay as he did not ask for such payment 

20.) A’ promises to marry B if after 3 years they are both living in the same city. This agreement is: 

A.) Void, being in restraint of marriage 

B.) void, being against public policy 

C.) Void, having an unlawful objective 

D.) Perfectly valid 

21.) Notion of freedom and liberty imbibed in our Constitution, are taken from which historical occurrence: 

A.) Russian Revolution 

B.) Chinese Revolution 

C.) French Revolution 

D.) American Revolution 

22.) Around 70% of Constitution accepted at its inception was sourced from : 

A.) British Indian Government Act, 1930 

B.) Government of India Act, 1935 

C.) Indian Act, 1945 

D.) British Laws Act, 1935 

23.) Who passed the Objectives Resolution for Constitutional Assembly debates : 

A.) Sardar Vallabhbhai Patel 

B.) B. R. Ambedkar 

C.) Jawaharlal Nehru 

D.) Dr. Rajendra Prasad 

24.) Which Article of the Constitution assigns English as the official language in the High Courts & Supreme Court: 

A.) Article 368 

B.) Article 379 

C.) Article 348 

D.) Article 365 

25.) Which landmark judgement first held that ‘Basic Structure’ of the Constitution cannot be altered: 

A.) Minerva Mills case 

B.) IR Coelho case 

C.) Kartar Singh case 

D.) Keshavananda Bharati case 

26.) Under the Indian Constitution, how many fundamental duties are there : 

A.) 6 

B.) 7 

C.) 9 

D.) 11 

27.) Prof. K C Wheare describes government as enshrined in the Constitution as ; 

A.) Federal 

B.) Unitary 

C.) Quasi-federal 

D.) Unitary in form and Federal in spirit 

28.) Constitution of India is subject to controls by: 

A.) Parliamentary 

B.) Judiciary 

C.) Executive 

D.) Not subjected to any of these but governs the functioning of all the above organs 

29.) Self government or Gram Panchayat later included in the Constitution, was a vision of:

A.) Lal Bahadur Shastri 

B.) Chandrashekar Azad 

C.) Mahatma Gandhi 

D.) Jawaharlal Nehru 

30.) In case of violation of fundamental rights, an aggrieved person can file a _____ in the Supreme Court : 

A.) Writ petition 

B.) Appeal 

C.) Complaint 

D.) Notification 

31.) If it is proved that a woman’s death occurred within 7 years of her marriage and that she was subjected to cruelty by her husband or his relatives, there is a presumption of: 

A.) Culpable homicide 

B.) Murder 

C.) Dowry death 

D.) All of the above 

32.) If A, a citizen of India commits a crime in foreign land, is A subject to Indian laws : 

A.) Yes 

B.) No 

C.) Depends on the laws of that particular country 

D.) Only if the victim is also an Indian citizen 

33.) A Muslim wife claiming compensation for husband can opt for remedies under: 

A.) The Muslim Women (Protection of Rights on Divorce) Act 

B.) Code of Criminal Procedure 

C.) Constitution 

D.) Both (a) & (b) 

34.) An adoption made by a Hindu male without the consent of his wife is : 

A.) Void 

B.) Voidable 

C.) Valid 

D.) Invalid 

35.) Which one of the following is not included in the term ‘Hindu’ used in the Hindu Marriage Act, 1955: 

A.) Sikhs 

B.) Jains 

C.) Parsis 

D.) Buddhists 

36.) On the ground of fosterage a Muslim marriage is : 

A.) Void (Batil) 

B.) Valid (Sahih) 

C.) Irregular (Fasid) 

D.) Muta 

37.) Which section of the CPC provides for institution of an inter-pleader suit? 

A.) Section 87 

B.) Section 88 

C.) Section 89 

D.) Section 90 

38.) Which one of the following is not a suit of civil nature under C.P.C. : 

A.) A suit against deprivation from attending social functions 

B.) A suit for arrears of salary 

C.) A suit for right of burial 

D.) A suit for restitution of conjugal rights 

39.) Which one of the following is not required in filing a representative suit under Order 1 Rule 8 of the C.P.C.: 

A.) Numerous parties 

B.) Same interest 

C.) Leave of the court 

D.) Written permission of those who are being represented 

40.) Provision for inter-pleader suit is available under : 

A.) Constitution 

B.) Indian Penal Code 

C.) Civil Procedure Code 

D.) Criminal Procedure Code 

41.) Mesne profits’ as defined under C.P.C means : 

A.) those profits which a person in wrongful possession of property received or might have received with ordinary diligence, and with interest 

B.) those profits which the person in wrongful possession of property actually received including profits due to improvements made by such person 

C.) those profits which the person in wrongful possession of such property actually received or might have received but without any interest on such profits 

D.) those profits which the person in wrongful possession of such property actually received 

42.) Foreign judgment as defined under section 2(6) of CPC means : 

A.) judgment given by an Indian Court in respect of foreigners 

B.) judgment given by a foreign court 

C.) both (a) & (b) 

D.) neither (a) nor (b) 

43.) Are arrest and attachment possible in a civil case, before a court issues a judgment? 

A.) No, arrest is possible in criminal cases only but attachment is possible in civil cases. 

B.) Both are possible in civil cases if there is a danger that the defendant may abscond or that he may transfer his property outside the jurisdiction of the court 

C.) Neither is possible 

D.) Arrest is possible in civil cases before judgment, but attachment only occurs in execution of judgment 

44.) Where the local limits of jurisdiction of courts are uncertain, the place of institution of suit shall be decided according to the provision of : 

A.) Section 17 of C.P.C. 

B.) Section 18 of C.P.C. 

C.) Section 19 of C.P.C. 

D.) Section 20 of C.P.C. 

45.) In proceeding under provisions of Code of Criminal Procedure an Executive Magistrate may require any person to execute a bond for keeping peace for such period, not exceeding : 

A.) One Year 

B.) Two Years 

C.) Three Years 

D.) Six Months 

46.) When the person who would otherwise be competent to compound an offence under the provisions of Code of Criminal Procedure is dead, then : 

A.) Offence cannot be compounded 

B.) Offence can be compounded by any of the eye-witnesses 

C.) Legal representative of such person can compound the offence without the consent of the Court 

D.) Legal representative of such person can compound the offence with the consent of the Court 

47.) A private person may arrest a person who : 

A.) Is reported to be a criminal 

B.) In his presence commits a non-cognizable offence 

C.) In his presence commits a cognizable and non-bailable offence 

D.) In his presence commits a bailable offence 

48.) Is plea bargaining permissible under Indian law? The main characteristic of the Code of Criminal Procedure, 1973 is : 

A.) No, there is a compounding procedure under Code of Criminal Procedure but that is different from plea bargaining. 

B.) No, plea bargaining would be against public policy. 

C.) It has been introduced under the Code of Criminal Procedure for certain categories of offences. 

D.) It is permissible only in the case of hardened criminals 

49.) Who can commute the sentence of imprisonment for life under the Code of Criminal Procedure : 

A.) The appropriate Government 

B.) The President of India 

C.) The Governor of the State 

50.) Which Sections of the Code of Criminal Procedure provide for Trial before a Court of Session : 

A.) Sections 225 to 237 

B.) Sections 238 to 243 

C.) Sections 251 to 259 

51.) Who among the following is not empowered to tender pardon to an ‘accomplice’ under 

the Code of Criminal Procedure 

A.) Metropolitan magistrate 

B.) Chief Judicial Magistrate 

C.) Magistrate of the First Class 

D.) Magistrate of Second Class 

52.) A complaint case is commenced by 

A.) Filing a complaint before the Executive Magistrate 

B.) Writing a letter to the Superintendent of Police or the Commissioner, as the case may 

C.) Filing an FIR 

D.) Filing a complaint before the Judicial Magistrate 

53.) A conditional order for removal of public nuisance under the Code of Criminal Procedure may be passed by 

A.) District Magistrate 

B.) Executive Magistrate specially empowered 

C.) sub divisional 

D.) Any of the above authorities 

54.) Under which Section of the Code of Criminal Procedure an accused person can himself 

be a competent witness 

A.) Section 311 

B.) Section 313 

C.) Section 315 

D.) Section 319 

55.) Who among the following is not empowered to tender pardon to accomplice under the code of criminal procedure 

A.) Metropolitan Magistrate 

B.) Magistrate of Second Class 

C.) Chief Judicial Magistrate 

D.) Magistrate of the First Class 

56.) The Indian Evidence Act came into force on the territory of Goa on 

A.) 15.08.1972 

B.) 01.06.1964 

C.) 01.08.1872 

D.) 01.01.1964 

57.) Indian Evidence Act is applicable to 

A.) Judicial proceedings in courts 

B.) Proceedings before the arbitrator 

C.) Proceedings before tribunals 

D.) All the above 

58.) Are admissions conclusive proof? 

A.) Yes 

B.) No, but usually they are sufficient evidence of the facts admitted, and they 

C.) No 

D.) Depends on the circumstances 

59.) Are extra-judicial admissions admissible in court? 

A.) Yes, under certain circumstances 

B.) No, but usually they are sufficient evidence of the facts admitted, and they 

C.) No, the admission must be made before a magistrate 

D.) Both b and c 

60.) Facts in issue as per the Indian Evidence Act means : 

A.) Fact, existence or non-existence of which is not disputed by the parties 

B.) Fact, existence or non-existence of which is disputed by the parties 

C.) Fact, existence or non-existence of which is admitted by the parties 

D.) All the above 

61.) Section 25 of Indian Evidence Act has no application in departmental proceedings. The 

statement is 

A.) Fully correct 

B.) Partly correct 

C.) None of these 

62.) Is active euthanasia legal in India? 

A.) Yes, it is part of the right to die 

B.) No 

C.) Only when the patient is approaching permanent vegetative state 

D.) Yes, it is part of the right to life 

63.) P instigates Q to cause the death of R. P gives a gun to Q to shoot R. Q shoots at R in the presence of P causing R’s death. Which of the following statement is correct? 

A.) P should be prosecuted for attempt to murder or attempt to commit culpable homicide. 

B.) Both P is liable for prosecution for murder or culpable homicide. 

C.) P has abetted the murder of R. 

D.) P is not liable as he was only in the preparation phase and did not himself attempt the killing 

64.) Supreme Court of India stuck down Section 303 of I.P.C. as unconstitutional in which of the following cases 

A.) Machhi Singh vs State of Punjab 

B.) Bachan Singh vs State of Punjab 

C.) Santa Singh vs State of Punjab 

D.) Mithu vs State of Punjab 

65.) A, with a guilty intention, abets a child or a lunatic to commit an act which would be an offenc, if committed by a person capable by law of committing an offence, and having the same intention as A. whether A commits abetting 

A.) Yes 

B.) No 

C.) Either (a) or (b) 

D.) None of the above 

66.) A, on grave and sudden provocation, fires a pistol at Z, under such circumstances that if he thereby caused death he would be guilty of culpable homicide not amounting murder.what offence A has committed 

A.) Attempt to commit culpable homicide 

B.) Attempt to commit murder 

C.) Abetment of culpable homicide 

D.) Neither (a) nor (b) 

67.) Sexual intercourse of a woman with her consent is considered rape if she is under the age of 

A.) 16 

B.) 17 

C.) 18 

D.) 21 

68.) How many persons must be involved in an act of robbery, if it is to qualify as a dacoity? 

A.) Four 

B.) Between Two-three 

C.) Five or above 

D.) None of these 

69.) Which of the following cases established ‘Doctrine of absolute liability in India 

A.) M. C. Mehta v. Union of India 

B.) Keshavananda Bharati v. State of Kerala 

C.) IR Coelho v. Union of India 

D.) Bank Nationalisation case 

70.) Intangible property such as patents, trademarks and copyrights constitute: 

A.) Real property 

B.) Movable property 

C.) Immovable property 

D.) Do not constitute property at all 

71.) The Indian Parliament enacted Consumer Protection Act in December, 1986. It came into force on: 

A.) May 15 , 1972 

B.) May 25, 1969 

C.) April 25, 1987 

D.) April 15, 1987 

72.) Donoghue v. Stevenson is a landmark case for which of the following areas of study: 

A.) Equality in American Constitutional law 

B.) Neighbour principle in Tort law 

C.) Gross Negligence in Criminal law 

D.) Right to life in Indian Constitutional law 

73.) Consumers Dispute Redressal Forum to be known as the District Forum established by: 

A.) Union government 

B.) State government 

C.) Special Appellate Body 

D.) Both (a) & (b) 

74.) The word ‘dealer’ as per the Motor Vehicles Act, includes a person engaged in: 

A.) in the repair of motor vehicles 

B.) in the business of hypothecation, leasing or hire-purchase of motor vehicle 

C.) in building bodies for attachment to chassis 

D.) All of the Above 

75.) As per the Factories Act, the floor of ever work room should be cleaned once every 

A.) Day 

B.) Month 

C.) Week 

D.) Hour 

76.) As per the Factories Act, a person who has not completed his 15th year of age is a/an : 

A.) Adolescent 

B.) Teenager 

C.) Child 

D.) Adult 

77.) Which law governs the methods to fix minimum wages in scheduled industries: 

A.) Industrial Dispute Act 

B.) Minimum Wages Act 

C.) Trade Union Act 

D.) Workman’s Compensation Act 

78.) In which landmark case did the Supreme Court lay down guidelines for protection of women at workplace against sexual harassement. 

A.) Kartar Singh case 

B.) Vishaka v. State of Rajasthan 

C.) IR Coelho case 

D.) Indira Gandhi case 

79.) Maximum number of members in a public company are: 

A.) Unlimited 

B.) Fifty 

C.) Five hundred 

D.) Two thousand 

80.) The doctrine of constructive notice is: 

A.) A principle of company law stating that outsiders must have read publicly available document of the company. 

B.) Ignorance of law is no excuse 

C.) Is a way of providing deemed service to a party if he avoids service of court processes 

D.) None of these 

81.) When shares are transferred to X from Y, X becomes a __________ of the company: 

A.) Shareholder 

B.) Promoter 

C.) Both (a) & (b) 

D.) None of these 

82.) Shares of which kind of company are freely transferable? 

A.) Public Company 

B.) Government company 

C.) Private company 

D.) Foreign company 

83.) What is the meaning of the principle Kompetenz-kompetenz? 

A.) It refers to the freedom of contract of parties 

B.) It refers to the ability of the arbitration tribunal to decide on its own jurisdiction 

C.) It refers to the equal competence of all sovereign states with respect to international affair 

D.) None of the above 

84.) The source of professional ethics for Indian advocates can be traced to: 

A.) Advocates Act, 1961 

B.) Bar Council of India Rules 

C.) Both (a) & (b) 

D.) None of these 

85.) Is it permissible for a lawyer to charge fees as a proportion of the relief secured by the party 

A.) Yes 

B.) No, it is prohibited under all circumstances as per BCI Rules. It is permitted in public interest litigation 

C.) It is permitted in criminal cases 

86.) State Bar Councils can frame their own rules regarding enrolment of advocates as per the provision of 

A.) Advocates Act, 1961 

B.) Bar Council Rules Act 

C.) Indian Bar Act 

D.) None of these 

87.) Bar Council of India was established by: 

A.) An act of the Government of England 

B.) Vidhan Sabha 

C.) Presidential Order 

D.) Parliamentary Statute 

88.) For the purpose of computation of limitation period, the date on which a particular instrument was executed will by default be presumed to be made with references to: 

A.) English calendar 

B.) Gregorian calendar 

C.) Roman calendar 

D.) Egyptian calendar 

89.) Can delay in filing a suit be condoned under Limitation Act? 

A.) No. Limitation Act does not allow any condonation. 

B.) Yes, under Section 5. 

C.) It can be condoned by the High Court only, pursuant to its inherent power. 

D.) Only when the plaintiff shows sufficient cause. 

90.) ‘Mandamus’ is a writ issued by the Court : 

A.) Asking a public official or any authority to perform specific legal duties 

B.) Enquiring into the legality of claim of any person to public office 

C.) Asking a person who has detained any other person, to appear before a court 

D.) Against any lower court not to do any act excess of their jurisdiction 

91.) How many members are nominated to the State Legislative Council by the Governor 

A.) 1/3rd 

B.) 1/12 th 

C.) 1/8th 

D.) 1/6th 

92.) The relationship between Ministers and Civil Servants in India emerged as a result of: 

A.) Government of India Act, 1935 

B.) Montague-Chelmsford Reforms, 1919 

C.) Indian Constitution, 1950 

D.) Morley-Minto Reforms, 1909 

93.) A statutory corporation is: 

A.) A corporate entity but which is constituted and governed by a separate legislation instead of companies Act 

B.) Similar to a ministry of the government 

C.) An entity which enjoys sovereign immunity 

D.) Owned by the Government, but governed by the Companies Act. 

94.) Part II of the Arbitration and Conciliation Act, 1996 is applicable to: 

A.) Arbitrations conducted outside India 

B.) Arbitrations where both parties are foreigners but which are conducted in India 

C.) Conciliation 

D.) International commercial arbitatrations 

95.) International commercial arbitration is defined under section ________ of the Arbitration and conciliation Act 

A.) Section 2(e) 

B.) Section 2(f) 

C.) Section 2(g) 

D.) Section 2(h) 

96.) Arbitration agreement means: 

A.) It means a written agreement by the parties to submit to arbitration all or certain dispute which have arisen or which may arise between them in respect of a defined legal relationship, contractual or not 

B.) It means an agreement by the parties to submit to arbitration all or certain disputes which have arisen oe which may arise between them in respect of a defind legal relationship which is not contractual 

C.) An oral arbitration agreement 

D.) None of these 

97.) Section-115 of the Civil Procedure Code provides for the following 

A.) Reference 

B.) Review 

C.) Revision 

D.) Appeal to the Supreme Court 

98.) Which one of the following cases deals with issues pertaining to second appeal 

A.) Madan Lal Vs. Bal Krishna 

B.) Sudhir G. Angur Vs. M. Sanjeev 

C.) Sheodan Singh Vs. Daryao Kunwar 

D.) Harshad Chiman Lal Modi Vs. D.L.F. Universal Ltd. 

99.) A, who is accused of murder, alleges that by grave and sudden provocation, he was deprived of the power of self control. B denies this fact. 

A.) The burden of proof must be shared by both ‘A’ and ‘B’ 

B.) The burden of proof is on ‘B’ 

C.) The burden of proof is on prosecution 

D.) The burden of proof is on ‘A’ 

100.) Examination which is conducted after the cross-examination of a witness by the party who has called him 

A.) Main examination 

B.) Additional examination 

C.) Re-examination 

D.) Re-cross- examination 

Answers 

1.) A 2.) C 3.) D 4.) B 5.) C 6.) C 7.) D 8.) D 9.) B 10.) A 11.) C 12.) B 13.) B 14.) C 15.) A 16.) C 17.) C 18.) A 19.) C 20.) D 21.) C 22.) B 23.) C 24.) C 25.) D 26.) D 27.) C 28.) D 29.) C 30.) A 31.) C 32.) A 33.) D 34.) D 35.) C 36.) A 37.) B 38.) A 39.) D 40.) C 41.) A 42.) B 43.) B 44.) B 45.) A 46.) D 47.) C 48.) C 49.) A 50.) A 51.) D 52.) D 53.) D 54.) C 55.) B 56.) B 57.) A 58.) B 59.) A 60.) B 61.) A 62.) B 63.) B 64.) D 65.) A 66.) A 67.) A 68.) C 69.) A 70.) B 71.) D 72.) B 73.) B 74.) D 75.) C 76.) C 77.) B 78.) B 79.) A 80.) A 81.) A 82.) A 83.) B 84.) C 85.) B 86.) A 87.) A 88.) B 89.) A 90.) A 91.) A 92.) B 93.) A 94.) A 95.) B 96.) A 97.) C 98.) A 99.) D 100.) C 

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

The post AIBE: Mock Test for Bar Exam Preparation Part 2 appeared first on iPleaders.

This article is written by Gaurav Raj Grover, a fifth-year law student at Lloyd Law College, Greater Noida. This article discusses the features of Vicarious Liability in India.

Introduction

Every person is liable for acts, the person commits and not liable for the acts done by others but in some situations when a person is liable for the acts of another person is known as vicarious liability. So, for this to happen there must be a specific kind of relationship between both the people and the act must be connected with the relationship. These relationships can be of a master and servant or principal and agent. 

Vicarious liability is the liability of a person for an act of another person because of their relationship with each other. For eg: Saurav is the driver of Gaurav, and Gaurav sent Saurav to drop his friend Suryash to the Airport. On their way, Saurav hits Mahesh because of his reckless driving. In this situation, Gaurav was not even in the car while the car hit Mahesh, but still, he was liable for the accident caused by Saurav. This is because of vicarious liability. 

So, vicarious liabilities only deal with the situation where the person is liable for some other person’s acts. It is considered as an exception to the general rule that the person is liable for his acts only. Vicarious liability is based on the principle of ‘qui facit per se per alium facit per se’, which means ‘He who does an act through another is deemed in law to do it himself’. 

Essentials of Vicarious Liability

The essentials of vicarious liability are:

1. There must be a certain type of relation between the parties. 
2. The wrongful act must be committed by another person. 
3. The wrongful act must happen during the course of employment. 

Relations in Vicarious Liability

So, this liability can only take place when one party is socially superior to another party and superior party shall be considered liable. Some examples of these relationships are:

• Master and Servant
• Owner and Independent Contractor
• Partners in Partnership Firm
• Principal and Agent
• Company and its Directors

Reasons for Vicarious Liability

The reasons behind holding the master liable for the actions of his servant are:

1. A servant is just an agent who is controlled and supervised by his employer. So, the servant works according to the master which means he works in the manner the master wants the work to be done. So, the liability for the actions of the servant must be of the master. 
2. The master always enjoys the profit derived from the efforts of the servant, so he must also bear the loss that occurred by the activity of the servant but only in the course of employment. 
3. The master is financially stable than that of a servant. So, the master is more suitable to pay for the damages caused by the tortious act of the servant. But the masters are allowed to take reasonable care and precautions to prevent himself from such situations. 

