This article has been written by Rutuparna Sahu from KIIT School of Law, Odisha. This article talks about how cruelty can be considered as a ground for divorce. 

Introduction

As an Indian girl, I have always been encountered with this term “pati parmeshwar” which means your husband is your God. No doubt we the women of this century do not believe in such a concept anymore but there are people especially the women who still think their survival is difficult without a spouse. Here the women are not to be blamed entirely because little did they know their so-called “parmeshwar” concept was a myth. Every relationship goes through different phases so does a marriage, but is it valid to abuse the rights that the spouses have over each other? A marriage never comes with a condition, in fact it is a tag to a relationship and no person marries to eventually get divorced. Everyone puts an effort to save their relationship by keeping aside all the differences because marriages in India hold major importance but things are different when you are no longer able to handle the situations. 

What is cruelty?

Cruelty refers to violent acts. However, a mere quarrel, petty outrageous behaviour or differences between the spouses does not come in the ambit of cruelty because this is something that is common in a day to day married life. Conducts that would amount to cruelty should be grave and severe in nature. Grave violence doesn’t always mean physical violence. Though physical violence is an essential factor that constitutes cruelty but apart from that a continuous process of ill-treatment or mental or physical torture to either of the spouse would also amount to cruelty. 

Cruelty as a ground for Divorce 

The day to day situations in a matrimonial life creates an ambiguity within the couples to lead their life with each other peacefully. Although there is no such exhaustive definition to what all condition would lead to an offence of cruelty but if we go through a case of marital abuse happening around us, then we can conclude of certain conditions such as:

• The physical violence on the spouse. 
• Having affairs or committing adultery with not just the spouse’s knowledge but even publically accepting it.
• And also in cases where either of the spouses is falsely accused of committing adultery.
• The constant manifestation of agony, rage with the addition of yelling or abusing at the spouse. 
• Demoralizing and restricting the spouse by every means to be an independent individual and compelling the spouse to be in a marital relationship where the spouse is left with no other option but to depend on the other. 
• Not disclosing any fact or incident of an acquired sexually transmitted disease while they are already into marital life. And the list goes on.

The conduct by either of the spouse should be of such a nature which should fall in the ambit of cruelty under the Matrimonial Law. The Court needs to look after all the background and circumstances because of which the couple wants to get separated. Basically, the Court has to investigate the reason for the deterioration of the marriage.

Divorce in general terms means the dissolution of a marriage with the help of a lawyer and by the prescribed Law. One can go for divorce when either of the parties or both of them want to get separated and free themselves from the existing relationship. However, every state has its own laws regarding marriage. 

How cruelty was established as a ground for divorce

If we study the history of the Hindu Marriage Act, 1955, cruelty was never taken into consideration as a ground for divorce but was applied only in cases of judicial separation. Here the aggrieved party or the petitioner has to prove that the cruelty is so grave or so unbearable that it is getting difficult to carry forward with his or her spouse (the defender). But this was upheld by the Supreme Court in a landmark case of Narayan Ganesh Dastane Vs. Sucheta Narayan Dastane in 1975. 

This led to an amendment in the Act where cruelty as a ground for divorce was added into the Act with the inclusion of legal definition to the term cruelty under this Act in 1976. However, the Court also held that the courts should decide the case on grounds of cruelty only based upon the subject matter of the case. After the amendment in this act, there was not much distinction between the grounds of cruelty resulting in judicial separation and grounds of cruelty resulting in divorce except for two words that are added are “persistently or repeatedly”. By this addition, the establishment of cruelty as a ground for divorce was given much more importance than proving it as a ground for judicial separation. This ground was added under Section 10(1) of the Hindu Marriage Act,1955 and now “Cruelty” has a self-contained definition.

Other provisions under the law 

Section 498A of IPC deals with the offence of cruelty against a wife by her husband and/or in-laws. 

Ingredients of Section 498A  

• The woman must be legally married to her husband.
• The woman must have been subjected to some sort of cruelty or marital abuse.
• Such cruelty must be done by her husband himself or the relatives of the husband and here the terms relative only includes the husband’s parents, brothers and sisters and nobody other than them, not even any close friend or any distant relatives. 
• However, if the husband commits such cruelty he shall be liable for imprisonment which may extend to three years with fine. 

Explanation to Section 498A under the Indian Penal Code 

The expression “cruelty” has been defined in a wider perspective under this section, that is:

1. The commencement of any wilful conduct of such a nature which would likely drive the wife to commit suicide or would cause her grave injuries or danger by inflicting physical or mental harm to life, limb or health of the wife. 
2. Harassing the wife where such harassment is done with a view to coerce her or her relations to meet any unlawful demands for any property or valuable security or is done in the result of her or any of her relation’s failure in meeting such demand.

Related case law 

In the case of Reema Aggarwal Vs. Anupam and Ors of 2004, Reema was harassed by her husband Anupam, mother-in-law, brother-in-law and father-in-law for not being able to provide enough dowry. The accused forced Reema to put some acidic and poisonous substance in her mouth to end her life because of which she was rushed to the hospital. The Court held that the husband of the second wife who marries her during the subsistence of earlier legal marriage is not the husband within the meaning of Section 498A because it was the second marriage of both Reema and Anupam and hence, the second wife cannot invoke this section. The respondents were acquitted of the charged offences under Sections 307, 498A of IPC. 

Cruelty under Section 13(1)(ia) of the Hindu Marriage Act talks about the behaviour of one spouse towards the other which results in a reasonable apprehension in the mind of the latter that it is not safe for him or her to continue to stay in the matrimonial relationship anymore with the other. 

 How does cruelty work in India?

• Cruelty even being a grave offence is still less talked about. Because we Indian are so used to it, aren’t we? Even if we try our best we still cannot change everyone’s mindset because here in India women seldom come up with any complaint against their husbands and in-laws because of fear, family pressure, societal pressure or lack of awareness or no access to police or failure in work on part of the police. And at last, they settle themselves by suffering violence and in addition to that, all these above-stated pressures. 

Hence, the Court has held that the failure to establish exact dates, timings and details about the manner of cruelty are to be treated secondarily. 

• Cruelty can be both physical and mental depending upon the circumstances and many other factors such as education, social background, the sensitivity of individual victim. What amounts to cruelty is a question of fact. The main intention behind all these acts is to safeguard a woman’s dignity in her matrimonial home. Matrimonial relationships between the wife with her husband and her in-laws, their different cultures, state of health and their daily interactions determine cruelty. 

Kinds of cruelty

Now that we have come this long discussing cruelty, we know one thing for sure that the courts keep on amending and widening the scope of cruelty with respect to women. So cruelty can be categorised into two types:

Physical cruelty

Hereby under physical cruelty, we are not referring to any violence that takes place anywhere outside but the matrimonial physical violence resulting in cruelty. Any physical violence, bodily injuries, the threat to life, limb and health apparently causing apprehension in the mind of the woman would constitute physical cruelty on the spouse. Establishing Physical cruelty is not much of a task because one of the most common reasons for divorce is physical violence. ‘Habitual assaults’ under the Muslim Marriage Act, 1939 is one of the grounds for the dissolution of a marriage. Assault in itself is a grave offence as stated under Section 351 of the Indian Penal Code. Under the Parsi Marriage and Divorce Act, 1936, causing grievous hurt is taken as a ground for divorce. Section 320 of the Indian Penal Code defines grievous hurt. Hence, we can conclude that assault, grievous hurt and cruelty are somewhat interrelated to each other and do not pertain much of a difference. 

Mental cruelty 

Now it is not just about physical cruelty, mental cruelty has the same weightage compared with physical cruelty. Ascertaining mental cruelty is kind of more challenging than proving physical cruelty. Apart from the physical harm if any woman is inflicted with any kind of mental stress or has to compromise her mental peace for her spouse or have to constantly go through mental agony, then that amounts to mental cruelty. However, we will never come to know about the psychology of an individual and sometimes people are hypersensitive in nature so in that case if someone accuses someone of having exhibited cruelty then it cannot be 100% true. Therefore the person will not be entitled to ask for a divorce on grounds of cruelty. Mental strain can happen in various ways so there are no specific criteria which would amount to mental cruelty for example, if the spouse is forcing the wife to do something without the consent or willingness of the wife. Anything not expressed or hidden by the spouse which creates a sense of doubt also amounts to mental cruelty. 

Is a man entitled to a divorce?

In the landmark judgement of Mayadevi Vs. Jagdish Prasad in February 2007, the Supreme Court held that any kind of mental cruelty faced by either of the spouses not just the woman but men as well can apply for a divorce on grounds of cruelty. In this case, the respondent filed an application of divorce after a repeated course of cruelty inflicted by his wife and as alleged by the husband (respondent) that the wife did not provide food to him and his children and blamed the husband and his family members instead. 

Hence, a man is also entitled to divorce if he is inflicted with any kind of cruelty. 

Conclusion 

It is true that there are a lower number of complaints lodged for divorce on grounds of cruelty. Because people any way prefer settling themselves with whatever condition they are in. But you need to understand that the provisions made are going to help and safeguard you from ill-treatments. So, laws may vary according to particular State Laws or the grounds which would fall under the scope of cruelty. So in my opinion, if at all any of you want to know about the grounds that would fall under the scope of cruelty then you should consult a local lawyer or study the related statutes of your state.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

The post Cruelty as a ground for Divorce appeared first on iPleaders.

This article has been written by Mridul Tripathi, a student of law at Vivekananda Institute of Professional Studies (affiliated to Guru Gobind Singh Indraprastha University).

Introduction

The ancient texts of India have hardly discussed the concept of guardianship due to the enduring familial structure in the Vedic society and unyielding presence and powers of the Karta. Therefore, there were hardly any laws on guardianship in India. The emergence of guardianship as a legal concept began from the advent of the British Empire and slowly with the pace of time these laws were incorporated in the Hindu Laws. 

Before we dive deep into the topic and discuss the liabilities of a guardian under the Hindu law, we need to have a clear understanding of the basics to help us understand it better. In India, guardianship in a Hindu family is regulated by the Hindu Minority and Guardianship Act, 1956 and the Guardians and Wards Act, 1890 which deals with the basic principles and laws regarding appointment of a guardian. This article along with discussing the liabilities mentioned in the Minority and Guardianship Act, 1956, touches upon other various heads under the Act that would render our understanding lucid. 

Definition of the terms ‘Minor’ and ‘Guardian’ under Hindu Law

Section 4 of the Hindu Minority and Guardianship Act, 1956 deals with the relevant definitions but while reading the definitions one must always keep in his mind that the definitions must always be read in subject to the qualification that their application must not be inconsistent to the subject matter. In applying this, if there appears a repugnancy between the context and the words and expression of the statute, it should be resolved harmoniously and read in consonance as well as to effectuate the intention of the legislature. For example, the term Guardian has a wide connotation but in this act it is reserved to a minor and to his/her property. This definition can be inapplicable in case of any other enactment. Sec 4 encompasses definition of the terms – minor, guardian and a natural guardian.

Minor

Minor as defined u/s 4 (a) Act means a person who has not completed the age of 18 years.

Guardian

A Guardian as defined u/s 4(b) of the Hindu Minority and Citizenship Act, 1956 means a person taking care of the minor physically or of his property or of both him and his property and includes the following:

• A Natural Guardian:Father, Mother and Husband (impliedly repealed).
• Testamentary Guardian:A person appointed by the will of the minor’s father or mother.
• Certified Guardian:Appointed or declared by the court.
• A Person empowered by any enactment relating to any Courts of Wards.

Types of Guardians

Guardians are appointed to ensure the welfare of the child. Apart from the three major types that are defined and included in Section 4 of the Act i.e. natural, testamentary and the ones appointed by the court, there also exist de facto guardians (Self appointed Guardians) and guardians by affinity(Guardians of a minor widow). De-facto Guardians are mentioned in Sec 11 of the Hindu Minority and Guardianship Act, 1956 and discussed under limitations in this article.

Natural Guardian of a Hindu Minor

Section 6 of the Hindu Minority and Guardianship Act, 1956 recognises three persons as natural guardians, the father, the mother and the husband.

Clause (a)- In case of a boy or an unmarried girl- The father, and after him, the mother: provided that the i case of a minor child less than the age of 5 years, the custody shall rest with the mother.

Before 1956, a father would have been successful in curtailing the guardianship rights of the mother by appointing a testamentary guardian before his death but after the 1956 Act, the appointment of a testamentary guardian is rendered ineffective if the mother of the child is still alive.

Although, the law states that the father when alive is the natural guardian of the child and only after his death would the mother become a natural guardian, there are certain exceptions to it. The Supreme Court has clarified that the word ‘after’ as mentioned in the section doesn’t only connotes ‘after the death of’ but also entails ‘in absence of’ as well. Where the father hasn’t raised any objection to any actions of the mother due to his indifference or where the minor has been in the exclusive care of the mother and the father hasn’t taken care of the property of the minor or of him in person due to some mental or physical incapacity, he would be deemed absent for the purpose of this section[1]. The mere fact that the mother has remarried won’t fetter her rights and her request wouldn’t be disqualified.[2]. When it comes to custody, as a general rule, the court would not deprive the father of custody of the minor, but in all such cases the court has always kept the welfare of the child as the paramount interest and factor in delivering the pronouncements and has not given the custody of the minor child to his father where the child’s interest was being compromised.

Clause (b)– Mother lawful Guardian of her illegitimate children:

Mother is held to be the natural guardian of the illegitimate child even if the father of such minor is alive. No preferential right is given to the father.

Clause (c)– Husband lawful guardian of a minor wife:

This clause stands impliedly repealed due to the provisions of s.3 of the Prohibition of Child Marriage Act, 2006.

Proviso to Section 6 of the Act states that a person shall not be entitled to act as the natural guardian of a minor only if he has either ceased to be a Hindu or he has completely renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).

Testamentary Guardian

Testamentary guardians are the ones that are appointed by the will of the parents of the minor. Section 9 of the Hindu Minority and Guardianship Act deals with the provisions related to the testamentary guardians. Sub-section 1 and Sub-section 2 deals with the rights of the father and states that the hindu father has the right to appoint a guardian and if he dies before the death of the mother, then such an appointment shall fail. It will only revive if the mother dies without appointing, by will, any person as guardian.

The rights of the mother include appointing a guardian for her illegitimate child. In this case even if she has predeceased the father, the father won’t have the right to appoint the guardian though he would be deemed at the natural guardian of the child. The testamentary rights are also vested in the widows and mother who are entitled to act as the natural guardian due to disentitlement of the father. In the case of a minor girl, as soon as she gets married, the testamentary rights of the guardian extinguish.

Testamentary Guardians have the same rights and limitations as that of a natural guardian. 

Guardians appointed by the court (Certified Guardians)

The Guardians appointed by the court are termed as certified Guardians and the Court appoints a Guardian keeping in mind various psychological, physical and financial factors. The powers of such Guardians are regulated by the Guardians and Wards Act, 1980. The power to appoint a guardian in respect of as mitakshara hindu family minor who has an undivided interest only rests with the High Court (sec 12 of the The Hindu Minority and Guardianship Act, 1956.) 

Powers of the Guardians

Section 8(1) of the Hindu Minority and Guardianship Act, 1956 vests in the natural guardian the power to take all the actions that are necessary or reasonable and proper for the benefit of the minor or take any action to realise, benefit or protect minor’s estate. A minor’s estate means a minor’s definite property and not his fluctuating indefinite interest in the joint Hindu family estate. Section 8 is in pari materia with sec 29 of the Guardianship and Wards Act, 1890.[3] 

Liabilities of the Guardians

1. The Guardian in carrying out the above mentioned powers can in no case bind the minor by a personal covenant. This means that though the guardian may impose a financial liability on the minor’s estate yet cannot make him personally liable for the losses or the liabilities that arise later due to such contract.
2. Sub section 2 of Section 8 read with section 5 of the Hindu Minority and Guardianship act, 1956 supersedes the power vested in a natural minor to dispose of the immovable property of a Hindu minor. It is laid down explicitly that a natural guardian without the previous permission of the court-

• Can not Mortgage, or transfer by sale, gift, exchange or otherwise any part of the immovable property of the minor, or
• Can not Lease any part of such property for a term more than that of five years or for a term more than that of one year after the date from the minor’s majority. 

It has been expressly mentioned in the Section that no court shall grant permission in aforementioned conditions unless it is proven that there is a case of necessity or an evident advantage of the minor. Section 31 of the Guardians and Wards Act, 1890, shall apply to and in respect of an application for obtaining the permission of the court. Only a civil court or a district court or a court empowered under section 4A of the Guardians and Wards Act, 1890 within whose jurisdiction the property is situated or a part of the property is situated shall have the power to adjudicate upon the application. Where the property is being acquired by the guardian for the benefit of the minor, no permission of the court is necessary[4].

3. As per Sec 8(3) of the Hindu Minority and Guardianship Act, 1956, any disposal of the immovable property by a natural guardian contravening the conditions is voidable at the instance of the minor or any other person claiming under him. Where the property is sold by the guardian for the benefit of the minor even then can a minor challenge the transaction only after attaining the age of majority if it was done without the prior permission of the court[5].
4. The limitations are not only enforced on the natural guardians but also on the de facto guardians as per section 11 of the Hindu Minority and Guardianship Act, 1956. Strictly put, though a de facto guardian is nowhere defined in the law yet it is a person who hasn’t been appointed by the court or through a testament or naturally but is a person who takes care of the guardian out of love and affection.
5. Section 12 of the Hindu Minority and Guardianship Act, 1956 has prohibited an appointment of a guardian for the minor who has undivided interest in the Hindu property which is being taken care of by an adult member of the family. Only the high court if it deems fit based on the facts of the case has the power to appoint a guardian for the same.
6. Sec 13 of the Act acts as a general principle of over every other provision mentioned in the act and states that all the decisions and all the appointments that are to be taken are to be done with the sole intention that is securing the welfare of the child. 

Conclusion

After reading the laws formulated and the various precedents set by the judiciary, it can be clearly deduced that ensuring the welfare of the minor and that a safe and nourishing environment is made accessible for the minors growth can be clearly derived as the biggest liability or the responsibility of the guardians and paramount guiding principle for the judiciary. 

References

[1] Gita Hariharan vs Reserve Bank of India, AIR 1999 SC 1149

[2] Bakshi Ram vs Shila Devi, AIR 1960 Punj 304

[3] Narayan Laxman Gilankar vs Uday Kumar Kashinath Kaushik, AIR 1994 Bom 152.

[4] Than Singh vs Barelal, AIR 1974 MP24

[5] Narayan Laxman Gilankar vs Uday Kumar Kashinath Kaushik, AIR 1994 Bom 152.

• Bare Act, Universal’s Marriage and Divorce Laws.
• Mulla, Hindu Law, 22nd Edition.
• Modern Hindu Law, Paras Diwan and Peeyushi Diwan, 23rd Edition.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

The post Liabilities of a Guardian under Hindu Law appeared first on iPleaders.

This article is written by Arijit Mishra, from KIIT School of Law, Odisha. This article talks about the Void and Voidable Marriage under Hindu Marriage Act, 1955.

Introduction

The concept of marriage is to form a relationship between husband and wife. Marriage is a religious tie which cannot be broken. According to Section 5 of Hindu Marriage Act, 1955 it was accepted that a Hindu Marriage was a religious ceremony and also a Sanskara (performed as a purification rite). It was also established that every and any Hindu could marry. The exceptions to this are the ones prohibition which is on the basis of caste, gotra, religion and blood relationship. Such prohibition is based on some rules which are endogamy (where a man cannot marry a woman, who is of his relation) and exogamy (a man cannot marry a woman who belongs to another tribe). Endogamy and Exogamy are illegal in the view of Hindu Marriage Act, 1955.

According to ancient writers, a man was incomplete without a wife. The concept of marriage was to enable a man and a woman to perform religious duties. 

Since the present Hindu Law is not applicable to the tribals of different parts of India, those tribals are governed under their traditional laws and usage.

Types of Marriage

There are three types of marriage-

• Valid Marriage
• Void Marriage
• Voidable Marriage

Valid Marriage

Section 5 of the Hindu Marriage Act,1955 states the conditions for a valid marriage. A marriage can be said valid, if it fulfils following conditions:

• None of these parties have spouses living at the time of the marriage.
• During the time of the marriage, neither party should be-

1. Incapable of giving valid consent due to the unsoundness of mind.
2. Suffering from mental disorder to an extent as to be unfit for marriage and procreation of children.
3. Subjected to repeated attacks of insanity.

• Age- The bridegroom must be 21 years or above and the bride must be 18 years or above.
• The parties are not in a degree of prohibited relationship.
• Parties are not sapindas (blood relation) to each other.

Nullity of Marriage

If there are any impediments (obstructions), then the parties cannot marry each other. If someone marries and there are any obstructions in the marriage process then it is not a valid marriage. Impediments are divided into two types which are: absolute impediments and relative impediments.

In absolute impediments, a fact that disqualifies a person from lawful marriage exists and the marriage is void i.e an invalid marriage from the beginning. 

In relative impediments, an impediment that forbids marriage with a certain person exists and the marriage is voidable i.e one party can avoid the marriage. These impediments gave rise to the classification of marriage which are:

• Void Marriages
• Voidable Marriages 

Provision of Void and Voidable Marriages under Hindu Marriage Act, 1955

Void Marriages (Section 11)

A marriage is considered void under the Hindu Marriage Act if it doesn’t fulfils the following conditions of Section 5 of the Hindu Marriage Act:

• Bigamy

If any of the parties have another spouse living at the time of marriage. It shall be considered as null and void.

Illustration: there are three parties ‘A’,’B’ and ‘C’ where ‘A’ has a living spouse ‘B’, but he again marries to ‘C’ then this will be called as bigamy and it will be void.

• Prohibited Degree

If the parties are within a prohibited relationship unless the customs allows it.

Illustration: there are two parties ‘A’ and ‘B’ where, ‘A’ is the husband and ‘B’ is his wife. They both went on a relationship which is prohibited by law. This marriage can also be called void marriage.

• Sapindas

A marriage between the parties who are sapindas or in other words a marriage between the parties who are of his or her relations or of the same family.

Illustration: there are two parties ‘A’ and ‘B’ where ‘A’ is the husband and ‘B’ is the wife, who has blood relation or close relation to A which can also be termed as Sapinda. So, this process will be treated as void.

Consequences of a Void Marriage

The consequences of void marriage are:

• The parties don’t have the position of husband and wife in a void marriage.
• Childrens are called legitimate in a void marriage (Section 16 of Hindu Marriage Act, 1955).
• Mutual rights and obligations are not present in a void marriage.

Voidable Marriages (Section 12)

A marriage is voidable on either side of the party is known as voidable marriage. It will be valid unless the petition for invalidating the marriage is made. This marriage is to be declared void by a competent court under the Hindu Marriage Act, 1955. The parties of such marriage have to decide whether they want to go with such marriage or make it invalid.

The grounds where marriage can be termed as voidable:

• The party to the marriage is not capable of giving consent due to the unsoundness of mind. Illustration: There are two parties ‘A’ and ‘B’, where ‘A’ is the husband and ‘B’ is his wife. ‘B’ gave the consent of the marriage when she was suffering from an unsound mind. After some years, ‘B’ gets cured and raised that her consent was invalid and this marriage is voidable because during the time of the consent of ‘B’, she was in an unsound mind. So, this a ground of voidable marriage.

• The party is suffering from mental disorder which makes her unfit for reproduction of children. Illustration: There are two parties ‘A’ and ‘B’, where ‘A’ is the husband and ‘B’ is his wife. If ‘B’ is suffering from mental disorder due to which she is unfit for reproduction of children. Then this can be a ground for voidable marriage.  

• If the party has been suffering from repeated attacks of insanity. Illustration: There are two parties ‘A’ and ‘B’, where ‘A’ is the husband and ‘B’ is his wife. Anyone from ‘A’ or ‘B’ is suffering from repeated attacks of insanity, then this can also be a ground for voidable marriage.   

• The consent of marriage by either of the parties is done by force or by fraud. Illustration: There are two parties ‘A’ and ‘B’ where A is the husband and B is his wife. If either party gave consent to the marriage by force or fraud, then it will be a voidable marriage.

• If either of the parties are under-aged, bridegroom under 21 years of age and bride under 18 years of age. Illustration: There are two parties ‘A’ and ‘B’, where ‘A’ is the husband and ‘B’ is his wife. If ‘B’ is under the age of 18 years then this marriage will be considered as voidable or if A is under the age of 21 years then it can also be considered as voidable marriage.  

• If the respondent is pregnant with a child of someone other than the bridegroom while marrying. Illustration: There are two parties ‘A’ and ‘B’ where ‘A’ is the husband and ‘B’ is his wife. During the time of the marriage if ‘B’ is pregnant through another person. Then the marriage would be voidable. 

Necessary conditions to be fulfilled by a petition under Section 12 for nullity of a Voidable Marriage

1. On the plea of fraud or application of force on marriage, a petition can be filed before the court within one year of discovery of such fraud or application of force.
2. The allegation based upon which the petition is filed was beyond the knowledge of the petitioner at the time of solemnization of marriage.
3. The petition on such an allegation must be presented in the court within one year of knowledge of such facts.
4. No sexual relationship is established after knowing about alleged facts.