Scope of Employment

The actions of the employees related to the term of his employment are considered as the scope of employment. The scope changes through the requirements of the job and the number of people are required to do the job. There are situations where a worker is not working under the scope of employment. These include:

• Independent Contractor 

An independent contractor is a person doing work for someone else, these contractors are not considered as employees because they are not working in the scope of employment and are certainly not considered as employer’s liability. 

• Illegal Acts

Any illegal act is not under the scope of employment. So, any harm caused by the illegal act is mostly not considered as the employer’s liability. 

When an employee performs an activity that is neither directed nor controlled by the employer, the employee is not in the scope of employment. In this situation, if the employee engages in any wrongful tortious activity, the employer is not liable for the damages. 

For example, A is the driver of B, after dropping B to his office A left the office premises to meet his friend C with B’s car. A picked up C, they went for a drive and had an accident. Z was injured in the accident. In this situation, B is not liable for any damages because B had no idea of A’s plan and A was not in any course of employment given by B. 

Difference between Servant and Independent Contractor

A servant and independent contractors are quite similar as they both work for the employer, which means both of them can not decide their choice of work, the employer will assign the work to them but in the case of liability of tort, the master is liable for the wrongful act of the servant but he is not liable for the wrongful act of the independent contractor because the servant is engaged under the contract of services while the independent contractor is engaged under the contract for services. 

The master is liable in the case of a servant because the servant commits the wrongful act in his course of employment. So, the wrongful act of the servant is considered as the act of the master. Thus, the master is liable vicariously for the wrong done of the servant. But in the end, the plaintiff has the choice to take action against either or both of them. The liability of master and servant is both joint and several as they are considered joint tortfeasors. 

For example, A has a company and all the people working in his company are his servants as A has the right to control and supervise the work of the people working in his company. 

While the work of an independent contractor can not be controlled by the master. The master can only provide the type and duration of the work to the independent contractor but can not control the process he uses during the work. An independent contractor himself chooses the manner in which the work is to be done.

For example, all the third party workers who work on a daily basis on contracts, the taxi drivers as the person taking a cab is not liable for an accident that occurred during the ride but the person will be liable when he is in a car with his driver. 

A has a shop, one day there was something wrong with the A.C., A called a mechanic B to repair the A.C. while B is working for A but it doesn’t mean that A will be liable for B’s wrongdoings as in this case B is an independent contractor, not a servant because A can only tell B what to do but B himself will figure out how to do that specific work. 

Vicarious Liability in Medical Care

For any wrongdoing caused by the employee in any medical institution, the hospital or the doctor is vicariously liable for the damages. The employees include all the nurses, technicians, physicians, lab assistants, administrative department and other staff members. 

Vicarious liability helps in improving the conditions of hospitals as the hospital is liable for all the staff. So, the hospital or any medical institution focuses on proper qualifications and credentials for the employees to perform their job but this doesn’t work for a healthcare provider who is an independent contractor of the hospital. 

For example, A had surgery at XYZ hospital and Doctor Who performed the surgery. The surgery was successful but Doctor Who forgot his ring inside A’s stomach. Now, in this case, Doctor Who is liable for negligence but A can sue both XYZ hospital as well as Doctor Who as the hospital is liable for the actions of the doctors. 

Types of Vicarious Liability

When some person is liable for damages caused by the other person because there was certain control, ownership, or direction involved, then the liability is known as vicarious liability. 

Principal Liability

When a person allows another person to use his vehicle to perform a task for the owner and while doing the task, the person causes damages or injury through negligence, in this case, the owner is liable for the damages through vicarious liability. 

For example, A has a recent surgery and was on complete bed rest, he asked B to complete his insurance work by sending the papers to the company, A lends his car to B, during the drive, B had an accident because of recklessness, in this case, A is liable for B’s accident. 

In another situation, after completing A’s work B used his car for her personal use and met an accident during the course of her work, in this situation A is not liable for B’s accident. 

This shows that the course of employment of the owner is necessary. 

Parental Liability

In any case, when a child creates damage by taking advantage of the situation created by their parents, the parents are liable for the damages. The situations can be allowing a child to drive, or leaving a loaded weapon in a child’s reach. In the lack of parental supervision, the parents are vicariously liable for their child’s negligence. 

For example, A is the mother of 10-year-old B, while performing the daily chores she was not able to keep an eye on B and B damaged the car of C. In this case, A is vicariously liable for B’s actions as B is the son of A and she has to keep an eye on B’s actions. 

Situations in which the Master is Liable

• When the wrongdoing arrived from a natural consequence of an act of servant. 

When the servant works on the instructions of his master, then the master is liable for all the damages arriving out of the work of the servant. 

• When the wrongdoing arrived from the negligence of the servant.

For example, B works as a house help for A, B was cleaning A’s house and forgot to close the door which resulted in the escape of their dog, the dog bit the son, A was liable for all the damages caused by B’s negligence. 

• When the wrongdoing through the mistake in execution from the lawful authority.

For example, A is the guard of XYZ bank and he is allowed to shoot in case of emergency. One day during the transfer of the cash, B was entering with the people who were transferring the cash in the bank, A in the suspicion of B as a dacoit shot him and caused his death. In this case, the bank is vicariously liable for A’s actions. 

• When the wrongdoing happened through the servant’s fraudulent act.

For example, A works in an insurance company, B went to the company to open insurance, A takes from B and creates a policy for his wife. In this case, the insurance company is liable for A’s fraudulent act. 

• When the servant wilfully committed the wrong to hurt the master. 

Every wrong act of servant which is in the course of employment either willful, reckless, or improper is liable for the master. For example, when a waiter hurts the customer for being rude to him, the waiter, as well as the hotel, is liable for the waiter’s negligence. The hotel is liable under vicarious liability. 

Exceptions

• When the servant is under a statutory duty which he can not delegate, the master is not liable.
• When there is a case where the servant is involved with the withdrawal of support from the neighboring land, the master is not liable.
• When situations involve very hazardous acts, the master is not liable.
• When situations involve escaping from the fire, the master is not liable.
• When situations using the highways, the master is not liable. 

Conclusion

Vicarious liability deals with only those cases when one person is liable for the actions of another person. And the liable person must be superior to the other person. The person who commits wrong must be in the course of employment. The course of employment is essential for vicarious liability. 

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

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AIBE: Companies Act, Strengthen and prepare your concepts on Companies Act by solving an exhaustive quiz, if you’re preparing for Bar Exam.

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Quiz on Companies Act- 1 

1.)As per the Companies Act, a body corporate or corporation does not include which of the following? 

1. A company incorporated in Maharashtra 
2. A company incorporated outside India 
3. A corporation sole 
4. A co-operative society 

A.) Both (1) and (2) 

B.) Both (1) and (3) 

C.) Both (2) and (4) 

D.) Both (3) and (4) 

2.)Any security which has the character of more than one type of security, including their derivatives is known as a: 

A.) Hybrid security 

B.) Debenture 

C.) Preferred Security 

D.) Participating Security 

3.) An industrial company which has accumulated losses in any financial year equal to fifty per cent, or more of its average net worth (of the past four years)or has failed to repay its debts in three consecutive quarters on demand made by a creditor is known as – 

A.) Defunct Industrial Company 

B.) Bankrupt Industrial Company 

C.) Sick Industrial Company 

D.) Indebted Industrial Company 

4.) Company XYZ is a private company, which is a subsidiary of a public company, and has a paid up capital of 8 lakh rupees with a total number of 65 members (not including those in the employment of the company). This makes XYZ a: 

A.) Private Company 

B.) Listed Company 

C.) Limited Company 

D.) Public Company 

5.) The Company Law Board gave its decision regarding a certain matter involving A and B in January 2013, in favor of B. A, aggrieved by the same, wants to appeal against the order in February 2013.Will his appeal be sustained? 

A.) No, one can’t appeal against the decision of the Company Law Board 

B.) Yes, if A is aggrieved, he can appeal against the decision to the High Court 

C.) No, since the limitation period has expired 

https://www.lawsikho.com/mock_tests/11781/question_paper 1/5 

11/6/2017 LawSikho 

D.) He can appeal to the National Company Law Tribunal 

6.)As per the Companies Act, the maximum number of people who can form a company, association or partnership for carrying on the business of banking (for an unregistered company) is- 

A.) 10 

B.) 15 

C.) 20 

D.) 35 

7.) 

The Memorandum of Association of a Company should be in one of the forms as prescribed in- 

A.) Schedule I, Tables A,B,C 

B.) Schedule II, Tables F,G,H, I 

C.) Schedule I, Tables B,C,D,E 

D.) Schedule III, Tables J,K,L 

8.) The Memorandum of Association of a Company may be altered in which of the following cases- 

A.) to carry on its business more economically or more efficiently 

B.) to attain its main purpose by new or improved means 

C.) to enlarge or change the local area of its operations 

D.) All of the above 

9.) Who is authorized to make a certified copy of the order of alteration of Memorandum of Association and what is the limitation period for the registry of the alteration? 

A.) Board of Directors; 60 days 

B.) Council of Company Secretaries; 90 days 

C.) Registrar of Companies; 90 days 

D.) Director and Additional Director; 60 days 

10.) Section 25 talks about the circumstances where a charitable or other company can drop ‘limited’ from their name. In which of the following cases can this be achieved? 

1. The company is formed as a limited company for promoting commerce, art, science, religion, charity or any other useful object 
2. The company intends to apply its profits, if any, or other income in promoting its objects, and to prohibit the payment of any dividend to its members 

iii. There is a shuffle in the Board of Directors and the whole management is reconstituted. 

A.) Both (i) and (iii) 

B.) Both (i) and (ii) 

C.) Only (iii) 

D.) Both (ii) and (iii) 

11.) Which of the following should be in the prescribed format- printed, divided into paragraphs numbered consecutively, and be signed by each subscriber: 

A.) Memorandum of Association 

B.) Articles of Association 

C.) Both (a) and (b) 

D.) None of the above 

12.) A certificate of incorporation given by the Registrar in respect of any association shall be ________ evidence that all the requirements of this Act have been complied with in respect of registration and matters precedent and incidental thereto, and that the association is a company authorized to be registered and duly registered under this Act. 

A.) supporting 

B.) proof 

C.) compelling 

D.) conclusive 

13.) Which of the following is the most apt definition of a member of a company? 

A.) The subscribers of the memorandum of a company shall be deemed to have agreed to become members of the company, and on its registration, shall be entered as members in its register of members 

B.) Every other person who agrees in writing to become a member of a company and whose name is entered in its register of members, shall be a member of the company 

C.) Every person holding equity share capital of company and whose name is entered as beneficial owner in the records of the depository shall be deemed to be a member of the concerned company 

D.) All of the above 

14.) When a private company does not comply with provisions in its Articles of Association, then which of the following is the most likely consequence? 

A.) The company shall cease to be entitled to the privileges and exemptions conferred on private companies 

B.) The company shall be treated like a public company 

C.) The company becomes defunct 

D.) The company is sued by the Registrar of Companies for the default 

15.) The minimum percentage of paid up share capital of a private company that is to be held by one or more bodies corporate for it to be treated as a deemed public company (under section 43 A) is- 

A.) 10% 

B.) 25% 

C.) 50% 

D.) 12.5% 

16.) LMN is a public company and its has 7 members- A, B, C, D, E, F and G. The company was started in 2004 and in 2006, F, E and G left the company. The company continued to function somehow with A, B, C and D as members till 2008, and they were doing reasonably well. Post 2008, the company’s turnover decreased and it started taking loans to meet its requirements. Who all will be liable for the debts of the company? 

A.) All the members- A,B,C,D,E,F,G 

B.) Only E, F and G because the condition of the company worsened after they left 

C.) A, B, C and D, because they continued to function even after some of the members left 

D.) The Board of Directors 

17.) Whenever a company having a share capital makes any allotment of its shares, the company shall, within thirty days- 

A.) File a return of the allotments with the Registrar 

B.) Distribute money to the shareholders 

C.) File a return with the Chairman of the Company 

D.) Issue shares at a discount 

18.) XYZ is company with ZZZ as its subsidiary. Is it possible for ZZZ to buy shares of XYZ? 

A.) Yes, there is no problem 

B.) No, a subsidiary cannot buy the shares of the holding company 

C.) Yes, such a transaction requires a special resolution 

D.) No, the transaction will require a special resolution and government approval 

19.) True or False: The shares or debentures or interests of any member in a company are immovable property and non-transferable in nature. 

A.) True, they are immovable property and non-transferable 

B.) True, they are immovable, however, they are transferable 

C.) False, they are both movable and transferable 

D.) True, they are non-transferable, but they are movable 

20.) The two kinds of share capital are: 

A.) Preference share capital and Interest share capital 

B.) Equity and debentures 

C.) Provident share capital and Equity share capital 

D.) Equity share capital and Preference share capital 

Answer Key on Companies Act- 1 

1.) D 2.) A 3.) C 4.) D 5.) B 6.) A 7.) C 8.) D 9.) C 10.) B 11.) C 12.) D 13.) D 14.) A 15.) B 16.) C 17.) A 18.) B 19.) C 20.) D 

Quiz on Companies Act- 2 

1.) One cannot be appointed the Debenture Trustee of a company if he- 

A.) beneficially holds shares in the company 

B.) is beneficially entitled to moneys which are to be paid by the company to the debenture trustee 

C.) has entered into any guarantee in respect of principal debts secured by the debentures or interest thereon. 

D.) All of the above 

2.)A condition contained in any debentures or in any deed for securing any debentures, whether issued or executed before or after the commencement of the Companies Act, shall not be invalid by reason only that thereby, the debentures are made irredeemable or redeemable only on the happening of a contingency, however remote, or on the expiration of a period, however long. This describes- 

A.) Perpetual Debentures 

B.) Secured Debentures 

C.) Redeemable Debentures 

D.) Convertible Debentures 

3.) Who keeps the register of charges of each company, and maintains an index for the same? 

A.) Chairman of the company 

B.) Director of the company 

C.) HR department of the company 

D.) Registrar of companies 

4.) A company shall have a registered office to which all communications and notices may be addressed – 

A.) From the day it begins to carry on business 

B.) From the thirtieth day after its date of incorporation 

C.) Either- whichever of the above is earlier 

D.) Either- whichever of the above is later 

5.) What is the maximum time frame within which every company having a share capital must file a return with the Registrar? 

A.) within sixty days from the day on which each of the annual general meetings is held 

B.) within thirty days from the day on which each of the annual general meetings is held 

C.) within six months from the day on which each of the annual general meetings is held 

D.) within three months from the day on which each of the annual general meetings is held 

6.)Match the following (use the Companies Bare Act for this)- 

1. Statutory meeting I. Within 15 months 
2. Extraordinary General Meeting II.Between 1-6 months 

iii.Annual General Meeting III. On requisition 

A.) (i-I) (ii-II) (iii-III) 

B.) (i-II) (ii-III) (iii-I) 

C.) (i-III) (ii-II) (iii-I) 

D.) None of the above 

7.) As a general rule, dividends are only to be paid out of: 

A.) Budget 

B.) Expenses 

C.) Profits 

D.) Loans 

8.) Every company is required to keep at its registered office: 

A.) Books of Accounts 

B.) Register of Charges 

C.) None of the above 

D.) Both of the above 

9.)A person shall not be qualified for appointment as auditor of a company unless he is a _____________. 

A.) Chartered Accountant 

B.) Graduate 

C.) Economist 

D.) Lawyer 

10.) Alpha Beta Gamma is a public company with two thousand shareholders and paid up capital of 7 crore rupees. The minimum number of directors that the company should have is- 

A.) Three 

B.) One 

C.) Four 

D.) Six 

11.) At the Annual General Meeting of a public company, one third of the directors are required to retire by rotation. What is the criterion for deciding the same? 

A.) Seniority 

B.) Drawing of lots 

C.) both a and b 

D.) None of the above 

12.) What is the time period till the completion of which an Additional Director of a company continues to hold office? 

A.) Till one year 

B.) Till the next Annual General Meeting of the company 

C.) Till one of the directors retire by rotation 

D.) Out of the above, whichever takes place before 

13.) Which of the following is a not true statement about Director Identification Number? 

A.) Every individual, intending to be appointed the Director of a company should make an application to the Government for an Identification Number 

B.) An individual can have up to five Director Identification Numbers at a time, not more 

C.) A Director should intimate his Director Identification Number to the concerned company/companies 

D.) The Director Identification Number should be intimated to the Registrar 

14.) Which one of the following is eligible to be appointed as the Managing Director of a company? 

A.) A person who is an undischarged insolvent 

B.) A person who suspends payments 

C.) A person has been employed in the same company for 10 years or more 

D.) He has been convicted of an offence of moral turpitude 

15.) As per the Companies Act, at one time, a person cannot hold the office of a Director for more than ________ companies. 

A.) 10 

B.) 20 

C.) 5 

D.) 2 

16.) In the case of every company, a meeting of its Board of directors shall be held at least once in every ______ months and at least _______ such meetings shall be held in every year. 

A.) Six, Two 

B.) Four, Three 

C.) Three, Five 

D.) Three, Four 

17.) According to section 425 of the Companies Act, winding up of a company may be either _________ or ____________. 

A.) Voluntary; by the Court 

B.) Involuntary; by the Board of Directors 

C.) Due to insolvency; Voluntary 

D.) By the Tribunal; by force 

18.) In which of the following cases will a company not be wound up by the Tribunal, as under section 433 of the Companies Act? 

A.) Company is unable to pay its debts 

B.) If the number of members of a public company is below 10 

C.) If the Tribunal is of the opinion that the company should be wound up 

D.) If the company defaults in holding the Statutory Meeting 

19.) Which of the following statements are true, in the context of winding up of companies? 

A.) If, in the case of a winding up commenced after the commencement of this Act, the liquidator is at any time of opinion that the company will not be able to pay its debts in full within the period stated in the declaration, or that period has expired without the debts having been paid in full, he shall forthwith summon a meeting of the creditors, and shall lay before the meeting a statement of the assets and liabilities of the company. 

B.) In the event of the winding up continuing for more than one year, the liquidator shall call a general meeting of the company at the end of the first year from the commencement of the winding up, and at the end of each succeeding year 

C.) As soon as the affairs of the company are fully wound up, the liquidator shall make up an account of the winding up, showing how the winding up has been conducted and the property of the company has been disposed of 

D.) All of the above 

20.) A company having a permanent paid-up or nominal share capital of fixed amount divided into shares, also of fixed amount, or held and transferable as stock, or divided and held partly in the one way and partly in the other, and formed on the principle of having for its members the holders of those shares or that stock, and no other persons is known as a ___________ 

A.) Limited Stock Company 

B.) Joint Stock Company 

C.) Transferrable Stock Company 

D.) None of the above 

21.) According to the Companies Act, a Government company means any company in which not less than _____________ of the paid-up share capital is held by the Central Government, or by any State Government or Governments, or partly by the Central Government and partly by one or more State Governments and includes a company which is a subsidiary of a Government company as thus defined. 

A.) 25% 

B.) 50% 

C.) 51% 

D.) 75% 

Answers Quiz on Companies Act- 2 

1.) D 2.) A 3.) D 4.) C 5.) A 6.) B 7.) C 8.) D 9.) A 10.) A 11.) C 12.) B 13.) B 14.) C 15.) B 16.) D 17.) A 18.) B 19.) D 20.) B 21.) C 

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

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What is Marriage?

Marriage also is known as matrimony or wedlock is a legally recognized union of two people in a socially and recognized process that establishes rights and obligations between those persons and also between their (if any) biological or adopted children. 

Essentials of a Valid Marriage

Hindu Law

Section 5 of the Hindu Marriage Act, 1955 explains conditions for a valid marriage which are as follows:- (See Here)

Monogamy- Neither party at the time of marriage should have a spouse who is alive. The spouse being alive will bar the remarriage of either party and even if the remarriage happens it will be null and void and the party will be punished under Section 494 and Section 495 of Indian Penal Code, 1860. It must be taken into account that the first marriage of the party is legal. This condition prohibits the concept of bigamy or polygamy.

Mental health and capacity- The condition covers three important things:- 

Party should not be incapable of giving a valid consent due to unsound mind. 

Even if the party gives consent, he must not be suffering from any mental illness at such a rate to be unfit for marriage or procreation of children. The party should not be subjected to repeated attacks of insanity which would render him/her unfit for marriage. If a party suffers from a mental defect after marriage then the marriage does not violate this condition. 

Marriageable age- For party to be eligible for marriage, he/she must have completed 18 years of age in case of the bride and 21 years of age in case the bridegroom. However violation of this condition does not make the marriage void or voidable. It is valid though it will be penalised. It can be a valid ground for repudiating the marriage. The punishment for such a marriage prescribed under this Act is imprisonment for 15 days or a fine of Rs. 1,000 or both. 

Degree of prohibited relationship- This condition covers the following relationships between two parties:- 

1. By lineal ascent
2. By affinity

The parties should not come under the degree of prohibited relationship. 

Sapinda Relationship- Two persons are sapindas of each other if one is the lineal ascendant of the other within the limits of sapinda relationship or there is a common lineal ascendant between them. 

Marriage under Hindu law is sacrament and not a contract which can be entered into by executing a deed. (See Here)

Click Here

Muslim Law

Muslim marriage is regulated by custom. Muslim marriage is a contract with the sole object of procreating heirs. The following are the essentials of a valid Muslim marriage:- (See Here) 

Parties must be of sound mind– Lunatics can get married at lucid intervals when they can understand what they are doing. Idiots cannot do that. Idiocy is a state of mind where a person cannot understand the consequences of his action. An insane person can contract a marriage with the help of a guardian but on recovering he can repudiate the marriage. 

Parties must have attained puberty– The age of majority under this law is the age at which parties have attained puberty.  A person who is 15 years old is said to have attained puberty unless the otherwise proved. 

The religion of both parties– For a valid marriage, both parties must be Muslims irrespective of the sect. 

Consent– Both parties can give consent to the marriage on their own. If one of the parties is of unsound mind, consent can be given by his/her legal guardian. Consent must be given willingly without fraud, coercion or mistake of fact. 

Christian Law 

The Indian Christian Marriage Act, 1872 governs Christian marriages in India. The conditions for getting a certificate of valid marriage are similar to Hindu Marriage Act, 1955. 

1. The groom must be at least 21 years of age and the bride at least 18 years.
2. Neither party should have a spouse living at the time of marriage.
3. The bride and groom need a licensed person (refer to Part I of  Indian Christian Marriage Act, 1872) and two witnesses.
4. Finally, they need to speak certain words in front of these persons. 

Parsi Law

The Parsi Marriage and Divorce Act, 1936 governs Parsi marriages in India. Section 3 lays down the following conditions for a valid marriage:-

1. A ceremony called “Ashirvad” must take place in the presence of a priest and two Parsi witnesses.
2. Just like the HMA, no prohibited relationships as per Schedule I.
3. The bride and the groom should be 21 years old and 18 years old respectively.

Special Marriage Act, 1954

The Act covers all marriages which are not covered in the above categories and its main objective is to legalise inter-religion marriages. Parties belonging to the same religion can also be married under this Act. The conditions for a valid marriage are as follows:-

1. Neither party must have a living spouse at the time of marriage.
2. The parties must be of sound mind, capable of giving free consent and not subject to recurrent attacks of insanity or epilepsy.
3. They should not come under prohibited degrees of relationship with each other.
4. The bride and the groom should be 21 years old and 18 years old respectively.

What are Void and Voidable Marriages?

Section 11 of Hindu Marriage Act, 1955 defined void marriages as those marriages which were solemnised after the commencement of this Act if a petition is presented by either party against another party and will be declared the same by a decree of nullity if it violates some conditions of a valid marriage. 

Section 12 of Hindu Marriage Act, 1955 defines a voidable marriage as a marriage which can be annulled or avoided at the discretion of the parties. 

The following are the differences between these two marriages:-(See Here)

1. In a void marriage, it is the parties discretion even without recourse to the court to treat it as a nullity. Neither party is under any obligation to seek a declaration of nullity under this section. When a marriage is void, the court regards it as never having taken place and that there is no conferment of status of matrimony as a result thereof. A voidable marriage, on the other hand, is regarded by the court as a valid and subsisting marriage until a decree of nullity is obtained during the lifetime of the parties. In a void marriage, the decree declares the status and in a voidable marriage the decree changes the status.
2. In a voidable marriage, till it is annulled by a decree, the parties are husband and wife and children out of such marriage are legitimate. A voidable marriage can be avoided only on presentation of a petition by either party thereto whereas a marriage which is null and void may be declared under ordinary law to be so even at the instance of a stranger whose interests are affected by such marriage. 
3. In a void marriage, lapse of time is not a bar to the inquiry as to their validity or invalidity. Thus it can be questioned at any time because it is seeking a relief of declaration regarding status. Whereas a marriage which is voidable cannot be questioned after the death of either party.
4. In a void marriage, no rights or obligations are created between the parties to marriage, which arise in lawful marriages in normal course as a void marriage stands nullified from the very beginning.

Registration of Marriage

All marriages in India are compulsorily registered under two Acts namely:- (See Here)

1. Hindu Marriage Act, 1955
2. Special Marriage Act, 1954

Under Hindu Marriage Act, 1955 both parties have to be present along with their guardians or witnesses within 1 month from the date of marriage. Marriage is registered before a marriage registrar or tehsildar of the district where the parties got married. Notice is not required. It can be done on the same day of filing of application or few days of moving the application for marriage. Parties will receive a marriage certificate which will prove the registration of marriage.

Under Special Marriage Act, 1954, both parties must be present for registration along with 3 witnesses in whose presence the marriage is solemnized by the Marriage Officer. Marriage is registered and the parties receive marriage certificate after a few days.

Quiz on Marriage

1.) The Hindu Marriage Act, 1955 does not apply to which of the following? 

A.) Jain 

B.) Sikhs 

C.) Buddhist 

D.) Parsis 

2.) Under the Hindu Marriage Act, 1955, “sapinda relationships” extends through the mother till- 

A.) Third Generation 

B.) Fourth Generation 

C.) Fifth Generation 

D.) Seventh Generation 

3.) What is the legal age for marriage under the Hindu Marriage Act? 

A.) 21 for both Male and Female 

B.) 21 for Male and 18 for Female 

C.) 18 for both Male and Female 

D.) None of These 

4.) Which of the following is the correct forum to file a petition for restitution of conjugal rights? 

A.) Court of 1st class judicial magistrate 

B.) Munsif Magistrate 

C.) District Court 

D.) High Court 

5.) Marriages under Section 5(ii) of the Hindu Marriage Act, 1955 are 

A.) Null 

B.) Null and Void 

C.) Voidable 

D.) Void 

6.) Under the Hindu Marriage Act, 1955, what is the minimum time period of desertion by either of the spouse required before filing for a divorce? 

A.) 1 year 

B.) 2 years 

C.) 5 years 

D.) 7 years 

7.) What is the minimum period that should elapse before either of the spouse can file a divorce petition under Hindu Marriage Act, 1955? 

A.) 3 months of marriage 

B.) 6 months of marriage 

C.) 1 year of marriage 

D.) 2 years of marriage 

8.) What is the prescribed punishment for breaching the minimum age requirement under the Hindu Marriage Act, 1955? 

A.) 15 days imprisonment or Rs 1000 fine or both 

B.) 30 days imprisonment or Rs. 1000 fine or both 

C.) 15 days imprisonment or Rs 5000 fine or both 

D.) None of These 

9.) When were women given a right to inherit property under Hindu Succession Act, 1956? 

A.) 2005 

B.) 2006 

C.) 2007 

D.) 2008 

10.) Under the Hindu Adoption and Maintenance Act, 1956, what is the maximum age for a person to be taken for adoption? 

A.) 15 years 

B.) 16 Years 

C.) 17 Years 

D.) 18 Years 

11.) Can a child adopted under Hindu Adoption and Maintenance Act, 1956 renounce his adoption? 

A.) Yes 

B.) No 

C.) Yes, with consent of both the parents 

D.) Yes, after attaining the age of majority 

12.) What is the punishment prescribed for payment in exchange of adoption under the Hindu Adoption and Maintenance Act, 1956? 

A.) 3 months imprisonment 

B.) 6 months imprisonment 

C.) 1 year imprisonment 

D.) 2 years imprisonment 

13.) Under the Hindu Adoption and Maintenance Act, a widowed daughter-in-law is entitled to maintainace by her 

A.) Father-in-law 

B.) Father 

C.) Deceased husband’s brother 

D.) None of the above 

14.) The consideration for marriage under Muslim law is know as 

A.) Mahr 

B.) Khula 

C.) Mubarat 

D.) Zihar 

15.) Which of the following forms of Talaq is not recognised by Shias? 

A.) Talaq-i-sunnat 

B.) Ila 

C.) Talaq-i-Biddat 

D.) None of the above 

16.) Under the Hindu law, divorce by mutual consent was introduced after what year? 

A.) 1955 

B.) 1963 

C.) 1976 

D.) 2005 

17.) A marriage between a Hindu man and a Muslim woman can be validated under which legislation? 

A.) Special Marriage Act, 1954 

B.) Hindu Marriage Act, 1955 

C.) Cannot be validated 

D.) None of these 

18.) Can the adoptive father or mother under the Hindu Adoption and Maintenance Act, 1956 give the child for further adoption? 

A.) Yes 

B.) No 

C.) Yes, with the consent of child 

D.) None of these 

19.) A Hindu couple is permitted to adopt a Muslim child under which legislation? 

A.) Juvenile Justice Act, 2015 

B.) Hindu Adoption and Maintenance Act, 1956 

C.) Children Welfare Act, 1978 

D.) None of these 

20.) As per the Hindu Marriage Act, ‘degrees of prohibited relationships’ apply to persons if they are related by- 

A.) Full Blood 

B.) Half of Uterine Blood 

C.) Adoption 

D.) All of these 

Answers 

1.) D 2.) A 3.) B 4.) C 5.) C 6.) B 7.) C 8.) A 9.) B 10.) A 11.) B 12.) B 13.) A 14.) A 15.) C 16.) C 17.) A 18.) C 19.) A 20.) D 

To know more about, laws of taxation for AIBE, please Click Here

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

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What Is Divorce?

Divorce is a legal action in which a couple terminate or dissolve their marital relationship. It generally refers to a legal action which ends a marriage before the death of either spouse. (See Here)

What Are The Grounds For Divorce?

Hindu Law

According to Section 13 of Hindu Marriage Act, the following are the grounds for divorce:-

• ADULTERY– If either of the parties indulges in sexual intercourse outside marriage, it is called an act of adultery. Divorce can be filed by the aggrieved party on this ground. 
• CRUELTY– If a petitioner is subjected to mental or physical harm that causes danger to his/her life, it is called an act of cruelty. 
• DESERTION– If the petitioner is abandoned by his/her spouse for not less than 2 years immediately before the petition for divorce is presented in court. 
• CONVERSION– If either party ceases to be a Hindu by converting to another religion. 
• MENTAL DISORDER– If a party is of unsound mind, suffering from a mental disorder to such an extent that petitioner cannot live with the respondent. 
• LEPROSY– If either party suffers from an incurable form of leprosy then a petition for divorce can be presented in court. 
• VENEREAL DISEASE- If either party suffers from communicable form of a venereal disease then a petition for divorce can be presented in court. For eg. AIDS. 
• RENUNCIATION– If either party has renounced the world by joining a religious sect.
• NOT HEARD ALIVE– If either party has not been heard from for 7 years by persons who would naturally have heard from him had the party been alive. 
• NO RESUMPTION OF COHABITATION– There has been no resumption of cohabitation between parties for or after 1 year of the passing of a decree of judicial separation. 
• NO RESTITUTION OF CONJUGAL RIGHTS– There has been no restitution of conjugal rights between parties for or after 1 year of passing of a decree of restitution of conjugal rights.

A wife may also present a petition for divorce on the following grounds:-

1. In case of a solemnized marriage before the commencement of this Act, the husband remarried before such commencement or any other wife of the husband was alive at the time of solemnization of the marriage of the petitioner. 
2. Since the solemnization of marriage, the husband has been guilty of rape, sodomy or bestiality. 
3. In a suit under Section 18 of Hindu Adoptions and Maintenance Act, 1956 or under Section 125 of the Criminal Procedure Code, 1973 or under corresponding Section 488 of Criminal Procedure Code, 1898, a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for 1 year or upwards. 
4. Her marriage was solemnized before she was 15 years old and she repudiated such marriage after she was 15 years old but before she turned 18 years old.

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Under Section 13B of the Hindu Marriage Act, 1955  a petition for divorce can be presented by both the parties to a marriage to the district court because they have been living separately for 1 year or more, they have not been able to live together and they have mutually agreed to end this marriage. Parties may on a motion to withdraw this petition not earlier than 6 months and not later than 18 months after the date of presentation of the petition and if they do not withdraw it then the district court will, after hearing the parties and after making an inquiry that the marriage is solemnized under this Act and that the averments made in the petition are true, dissolve the marriage by passing a decree.

Muslim Law

According to Section 2 of The Dissolution of Muslim Marriages Act, 1939, the following are the grounds for divorce:-

1. Husband’s whereabouts has not been known for 4 years. 
2. Husband has neglected or failed to provide for his wife’s maintenance for 2 years. 
3. Husband has been sentenced to prison for 7 years or more. 
4. Husband has failed to perform his marital obligations without reasonable cause for 3 years. 
5. Husband was impotent at the time of marriage and continues to do so. 
6. Husband was insane for 2 years or suffering from leprosy or venereal disease. 
7. Woman was given in marriage at 15 years of age by her father or guardian, repudiated the marriage before she was 18 years. 
8. Husband treats his wife with cruelty.
9. Any other ground valid for dissolving a marriage under Muslim law. 

Parsi Law

According to Section 32 of The Parsi Marriage and Divorce Act, 1936, the following are the grounds for divorce:-

1. Marriage has not been consummated within 1 year after the solemnization due to refusal of the defendant. 
2. At the time of marriage, defendant was of unsound mind. 
3. Defendant was of unsound mind for 2 years immediately before filing of the suit or has been suffering from a mental disorder so much that the plaintiff cannot live with the defendant. 
4. Defendant was pregnant at the time of marriage ny some other person except the plaintiff. 
5. Since the solemnization of marriage, defendant has committed adultery or bigamy or rape or fornication or an unnatural offence.
6. Defendant has treated the plaintiff with cruelty since the solemnization of marriage.
7. Since the marriage, defendant caused grievous hurt or infected a venereal disease to the plaintiff or if defendant is the husband has compelled the wife to submit herself of prostitution.
8. Defendant is undergoing imprisonment for 7 years or more. 
9. Defendant has deserted the plaintiff for at least 2 years.
10. Order passed against defendant awarding maintenance to the plaintiff and parties did not have intercourse for 1 year or more since such decree. 
11. Defendant has converted to another religion.

Section 32A states that either party to a marriage if it is solemnized before or after the commencement of Parsi Marriage and Divorce (Amendment) Act, 1988 may also file for divorce under the following grounds:-

1. If there is no resumption of cohabitation between parties to the marriage for 1 year or above after passing of a decree of judicial separation. 
2. If there has been no restitution of conjugal rights between parties to the marriage for 1 year or above after passing a decree regarding the same.

According to Section 32B, a petition for divorce can be presented by both the parties to a marriage to the district court because they have been living separately for 1 year or more, they have not been able to live together and they have mutually agreed to end this marriage provided that no suit can be filed unless 1 year has passed since the date of marriage. 

Christian Law

Section 10 of The Divorce Act, 1869 lays down grounds for divorce in case a respondent:-

1. has committed adultery. 
2. has converted to another religion. 
3. has been for not less than 2 years immediately before the presentation of petition:-
4. Suffering from an incurable unsound mind.
5. Suffering from a communicable venereal disease.
6. Suffering from leprosy. 
7. has not been heard from for 7 years or more by those people who would naturally have heard of him is he was alive. 
8. has wilfully refused to consummate the marriage. 
9. has not complied with decree of restitution of conjugal rights for 2 years or more decree is passed. 
10. has deserted the petitioner for at least 2 years immediately before the presentation of petition. 
11. has treated the petitioner with cruelty.

A wife can present a petition for divorce if the husband has since marriage been guilty of rape, sodomy or bestiality.

Section 10A states that both the parties to the marriage may together present a petition for divorce to the District Court if such marriage was solemnized before or after the commencement of Indian Divorce (Amendment) Act, 2001 on the grounds that they have been living separately for 2 years, they have not been able to live together and they have mutually agreed to end this marriage.

Special Marriage Act, 1954

Section 27 of the Special Marriage Act, 1954 lays down the grounds for divorce if the respondent has:-

1. After the solemnization of marriage had indulged in the act of voluntary sexual intercourse with any person other than his/her spouse. 
2. Deserted the petitioner for 2 years immediately before the presentation of petition. 
3. Been undergoing imprisonment for 7 years for any offence under Indian Penal Code, 1860. 
4. Been treating the petitioner with cruelty since the solemnization of marriage. 
5. Been incurably of unsound mind or suffering from a mental disorder. 
6. Been suffering from a communicable venereal disease or leprosy not being contacted from the petitioner. 
7. Not been heard of as being alive for 7 years by those people who would have naturally heard from him if he would have been alive.

A wife can also present a petition for divorce to a district court on the following grounds:-

1. Her husband has been guilty of rape, sodomy or bestiality since the solemnization of marriage. 
2. In a suit under Section 18 of Hindu Adoptions and Maintenance Act, 1956 or under Section 125 of Criminal Procedure Code, 1973 or under corresponding Section 488 of Criminal Procedure Code, 1898, a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for 1 year or upwards.

If a marriage is solemnized before or after the commencement of Special Marriage (Amendment) Act, 1970, either party to a marriage may present a petition for divorce:-

1. If there is no resumption of cohabitation between parties to the marriage for 1 year or above after passing of a decree of judicial separation. 
2. If there has been no restitution of conjugal rights between parties to the marriage for 1 year or above after passing a decree regarding the same.

According to Section 28, a petition for divorce can be presented by both the parties to a marriage to the district court because they have been living separately for 1 year or more, they have not been able to live together and they have mutually agreed to end this marriage. Parties may on a motion to withdraw this petition not earlier than 6 months and not later than 18 months after the date of presentation of the petition and if they do not withdraw it then the district court will, after hearing the parties and after making an inquiry that the marriage is solemnized under this Act and that the averments made in the petition are true, dissolve the marriage by passing a decree.  

What Is Judicial Separation?

It is an instrument devised by law in which time is given to the married couple  for introspection in their troubled marriage. It is seen as a last resort before divorce is granted. Once a decree for judicial separation is passed, the husband or wife is under no obligation to cohabit with their spouse. (See Here)

Hindu Law

Section 10 of Hindu Marriage Act, 1955 specifies judicial separation in which either party may present a petition for the same on any grounds for divorce given under Section 13 and in case of a wife presenting such a petition, it shall on the grounds specified separately in the same section.

Muslim Law

A Muslim woman can present a petition for judicial separation on the grounds of divorce given under Section 2 of Dissolution of Muslim Marriages Act, 1939. (See Here)

Christian Law

Sections 22 to 26 of The Divorce Act, 1869 explain judicial separation. Section 22 states that petition for judicial separation may be presented by either party on the grounds of adultery, cruelty or desertion for 2 years or above and such decree shall have the effect of a divorce.

Special Marriage Act, 1954

Section 23 of Special Marriage Act, 1954 states that either party to a marriage may present a petition to the District Court on any of the grounds mentioned in Section 27 and on failure to comply with a decree for restitution of conjugal rights. 

Difference Between Judicial Separation And Divorce

The difference between judicial separation and divorce are as follows:-

1. In judicial separation, marriage is temporarily suspended whereas in divorce marriage permanently comes to an end. 
2. In judicial separation, reconciliation between parties is possible whereas in divorce parties cannot reconcile. 
3. In judicial separation, parties cannot remarry wheres in divorce parties can remarry. 
4. In judicial separation, there is only one stage of judgment wherein if the grounds are satisfied then the decree is passed. In divorce, judgment is a two step process in which there is reconciliation and then divorce.

What Is Annulment Of Marriage?

Annulment is a legal procedure in which a marriage is declared null and void. It is generally given only in cases of bigamy and not meeting the minimum age requirements for marriage. A marriage is annulled if certain legal requirements are not met at the time of marriage. Such marriage is considered to never have existed in law (See Here)

Hindu Law

Void and voidable marriages given under Sections 11 and 12 Hindu Marriage Act, 1955 respectively are annulled by parties. 

Muslim Law 

Faskh is translated as nullity of marriage but is not equivalent to annulment of marriage used in matrimonial suits. A declaratory suit can be filed with respect to right or status outside marriage under this law as per Section 34 of Specific Relief Act, 1963. A declaratory suit can be filed on the following grounds:- (See Here)

1. The marriage of the plaintiff with the defendant is null and void; 
2. The defendant who is claiming himself or herself to be the husband or wife of the plaintiff, is, in fact, not his or her husband or wife. (This is known as jactitation); 
3. The plaintiff is lawfully wedded husband or wife of the defendant; 
4. The plaintiff in the exercise of his right of repudiation of marriage, or in the exercise of the option of puberty, has repudiated the marriage with the defendant; 
5. The plaintiff has terminated his or her irregular marriage with the defendant; or 
6. The plaintiff’s marriage with the defendant has been validly dissolved.

Parsi Law

Section 30 of The Parsi Marriage and Divorce Act, 1936 states that if consummation of a marriage is not possible then on the instance of either party such marriage shall be declared as void. 

Christian Law

Sections 18 to 21 of The Divorce Act, 1869 explains nullity of marriage. Either husband or wife can present a petition to the district court declaring the marriage to be null and void on the grounds that:-

1. The respondent was impotent at the time of marriage and institution of suit. 
2. Parties are within the prohibited degree of consanguinity or affinity. 
3. Either party was a lunatic or idiot at the time of marriage. 
4. Former husband or wife of either party was alive at the time of marriage and such marriage with former husband or wife was then in force. 

If the consent of either party was obtained by force or fraud then it shall not affect the jurisdiction of district court to make a decree of nullity of marriage.

Special Marriage Act, 1954

Section 24 states that either party to a marriage may present a petition seeking a decree of nullity if:-

• Either party had a spouse living. 
• Either party:-
• was incapable of giving consent to the marriage due to unsoundness of mind
• even if capable of giving consent, has been suffering from a mental illness of such an extent as to be unfit for marriage
• has been subjected to recurrent attacks of insanity. 
• Male was below 21 years of age and female was below 18 years of age. 
• Parties were within the degrees of prohibited relationship.

This section will not apply to a marriage solemnized within the meaning of Section 18 (Effect of registration of marriage) but such registration will have no effect if it was in contravention of any conditions of Section 15.

Section 25 states that a voidable marriage may be annulled by a decree of nullity if:-

1. There has been non-consummation of marriage due to wilful refusal of the respondent to consummate the marriage. 
2. Respondent was pregnant by some other person other than the petitioner at the time of marriage. 
3. Consent of either party was obtained by coercion or fraud.

Decree shall not be granted in the 2nd condition if:-

1. Petitioner was ignorant of the facts alleged at the time of marriage. 
2. Proceedings were instituted within 1 year of marriage. 
3. Marital intercourse has not taken place with the consent of the petitioner because of the existence of the grounds of decree. 
4. Decree shall not be granted in the 3rd condition 
5. Proceedings have not been instituted within 1 year after coercion had ceased or fraud had been discovered.
6. Petitioner has lived with his/her partner as husband and wife with  free consent after coercion had ceased or fraud had been discovered.    

Difference Between Annulment Of Marriage And Divorce

Divorce ends a legal marriage whereas annulment treats the marriage as if it never existed. (See Here)

To know more about, laws of taxation for AIBE, please Click Here

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

The post AIBE: Concept of Divorce in Family Law appeared first on iPleaders.