Difference between Void and Voidable Marriage

Legitimacy of Children under Void and Voidable Marriages

• Legitimacy of children under void and voidable marriages are specified under Section 16 of Hindu Marriage Act, 1955.
• In a void marriage, any children born out shall be treated as legitimate.
• In a voidable marriage, any child born of a marital relationship subsequently declared as nullity by court shall also be termed as legitimate.
• Even if the marriage under Section 11(void marriage) or Section 12 which is declared as null and void, notwithstanding such circumstances the child born out of such marriage is held to be legitimate. 
• If prior to the marriage, the bride was pregnant and gave birth to the child after the marriage, such a child cannot be treated as legitimate because that child was not born out of the marital relationship of the present marriage and therefore, the child born after the marriage having been conceived prior to the marriage is to be held illegitimate.  Illustration: If there are two parties ‘A’ and ‘B’ where, ‘A’ is the husband and ‘B’ is his wife. During the time of the marriage ‘B’ is pregnant through another. After the marriage of ‘A’ and ‘B’, the child born does not come from the marital relationship of ‘A’ and ‘B’. That child will be termed as illegitimate. 

Conclusion

Prior to the Hindu Marriage Act, 1955 the parties to the marriage had no remedy to get out of the marriage. Section 11 and Section 12 of Hindu Marriage Act, 1955 is a remedy for the parties, who are in a void and voidable marriage. After the enactment of the Amendment Act, 1976 the child born out of void and voidable marriage shall be termed as legitimate. There are certain grounds for valid marriage under Section 5 of the Hindu Marriage Act,1955, if someone violates it then it amounts to void marriage or voidable marriage.

References 

• https://www.lawnn.com/void-and-voidable-marriages/
• https://www.shoneekapoor.com/void-marriage/
• https://www.slideshare.net/mdharoonrasheed/hindu-law-void-marriages-52220032
• https://www.legalbites.in/law-notes-hindu-law-distinction-between-void-and-voidable-marriage/
• https://lawnotesforstudents.blogspot.com/

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

The post Void and Voidable Marriages under Hindu Marriage Act, 1955 appeared first on iPleaders.

This article is written by Muskaan Garg from Symbiosis Law School, Pune. It deals with the history and evolution of the concept of coparcenary under Hindu law. It also takes into account the situation and the change caused as a result of amendments brought about in the law concerning the concept.

Introduction

Coparcenary is a term used in matters related to Hindu Succession Law. It refers to a person who has the capacity to assume a legal right in his ancestral property by birth. It means ‘unity of title, possession and interest’. It is purely a creation of law; it cannot be created by the act of parties, except by adoption. It is directly derived from the concept and practice of Hindu undivided family.

Coparcenary is dealt within the Hindu Succession Act 1956 but has undergone major amendments which will be discussed further in detail.

Hindu undivided family

Hindu undivided family or a Hindu joint family is an extended family arrangement where every member is a lineal descendant of a common ancestor. This family includes a common ancestor who is generally the eldest and three generations of his descendants. This practice can also be seen in Jainism, Sikhism and Buddhism.

This family arrangement is governed by the Hindu succession act 1956. It is a codified act and is concerned with the transfer, devolution and ownership of inherited property amongst the Hindu joint family. The act, although patriarchal, has seen a few major changes within the laws withheld. At the time of incorporation of the act, it was a compromise between tradition and modernity due to which equality could not be attained. It has now sought to redress some anomalies created by traditional Hindu Law.

Hindu schools of law

Prior to the codification of Hindu laws, there were two schools of thought to regulate and administer Hindu laws.

The Mitakshara school

In this school of thought, the law of inheritance was followed according to the principle of propinquity which means in order of nearness of blood relation. The Hindu succession act of 1956 was also based on the same principle. The allocation of the parental property was accorded on the rule of possession by birth which meant that the sons of the family had exclusive right by birth in the property of the joint family while the daughters of the family-owned no such rights. This rule of allocation was known as the doctrine of survivorship. It basically meant that the property should be allocated to the inheritor who could continue the survival of the family in future. There is a unity of ownership; no person has a definite share as fluctuations keep happening due to births and deaths in the family.

The Dayabhaga school

In this school of thought, the law of inheritance was based on the principle of religious reward or spiritual benefit. The right of inheriting the property would lie with the person conferring more spiritual benefit based on the doctrine of oblations. In this school, even females could inherit the property and the sons of the family did not exclusively own birthright to the property. The sons do not acquire any interest by birth in ancestral property but their right arises after the death of the Karta which stands for the ultimate head of the family. The sons acquire property as heirs and not as survivors.

History of the law of inheritance

The concept of coparcenary originated from ancient Hindu jurisprudence and became an essential feature of Hindu law. Within the Hindu laws, all the laws and provisions regarding the property and its rights have always been male orientated. They were exclusively framed for the benefit of the men of the family while women were always considered submissive.

Before the advent of the Hindu succession act 1956, people were governed by customary laws which varied from region to region and also differentiated on caste basis. These laws were known for their gender discrimination and diversity in law. The proposed law couldn’t be spread throughout the country due to lack of means hence it saw variations in its practice in various regions. This led to different schools of thought and different practices which made the law further complex and off track. The laws commonly faced gender inequality in all practising regions.

Other laws prior to the Hindu Succession Act, 1956

The Hindu Law of Inheritance Act, 1929 was the first legislation to bring a woman into the scene of inheritance and its laws. This act conferred rights of inheritance upon three female heirs which are his son’s daughter, granddaughter and sister.

The Hindu Women’s Right to Property Act, 1937 was landmark legislation conferring ownership rights on women. This law brought about major changes in the then followed customary laws and schools of thought. It also affected coparcenary laws, partition laws and laws of property, inheritance and adoption. It also took into account the rights of widows and divorcees. Prior to this law, there were no codified laws to deal with the problem and disputes were resolved using customary practices. This act was passed after much voicing of discontent over the unsatisfactory condition of women’ rights. However, it was by no means enough to achieve the lofty target of gender equality.

Hindu Succession Act, 1956

The Hindu Succession Act, 1956 was focused upon providing equality as stated by Article 14 of the Constitution of India. The idea of the limited estate as propagated by the Hindu Women’s Right to Property Act was abolished in 1956 by the introduction of this act. This act tried to uplift the position and status of women in society by providing them with the inheritance of share in their father’s property.

Daughters were declared as legal heirs of their fathers and received the rights of inheritance of a share of the separate property owned by the father through the notional partition. The ancestral property owned by the family would still be legally inherited by the son of the family and the daughter would have no rights over it thereby following the rules of survivorship. This led to the continuity of inequality but at a slower or less diminishing pace.

Amendments within the Hindu law

It was observed that the legislation made on the topic were not able to serve the purpose of equality and hence required to be modified according to the changing needs of the society. There were further changes made to incorporate daughters within the ambit of property rights but nothing major could be achieved. In 2000, the law commission report suggested reforms with regard to women’s right to property. It pointed out all the clauses which supported bias towards the males and suggested significant changes to be made.

Click Here

The Hindu Succession Amendment Act, 2005

The Hindu Succession Amendment Act 2005 was enacted with the aim of expanding the rights of women and daughters of the family and brings them at par with the male members. It followed the suggestions provided by the law commission report. By the way of this amendment the daughters of the family, whether married or unmarried, gained coparcenary rights with the other entire rights and liabilities equivalent to a son. This now meant that the daughter would also be liable for the debts and losses in addition to property shares and other rights.

Section 6 of this amendment challenged the fundamental principles of Hindu coparcenary law. Through this amendment daughters, both married and unmarried, were given equal rights over the coparcenary as the sons of the family. It also provided that the females of the family could now also act as the Karta of the family which they couldn’t previous to this law. Any reference made to a coparcener would also include daughters equally.

Any property inherently entitled by her would-be under coparcenary ownership and would not be disposed of by testamentary disposition. The amendment yet does not provide a completely fair chance as there are still provisions which have not been bought at par with equality like after her death all her property is to be owned by husband’s side of the family.

Difference between the rule of succession and rule of survivorship

The amendment of the Hindu succession act in 2005 brought forth the rule of succession overrules of survivorship. Prior to this amendment the daughters and other female relatives of the family were only considered as heirs and were entitled to their share of notional partition only after the death of the Karta while all the male members were eligible to acquire their shares even before the Karta’s death due to bearing the rights of coparceners, this was the rule of survivorship.

The rule basically meant that only sons of the family could inherit property by coparcener rights because they were considered responsible for the further survival of the family name. While the rule of succession implies that the property would be inherited by the order of birth irrespective of gender. This rule was introduced by the 2005 amendment and thereby included the daughters of the family within the coparcener rights.

Present status

After the enactment of the 2005 amendment in the Hindu succession act 1986, there were significant benefits for women in the societal structure. In today’s time, the benefits provided have been seen reaping and flourishing for the betterment of society.

Now all daughters of the family are coparcenary owners of the family property and own equality of rights and liabilities unlike in the past times when they were dependent on their male counterparts to consider them in their will to be able to yet obtain only a part of their rights. The option to respectfully avail their rights adds to their solid foundation and provides them with emergency economical backing which helps boost their confidence and potentially more.

Women of the family can now own the position of the Karta or the head of the family thereby breaking all stereotypes. This leads to enhancement of their strength and social worth which is much required in the society.

Shalini Sumant Raut & Ors vs Milind Sumant Raut & Ors 

In this case, Rajaram died leaving behind 8 heirs, 5 sons and 3 daughters. His property was delved upon by intestate succession under section 8 of the Hindu Succession Act and not by survivorship. It was held that the applicants would have to consider the three female heirs and their share in the property by means of a notional partition. They will also have to consider the notional partitions which would take place in the future by the death of these coparceners leaving behind female heirs.

Prakash & Ors. v. Phulavati & Ors.

In this case, Phulavati claimed partition and separation of her share in her father’s property. While the pendency of this suit, the amendment was brought into force and the issue was whether it was retrospective in nature. The Supreme court held that daughters would have a coparcenary right on and from the commencement of the amendment thereby providing clarity that the amendment is prospective in its application which means that the right to coparcenary property would be available only to ‘living daughters’ of ‘living coparceners’ on and from the commencement of the amendment.

Conclusion

Hence, the concept of coparcenary has come a long way and has undergone many changes. The 2005 amendment is a big step in dismantling patriarchal forces because it grants women economic freedom and challenges the notion that they become a part of their husband’s family after marriage. It is necessary to understand whether equality exists only as a phenomenon or it is actually present for the awareness and approval of the majority of the people. It should not be solely realized by placing a section of women in traditions of inequality.

Thus, there is a need to create social awareness and to educate people to change their attitude towards the concept of gender equality. The need of the hour is also to focus attention on changing the social attitudes in favour of equality for all by enacting a uniform law.

References

• https://www.lawctopus.com/academike/interest-of-hindu-women-in-coparcenary-property-under-hindu-succession-act-2005/
• https://www.lawyersclubindia.com/articles/The-Concept-of-Coparcenary-Its-past-present-and-Future-in-the-Hindu-concept-of-Joint-Family-8193.asp
• https://www.lawctopus.com/academike/case-analysis-of-shalini-raut-ors-v-milind-raut-and-dr-gautam-raut-ors/ 

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

The post Coparcenary under Hindu Law: An Overview of the recent Amendments appeared first on iPleaders.

This article is penned by Dipsa Prasanth from Army Institute of Law, Mohali. Through this article the author has critically anatomized the Bonded Labour System (Abolition) Act, 1976.

Introduction

From farms to industries, from fisheries to building houses, India has ruminated on labour-intensive methods as the most capacious recourse to meet its service and production needs. But with the invasion of technology, this trend has touched new focal points, with this the workers are more susceptible to oppression and ill-treatment, making them work for some extra hours to paying them low wages became common. Hence, it became a desideratum to solve this issue with legal remedies, which thereafter, paid way to ‘Labour Laws’ in India.

Furnishing workers with high-interest loans and making them work in undesired conditions for abated wages to pay off the debt, popularly known as bonded labour and recently it has become a customary practice, this fostered huge distress amongst the working class as they were victimized and made the sitting ducks of the employers vex. The Bonded Labour System (Abolition) Act, 1976  came as a rescuing chevalier for the labourers who were coerced to work on bonds. This Act applies to the whole of India and has an overriding effect as the provisions of this Act will be consistent notwithstanding any inconsistencies.Section 1, Section 2 and Section 3 of this Act provides us with the above stated introduction.

Abolition of Bonded Labour System

It was uninhibitedly made intelligible that after the commencement of this Act there shall be a total veto on the practice of bonded labour. Every individual who was browbeaten to work on bonds will be unchained and set free. This Act also guarantees to fortify the virtue and rights of workers to not be forced again as bonded labourers. Section 4 and Section 5 of this act talks about the same.

Further, this Act makes it perspicuous and comprehensive that any custom, tradition, agreement, etc. based on which a person or dependant was made to work as bonded labourers, shall be held nullified and lapsed.

Extinguishment of Liability to Repay Bonded Debt

Liability to repay the bonded debt to stand extinguished (Section 6)

After the commencement of this Act, the liability of repayment of the debt would remain suspended and extinguished, hereby, the creditor can no longer force the worker to pay the debt. And there shall be no suit in any Court regarding the recovery of the same. 

Every attachment made before the commencement of this Act for recovery of the bonded debt would stand vacated and in the course of the same if any movable property is vested with the Court or any authority shall be recovered and given back to the workers. Similarly, the property of the bonded labour or dependants coercively captured by the creditor shall be given back and any bonded labour imprisoned shall be released.

Property to be liberated from lien, mortgage, etc. (Section 7)

Any property of the bonded labour which was confiscated by landlords and was under any mortgage, lien or other encumbrances shall be reinstated to the labourers and the debt related to the same shall be discharged. If there is any failure in returning the property then the labour has the right to procure profits as may be prescribed by the Court of lowest pecuniary jurisdiction.

This clause indeed appends more comfort to the labour laws of our country and indemnify  the property of bonded labourers from mortgage, lien etc.

Bonded labourers not to be shown the door (Section 8)

A person who was unchained and set free under this Act from any bonds, shall not be shown the door from residential complexes or premises that he was residing before the commission of this Act, by the creditor. If there is any such act of expulsion noticed, then the executive magistrate in charge of the subdivision under the jurisdiction of which the residential complex or premise falls shall pass an appropriate decree to restore the dwelling to the labourers. This facilitated the bonded labourers to regain their homes and stay rooted.

Creditor not to accept payment against the extinguished debt (Section 9)

The creditor by virtue of law is precluded from accepting payment against any bonded debt which has been withdrawn through this act. If such an act was committed then the creditor shall be punished with imprisonment of three years and fine.

In addition to this, the creditor shall have to submit the payment collected and this would subsequently be paid back to the bonded labour.

Implementing Authorities

Authorities designated for implementation (Section 10)

There is a hierarchy followed in implementing this Act from the State government to the officer in charge of implementation. Placed at the top of the hierarchy is the State government who confers the District Magistrate with the power to safeguard the provision of this Act. Further, the District Magistrate delegates the powers to an officer who will have the implementing powers at the local level. 

Thereby, this acts as a three-tier system of implementation which enhances the efficiency of this Act with better wings of administration.

The onus to ensure credit by District Magistrate and other (Section 11)

The District Magistrate appointed by the State government and the officer who is delegated with powers by the magistrate has the right to protect and cushion the rights of bonded labourers. This is done so that these labourers don’ t get back to a situation where they are forced to work on bonds by the creditors.

This includes promoting welfare schemes and measures in favour of the labour class and developing their skills to face this accelerating world.

The onus of District Magistrate and officers authorised (Section 12)

It becomes the delegated duty of the District Magistrate and officers authorised by the District Magistrate to check on whether after the commencement of this Act was there any act of bonded labour committed anywhere within their local jurisdiction.

If there is a commission of any such forced or bonded labour, then the respective officers shall take appropriate action to veto such an Act and also protect the rights and dignity of the bonded labourers. Also, they shall promote welfare measures which would become torchbearers of the right, dignity, and voice of the labourers.

Vigilance Committee

Functions of the Vigilance Committee

The State government is responsible for appointing a vigilance committee at every district and sub-division as it may think fit through notifying in the Official Gazette. This is done to have a proper and well-maintained surveillance system. These provisions are mentioned under Section 13 and Section 14.

The vigilance committee at the district level:

• Consists of a chairman who shall be a district magistrate or a person nominated  by him. 
• There should be three members duly belonging to the scheduled caste or scheduled tribe to mark representation from these spheres. 
• Two social workers of the district, not more than three members representing an official or non-official agency relating to rural development and a person marking representation of a financial institution of the district are the other members constituting the committee.

At the sub-division level:

1. The committee constitutes a chairman who is a sub-divisional magistrate or a person nominated by him. 
2. Three members duly belonging to the scheduled caste or scheduled tribe, two social workers, not more than three members representing an official or non-official agency relating to rural development nominated by district magistrate, a person marking representation of a financial institution of the sub-division, an officer mentioned under section 10 are the other members constituting the committee.

The district and sub-divisional magistrate shall provide the vigilance committee with procedural and other assistance. The entire procedure of the vigilance committee cannot be held nullified merely because there is any default in their constitution.

The main functions of the vigilance committee include advising the District Magistrate and other officials concerning the various provisions of this Act and their implementation, further they provide for the rehabilitation of bonded labour both socially and economically. They monitor functions of various banks in their respective sectors, surveil and conduct surveys of cognizable offences and defend suits instituted against any bonded labourers.

Burden of Proof (Section 15)

When there arises a question of a debt claimed by bonded labour then the burden of proof will lie on the creditor to prove that the debt is not a bonded debt.

Offences and Procedure for Trial

Punishment for enforcement of bonded labour (Section 16)

Deterrence and reformation are two pillars of the justice system of India which prevents an individual from committing further crimes, these pillars were used to strengthen this Act too. Here,  If any person after the commencement of this Act coerces any other person to render bonded labour, shall be punished with imprisonment for three years and also with a fine of rupees two thousand.

Punishment for the advancement of bonded debt (Section 17)

If any person advances any bonded debt after the commencement of this Act shall be punished with imprisonment up to three years and a fine of rupees two thousand. This depicts the advancement of bonded debt to be an offence which is punishable under this Act, thereby it prevents any creditor from the advancement of bonded debt.

Extracting bonded labour, punishments (Section 18)

If any person imposes by virtue of any culture, tradition imposes bonded or any other forced labour on any person shall be punished according to this Act. The punishment would extend to imprisonment for one year and a fine of one thousand rupees. The bonded labourer will be paid from this extracted fine i.e rupee five per day.

Punishment for omission or failure to restore possession of the property to bonded labourers (Section 19)

After the commencement of this Act all the property which was kept on bonds were to be given back to its original owner, If the person who is required to restore a property, fails to do so shall be punished with an imprisonment extending to a year or with a fine of rupees one thousand or with both. This restoration shall be done within thirty days. And the actual owner is given a sum from this recovered amount charging five rupees per day.

Abetment of an offence, punishable (Section 20)

Abetment of an offence in layman’s language means instigating any offence. Here, if any person instigates an offence shall be punished with the effect of an abetted crime. This is done irrespective of whether the instigated crime is committed or not.

Offences to be tried by Executive Magistrates (Section 21)

The Executive Magistrate is conferred with the powers of a Judicial Magistrate of the first or second class as per the case by the State government. These Executive Magistrates with the conferred powers of a Judicial Magistrate will conduct the trial accordingly.

Cognizance of offences (Section 22)

Every offence which is included under this Act can be issued with a bail that is offences covered here are bailable. And also an investigating officer can arrest the offender without a warrant. The offences covered here are thereby, categorised as cognizable offences.

Offences by companies (Section 23)

If the offence is committed by a company then all the people associated or were in charge of the company at the time of the commission of the offence would be held liable and will be punished accordingly. 

If the offence was committed by the neglect of any manager, officer or any other official then he or she will be liable and will be punished for the same.

Miscellaneous

Protection of action taken in good faith (Section 24)

Law always deems to protect individuals with good faith. Here, If the Central government, State government or the vigilance committee does any action for the betterment of this act then there shall be no suit or legal proceedings against them, as the action was done in good faith. As there was no malicious intention from the part of the above-mentioned authorities.

Jurisdiction of Civil Courts barred (Section 25)

A Civil Court usually looks into matters relating to civil issues that were not of criminal nature. Here, the Civil Courts do not have jurisdiction pertaining to cases under this act and thereby no Civil Court can issue an injunction relating to matters covered under this act. Thus the Civil Courts are barred to take in cases covered through this Act.

Power to make rules (Section 26)

The Central government has the power to make rules or laws under this act through a notification in the Official Gazette. Any such law made by the Central government will be discussed in the Houses of the Parliament and would be scrutinized. If there are any changes then such modification will be made as per the recommendation of both the houses and the law will be in effect only in the modified form.

Repeal and saving (Section 27)

The Bonded Labour (Abolition) Ordinance is repealed and any action done under this ordinance would be deemed to be done under the respective provision of this Act.

Conclusion

The Bonded Labour System (Abolition) Act of 1976 was a great milestone in abolishing the age-old system of bonded labour which was fast catching the society like a forest fire. The provisions of this Act uphold the dignity and solemnity of bonded labourers and also restore their property. This Act had provided them with new wings to fly high with the wind of rights and a platform to address their grievances. Now with this Act, the bonded labourers are free and unchained and are all set to face this accelerating world with its fullest might.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

The post The Boomerang of Enliven: the Bonded Labour System (Abolition) Act, 1976 appeared first on iPleaders.

This article has been written by Kavita Chandra, a student of Vivekananda Institute Of Professional Studies, affiliated to Guru Gobind Singh Indraprastha University, Delhi. She has discussed the doctrine of Caveat emptor. She seeks to analyze the gradual death of the rule of caveat emptor and its replacement with the rule of caveat venditor (seller beware).

Introduction

The rule of caveat emptor which means “let the buyer beware” has been overridden by the rule  of caveat venditor. Such change was required because of changing conditions of modern trade and commerce. The phrase caveat emptor is not used by the judges very often nowadays. This doctrine is based on the principle that when a buyer is satisfied as to the product’s suitability, then he is left with no subsequent right to reject such product. The caveat emptor rule originated many years ago in common law and over the times has undergone major changes. The exceptions of the doctrine started expanding with time as it was being given a concrete shape. 

Statement Of Caveat emptor

The principle of Caveat emptor is explained in Section 16 of the Sale of Goods Act 1930 which states that there is no implied condition or warranty as to quality or fitness for any particular purpose of goods supplied.”

The History of Caveat emptor 

In the 19th century, the attitude of common law towards the buyer can be understood by the maxim Caveat emptor which means let the buyer beware. This maxim explains that a purchaser must carefully examine and judge what is best for him. The purchaser should not take the risk of the condition and quality of the object which he needs to buy, he must protect himself by a warranty. The philosophy behind the rule of Caveat emptor basically was that buyer shall apply his own skill and judgment before buying. It is based on the fundamental principle that when a buyer is satisfied with the suitability of the product for his use, no subsequent right will be left with him to reject the same. When the rule of caveat emptor originated, it was quite rigid and there was no scope for any subsequent change in the rule. In English Sale of Goods Act, 1893, it is highly noticeable and evident that the seller’s duties as to requirements of disclosure when a product is sold was minimal. There was no duty upon the seller to provide information and proper examination of the goods by the buyer was considered over and above any other duty. The Concepts which could be used to shift the burden as to quality and fitness on the seller such as ‘fitness of goods’ and ‘merchantability’, were not encouraged. Another strong statement which was present in Section 11(1)(c) in the said Act, which mandated that the buyer could not reject the goods on any ground in cases where there was sale of ‘specific’ goods. Thus, it is highly noticeable that the law was bent towards the seller and in those times, one could not even find a corresponding rule which would put the burden on the seller.

The Fallacy & The Need For Change

At the time of its origin the rule of Caveat emptor prevailed in its absolute form but it was later categorised as detrimental to the development of commerce and trade. Rule of Caveat emptor in its absolute form was highly detrimental to the buyer because of the absence of the element of reasonable examination. Therefore a buyer would have no recourse against the seller who is aware of the latent defect but did not aware the buyer about the same and the buyer cannot detect that defect (as it can not be detected by reasonable examination). 

Another strong reason for the fallacy of the rule of Caveat emptor, is the need for providing protection to the buyer who purchases the goods in good faith, that is, where the buyer purchases goods from the seller by relying on his skill and judgment. Thus the rule was subsequently diluted so as to give proper recognition to the relationship between the seller and the buyer and in order to give rise to a scenario wherein commercial transactions are encouraged.

How it changed to Caveat venditor? 

For the aforementioned reasons, the rule of Caveat emptor for the first time suffered backlash in the case of Priest v. Last, wherein reliance was placed on the buyer relying on seller’s skill and judgment and the buyer was allowed to reject the goods for the first time. In this case the buyer purchased a hot water bottle relying on the seller’s skill and judgment. It was observed that if a buyer purchases an object relying on the seller’s skill and judgment then the buyer will be allowed to reject the same on the occurrence of any defect. This was the first ever decision in common law in which importance was given to the buyer’s reliance on the seller’s judgment and skill. 

Gradually this rule gained prominence and the seller’s obligations have been given a proper shape along various case laws and statutes limiting the rule of Caveat emptor to ‘reasonable examination’. In cases like milk containing typhoid germs, contaminated beer, the Courts have been generous enough to establish that where the defects would not have been traced by reasonable examination in ordinary circumstances, the buyer will be exempted from this duty.

Further, in Harlingdon & Leinster Enterprises Ltd v. Christopher Hull Fine Art Ltd, the buyer claimed that he had the right to reject the painting as it was not of the original painter. So, it was observed that where the buyer has more expertise in a given field and is more reasonable than the seller then it would be completely wrong to suggest that the buyer would have the right to reject the purchased object. Therefore the seller is bound by the duty to make known to the buyer all the defects in the goods and the information relating to the usage of goods. This obligation of the seller is irrespective of his own judgment and skill because what matters is what he is expected to have and not what he has.

Judicial Trends

In Ward v. Hobbes (1878) 4 AC 13, the House of Lords held that if a seller uses artifice or disguise to conceal the defects in the product which is to be sold, it would amount to fraud on the buyer; still no duty to disclose the defects in the product is imposed on the seller by the doctrine of caveat emptor. An obligation to use care and skill while purchasing goods is imposed on the buyer by the doctrine of Caveat emptor.

The Court of Appeal  Wallis v. Russel (1902) 2 IR 585, explained the scope of caveat emptor and laid down that the rule of Caveat emptor implies that “the buyer must take care”. It applies to the purchase of those things upon which buyer can exercise his own skill and judgment, e.g. a picture, book, etc (also known as specific goods); it also applies in the cases where by usage or by a term of contract it is implied that the buyer shall not rely on the skill and judgment of the seller. 

Exceptions To The Rule Of Caveat emptor (Section 16 of The Sale of Goods Act, 1930)

Fitness for buyers purpose [Section 16(1)]

Section 16(1) of the said Act provides that in situations where the seller is aware either expressly or by necessary implication of the purpose for which a buyer needs to purchase a specific product, further, the goods are of such description which the seller supply in his ordinary course of business and by relying upon the judgment and skill of the seller, the buyer purchases that product, then the goods should be in accordance with the purpose. In other words, this section explains the circumstances where the seller has an obligation to supply the goods to the buyer as per the purpose for which he intends to buy the goods. 

Requirements of Section 16(1) are as follows:-

• The buyer should explain the particular purpose for which he is making the purchase to the seller.
• The buyer should rely on the seller’s skill and judgment while making a purchase.
• The goods must be of a description which the seller in his ordinary course of business supply.

In Shital Kumar Saini v. Satvir Singh, a compressor was purchased by the petitioner with one year warranty. The defect in the product appeared within three months. The petitioner sought a replacement.  The seller replaced it but did not provide any further warranty. The State Commission stated that an implied warranty was guaranteed under section 16 of the Sale of Goods Act, 1930  and allowed it to be rejected. 

Sale under Trade Name [Proviso to S. 16(1)]

In some cases, a buyer purchases goods not by relying on the skill and judgment of the seller but by relying on the product’s trade name. In such cases, it would be unfair that the seller is burdened with the responsibility of quality. The proviso to Section 16 deals with such cases. It provides that:

“Provided that, there is no implied condition as to fitness for any particular purpose in the case of a contract for the sale of a specified product under its patent or other trade names. 

Merchantable quality [Section 16(2)]

The second most important exception to the rule of Caveat emptor is incorporated by Section 16(2) of the Act. The Section imposes a duty upon the dealer to deliver the goods of merchantable quality.

Section 16(2) states that there is an implied condition that when goods are purchased by description from a seller who deals in the goods of that description, the goods shall be of merchantable quality. 

Meaning of Merchantable Quality:  It implies that when the goods are purchased for resale, the goods must be capable enough of passing in the market under the name by which they are sold.

Merchantable quality depends on the following two factors:-

Marketability- Merchantability does not mean that the goods are saleable just because the goods look all right, but they shall be marketable at their full value. “Merchantability does not mean that the goods are saleable even if it has defects which makes it unfit for its proper use but is not noticeable on ordinary examination. 

Reasonable fitness for general purposes- “Merchantable quality” means, that if goods are purchased for self-use, they must be fit for the purpose for which they are generally used. Example: A person bought a hot-water bottle which is generally used for the application of heat. The bottle burst to scald the person’s wife. The seller was held to be liable.

Examination by buyer [Proviso to S. 16(2)]

The proviso to S. 16(2) provides that “if upon examination of the goods to be purchased, the defects ought to have been revealed, then no implied condition as regards to the defect will exist.” The requirement provided in the proviso would be considered as satisfied fully when the buyer was given full opportunity to examine the goods and the argument that the buyer did not use that opportunity will not make any difference, an existence of opportunity is sufficient in such cases.

Conditions implied by trade usage [Sec. 16(3)]

Section 16(3) gives statutory force to the conditions implied by the usage of a particular trade. It states:

 “An implied condition or warranty as to the quality or fitness for any particular purpose may be annexed by the usage of trade.”

In the case of Peter Darlington Partners Ltd v Gosho Co Ltd, a contract for the sale of canary seeds was subjected to the custom of trade and held that if there exist any impurities in the seeds the buyer will get a rebate on the price but he would not reject the goods. However, a custom which is unreasonable will not affect the parties’ contract.

Conclusion

Thus, it can be concluded from the aforementioned analysis that the rule of Caveat emptor is being taken over by the rule of Caveat venditor and is dying a slow death. The change is taking place in order to create a more consumer-oriented market wherein transactions of commercial nature will be encouraged. Such change will help to create a more consumer-friendly market and an appropriate balance can be maintained between the rights and obligations of the buyer and the seller. But it should be noted that if this approach is taken too far, it might end up in becoming extremely pro buyer and then some people might end up misusing the protection under the law. 

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

The post Doctrine of Caveat Emptor appeared first on iPleaders.

This article has been written by Deyasini Chakrabarti from KIIT School of law, Bhubaneswar, Odisha. This article mainly focuses on various aspects of divorce under the Hindu Marriage Act, 1955. This also discusses the historical background, sociological aspects of divorce and also few cases related to it.

Introduction

Marriage, this seven-letter word itself creates a bonding that not only unites the two people but two families as well. However, until 1955 divorce was completely unknown in the Hindu marriage. According to the traditional belief, a marriage is considered not only as a relationship or a bond that exists for the existing world but it is a bond which also continues beyond. Thus the essence of staying together was so imbibed in the Hindu society that a divorced person was stigmatized and prejudiced in the existing world. In Hindu communities particularly in the so-called lower social strata, the practice of divorce prevailed as a custom. However, with the changing needs of society, the Hindu Marriage Act was considered and ultimately the divorce aspect also found a place in the Hindu Marriage Act. 

Marriage is an institution through which two people commit to each other and work for the well-being of the same, thus families are raised through it and an inseparable attachment is also formed as a result. Human beings are unpredictable, thus when the concept of marriage is there, at the same time the concept of divorce also exists. 

Concept of Divorce 

The word ‘divorce’ had not been defined under any statutory provisions but it could be defined as a legal dissolution of judicial ties established at marriages. Thus a divorce is also a seven lettered word, which separates the united couple at their own wish with their own consent. Thus divorce can be considered a means to break marriage that happens not just between two individuals but also between two families. 

Theories of Divorce

The theories of divorce are as follows:

The fault theory 

The fault theory of divorce is also known as the offense theory or guilt theory. Therefore it highlights on the point that a marriage can be dissolved when any of the parties within the bond of matrimonial ties commits an offense against the innocent party of the marriage. Thus it is necessary to have a guilty partner and an innocent partner within the bond the matrimonial ties. The innocent party only holds the right to seek remedy for the divorce. However, the most striking feature is that if both parties are at fault there is no remedy available for them. 

Mutual consent theory

The reasoning behind this theory is that since two people marry each other through their free will, at the same time, they ought to likewise be permitted to move out willingly. In any case, it highly criticized that this methodology will advance immorality as it will prompt rushed separations and parties would break down their marriage regardless of whether there was a slight contradiction of personality.

Irretrievable breakdown of marriage theory

The irretrievable breakdown of marriage theory is defined as a failure in the matrimonial relationship owning to such adverse circumstances that no reasonable probability remains for the spouses to stay together. As a result of such adverse impossible conditions and situations, the husband and the wife cannot ever stay together. Thus we can say that in such cases there is a stronger reason to live apart compared to the emotions of love, affection, and loyalty that should commonly prevail between the husband and the wife. Therefore the rationale behind this theory is that if a marriage is beyond all possibilities of a repair then it should be brought to an end; when a marriage is not able to last then there is no point in sharing rights and obligations between the two parties. 

Why does divorce happen in society? (A sociological perspective)

The rate of divorce in Indian society has grown to a large extent. There are a number of reasons for divorce and the dynamic approach of the society at the same time could be witnessed regarding these stereotypical concepts of Indian society. The main reason for divorce are as follows:

• Independence of Indian women

Previously women followed the norms of the given society without questioning about it with their heads bowed down in front of the society for the sake of the so called ‘family respect and status in the society’. However, with the increasing modernization, industrialization, and urbanization women started getting educated and also became more aware of their social happening. Thus understanding the need to stand for themselves, women started earning their own living and therefore, became independent. They started raising their voices against the wrongs committed by their inlaws and husband and started to live, happily and independently. As a result, the women were not afraid to take a stand for themselves and to give divorce to their torturing husbands. Thus the rate of divorce kept on increasing for the same.

• Communication gap in marriages

Communication plays a very important role in marriages. Thus when there is no proper communication between the two partners, misunderstanding and fights are bound to take place. Thus lack of communication also sometimes becomes a reason for divorce. 

• Cheating and Affairs

A trust can never be built upon all over again once it has been broken. Thus when a cheating partner breaks the trust of the loyal partner, it can never be restored again and as a result divorce is bound to happen. Cheating and having an extramarital affair can destroy, demolish and doom a relationship that would be existing between both parties. In India, there are even penal provisions for cheating on the spouse. 

• Problems with In-laws

It becomes very difficult for a girl who leaves her home and comes to a new family and later finds out that her in-laws are not cooperating, torturing her and making her life impossible to live. Instances are there as a result, the Indian Penal Code also has a statutory provision relating to it such as Section 498A which states about the ‘husband or relative of the husband of a woman subjecting her to cruelty’. At the same time, there are also many instances of forcing the wife to bring money from her father’s home, and when she denies it or is unable to bring such huge financial amounts, the in-laws torture her to death, for this we also have penal provisions of Section 304B which provide for dowry deaths. 

It should also be mentioned that there are many instances of the wrong use of Section 498A, thus in two such real cases when there are actual torture and misuse of the law, divorce is bound to take place. 

• Procreative problems in marriage

Indian societies are designed in such a way, that society not only persuades and influences the couple to a great extent but it also decides that when a couple should give birth to a child. This creates a lot of stress and if such problems are not being sorted out between the partners it may also become a ground for divorce. 

Purpose of the law of Divorce

Previously as per the Indian culture and tradition, there was no concept of divorce which was considered to be existing however with the dynamic changes in the society the very purpose of divorce is to punish the guilty party and also to protect the innocent or the loyal one tied within the matrimonial bonds. The very institution of marriage is to provide a happy, coordinating partnership between two individuals, however, if this objective of marriage cannot be meted out there is no point to continue the same. Therefore for a happy free separate and independent living who were previously tied within the matrimonial bonds the concept and purpose of divorce arose. 

Relevant provisions related to Divorce under the Hindu Marriage Act,1955 

As the needs of the Indian society changed, the concept of divorce also got codified under the Hindu Marriage Act, 1955. Thus, there are a number of sections that deal with divorce such as:

• Section 10 

Firstly, the word judicial separation means a legal process through which a married couple gets formally separated even if they are legally married. Thus this concept is also being highlighted under Section 10 of the Hindu Marriage Act 1955. Either party to the marriage regardless of the fact whether the marriage had been solemnized before or after the commencement of this Act, may present a petition praying for an order for judicial separation, on any grounds specified under sub-section (1) of Section 13, and also on account of the wife additionally on any of the ground indicated in sub-section (2) of these grounds on which the request for separation had been presented. 

Similarly, Section 10(2) also states that when a decree of judicial separation had been passed it shall no longer be obligatory for the concerned petitioner to stay with the respondent. However, the court also has the liberty that after receiving the application from the petitioner of either party and being satisfied with the actual findings of the statements, they may even dismiss or revoke the decree if it considers just and reasonable to do so.

• Section 5

Section 5 states the necessary conditions for a Hindu marriage. Thus it could also be interpreted that if one of these conditions is contravened or not fulfilled then it could also be a ground of divorce. These conditions are as follows:

• None of the party should have another living spouse during the time of marriage. 
• During the time of marriage none of the party-

1. Is capable of giving his/her valid consent to marriage as a result of unsoundness of mind. 
2. Even if he or she is capable of giving valid legal consent, the party had been suffering from mental illness of such a nature and to such a limit that it is completely impossible for him/her to marry and to procreate a child. 
3. He/she had been subjected to continuous attacks of insanity. 
4. The bridegroom should complete the age of 21 and the bride should complete the age of 18 at the time of marriage. 
5. The parties should not be inside the degrees of precluded relationship except if the custom or usage administering every one of them licenses a marriage between the two;
6. The parties should not be ‘sapindas’ of one another, except if the custom or usage administering every one of them grants a marriage between the two.

• Section 13

Section 13 is the foundation section that clearly states the grounds of divorce. These grounds are adultery, cruelty, Desertion, conversion, insanity, leprosy, venereal disease, renunciation, and presumption of death. Thus on these grounds divorce is bound to take place between the two legally married couples. Section 13(A) also provides a divorce through mutual consent where both the parties don’t want to continue a married life, thus mutually they accept the fact and consents to have a divorce.

• Section 14

Section 14 states that no petition of divorce could be filed within the first year of marriage. Thus it could be interpreted that one year is the time gap given by the law itself in order to solve, sort, understand and communicate problems with each other. Thus no court shall be competent to entertain a petition for divorce unless the time gap of one year had elapsed. However, upon receiving an application in accordance with the rules made by the High Court, the Court may allow the petition to be presented in case of one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent. But if it appears to the court upon hearing the petition that there is a misrepresentation of facts or concealment of the nature of the case the court may as it deems fit may also dismiss the petition without any prejudice.

In discarding any application under this section for leave to present a request for divorce before the [expiration of one year] from the date of the marriage, the court will have to respect the interests of any offspring from the marriage and to the inquiry, whether there is a sensible likelihood of a compromise between the parties before the termination of the [said one year].

• Section 15

Section 15 highlights on the point as to when a divorced person can marry again. It states that when a marriage had been dissolved by the decree of divorce then there is no question of appeal against the decree. However, if there is a right to appeal, there may be situations that the limitation period for appeal had expired without the appeal being presented or if the appeal being considered or presented had been dismissed. Therefore, after completion of all these procedures, the divorcee is free to marry again at their own will.

Grounds for divorce under the Hindu Marriage Act

The grounds of divorce under the Hindu Marriage Act had been stated under Section 13 of the said act. Thus these grounds are lawfully valid grounds for divorce and if such circumstances arise, then, unfortunately, divorce is bound to take place.

• Adultery

Adultery had been defined under Section 13(1)(i). It states that after solemnization of marriage if a married person with the ties of marital bonds is having sexual intercourse with another person who is not his or her spouse, is said to have committed adultery. Adultery is a crime in India and also has its penal provision under Section 497 of the Indian Penal Code. Section 497 of the Indian Penal Code defines as whoever has sexual intercourse with an individual who is and whom he knows or has as reason to accept to be the wife of another man, without the assent or intrigue of husband, such sexual intercourse not adds up to the offense of rape, but is blameworthy of the offense of adultery, and will be punished with an imprisonment of either for a term of five years, or with fine, or with both. In such a case, the wife will not be culpable as an abettor. However, it also draws a link with Section 198(2) of the Code of Criminal Procedure which deals with the prosecution for offenses against marriage. Thus the Supreme court in the case of Joseph Shine v Union of India had held that Section 497 of the Indian Penal Code and Section 198(2) of the Code of Criminal Procedure together constitute a legislative packet to deal with the offense of adultery had been held unconstitutional and thus, it is also being struck down by the Supreme Court.

• Cruelty

Cruelty in simple terms means torturing or unreasonable brutal behaviour against one. Thus Section 13(1)(ii) states that even after solemnization of marriage, treating the petitioner with cruelty can also be considered as a ground for marriage. Cruelty is also a criminal offense and also has statutory provisions for the same. Section 498A of the Indian Penal Code states about the cruelty by the husband or the relative of the husband on the woman or wide. This section clearly defines  cruelty as :

• any wilful behavior which is of such a nature as is probably going to drive the lady to end her life or to cause grave injury to her life, limb or wellbeing (regardless of whether mental or physical) of the woman; or
• harassment of the woman where such harassment is with the end goal of pressuring her or any individual identified with her to fulfil any unlawful need for any property or important security or is because of disappointment by her or any individual identified with her to satisfy such need.

Thus when two such constituents of cruelty are being meted out, the person committing the same shall be punished with imprisonment for a term which shall extend for 3 years or with fine or both. Its link can also be drawn with Section 113(A) of the Evidence Act. Thus when such brutal acts are committed where an individual wants to end his or her life is bound to be considered as a basic ground of divorce.

In my opinion, it can also be concluded by criticizing that such acts of cruelty only happen on women, but society being dynamic such cases of cruelty also happens on men but there is still no penal provision to protect their rights and dignity. Though such cases of torture on men are rare, it is existing in the Indian society.

It had been held in the case of Krishna Sarvadhikary v. Alok Ranjan Sarvadhikary, AIR 1985 Cal. 431, that the actual intention on the part of one of the spouse is to injure the other is an important factor though in doubtful cases the state of mind of the offending spouse would also be crucial.

• Desertion

Desertion in simple terms can also be considered as an act of abandoning a person. Thus it had been defined under Section 10(ib) of the Hindu Marriage Act 1955. It states that divorce can happen if the petitioner had been deserted by the respondent for a continuous period of two years immediately after preceding the presentation of the petition. Even if the spouse had left the home but still contacts the petitioner through emails or phone calls it cannot be considered as a ground of divorce or it could be stated that no desertion had taken place. However, if the respondent or the other spouse suddenly without any reasonable cause ceases to live with the petitioner or dismisses all the rights, obligations and duties tied with the marital bond, then the essence of the only intention which he had was to desert the partner in the marriage. Thus it could be a valid ground for divorce as well. Therefore in the case of Ashok Kumar Arora V. Prem Arora, AIR 1987 Del 255, it had been held that when one spouse separates himself/herself to bring cohabitation to an end the other is entitled to seek for a decree of divorce. In the case of Jyothi Pai v. P.N. Pratap Kumar Rai, AIR 1987 Kant 24, it had been held that the initial burden of proving discontinuation from the society without reasonable cause lies on the petitioner.

• Conversion

Conversion, as a ground for divorce, had been defined under Section 13(1)(ii) of the Hindu Marriage Act 1955. If one of the spouses within the matrimonial bond ceases to be a Hindu and converts into another religion then the very essence of the Hindu Marriage Act gets destroyed. As a result of which it is considered as a lawful ground of divorce. Therefore there had been such instances as well, there had been a case where the court held that a Hindu wife upon conversion to Islam, may present Islam to her husband and on the husband’s failure to accept the same, the marriage would stand dissolved.

• Insanity

The word insanity had been derived from the word insane which means not in a correct state of mind. Thus a person who is not able to understand the difference between right or wrong or who is unable to provide consent or to approve or disapprove the happenings around him cannot be considered as competent enough to tie himself or herself within the matrimonial bonds. Insanity had been defined under Section 13(1)(iii). 

• Thus the articulation “mental disorder” implies dysfunctional behaviour, captured or deficient advancement of the brain, psychopathic confusion or some other issue or incapacity of the brain and incorporates schizophrenia;

• And similarly, the articulation psychopathic disorder implies a tenacious issue or incapacity of the brain (regardless of whether including sub-typicality of insight) which brings about strangely forceful or genuinely irresponsible conduct lead with respect to the other, and whether it requires or is susceptible to clinical treatment; thus when a person is suffering from such an unstable mental condition, he/ she can never perform their right and duties in a marriage, hence, it is also one of the most important grounds of divorce.

In the case of Ajitrai Shivprasad Mehta V. Bai Vasumati, AIR 1969 Guj 48, it has been held that when the mode of matrimonial relief is unsoundness of mind, it must be proved beyond a reasonable doubt so as to satisfy the court in every possible way.

• Leprosy

Leprosy, otherwise called Hansen’s ailment, is a chronic infectious disease brought about by Mycobacterium leprae. The sickness essentially affects the skin, the fringe nerves, mucosal surfaces of the upper respiratory tract and the eyes. Thus it had been stated under Section 13(1)(iv) that a person whose spouse is suffering from a deadly, infectious, incurable disease known leprosy can sort a decree of divorce under this ground. In the case of Annapurna Devi v. Nabakishor Singh, AIR 1965 Ori 72, it had been held even if it’s not a disputed fact that the respondent is suffering from leprosy for 3 years or more immediately before filing the petition of divorce, the onus of proof lies on to the petitioner to establish that leprosy is virulent and incurable.

• Venereal Disease

Venereal disease in simple terms is also known as the sexually transmitted disease. Under Section 13(1)(v) it can also be a ground of divorce. If one of the spouses is experiencing a serious incurable disease that is effectively transferable, a petition of divorce can be filed by the person. The explicitly transmitted illnesses like AIDS are accounted to be venereal disease. It had been held in the case of Birendra Kumar v. Hemlata Biswas, AIR 1921Cal. 459: ILR 48 Cal 283, where a wife is free from venereal disease, thus, it is cruelty on the part of the husband to compel her to intercourse.

• Renunciation

A person may file a divorce under Section 13(1)(vi) if one of the spouses renounces all the worldly affairs by embracing religion or any other belief. Thus such a person attains a state of self-actualization as being defined by Maslow and wants to free himself from all worldly bonds, including from the bond of marriage. Thus when the person himself/herself doesn’t want to take the responsibility of marriage, ties, relationship, and family, it could also be considered as a basic ground for divorce.

• Presumption of death

If an individual isn’t seen or heard alive by those who are required to ‘normally known about’ the individual for a persistent time of seven years, the individual is considered to be dead. The other spouse needs to file for divorce if he/she is keen on remarriage. Thus such a situation is also a ground of divorce as being stated under Section 13(1)(vii). In one of the cases, it had been held that where the near relatives assert that they had not heard of the husband for seven years the presumption of death under Section 108 of the Evidence Act should be drawn can also be considered as a ground for divorce.

Wife’s Special grounds of divorce

The wife also has some special rights such as:

If the husband has one or more wife living at the same time,

• If the husband has one or more wives living after the initiation of this Act, a wife may exhibit an appeal for divorce under cl. (I) of sub-sec. (2) of s. 13 of the Act. Just constraint on the right of a wife who applies for divorce under this provision is that the other wife ought to be alive at the hour of presentation of the petition independent of discoveries that the petitioner knew about the presence of the other wife and that the husband was not liable of cruelty.
• Postponement as leading an induction of approbation of or intrigue or lack of concern to a wedding incorrectly isn’t a proper thought for cases under Section 13(2)(i) of the Act. The right of divorce given to the wife by s.13(2)(i) doesn’t rely upon her behavior before the beginning of the Act. The presence of the first wife at the hour of execution of the subsequent marriage need not be built up by direct proof and that reality might be gathered from different realities demonstrated for the situation.

If the husband is guilty of rape, sodomy, and bestiality after the solemnization of marriage.

• Under s. 13(2)(ii) of the Act of a wife entitled is for a petition of divorce on the ground of rape, sodomy or bestiality submitted on her by the husband. Rape is additionally a criminal offense and characterized in Section 375 of the Indian Penal Code. A man is said to commit rape who had intercourse with a lady without wanting to, without her consent, or with her assent which is obtained by placing her in dread of death or of hurt. Thus when a wife gets to know that her husband did such an act, she has a special power to dissolve the marriage by letting him free.
• Sodomy is committed by an individual who has sexual intercourse with an individual from similar sex or with a creature or has non-coital carnal copulation with an individual from the contrary sex. Bestiality implies sexual association by a person against the request for nature with a creature.

Where a decree of maintenance under Section 18 of the Hindu Adoptions and Maintenance Act 1956, or a decree for maintenance of wife under Section 125, Cr PC 1973, has been passed against the spouse, the wife is qualified to present a petition for divorce which would be based on the fulfillment of two conditions of the divorce. In the first place, she was living separated, and besides, after passing of the order or decree, there had been no cohabitation between the husband and the wife for a time period of one year.

In some situations, the wife got married before attaining the age of 15. At such an age a little bride would have no understanding of what marriage actually means and the duties and obligations which are associated with it. Thus she has the right to revoke the marriage before the attainment of 18 years of age. Thus in such circumstances, the wife is being given the option to continue the marriage or to revoke the same.

However, in the case of Statham v. Statham, (1929) P 131, the court held that rape, sodomy, and acts of sexual perversion and alike must be pleaded and made out with precision and clarity. Some general allegations are not sufficient to get a decree of divorce.

Irretrievable breakdown of the Marriage

Merits (Advantages)

If the individuals, tied within the matrimonial bond feels that the marriage is not working out, then mutually it may give the right to both of them to stay and live life separately and happily without any botheration on either part. As there is no reasonable probability of staying together thus it gives both of them the opportunity to start their life as per their own wishes independently and separately.

Demerits (Disadvantages)

• Irretrievable breakdown of the marriage may become an excuse where the married couples may always feel that little arguments are unreasonable as a result of which there is no probability of them staying together. Therefore, in my opinion, the process of divorce following the irretrievable breakdown of marriage theory is not justified.
• It may also result from sudden arbitrary unreasonable decisions.
• It sometimes happens based on temporary emotions such as anger, humiliation, etc. which a couple may go through during the heat of the argument.
• It fosters no communication procedure between the partners.
• It is not just the breakdown of marriage but it is also the wreckage of two united families at the time of marriage.
• If children are born out of that marriage when the parents ‘now’ think that there is no reasonable probability of staying together, such broken families could be a matter of stress for the child born out of the marriage as well.