This article is written by Komal Kumari, a 4th year student of BA.LLB in Lloyd Law College, Greater Noida. The article focuses on the aspects of Drug Possession, types of drugs, and the drug control strategy and policies laid down by the Central government.

“Smoke away your worries.” In our country, individuals love to get high on weeds. Isn’t this an irony that the possession of drugs has so many aspects, the first one that we have on our hands is that we give such a huge importance to our culture, our mythology, we are known as the land of shiva, whom we worship and to whom we offer bhaang (a kind of drug) as in holistic manner an offering to the lord, distribute as the offering (prasad) on occasions like holi, akha teej, etc, unlike other countries we have a cultural connection of using certain natural forms of narcotic substances for celebrating some religious festivals and on the other hand we have banned the possession of the same substance and termed it as illegal in the country because it has repercussions or rather a huge impact on the health of any individual consuming it and does lead to serious crimes of trafficking, drug abuse and serious impact on the economy as well. The use of drugs leads to a number of criminal activities and family disintegration. The war on drugs has resulted in crimes ranging from blue-collar to white-collar crimes. In this era when terrorism is a global threat, drugs are used in the form of funding for terrorist activities. All of these require proper and effective laws to fight the evils of drug possession. 

Types of Drugs 

OPIUM – Papaver Somniferum, commonly known as the opium poppy, is a species of flowering plant in the family Papaveraceae. It is a plant that grows in many countries around the world with a moderate climate. Raw Opium is a non-homogeneous material, sticky, tar-like and dark brown when it is fresh, and becomes brittle and hard as it ages. Opium contains a class of naturally occurring alkaloids known as opiates which includes Morphine, Thebaine, Codeine, Papaverine, Noscapine and Oripavine. Heroin is synthesized from Opium.

Medical Opium: The Opium that undergoes the necessary process to adapt for medical use as per the requirements of the central government.

Morphine: This is also known as Mud, Morf, Morpho or Goma etc. This is a refined version of opium formed by mixing opium gum with Lime water and a few organic solvents.

Heroine: This is also known as Brown Sugar, Mexican Mud, Smack, Crap, Horse, Junk and Big H etc. It is made when morphine is further refined by treating it with acetylene anhydride (AC20).

Codeine: Another derivative of opium which is usually found in cough syrups.

Poppy straw – The husk left after the extraction of opium from the pods. It consists of small quantities of morphine, which is used as a drug.

Trafficking trend – Tra­fficking of Opium mainly takes place in Punjab, Rajasthan, M.P., Bihar, Jharkhand, Manipur and Gujarat.

HEROIN – Heroin is also known as di-acetyl morphine, is an opioid made from morphine, after processing it with Acetic Anhydride. It comes out in a variety of colours ranging from white, o white and brown to grey. Colours also depend on the impurities added as it passes through a number of hands due to successive levels of adulteration. The South West Asian origin Heroin (white and brownish mostly) that enters India through the Indo-Pak border has a higher level of purity.

Trafficking trends – Major tra­fficking of Heroin in India takes place through Indo-Pakistan border mainly in the states of Punjab and Jammu & Kashmir. From these states Heroin is tra­fficked into other states.

CANNABIS – Cannabis is a genus of flowering plants in the family Cannabaceae. The Cannabis, produced from the Cannabis sativa plant, is used in three forms: herbal Cannabis, the dried leaves and flowering tops. Cannabis is also known as ‘Ganja,’ or ‘Weed’. Cannabis resin, the pressed secretions of the plant, known as ‘Hashish’ or ‘Charas;’ and Cannabis oil, a mixture resulting from distillation or extraction of active ingredients of the plant.

Trafficking trends – Traffi­cking from the North-East India to eastern states is mainly by surface transport. Tra­fficking in substantial quantities takes place across India – Nepal border and in the states of Andhra Pradesh, Odisha, Uttar Pradesh, West Bengal and Tripura. The main transit routes for Ganja are through Assam, West Bengal, Bihar, Uttar Pradesh, Nagaland and Chhattisgarh.

HASHISH – Hashish, or Charas, is a drug made from cannabis. Hashish is cannabis resin. Generally, Hashish is extracted from the plants by rubbing the flowering tops of the plant between the palms of the hand or on rubber sheets.

Trafficking trends – Charas/Hashish is derived from the illicit cannabis cultivation by the drug tra­ffickers especially in the districts of South Kashmir and Kullu in Himachal Pradesh. There is a trend of traffi­cking of Charas from Kashmir to Maharashtra, Rajasthan, Goa & Gujarat. Charas is also tra­fficked from Nepal to India.

COCAINE – Cocaine is a powerful addictive stimulant drug made from the leaves of the coca plant native to South America. It is known as a street drug, it looks like a fine, white, crystal powder. The primary markets are North America and Europe. In India, cultivation of coca plant is not done. However, Cocaine is mainly smuggled in by West African drug tra­ckers.

Trafficking trends – Smuggling of cocaine is mostly being done by African nationals based in India. Instances of Cocaine being smuggled from Argentina, Brazil and South America have also come to notice. Seizures of Cocaine in India have been made mostly at the airports. The trafficking of small quantities of Cocaine is usually done through parcels hidden in common household articles like food items, utensils, cosmetics, books, and clothing.

ACETIC ANHYDRIDE – One of the largest producers of Acetic Anhydride for legitimate usage is India. It is widely used by the pharmaceutical and textile industries in India as well as being used for the illicit manufacture of Heroin.

Trafficking trends –

1. The medicines having narcotic/psychotropic components are under the dual control of Drugs and Cosmetic Act as well as the NDPS Act, the latter being more stringent.
2. There also exists a loose regime of over the counter sale of drugs under the category of dispensation against valid prescriptions.
3. Abuse of pharmaceutical drugs is prevalent in virtually all states of northern India. 
4. Abuse of Codeine Based Cough Syrups. 
5. Tra­fficking of CBCS is mainly along the border, especially at Indo-Bangladesh. Codeine based cough syrups are mainly tra­cked from Northern states like U.P, Delhi, Bihar to Northeastern states by road in trucks and railway parcels and there to Bangladesh. CBCS brands like Corex, Phensedyl, Recodex are abused and traf­ficked. 
6. Abuse of Depressants: Alprazolam, Diazapam, Clonazepam, Lorazapam, Benzodiazepine etc. 
7. Tramadol is used like codeine. It is not covered under NDPS Act, 1985. It is a Schedule ‘H’ drug under the Drugs & Cosmetics Act, 1940 and can only be dispensed under the prescription of a registered Medical Practitioner. Tramadol is also not included in any of the Schedules of 1971 UN Convention on Psychotropic Substances. It is banned in many of the countries resulting in the smuggling through India.Tramadol is traffi­cked via courier and manual means to countries like US, Canada etc. The notification of tramadol under NDPS Act is under consideration. 
8. Ayurvedic tablets containing Opium like Kamini Vidrawan Ras, Barshasa. 
9. Diversion of tablets containing Ephedrine/ Pseudo-ephedrine. 
10. Use of Internet for smuggling these pharmaceutical drugs is on the rise.

Psychotropic Substance 

Seven (7) NPS were notified under NDPS Act as per recommendation of 59th Commission on Narcotic Drugs. Out of 7 NPS, 5 were notified as Psychotropic Substances. The name of a few chemicals scheduled as Psychotropic Substances are as follows:

1. Para-methoxymethylamphetamine (PMMA), is notified as ‘Psychotropic Substance’.
2. pyrrolidinovalerophenone (PVP), is notified as ‘Psychotropic Substance’.
3. methoxetamine (MXE), is notified as ‘Psychotropic Substance’.
4. Phenazepam, is notified as ‘Psychotropic Substance’.

Is it illegal to be high?

It is illegal to be high in India as provided under Section 27 of the NDPS Act, which provides for the punishment for the consumption of any Narcotic drugs or psychotropic substance stating that any individual who consumes any kind of narcotic drugs or psychotropic substances would be punishable, if the substance which has been consumed is morphine, cocaine, diacetyl-morphine or any other narcotic drug or any psychotropic substance as may be specified by the Central Government in this behalf with a stringent punishment of imprisonment for a term which may extend to one year, or to pay a fine which may extend to twenty thousand rupees,or with both. If the narcotic drug or psychotropic substance consumed is other than those mentioned above than the punishment would be imprisonment for a term which mav extend to six months, or to pay the fine which may extend to ten thousand rupees or with both.

With the exception of scientific and medical purposes the following actions pertaining to drugs are termed as illegal:

• Cultivation or growing opium, poppy or any cannabis plant.
• Possessing any kind of narcotic drugs or psychotropic substances.
• Sale or purchase of narcotic drug or psychotropic substance.
• Using raw materials from the source for making of any narcotic drug or psychotropic substance.
• Carrying or transporting narcotic drug or psychotropic substance from one state to another, into union territory, importing or exporting from the country.
• Consumption of narcotic drugs or psychotropic substance.
• Ware-housing or storing large quantities of narcotic drugs or psychotropic substances.

Felony drug possession 

The term Felony originated from English Common law, it is defined as a crime of a serious nature, it can be violent as well as non-violent. Felonies are punishable by imprisonment for a minimum term of one year, to which additional punishment including capital punishment can be included. Crimes are usually divided into two heads, felonies and misdemeanours based on nature and the punishment (maximum punishment) which can be imposed. Felony involves serious misconduct that is punishable by death. The NDPS Act, 1985 had the provision of death penalty for subsequent convictions for trafficking large quantities of drugs under Section 31A of the act but through the amendment of 2014 the provision of the death penalty has been made discretionary for the judge by providing a sentence for 30 years. But on the other hand, this same amendment increased the punishment for “small quantity” offences to 1 year from a maximum period of 6 months. Therefore, the offences related to large quantities of drugs can be termed as felony.

Drug Trafficking 

Drug trafficking is the term used for referring the cultivation, production, consumption, import, export or smuggling of narcotic drugs and psychotropic substances at national as well as international level. There is a huge menace of drug trafficking, that is required to be controlled and for the same Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic substances Act was enacted. International Day against Drug Abuse and Illicit Trafficking is celebrated on June 26, this is an act initiated by the world community to make the people aware of the menace of drug abuse and especially the youth. 

There are various internal and external factors contributing to the drug trafficking scenario in India. The geographical location of India is as such, it makes it vulnerable to transit, trafficking and consumption of Opium derivatives in various forms along the known trafficking routes. One of the major external factors is related to be India’s close proximity to the major Opium producing regions of SouthEast and SouthWest Asia known as the ‘Golden Crescent’ and the ‘Golden Triangle’. A few of the internal factors which are responsible for drug trafficking are illicit cultivation of Poppy and the diversion of Opium sources from the licit sources into illicit production in interior areas.

The major reason of illicit drug trafficking is the geographical location of India, making our country as the transit country since a long time resulting in the smuggling of drugs into the country as well as out of the country, leading to the problem of drug control in India. In order to fight the problem of smuggling and trafficking, India has developed various policies and strategies i.e., Enforcing and surveying the import, export points and land borders, trying to improve the coordination between the various drug law enforcement agencies, intercepting and preventing the movement along the known drug routes, international co-operation to facilitate coordination and universal action, strengthening the intelligence apparatus for improving the analysis, collection, collation and dissemination of operational intelligence.

The concern of Supreme Court regarding drug trafficking can be described through the case of Durand Didier vs Chief Secretary, Union Territory, 1989 AIR 1966, 1989 SCR (3)1025, where the court stated that – “ With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizable section of the public, particularly adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, the Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.”

Possession of drugs on school grounds 

Youngsters and teenagers always try to be adventurous and want to try out new things through which they can prove that they can do things. This is the age when the addicts usually get initiated into drugs abuse. Through a survey conducted by the East Delhi Municipal Corporation (EDMC) on the orders of the Delhi High Court’s Juvenile Justice Committee. It was found that 12,627, or roughly around 16.8% of 75,037 students across 368 schools are using substances. Out of this, 8,182 students were using betel nuts (supari) mixed with dried opium shells; 2,613 students chewed tobacco; 1,410 students smoked beedis and cigarettes; 231 consumed alcohol; and 191 used inhalants such as fluid, petrol, sulochan (an industrial glue) and injectable drugs.

Section 32B of the Narcotic Drugs and Psychotropic Substances Act mentions that if the offence is committed in any educational institution or social service facility or even in the immediate vicinity of such institution or facility or in other places to which school children and students resort for educational, sports and social activities’ as one of the aggravating factors which may be considered by the Court for imposing higher than the minimum penalty prescribed for the offence. And in to tackle the problem of sale of drugs to school and college children: 

1. The Local police shall pay special attention to areas surrounding schools and colleges in their efforts to tackle drug peddlers. 
2. Schools and colleges will be encouraged to look out for peddlers in their vicinity and report them to police. 
3. Schools and colleges will be encouraged to conduct surveys (possibly anonymous) to assess the levels of drug addiction among their students, and if addicted students can be identified, counselling sessions with their parents or wards to find medical help them from fighting this addiction. 
4. Inclusion of a comprehensive chapter on drug abuse, illicit trafficking and its socio-economic cost to self, society and the country by the Central and State Education Authorities.
5. Constitution of Anti-Drug Club in schools and colleges to promote a drug free life among its members and also in the institution.

First time possession charge 

The degree of punishment under the NDPS Act is devised not on the type of activity but to the proportional amount which is being carried. As per the Indian government, narcotic offence is more heinous than murder because the latter affects only an individual while the former leaves its deleterious impact on society. Nevertheless, drug dependant people, who are charged with the consumption of drugs or with an offence involving small quantity can choose to undergo medical treatment and get exempted from prosecution as provided under Section 64A of the said act. As per this section any individual who is charged with an offence punishable under Section 27 of the act which mentions the punishment for consumption of these substances or with offences involving small quantity of narcotic drugs or psychotropic substances, can voluntarily opt to undergo medical treatment for de-addiction from a hospital, an institution maintained/recognised by the Government or a local authority, shall not be liable to prosecution under section 27 or under any other section for offences involving small quantity of narcotic drugs or psychotropic substances. This immunity can be withdrawn if the individual does not undergo the complete treatment for de-addiction.

Punishment for Drug Possession 

The punishment under the NDPS Act depends on the quantity of drugs involved, here is a list of a few drugs and the quantity as specified under the Act: 

1. Punishment in relation to the violation of provisions related to poppy straw, prepared opium, opium poppy and opium, cannabis plant and cannabis, as mentioned in Section 15, 17, 18 & 20 of NDPS Act as- 
2. Anyone who violates the provision of this act, or any other rule or condition of license mentioned under this Act, by producing, manufacturing, possessing, purchasing, selling, transporting, importing or exporting inter-state will be punishable with- 
   1. Rigorous imprisonment for a term which may be extended to one year, or a fine which may be extended to ten thousand rupees or with both if the contravention involves small quantity.
   2. Rigorous imprisonment for a term which may be extended to ten years, and a fine which may be extended to one lakh rupees if the contravention involves quantity less than commercial quantity but more than small quantity.
   3. Rigorous imprisonment for a minimum term of ten years and can be extended to twenty years, and also a fine for a minimum amount of one lakh rupees and may be extended to two lakh rupees if the contravention involves commercial quantity.
   4. And if the reasons that have been recorded by the court, the fine imposed can exceed two lakh rupees.

1. Punishment in relation to violation of provision by cultivating any Cannabis plant as provided in Section 20 of NDPS Act as- 
   1. Rigorous imprisonment for a term which may be extended to ten years and also a fine which may be extended to one lakh rupees if the contravention is the cultivation of cannabis.
2. Punishment in relation to violation of provision related to coca plant and coca leaves as provided in Section 16 of NDPS Act as- 
   1. Anyone who violates the provision of this act, or any other rule or condition of license mentioned under this Act, by cultivating any coca plant or gathering any portion of the same or by producing, manufacturing, possessing, purchasing, selling, transporting, importing or exporting inter-state or uses coca leaves will be punishable with rigorous imprisonment for a term which may be extended to ten years with a fine which can be extended to one lakh rupees.
3. Punishment in relation to embezzlement of opium by cultivator as provided in Section 19 of NDPS Act as-
   1. Any cultivator, who is licensed to cultivate opium poppy, embezzles or illegally disposes off the opium produced or any other part of it will be punishable with rigorous imprisonment for a minimum term of ten years and which may be extended to twenty years with a minimum fine of one lakh rupees which can be extended to two lakh rupees.
   2. And if the reasons that have been recorded by the court, the fine imposed can exceed two lakh rupees.
4. Punishment in relation to the violation of provisions related to psychotropic substances, manufactured drugs and preparations, as mentioned in Section 21 & 22 of NDPS Act as- 
   1. Anyone who violates the provision of this act, or any other rule or condition of license mentioned under this Act, by manufacturing, possessing, purchasing, selling, transporting, importing or exporting inter-state or uses any psychotropic substances, manufactured drugs and preparations, will be punishable with- 
      1. Rigorous imprisonment for a term which may be extended to one year, or a fine which may be extended to ten thousand rupees or with both if the contravention involves small quantity.
      2. Rigorous imprisonment for a term which may be extended to ten years, and a fine which may be extended to one lakh rupees if the contravention involves quantity less than commercial quantity but more than small quantity.
      3. Rigorous imprisonment for a minimum term of ten years and can be extended to twenty years, and also a fine for a minimum amount of one lakh rupees and may be extended to two lakh rupees if the contravention involves commercial quantity.
      4. And if the reasons that have been recorded by the court, the fine imposed can exceed two lakh rupees.
5. Punishment in relation to illegal import into India, export from India or transhipping narcotic drugs and psychotropic substances, as mentioned in Section 23 of NDPS Act as- 
   1. Anyone who violates the provision of this act, or any other rule or condition of license mentioned under this Act, imports into India export from India or transhipping narcotic drugs and psychotropic substances, will be punishable with-
      1. Rigorous imprisonment for a term which may be extended to one year, or a fine which may be extended to ten thousand rupees or with both if the contravention involves small quantity.
      2. Rigorous imprisonment for a term which may be extended to ten years, and a fine which may be extended to one lakh rupees if the contravention involves quantity less than commercial quantity but more than a small quantity.
      3. Rigorous imprisonment for a minimum term of ten years and can be extended to twenty years, and also a fine for a minimum amount of one lakh rupees and may be extended to two lakh rupees if the contravention involves commercial quantity.
      4. And if the reasons that have been recorded by the court, the fine imposed can exceed two lakh rupees.
6. Punishment in relation to violation of Section 12 which provides the restrictions over external dealings in narcotic drugs and psychotropic substances, is mentioned in Section 24 of NDPS Act as- 
   1. Anyone who gets involved or controls any trade through which any kind of narcotic drugs or psychotropic substance is supplied to any person outside India or obtained outside India without prior authorisation of the Central government or as per the guidance provided will be punishable with-
      1. Rigorous imprisonment for a minimum term of ten years and which may be extended to twenty years with a minimum fine of one lakh rupees which can be extended to two lakh rupees.
      2. And if the reasons that have been recorded by the court, the fine imposed can exceed two lakh rupees.
7. Section 25 provides the punishment for knowingly allowing one’s premises to be used for commission of an offence as- 
   1. The same punishment that has been awarded for that particular offence.
8. Punishment in relation to violations pertaining to controlled substances, as mentioned in Section 25A of NDPS Act as- 
   1. Rigorous imprisonment for a term which may be extended to ten years, and a fine which may be extended to one lakh rupees.
   2. And if the reasons that have been recorded by the court, fine can exceed one lakh rupees.
9. Punishment for the consumption of any narcotic drug or psychotropic substance, as mentioned in Section 27 of NDPS Act as- 
   1. Rigorous imprisonment for a term which may be extended to one year, or a fine which may be extended to twenty thousand rupees or with both if the contravention involves small quantity if the substance consumed is cocaine, morphine, diacetylmorphine, or any other drug as has been specified by the central government.
   2. If the substance consumed is other than those mentioned above then with imprisonment which may be extended to six months, or with fine which may be extended to ten thousand rupees, or with both.
10. Punishment for financing illicit trafficking and harbouring offenders, as mentioned in Section 27A of NDPS Act as- 
    1. Rigorous imprisonment for a minimum term of ten years and which may be extended to twenty years with a minimum fine of one lakh rupees which can be extended to two lakh rupees.
    2. And if the reasons that have been recorded by the court, fine can exceed two lakh rupees.
11. Punishment in relation to attempts to commit offence, abetment and criminal conspiracy, as mentioned in Section 28 & 29 of NDPS Act as- 
    1. The same punishment that has been awarded for that particular offence.
12. Punishment in relation to preparations to do or omit to do anything which would constitute an offence punishable under any of the provisions of this Act, the person shall be punishable with half of the punishment with which he would have been punishable in the event of his having committed such offence and the same applies with the fine which would have been imposed, if the reasons that have been recorded by the court a higher fine can be imposed, as provided under Section 30 of the NDPS Act.
13. Punishment in relation to repeated offence the person shall be punished with rigorous imprisonment which would extend to one and one-half times the maximum term which has to be served and the same applies to the fine imposed that it will be extended to one and one-half times the maximum amount. If the reasons that have been recorded by the court a higher fine can be imposed, as provided under Section 31 of the NDPS Act.
14. As per Section 32, imprisonment up to six months, or fine, or with both is the punishment prescribed for violations that haven’t been mentioned elsewhere.

Punishment for possession of marijuana 

Marijuana is a mixture of the dried flowers, leaves, stems and seeds of Cannabis Sativa, a greenish-gray mixture. Tetrahydrocannabinol or THC is found in marijuana along with hundreds of other compounds. There are a number of slang terms used for referring marijuana i.e., ganja, herb, pot, bud, Mary Jane, weed, grass. It is considered as a soft drug( a drug of abuse which is considered relatively mild and likely not to cause addiction). People get high on this substance by smoking through pipes, water pipes which is often termed as bong; through hand-rolled cigarettes known as joints; by rolling these in cigar wraps termed as blunt. Smoking is not the only way for the consumption of this substance it is used for preparing tea (mostly when it is used for medicinal purpose), is mixed in edibles like candies, cookies and brownies. Marijuana is not only used for getting high but also has various medicinal benefits which help in the treatment of various kinds of disease i.e., is given to cancer patients during the chemotherapy treatment to relieve the patient from nausea and vomiting as well as for the treatment of the loss of appetite in AIDS patient. This medical marijuana is known as Marinol (Dronabinol), it is a synthetic form of tetrahydrocannabinol. 