Procedures of Divorce (Detailed study under the Hindu Marriage Act 1955)

Section 19 of the Hindu Marriage Act 1955 states about the court in which the petition of divorce should be presented. It also highlights the fact that every petition which is sought to have been presented under this Act should be presented to the district court within the local limits of the original ordinary civil jurisdiction. The petition can, therefore, be filed in:

• The place where the marriage was solemnized.
• The place where the respondent resides during filing of the petition.
• The place where the couple last resided together.
• The place where the wife of the petitioner last resided.
• If the respondent is residing at a place which is outside territorial limits to which the act extends or not had been heard of being alive for a period of 7 years, then the petitioner could file a petition depending upon the places where he or she is presently residing.

Section 20 states about the contents and verification of the petition.

• Section 20 sub-section 1 states that every petition of divorce presented under the Hindu Marriage Act 1955 should be distinctly examined based on the nature and facts of the case depending on which the claim of relief is decided.
• Section 20 sub-section 2 states that the statement contained in every petition under this Act should be verified either by the petitioner or any other competent individual in a manner presented by the law for the verification of the plaints and during hearing it may also be used as evidence.

Section 21A states that:

Clause (a) sub-section 1 of Section 21A states that where,

• (a) a petition under this Act has been exhibited to a district court having jurisdiction by the party involved with a marriage wanting for a decree for judicial separation as being stated under Section 10 or for a decree for divorce under Section13; and
• (b) another petition under this Act has been displayed from that point by the other party to the marriage praying for a decree of judicial separation under Section  10 or for a decree of divorce under Section 13 on any ground, regardless of whether in a similar district court or in an alternate or different district court, in a similar State or in an alternate or different state State,
• the petitions will be managed as indicated in sub-section (2).

Sub-section 2, states, for a situation where subsection (1) applies,

• (a) if the petitions are introduced to a similar district court, both the petitions will be attempted and heard together by that district court;
• (b) if the petitions are exhibited to some other different district courts, the petition which is being presented later will be moved to the district court in which the previous petition was introduced and both the petitions will be heard and discarded together by the district court in which the prior request was introduced.

• Sub-section 3, states, for a situation where condition (b) of sub-section (2) applies, the court or the Government, by and large, able under the Code of Civil Procedure, 1908 (5 of 1908), to move any suit or proceeding from the district court in which the later appeal has been presented to the district court in which the previous request is pending, will exercise its authority to move such later petition as though it had been enabled so to do under the said Code.

Section 21B states that firstly the trial of a petition shall be taken in with the interest of justice and it shall be taken day-to-day until the case is being concluded. Day-to-day all the necessary reasons for filing the divorce petition should be recorded. This is stated in Section 21B(1). Secondly, an attempt should be made to conclude the cases within a period of 6 months. Therefore the cases are to be dealt expeditiously as being stated under Section 21B(2). Thirdly in Section 21B(3) every appeal under the act should be dealt expeditiously as possible and should be tried to be concluded within the period of 3 months from the date on which notice of appeal had been served to the party.

Section 21C states that no document in this regard shall be admissible if it is not duly stamped or registered. Therefore Section 21C states about the documentary evidence.

Section 22 under this act states that all the proceedings under this Act should be conducted in a camera, and it is unlawful for anyone to print or publish the same. However, if any act happens contrary to the given provision then he or she shall also be punishable with a fine which shall extend to one thousand rupees. In this section the word ‘camera proceeding’ means that all the acts should only happen in the presence of the Judge, the concerned advocates of the two parties and the two parties i.e the petitioner and respondent themselves. Thus it is not an open court where one could be allowed.

Section 23 of the Hindu Marriage Act 1955, provides a bar to matrimonial relief. It explains the conditions under which the court would not be granting matrimonial relief. 

• The conditions are as follows under sub-section 1 of Section 23:

1. Clause (a) of sub-section of Section 23 states that the petitioner needs to show that he or she is not taking advantage of his own wrong. For example, if the petitioner had been constantly torturing the respondent, and the respondent also had shown some act of cruelty against the petitioner then the petition cannot want relief on the ground of cruelty committed by the respondent as it was the petitioner who started the act of torturing and teasing the respondent. Hence in this regard, the Court holds up the principle of equity that one who comes for equity must come with clean hands.
2. Clause (b) of sub-section 1 of Section 23 states that a petition which is being filed on the ground of adultery has not in any manner been an accessory to connived at or condoned the acts complained off. Thus ‘accessory’ in the regard means aiding or assisting or actively participating in the offense complained against. If this ground of participation by the petitioner is being established then the court would grant no relief. Similarly ‘connivance implies a willing consent to a conjugal offense. Therefore if one spouse is willingly, intentionally or recklessly allowing the conjugal offense then no relief could be given by the court. Lastly, condonation means to forgive. Thus, if there is a reinstatement of the spouse who had suffered the matrimonial offense, then the court will see that such there are chances of forgiveness and smooth functioning of a relationship, as a result, no relief would be given.
3. Clause (bb) of sub-section 1 of Section 23 if the divorce is given on the ground of mutual consent and that consent had not been derived by any fraud, force or undue influence, then such a relationship would also be barred from any sort of relief.
4. Clause (c) of subsection 1of Section 23 states about collusion. Thus it holds the view that if two parties within the marital ties had consented for divorce but in order to get the relief they trick the court, therefore in such circumstances also relief will not be given.
5. Clause (d) of sub-section 1 of Section 23 states that if there is an unreasonable, or improper delay for filing a decree for divorce or for judicial separation then relief also cannot be given.

• As per Section 23(2), it is the duty of the court to look into the nature and circumstances of the case and try every possible endeavor to bring about a reconciliation between the parties.
• If the court thinks fit and if the parties desire, the court may adjourn the proceeding for a reasonable period of 15 days and refer the matter to any person as named by the parties or on behalf of the person selected by the court if the parties fail to name them with directions to report the court. This had been stated under sub-section 3 of Section 23 of the Hindu Marriage Act 1955.
• Section 23 sub-section 4 states that if the marriage is dissolved by the decree of divorce then the copy of the decree passed by the court shall be given free of cost to both the parties.

Chart showing the Procedure Of Divorce Under Mutual Consent

Types of Divorce Petitions

Divorce with Mutual Consent

Divorce by shared assent is when both parties agree to have a peaceful divorce. It is a basic method for leaving the marriage and dissolving the marriage legitimately. The primary part of such a separation is the mutual consent or the shared assent of the husband and wife. There are sure viewpoints to which the Husband and Wife need to arrive at a consensus. The first is the provision of maintenance issues. According to Law, there is no concept of minimum or maximum maintenance. It could be any figure. Another thought is child custody. Both parties need to go to an agreement over these two subjects. Section 13(B) specifically talks about divorce by mutual consent. Section 13B(2) also gives the transitional time period of 6 to 18 months as a period of interregnum which is intended to give time and opportunity to the parties. Divorce by common assent can be documented when the couple have been living independently for a time period of 1 year and have commonly chosen to end their marriage. A joint divorce petition is recorded by the separating couple in the court. Thus in this form of a divorce petition, the terms and conditions of such a separation are decided amicably and mutually through proper coordination and discussion.

Divorce without mutual consent

When a divorce is happening without mutual consent then as per Section 13(1) of the Hindu Marriage Act 1955 divorce is bound to happen based on the grounds previously discussed such as:

• If a marriage is solemnized between two-person, and while staying within the marital bonds either of the party had sexual intercourse with another person who is not the legally married husband/ wife of the other person. Thus adultery could be a ground of divorce without mutual consent.
• After solemnization of marriage if either of the parties treats the other party with cruelty then it is also one of the utmost grounds of one-sided separation.
• If one of the parties within the bond of marriage deserts the other spouse without any reasonable grounds then also divorce without consent could be sorted out.
• Conversion of the religion of either, of the spouses changes the very essence of the Hindu Marriage, as well its rights and obligations under the Hindu Marriage Act 1955, it is also a valid ground of divorce without Mutual consent.
• If any of the spouses are suffering from mental illness then it could also be a valid ground of divorce. The rationale behind this is, if a person is unable to understand its surroundings etc, then duties and obligations would he fulfill in marriage.
• Leprosy, Venereal disease in a communicable form is also formed a valid ground of divorce without mutual consent.
• If any of the parties renounced the world by entering into a religious belief. 
• If a person is not seen to heard and seen about for a period of 7 years then the person is believed to be dead, on that a belief the other spouse could file a petition for divorce.
• Along with the above mentioned grounds, few other grounds could also be a reason for divorce without mutual consent:

1. There has been no resumption of living together as between the parties to the marriage for a period one year or upwards after the passing of a pronouncement for legal detachment in a procedure to which they were parties.
2. There has been no restitution of conjugal rights as between the parties to the marriage for a time of one year or upwards after the death of a pronouncement for compensation of matrimonial rights in a procedure to which they were parties.

Divorce Notice

A divorce notice is a legal notice which is sent by one of the spouses who wants to dissolve the marriage and end the relationship based on any of the ground which he/she is going through. It is sent to the other spouse being the respondent. Further, a divorce notice is a communication showing his/her intention to go through legal proceeding against the other party. Thus it is a formal setup or a communication warning them of legal action.

Related Cases

A few of the cases are as follows:

In the case of  Amardeep Singh v. Harveen Kaur, the Supreme Court had held that a 6 Months Waiting Period for Divorce by Mutual Consent is not mandatory.

• In a significant improvement to Hindu Law administering divorce by common assent, the Supreme Court decided that the time of interregnum or cooling time of 6- 18 months which is given under Section 13B(2) of the Hindu Marriage Act, 1955 isn’t required mandatorily however this can be postponed off in specific situations or circumstances.
• The Court additionally saw that in perspective on this, Courts can practice its attentiveness relying upon the realities and conditions of each case and postpone off the stipulated period where there is no chance of continuing living together and alternative rehabilitation.
• Right now, parties have been living independently since 2008. In 2017 the parties showed up at a settlement and applied for divorce by shared assent/ consent. For the situation, the gatherings supplicated the Court to forgo off the time of 6 months as stated under Section 13B(2) of the Hindu marriage follow up on the ground that they have been living independently for the last 8 years and there is no chance of their living together again.

In the case of Mrs. Christine Lazarus Menezes v. Mr. Lazarus Peter Menezes (Bombay High Court), the court held that Lodging false case under Section 498A of IPC is Cruelty and Ground for Divorce.

• For the situation, the Appellant wife offered against Family Court’s order whereby the Family Court had conceded Respondent’s application for dissolution of marriage.
• The Bombay High Court expelled the intrigue and refused to interfere with the Family Court’s structure in permitting the Petition for divorce of the spouse on the ground of ‘cruelty’.
• The Court noted for the situation that during an assessment, the wife had conceded in her oath that she had held up an FIR with the Kherwadi Police Station, Mumbai, against her significant other under Section 498-A and 406 of the Indian Penal Code, 1860. The Appellant wife had likewise conceded for the situation that she had documented the Criminal Complaint so as to bring back her husband to their wedding home.
• In perspective on the previously mentioned, the Court noticed that if the Criminal Complaint documented by the appealing wife against her husband was bogus and was recorded uniquely to bring back her better half and resulting to which he was captured and was in prison for around 7 days, it would establish a clear case of cruelty by the wife on her husband.

In the case of Balveer Singh v. Harjeet Kaur (Uttarakhand High Court), the court held that the principle res judicata is not applicable on the subsequent suit under Section 13 of the Hindu Marriage Act

• In the case, the Appellant had documented a request under Section 13-A of the Hindu Marriage Act, 1955 looking for a dissolution of the marriage between the parties. The fundamental issue that sprung up under the watchful eye of the High Court was whether the suit being referred to would be banned by Section 11 of Code of Civil Procedure in perspective on the way that the procedures under Section 9 of the Hindu Marriage Act, 1955 (compensation of matrimonial rights) stood to decide? Section 11 of Code of Civil Procedure articulates that no Court should attempt any suit or “issue” in which the issue legitimately and significantly in issue has been straightforwardly and considerably decided in a conventional suit.
• While choosing this issue, the High Court alluded to the impugned provisions and mentioned the following key objective facts for the situation: That on a straightforward perusing of Section 9 of the Hindu Marriage Act, 1955, it has wholly an alternate reason. The motivation behind Section 9 of the Hindu Marriage Act, 1955 is to meet a possibility. It manages a circumstance where a wedded couple for no legitimate explanation is pulling back himself from releasing the commitments connected to the foundation of marriage, which on account of one of them is endeavored to be settled together. The award of the compensation is dependent upon the fulfillment being built up of non-meeting of the wedding commitments.
• That if both the arrangements if are investigated agreeably, the governing body in the entirety of its astuteness had given that the two areas, for example, Section 9 of the Hindu Marriage Act, 1955 and Section 13-A of Hindu Marriage Act, 1955 are confined to meet a different arrangement of possibilities. In this manner, both the arrangements are dissimilar to each other one expects to unite family and the other is a legal procedure to isolate the family.
• The High Court opined that procedures would not pull in Section 11 of Code of Civil Procedure to make a Bar in a recording of a consequent suit under both of the arrangements under Section 9 of the Hindu Marriage Act, 1955or Section 13-A of Hindu Marriage Act, 1955.
• On the off chance that Section 9 of the Hindu Marriage Act, 1955 is either announced or expelled, it won’t remove a privilege of involved with document Section 13-A of Hindu Marriage Act, 1955 for the dissolution of marriage at any ensuing stage.

Alternative Reliefs In Divorce Proceedings

The grounds for divorce and mutual separation are almost the same. Therefore they could use its discretion for not passing a decree for divorce straight away even if the divorce proceeding had been initiated under Section 13(A) of the Hindu Marriage Act 1955. Instead, the court may pass a decree for judicial separation. Therefore the law always keeps hope and tries to make the last attempt to bring the parties back together by solving the disputes between them. However, there can be no alternate relief or attempt by the court for the parties if the proceedings of divorce are being made on the grounds of conversion, renunciation and on the belief of being dead as the other party didn’t return for seven years.

Conclusion

The phrase “Incredible India” is really true to itself. Each and every culture, religion, personal laws, codified laws amuses the society and its upbringing. The change in Hindu society and acceptance of the change in the dynamic society is a matter of immense pleasure and pride being an Indian. Previously the divorce concept was not accepted and it was considered that a girl is bound to adjust and compromise. But through the birth of Hindu Marriage Act 1955, gradually the concept of divorce and therefore the relevant provision as per the needs of the dynamic society, was also established. Hence staying in an abusive marriage is a curtailment of the basic fundamental rights like Right to live peacefully, freedom of speech and expression, etc. Hence lastly it is only expected from the people that they don’t misuse these powers given by the law to them rather they should uphold the laws and human emotions of love, loyalty, trust and kindness.

Reference

1. http://www.delhihighcourt.nic.in/library/acts_bills_rules_regulations/The%20hindu%20marriage%20Act,%201955.pdf
2. http://www.legalserviceindia.com/helpline/grounds_for_divorce.htm
3. https://highcourtchd.gov.in/hclscc/subpages/pdf_files/4.pdf

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

The post Divorce under Hindu Marriage Act, 1955 appeared first on iPleaders.

This article has been written by Ishaan Banerjee studying in Vivekananda Institute of Professional Studies, affiliated to Guru Gobind Singh Indraprastha University. This article gives an overview of the Hindu Succession Act, 1956 and explores who can get property by succession and in what order. 

Introduction

The Hindu Succession Act, 1956 is an Act relating to the succession and inheritance of property. This Act lays down a comprehensive and uniform system which incorporates both succession and inheritance. This Act also deals with intestate or unwilled (testamentary) succession. Therefore, this Act combines all the aspects of Hindu succession and brings them into its ambit. This article shall further explore the applicability, and the basic terms and definitions and the rules for succession in the case of males and females. 

Applicability

Section 2 of this Act lays down the applicability of this Act. This Act is applicable to:

• Any person who is Hindu by religion or any of its forms or developments, including a Virashaiva, Lingayat, or a Brahmo, Prarthna or Arya Samaj follower. 
• Any person who is a Buddhist, Sikh or Jain by religion.
• Any other person who is not a Muslim, Christian, Parsi, Jew, unless it is proved that such person would not be governed by Hindu law or custom. 
• This Act shall also extend to the whole of India. 

However, this Section shall not apply to any Scheduled Tribes covered under the meaning of Article 366 of the Constitution, unless otherwise directed by the Central Government by a notification in the Official Gazette. 

Who qualifies as a Hindu, Sikh, Jain or Buddhist?

• A legitimate or illegitimate child, where both of his parents are either Hindus, Buddhists, Jains or Sikhs.
• A legitimate or illegitimate child, one of whose parents is a Hindu, Buddhist, Jain or Sikh and is brought up as a member of the tribe, community, group or family to which such parent belongs.
• Any person who is a convert or reconvert to the Hindu, Sikh, Jain or Buddhist religion.

Basic terms and definitions

Agnate

Section 3(1)(a) defines ‘agnate’. A person is said to be an agnate of another if the two are related by blood or adoption wholly through males. 

Cognate

Section 3(1)(c) defines a person to be a ‘cognate’ of another if such a person is related to the other by blood or through adoption but not wholly through males.

Heir

According to Section 3(1)(f), ‘heir’ is any male or female person, who is entitled to receive the property of the intestate. 

Intestate

According to Section 3(1)(g), a person who dies without leaving behind a will is referred to as intestate. 

Related 

According to Section 3(1)(i), ‘related’ means the relationship between kin( kinship), which should be legitimate. Illegitimate children shall be deemed to be related to their mother and to one another, and their legitimate descendants shall be deemed to be related to them and to one another.

Which properties does this Act not apply to?

Section 5 lays down the properties that this Act does not apply to:

• Any property whose succession comes under the regulation of the Indian Succession Act, 1925 by reasons of the provision under Section 21 of the Special Marriage Act, 1954. Section 21 of the Special Marriage Act states that succession to the property of any person whose marriage is solemnized under this Act and the property of the issue of such marriage shall be governed by the Special Marriage Act. 
• Any estate or property which goes to the single heir through the terms of any agreement or covenant formed between the Ruler of an Indian State and the Government or through any enactment formed and passed before the commencement of this Act.
• The Valliamma Thampuran Kovilagam Estate and the Palace Fund under the administration of the Palace Administration Board due to the powers conferred under the Proclamation (IX of 1124), dated 29th June 1949, given by the Maharaja of Cochin.

Types of succession

Testamentary Succession

When the succession of the property is governed by a testament or a will, then it is referred to as testamentary succession. Under Hindu law, a Hindu male or female can make the will for the property, including that of a share in the undivided Mitakshara coparcenary property, in favour of anyone. This should be valid and legally enforceable. The distribution will be under the provisions of the will and not through the laws of inheritance. Where the will is not valid, or not legally enforceable, then property can devolve through the law of inheritance. 

Intestate Succession 

Intestate has already been defined above as someone who dies leaving behind no will or testament. When such a situation happens, then this property will be distributed among the legal heirs by following the laws of inheritance. 

Rules for ownership in the case of males

Section 8 lays down the general rules for the succession in the case of males. Section 8 applies in cases where succession opens after the commencement of the Act. It is not necessary that the death of the male Hindu, whose property has to be devolved by inheritance, should take place after the commencement of this Act. For example: if a father, during his lifetime, settles his property in favour of his wife and after the death of his wife, wishes that it should pass to his daughter, and the daughter dies after the commencement of this Act, then the succession will open and the property would devolve according to Section 8.

Classification of heirs

Heirs are classified into four categories:

• Class I
• Class II
• Class III (Agnates)
• Class IV (Cognates)

Class I heirs 

• Sons
• Daughters
• Widows
• Mothers
• Sons of a predeceased son
• Widows of a predeceased son
• Son of a predeceased son of a predeceased son
• Widows of a predeceased son of a predeceased son
• Daughter of a predeceased son
• Daughter of a predeceased daughter
• Daughter of a predeceased son of a predeceased son
• Son of a predeceased daughter
• Daughter of a predeceased daughter of a predeceased daughter
• Son of a predeceased daughter
• Son of a predeceased daughter of a predeceased daughter
• Daughter of a predeceased daughter of a predeceased son
• Daughter of a predeceased son of a predeceased daughter

All of them will inherit simultaneously and even if any of them is present, then the property will not go to the Class II heirs. All Class I heirs have absolute rights in the property and the share of a Class I heir is separate, and no person can claim a right by birth in this inherited property. A Class I heir cannot be divested of his/her property, even by remarriage or conversion etc. 

Until the Hindu Succession (Amendment) Act, 2005, the Class I heirs consisted of twelve heirs, eight of which were females and four were males, but after 2005, four new heirs were added, of which eleven are female and five are male.

Now we will observe who classifies as son, mother, daughter or widow and what kind of interests they have in the property. 

Son

The expression ’son’ can include both a natural born son or adopted son but does not include a stepson or illegitimate child. In Kanagavalli v. Saroja AIR 2002 Mad 73, the appellants were the legal heir of one Natarajan. Natarajan was earlier married to the first respondent, the second respondent was the son and the third respondent was the mother of Natarajan. The first respondent obtained a decree of restitution of conjugal rights but still no reunion occurred between them. The first appellant claimed to have married Natarajan in 1976 and the appellants 2 to 5 were born through them. Natarajan died afterwards. The suit was filed for declaration that the appellants were the legal heirs of the said Natarajan along with respondents 1 to 3, and they were entitled to the amounts due from the Corporation where Natarajan worked. The Court held that a son born of a void or voidable marriage that is declared to be annulled by the Court, will be a legitimate child and would thus inherit the property of his father. A son has absolute interest in the property and his son cannot claim birthright in it. Therefore, ‘son’ does not include grandson, but does include a posthumous son. 

Daughter

The term ‘daughter’ includes a natural or adopted daughter, but not a stepdaughter or illegitimate daughter. The daughter of a void or voidable marriage annulled by the Court would be a legitimate daughter and thus would be eligible to inherit the father’s property. The daughter’s marital status, financial position etc is of no consideration. The share of the daughter is equal to that of the son. 

Widow

The widow gets a share that is equal to that of the son. If there exists more than one widow, they collectively take one share that is equal to the son’s share and divide it equally among themselves. This widow should have been of a valid marriage. In the case of Ramkali v. Mahila Shyamwati AIR 2000 MP 288, it was held that a woman who was in a voidable or void marriage, and that marriage was nullified by the Court on the death of the husband, would not be called his widow and would not have rights to succeed to his property.

If the widow of a predeceased son, widow of a predeceased son of a predeceased son or the widow of a brother has remarried, then she shall not be given the term of ‘widow’, and will not have the inheritance.

Class II heirs

The Class II heirs are categorized and are given the property in the following order:

• Father
• Son’s Daughter’s son
• Son’s daughter’s daughter
• Brother
• Sister
• Daughter’s son’s son, daughter’s son’s daughter, daughter’s daughter’s son, daughter’s daughter’s daughter
• Brother’s son, sister’s son, brother’s daughter, sister’s daughter
• Father’s father, father’s mother
• Father’s widow, brother’s widow
• Father’s brother, father’s sister
• Mother’s father, mother’s mother
• Mother’s brother, mother’s sister

If no one from the Class I heirs takes the property, then Class II heirs fall in line to get the property. In Kalyan Kumar Bhattacharjee v. Pratibha Chakraborty AIR 2010 (NOC) 646 (Gau), the property fell into the share of the defendant brother named Ranjit, who was unmarried. However, he became traceless and the property was divided amongst two other brothers in equal shares. The plaintiff’s brother called Jagadish then executed a will in favour of both the plaintiff and died afterwards. However, the defendants then asked them to vacate the land, contending that inter alia that the land has been purchased in the name of three brothers; namely Jagadish, Ranjit and Kalyan, the defendant number 1. It was held that when a Hindu male is unmarried and he dies, and is not survived by a Class I heir, the Class II heirs would get the property.

Similarly, when in heirs in Class III and IV are there, the property would only go to them if no one from the Class II is present. 

Class III heirs

This consists of the agnates of the deceased. Class III heirs only inherit the property when none form the earlier classes gets the property.

An agnate is a person who is related to the intestate only through male relatives. An agnate can be a male or a female. 

Rules of preference among agnates

• Each generation is referred to as a degree. The first degree is intestate. 
• Degrees of ascent mean ancestral or upwards directions.
• Degrees of descent means in the descendants or downwards direction. 
• Where an agnate has both ascent and descent degrees, each has to be considered separately.
• An agnate having descent degree will be preferred over the one having ascent degree.
• When two agnates have ascent and descent degrees, the one having lesser number of ascent degrees will be preferred. 

Class IV heirs

A cognate (Class IV) is someone who was related to the intestate through mixed relatives, in terms of sex. For example, an intestate’s paternal aunt’s son is his cognate, but his paternal uncle’s daughter will be an agnate. 

Therefore, to sum up it can be said that the property of the Hindu male devolves in the following manner:

• First, to the heirs in Class I.
• Second, if there exists no heir of Class I, then it goes to Class II heirs.
• Third, if none from the Class I or II exists, then it goes to the agnates (Class III).
• Fourth, if no one from the earlier three classes exists, then it goes to the cognates (Class IV).

Rules for ownership in the case of females

With the coming of The Hindu Succession Act, 1956, women are granted ownership of property, whether it was acquired before or after the commencement of the Act, thus abolishing their ‘limited owner’ status. But it was only in the Hindu Succession (Amendment) Act, 2005 that it was decided that daughters would be entitled to an equal share in the property as the son. Therefore, the 2005 Amendment serves as a defender for female rights.

The property in case of a female Hindu intestate dying will devolve through:

• Firstly, through the sons and daughters, which would also include the children of a predeceased son or a predeceased daughter) and the husband. 
• Secondly, on the heirs of the husband.
• Third, upon the mother or the father.
• Fourth, on the father’s heirs.
• Fifth, on the heirs of the mother.

In the case of any property being inherited by a female Hindu by her father or mother and there is no son or daughter of the deceased (including a child of predeceased son or daughter), then it shall devolve in favour of the heirs of the father. 

Similarly, in the case of any property being inherited by a female Hindu by her husband or her father in law, and there is no son or daughter of the deceased (including the child of a predeceased son or daughter), it shall devolve in favour of the heirs of the husband. 

Conclusion

This article explored some basic terms and definitions used in the Hindu Succession Act, 1956. There are four classes of heirs to which property devolves in case if a Hindu dies leaving behind a will, in which case he becomes intestate. This property devolves through these classes. If no one from the earlier class is present, then it devolves to the next class and so on. Lastly, this article also explored the 2005 Amendment to this Act, which brought much needed protection to women rights regarding property.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

The post The Hindu Succession Act, 1956 appeared first on iPleaders.

The article is written by Chandan Kumar Pradhan from KIIT School of Law, Odisha. This article talks about how a minor child is safe under a guardian.

Introduction

In the premature stage of one’s life, a child is incapable of taking care of himself,his/her own body and his/her property because of his minority. A child can not handle his/her own matters. A child is even unable to understand what is right and what is wrong. So, he requires the help of some other person to take care of himself. For the advantage of the minors, the lawmakers have made specific laws which allow some relaxation and support to the lives of the minors.

The modern laws on minority and guardianship are regulated by the Hindu Minority and Guardianship Act, 1956. The father is the natural guardian of the child and after his death, the mother will take the responsibility of the guardianship of the child.

Definitions of the Minor and the Guardian

• According to Section 4(a), it is defined as a minor means who has not completed the age of 18 years.
• According to Section 4(b), it is also defined that a guardian means a person who has completed the age of 18 and he is taking proper care of a minor and his property and as well as his own.

Types of Guardian

There are 3 types of guardian who are in the following:

• Natural Guardian
• Testamentary Guardian
• A Guardian appointed by the Court

Natural Guardian

According to Section 4(c) of the Act, the natural guardian assigns to the father and mother of the minor. For a minor wife, his husband is the guardian.

Section 6 of the Act gives 3 types of natural guardian in the following:

Father– A father is the natural guardian of a boy or unmarried girl, the father is the first guardian and the mother is the next guardian of the minor. It is given in the Act that only up to 5 years the mother is the natural guardian of the child.

Case- Essakkayal nadder Vs. Sreedharan Babu. In this case, the mother of the minor died and the father was also not living with the child, but the child was alive. the child was not declared to be a Hindu or renounced the world and he was also not declared unfit. These facts do not authorize that any other person adopts the child and be the natural guardian and transfer the property.

Mother– The mother is the first guardian of a minor illegitimate child, even if the father is existing.

Case- Jajabhai Vs. Pathakhan, in this case, the mother and father got separated for some reason and the minor daughter stayed under the guardianship of the mother. Here, it will be determined that the mother is the natural guardian of the minor girl.

Husband– For a minor wife his husband is the natural guardian.

Under Section 6, it is given that no person will be designated to perform like the natural guardian of a minor under this portion, which is in the following:

1. If he/she ceased to be a Hindu.
2. If he/she has completely renounced the world that they are becoming an ascetic (sayansi) or hermit (vanaprastha).

Note: In Section 6, the terms “Father” and “Mother” do not include the step-father and the step-mother.

Powers of a natural guardian

As per Section 8, the powers of the natural guardian to impose on the child are as follows:

• The natural guardian of a Hindu minor has the power to do all work, which are compulsory and which are beneficial for the minor’s interest. Protection or benefits of the minor’s condition.
• The natural guardian should bring the prior permission from the Court, for the use of the gift transferred to him, mortgage or any other valuable things of the minor.
• For the lease of any part of minor’s property for about exceeding 5 years or for a term of extending one year beyond the date on which the minor attains the majority. The prior permission from the Court is very much needed for doing so.
• Violation of any disposal of the immovable property by a natural guardian, it will be voidable at the case of the minor or any other person claiming on the behalf of him.
• No Court shall grant permission to the natural guardian to do any act which is not in the interest of the minor.
• The Guardians and Wards Act, 1890 shall apply to the application for getting the permission of the Court if the application is for getting the permission of the Court under Section 29 of that Act and in these grounds:

1. The natural guardian requires permission from the District Court or under the Court which empowered by the Guardians and Wards Act, 1890.
2. Should submit the application to the Court within the local limits of whose jurisdiction, portion of the property of minor is placed.
3. An appeal would be declined, when the Court rejects the permission to the natural guardian to do any acts of property transfer and this remedy is usually the result of this Court decision.

Testamentary Guardian

Under Section 9, of the Hindu Minority and Guardianship Act, 1956 testamentary guardian only authorized by a will. It is compulsory for the testamentary guardian to receive the guardianship adoption which may be expressed or implied. A testamentary guardian has the right to decline the appointment, but once he /she receives the guardianship then he/she can not decline to perform or resign without the permission of the Court.

According to the Hindu Minority and Guardianship Act, 1956 testamentary power of choosing a guardian has been provided on both, father and mother. If the father chooses a testamentary guardian but the mother rejects him, then the chosen guardian of the father will be inefficient and the mother will be the natural guardian thereafter. If the mother chooses a testamentary guardian, her chosen guardian will become the testamentary guardian and father’s appointment will be void. If the mother does not want to choose any guardian then father’s appointee will become the guardian. It appears that a Hindu father can not choose a guardian of his minor illegitimate children even when he is allowed to perform as their natural guardian.

A Guardian appointed by the Court

In the earlier days of Smritis, the overall jurisdiction for the children was sanctioned over the king. The king had the power to choose a closet relation of the minor as guardian. Only priority was given to the relatives on the paternal side over the maternal side. Only for the security of the child, this type of laws was formulated by the ancient lawgivers.

Now, this type of powers are applied by the Courts under the Guardians and Wards Act, 1890.

The guardian who is appointed by the Courts, he/she will be known as a certified guardian.

Under Section 13 of the Hindu Marriage and Guardianship Act, 1956, while the appointment of any person as guardian is going on by a Court, the advantage of the minor shall be the primary consideration.

Therefore, in both the ancient and modern times the king or the Court has been given the responsibilities to appoint a guardian for the defence of a minor.

Additional grounds where a guardian is appointed

Guardianship of Minor’s property(De Facto guardian)

A minor, who is under the tender age may achieve some property which is given by inheritance, gift etc. because of child underage, he/she can not take proper care of the property.

The Smritis gave the opinion that the king has to guard the property of the minor. In this statement, Manu says that the king should protect the inheritance accepted by a child till his study is completed or till he attains majority.

Vasistha states that the king should guard the property of a person who is unfit to transact any business but in a minor’s case when he attains majority, the property will be handed over to him.

In modern law, the natural guardian will take care of the minor. This statement is also used in the testamentary and certified guardian and in some cases the guardian will protect only those property for which they were appointed, but not for the excluded property of the minor and the guardian has no rights to claim for protecting that property.

Therefore, both the ancient and modern lawmakers are interested in the security of the person and his property. Nowadays there are many laws that are incorporated for the changing need of the society.

According to Section 11, De Facto guardian is not allowed to dispose or deal with the property of the minor and it is given that the guardian does not have the rights to take any debt.

Case- Smt. Beti Bai Vs. Jagdish Singh and Ors, in this case Aparbal Singh was the father of plaintiff, who is no more. Aparbal Singh had 2 wives because, during his lifetime his first wife died due to some problem, then his second wife came to his life who was the respondent. And the child of the second wife also died due to some reason. At last after the Aparbal Singh died, the second wife captured all the property then the son of the first wife filed a complaint.

It was held that, according to Section 4, Section 6, Section 8, Section 11 of the Hindu Minority and Guardianship Act, 1956, the answer was in the favour of the plaintiff and plaintiff enjoyed the property. The Court also held that, as the respondent was also had a relation with that person, therefore, she has the right to get one third of the property, when she will ask for the partition before the competent authority.

Hindu law tried to find a result from two difficult conditions: one, when a Hindu child has no legal guardian, there would be no person, who would manage his property under law and therefore, without a guardian the child would not receive any advantages for his property and second, a person having no designation could not be a allowed to interfere with the child’s property as to cause loss to him. The Hindu law got a result of this difficult condition by an according to legal status to De Facto guardians.

Guardianship of a minor widow (guardianship by affinity)

Earlier days of the Smritis child marriage was very common. After the marriage happened of a minor girl with the husband, then the husband became the guardian of the girl. In any situation, if the husband died then the minor widow should not feel unsafe.

According to Narada, when a minor girl becomes a widow then the husband’s relatives have the duty to protect and maintain her if in husband’s family no one is there, then the father of the widow takes the responsibilities of the widow to protect her.

Before 1956, there was a guardian called guardianship by affinity. It was the guardian of a minor widow which was given by the Guardianship and Wards Act, 1850.

No provision is given under the Hindu Minority and Guardianship Act, 1956 for the guardianship of a minor widow.

Case- In Paras Ram Vs. State, it was held that the father-in-law of a minor widow vigorously took away the widow from her mother’s control and married her to an improper person without the widow’s consent. The Court held that the father-in-law guilty of displacing the girl without her consent.

The Allahabad High Court held that he was not guilty because he was lawfully a guardian of the widow.

A question has arisen in the Court, whether the nearest blood relatives of the husband undoubtedly becomes a guardian of the minor widow on the death of her spouse or whether he is simply as a choice get into the guardianship and therefore, he can not perform as guardian but he is appointed as such? Paras Ram seems to subscribe to the previous view.

Conclusion

Adoption of a child by any guardian is creating a relationship of the child and the guardian, it creates the subject matter of personal law and for a minor, it is mandatory to protect his property and for that reason, there is a guardian who will take care of him and his property. Special thanks to the lawmakers who invented these types of laws for protecting the minor and his property and for the unmarried girl and widow. In this way, no one can steal the property of anyone who is a minor.

Therefore, the guardian is very necessary for a minor to protect himself physically or mentally and secure from any danger.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

The post Overview of the Hindu Minority and Guardianship Act, 1956 appeared first on iPleaders.

This article is written by Arijit Mishra, from KIIT School of Law, Odisha. This article talks about the power and position of a Karta under Hindu Law.

Introduction

The Joint Hindu family is a patriarchal body, and the head of the family is called Karta. Karta is the senior most male member of the family who acts as the representative of the family and acts on behalf of the family. There is a fiduciary relationship between the Karta and the other family members because every family needs a head member who can look after the welfare of minor members and females in a Joint Hindu Family. The position of Karta is unique in a joint Hindu family. Karta takes care of the whole family and its property and the decision given by the Karta is bound to be followed by the members of Hindu Joint Family. No one is equal to Karta in a Hindu Joint Family. The powers and position of a Karta are wider than any of the members of the Hindu Joint Family. No one can be compared with Karta among the other members of the joint family.

Who can be a Karta?

Senior most Male Member

The senior most male member is entitled to become a Karta and it is his right. Karta is always from the members of the family; no outsiders or stranger can become a Karta. If the senior most male member of the family is alive then he will continue as Karta, if he dies then the second senior most member of the family will take the charge of Karta. Karta takes his position by consent or agreement of all the coparceners.

Junior Male Member

If the coparceners agree, then a junior can also become a Karta of the family. By making the agreement with the coparceners, a junior male member can be a Karta of the family.

Female Member as Karta

According to Dharmastra, if there is an absence of the male member in a family then in that situation female can act as a Karta. If in case male members are present but they are minors, at that time also, females can act as a Karta.

Characteristics of Karta

The characteristics of a Karta are:

• Karta’s position is unique (sui generis). His position is independent and no one can be compared with him among the family members.
• He had unlimited power but even if he acts on behalf of other members, he can’t be treated as a partner or agent.
• He controls all the affairs of the family and has wide powers.
• He is responsible to no one. The only exception to this rule is, in case of fraud, misappropriation or conversion, he is held responsible.
• He is not bound to invest, save or economise. He has the power to use the resources as he likes, unless he is not responsible for the above mentioned charges.
• He is not bound to divide the income generated from the joint property equally among the family members. He can discriminate one with another and is not bound to be impartial. The only thing is he should pay everyone so that they can avail some basic necessities like food, clothing, education, shelter etc.

Powers of a Karta

The powers of Karta are:

Powers of Management

Karta’s power of management is absolute. No one can question the duties of the Karta like, he can manage or mismanage the property, family, business any way he likes. Karta cannot deny the maintenance and occupation of property to any member. Karta is not liable for the positive failures.

Rights to Income or Remuneration and Expenditure

The income of the Joint Hindu family property in a whole must be given to the Karta. Then it is the responsibility of the Karta to allot the funds to the members for fulfilment of their needs. Karta controls the expenditure of the funds. The scope of his power is only to spend such funds on family purposes like management, maintenance, marriage, education etc.

Rights to Represent Joint Family

The Karta represents the family in legal, religious and social matters. The acts and decisions of the Karta are binding on the members. Karta can enter into any transaction on behalf of the family.

Right to Compromise

Karta has the power to compromise the disputes relating to management or family property. He can compromise family debts, pending suits and other transactions. The compromises made by the Karta, can be challenged in court by heirs only on the ground of malafide.

Power to refer a Dispute to Arbitration

Karta can refer the disputes relating to management, family property to the arbitration. If the award by the arbitration is valid then it will be binding on the members of the joint family.

Power to Contract Debts

The Karta exercises an implied authority to contract debts and pledge the credits and property of the family. Such acts are bound to be followed by the members of the family. Even, Karta when taking a loan for the family purpose or for family businesses than joint family is liable to pay such a loan.

Power to enter into Contracts

The Karta can enter into contracts and where contracts are enforceable against the family. The contracts are binding on the members of the joint family.

Power of Alienation

No one among the family members can alienate joint family property. But Karta has the power to alienate the property under three circumstances.

1. Legal Necessity
2. Benefit of estate
3. Indispensable duties

Legal Necessity

This term has not expressly defined in any judgement or in any law. It includes all the things which are deemed necessary for the members of the family.

Dev Kishan Vs. Ram Kishan AIR 2002

In this case, the plaintiff filed a suit against the defendant. Both plaintiff and defendant are members of the Joint Hindu Family. Defendant 2 is the Karta, who is under the influence of Defendant 1, sold and mortgaged the property for an illegal and immoral purpose which is for the marriage of minor daughters Vimla and Pushpa. The defendant contended that he took the loan for the legal necessity.

The court held that the debt was used for the unlawful purpose. Since it contravened the Child Marriage Restraint Act,1929, therefore, it can be called as lawful alineation.

Benefit of estate

Benefit of Estate means anything which is done for the benefit of the joint family property. Karta as a manager can do all those things which are helpful for family advancement.

Indispensable Duties

These terms refer to the performance of those acts which are religious, pious or charitable. Examples of indispensable duties are marriage, grihapravesham etc. A Karta can alienate the portion of the property for the charitable purpose. In this case, the power of the Karta is limited i.e he can alienate only a small portion of the family property, whether movable or immovable.

Loan on Promissory Note

When Karta takes any loan for any family purpose or executes a promissory note, then all the members and the members who are not the party to the note will be sued if the loan is not paid. But, Karta is personally liable on the note.

Liabilities of a Karta

• Liability to maintain- Karta is to maintain all the members of the Joint Family. If he does not maintain any member then he can be sued for maintenance and also can be asked for compensation.
• Liability of render accounts- As far as the family remains joint, Karta is not supposed to keep accounts of the family, but when partition takes place at that time he will be liable to account for family property. If any of the heir is not satisfied with his accounts, then he can constitute a suit against Karta to bring the truth and to know any misappropriation is done by Karta or not.
• Liability of recovery debts due to the Family- He has the liability to realize the debts due to the family.
• Liability to spend reasonably- He has the liability to spend the joint family funds only for the family purposes.
• Liability not to eliminate coparcenary property- It is the liability of the Karta not to alienate the coparcenary property without any legal necessity or benefit to the state.
• Liability not to start new Business- It is the liability of the Karta not to start a new business without the consent of other coparceners.

Responsibilities of Karta 

The duty of a Karta is to provide clothing, food, shelter etc, to the members of the joint family. There are several responsibilities of Karta which include:

Maintenance

Every member of the family including Karta has the right to maintenance. The Responsibility of Karta is to maintain all the members of the family. If he does not maintain any member properly, then he can be sued for both maintenance and dues of maintenance. 

Marriage

The Karta is responsible for the unmarried members especially the daughters. The expenses for the marriage will be taken out of the Joint Family property.

Representation

Karta acts as a representative on behalf of the family. This is because he must perform some responsibilities and liabilities on account of the family. He must pay all the dues and the taxes. He can be sued on behalf of the family during any agreement or dealings.

Accounts at the time of Partition

Status of a joint family comes to an end due to the partition. Under Mitakshara Law, it means:

Severance of status and interest

It’s an individual decision, where a member wants to divide himself from the joint family and enjoy undefined and unspecified share separately.

Actual division of Property

It is the consequence of the declaration of the desire to cut off. However, it is a bilateral action.

Opening of assets means the inquiry of the assets of joint family. This includes all the items of family property. Karta under Mitakshara Law is required to disclose the accounts only if there are any charges of fraud, misappropriation or conversion of assets or property of the joint family against him. If there is no proof of misappropriation, fraud or conversion against the Karta, the coparceners who follow the partition process cannot demand the disclosure of the past dealings of Karta with joint family property or assets. After the severance of status, the Karta must give the accounts of the expenditure and income in a manner similar to which a Trustee or agent has to render accounts. This implies that Karta has to report all the profits.

Conclusion

Karta in a Joint Hindu family holds an extraordinary position with reference to its understanding and complexity. The concept of Karta has its origin centuries back and it still works due to some functional elements. Every joint family should have a Karta to boost the cohesive aspect of such a family with reference to its dealings and ventures. Looking at the position of the Karta, it can be said that he has fewer liabilities and more powers. When it comes to determining the position of Karta, he holds a unique position. The decisions or statements given by the Karta are binding on the parties and they are bound to do it. Section 6 of the Hindu Succession Act, 1956 gives equal rights to the daughters as sons have. Hindu Succession Act, 1956 does not accept woman as a Karta, except two circumstances- if there is an absence of the male member of the family or in case there is a male member in the family but he is a minor. These two circumstances are also mentioned in the Ancient Hindu Law, Dharmasutras. The government should take some steps to raise the position of women in other personal laws.

References

• https://www.legalbites.in/karta-power-duties/
• http://www.legalservicesindia.com/article/1497/Karta-of-a-Family-/-Hindu-Law.html
• https://www.lawyersclubindia.com/articles/Concept-of-Karta-in-Joint-Hindu-Family-4678.asp
• https://www.lawctopus.com/academike/karta-powers-overview/
• http://www.legalserviceindia.com/articles/karta_hsa.htm
• http://www.shareyouressays.com/knowledge/10-general-powers-of-a-karta-of-hindu-joint-family/117738
• https://blog.ipleaders.in/karta-hindu-joint-family-powers-responsibilities/

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

The post Power and Position of a Karta under Hindu Law appeared first on iPleaders.

This article has been written by Neha Mallik, studying at Vivekananda Institute of Professional Studies, affiliated to Guru Gobind Singh Indraprastha University. This article talks about cross border demergers and addresses the question of whether cross border demergers are permitted with special reference to the order passed by National Company Law Tribunal in Sun Pharmaceutical Case. 

Introduction

Globalization has led to significant changes in the world economy. Today business deals and transactions are not restricted to the physical boundary but have reached the length and breadth of the world. Globalization and invasion of technology have changed the modus operandi of doing business and brought various amendments in the regulatory framework. Now businesses have widened from being country-specific to involving multiple jurisdiction to keep pace with recent developments.

With the incessant technological development and cut-throat competition to stand out in the market, the trend for mergers and acquisitions has become a global scenario. It provides greater access and scope to the companies in the international market. It also offers a wide range of support concerning financial and technological access. Cross-border mergers and acquisitions and amalgamations are allowed by the Companies Act, 2013, but laws on cross border demergers are still incoherent in India. In this article, we would study about Cross Border demergers and the challenges faced by Indian companies for having such transactions. We would also have a critical analysis of the recent case involving cross border demergers. Before diving deep into cross border demerger, we have to understand what is merger and acquisition and its legal and regulatory framework. 

General Concept of Mergers and Acquisitions

Merger and acquisition is a corporate strategy used for corporate restructuring, reorganization and realignment of businesses to raise capital. Though industries always say mergers and acquisitions together, both the terms are different. A merger is typically a marriage, wherein two or more companies combine together with the intention of drawing up synergies or perhaps tapping some advantages that they individually could not achieve,and they come together to form the same entity. For example.: JP Morgan has been merged with Chase to form JP Morgan Chase & Co. When it comes to acquisition, it is when one company acquires a stake, whether its a majority stake or minority stake or a complete takeover in the target company. E.g., Alibaba has acquired a small stake in Snapdeal.

Types of Mergers & Acquisitions 

The transaction involving M&A can be both domestic and cross border. Merger and acquisition taking place with the companies registered in the same country are called domestic M&A, on the other hand, cross border M&A takes place wherein a company registered in one country takes control over the assets and management of another company in another country. The domestic M&A is a simple process, but cross border M&A is a bit complex transaction as it involves many challenges in terms of legal or political frameworks and the social relationships between the countries. 

In a developing country like India, cross border M&A is considered as a corporate tool to raise Foreign Direct Investment (FDI) in the economy. Cross border M&A leads to numerous benefits not only to the company but to the country as well. Some of the reasons for cross border M&A include consumer coverage, access to the international market, optimum utilization of resources, financial and technological assistance and a lot more. It has been witnessed in the recent past that India is actively participating in cross border transactions for acquisitions and corporate restructuring. There is a constant amendment in the Indian regulatory framework to keep pace with the dynamics in the business world. 

Section 230-240 of the Companies Act, 2013, deals with the M&A involving inbound and outbound arrangements. Earlier, the Companies Act, 2013, only permitted the inbound merger, which means that only the foreign company is allowed to get merged with an Indian company and not vice versa. But with the amendment, Section 234 of the Act read with 25A, and Annexure B provides for both Inbound and outbound mergers but with the prior approval of Reserve Bank of India. Surprisingly, the Companies Act, 2013 talks about mergers, acquisitions, compromises and arrangements, but there is no mention of demergers. Let’s understand what cross border demerger is.

Cross Border Demerger under Indian Law

The term ‘demerger’ means to get separate. In the demerger of companies, there is a separation of a company or entity into two or more distinct companies or entities. The current Act only limits its scope to mergers involving the inbound and outbound transactions, but there is no mention of ‘demerger’ anywhere in the Act. 

Now the question arises here is whether cross border demerger is permitted or not? To address this question first, we need to analyze the provisions given in the Companies Act, 2013 relating to compromise, arrangements and amalgamation.

• Section 230 of the Act specifies the compromises and arrangements with creditors and members. 
• Further, Section 231 talks about the enforcement of compromises and arrangements ordered by the Tribunal. 
• Coming to Section 232, it talks about mergers and amalgamation of companies.
• Fast Track mergers of specified companies come under Section 233. Whereas sub-Section 12 of Section 233 specifically states that provision given in Section 233 would mutatis mutandis applied to specific companies.
• Moreover, Section 234 deals with mergers and amalgamations of Indian companies with foreign companies.

Furthermore, the exchange control regulation, i.e. Foreign Exchange Management Act,1999, permits inbound and outbound mergers. It is interesting to note that the draft of cross border merger regulations had included the term “demerger,” but there is no mention of the same in the final version of the regulation. 

If we interpret the provision given under Section 230, the word ‘compromise’ can be inferred as demerger. Still, there remains an iota of doubt that cross border demerger involving outbound and inbound demergers are permitted.

Inbound Cross Border Demerger

The merger wherein a company demerges into an Indian company which means that the resulting companies would be registered under The Companies Act, 2013, is called Inbound cross border demerger.

Outbound Cross Border Demerger

It occurs when a company registered in India demerges into a foreign company that would be registered outside India. In other words, the resulting companies would be foreign companies registered outside the jurisdiction of India.

It is not equivocal if the demerger involving inbound and outbound transactions are absolutely disallowed. In the recent order, the National Company Law Tribunal (NCLT) in the Ahmedabad bench addressed the query. Let us critically analyze the facts and the order passed by the NCLT. 

Sun Pharmaceuticals Case: Analysis

The National Company Law Tribunal passed an order on 19 December 2019, where it rejected an application made by Sun Pharmaceutical Industries for demerging of its two investment undertakings into two wholly-owned subsidiary companies, one registered in the Netherlands and the other in the United States of America. 