Section 20 of Narcotic Drugs and Psychotropic Substances Act specifies the punishment in relation to cannabis or cannabis plant, as- 

1. Anyone who violates the provision of this act, or any other rule or condition of the license mentioned here, by cultivating, producing, manufacturing, possessing, purchasing, selling, transporting, importing or exporting inter-state or using cannabis will be punishable with- 
   1. Rigorous imprisonment for a term which may be extended to ten years and also a fine which may be extended to one lakh rupees if the contravention is the cultivation of cannabis.
   2. And if the contravention is related to all the other matters mentioned above apart from cultivation then- 
      1. Rigorous imprisonment for a term which may be extended to one year, or a fine which may be extended to ten thousand rupees or with both if the contravention involves small quantity.
      2. Rigorous imprisonment for a term which may be extended to ten years, and a fine which may be extended to one lakh rupees if the contravention involves quantity less than commercial quantity but more than a small quantity.
      3. Rigorous imprisonment for a minimum term of ten years and can be extended to twenty years, and also a fine for a minimum amount of one lakh rupees and may be extended to two lakh rupees if the contravention involves commercial quantity.
      4. And if the reasons which have been recorded by the court, the fine imposed can exceed two lakh rupees.

Is Bhaang beyond the purview of Narcotic Drugs and Psychotropic Substances Act, 1985 

As per the Narcotic Drugs and Psychotropic Substances Act, Cannabis along with its various different forms i.e., charas, ganja, bhaang, marijuana, hashish are termed as illegal and possession of the same has been termed as unlawful. 

Cannabis is defined under Section 2 (iii) & (iv) of NDPS Act, as “cannabis(hemp)” means- 

• Charas is the separated resin, in any form be it purified or crude which has been obtained from the cannabis plant and includes the concentrated preparation and resin which is known as hashish oil or liquid hashish;
• Ganja is the flowering or fruiting top of the cannabis plant excluding the leaves and seeds when not accompanied by the tops;
• Any kind of mixture, with or without any kind of neutral material of any form of cannabis which has been mentioned above or any drink prepared from it.
• “Cannabis plant” is for referring any plant of the genus cannabis. 

And the punishment for the same has been provided under Section 20 of the Act.

However, a captivating factor here is that the preparation of bhaang has not been covered by this Act. Bhang is the term used for a preparation made from cannabis leaves consumed in India on various festivals. As there is no use of cannabis resin or the tops in the preparation, the Act does not cover it. Various state governments permit the production and sale of Bhang. The person licensed to produce bhaang is allowed to produce only from the leaves of the wildly grown cannabis plants, if in anyway it is found that there has been a use of the flowering tops or the resin produced from the cannabis plants the person committing this act will be punishable as per the provisions of the NDPS Act, 1985. 

The question of whether bhaang is under the purview of the NDPS Act, 1985 has been a topic of discussion for the legal and medical experts. Judgement for the same has been provided through various cases where the court has decided that the leaves, dry leaves or seed does not fall within the purview of the Act because the seeds and leaves have been specifically excluded from the definition provided in Section 2(iii) of the said Act. A few cases have been mentioned below: 

• • Sevaram vs State Of Rajasthan on 2 December, 1992 
  • Madhukar S/O Pandurang Kanthale vs The State Of Maharashtra, (2002) 104 BOMLR 908 

• Arjun Singh vs State Of Haryana on 21 August, 2004

Narcotic Drugs and Psychotropic Substances Act

Narcotic Drugs and Psychotropic Substances Act is also termed as the NDPS Act, made with the purpose to control drug abuse and prohibit its use, distribution, manufacture, dissipation, and trade of substance of abuse. Narcotic drugs are those which induce sleep whereas psychotropic substances have the ability to alter the mind of an individual. The act came into existence on 14 November, 1985. As there are various kinds of drugs that have huge importance in the field of medicine. The proper utilization is required because the same drugs can give you life as well as snatch it away, if not used properly. Therefore, the act does provide the provisions required for the production, cultivation of cannabis, poppy, or coca plants and manufacture of psychotropic substances for medicinal requirements. The main focus for the enactment of this act is to possess control on manufacture, possession, sale and transport of such narcotic and psychotropic substances. This act bans around 200 psychotropic substances resulting in the process that no individual can get these drugs without prescription. These substances would only be available when proper prescription would be provided. If this law is violated it may result in rigorous imprisonment or fine or both in the form of punishment. The degree of punishment is devised not on the type of activity but to the proportional amount which is being carried. The degree of punishment is dependant on case to case basis if the drugs are being used for personal consumption the punishment may be less, varying from that when it is used for other purposes. The act has been amended in 1989, 2001 and recently, in 2014. Various changes have been brought in the Act through The Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2014:

• It created another class of “essential narcotic drugs”.
• Widened the goal of the law from illicit traffic to scientific and medical use. 
• Increased the degree of punishment from six months to one year of imprisonment for small quantity offences.
• Providing a more detailed provision relating to the property derived from offence and the report of seizure of property of the person arrested by the notified officer.
• Making capital punishment optional.
• Upgrading the rank of officers by giving them approval for conducting search and arrest.
• Increasing the scope and the power of govt. In establishing centres for the treatment of addicts and the supply of Narcotic Drugs and Psychotropic Substances.

Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substance Act 

Illicit trafficking of narcotic drugs and psychotropic substances is a serious threat to the health and welfare of the people and even for those who are engaged in activities of such illicit traffic. This has a dangerous and harmful effect on the national economy. This is the act formulated to provide for detention in certain cases for the purpose of preventing illicit traffic in narcotic drugs and psychotropic substances and for matters connected therewith. 

Controlled Substances 

The definition of Controlled Substance is provided under Section 2(vii)(viic) in the Narcotic Drugs and Psychotropic Substances Act, 1985. Which states that any kind of drug which is strictly controlled by the Central Government under the NDPS Act due to its possible use in the production or manufacture of narcotic drugs or psychotropic substances or as per the provisions of any International Convention, by notification in the Official Gazette, has been declared as a controlled substance. 

Any form of production, manufacture, cultivation, possession, purchase, sale, storage, transport, distribution or consumption of these substances is termed as illegal except for scientific and medical purposes, according to the rules and orders or condition for the proper licenses which are issued.

Law Commission 155th Report 

Drug abuse has been one of the curses of the society, it is a menace which threatens public life and leads to destruction of not only the individual, families but also of the society. It would always be an important need to address this issue and control this.

It was felt that even after the amendment of 1988 in the Narcotic Drugs and Psychotropic Substance Act, there were no desired results. Therefore, the law commission considered it necessary to undertake a review of Narcotic Drugs and Psychotropic Substance Act, 1985, resulting in the 155th report of law commission. This gave recommendations with a view to fill up the loopholes and to make the provision more effective.

With a view of the huge concern of growing drug abuse in different parts of the country the law commission aimed at studying the following aspects:

1. Studying the menace of drug abuse and drug trafficking and its effect on the youth of India. 
2. Scrutinizing the Directive Principles of State Policy enshrined in the Constitution of India and the provisions of International Conventions on Narcotic Drugs and Psychotropic Substances;
3. Understanding the magnitude of the problem of illicit trafficking and use of narcotic drugs and psychotropic substance as well as the infirmities in the NDPS Act;
4. Examining the relevant provisions of the NDPS Act and their interpretation by the Courts and
5. Identifying the amendments required for more effective implementation of the NDPS Act. 
6. And to collect public opinion on the subject matter.

Drug control strategy and policy 

India’s policy towards drug control is enshrined in the Directive Principles of State Policy through Article 47 of the Constitution of India, which states that it is the duty of the state to raise the level of nutrition, the standard of living and to improve public health, moreover the prohibition of the consumption of drugs which are injurious to health, except for medicinal purposes. It is among the primary duties of the state. The drug control strategy in India is a multi-agency function.

There were a number of Central and State enactments i.e., (i) the Opium Act, 1857, (ii) the Opium Act , 1878 and (iii) the Dangerous Drugs Act, 1930. All of these acts were not sufficient for the proper regulation of drugs in India and therefore Narcotic Drugs and Psychotropic Substances Act, 1985 was enacted for the proper enforcement and regulation. This act sets out the statutory framework or the strategy for the drug law enforcement in India, as well as the provisions for the implementation of the various obligations to the International Conventions. The various International conventions to which India is a signatory are:

The main Narcotics focus areas in India are:

• To effectively prevent and combat abuse of illicit traffic in narcotic drugs and psychotropic substances.
• Identifying and eradicating the illicit cultivation and wild growth of opium poppy and cannabis.
• Enforcing and surveying at import points and land borders. Measures for control at the export points i.e., cargo-terminals, air-passenger terminals and foreign post offices.
• To improve the coordination between the various drug law enforcement agencies.
• Intercepting and preventing the movement along the known drug routes.
• International co-operation to facilitate coordination and universal action.
• To strengthen the intelligence apparatus for improving the analysis, collection, collation and dissemination of operational intelligence.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

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Guardianship Under The Family Law

Guardianship basically implies the legal authority and corresponding duty of a person to care for another person ( a child, disabled, an aged old person, etc) relating to his body or the property. Any person under the protection of another is commonly known as ward. Guardian is a person who takes care of an individual who is below the age of 18 years and his personal affairs as he is incompetent to manage them on his own under family law.

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Who Are Guardians And What Are His Rights?

A guardian is a person who makes important decisions about the children’s life. He/ She takes all the duties, rights and responsibilities and powers that a parent has in bringing up that child. A guardian may be classified as natural or by relationship(Testamentary) or by appointment of the court. A guardian has the following rights:

1. Right to custody,
2. Right to determine the religion of the child,
3. Right to education,
4. Right to control movement,
5. Right to reasonable chastisement,
6. Represent the minor in litigations,
7. Get compensation for legal expenses from minor’s property,
8. Sue the minor after he attains majority to recover expenses on his necessities,
9. Refer matters to arbitration if it is in the best interest of the minor

For the purpose of guardianship under the family law there are basically two acts that govern it:

1. Guardianship and Wards Act,1890,
2. Hindu Minority Guardianship Act,1956

Guardianship Under Hindu Law

The Hindu law of guardianship of minor children has been reformed, codified and defined by the Hindu Minority and Guardianship Act,1956. Thus, Section 4(b) of the act states that a minor means a person who has not completed the age of eighteen years. He is considered to be a person who is physically and intellectually imperfect and immature and hence needs someone’s protection.

Section 6-9 deals with the concept of the various types of guardians under the Hindu law and what are the various rights and duties that are present in the guardian and what are his liabilities and restrictions.

There are certain cases under which the guardianship of the child is given to either of the parents:

Case 1– If the couple has either a boy or an unmarried girl (legitimate), then, the first guardian would be the father and after the father will be the mother, but in case of a child who is less than 5 years of age, the custody of the child would always be with the mother unless the father after his death has appointed someone else as the guardian of the minor child.

Case 2– If the couple has an illegitimate boy or girl, then the first guardian of the child is the mother and after mother, guardian is the father unless the mother after her death has appointed a person to be the natural guardian of the minor child.

Case 3– If the couple have a daughter and she is married then the guardian of the married daughter will be his husband.

Removal of A Guardian

The court has the power to remove any guardian in accordance to the Section 13 of the Hindu Minority and Guardianship Act,1956:

1. If he ceases to be a Hindu,
2. If he becomes a hermit or ascetic,
3. The court can remove him if his interest are against the interest of the minor. 

The welfare of the minor is of paramount importance while deciding such things.

Guardian Under Muslim Law

The source of law of guardianship and custody are certain verses in the Quran and a few Ahadis. These authorities on Muslim law emphatically speak about the guardianship of the property of the minor, the guardianship of the person is a mere inference and since the Muslim personal law is not codified like the other laws there are certain concepts and terms that we study under this.

Power Of Guardian

1. Power of alienation,
2. Power to grant the lease,
3. Power to carry on business on behalf of the minor child,
4. Power to conduct partition,
5. Power to incur debts and enter into contracts.

Further, the Muslim law deals with the concept of the natural guardian, testamentary guardian and guardians appointed by the court and also covers the concept of custody in terms of de facto, custody and guardianship which are of utmost importance which have been defined under the muslim law in detail as the muslim law is not a codified law there are concepts related to every aspect.

Guardian Under Christian Law

As Christian law itself does not have any specific law thus it is governed by the Guardianship and Wards Act of 1890 under which it talks about the title, duties, powers, rights and restrictions of the guardian as per section 19 to 29 and various other sections discussing the same under the Christian law. 

Guardian Under Parsi Law

Under the Parsi law, there is no general law for guardianship but still, it is permitted by a statue amongst the Hindus and by custom among some numerically insignificant categories of the person for which they have to approach under the Guardians and Wards act of 1890. Since, Muslim, Parsi and Christian have no adoption laws so once a minor child under a foster care becomes major, he is free to break all his relations and also the law which is applicable to the guardian takes place outside the country.

Adoption Under Family Law

Adoption in the simple language implies the transplantation of a son into one family in which the son is born in another family. Adoption is to be carried on with all the legal proceedings and it is a mode of affiliation as the son of an individual, of one of whom he is not the natural son.

Adoption is one of the concept that has evolved over the years where it has been seen that earlier only a male could adopt a child but now a female can also adopt and even if a single parent wants then he can also adopt within the framework of the existing laws.Adoption as a practice is not followed in most of the personal laws. Under Muslim and Christian law adoption is prohibited but it is practised under the Hindu law due to the various self-beliefs and faith.

Adoption Under Hindu Law

This act of Adoption under the Hindu law can be done in two ways:

1. Within-country adoption,
2. Inter-country adoption,

The Intercountry adoption is governed by the Juvenile Justice Act. Under which there is an agency which is also known as the Central Adopted Regulating Authority.

The rules and policies regarding the inter-country adoption were properly laid down in the landmark judgment of Laxmikant Pandey vs Union of India in the year 1984 after which inter-country adoption rules and regulation got a new dimension.

The Hindu law from the very beginning allows for the adoption due to certain religious beliefs. For Example– There are certain obligations in the Hindu law that are required to perform by the son, for that purpose adoption is necessary. Thus, the Hindu law allows the adoption of a child under the Hindu Adoption and Maintenance act, 1956 and every adoption has to take place with in conformity of this act and any contraventions of the provisions of this act will be void. 

This act earlier was of the concept that only a male can adopt a child but later in amendment came and now a female can also adopt.  is applicable in the whole of India except the state of Jammu and Kashmir and applies to any person who is a Hindu. Section 6-17 of the Hindu Adoption and Maintenance Act, 1956 talks about who can adopt, what are the essentials for a valid adoption, conditions for a male and female to adopt, who can be adopted, what are the rights and relationship in the eyes of the law between the parents and the adopted child etc. 

Adoption Under Muslim Law

The Islamic law does not recognize the concept of adoption unlike the Hindu law and this was also proved in the landmark case of Mohammed Allahabad vs Mohammad Ismail where the court held that there is no concept of adoption under the Mohammedan law similar to adoption as under the Hindu system but the Muslim law acknowledges the concept of paternity.

The basic difference between the two is that under adoption, the person who is adopted is called as the son of another person while in paternity the essentials of acknowledgment are that the acknowledgee must not be known son of another.

Exception- If the person who wants to adopt has the orders of the court to adopt under the guardianship and wards act of 1890 can adopt.

Adoption Under Christian And Parsi Laws

The personal laws of these two communities do not recognize adoption and they do not have any laws for adoption but they can adopt a child only one circumstance that is by obtaining permission from the court under the Guardians and Wards Act of 1890 to adopt a child from a foster care. Thus, once the child under the foster care becomes a major hr ahs freedom to break all his relationships as such child does not possess the legal right of inheritance.

Succession Under Family Law

Succession basically means the transfer of property belonging to an individual after his demise to some other individual. Thus, the succession can take place in two ways:

• Testamentary Succession: When a person dies after making a will of his personal property, 
• Intestate succession: when a person dies without making a will of his personal property,

Thus, the succession laws that govern the various communities and religions are shown in the table below.

What Is A Will?

A will is a document in which a deceased person entrusts his property to be distributed  be assets to be distributed according to his wish. Section 2(h) of Indian Succession Act, 1925 provides that Will means the legal declaration of the intention of a person with respect to his property, which he desires to take effect after his death. The following are the terms related to a will:- (See Here)

Codicil

Codicil is an instrument made in relation to a Will, explaining, altering or adding to its dispositions and is deemed to be a part of the Will. The purpose of codicil is to make some small changes in the Will, which has already been executed. The codicil must be reduced to writing and has to be signed by the testator and attested by two witnesses. It is also the duty of the court to arrive at the intention of the testator by reading the Will and all the codicils.

Executor

An executor is appointed by the testator, as distinguished from an administrator who is appointed by the court. Where the Will confers the powers to collect the outstanding, pay debts and manage the properties, the person can be said to be appointed as an executor by implication.

Probate

It is an evidence of the appointment of the executor and unless revoked, is conclusive as to the power of the executor. The grant of probate to the executor however does not confer upon him any title to the property.

Letter of Administration

It is a certificate granted by the competent court to an administrator where there exists a Will authorizing him to administer the estate of the deceased in accordance with the Will. If the Will does not name any executor, an application can be filed in the court for grant of Letter of Administration for the property

Attestation of Will 

Attestation means signing a document for the purpose of testifying the signature of the executants. Therefore an attesting witness signing before the executants has put his mark on the Will, cannot be said to be a valid attestation. It is necessary that both the witnesses must sign in the presence of the testator but it is not necessary that the testator have to sign in their presence. Further it is not necessary that both the witnesses have to sign at the same time. It is also not necessary that the attesting witnesses should know the contents of the Will. 

Under The Hindu Law

The Hindu Succession Act of 1956 governs the Hindu succession which covers any person who is a (Jain, Buddhist or Sikh). The Hindu law deals with the concept of Joint(Ancestral) and Separate property. This act is a comprehensive system passed by the Parliament of India enacted to amend and regulate the Intestate and Testamentary Succession under the Hindu law but in some cases, the Indian succession act plays a major role.

Under the act, Section 5-29 talks about the intestate succession related with the concept of women as a coparcener(Sections 6 & 7), male interstate and their order of succession(Section 8-13), female intestate and their order of succession (Section 14-16), other relationships and rights (half-blood, full-blood, child in a womb etc) has been dealt under (Section 17-29) of the Hindu succession act.

Part VI of the Indian Succession Act, 1925 starting from Section 57 expressly recognizes the right of a Hindu to dispose of his property according to the will made by him (Testamentary Succession).

This Part applies to all the wills and codicils made by a Hindu, Jain, Si or Buddhist on or after the first day of September, 1870. It does not apply to any will or codicil made before the first day of January, 1866. It is divided into chapters which contain relevant sections related to form and construction of a will, wordings in the will, execution of wills etc. Schedule III provides for sections which are applicable to wills and codicils under Hindu law subject to restrictions.

Earlier women were not treated equally as the male and did not have the same rights in the property but after the amendment in the year 2005 now they are treated equal and possess the same right as the male and now they can also become either a karta or a coparcener after the amendment earlier if which they did not possess the right.

Under The Muslim Law

The Muslim law is governed by its own law own known as the Shariyat. The Muslim law does not recognize the concept of separate property.

There is only one single property with same(general rules such as rule of representation, rule of exclusion, rule of primogeniture, rule of vested inheritance and of spec successions) for both the male and female succession, if a Muslim individual dies without making a will then, after the death of an individual the per the laws the property under his ambit of ownership would be distributed among the legal heirs after deducting some expenses and liabilities after which the remaining property which is also known as the Heritable Property.  The Muslim law for succession constitutes as follows:

1. The Quran,
2. The Ijma,
3. The Sunna,
4. The Qiya,

Distribution Of Property

Under the Muslim law, there are two schools known as the Shia and Sunni school of law. Under the Shia law the property of the deceased person is divided as PER STRIP which also means per relationship their share in the family thus the quantum depends upon the branch in which they are and also the number of people that are present in their branch while under the Sunni law, the heritable property is divided as PER CAPITA which also means per head according to which they get equal share in the heritable property.

Inheritance Under The Sunni Law

1. Sharers,
2. Residuaries,
3. distant kindred. 

The sharers are the person who is directly entitled to a certain amount of share in the property as per capita and it is fixed by Koram(12) and after the sharers if any property is left it goes to the residuary and even after the residuary have taken their shares it will go back again to the shares.

Distant kindred are those relations which are neither sharer nor residuary and property will go to them only if no sharers or residuaries is alive. The right of inheritance in Muslim law comes with birth, a child in a womb does not possess any right, he will have an equal right in the property only if he is born alive in the family and the shaiyat law even talks about the number of shares in cases of a widow with children and other cases and if any person dies without any legal heirs then his whole property goes to the government in the process called as Escheat. 

If a Muslim man or women wants to make a will of his property then he can only make a will of the one-third property and not more than that and the remaining property will go to the legal heirs in depending and if the person wants to will more than one-third property then he has to take the consent of the other legal heirs and if he has not taken the consent of the other heirs and wills more than his right of one-third the share property after his death to the person willed will be only to the extend of one-third.

Inheritance Under The Shia Law

The order of succession under the shia law are as follows:

1. Heirs by consanguinity,
2. Heirs by special case

• Group 1( parents and children and descendants of children)
• Group 2( grandparents, brother and sisters and their descendants)
• Group 3( paternal and maternal aunt and uncles)

Doctrine Of Aul And Radd:

There are cases where arises a situation in which the total sharers exceeds the heritable property, then the share is decreased proportionately. While in the case where the share of sharers is less then the heritable property the remaining part goes to the residuary and if no residuary then it passes on to the distant kindred.