The above order is contradictory to the earlier order passed by the same bench on 31 October 2018. NCLT Ahmedabad had approved the application made before it by Sun Pharma involving inbound demerger. The NCLT allowed the demerger of the specified undertaking of Sun Pharma Global FZE Incorporated under the United Arab Emirates with Sun Pharma registered in India. Let us analyze the two orders with respect to Section 234 of Companies Act, 2013.

Inbound Demerger Order

In the Inbound Demerger Order, as expressed over, the NCLT needed to choose whether the demerger and transfer of Sun Pharma Global FZE, (which is a wholly-owned subsidiary of Sun Pharma) to Sun Pharmaceutical Industries Limited, could be allowed under Section 230 and 232 read with Section 234 of the Act. While settling on the issue, the NCLT needed to assess the complaint raised by the Regional Director that the provision in Section 234 of the Act just alludes to cross-border mergers and amalgamations and doesn’t refer to demergers. 

Nonetheless, the NCLT saw that the passable exchange of part of the undertaking under Section 232(1)(b) of the Act suggests a demerger because if we thoroughly read the provision,then we can observe that it states that transfer of part of undertaking is allowed, which is a transaction of demerger. Further, it noticed that Section 234(1) of the Act affirms that the given section shall be applied mutatis mutandis (to make necessary modifications without affecting the existing law) to the transaction of merger and amalgamation. Besides, the same transaction is allowed by the way that Rule 9 of the Foreign Exchange Management (Transfer or Issue of Security by a Person Resident Outside India) Regulations, 2017, that gives the provision for demerger of Indian organizations.

Outbound Demerger Order

While accepting the inbound demerger, presently, the enquiry emerged before NCLT, whether a demerger of two Indian undertakings into two overseas resulting companies, viz, Sun Pharma Netherlands and Sun Pharmaceutical USA, can be allowed under Section 230 and 232 read with Section 234 of the Act. It is imperative to note that both companies are wholly owned subsidiaries of Sun Pharmaceutical. 

According to the observation by NCLT, Section 234 of the Act includes words like merger and amalgamation. Unlike Section 230 and Section 232, there is no mention of ‘compromise’ and ‘arrangement’ in Section 234. The close and conjoint reading of this provision infers that any compromise or arrangement like a transaction involving demerger with a foreign company is not permitted by the Companies Act 2013. Additionally, rule 25A of the FEMA cross border regulation does not allow the transactions of demergers. 

Eventually, the NCLT construed that cross border demerger is strictly prohibited by FEMA Cross Border Regulation and the Companies Act, 2013. Given the fact that the draft regulation initially included the term demerger, it was concluded by the NCLT that had the cross border demerger been intended to be allowed; it would not be excluded from the final Cross Border Regulations. Hence NCLT rejected the application.

Criticism of the Sun Pharma Orders passed by Tribunal

• The conjoint reading of both the orders specifies that there are certain inconsistencies in judicial reasoning. Having said that, it is important to mention here that in the outbound demerger order, NCLT rejected the application only because Section 234 of the Act is silent on outbound demergers. 
• Secondly, earlier there was a prohibition on outbound merger or demerger as the companies involving such transactions were to necessarily be an Indian Company. However, such restriction was removed by the amendment in Section 234 of the Act. Now the transferee company should not be an Indian company. Further, It can be concluded from the above that removal of the prohibition has allowed cross border merger and demergers involving inbound and outbound transactions. Furthermore, the order of the NCLT has relied upon the deletion of the term ‘demerger’ from the final version of the Cross border Regulation. According to NCLT, such removal is deliberate, and the legislative intent is to disallow the inbound demergers. The order fails to effectively recognize that the expression demerger is included within the purview of cross border mergers.
• Thirdly there is a lack of logical clarity in both the orders. The inbound demerger is allowed, whereas the outbound demerger is not permitted. This is the breach of the legal continuum as both the transactions are of similar nature. 

Recommendation

• The Companies Act, 2013, has consistently been amended to keep pace with the dynamics of the business world. There is a lack of clarity in the provisions relating to cross border demergers.
• According to the rule of interpretation, the statute must be read literally. Still, if there is any absurdity or lack of clarity, the Court can make its purposive interpretation of the statute.
• In this case, the rationale behind the order is incomprehensible, which needs to be precise.
• The cross border transaction involving outbound and inbound transactions should be treated at par with each other to give more scope to mergers and acquisitions. 

Closing Remarks

It seems that the Tribunal had taken a narrow interpretation of the provisions relating to cross border demergers. Consequently, the progressive nature of the amendment in the provisions relating to cross border transactions gets hindered if the cross border mergers are prohibited. There is a need for comprehensive interpretations of existing laws to cater to the development of the economy. Till that time the companies have to take resort to the alternative methods of restructuring.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

The post Cross Border Demergers: Lack of Clarity? appeared first on iPleaders.

This article is written by Sneha Mahawar from Ramaiah Institute of Legal Studies. The article discusses the concept of Judgement and Decree along with Interest and Costs.

What is Judgement and Decree?

The word ‘judgement’ is derived after combining two words namely, judge and statement. It can also be termed as an act of judging. It is the conclusion or the result of judging. On the other hand, the term decree can be termed as the judicial decision in a litigated cause rendered by a Court of equity. It is the determination of a cause in a Court of admiralty or Court of probate. The Court, after the case has been heard, shall pronounce judgement, and on such judgement a decree shall follow. Section 33 of the Code of Civil Procedure describes the term ‘Judgement and Decree’ together.

Difference between Judgement and Decree

Judgement 

The term Judgement is defined in Section 2(9) of the Code of Civil Procedure, 1908. A judgement contains facts of the case, the issues involved, the evidence brought by the parties, finding on issues (based on evidence and arguments). Every judgement shall include a summary of the pleadings, issues, finding on each issue, ratio decidendi and the relief granted by the court. On a daily basis, numerous judgements are pronounced and various cases are disposed of. Judgements play a very important role in the working of our judicial system because they act as precedents for cases to come in the near future. A judge in the judgement pronounced, always states the reasons for such a decision.

Pronouncement of a judgement

The word pronouncement means to make an official public announcement. Pronouncement of a judgement means that after the hearing is completed i.e. after the Court has heard the pleadings of the parties, the judgement shall be announced by the Judges in an open Court, either at once or at some future day, after providing due notice to the parties or their learned counsels.

If a judgement is not pronounced immediately then it must be pronounced within 30 days from the date of the conclusion of hearing. However, sometimes it so happens that due to exceptional and some extraordinary reasons like a bank holiday, strike or some other situation it may be delivered within 60 days from the conclusion of the hearing. It is not mandatory for a judge to read out the whole judgement and it would be enough if only the final order is pronounced. The judge shall put the date on which the judgement was pronounced along with his signature. Rule 2 Order XX of Code of Civil Procedure, 1908 provides a judge with the right to pronounce the judgement which is already written but is not pronounced by his predecessor.

After the Amendment Act of 1976, the time limit was provided between the hearing of the arguments and the pronouncement of the judgement. Prior to this amendment no time limit was provided as such. Such a time limit was provided because there was indefinitely continuous imposition from all over India.

Copy of the judgement

Once the judgement is pronounced the copies of that particular judgement should be immediately made available to the parties on payment of costs as specified, by the party applying for such copy, of such charges as may be specified in the rules and orders made by the High Court (H.C.) Such a rule is specified in Order XX Rule 6-B of the Code of Civil Procedure, 1908.

Contents of the judgement 

According to Rule 4 Order XX of Code of Civil Procedure, 1908:

• Judgements of a Court of Small Causes are satisfactory if they contain the points for determination and the decision thereon.
• Judgments of other Courts shall contain:

1. Summary of the pleadings which is a concise statement of the case;
2. Issues which are the points for determination;
3. Findings on each issue and the decision thereon;
4. Ratio decidendi (reasons for such a decision); and
5. The remedy, which is the relief granted.

Alteration of a judgement

Once a judgement is dated and signed by the judge it can only be altered or amended if:

• There are arithmetical or clerical errors. (clerical errors refer to the errors made by clerks and arithmetical errors refer to errors made in numbers such as addition, subtraction, multiplication and division).
• There are errors due to accidental slips or omissions (these errors take place when some essential element is left unnoticed) (Section 152) on review (Section 114).

Decree 

The term decree is defined in Section 2(2) of Code of Civil Procedure, 1908. A decree always follows judgement and is based upon a judgement. It is divided into five types unlike judgement which is final in itself. A decree may be final or preliminary. It is a formal declaration or adjudication and is conclusive in nature. A decree is of three kinds namely, preliminary decree, final decree and partly preliminary & partly final. A decree may be delivered with an order. The decree contains the outcome of the suit and conclusively determines the rights of the parties with regard to the issues in dispute in the suit. After passing the decree, the suit stands disposed of since the rights of the parties are finally determined by the court.

Deemed Decree 

A decree shall be deemed to include the rejection of a plaint and any question within Section 144 of Code of Civil Procedure,1908 but shall not include:

• any such sentence(adjudication) from which it appears that an appeal lies as an appeal from an order, or
• any such order of discharge(dismissal) of default.    

Kinds of Decrees 

According to Section 2(2) of the Code of Civil Procedure,1908 decrees are divided into three categories:

Preliminary Decree

In general sense, the word preliminary means preparation for the main matter, initial, introductory, preparatory. In a legal sense, a preliminary decree is a decree where further proceedings have to take place before the suit can be completely disposed off. It decides the rights of the parties in respect to all or any of the matters of discussion but it does not completely dispose of the suit. In such a decree the rights and liabilities of the parties are stated leaving the actual result or decision to be worked out in future proceedings. A preliminary decree is passed in those cases where the proceedings are to be carried out in two different stages. The first stage is when the rights of the parties are adjudicated and the second stage is when those rights are implemented or executed.

Final Decree 

In general sense, the word ‘final’ means last, ultimate, conclusive or decisive. In legal sense, a final decree is a decree which completely disposes of the suit and settles all the questions in discussion between the parties and nothing is left further for deciding thereafter. It is only said to be final when such adjudication completely disposes of the suit.

Partly preliminary and partly final Decree

A decree is said to be partly preliminary and partly final when the court decides two questions by the same decree. For instance, if the court passes a decree in favour of one party along with a direction of inquiry for the other party, the former part of the decree is final while the latter part is a preliminary decree for which further proceedings have to take place. For example, in a suit of possession of a property with company ‘C’, if the court passes a decree of possession of the property in favour of the plaintiff and directs an enquiry into the company ‘C’, then the former part of the decree is final decree while the latter part is the preliminary decree.

The necessity of a Decree 

The Code of Civil Procedure requires the passing of a decree in all the suits. A decree is based upon judgement and it also follows a judgement which is the reason why it is an indispensable and essential requisite. The decree is indispensable or an absolute requisite. It is an essential part of the ultimate outcome of the suit. An appeal can be made against a decree and not against a judgement. If the decree is absent an appeal cannot be ‘put in motion’.

Contents of a Decree 

A decree always follows the judgement, coincide with it and contains:

• The suit’s number – Every suit has a particular number and it should be mentioned in the decree. 
• The names, description and registered addresses of the parties – Every decree shall have the names of all the parties of that particular suit, the proper description of the parties of the suit, and the registered addresses of all the parties of the suit.
• The particulars of the parties claims or defence – Every decree shall contain the details of the claims and the defences the parties are claiming as an outcome of the said suit.
• The relief or the remedy granted to the aggrieved party – The decree should in particular mention about the relief granted to the particular party as a remedy and not a reward.
• The total amount of cost incurred in the suit-

1. by whom; or
2. out of what property; and
3. in what portions are they paid or are to be paid.

• The judgement’s date of pronouncement or delivery date of the judgement – The decree should mention the date on which the judgement was delivered followed by the decree.
• The judge’s signature on the decree – The judge’s signature is an essential and indispensable element of any decree. The signature of the judge delivering the judgement is an essential requisite.

Drawing up of a Decree 

Rule 6A Order XX of Code of Civil Procedure,1908 states that a decree shall be drawn within 15 days of the judgement. An appeal can be favoured or preferred without filing a copy of a decree if it is not drawn within 15 days of the judgement.

Decrees in Special cases

• In a lawsuit for the recovery or process of regaining or repossession of an immovable property(real estate), the decree shall include a description of such property so that it is sufficient to recognise or identify it.
• In a decree for movable property(personality), it must mention with the exact amount of money to be paid as an alternative in case the delivery is not made due to any reason either it be reasonable or appropriate.
• In a decree for payment of money, the Court may order that the payment of decretal amount i.e., the  amount mentioned in the decree shall be:

1. postponed which is delayed to a future date; or
2. made by installments with or without interests.

• In a suit for the recovery or process of regaining or repossession of immovable property, the Court may pass a decree-

1. for possession or gaining of property.
2. for past rents or mesne profits. (mesne profits are the profits of an estate received by a tenant in wrongful possession and recoverable by the landlord)
3. that is a final decree in respect of rent or mesne profits in accordance with results of such enquiry as mentioned.

• Rule 12A of the Code of Civil Procedure,1908 states that a decree for specific performance of a contract for sale or lease of an immovable property which can also be termed as real estate shall specify the exact period within which the amount of money or other sum is to be paid by the purchaser or lessee.
• Rule 13 of the Code of Civil Procedure,1908  states that the final decree shall be passed or delivered in accordance with the result of preliminary enquiry i.e., in a lawsuit for an account of any property either movable or immovable and for its due administration under the decree of Court, before passing a final decree, the court should pass a preliminary decree ordering accounts to be taken and enquiries to be made. 
• Rule 14 of the Code of Civil Procedure,1908 states a decree in a pre-emption suit, it is a suit where the displacement of a lower jurisdiction’s laws when they conflict with those of a higher jurisdiction, where the purchase money has not been paid into Court, shall specify a particular day on or before which the purchase money has to be paid and direct that on payment to Court, the defendant shall deliver property to the plaintiff, but if the payment is not made on a specific day, the lawsuit shall be dismissed with costs. In cases the Court has settled upon rival claims to pre-emption, the decree shall direct:

1. The claim or defence of each pre-emptor shall take effect proportionately if the claims decreed are equal in degree.
2. The claim or defence of the inferior pre-emptor will not take place till the superior pre-emptor fails to make the payment if the claims decreed are different in degree.

• In a lawsuit for dissolving of partnership or taking of partnership accounts, the Court can pass a preliminary decree before passing a final decree declaring the exact shares of all the parties, fixing of a particular day on which the partnership shall become dissolved and directing the accounts to be taken and other necessary actions to be done.
• In a lawsuit for accounts between a principal person and agent, the Court can pass a preliminary decree before passing a final decree directing the accounts that has to be taken and it can also provide special directions in regards to the mode of taking accounts as well.
• In a decree passed in a lawsuit for partition of property either movable or immovable or for separate possession of share in the property,

1. the decree shall declare the rights of several parties interested in that property but shall direct partition or separation to be made by collector and in other cases of immovable property in case the estate is assessed to the payment of revenue to the government.
2. the Court shall pass a preliminary decree declaring all the rights of the parties in estate and giving necessary directions and then the final decree is passed, if separation or partition cannot conveniently be made without further inquiry.

• A decree where the defendant has been allowed leave or start with a  counterclaim against the initial claim of the plaintiff shall state with what amount is due to the plaintiff and what amount is due to the defendant thereafter.

Interest

In the general aspect, interest refers to the price paid for obtaining or any price received for providing, money or goods in a credit transaction which is calculated as a fraction of the amount or value of what was borrowed initially. Interest is the fraction of amount of money which the Court asks the losing party to pay to the aggrieved party as the initial principal sum was not paid on time or the expenses incurred by the winning party in filing the documents and making necessary contracts and legal notices. In a legal sense, the term interest is defined in Section 34 of the Code of Civil Procedure, 1908.

Award of Interest 

The Court in the decree orders interest at a rate as the Court finds reasonable and appropriate to be paid on the principal sum declared from the date of filing of the lawsuit to the date of passing of the decree. The Court even allows further interest at a rate not exceeding six percent per annum on the principal sum for any period prior to the institution of the suit from the date of passing of the decree to the date of the payment or any such earlier date as the Court finds appropriate and reasonable.

Division of Interest

According to the Code of Civil Procedure, 1908, the division of interest is divided into three types:

Pre-lite

It is the amount of interest which is accrued or received prior to the institution of the suit on the principal sum. The rate of interest is on the discretion of the Court but if the parties have decided a rate of interest the Court shall consider it.

Pendente-lite

This interest is in addition to the pre-lite interest. This means it is the additional interest on the principal sum declared by the court from the date of filing of the suit to the date of passing the decree. The word means the pendency of a lawsuit in the Court of law.

Post-lite

This is the interest in addition to the pre-lite interest on principal sum and pendente-lite interest on the principal sum. It should be added on the discretion of the Court and should not exceed more than six percent per annum.

Rate of Interest 

The rate of interest awarded by the Court from the date of the lawsuit to date of the decree is 12% and is just, appropriate and reasonable and there is nothing to interfere. However, in post-lite interest that is from the date of decree till realisation of the amount, rate of interest can be charged upto 6% p.a. In pendente-lite, the rate of interest is fixed between 9%-12%

Recording of Reasons 

It is on the discretion of the judge to provide the rate of interest. If the judge does not provide for the rate of interest or reduces or increases the rate then he has to state the reason behind doing so in writing. The stating of the reasons by the judge for not providing interest is essential so that no judge can make any arbitrary decisions. The providing of reasons also depicts that the judge is fair with his decisions and is not biased towards any party. 

Costs

In the general sense, the term cost means to incur a charge or to require payment of a specified price. It simply means to calculate or estimate a price. The term cost is defined in Section 35 of the Code of Civil Procedure, 1908. The primary objective of ordering costs is to provide the litigant with the expenses incurred by him during the litigation. The provision of providing costs is on the discretion of the court that it may grant order for payment of costs to the winning party by the losing party subjected to pay for the expenses incurred during the litigation period or while drafting legal notices and contracts. This is a kind of remedy and it shall not be treated as a reward for the winning party and punishment for the losing party. 

Granting of costs is at the discretion of the Court and if the court refuses to grant cost then it should give reasons for doing so in writing. The discretion is based upon facts and circumstances of the case and not by chance.

Kinds of Costs

The Code of Civil Procedure provides for the following kinds of costs:

General costs 

The term general costs are defined in Section 35 of Code of Civil Procedure,1908. General costs are the cost which is incurred by the litigants and depends upon the Court’s discretion. The general rule is that the losing party pays the winning party costs granted by the court. It is the amount which is not treated as a reward for the winning party and a punishment for the losing party but as a remedy. The judge can even refuse to grant costs but for that, a reason has to be stated in writing.

Miscellaneous costs 

The term miscellaneous in the literal sense is used as something which is diverse in its characteristics and cannot be placed in any specific category. Miscellaneous costs are defined in Order XX A of the Code of Civil Procedure,1908. These costs are also known as Specific Costs. They are granted under special circumstances as mentioned in Rule1 of the Code of Civil Procedure,1908:

• Expenditure on notices required to be issued under the law by parties.
• Expenditure on notices not required to be issued under the law by parties.
• Expenditure incurred on typing, writing, printing, etc. on the pleadings.
• Charges paid by parties for inspection of documents.
• Expenditures on witnesses even though not summoned to the court.
• In case of appeals, expenses incurred by parties for obtaining any copies of the pleadings, judgement, decree, etc.

Compensatory costs

The term compensatory can be generally defined as to make up for something, or to do something to correct a previous act. It means providing compensation to the aggrieved party by the way of damages or rewards or as the Court deems fit. Compensatory costs are defined in Section 35A of the Code of Civil Procedure,1908. Compensatory costs are granted in the cases where the claims of the other party are false or vexatious. Such costs are granted under two conditions, namely, firstly, the claim must be false or vexatious. Secondly, objections must be made by the other party that the party making the claim or defence had knowledge of the fact that such claim was false or vexatious.

Costs for causing delay

These are the costs which the parties are liable to pay in case of default made on their part such as appearing late in the Court, not submitting the required documents on the specified time, not paying the costs on time for which further fine has been imposed. These are the costs which are paid due to carelessness on the part of the parties. Costs for causing delay are defined in Section 35B of the Code of Civil Procedure,1908. This section was introduced by the Amendment Act,1976. These are costs which are imposed for causing the delay. It states that where a party did not take a step which it should have under the code or obtained an adjournment as regards the same, he will have to pay such costs to the other party so as to reimburse him for attending Court on the designated date. Unless such costs are paid, the plaintiff shall not be allowed to proceed further in his suit, if she should have paid the costs and defendant shall not be allowed to proceed with the defence if he was liable to pay such costs. If however, the party is unable to pay the costs due to circumstances beyond his control, the court may extend the time. 

Conclusion

Hence, it could be said that judgement is a set of which decree is the subset. Interests and costs are the amount to be paid to the winning party as a remedy and not a reward. It is not a punishment for the losing party but just a remedy for winning party so that it could incur the expenses caused due to drafting of legal notices, contracts and all expenses during the litigation period for the purpose of litigation.

References

• https://lawtimesjournal.in/judgement-decree-order-cavet/
• http://www.aaptaxlaw.com/code-of-civil-procedure/order-xx-code-of-civil-procedure-rule-1-2-3-4-5-6-7-judgment-and-decree-rule-1-2-3-4-5-6-7-order-xx-of-cpc-1908-code-of-civil-procedure.html 
• http://www.aaptaxlaw.com/code-of-civil-procedure/section-34-35-35a-35b-code-of-civil-procedure-interest-costs-compensatory-costs-false-vexatious-claims-defenses-causing-delay-section-34-35-35a-35b-of-cpc-1908-code-of-civil-procedure.html
• http://www.shareyouressays.com/knowledge/legal-provisions-of-section-34-of-code-of-ci
• vil-procedure-1908-c-p-c-india-interest/114397
•  https://indiankanoon.org/doc/188778475/

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

The post Judgement and Decree under Code of Civil Procedure, 1908 appeared first on iPleaders.

This article has been written by Rutuparna Sahu from KIIT School of Law, Odisha. This article enlightens us about what kind of rights and liabilities a guardian holds and how a guardian can be removed from his guardianship.

Introduction

A flower blooms out of care and warmth into a fruit when nature takes it into its lap, similarly for every child born, the parents have an obligation to take proper care for the best interest of the child. This includes all the needs of the child including a nutritious diet, good quality education, medical assistance etc. All such needs and requirements in upbringing a child must be taken care of by the natural parents who are capable of handling the financial, mental and physical state of the child.

What is Guardianship?

Generally guardianship means to guide someone along with having full rights over that particular person. However, guardianship was never related to the Dharmashastra back then. It was the court which came up with the idea of initiation of guardianship during the British regime. And the rule was that a father is the natural guardian of a minor and in case of the father’s death then the mother automatically becomes the guardian to the child. And no other party is entitled to access the right of guardianship over any child but his own parents. Guardian is a person who is in charge of looking after the welfare and well being and even the property of the child if any. 

There are generally four types of guardians viz. natural guardian, guardian appointed by the will of a natural guardian which is also termed as testamentary guardian, a guardian appointed or declared by the Court, a person empowered to act as such by the order of the Court of Wards. 

Natural guardian

In Hindu law, the only people that can be considered as natural guardians are father, mother and husband. No doubt, father is the legitimate natural guardian of his children. A father cannot be deprived from the natural guardianship of his own child as mentioned in Section 19 of the Guardians and Wards Act, 1890. However, a mother is also a legitimate guardian of the child if in case the father of the child is dead or is unfit for taking the responsibility of the child. As per Section 6(a) of the Hindu Minority and Guardianship Act, a mother is entitled to the custody of a child below 5 years unless there is a further need for the welfare of the child because generally a child below 5 years needs proper care and attention which can be provided by a mother only. 

Who is a minor?

We all know minor denotes a person who has not yet attained the age of 18 years. The Hindu Minority and Guardianship Act, 1956 speaks under Section 4(a) that a minor is a person who has not completed the age of eighteen years of age. Basically it says that a person below eighteen year is still an immature child who needs attention and caring. As a guardian it is their duty to look after a minor child until he is able to look after himself and a person is considered to have reached upto that level of mental stability after crossing eighteen years of age.

Removal of Guardian 

Section 13 of the Hindu Minorities and Guardianship Act, 1956 talks about the welfare of the child and hence gives a right to the court to terminate the guardianship of any person if the appointment is not made for the welfare of the child which is of paramount consideration.

The situations where a person fails to nurture the child with his legal guardianship is when the guardian has witnessed some unfortunate circumstances or when the guardianship was not for the welfare of the child under Section 13 of the Hindu Minorities and Guardianship Act, 1956. 

The factors which the judge considers before taking guardianship from a parent are

1. When the guardian of a child causes strain or any kind of harm to the child then terminating the guardianship is in the best interest of the child;
2. When the guardian is not able to keep the child in a stable place ensuring mental growth;
3. When the guardian doesn’t have a fixed source of income to support the education or provide sufficient means for the growth of the child;
4. Section 19(b) of the Guardians and Wards Act, 1890 includes the phrase “unfit” for the guardians who are found not capable of being a guardian in the eyes of the court, or 
5. Once the child is of the age of 12 years, the decision of the child to stay with either of the parents is taken into consideration by the Court.

The factors through which the guardianship of a child terminates are

1. When the child attains the age of 18 years and can maintain himself, he is free to maintain himself however he wants.
2. On adoption of a child the adoptive parents are handed over the guardianship rights rather than the biological parents.
3. When the child dies before attaining the age of 18 years. 
4. On a child attaining 12 years of age, if the child requires no attention then he can give his consents to end the guardianship.
5. If the minor decides to get married, the husband of the girl child becomes her guardian and her parent’s guardianship gets terminated. 
6. When the guardian decides to resign from the guardianship of a child, he may produce a notice to other relatives and should go through a Court hearing in order to enable the Court to provide a suitable alternative guardian to the child.

Grounds for disqualification of guardianship

There are certain grounds which are to be looked after before disqualification of guardianship and they are as follows:

• When the guardian renounces the world to give his belief in the world and lead a holy life, this order of life is known as ‘Sanyas’. It removes a person from his position of guardianship.
• When a person who is a guardian ceases to be a Hindu and gets converted into another religion, he loses his guardianship rights.
• In guardianship, the interest of the child is taken into utmost consideration and any act which may harm the interest or may cause injury to the property of the child will lead to a disqualification.
• The guardian is bound by the duties of upholding the priority of safeguarding the interest of the child.

Procedure for ending of guardianship

• Certain forms which are required to initiate the process are as follows:

1. Petition for termination of the guardianship
2. Notice of hearing on custody of the child
3. The court order of termination of all guardianship rights

• Court facilitators review all the forms and confirm the completion of all the formalities to ensure a hassle free procedure.
• The required forms should be served to the courts along with three copies and the payment of the court fee or filing fee.
• A notice is to be given 15 days prior to the hearing of end of guardianship to all the relatives and the people who were notified about the appointment of the guardian. 

With the authorization of guardianship there are certain rights and liabilities attached to the same.

Rights of a guardian

• Under Section 33 of the Hindu Minority and Guardianship Act the guardian of the ward in charge shall be entitled to such allowances for the care and pains in the execution of his duties.
• Under Section 13 of the Hindu Minority and Guardianship Act, a guardian must look after the health and education of the ward.
• Under Section 33A, the execution of the will by the guardian to his ward shall not take place without the guardian.
• Under Section 13, the property of the ward is to be handled carefully as a man of ordinary prudence would deal with.

Liabilities of a guardian

With reasonable care and caution on the making of decisions and doing the things on behalf of the ward, the guardian is personally liable under certain circumstances:

1. The guardian may be liable for the damage caused to the property of the ward owned by the ward if any, by the guardian’s actions.
2. The guardian is not liable on behalf of his or her ward’s actions in a representative capacity.
3. The guardian is responsible for the ward’s debt where there is negligence on the part of the guardian which is the reason for the debt.
4. The guardian may be held liable if they have failed in taking reasonable steps for proper care and protection of the ward’s property or finances.

When a guardian is given partial rights over the property of his minor ward, but is not entitled to act as a collector, he has certain liabilities that are to be complied with :

1. If the court requires any kind of mortgage then the guardian has to provide him such an amount as nearly as maybe in a prescribed form which would benefit the judge for the time being, if at all the guardian is found accountable with respect to the property of the ward.
2. If the court so requires any detail about the property then the guardian who is in a partial relation with his ward’s property has to furnish all the property related details such as the statement of any immovable property, money and other movable property of the ward which the guardian has received on behalf of his ward along with the debts due on that date toor from the ward. And all this statement is to be furnished within 6 months of the court’s declaration or the date as prescribed.
3. A guardian is liable to comply with all the court orders until he is in charge of his ward’s property. So if at all court requires, the guardian has to exhibit all the accounts with respect to the ward’s property and in such forms time to time as prescribed by the court.
4. The guardian has to pay all the due balances from the accounts of the property that are ought to be paid if at all the court requires. The payment must be done to the court within the time period prescribed by the court.
5. A guardian not only has to take the responsibility of the ward but of such persons who are dependent on him as well. The guardian has to deal with all the basics of a minor such as his maintenance, education and advancement, etc. The guardian has to make sure that the ward and the persons related are not deprived of any ceremonial celebrations.
6. Guardian can apply for a portion of the income from the property of his ward as the court may direct from time to time. Besides that the court can ask for part of the property or the whole of it. 

These above mentioned criterias need to be fulfilled on the court’s order. 

Thirty Hoshie Dolikuka Vs. Hoshima Shavaksha Dolikuka B, 1982  

According to the facts of the case, the minor was an 11 year old girl and both of the parents were working. The girl used to live with her father but the mother alleged that her father was manipulating their daughter which is why she was having a bad state of mind. The High Court held that the daughter’s custody should stay with her father as she already was with her father and her mother would not be able to give her more attention. But the Supreme Court intervened in the matter and upheld that, no matter what, even if a woman is working, that is not a matter of concern because a mother can always handle a child better until he or she turns into a major. The Court also held that the custody of the daughter should stay with the mother. 

Conclusion 

After a complete study on the Hindu Minority and Guardianship Act, 1956 we can say that, the Act believes in safeguarding the minors from being abandoned by their parents and also makes sure that no minor is deprived of a guardian or guidance unless the minor is capable of maintaining himself or herself. A mere guidance would make a lot of difference because most of the time minors are into trouble because of lack of guidance by a guardian. 

References

http://www.ijtr.nic.in/family%20matters/Guardians%20and%20Wards%20Act,%201890.pdf

http://legislative.gov.in/sites/default/files/A1956-32_0.pdf

https://indiankanoon.org/doc/1304490/

The post Rights, Liabilities and Removal of a Guardian under the Hindu Minority and Guardianship Act, 1956 appeared first on iPleaders.

This article has been written by Sushant Biswakarma, a student from Symbiosis Law School, NOIDA. This article is an in-depth research analysis of the Hindu Adoption & Maintenance Act, 1956.

Introduction

Hindu Adoption and Maintenance Act deals with the legal procedure of adoption of children by Hindu and other legal obligations that follow, including maintenance of children, wife, and in-laws. In the first part of this article, I will talk about adoption for Hindus and the second part shall deal with maintenance.

Applicability of Hindu Adoption and Maintenance Act

As per the act – a Hindu does not merely mean a person that follows Hinduism but also includes other sub-religions of Hinduism, such as- Buddhists, Jains, Sikhs, Virashaiva, Lingayat, or members Arya Samaj. Followers of Brahmo and Prarthana are also included in the definition of Hindu.

As a matter of fact, the Hindu Adoption and Maintenance Act covers everyone residing in India who is not a Christian, Muslim, Parsi or Jew.

The Act sheds light upon: 

• What a valid adoption is? 
• Who can adopt children?
• Procedure to adopt children along with other duties and obligations that occur after adoption.

What is Adoption?

The Act has no description of the word “Adoption” per se, but it is a Hindu law derived from uncodified Hindu laws of Dharamsastra, specifically Manusmriti.

Adoption has been described in Manusmriti as ‘taking someone else’s son and raising him as one’s own’. 

Hindu Adoption and Maintenance Act has made the definition of ‘adoption’ much wider by using the word ‘child’ instead of ‘son’. Child includes both a girl and a boy child, and not merely a son.

With the change in society over time a codified and uniform legislation was required to serve the democracy, so, no adoption can be made without the procedure mentioned in this act. If any adoption is made neglecting this act, the adoption shall be rendered to be void.

Adoption will be valid only if it has been made in compliance with this Act.

Who can Adopt a child?

In order to adopt a child, the person must be a Hindu and have the capacity to adopt it. A Hindu male who wishes to adopt a child must meet the requirements provided in Section 7 of the act and a Hindu female wanting to adopt shall abide by Section 8 of the same.

The capacity of a Hindu male to adopt.

Section 7 states that a male Hindu who is willing to adopt a child must fulfil the following conditions:

• Attained the age of majority; and
• Be of sound mind.
• Must have a wife that is alive whose consent is absolutely necessary. 
• It can be overlooked if the wife is incapable of giving consent due to insanity or other reasons.
• If a person has multiple wives, the consent of all the wives is necessary for adoption.

In Bhola & ors v. Ramlal & ors, the plaintiff had two wives and the validity of adoption was in question as he had not taken the consent of one of his wives before adopting. 

It was the contention of the plaintiff that his wife had absconded and could be considered as good as dead.

The High Court of Madras observed that the wife of the plaintiff had run away but could not be considered dead unless she had not been heard from for at least seven years. It was held that as long as the wives are alive, the consent of each wife is necessary for a valid adoption.

If the wife has converted to some other religion or renounced the world, her consent isn’t necessary for adoption. But, the existence of a living wife is an essential requirement for a Hindu male to adopt children.

The capacity of a Hindu female to adopt.

Section 8 of the act states that a Hindu Female willing to adopt a child must: 

• Have attained the age of minority;
• Be of sound mind;
• Be either a widow; 
• Divorced, or 
• Unmarried in order to adopt.

If she has a husband who is alive, she will not have the capacity to adopt a child.

Who can give a child for adoption?

No one but the parents and guardian of the child can give them up for adoption as per Section 9 of the Hindu Adoption and Maintenance Act. 

As per the act:

• Only the biological father of a child has the authority to give him up for adoption;
• The consent of the child’s biological mother is necessary.

A mother will have the capacity to give the child up for adoption if:

• The father is either dead;
• Of unsound mind; 
• Has renounced the world; or 
• Converted to some other religion.

The section clearly mentions that the father and mother mean biological parents and not adoptive parents. Adoptive father or mother can not give the child up further for adoption.

Click Here

Can the guardian give a child for adoption?

A guardian as described in Section 9 of the act means a person appointed by the parents of a child or the court for taking care of the child and his/her property. If the child’s biological parents are either dead, have renounced the world, have lost their mind or have abandoned him – he can be given up for adoption by the guardian. 

But in order for a guardian to give up a child for adoption, he must have the permission of the court for doing so. The court for giving such permission must be satisfied that:

1. The adoption is for the welfare of the child;
2. No payment has been made in any form in exchange for the child.

When is adoption valid?

Under the Hindu law of adoption, only a Hindu can adopt a child if he/she abides by the essentials prescribed in Section 6 of the act:

• The adoptive parent/s have the capacity and rights to adopt;
• The person/s giving up the child for adoption has the capacity to do so;
• The person being adopted has the capacity to be taken in adoption;
• The adoption is made in compliance with the act.

Only upon meeting these requirements shall adoption be valid.

Necessary conditions to be fulfilled for:

The Hindu Adoption and Maintenance Act prescribes a set of rules for a valid adoption, which must be complied with. Such as:

Adoption of a son

Section 11(i) of the act states that if a Hindu male or female desires to adopt a son, they must not have a living son, grandson, or even a great-grandson at the time of adoption.

It is irrelevant whether the son is legitimate, illegitimate, or adoptive. They should not already have a son who is living.

Adoption of a daughter

Similar to the conditions of adopting a son – Section 11(ii) states that one wishing to adopt a daughter must not have a living daughter or a granddaughter from their son at the time of the adoption. 

It is immaterial whether the daughter or granddaughter is legitimate, illegitimate, or adoptive.

Adoption of a female child by a male

A Hindu male willing to adopt a girl child must have the capacity to adopt a child as prescribed in Section 7 of the act, and Section 11(iii) states that he must be at least 21 years older than the girl child that is to be adopted.

Adoption of a male child by a female

If a Hindu female wants to adopt a male child she must first meet the requirements prescribed in Section 8 of the act and have the capacity to adopt a child.

Also, she has to be at least 21 years older than the child she wishes to adopt.

Other conditions

When adopting a child a person must comply with some additional conditions along with all the aforementioned conditions. 

These additional conditions are basic and are very important for the welfare of the child.

• Section 11(v) of the act says that the same child can not be adopted by multiple people at the same time.
• Section 11(vi) states that a child that one wants to adopt must have been given up for adoption as per the guidelines of this act, by their biological parents or guardian. 
• The Section further states that the child shall be given up for adoption with the intention to transfer him/her from their biological family to the adoptive one.
• In the case of an abandoned child or whose parents are unknown, the intention must be to transfer him/her from the place or family that they have been brought up to their adoptive family.

Effects of adoption

Adoption will completely change the life of a child in many ways. He becomes a part of a new family and will have rights in the property as well. 

Section 12 of the act states: 

• When a child has been adopted,
  – They shall be considered as the child of their adoptive parents for all purposes.
  – The adoptive parents shall have all the parental obligations and rights.
  – The child shall have all the rights and obligations of a son/daughter. 

However, there are some conditions that the child must abide by after he has been adopted, such as:

• He/she must not have an incestuous relationship with anyone from their biological family, and should not marry anyone from their birth family. The rules of the Hindu Marriage Act, 1955 regarding ‘sapinda relation’ shall be applicable to them towards their birth family.
• If the child had any property before the adoption, it shall continue to be in their possession after. However, such property may bring some obligations over him and he shall be liable to all those obligations, including having to maintain his biological family if required.
• The adopted child shall not deprive any member of his birth family of any property that he held before the adoption.

It is important for the adoption to be valid to have any effect at all. In Sri Chandra Nath Sadhu & ors v. The State of West Bengal & ors, the High Court of Calcutta stated that a void adoption will not create any rights in the adoptive family for anyone that could have been obtained from a valid adoption, nor any existing rights will end in the child’s biological family

Rights of adoptive parents to dispose of their property 

If adoptive parents wish to dispose of their properties by transfer by gift or will, they are free to do so and adoption does not stop them. Unless there is an existing agreement that states the contrary.

Who will be the adoptive mother in case of adoption by a male?

We have already discussed that a Hindu male who has a living wife must have her consent for adopting a child. 

• Section 14(1) of the act states that in such cases the wife shall be deemed to be the mother of the adopted child.
• If a male who adopted the child has multiple wives, the senior-most wife shall be considered to be the mother of the adopted child while his other wives shall have the status of stepmothers as stated in Section 14(2) of the act.
• Section 14(3) of the act states that if a child has been adopted by a bachelor or a widower, the woman he marries if he ever gets married will become the stepmother of the child.
• A widow or bachelorette who adopts a child will be their mother and in case she gets married to anyone, the man will be deemed to be the child’s stepfather as per Section 14(4) of the act.

Can a valid adoption be cancelled?

• When a person has opted for adoption and it has been validly made, there is no way that they can cancel the adoption. 
• Section 15 of the act clearly states that neither the parents can cancel a valid adoption, nor the child has any right to renounce their adoption and return to their biological family.
• Once a valid adoption is made, there is no going back. It is final.

Prohibition of payments

With the increasing child trafficking around the world, the prohibition of payments during an adoption is one of the most important rules in order to ensure that the child is not being sold.

It is stated in Section 17 of the act that no payment can be received or made during an adoption by anyone. No one shall receive any reward in monetary or non-monetary ways for adopting a child or giving them up for adoption.

If one is caught making or receiving payment in any form during the process of adoption, they shall be liable for imprisonment for up to 6 months and/or fine.

Maintenance

Now that we are done with Hindu laws of adoption in all its entirety, let’s carry on with Chapter 3 of the act that deals with maintenance.

What is maintenance?

• Maintenance has been described in the definition clause of the act i.e, Section 3(b) as something that can provide for food, clothing, shelter, education and medical expenses. 
• Basically, it is financial support paid by a husband or a father that covers all basic necessities of life.
• The section also says that if the maintenance is to be provided to an unmarried daughter, it shall also cover all the reasonable expenses required in her day to day life till the day she gets married.

Maintenance of wife

The wife must be paid maintenance after divorce until she gets married again. The idea behind this is to let her live with her lifestyle and comfort that existed during her marriage, and it must be paid until she gets remarried.

There is no minimum or the maximum amount fixed for maintenance, it is to be decided by the court according to the earning capacity of the husband. 

If the husband is well to do then the maintenance shall be high in order to match the rich lifestyle the wife was used to during the marriage. 

If that is not the case, it must be a reasonable enough amount that can cover all her reasonable expenses.

When is the wife entitled to maintenance?

Section 18(2) of the Hindu Adoption and Maintenance Act provides a list stating when a wife will be entitled to maintenance. As per the Section, a wife can live separately from her husband and still have the right to claim maintenance in the following situations:

• The husband has deserted his wife by abandoning her without any reasonable cause and without seeking her consent or deliberately ignoring her wish.
• The wife has been subject to cruelty during her marriage and considers living with her husband to be endangering her life.
• If the husband is suffering from an incurable and contagious disease.
• The husband has another wife or a mistress in the same house or he lives with another wife or mistress at some other place.
• The husband has converted to some other religion or some other reasonable grounds that can justify why the wife should live separately.

Maintenance can be paid every month or in a lump sum. Even when the wife has some source of income and some property but needs some financial aid for necessary expenses such as medical expenses. It is the obligation of the husband to pay maintenance for such expenses if required. 

The same was held by the Hon’ble Supreme Court in the case of Smt. Anita Thaukral v. Shri Satbir Singh Tkukral.

In the aforementioned case, the wife had some source of income and also had an apartment in a good location but, she was unable to make enough money to cover up her medical expenses.

The court held that:

• The wife will use one of the debit cards of the husband, 
• with the undertaking that she will only withdraw a reasonable amount as may be necessary for her medical expenses.

When maintenance is not to be paid to a wife?

A wife must be maintained after a divorce in order to financially support her. But, there are some exceptions to this rule.

Section 18(3) of the act states that a wife will not be entitled to maintenance:

• If a Hindu wife has committed adultery or has any other illicit sexual relationship with anyone else, she shall not be entitled to maintenance.
• Also, if she no longer remains a Hindu and gets converted to some other religion that does not fall under the spectrum of Hinduism.

Also, in the case of Abbayolla M. Subba Reddy v. Padmamma:

• The defendant had two living wives,
• The second wife was claiming maintenance,
• A bigamous marriage is illegal under Hindu Laws,
• The validity of the marriage of the defendant with his second wife was in question.

The High Court of Andhra Pradesh held that:

• If a man has two wives, the marriage with a second wife will be void ab initio as Hindu laws prohibit bigamous marriage and the parties never actually become husband and wife. 
• Therefore, the second wife will have no entitlement to any kind of maintenance as the marriage is void ab initio.

Maintenance of widowed daughters-in-law

A husband is liable to pay maintenance to his wife after they get divorced. However, if the husband is dead it is the obligation of his father to pay maintenance to his daughter-in-law.

Section 19 of the Hindu Adoption and Maintenance Act states the same, but the father-in-law shall only be liable to pay maintenance if:

• His daughter-in-law has no sources of income;
• She has no property to sustain herself on her own;
• If she has some property, it is insufficient to meet her basic expenses.

In case she has no property of her own and any property of her husband, parents or children are not fetching her any maintenance.

The second clause of Section 19 also states: 

That a father-in-law shall not be liable to pay any maintenance if:

• He is not able to do so from any coparcenary property in his possession; 
• The daughter-in-law has no share in that property, and such obligation will end if she gets remarried.

Maintenance of children and aged parents

People who cannot earn money for themselves due to reasonable grounds need to be given maintenance in order to meet their basic necessities. Such people can include children and old people.

Section 20 of the act states: 

• A Hindu male or female is obligated to maintain their children whether they are legitimate or illegitimate.
• Children shall claim for maintenance from their parents as long as they are minor. 
• An unmarried daughter shall be entitled to maintenance even after attaining the age of majority, till the day she gets married.

The section further prescribes that: 

• Parents who are old or have physical or mental weakness need to be maintained if they are not able to maintain themselves. 
• A childless stepmother will also be considered a ‘parent’ in the context of this section.

In the case of Mst. Samu Bai & anr v. Shahji Magan Lal, the High Court of Andhra Pradesh held that:

The maintenance to aged and infirm parents must only be provided if the parents have no means to sustain themselves, or are unable to maintain themselves out of their own property or earnings. So, we can infer that if the old parents have enough means to maintain themselves, the obligation of children to maintain them can be relaxed.

Maintenance of dependants

Dependents of a deceased must be maintained if they do not have the capacity to do so by themselves. Section 21 of the act defines dependents and Section 22 states that such persons shall be entitled to maintenance.

Who are dependents?

Dependent is someone who relies on parents, brother or some other relative for sustaining themselves.

Section 21 of the act says that in the context of this act dependents refer to the following relatives of the deceased:

• A father.
• A mother.
• A widow who has not remarried.
• A minor son, grandson, or great-grandson with predeceased father and grandfather. Provided he has not been able to obtain maintenance from any other source.
• Unmarried daughter, granddaughter, or great-granddaughter with predeceased father and grandfather. Provided she has not been able to obtain maintenance from any other source.
• A widowed daughter who has not been able to obtain maintenance from the estate of her husband, children, or from her in-laws.
• Widowed daughter-in-law, or widowed granddaughter-in-law, who has not been able to obtain maintenance from any other sources.
• An illegitimate minor son or illegitimate unmarried daughter.

Do dependents need to be maintained?

Now that we have already seen who dependents are and why they need maintenance, let us proceed further and see how to maintain them and who is obligated to maintain them.

Section 22 of the act states:

• That dependents of a deceased Hindu must be maintained by his heirs with the aid of the estate that they inherited from the deceased.
• When the dependents have not been left with any share in the property or estate by way of will or succession, they are still entitled to be maintained by whoever takes over the estate.
• If multiple persons have taken over the property of the deceased, each one of them will be liable to maintain the dependents. 
• The amount of maintenance to be paid will be divided among them depending on the value of the share they hold in that property.
• In case a dependent has obtained some part of share in the property of the deceased, they will not be liable to maintain other dependents. 
• Others who have taken over the property will still have to maintain other dependents but the dependent holding a share shall be excluded and maintenance will now be paid from the remaining property.

Amount of Maintenance

There is no fixed amount for maintenance that shall be paid. It is at the discretion of the court to determine the amount of maintenance. 

Section 23 of the act states that while deciding the amount of maintenance to be awarded to a wife, children, or old and infirm parents – the court must do so considering the following:

• Status of parties and their current position;
• The claims of the parties within reasonable limits;
• If the claimant living separately have justified grounds in doing do;
• All sources of income of the claimant and the value of their property;
• The number of people that are entitled to be maintained.

Section 23(3) further simplifies the process of deciding the amount of maintenance payable to other dependents. It says that the amount of payment to be made should be with regard to:

• The net value of the deceased’s property after clearing off all his debts;
• Will of the deceased if any;
• Degree of the relationship between the claimant and the deceased and their past relationship;
• What the dependents want within reasonable limits;
• All sources of income of the dependent and the total value of all their properties;
• The number of dependents that can be entitled to maintenance.

Alteration of the amount due to change in circumstances

The amount of maintenance to be paid can be decided by the court or by an agreement between the parties. 

Maintenance is paid to provide aids for the basic needs of everyday life in case a person does not have the source or ability to provide for themselves. 

Section 25 of the act states that the amount of maintenance may be altered with the change in circumstances. 

But, the section is vague. It does not say on what changes in circumstances can the alteration be sought and how the alteration can be done.

In the case of Binda Prasad Singh v. Mundrika Devi, the High Court of Patna observed that there was no set procedure mentioned in Section 25 as to how the amount can be altered. 

The court stated that:

• The amount of maintenance is fixed either by an agreement or by way of a decree. 
• The only way to alter an agreement is by way of another agreement, and the decree can be altered by amendment of degree.
• So, another suit must be filed for altering the amount of maintenance and a new decree that supersedes the older one must be granted if the court thinks fit.

The claimant of Maintenance should be a Hindu

The Hindu Adoption and Maintenance Act has been legislated for the Hindus and has the power and authority to govern only people that belong to the Hindu religion. 

If any of the party is not a Hindu or has ceased to be one, they cannot claim maintenance as per this act. 

Section 24 of the Act says:

• No one will be entitled to claim maintenance under the Hindu Adoption and Maintenance Act if they have ceased to be a Hindu by converting themselves to some other religion.

Can maintenance be a charge?

The Hindu Adoption and Maintenance Act has no per se definition of “Charge”.

However, we can refer to Section 100 of The Transfer of Property Act, 1882, wherein charge has been defined as:

• Making immovable property security for payment of money to a person. Such a transaction will not be considered as a mortgage but will be said to have a charge on the property.

Section 27 of the Hindu Adoption and Maintenance Act states that:

• A dependent’s claim for maintenance must not be a charge on the deceased’s estate unless otherwise provided in a will of the deceased or an agreement between the deceased and the dependent.

In the case of Kare More Sharabanna Rudrappa & ors. v. Basamma & ors, it was held that: 

• A person’s wife and children who are entitled to be maintained out of his property must be paid maintenance by making a charge over his property that he possesses, and 
• Out of those properties that have been transferred gratuitously in order to avoid responsibilities.

In the case of Gangubai Bhagwan Kolhe v. Bhagwan Bandu Kolhe, it was held that:

• If a wife is entitled to maintenance she can recover it from her husband’s estate even after his death.
• It was further held that if the husband’s estate is enough to maintain herself then a charge can not be made over that property, but if it is not enough, then it is necessary to keep a charge in order to recover her maintenance.

As judicial precedent has the power to supersede the legislation, maintenance can be a charge with or without any agreement or will of the deceased. 

Debts to have priority

If there is a charge on the estate of the deceased, the money must first be used to clear out all the debts that are payable by the deceased, as per Section 26 of the Hindu Adoption and Maintenance Act. Under Hindu law payment of one’s debts is considered essential for the salvation of their soul and so one’s duty to pay their debts back has a religious connotation.

In the case of Kripal Singh v. Balwant Singh, it was held by the court that such debts shall be binding on the son which is not: 

• Immoral, 
• Illegal,
• Opposed to public policy, or 
• Agreed upon due to a reckless borrowing of money for no reasonable grounds or for deliberate waste.

It is the religious, moral, and legal duty of the dependents to pay off the debts of the deceased before using the money for maintaining themselves.