In case of a testamentary succession, the following happens:- (See Here)

Revocation of Muslim Wills:

A will is, by its exceptional nature, revocable. A testator may,  whenever he feels like, revoke his will explicitly or implicitly. In this manner, when the deceased testator demolishes the topic of his inheritance, or totally changes its inclination, or exchanges it to someone else, revocation might be construed.

In any case, the marriage of the testator after the making of the will does not revoke the will. This rule of Muhammadan Law is totally different from the rule under Indian Succession Act, 1925 where marriage of the testator revokes his will.

Lapsing of Legacies:

Sunni Law

If the legatee does not survive the testator, the inheritance lapses and forms some portion of the testator’s estate.

Shia Law

If the legatee does not survive the testator, the inheritance does not lapse but rather goes to the beneficiaries of the legatee. It is just when the legatee has no beneficiaries, that the inheritance lapses.

Abatement of Legacies

Sunni Law

If the bequests surpass the bequeathable third, and the heirs don’t consent, under the Sunni law, the inheritances abate rateably. Inheritances for pious objects are likewise diminished pro­portionately as bequests for common purposes, and don’t have priority over them.

Be that as it may, estates for pious objects are themselves separated into three classes : 

1. mandatory philanthropies, e.g., an inheritance for the execution of Hajj in the interest of the expired; 
2. suggested, yet not required, e.g., an endowment for philanthropy on the below average overshadow those of the third.

Shia Law

This law does not perceive the standard of abatement. Of a few bequests, the first in time prevails until the point that the bequeathable third is depleted. Where a few estates are to be found in a will, need is determined by the request in which they are mentioned. It is to be noted, in any case, that where there are successive bequests of the correct third to two different people, the later inheritance prevails.

Devolution of Inheritance:

A deceased Muslim’s estate vests in his heirs instantly on his death, and it might be distributed among his heirs even before the payment of his debt, unless the estate is indebted. Prior to the distribution of the deceased person’s estate, every one of the heirs are mutually at risk to pay the debt due from the deceased to the extent of the assets received. After circulation, every heir’s liability is proportionate to the share of the assets that goes to his hands.

Position of an Executor of a Muslim Will:

Under the strict Muhammadan law, an executor was simply an administrator to complete the intentions of the testator He was a trustee named by the testator to protect and deal with his property and kids after his demise. He was not the lawful proprietor of the property of the deceased and the property did not vest in him. He had no energy to offer or contract or estrange the property in some other way.

Yet, now, under the provisions of Section 211 of the Indian Succession Act, 1925. an executor of a Muslim’s will is his legal representative for all reasons, and all the property of the deceased vests in him; in this manner, he has the ability to dispose of the property at the appointed time.

Probate of a Muslim will, when Necessary:

A will made as per Muslim law may, after due verification, be conceded in evidence, though no probate has been acquired.

The situation of the executor of a Muslim will is administered by the Indian Succession Act, 1925. The property of the testator vests in him and can be sold and passed on by him, without taking a probate or getting the assent of the considerable number of heirs. (Sec. 307 of the Indian Succession Act, 1925).

Nor is it essential, if there should be an occurrence of intestate succession, that his heirs ought to acquire letters of administration to establish their entitlement to any piece of his property. (Secs. 212 and 213 of the Indian Succession Act, 1925). An oral will may, after evidence, be confessed to probate.

A Muslim whose marriage is solemnized or registered under the Special Marriage Act, 1954, is governed by the exemption made by Sec. 213(2) of the Indian Succession Act, 1925. In a similar manner, a probate isn’t vital, and a succession certificate can be allowed under Sec. 370 of that Act.

The main situation when a title of representation is important is the point at which it is should recover a debt due to the deceased through the Court. No Court can pass a declaration against the indebted person of a deceased Muslim for payment of his debt to a man guaranteeing on succession to be qualified for the impacts of the deceased, or continue upon an application of a man asserting to be so entitled, to execute against such a debtor a decree or an order for the payment of his debt, aside from the production, by the individual so asserting, of a probate or letters of administration or a succession certificate.

Alienation by a Heir of his Share before Payment of Debts:

Indeed, even before the distribution of the estate, an heir may exchange his own particular share, and pass a decent title to a real buyer for a particular value despite the fact that the debts of the deceased are not paid.

A creditor of a deceased Muslim can’t follow his estate under the control of a bonafide buyer for incentive to whom it has been alienated by his heir-at-law. Subject to S. 52 of the Transfer of Property Act, each heir of the deceased Muslim is entitled:-

1. To discard his offer in any way he prefers; and
2. To pass a decent title to a bonafide buyer for a particular value, despite the fact that the debts of the deceased yet stay unpaid.

In this manner, even before the dissemination of the estate:-

1. If any of the heirs exchange his own share to a bonafide transferee for value, or
2. If his offer is sold in execution of an announcement go against him,

It passes a decent title to the transferee or to the buyer, all things considered, despite any debts that may be expected from the deceased.

Legitimacy of Alienation of the Whole Property for Payment of the Deceased’s Debts:

The inheritance of a Muslim vests at his death by a particular title in every individual heir. A sole heir can’t speak for the whole estate of the deceased, and can’t manage the shares of co-heirs without their assent.

Consequently, an alienation of the entire of the property of an expired Muslim by one of his few heirs despite the fact that he is in possession, and regardless of whether it be for the payment of debts of the deceased, isn’t authoritative upon his co-heirs. Such alienation works as an exchange just of his enthusiasm for the property.

Declaration against a Heir, if Binding on Other Heirs:

A creditor’s suit is an administration suit, and any heir in possession of the estate represents the estate for the purposes of the suit. Therefore, if a creditor of a deceased Muslim obtains a decree against some of his heirs, the decree is binding on the other heirs.

However, this would be so only if:

1. The decree was not a consent decree or a decree obtained by fraud; and
2. The heir who is sued is in possession of the estate on behalf of the other heirs, and not on behalf of himself. 

Under The Christian Law

The Christian law of succession is regulated by the Indian Succession Act, 1925. Part IV and V of the Indian Succession Act governs Christian law of succession. Section 2(d) of the act specifically defines an Indian Christian and section 23-49 deals with the Christian succession. Under the Christian law, the concept of separate and ancestral property is recognized. The succession is different in cases of both male and females:

Male Intestate Succession for Indian Christian:

• When the deceased has left a widow but no lineal descendant or a collateral, the widow takes the entire property,
• If there are lineal descendants then the widow takes only one-third share of the property,
• If there are no lineal descendants but there are ascendants and collateral, the widow gets half of the property.
• In the absence of the widow if there are lineal descendants with the different degree then the share will go according to per stirpes and if the lineal descendants are of the equal degree then the share will go according to the per capita rule.
• When there are no lineal descendants then after the share of the widow is deducted, then the remaining half goes to the father of the deceased.
• If the father is dead then it goes to the mother and if the mother is also dead then it goes to the brother and sisters and to their children.
• If the parents of the lineal descendants are not there, then the relatives who are nearest will take the property.

Female Intestate Succession for The Indian Christian:

• The husband of the deceased has some rights which widow has in respect of the husband’s succession in the points mentioned above, the difference is that the widow word is replaced with the term widower.

Intestate Succession for Other than Indian Christian:

• When there are no lineal descendants the widow or widower is entitled to first Rs. 5000/- out of the estate. 
• If the amount is more than Rs5000/-it devolves as follows:
• A Christian dies leaving behind a widow, 2 sons and 2 daughters then the estate would be distributed equally between them.

Testamentary Succession for Indian Christians

Section 59 of The Indian Succession Act, 1925 deals with testamentary succession stating that any person of a sound mind may dispose off his property by a will provided that he is not a minor. It is further expanded to those persons who are blind or deaf or mute and married women who have the capacity to make a will are entitled to dispose off their property by a will. Part VI of the Act includes Sections 57 to 190 deal with all the issues regarding wills and codicils, making and enforcement of wills, formality needed for wills etc. (See Here)

Under The Parsi Law

The special rules of succession under the Parsi laws are governed by the Indian Succession Act, 1925. Section 50- 56 of the act specifically talk about the Parsi laws of inheritance.

Under the concept of intestate succession where there is no will then:

• Any person who inside the womb of mother at the death of father but is born alive after the death of father will have a share which is equal to the share of a person who is alive.
• If a lineal descendant dies before the death of the deceased Parsi without leaving any legal representative then his share will not be in consideration,
• If a widow or widower of any relative marries again during the lifetime of the intestate Parsi, such widow or widower is not entitled to any share in the property of the deceased Parsi.

General Rules

• In case the deceased leaves only either widow and children or only children after his death then the share would be taken as per capita.
• If in case the parents also survive after the deceased death then the fathers share is half of the son and mothers share is half of the daughter while the widow, son and daughter will get the share as per capita.
• If a Parsi dies leaving behind a widow or widower and his lineal descendants then the share that the survivors and the relatives will get has been defined specifically under section 50-56 of the Indian Succession Act.
• Lastly, where there is no relative as Where there is no relative as specified above, the property of the Parsi who has died intestate shall be divided equally among those of the intestate’s relatives who are in the nearest degree of kindred to him.

Gift

A gift is a transfer of existing movable or immovable property made voluntarily and without any consideration by a person called donor to the other person called donee and accepted by or behalf of the donee followed by immediate delivery of possession of the subject matter. Gift is a transfer of property applicable only in Muslim law. 

What Are The Valid Requirements Of A Gift?

There are three main requirements of a gift:-

1. Parties to the gift (donor and donee)
2. Subject-matter of the gift
3. Essential ingredients of making of a gift:
4. Declaration (Ijab) by the donor
5. Acceptance (Qubool) by the donee
6. Immediate delivery of possession (Qabza)

Donor

Any Muslim who is a major, of sound mind, competent to contract and owner of the property is eligible to make a gift of his property. The age of majority is 18 but in case a guardian is appointed, the age of majority is 21. The gift can be made by a woman too.  While making a gift, the financial obligations of the donor are immaterial.

Donee

Any person can be a donee. Even a person:-

1. Who is a minor; or
2. Who is of unsound mind; or
3. Who is incompetent to contract

is capable of being a donee. The donee must be a juristic person who is capable of handling a property. Gifts given:-

1. to an unborn person is void except if it is given in way of maintenance for life and to his male heirs not in existence at that time. 
2. to a child in womb is valid provided he is born within 6 months of making of the gift. 
3. to a non-Muslim is valid.

Subject-Matter Of Gift

Subject-matter of a gift can be a property which can be owned. Property can be either movable or immovable, ancestral or self-acquired, corporeal or incorporeal.

Essentials Of A Valid Gift

Declaration

Offer to make a gift must be declared voluntarily and with free consent. Declaration can be made in form of a will as well. Declaration cannot be made in isolation and has to be made in presence of witnesses or by way of public statement. 

2. Acceptance

The gift must be accepted by the donee if he is competent to accept it himself or by a competent person who can accept the gift on behalf of the donee if he lacks capacity to accept it himself. In case of donee being a minor or person of unsound mind, the gift can be accepted by the guardian of his property. Guardian can be his father or paternal grandfather as executor appointed under the will. Gift can also be accepted by a person other than the guardian.

3. Delivery of Possession

Under Muslim law, a gift is invalid if it is not delivered. It is essential that the owner must completely divest himself of the ownership and control of the property and vest it to the donee. If the gift is of a movable property it must be delivered and in case of an immovable property, the donor must:-

1. vacate the property with his belongings that would signify his relinquishment of total control.
2. put the donor in possession.

The physical departure of the donor and entry of the donee must be shown.                     In case of an immovable property not in possession of the donor at the time of making a gift, he can complete the gift by some overt act which shows his bonafide intention. 

There are some exceptions to the rule that gift is invalid if it is not delivered:-

1. Gift made by a husband to his wife or vice versa.
2. Gift from a father to the minor child or by guardian to the ward. 
3. Donor and donee reside at the same property which is the subject matter of the gift.
   

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The post AIBE: Guardianship, Adoption and Succession under Family Law appeared first on iPleaders.

Find out the 50 LEADING CASES ON FAMILY LAW which will help in your preparation of AIBE.

Mohd. Ahmed Khan vs Shah Bano Begum And Ors 1985 SCR (3) 844

It was a controversial maintenance lawsuit. In this case, Supreme Court granted the maintenance to a divorced muslim woman irrespective of what the Muslim personal law says. Supreme Court held that Section 125 of CrPc is also applicable on Muslims. Supreme Court concluded that Cr.P.C. is a secular law and “there is no conflict between the provisions of section 125 and those of the Muslim Personal Law on the question of the Muslim husband’s obligation to provide maintenance for a divorced wife who is unable to maintain herself.” A muslim woman is entittled for the maintainance even after the period of iddat.

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Ahmedabad Women Action Group (AWAG) v. Union of India (AIR (1997) 3 SCC 573

The court was of the opinion that India and Indians have been governed by personal laws, regardless of the time period. It was of the opinion that an interference by the court would lead to several undesirable outcomes, as the adjudication of personal laws was beyond the jurisdiction of the courts. The petition was therefore dismissed.

Danial Latifi and another v. Union of India (2001) 7 SCC 740

The court held that the Muslim Women (Protection of Rights on Divorce) Act, 1986, which provided that under section 3(1)(a), a divorced woman is entitled  to reasonable and fair provisions, and maintenance within the ‘iddat’ period is not in violation of Article 14 and 21 of the Indian constitution.

Shamim Ara v. State of U.P. (MANU/SC/0850/2002)

In this case the Supreme Court was of the view that the mere plea of a Talaq, would not validate the same. There Quranic procedures of obtaining a Talaq need to be fulfilled, i.e., Talaq has to be pronounced in the Quranic injunction.

Shayara Bano v. Union of India and others

Supreme Court in 2017 in a historic and landmark judgment declared “Triple Talaq” unconstitutional. The Apex Court said, “Given the fact triple talaq is instant and irrevocable, it has no scope of arbitration which is essential for saving marriage ties. Hence, it is clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. The court invalidated Section 2 of Shariat Application Act, 1937 to the extent it enforces “triple talaq”.

Sushil Kumari Dang v. Prem Kumar

Here, a petition for restitution of conjugal right is filed by the husband and the husband accuses his wife for adulterous conduct. Following which he filed another petition for judicial separation which shows the extent of his sincerity and interest in keeping the wife with him. So, the Delhi High Court set aside the decree of restitution granted by the lower court.

Yousuf v. Sowramina

It was held that at times, the determination of the question whether in fact a marriage has broken down or not is left to the courts. At other times, the legislature lays down the criterion of breakdown of a marriage and if that is established, the courts have no option but to dissolve the marriage.

Ankush Narayan v. Janabai

Court held that on adoption by a widow, the adopted son becomes the son of the deceased adoptive father and the position under the old Hindu law as regards ties in the adoptive family is not changed.

Guradas v. Rasaranjan

Adoption is made when the actual giving and taking had taken place and not when the religious ceremony is performed like Datta Homam.  For a valid adoption, it would be necessary to bring on records that there has been an actual giving and taking ceremony.

Harvinder Kaur v. Harmander Singh Choudhary

In this case, the court rejected the plea that personal law was discriminatory towards Gender inequality in India. It also observed that introduction of Constitutional law into the home (referring to personal laws) was most inappropriate.

Jijabai v. Pathan Khan

Where the father and mother had fallen out and the mother was living separately for over 20 years and was managing the affairs of her minor daughter the apex Court observed though the father was alive but he was not taking any interest in the affairs of the minor and should be treated as if non-existent, and, hence, the mother is  the natural guardian of the minor’s person as well as property.

Sitabai v. Ramchandra

So there may be relationship by implication in the other cases also. The Supreme Court has also held that a son adopted by the widow of the deceased coparcener will also be a coparcener with the surviving coparceners of the deceased husband.

Sarla Mudgal vs. Union of India

The Court held that if a Hindu converts to Muslim and then have a second marriage, he can not do so, irrespective of the fact that polygamy is allowed in Islamic Law.

R.Virupakshaiah v. Sarvamma & Anr

Property inherited by a Hindu from his father, father’s father or father’s fathers’ father, is ancestral property.

Dipo v. Wassan Singh & Others

A person who has to inherit property from his  immediate paternal ancestors up to 3 lines, holds it in coparcenary and to other relations he holds it and is entitled to hold it, as his absolute property. Hence, the property inherited by a person from any other relation becomes his separate property.

Chanmuniya  v. Virendra Kumar Singh Kushwaha

Considering Sec 7 of the Hindu Marriage Act, 1955 the marriage performed in absence of customary rites and ceremonies of either parties to marriage is not valid. And Mere intention of the parties to live together as husband and wife is not enough. Further, there is no scope to include a woman not lawfully married within the expression of ‘wife’ in Section 125 of the Code should be interpreted to mean only a legally wedded wife.

Vaddeboyina Tulasamma v. Vaddeboyina Shesha Reddi, 1977 SCR (3) 

The Supreme Court in this case highlighted the Hindu female’s right to maintenance as a tangible right against property which flows from the spiritual relationship between the husband and wife. The Bench comprising of Justice P.N. Bhagwati, Justice A.C. Gupta and Justice S.M. Fazal Ali held that Section 14(1) of the Hindu Succession Act, 1956 must be liberally construed in favour of the females so as to advance the object of the Act. This section makes female Hindu a full owner of a property, instead of a limited owner of the property.

Mrs. Mary Roy Etc. v. State Of Kerala & Ors, 1986 AIR SC 1011 

The Supreme Court in this case held that Christian women are entitled to have an equal share in their father’s property. This path-breaking judgment sent shock waves throughout the country. Till then, Christian women in Kerala were governed by the provisions under the 1916 Travancore-Kochi Christian Succession Act.

Under this Act, a Christian daughter can inherit only one fourth of the share of the sons in her father’s property. The Bench comprising of Chief Justice P.N. Bhagwati and Justice R.S. Pathak gave a liberal interpretation that benefited the Christian women in Kerala and brought them within the ambit of the Indian Succession Act, 1921.

Lata Singh v. State of Uttar Pradesh,  2006 (6) SCALE 583 

Noting that there was no bar to inter-caste marriage under the Hindu Marriage Act, a Division Bench of the Supreme Court comprising of Justice Ashok Bhan and Justice Markandey Katju observed that since there was no dispute about the petitioner being a major, “she was free to marry anyone she likes or live with anyone she likes“.

Velusamy v. D. Patchaiammal, (2010) 10 SCC 469

The Supreme Court, in this case, held that Live-in relationships will also come under Domestic Violence Act 2005 . It is held that ‘not all live in relationships will amount to a relationship in the the nature of marriage to get the benefit of the Act of 2005.

Roxann Sharma v. Arun Sharma, Civil Appeal No. 1967 OF 2015 

The Supreme Court in this case held that in a in a battle between estranged parents, for the custody of minor child, who has not completed five years of age, shall be allowed to remain with the mother. The Bench comprising of Justice Vikramajit Sen and Justice C. Nagappan held that in such cases child should not treated as a “chattel”.

Seema v. Ashwani Kumar, AIR 2006 S.C 1158 

The Supreme Court in this case directed the State Governments and the Central Government that marriages of all persons who are citizens of India belonging to various religious denominations should be made compulsorily registerable in their respective States where such marriages are solemnized. The Bench, comprising of Justice Arijit Pasayat and Justice S.H. Kapadia also directed that as and when the Central Government enacts a comprehensive statute, the same shall be placed before that Court for scrutiny.

Neeraja Saraph v Jayant Saraph (1994) 6 SCC 46

The Supreme Court gave some important obiter observations in this case:

1. No marriage between a NRI and an Indian woman which has taken place in India may be annulled by a foreign court. 
2. Provision may be made for adequate alimony to the wife in the property of the husband both in India and abroad.
3. The decree granted by Indian courts may be made executable in foreign courts both on principle of comity and by entering into reciprocal agreements like Section 44-A of the Civil Procedure Code which makes a foreign decree executable as it would have been a decree passed by that court.

Dhanwanti Joshi v Madhav Unde (1998) 1 SCC 11

The Supreme Court had the occasion to decide the custody of the child when he was more than 12 years old and decided that even though the father may have obtained custody from the US court, the best interests of the child demanded that the child be allowed to continue to stay with the mother in India who had brought up the child single handedly in India, subject to visitation rights of the father. 

ROXANN SHARMA V/S ARUN SHARMA CIVIL APPEAL No. 1966 OF 2015

In a remarkable judgment dealing with interim custody of child suffering in parent’s matrimonial disputes, visitation rights and guardianship, a 2 judge bench of Supreme Court laid down various propositions of law while awarding the interim custody till final disposal by the trial court to the mother.

The bench speaking through Justice Vikramjit Sen, lays down very sharp observations and examines various definitions of a ‘guardian’, ‘visitation rights’ and tests the issue from the angle of provisions of Hindu Minority & Guardianship Act, 1956 and Guardian & Wards Act, 1890.

Saroj Rani v Sudarshan Kumar

In this case the constitutionality of Section 9 of Hindu Marriage Act was challenged. Petition was filed by the wife for a restitution of conjugal rights under Section 9 of the Hindu Marriage Act,1955. Her husband consenting to the passing of a decree for the same was passed.

After a period of 1-year husband filed a petition under Section 13 of the Hindu Marriage Act,1955 against the appellant for divorce on the ground that though one year had elapsed from the date of passing the decree for restitution of conjugal rights as no actual cohabitation had taken place between the parties. The Supreme Court upheld the constitutionality of Section 9 by saying that it serves a social purpose as an aid to the prevention of break-up of the marriage.

Dr. Surajmani Stella Kujur v. Durga Charan Hansdah, AIR 2001 SC 938

In this case, the Supreme Court described who is a “Hindu” for the purposes of the applicability of the Hindu Marriage Act, 1955. The Act, is, therefore, applicable to: “(1)All Hindus including a Virashaiva, a Lingayat, a Brahmo, Prarthana Samajist and an Arya Samajist (2) Budhists (3) Jains (4) Sikhs”

Asha Qureshi v. Afaq Qureshi, AIR 2002 MP 263

The Court held that a person is entitled to a decree of nullity under Section 25(iii) of the Hindu Marriage Act on grounds of fraud as described in Section 17 of the Indian Contracts Act.

Amardeep Singh v. Harveen Kaur (Supreme Court)

The Supreme Court held that the period mentioned in Section 13B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation. The Court also stated that such proceedings can also be conducted through video conferencing.

Suman Singh v. Sanjay Singh (Supreme Court)

In the case, the husband had pleaded 9 instances which, according to him, constituted “cruelty” within the meaning of Section 13(1)(i-a) of the Hindu Marriage Act  entitling him to claim dissolution of marriage against the appellant. The court held that Few isolated incidents of long past and that too found to have been condoned due to compromising behavior of the parties cannot constitute an act of cruelty within the meaning of Section 13(1)(i-a) of the Hindu Marriage Act.

Balveer Singh v. Harjeet Kaur (Uttarakhand High Court)

While deciding this issue, the High Court referred to the impugned provisions and made the following key observations in the case:

1. That on a simple reading of Section 9 of the Hindu Marriage Act, 1955, it has altogether a different purpose. The purpose of Section 9 of the Hindu Marriage Act, 1955 is to meet a contingency. 
2. Section 9 of the Hindu Marriage Act, 1955 and Section 13-A of Hindu Marriage Act, 1955 are framed to meet a separate set of contingencies. 
3. If Section 9 of the Hindu Marriage Act, 1955 is either decreed or dismissed, it will not take away a right of a party to file Section 13-A of Hindu Marriage Act, 1955 for dissolution of marriage at any subsequent stage.

Mrs. Christine Lazarus Menezes v. Mr. Lazarus Peter Menezes (Bombay High Court)

The Court noted that if the Criminal Complaint filed by the appellant wife against her husband was false and was filed only to bring back her husband and consequent to which he was arrested and was in jail for about 7 days, it would constitute a clear case of cruelty by the wife against her husband.

Natubhai Somabhai Rohit v. State of Gujrat & Anr. (Gujrat High Court)

The Court also relied on Supreme Court’s verdict in G. V. Rao vs. L.H.V. Prasad wherein the Court stated that a complaint relating to matrimonial dispute where all the members are roped into irrespective of role, becomes liable to be quashed.

Amar Kanta Sen v. Sovana Sen, AIR 1960 Cal. 438

In this case there was dissolution of the marriage on the ground of adultery of the applicant. The applicant’s case that her husband had committed adultery was found to be not supported by evidence.  Supreme Court in this case held that when a wife deliberately persist on not getting a job even she easily can, is an undue advantage. The court only allowed starving allowance in this case.

Shanti Devi v. Govind Singh

The Court held that for constituting ‘desertion’ two essential conditions must be fulfilled namely (i) the factum of separation; and (ii) the intention to bring cohabitation permanently to an end.

Meghanatha Nayyar v. Smt. Susheela

The Madras High Court had observed that “Section 14 provides restrictions presumably designed to prevent party from taking recourse to legal proceedings before the parties have made real effort to save their marriage from disaster. It is founded on public policy because marriage is the foundation of civil society and no part of the laws and constitution of a country can be of more vital importance to the subject than those which regulated the manner and conditions of forming and if necessary, of dissolving marriage contract.

Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228 

It is pertinent to note that sub-section (c) of Section 4 provides that a natural guardian means a guardian mentioned in Section 6. This definition section, however obviously in accordance with the rule of interpretation of statute, ought to be read subject to Section 6 being one of the basic provisions of the Act and it is this Section 6 which records that natural guardian of a Hindu minor, in the case of a boy or an unmarried girl, is the father and after him the mother. 

Chand Patel v. Bismillah Begum, 1 (2008) DMC 588 (SC)

The Supreme Court that a Muslim’s marriage to his wife’s sister may be , while the earlier marriage still subsists, will be irregular but the second wife and children are entitled to maintenance. The Muslim personal law prohibits “unlawful conjunction”- a man cannot marry his wife’s sister in her lifetime or till the dissolution of their marriage but that doesn’t affect her entitlement to maintenance.

Masroor Ahmed v. Delhi (NCT) 2008 (103) DRJ 137 (Del.)

The Delhi HC in this case elucidated the various modes of dissolution of marriage under Muslim Law. The Hon’ble Court elaborated Section 2 of the Muslim Personal Law (Shariat Application), 1937.

Dharmendra Kumar v. Usha Kumar, AIR 1977 SC 2213 

The relief which is available to the spouse against whom a decree for restitution of conjugal rights has been Passed cannot reasonably be denied to the one who does not insist on compliance with the decree passed in his or her favour. In order to be a “wrong” within the meaning of s. 23(1)(a) the conduct alleged has to be something more than a mere disinclination to agree to an offer of reunion, it must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled. Mere non-compliance with a decree for restitution does not constitute wrong within the meaning of section 23(1)(a).

Nachhattar Singh v. Harcharan Kaur AIR 1996 Punjab and Haryana 201

If both the parties had voluntarily consented to file the petition for dissolving the marriage by mutual consent and all the other conditions mentioned in sub-sec. (1) of S. 13B of the Act are fulfilled, it will not be open to a party to withdraw the consent. In the present case without making an inquiry under sub-sec. (2) the trial Court has dismissed the petition as withdrawn which could not be done merely on the asking of one party.

Sureshta Devi v. Om Prakash, 1 (1991) DMC 313 (SC)

The SC settled the controversy by ruling that at the time of second motion under Section 13(B) HMA, one of the parties of the marriage withdraws the consent given to the petition, then decree for divorce on mutual consent cannot be passed.

Bipinchandra Jaisinghbai Shah v. Prabhavati, AIR 1957 SC 176 

The SC held that for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. 

Swaraj Garg v. K.M. Garg, AIR 1978 Del. 296

It is true that under the Hindu law, it is the duty of the husband to maintain his wife, but the wife is not under a corresponding duty to maintain her husband. This also is due to the fact that normally the husband is the wage earner. If, however, the wife also has her own income it will be taken into account and if her income is sufficient to maintain herself the husband will not be required to pay her any maintenance at all. 

Padmja Sharma v. Ratan Lal Sharma, AIR 2000 SC 1398

The obligation of a person to maintain his or her aged or infirm parents or daughter who is unmarried extends insofar as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property.

Gohar Begum v Suggi, (1960) 1 SCR 597

The court held that in Muslim law, the mother is not a natural guardian even of her minor illegitimate children, but she is entitled to their custody.

Mambandi v. Mutsaddi, (1918) 45 Cal 887

The court held that a father’s right of guardianship exists even when the mother, or any other female, is entitled to the custody of the minor. The father has the right to control the education and religion of minor children, and their upbringing and their movement. So long as the father is alive, he is the sole and supreme guardian of his minor children.

Vandana Shiva v. Jayanta Bandhopadhaya

The Supreme Court has held that under certain circumstances, even when the father is alive mother can act as a natural guardian. The term ‘after’ used in Section 6(a) has been interpreted as ‘in absence of’ instead ‘after the life-time’.

Itwari v. Asghari, AIR 1960 All. 684

The court held that  Even in the absence of satisfactory proof of the husband’s cruelty, the Court will not pass a decree for restitution in favour of the husband if, on the evidence, it feels that the circumstances are such that it will be unjust and inequitable to compel her to live with him.

N.G. Dastane v. S. Dastane, AIR 1975 SC 1534 

Five tests were laid down in determining whether a given conduct amounts to legal cruelty. They are the following:

1. The alleged acts constituting cruelty should be proved according to the law of evidence;
2. There should be an apprehension in the petitioner’s mind of real injury or harm from such conduct;
3. The apprehension should be reasonable having regard to the socio-economic and psycho-physical condition of the parties;
4. The petitioner should not have taken advantage of his position;
5. The petitioner should not by his or her conduct have condoned the acts of cruelty.
   

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To know more about, laws of taxation for AIBE, please Click Here

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

The post AIBE: Leading Case Laws of Family Law appeared first on iPleaders.

Authored by Mariya Paliwala, 7th semester, student at University College of Law, MLSU, Udaipur, Rajasthan.

Introduction

In India, the laws pertaining to the grant of gun license are governed under Section 3, 4, 13, 14, 15, 16, 17 and 18 of the Arms Act of 1959 and the Arms Rule of 1962, Arms Rules 1962 and Arms Rule 2016. These Acts prescribe the stringent and expensive procedure for the citizens to procure the license for possessing guns. According to 2016 Article posted by the Washington Post, it was stated that India is a country which has stricter laws than America. Further, it also stated that the probability of an American getting killed by firearm is 12 times more than that of an Indian citizen. 

Necessary reasons demanded by law for the possession of guns

Before knowing the procedure for getting the gun license, it is important for the readers to know that on what basis the civilians can apply for guns in India. From Section 35 to 46 of Arms Rule 2016 specifies special category for issuing the license namely:

1. License for the destruction of wild animals which poses a threat to human beings and crops. This comes under the protection of life and property which is, in turn, a reason for self-defence. 
2. License for the purpose of target and training purpose (the trainer must be an adult and the trainee must not be below 15 years of age and not above 21 years of age).
3. License for sports shooting association.
4. License for shooting ranges.
5. License for accredited trainers.
6. Quantity of ammunition for sports person, shooting associations etc.
7. License to museums.
8. License for arms and ammunitions for theatrical, film or television production. 
9. License to an international shooter, who has come to India for participation at shooting events in India.
10. Acquisition, possession and export of arms or ammunition by tourists visiting India.
11. License for firemen free zone.

Apart from the reasons stated above self-defence, corp protection and sports are the other reasons to get the gun license in India.

Self-defence 

It is often said and believed that using a weapon for an offence is considered immoral but using it for the sake of self-defence is justified. The procedure for granting of gun licenses on the ground of self-defence is extremely difficult and stringent, therefore they are allowed in extremely special cases, a person applying for the license must have a strong reason and must have filed a First Information Report (FIR) prior to the application.

In case of women living in metro cities who are given priority on the condition that they are experiencing a threat to their life. However, for the sake of safety they may just possess Taser guns, which does not require any license. 

Corp protection

People who work in security and guarding agencies are given the license only on the condition that they will use for the security purpose at work and no other.

Sports 

A person getting the license for the reason of sports needs to be a fulltime sports person. Moreover, they can get a license for target shooting and other games. 

Procedure to be followed

Before following the procedure a person needs to fulfil the basic age criteria that a person must not be less than 21 years of age, he must be of sound mind and must have a justified reason for acquiring a gun license. After these basic conditions are confirmed the following procedure must be followed for acquiring a gun license in India:

Filing of an application

Section 13(1) of the Arms Act 1959 pertains to the procedure of application, which must be in accordance with Chapter II of Arms Act 1959 and also the prescribed fee must be paid. Moreover, gun license formalities are available at the Indian Ordnance Factories. 

Call for the report

Section 13(2) of the Arms Act 1959 empowers the licensing authority to call for the detailed report made by the police officer of the nearest police station within a prescribed time period. In case the police officer fails to submit the report then the licensing authority may use its discretion and may either approve the application or refuse it. 

License for different purpose 

In case of self defence the license for smooth bore gun can be granted. However, in the case of sports and crop protection the license for muzzle loading gun can be granted. If in case the licensing authority is satisfied that muzzleloading gun is not sufficient then it may grant a license for any other gun. 

Satisfaction of Licensing authority

After undergoing all the due procedure and most importantly after the licensing authority is satisfied with the justification given in the application, the license for specific purpose is granted.

Rules regarding ancestral guns

A license for a gun can be transferred by the person after his death to his legal heirs after following due procedure which is as follows:

1. A license holder may make an application on a plain paper and this paper must be attached to Form A.
2. Moreover, if the original license is expired then the application of its renewal can be made in Form A. All it requires is 2 passport size photos and non objection of heirs.

Circumstances under which the license may undergo variation, suspension and revocation

The following procedure for variation, suspension and revocation is prescribed under Section 17 of the Arms Act, 1959. 

In case the holder of a license is prohibited

If in case the licensing authority is satisfied by the fact that the holder of the license is prohibited under this Act or under any other law, or Statute abstaining him from possessing or acquiring or carrying any arms or ammunition for the time being in force. 

Necessary for peace and order

If the licensing authority feels that it is necessary for peace, security and public safety, it may suspend or revoke it the license. 

Fabrication of information 

If the licensing authority confronts with the fact that the license holder hides some information or has given false or wrong information it may suspend or revoke his license. 

Beach of a condition

If in case any condition for giving license is contravened and breached or there was a non-compliance of the notice by the holder of a license. 

Application for revoking of license

The holder himself has given the application for revocation of license to the licensing authority.

Holder convicted by the court

When the holder of the license is convicted by the court, then his license may be suspended or revoked. 

Hence, the High courts, appellate courts, the central government has the power to suspend the license. The holders are supposed to submit their license to the authority as soon as it is suspended or revoked.

Renewal of license

For the renewal of arm license holder may write an application to the district magistrate in the format prescribed below:

Latest development regarding arms rule in India 

The government has come up with the latest Arms Rule 2016 which supersedes Arms Rules 1962, every person who is applying for the license must undergo a prior procedure:

1. Arms and ammunition safety training course, which involves basic arms and ammunition safety practices like firing technique and procedure, safe handling and carry procedures, care of arms and ammunition and their safe storage and transportation.
2. The defence rules say that the granting authority will grant the license to only those people who have an immediate threat to their life because of the geographical reasons pertaining to the residents near borders or frequent chances of attacks by militants. Apart from them, people holding important public office like a government official, MLA, MP or their family members may be given the license. 
3. According to the new rule, the granting authority must ask for a report from the nearest police station and after receiving the report he must agree or refuse to grant license within sixty days after the submission of the report.

Who can become a gun dealer?

A person who is willing to take the license must give written notification to the nearest police station. Further, a person needs to fill the ATF form which asks for the details including business name, contact details, tax ID number and zoning description. Then the application must be taken to the nearest law enforcement agency for the fingerprint, which may charge a fee, which differs from place to place. For fulfilling a procedure a fee is applicable and after the fulfillment of the procedure a person gets call for interview from ATF and if the AFT is satisfied then a gun dealer gets approval.

How to get gun shop license?

The gun dealers has been granted a license after filling the Form XI, XII, XIII or XIV shall be issued a composite license in Form VIII for the gun shop and also for the deposit of arms. These licenses are issued by the state government and renewed by the District Magistrate. Moreover, a dealer who wish to extend a service of the repairs of firearms have to obtain a license by filling a Form IX/ IX-A whichever is applicable.

Who can acquire guns without license?

Defence Service Rules empowers the defence personnels to have a gun without a license. Besides firearms issued under their service the military officials are given the privilege to keep one personal firearm. The only condition is that they need to inform about the same to their Commissioned Officer (CO) and make their CO enter the details including serial number of that gun in the register. 

Gun From for different locations

Procedure to obtain license for the trade in Guns

Generally, it is a norm that a citizen can not import or export the guns based on the foreign trade policies. However, every general rule has certain exceptions and in this case also we have the exceptional circumstances, which allows to import any item from another country:

• Primarily an importer must have a due permission from the concerned authority.

• In order to know the procedure for getting permission from the licensing authority the importer must immediately contact the government agency.

• Custom clearance certificate is the most essential document, under the import of the good. Moreover, the origin of the certificate must also be very clear. 

• The imports of the goods from the least developed countries need to be certified before the export.

How many guns can be owned with one Gun license

On one arms license, a holder may own more than one gun. However it is conditioned that, each type of firearm needs to be exclusively endorsed after taking due permission from the license authority. The license holder may own a maximum of 3 firearms at a single point in time. 

Conclusion

Therefore, it can be concluded that Indian laws on firearms are very strict and curbs the urge of Indians to embody in themselves the American trend of acquiring guns. In this regard American laws are very lenient whereas Indian laws regulate a very lengthy and stringent procedure. Strict arms laws in India are the reason of elaborated debates and rebuttals.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

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It is very important for you to optimize your time and efforts for the Bar Exam. As the exam draws near, we have prepared a last-minute 20-hour study plan for you which will enable you to comfortably clear the exam, even if you have not been able to start preparing systematically till now. There is no need to panic – while the syllabus can be overwhelming and daunting, it is possible to optimize your preparation, and this study plan will guide you through how to efficiently allocate your time and be prepared for the exam in 20 hours.

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Please note that due to limited time, it is best to systematically plan your preparation and aim to comfortably pass the exam – for this purpose, it does not make sense to prepare for 100 per cent of the paper. Instead, you can focus on the subjects which carry the most weightage and can be studied in relatively less time. For this purpose, we have made a plan which enables you to prepare for 75 per cent of the question paper.

Note that exact marks are no longer declared by the Bar Council, and scoring 40 per cent is sufficient to pass the bar exam (there is still a 30 percent failure rate). If you prepare well for this, we expect that you should comfortably be able to pass. 

An hour-wise allocation for the study plan is provided below. This does not include time for printing out hacksheets.

Few pointers to make it easy to locate answers during the exam:

1. Please skim through all the materials that you carry to the exam hall at least once. Use a marker or post its to highlight the headings. It will save a lot of time. 
2. Prepare an index of all the materials you have so that you can be aware of what you have and what you don’t at a quick glance. 
3. Use the technique of elimination of wrong answers to solve MCQs if you can’t locate the answer through the Acts, especially for general knowledge questions. Once you our able to eliminate the incorrect options, the chances of marking the correct answers increases.  
   

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To know more about, Concepts of Guardianship, Adoption and Succession please Click Here

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

The post AIBE: 20-Hour Study Plan for Bar Exam appeared first on iPleaders.

This article is written by Shruti Goel, a 5th-year student of B.L.S LLB in Government Law College, Mumbai. This article is about the Right to Clean Environment.

Introduction

“Both aspects of man’s environment, the natural and the man-made, are essential to his well-being and to the enjoyment of basic human rights, the right to life itself.”

– United Nations, Stockholm, 1972

For leading a quality life a clean and a healthy environment is indispensable. A person will remain healthy only if he is provided with fresh air to breathe, clean water to drink and other basic requirements. So in order to live a dignified and healthy life it is important for a person to be surrounded by a clean environment. Thus, the right of the people to live in a clean and healthy environment is a basic human right, fundamental to live a decent life, the violation of which will be considered a violation of basic right to life.

The concept of protection of environment and its preservation can be traced back in our Vedas where references of ecological balance, environmental protection and other related topics are found to be made. But the advent of innovations like thermal plants, factories, automobiles, etc has lead to environmental deterioration the aftereffects of which are global warming, climate change, waste disposal, deforestation etc. Many people do not have clean air to breathe or clean water to drink or proper sanitation facilities due to increasing pollution and unbothered attitudes of the government. Almost all of these are the result of using natural resources in an unsustainable manner. Society’s oblivious behaviour towards environmental preservation has posed a severe problem because not only the present but also the future generations are going to be affected, if no steps are taken immediately. 

In the past several decades, there is a momentous shift in the international environmental concerns. The call for environmental protection and preservation has brought international recognition of the right to clean and healthy environment. For effective implementation of this notion and to create awareness globally, international organisations and communities have conducted numerous conferences and established various international instruments, resolutions and global and regional agencies. Around 200 treaties are registered under United Nations Environment Protection Programme and in total there are approx 900 bi-lateral and multilateral treaties.

International efforts

Stockholm Conference in 1972 was the first United Nations conference on Human Rights (UNCHE) which focussed on the issue of international environmental politics. This conference marked the beginning of international efforts towards the protection of ecosystem and placed it on the agenda of international policy and law. The concepts and ideas of almost every international conferences and treaties today have some snippets of the concepts and ideas discussed in this conference. Its key features were:

• It linked environmental protection with sustainable development.
• The meeting produced the Declaration of Human Rights and an action plan.
• The Declaration contained 26 principles which are considered the foundation for modern international environmental law.
• It facilitated the idea of International Environmental organisations both regionally and globally. 
• It marked the development of United Nations Environment Programme (UNEP).
• The Declaration stated that every human has a right to clean and healthy environment.

In 1983, the United Nations established World Commission on Environment and Development (WCED) also known as the Brundtland Commission to unite the countries all over the world for achievement of the common goal of sustainable development.

• The outcome of the commission was the publication which was released in 1987 known as the Brundtland report titled ‘Our Common Future’.

Brundtland report laid the foundation for Rio de Janeiro Conference in 1992, also known as the ’Earth Summit’ which led to the establishment of the UN Commission on Sustainable Development.

• The international community agreed to a plan of action for sustainable development in the 21st Century known as ‘Agenda 21’.
•  It lead to the establishment of non-legally binding document on conservation and sustainable development of forests which is known as ‘forest principles’.
• One important achievement of the conference was the agreement on Climate Change convention which ultimately led to the Kyoto Protocol and the Paris Agreement.

As a follow up to 1992 conference, Rio +5 also known as the Earth Summit 1997 was held in NewYork which appraised the status of Agenda 21.

Rio +10 was held in Johannesburg in 2002 to affirm the UN’s commitment to Agenda 21 and to establish Millenium Development goals. 

Rio +20 which was held in Brazil in 2012 was a 20 year follow-up of 2012 submit. The result of the conference was a non-binding document known as ‘The Future We Want’ where the heads of 192 countries renewed their political commitment to sustainable development.

All these conferences have, to a large extent shaped today’s international environmental law which is governed by certain general principles and bilateral and multilateral treaties.

Indian laws dealing with environmental issues

Environmental policy : Pre Stockholm period(prior to 1972)

During this period, legislation mainly focussed on infrastructural development because of which the need for environmental policy was overlooked. Certain laws were there for forest protection, unplanned town growth and preservation of mines and minerals. 

• Wild Birds and Animals Protection Act, 1912

It was made punishable to kill, capture, sell or buy any wild bird and animal mentioned in its schedule.

• Indian Forest Act, 1927

It developed the framework and procedure for setting up and protection of reserved forest, protected forests and village forests.

• The Factories Act, 1948

It stressed upon the treatment of harmful gasses, liquid effluents and solid waste generated during the manufacturing process before its final disposal to decrease its adverse effects on the environment. 

• The Mines and Minerals (Regulation and Development) Act, 1957

The Union took under its control the regulation of mines and development of minerals to avoid any misuse of this wealth of nature.

Environmental policy : Post Stockholm period(after 1972) 

Stockholm Conference in 1972 has influenced to a large extent the framework of environmental policies in India. After the Stockholm Conference, the National Council for Environmental Policy and Planning was set up in 1972 within the Department of Science and Technology to establish a regulatory body to look after the environment-related issues. This Council evolved into a full-fledged Ministry of Environment and Forests (MoEF) in 1985. 

The effect of the Conference was such that it lead to the amendment of the Constitution to include the principle of environmental protection and preservation.

Constitutional provisions

The Constitution of India, 1950 didn’t include any provision for environmental protection or preservation. However the Constitution (Forty-second Amendment) Act, 1976 introduced Article 48-A and 51A (g) which conferred constitutional status to environmental protection.

Directive principles 

• Article 48-A

This article says: “The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country”. Though directive principles are not enforceable in the Courts ,the State has to comply with its provisions when creating laws.

• Article 47 

An attempt has also been made to provide for the right to a healthy environment to its citizens by Article 47 which states that the “State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties.”

Fundamental duties

It is a duty of every citizen to protect and preserve the environment under Article 51-A(g) which says that “It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures.”

Fundamental rights

The provision of Article 19 (1) of the Constitution which deals with freedom of speech and expression has been used by the Supreme Court to approach the problem of noise pollution. It has been stated that right to speech and expression doesn’t include right to use amplifiers or loudspeakers. Such right cannot be used so as to cause problems for others.

Article 21 of the Constitution deals with Protection of life and personal liberty which states that ‘No person shall be deprived of his life or personal liberty except according to procedure established by law’. It is a negative duty of the State to not to do anything which deprives a person of his life or his personal liberty. To safeguard this right and other fundamental rights Article 32 of the Constitution empowers the Supreme Court to move whenever there is any violation of Fundamental Rights. Although the right to a clean environment was not explicitly recognised by the Constitution, it has been held to be implicit in Right to life under Article 21 by the judiciary through its pronouncements. Courts have given widest connotation to Article 21, it was argued that right to life doesn’t mean merely ‘animal existence’ but a life with ‘human dignity’. It was held that right to life to incorporate all those rights that are essential and basic for the enjoyment of the standard of life, like the right to shelter, right to food, etc. free from environmental pollution and other environmental hazards.

Article 32 and Article 226 of the constitution has been used time and again to raise the issue of environmental protection through Public Interest Litigation (PIL).

Environment protection laws

The Stockholm Conference of 1972 has largely influenced the environmental policy making in India. Several important legislation has taken place after that. Following Acts were produced to tackle the problem of environment pollution.

The Water (Prevention and Control of Pollution) Act,1974

• The aim of the Act is to maintain wholesomeness of the water of the country and to promote cleanliness of streams and rivers.
• It led to the establishment of Central Pollution Control Board (CPCB) and State Pollution Control Board (SPCB).
• It prohibits the discharge of effluents into the water bodies beyond a certain level.
• It was last amended in 2003.

The Air (Prevention and Control of Pollution) Act, 1981

• It provides for prevention, control and abatement of air pollution.
• The boards created by the ‘Water Act’ were entrusted with the responsibility to implement the provisions of this Act also.
• It empowers the State Government, after consultation with the SPCBs, to declare any area or areas within the Sate as air pollution control area or areas.
• Under the Act, establishing or operating any industrial plant in the pollution control area requires consent from SPCBs.

The Environment (Protection) Act, 1986

• This Act was a result of the unfortunate Bhopal Gas tragedy in 1984.
• It is considered as an umbrella legislation to fill the lacuna of the existing legislation and to help CPCBs and SPCBs coordinate their activities under various legislations.
• The Act empowers the Centre to take all such measures as it deems necessary by setting standards for emissions and discharges of pollution in the atmosphere by any person carrying on an industry or activity; regulating the location of industries; management of hazardous wastes, and protection of public health and welfare.

The National Green Tribunal Act, 2010

• It led to the establishment of National Green Tribunal (NGT) for speedy disposal of cases relating to environment protection and preservation.
• The Act envisages establishment of NGT in order to deal with all environmental laws relating to air and water pollution, the Environment Protection Act, the Forest Conservation Act and the Biodiversity Act as have been set out in Schedule I of the NGT Act.

Certain policies were also created to achieve the aim of environmental protection. Some of them are:

• National Environment Policy, 2004
• Marine fishing Policy, 2004
• National Environment Policy, 2006
• 11th 5 Year Plan (2007 -2012)
• National Wetland Conservation Programme

Penal provisions

Under Indian Penal Code, 1860 there are certain provisions defining various crimes relating to public nuisance. 

Public nuisance is defined under Section 268 of IPC.

Sections 269 to Section 271 of the IPC deals with negligent acts which are likely to spread infection of disease dangerous to the life of people. These acts are punishable under the said sections.

Section 277 of IPC relates to water pollution. It makes fouling water of public spring or reservoir punishable with imprisonment or fine or both.

Section 278 of IPC relates to air pollution. It states that whoever voluntarily vitiates the atmosphere in any place so as to make it noxious to the health of persons in general dwelling or carrying on business in the neighbourhood or passing along a public way, shall be punished with fine which may extend to five hundred rupees.

Section 290 of IPC makes public nuisance punishable and prescribes punishment for the same.

Section 133 of Criminal Procedure Code, 1973 empowers the Magistrate to take immediate actions for removal of any public nuisance that might have been reported to it by the police after considering any evidence as it thinks fit.

Role of Judiciary in evolving environmental laws

Judiciary has played a really important role in the protection of the environment. The timeline of past few decades which is filled with landmark judgements is evident of the role played by judiciary by giving wide interpretation to the Fundamental rights of the individuals of this country. One of the major developments was the introduction of Public Interest Litigation (PIL). Supreme Court realised that the vast majority of our country is unable to approach court because of the rule of locus standi which means only the party aggrieved can approach the court. But in the 1980s the judiciary relaxed this rule which allowed every citizen whose interest has been affected in some way or the other to approach the court. PIL got its constitutional sanction in the 42nd Amendment of the Constitution. PIL proved to be a game-changer, particularly in the field of environmental cases as it expanded the horizon of social justice. It encouraged individuals, NGOs, organisations affected by any particular activity or project to approach court for the interest of society as a whole without paying any court fees. 

There are numbers of landmark judgments which clearly highlights the active role played by the judiciary in environmental protection. Some of these are as follows:

• Municipal Council, Ratlam vs Shri Vardhichand & Ors, 1980

It was one of the first cases which contributed to the expansion of horizons of environmental protection. In this case a petition was filed by the residents of a municipality in Ratlam alleging that the municipality is not constructing proper drains resulting in stench and stink caused by the excretion by nearby slum-dwellers. It was stated by Supreme Court that Right to life includes Right to a wholesome environment and the residents have the right to exercise it against State. It acknowledged the effects on poor of deteriorating environment and compelled the municipality to build proper sanitation and drainage.

• Rural Litigation and Entitlement Kendra v. State of UP, 1989

In 1987, a petition was filed by Rural Litigation and Entitlement Kendra on behalf of Doon valley residents to stop the quarrying of limestone in the Mussorie valley. It was argued that these quarrying activities are disturbing the ecological and environmental balance in the valley. SC ordered to stop the quarrying activities in the valley which was later declared ecologically fragile area under the Environment Protection Act.

• F.K. Hussain vs Union Of India And Ors, 1990

Recognising that right to health is a part of the right to live under Art. 21, the Kerala High Court has observed that the right to clean water and air are attributes of the right to life.

Evolution of principles by Indian Judiciary

Judiciary has taken the guidance of certain principles from International environmental law to help them decide disputes in environmental cases. These principles are:

Inter-generational Equity

• According to this principle, the State is obliged to conserve and use environment and its natural resources for the benefit of present as well as future generations. It states that every generation holds Earth in common, therefore its resources should be used judicially and for the common benefit of all.
• It is the foundation of sustainable development.
• Right to a clean environment is not only an individual right but a collective right available to both present and future generations equally.
• G. Sundarrajan v. UOI 2013

It was stated by SC that Sustainable Development and CSR are inseparable twins, integrated into the principles of Inter-Generational Equity which is not merely human-centric, but also eco-centric. It a duty of company to take into consideration the outcomes of their thermal projects on environment at present and its aftereffects on the future generations.

 Polluter Pays Principle

• It was first introduced in 1972 by the Organization for Economic Cooperation and Development (OECD) Guiding Principles concerning International Economic Aspects of Environmental policies.
• It states that the polluter should bear the cost of damage caused by it to the natural environment.
• Vellore Citizens’ Welfare Forum v.. Union of India 1996

Court interpreted the principle of Polluter Pays as an absolute liability of the polluter, not only to compensate the victims for the hurt caused to them but also to pay costs for the restoration of natural environment damaged by the activities of the polluter.

Precautionary Principle

• The precautionary principle was adopted in the Rio Declaration, 1992 (Principle 15).
• It states that even in the absence of scientific evidence, measures must be taken to anticipate and prevent the causes of environmental degradation. It is the social responsibility of the State to protect the public from any plausible risk.
• AP Control Pollution Board vs. Prof M V Nayadu 1999

Court held that it is better to take precautions to protect the environment from harm than to wait for the issue to materialize. It is important to take steps even if there is no scientific evidence of the potential harm to the environment.

Public trust Doctrine

• It states that resources like water, air, sea and forest have a great importance to the general public that it would be unjustified to make it the subject of private ownership. It poses a duty on the State to protect such resources for the benefit of all and not to permit any commercial use of it. 
• Public at large is the beneficiary and State is the trustee who is under a legal duty to protect these resources.
• M C Mehta v. Kamal Nath 1997

In this case an attempt was made to divert the flow of the river to support the commercial activities of a motel. It was held that the State is the trustee of all natural resources which cannot be permitted to be used for commercial purposes and can only be used for the benefit of public as a whole.

Sustainable Development Principle

• It was first introduced in Stockholm Conference in 1972.
• It states that the State should try to strike a balance between development and environment.
• State of Himachal Pradesh v. Ganesh Wood Products 1995

The Supreme Court invalidated a forest-based industry, recognizing the principle of intergenerational equity as being central to the conservation of forest resources and sustainable development.

M C Mehta v. Union of India 1986

The Shriram gas leak case was a landmark judgement in the field of environmental activism. Supreme court in this case tried to reinstate the faith of the public in the machinery of justice by rectifying the mistake done a year ago in Bhopal gas tragedy case.

Facts of the case

• Shriram Food and Fertilizer Industry, a subsidiary of Delhi Cloth Mills Limited, was a privately owned company engaged in the manufacturing of caustic chlorine and oleum gas.
• A writ petition was filed by social activist lawyer M.C Mehta for the closure of Shriram Food and Fertilizer Industry as it was situated in a very densely populated area of Delhi.
• While the petition was still pending ,on December 4th and 6th 1985, a major leakage of petroleum gas took place from one of the units of Shriram Food and Fertilizers Limited in the heart of the capital city of Delhi which resulted in one death and several health issues.
• Two orders were issued to shut down the plant on the 7th and 24th of December respectively under the Factories Act (1948) by the Inspector of Factories and the Assistant Commissioner of Factories.
• Shriram responded by filing writ petitions of itself (No. 26 of 1986) to nullify the two orders and interim opening of its caustic chlorine plant manufacturing; glycerine, soap, hard oil, etc.
• On behalf of the gas leak victims the Delhi Legal aid and Advice Board and the Delhi Bar Association filed for compensation along with the original petition of M.C. Mehta and was also pleaded to not allow the closed establishment to restart.

Issues raised

The case was first heard by three judges bench who, in their judgement permitted the reopening of the closed establishment on certain conditions. Considering that the issues are of constitutional importance the case was then referred to a larger bench of five judges.

Issue 1

Whether Shriram should be allowed to restart its operation of manufacturing caustic chlorine and oleum which is potentially a health hazard and whether it would be a violation of Article 21 ?

It was argued on behalf of the petitioner that Shriram Industry should be ordered to close permanently as it posed a risk to life and health of the community settled in the close vicinity of the industry as it would be a violation of the fundamental right guaranteed under Article 21. Though Right to health and clean environment is not explicitly mentioned in the Constitution but it is inherent under the Right to life. The directive principles under the Constitution provides for improvement of healthcare and how State should take measures to improve the standard of health and lifestyle. Though these are not enforceable in court, it is the duty of State to act in accordance with these guidance.

Issue 2

What is the measure of liability of an enterprise which is engaged in the manufacturing of a hazardous or inherently dangerous substance which poses potential risk to the health of community at large?

It was argued that the nature of activity undertaken by the said industry was dangerous and potentially risky to the health of community at large. It was stated that the company should have an absolute and non-delegable liability to ensure that no harm is caused to the community because of the dangerous nature of activity they have undertaken and to make them accountable for that.

Issue 3

Whether Shriram Industry is a ‘state’ and comes under the ambit of Article 12 so as to hold it liable under Article 21?

It was held that the manufacturing of chemicals by the industry was of public interest according to state industrial policy which was originally intended to be carried out by the Government but instead Shriram was permitted to carry out such activities under the control of government according to their rules and regulations. It was held that activities which are integral for the functioning of the society should be necessarily considered governmental functions.

Issue 4

Can compensation from Shriram Industries be claimed under Article 21?

It was argued by the petitioner that compensation should be paid to all the victims as all the applications for compensation had right to life as their basis which also guarantees right to health and clean environment. It was the absolute duty of the Shriram Industry to take safety measures so as not to cause harm or pose any risk to the health of the community. 

But later Court decided not to adjudicate on this matter.

Judgement

• Judgement was delivered on 19th December 1986.
• Supreme Court decided not to adjudicate on the matter whether compensation should be paid by Shriram Industries under Article 21.
• They directed Delhi Legal Aid and Advise Board to file a comprehensive action on behalf of all those who claimed to have suffered from this incident before an appropriate court within two months from the date of judgement.
• It also stated that the amount of compensation should be equal to the magnitude of the harm caused to the community and should also be correlated to the capacity of the Shriram industry so as to have a deterrent effect.
• The court also instructed Shriram to comply with all the recommendations of the Nilay Choudhary and Manmohan Singh Committees and issued a strict notice that failure to do so will result in the immediate closure of the plant.

Analysis & Conclusion

The judgement of the case proved to be significant for the enviro-legal cases to come as it produced several important stances which are celebrated even today. The Supreme Court took a proactive role in the disposal of the case and made sure that the Fundamental rights of the people are not violated, by giving wide connotation to Right to life under Article 21. It was important for the Court to address the concerns raised after the judgement of Bhopal Gas tragedy, which came just a year ago, to reinstate their faith of the country in the system of judiciary. It was felt necessary to have such a strong judgement to ensure the public that industries will be held absolutely liable for their actions and will be punished for jeopardizing the life of the community.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

The post Right to Clean Environment – M.C Mehta v. Union of India appeared first on iPleaders.

Solve the amazing and exhaustive quiz containing the questions for major portion of Jurisprudence for All India Bar Examination.

1.) The Natural Law School, as propounded by Salmon, claims that positive law derives its standard from 

A.) Consensus 

B.) An objective norm that has to be followed in the interest of order in society 

C.) Superior moral standards 

D.) Command of the sovereign 

E.) None of the above 

2.) According to Ronald Dworkin, what is indispensible in order to interpret and apply laws? 

A.) legal authority 

B.) introduction of moral judgments 

C.) a body of judges who are capable of keeping personal value judgments out of reach of laws 

D.) a robust system of courts 

E.) Both (c) and (d) 

3.) Ronald Dworkin’s ‘Original Problem’, based on Riggs v. Palmer, 115 NY 506, is used to illustrate the principle that Law is not merely a system of Rules but there are also ‘principles, policies and other sort of standards’ that govern the legal system. What was the case scenario in Riggs v. Palmer? 

A.) the judge trying the case was himself a witness 

B.) a man sued his father who struck him in self defense when the former attempted to kill him 

C.) a defamation suit was filed by a man who knew the aspersions against him were true 

D.) a man sought to sell the property of the person he killed 

E.) none of the above 

4.) Legal Positivism directly clashes with which theory? 

A.) Normative Jurisprudence 

B.) natural law theory 

C.) Legal Realism 

D.) Constructivist theory 

E.) None of the above; they are all compatible 

5.) Who among the following scholars is not a proponent of Legal Positivism? 

A.) Ronald Dworkin 

B.) John Austin 

C.) Joseph Raz 

D.) H. L. A. Hart 

E.) None of the above 

6.) What is the fundamental problem in finding an analogy of Austin’s political sovereign in India’s Constitution? 

A.) Austin’s sovereign cannot be identified 

B.) Austin’s political sovereign it turn, does not himself habitually obey some other person or persons 

C.) Austin’s concept is radically flawed 

D.) ‘We, the people’ as a political sovereign is too diffuse a body to locate sovereignty with certainty. 

E.) both (b) and (d) 

7.) Since Hart asserts that there is ‘no necessary connection between law and morality’, what then, is the difference between Hart’s Inclusive Legal Positivism and Exclusive Legal Positivism? 

A.) Inclusive Legal Positivism does not completely discount the possibility of interface between law and morality 

B.) There’s no difference as such between the two 

C.) The former rejects conventional morality while the latter rejects critical morality 

D.) The former rejects critical morality while the latter rejects conventional morality 

E.) Both c and d are true 

8.) The functional approach to understanding Law is best explained as: 

A.) A key to morality of law 

B.) an evolution of the society by social and economic circumstances 

C.) Divine infallibility of the law-maker 

D.) a code of conduct that man has devised 

E.) None of the above 

9.) One way to grapple with the problem of conflicting claims over limited resources according to Amartya Sen would be: 

A.) Adopt socialism 

B.) The communist approach to distribution 

C.) Ensure justice is served irrespective of means 

D.) Replace ‘obsession with justice’ with an aim of reducing Injustice 

E.) All of the above 

10.) Harm Principle would be: 

A.) a rider on the liberty of persons can only be justified to avoid harm to a larger segment of persons 

B.) a tenet that harm should be avoided at all costs 

C.) that individual cannot be harmed even if it causes society to suffer harm 

D.) that injustice is harmful to the society 

E.) none of the above 

11.) Which of the following scholars and the theories they endorse is matched wrongly? 

A.) Dworkin – Law is not merely a system of rules 

B.) Hart- There are liberties which override ordinary considerations of utility. 

C.) Hart- There are liberties which override ordinary considerations of utility. 

D.) Devlin- a society has a right of self-defence against any harm that may ensue to the moral code that binds it 

E.) None of the above 

12.) Who among the following is not an analytical positivist? 

A.) Jeremy Bentham 

B.) John Austin 

C.) Hans Kelsen 

D.) H. L. A. Hart 

E.) None of them are analytical positivists 

13.) Illustration: While interpreting a statute, one has internal and external aids to construction. Question: Which of the following in not an Internal aid to construction? 

A.) long title 

B.) preamble 

C.) headings 

D.) definitions 

E.) Parliamentary history 

14.) What is the problem with defining ‘Law’ as a ‘Command’? 

A.) Nothing, law can be so defined 

B.) Obligations are sometimes entered into voluntarily by parties and the Law does not mandate them to do so 

C.) Command has to be obeyed, unlike law 

D.) Law has a lower threshold of expectation than command 

15.) Illustration: People who act contrary to rules ought to be liable for punishment. Principle: Austin said, “[t]he existence of law is one thing; its merit or demerit is another. Question: What then, gives a rule the force of Law? 

A.) The idea of a sanction is built into the very notion of law 

B.) Its rigidity 

C.) Considerations of utility and efficient management of resources that Law contemplates 

D.) Its incorporation of temporal moral value 

E.) All of the above 

16.) The significance of the classification as ‘primary’ and ‘secondary’ rules indicates that secondary rules ……………….. 

A.) are subservient to Primary rules 

B.) cannot exist without Primary rules 

C.) can never become law. 

D.) are unimportant and can be applied in an unorthodox manner 

E.) none of the above 

17.) Which is correct?. 

A.) A.19(1)(a) that denies the State the power to take away an individual’s liberty such as freedom of speech and expression. 

B.) A. 19(1) that provides the ‘reasonable restrictions’ of ‘public order, decency and morality’ 

C.) A. 21

D.) A. 14

E.) All of the above 

18.) Identify the wrongly matched source/origin of law: 

A.) Devlin – Reliance upon marriage laws to prove his theory 

B.) Joseph Raz – Exclusive legal positivism 

C.) Andrei Marmor – Exclusive legal positivism 

D.) eremy Bentham – Functional approach to law 

E.) None of the above 

19.) Identify the stage of law that is not a part of Maine’s comparative and anthropological approach: 

A.) A time when law was made by the commands of a ruler, acting under ‘divine inspiration’ 

B.) Where such commands gain wider currency as customary law 

C.) The emergence of a minority, such as priests, who have control of the knowledge and administration of customary law 

D.) The promulgation of law as a code 

E.) None of the above 

20.) Principle of Liberty and Difference Principle, mentioned in a theory of justice was written by: 

A.) Savigny 

B.) Austin

C.) John Rawls 

D.) Hart 

E.) Maine 

21.) Illustration: Other Backward Classes (OBCs) have a reservation of 27% in Government Educational Institutions. Question: This is an example of a particular idea of justice. Pick the right one: 

A.) Mill’s Harm Principle 

B.) Rawls’ Liberty Principle 

C.) Rawls’ Difference principle 

D.) Fuller’s Inner Morality 

E.) None of the above 

22.) Illustration: In claiming a seat in an engineering college, for example, there are competing but sometimes equally strong claims. Amartya Sen’s suggestion of a way out of the conundrum is: 

A.) survival of the fittest 

B.) an across-the-board standard of Merit 

C.) Need-based discrimination