Effect of transfer of property on rights to maintenance

A dependent who is entitled to receive maintenance from a property or an estate and the very estate gets transferred, it becomes the obligation of the transferee to maintain the dependent if the transferee has received a notice regarding that right or if the transfer is without any reasonable grounds.

Section 28 of the Hindu Adoption and Maintenance Act states that:

• The transferee has to maintain the dependent out of the property he received if he has the notice of the right or the transfer is gratuitous.

This idea flows from Section 39 of the Transfer of Property Act, 1882 which says that:

• If a third person is entitled to be maintained from the profit made out of immovable property and such property is transferred, the transferee will be liable for the payment of such maintenance if there was a notice or if the transfer is gratuitous. 
• But, if the property was transferred for consideration and notice was not provided regarding the maintenance then the transferee will not be liable to make any payments for maintenance.
• The maintenance can only be recovered from the property transferred by the person who was originally liable to pay maintenance and cannot be recovered from any other property that the transferee holds.

This act is one of the most important acts that protect the rights of children during the course of adoption. It protects women, children, old & infirm from living on the streets and starving to death. It ensures they are maintained by someone and the judicial pronouncements have further strengthened the act in order to make our rights stronger and sections much clearer.

References

Cases

• Sardar Kirpal Singh v. Sardar Balwant Singh  (1913) 15 BOMLR 79
• Gangubai Bhagwan Kolhe v. Bhagwan Bandu Kolhe  2007 (3) MhLj 223
• Kare More Sharabanna Rudrappa & ors. v. Basamma & ors AIR 1962 Kant 207
• Binda Prasad Singh v. Mundrika Devi  AIR 1968 Pat 196
• Mst. Samu Bai & anr v. Shahji Magan Lal AIR 1961 Raj 207
• Abbayolla M. Subba Reddy v. Padmamma  1998 (5) ALD 465
• Anita Thaukral v. Shri Satbir Singh Tkukral  (Citation not available)
• Sri Chandra Nath Sadhu & ors v. The State of West Bengal & ors (2003) 3 CALLT 1 HC
• Bhola & ors v. Ramlal & ors  AIR 1989 MP 198

Bare Acts

• The Hindu Adoption and Maintenance Act, 1956
• The Hindu Marriage Act, 1955
• The Transfer of Property Act, 1882

Books

• Dr Saxena. Poonam, Family Law Lectures, ed. 3, LexisNexis, 2011.

Online Sources

• https://www.toppr.com/guides/legal-aptitude/family-law-II/the-hindu-adoption-and-maintenance-act-1956/
• https://www.indiafilings.com/learn/hindu-adoptions-and-maintenance-act/
• http://www.legalserviceindia.com/articles/hmcp_adopt.htm
• http://www.legalservicesindia.com/article/2211/Right-of-Hindu-Wife-To-Maintenance-Under-Hindu-Adoption-And-Maintenance-Act.html
• https://www.lawzgrid.com/legal-blog/Essentials-of-Adoption-under-Hindu-Adoption-and-Maintenance-Act-1956
• https://www.latestlaws.com/articles/all-about-the-hindu-adoptions-and-maintenance-act1956-by-akanksha-yadav/

The post All you need to know about Adoption and Maintenance under Hindu Laws appeared first on iPleaders.

This article is written by Arijit Mishra, from KIIT School of Law, Odisha. This article talks about the top cases under copyright in 2019.

Introduction

The word copyright means “right to work” where the creator or the authorised person has the right to produce the work. It is a legal right possessed by the owner under Intellectual Property. Where with the help of mental or intellectual ability, a person creates a unique product, that is considered as original. Those unique products include music, lyrics, literature, graphic designs, films etc.. Copyright acts as a safeguard to protect an original work from duplicated. Once a creator registers his product under copyright, he can file a suit against anyone who copies his work. This concept helps the artists and creators to work without fear and create original products where there is no subject of plagiarism by other people. The copyright holder has the complete right and control over adaption or reproduction of the work. After the death of the innovator, the copyrights last for upto 60 years. 

Top cases on Copyright in 2019

Sanjeev Pillai Vs. Vennu Kurnapalli and Anr 

Facts

‘Mamankan’ is a festival which is held once every 12 years on the bank of the Bharathpuzha river in Kerala. The appellant Sanjeev Pillai who was a scriptwriter as well as a director said that he has researched the history of Mamankan and has written a script for the film. For this project, he met Venu Kunnapalli who was the first respondent, who was supposed to work as a producer to make a film based on that script. After that, he signed an MoU with Kavya film Company which was linked with Kunnapalli. In this film, Pillai was appointed as the director, but after the completion of the two shoots, his service was terminated and replaced with someone else. The shooting of the film was completed by some modification on his script. Pillai filed a suit seeking for relief and also filed an interim injunction application to restrain the respondent from releasing, publishing or exploiting the film Manankan, and also restrain him from pre-release publicity till it is not given proper adequate authorship credits to Pillai as per film industry standards.

Issues

Whether the author of the work will have special rights for claiming authorship of his work under Section 57(1) of the Copyright Act?

Judgement

The court analysed that Section 57(1) of the Copyrights Act prescribes that even after the argument of the copyright in a work, the author has special rights to claim authorship of the work. The court also noted that Pillai has a prima facie case against the respondent and his legal rights would not exhaust to claim authorship over it.

Therefore the Court took a balanced view:

• All arrangements for the release are made by the producer, postponement of the same may cause huge damage to Kunnapalli.
• In the film industry, the work of so many people is involved in making a film, if it gets postponed it would definitely cause difficulties to all those people.
• However, the rights of Pillai cannot be refused.

Based on these above points, the Court held that the film will be released without showing anyone’s name as the scriptwriter or the writer of the screenplay until the disposal of the suit is made. The court also stated that the issue of whether the respondent modified or mutilated the script was a big question which will be decided after the trial.  

Tips Industries Vs. Wynk Music

Facts

Tips Industries Ltd (plaintiff) is an Indian music label that operates copyright over a significant music repository which in 2016, was granted a license to access the repository by Wynk. During the expiry of the said licence, they decided to re-enter the licensing conditions but failed to do so. After this Wynk took the safe side by citing Section 31D of the Copyright Act. Tips challenged Wynk citing Section 31D, and prosecuted Wynk in accordance with Section 14(1)(e) for breach of their exclusive rights of sound recording.

Issues

Whether statutory licensing scheme exists under the Copyright Act to online streaming services?

Judgement

After hearing both parties, Bombay High Court held Wynk guilty of direct infringement under two grounds:

• To offer the copyrighted work under Section 14(1)(e)(ii) which allows the user to listen and download to the plaintiff’s work offline.
• Under Section 14(1)(e)(iii) for conveying the plaintiff’s work to the users through their streaming service.

In addition to this, Bombay High Court cleared out the ambiguity that existed regarding the online streaming services falling under the scope of Section 31D.

• Under Section 31D of Copyright Act ‘download/Purchase’ of such copyrighted work is not covered.

Wynk Music approved the users to store or download copyrighted music for future use which was established to be a “sale” and not “communication made to the public” which constitute as a broadcast under Section 31D. Hence, no claim for statutory license exists for using such copyrighted work by Wynk Music.

• The application of Section 31D does not include Internet Broadcasting.

The Court found Section 31D as an exception which can be strictly interpreted. After the examination of the statutory scheme of 31D, it becomes apparent that statutory licensing is only intended to radio and television broadcasting and not internet broadcasting. The memorandum presented by the defendant does not have any additional weightage of their claim, it only functions as “guidelines’ ‘ and lacks statutory authority and has no influence to the scope of their claim.

The judgement was passed in favour of plaintiff and an interim injunction was given to the plaintiff, having regard that they made it a prima facie case and would suffer irreparable damage in the way of lost revenue. 

Raj Rewal Vs. UOI and Ors

Facts

The Hall of Nations Building was designed by Mr.Raj Rewal and Mr. Mahendra Raj . The said building was treated as an icon of modernist Indian architecture which was built in the Pragati Maidan in New Delhi. In 2016, the IPTO proposed to demolish the Hall of Nations Building for building an “Integrated Exhibition cum Convention Centre”. After several attempts by the plaintiff to protect such buildings from demolition, he cannot stop it from demolition. After the demolition of the building plaintiff filed a suit against the actions of IPTO for claiming that the actions of demolition by ITPO had infringed the plaintiff’s special right under Section 57 of this Act.

Issues

Whether the architect or the “author” of a structure has a right placed in him to prevent such  demolition or modification of their work by the owner of the building?

Judgement

The Court rejected the claim made by the plaintiff and stated that there is an issue of conflict of two different rights i.e Section 57 the architects rights and the landowners rights to practice acts concerning their property. The Court noticed that the plaintiff is not allowed to prevent the demolition of the building because it put restrictions on defendant’s right to practice their control over their property. Property which is provided to them under Article 300A is a constitutional right which is acquired over the statutory right of plaintiff, which they request to exist under Section 57 of Copyright Act, 1957.

The court stated that the rights of the author under Section 57 to forbid ‘ distortion, mutilation or modification of his work, which does not approve an author to prevent complete destruction of their work ‘that cant be viewed, heard, seen or felt’ and cannot affect the reputation of the author. The Court reasoned that the ‘construction’ for future events under Section 52(1)(x) could only happen if the building has already been demolished and therefore stated that Section 57 could not reasonably view the right to object to the demolition of the building. At last, the Court dismissed the suit because due to the lack of cause of action against the demolition of the Hall of Nations.

Yash Raj Films Vs. Sri Sai Ganesh Productions

Facts

The suit of copyright infringement was filed against Sri Sai Ganesh Productions by Yash Raj Films Pvt. Limited on the grounds that Ganesh has copied the movie Band Baaja Baaraat which is produced under Yash Raj Films. Jabardasth is a film by Sri Sai Ganesh Productions which had substantial and material similarities in terms of theme, plot, character, sketches and expressions amongst other things.

Issues

Whether copyright exists in a cinematography film and the underlying works that are made up of?

Whether expressions under Section14 (made a copy of the film) means to prepare a physical copy of the film only?

Is there any substantial and material similarity between the two films?

Judgement

When the Court was determining with the first issue, the court took a reference of a case MRF Limited Vs. Metro Tyres Ltd., in which Court stated that copyright exists in a “cinematograph film” and the works that come together to constitute it and there must be an original work to exist in “cinematographic film” which will be read in Section13(1)(b) of the Copyright Act,1957 through Section13(3)(a) and 2(d) of the Act. While determining with the second issue, the court held that “to make a copy of the film” stated under Section14(d)(i) of the Act does not mean creating a hard copy of the film by process of duplication. As the films are protected like original works, the Court increased the “test of originality” which is set out in the case of R.G Anand Vs. Deluxe Films for distinguishing two films on the basis of “substance, foundation and Kernel’’. So, the Court found that the defendants had replicated the fundamental, essential and features of the plaintiff’s film.

UTV Software Communication Limited Vs. 1337X.TO and Ors

Facts

In this case, the plaintiff including UTV Software Communication Limited, are companies connected in creating content and distributing cinematographic films around the world including India. The defendants among others, thirty identified websites including John Doe defendants, the Ministry of Electronics and Information Technology, the Department of Telecom and various ISPs.

The plaintiff argues that the defendant provides access to their copyrighted works, in such a manner that it violates their rights under the Indian Copyright Act. The plaintiff provided evidence to access a sample of such infringing content that the websites were engaged in online piracy. The defendant did not respond to the summons since when they hosted it outside India. However, the issue is reflected on the question of law “the general public importance, the Court appointed an impartial adviser, Mr. Hemant Singh to assist the Court on the question of law with its determination. 

Issues

Whether a copyright infringer on the Internet is treated differently from an infringer in the physical world?

How should the Court deal with the “Rogue Websites” which are blocked and again get resurfaced by changing it to some alphanumeric websites? 

Judgement

The Court held that “dynamic injunction” stemmed from specific provisions under Singapore Law. However, the court held that it was within its inherent powers under Section 151 CPC to make a solution of similar nature and that the plaintiff could avail the same injunction by implementing additional websites under Order 1 Rule 10 of the CPC. This process would be helpful in reducing piracy by “Rogue Websites” and also in reducing the burden on the copyright owners to go through such a difficult route of litigation over and again.

Finally, the Court directs MeitY and the DoT who are the defendants in this case, to consider a suggestion where they can come with a policy for a scheme, where individuals who access “pirated content” if they don’t refrain from continuing such actions then they will be fined for it.

References

• https://www.intepat.com/blog/copyright/5-copyright-cases-2019-india/
• https://spicyip.com/2019/09/tips-industries-v-wynk-music-a-case-of-statutory-mis-interpretation.html
• https://spicyip.com/2019/12/kerala-hc-directs-film-release-without-script-writers-name-in-mamankam-moral-rights-dispute.html
• https://spicyip.com/2019/04/breaking-delhi-high-court-issues-indias-first-dynamic-website-blocking-injunction-for-copyright-infringement.html

The post Top Cases of Copyright Law in 2019 appeared first on iPleaders.

This article is written by Chandan Kumar Pradhan from KIIT School of Law, Odisha. This article talks about the problems faced by media and entertainment startups in India and how to overcome those problems.

What are the different kinds of media and entertainment startups?

In accordance with the DataLabs, the media and entertainment sector collected a total capital of $561.27 million within the year 2019, a fall of around 23 per cent in the amount of capital in the sector from the financial year.

The online gaming industry in India is predicted to incorporate a total revenue of INR 11,900 Crore by the year 2023, developing at 22 per cent CAGR, according to a report by advising major KPMG and the Indian Federation of Sports and gaming.

Mobile Premier League

Founder- Sai Srinivas Kiran, Shubham Malhotra

Founded in- 2018

Overview- A multiple games platform offering monetary rewards

Funding- $40.5 million

Mobile gaming has reached new heights in 2019 with the rise of Dream 11 into the Unicorn club. MPL is having an advance to become a unicorn soon with the help of its platform approach and multiple games.

In this app, the users participate in skilled game tournaments by paying a registration fee on the MPL app.

In the year ahead, MPL targets to become the world’s largest esports and content monetisation platform by adding more games into more types of content and grow.

Playo

Founder- Umashankar Nagraj, Karthik Igor, Daanish Suhail, Gauravjeet Singh, Amit Roushan

Founded in- 2015

Overview- Helps the individuals and groups of people to discover and provide book sporting venues

Funding- $1 million

All over the world, India is not a very friendly place where sports supporters are available. This app targets the imagination of the people with the community and commerce platform providing amateur sports supporters and groups. This platform helps users by attracting other supporters. And in this app other game’s accessing activities, venues, events and other sports-related things will be also serviceable.

Vokal

Founder- Mayank Bidawatka, Aprameya Radhakrishna

Founded in- 2017

Overview- A regional language platform for question and answer

Funding- $8 million

While Quora is supporting the people for Indian languages, Vokal is starting with a suitable approach to provide the regional language opportunity in India.

For 2020, Vokal predicts that they want to achieve 30 million monthly app users, which will make them one of the top content platforms in India.

WinZO

Founder- Paavan Nanda, Saumya Singh Rathore

Founded in- 2018

Overview- Gaming platform with the real cash price

Funding- $5 million

Gaming is increasing rapidly in India and the rise of PUBG is the biggest example of this phenomenon. WinZo provides 3rd party games and offers the people in various vernacular languages. Currently, it has 10 languages and provides the most relevant content to the public.

The company claims that 90 per cent of its user’s place belongs to Tier 2-Tier 5 cities in the whole of India.

For the new year, WinZo targets to add about 300 games in 15 languages and an expanded user’s place of up to 100 million players.

Editorji

Founder- Vikram Chandra

Founded in- 2018

Overview- Personalised short video and news platform with news partners

Funding- $4.2 million

News has changed a lot in the 21st century with the approach of digital media and entertainment and the rise of video editing as a format for powerful news in India.

This app offers a free of charge and ad-free version at the present, and they plan to roll out a paid version within this year. For 2020, this app is trying to combine with more distribution partners, including TV apps and extending to provide 6 additional languages along with rolling out an ad tech service for the platform.

Marketing dynamics of media and entertainment industries

The Indian industry of advertisement is predicted to be the second-fastest-growing advertising market in the whole of Asia after China. At the present time, advertising earning accounts for around 0.38% of India’s GDP. By 2021, the Indian media and entertainment industry is predicted to reach Rs 2.35 trillion.

The industry of media and entertainment is predicted to reach around $43.93 billion by 2024. This industry is set to develop at CAGR (Compounded Annual Growth Rate) of 13.5% over 2019-24. In the financial year 2019, the major contributors were TV, print and films with a market budget of Rs 713 billion, Rs 333 billion Rs 185 billion respectively. They are predicted to achieve Rs 1025 billion, Rs 375 billion and Rs 228 billion respectively in the year 2022. India had a 15th position in the whole world in the music industry and is predicted to enter into the top 10 music markets within the year 2022.

Some successful industry’s developments in the M&E industries

The FDI arrivals in the Information and Broadcasting sector including the print media in the time of April 2000 to March 2019 stood at $8.38 billion, according to the data collected by the Department for Promotion of Industry (DPI) and Internal Trade.

Some of the following developed industries:

• Netflix’s Income has grown by 700% with the help of the local subject matter and marketing, which was fascinated by more users during the period of 2018-19.
• Spotify to launch the lower version for Android phones in India.
• Star India signed up 35 advertisers for the ICC World cup and targeted around Rs 1000 crore in the advertisement sales.
• Dailyhunt, a local news provider run by Verse Innovation Pvt Ltd, which will receive an investment of $60 million in a new funding round led by Goldman Sachs Investment Partners.

What problems are actually faced by M&E startups?

There are more other issues that are faced by entrepreneurs while establishing such a type of company or startup. We will discuss a few of the issues in this article, issues like brand protection, taxes and other many legal issues. The startups are easy to start but, after the formation of the name, it is very critical to manage the members, to handle with the other companies etc. Some of the bigger problems are given below:

Business models: how do M&E startups make money?

Advertisement

There are many ways to do an advertisement, but basically it is a simple concept, which has been around the people for a long time. In this, you have to create innovative content by which it will attract the people’s attention. And you can do it by showing promotional content from brands around society everywhere. Sponsored content and product placement, these two types of ways are the most complimentary ways to execute the advertisers into the content.

Subscription

This is the most advantageous stage, where people will gather for new content and which is only for a limited period of time like (monthly or annually etc.). It binds in a running relationship with the consumers, the subscribers get access to a channel or company or app etc. for the content and for which they have to pay on the running process. And the main point is that the people want something new in the next content because they are not paying the money only for seeing that single content again and again. The content should be refreshed in the running process.

Licensing

The ownership documents and papers should be in your hand, then only you can make a decision in favour of the startup wherever you need. For every step, when the business grows up, registration is required for trade licenses for employment registrations etc.; for all steps, the document is a must. Investors are also very careful and alert on license issues before they enter into this type of business. So, for the better investment and development of the business, you should take care of the licenses.

Aggregation 

If the materials of the companies are not selling at the specified price then the company gets less attraction from people and their revenue also goes down. Therefore, Aggregation is a form, where the company can sell their products with a new idea. Here, actually the thing is to remake the content and mix up with some other similar materials and sell it. And the advantages of this way is that there will be a collection of materials which are needed for the people and they don’t have to go anywhere thereafter.

Events

According to the marketing professional researcher, around 7 out of 10 industries create and handle their own events to attract the people. Some of the events are only for the limited persons and some are with many big exhibition halls and concurrent sessions with more intelligent people of their industries.

Which is the best way to connect with people and make money among these ways?

Among these ways, the subscription is the best way to get profits because many successful media companies follow this way to connect with people and here, the company can create more content and nowadays, online materials are more popular in comparison to others. I do believe that this mode of transaction is the heart of a strong media business creator.

What are the operations, compliance and governance issues?

Contract enforcement

Once you start your business management member, it’s time to build legal agreements to record your legal relationship with the other members of the venture. You have to find out what agreements are required between you and your co-partner. Then, in the end, you will make a critical agreement to work on the business. Basically, by this agreement, they will set the rules for how they will run the startup. If there is no understanding between two partners then how the business will run smoothly. Therefore, the relationship between the two main people should be appropriate.

Data protection (piracy, mitigate cyber risks)

Every view, download results in a large amount of data being created every day. This data gives to the media and entertainment companies a real budget advantage, therefore, this type of data is an attraction towards the cybercriminals.

The M&E startup companies should take some steps to protect their data, which are:

• Identify the priority assets, which is the most important matter to your companies.
• Improve your plans; how to respond to cyber threats.
• Consider the impact of security violation by any third party, and think about how to protect the security data of your company.
• Develop a continuous improvement plan, which will enable the management of a constant change of security by effectively and efficiently.

Employment and labour laws

Doing business in India or even running any type of startup requires several licenses. Some licenses are simple tax registrations and some businesses just need a trade license and establishment registration. For employing more than 10 persons, you have to do various labour and employment-related registrations. If the entrepreneur does not have the licences of labour law, when you are growing in the field of media and entertainment, the investors of the company will ask you for the proper documents of the licences before they invest money.

Taxation Issues

A lot of businesses fail due to this concept, many of the founders face a very huge amount of fines, and there is a possibility of imprisonment and criminal cases with regards to tax bills, Only due to negligence and ignorance. Every organization in the world, involved in any type of business, has to pay the tax to central, State and local governments. So, if you maintain the taxation section of your business then all members of your business will be benefitted. The taxation laws are especially known to be a tricky thing.

Government policy

The Government is taking various types of initiatives, which will be a support for the media and entertainment industry’s growth such as: in increasing the FDI limit from 74% to 100% in DTH cable platforms. Beside all progress, single-window clearances are arranged for the approval in outdoor events. For e.g. film shooting. Motivation based models are being worked out to absorb the overseas production houses to shoot in India and including the ease in direct and indirect taxes which are payable.

What are the issues that threaten their revenue channels?

There are many issues, by which the revenue of the company will be down and the craze of the people towards the company will also be damaged. And over the past 4 years, these types of issues are disclosing where many companies are going down and damage their image which was printed in the face of the people. The following are some common threats:

Account Takeover

In this, the attacker will hijack the brand account and spread wrongful links, fake news to the subscribers, followers to damage the image of the company.

A media company’s social media profile is the strongest asset for the content creating and revenue collecting. And while these companies are made the investors invest millions of money for building the followers and subscribers, which is the priceless value for the company. And in this threat, the attackers will demand these values for these accounts.

Spear phishing

Here, the attackers post wrongful and malicious links to the company;’s Facebook page that redirects to the followers to the fake company domain.

Attackers create fake accounts like the companies account and post illegal images, videos etc.. By this wrongful work, the company’s character will also hamper and people will hate the company. In some cases, the members of the company itself may also do the spear-phishing to breach the corporate network.

Physical threats

Physical threats to the VIPs and some of the main personalities of the company. The data of the company where the company shares the personal details and marketing promo. The attacker will access this data and threaten the people, as in the case of would-be shooter at a Pokemon convention who was arrested after posting this information online.

Customer fraud

Spoofed twitter customers support the accounts defrauds customers and advertises pirated content, here the scammers are very quick to exploit the interactions between the customers and the brand operator.

Important Legal and Regulatory Solutions by a lawyer for the problems faced by the startup industries

A media lawyer can help with your business, because he/she had the idea about that, how to secure the data of the company, what should be the agreements while doing a startup, how to protect the intellectual property of yours, buyer and seller rights for IP, which will help you to negotiate better deals and connect with more industries which are trustworthy. In this way, a lawyer can help you to guide and manage the legal works of your company.

And having an efficient lawyer in your company is a great thing, and the people will also have trust to invest in the company because anything happens then the lawyer can handle it with their legal works. These are the benefits of having a lawyer in the company. And you can refer to any lawyer for help and guidance for the solutions of the problems when you are facing it.

Conclusion

The media and entertainment field are quite very powerful. But the execution of the power by the media is always regulated and controlled by various kinds of laws. In this democratic society, the media have a great role in the development of the economy of the country.

Having a startup business is a very wonderful idea and skillful. The main thing to remember is that there are many problems to face while building any business. You have to care for your future while dealing with legal work for your business. 

Do you need qualified lawyers or law interns who can help with these challenges by implementing the solutions? 

If “Yes” contact Lawsikho, because Lawsikho has a very broad personality list of lawyers, who can easily solve your problems.

References

• https://www.insightssuccess.in/challenges-faced-by-tv-industry-in-india/
• https://inc42.com/features/startup-watchlist-indian-media-entertainment-startups-to-watch-out-for-in-2020/
• https://www.ibef.org/industry/media-entertainment-india.aspx
• https://www.entrepreneur.com/article/307601
• https://www.ey.com/en_in/tmt/ten-opportunities-and-threats-for-media-and-entertainment-compan
• https://www.allerin.com/industry/media-and-entertainment-industry-solution
• https://monetizingmedia.com/business-models-for-media-companies/

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

The post Challenges faced by Media and Entertainment startups in India appeared first on iPleaders.

This article is written by Sangeet Kumar Khamari of KIIT School of Law, Bhubaneswar, Odisha. This article talks about the types of forest and different amendments of the Indian Forest Act, 1927.

Introduction

Definition of ‘Forest’ (as defined in Indian forest act, 1927) is an area occupied by the Government for conservation and management of biological and ecological resources is called a forest.

The constitutional status of the forest:

• The State attempted to take necessary steps for the protection and improvement of the environment and for safely guarding the forest and wildlife.
• Every Indian citizen has the right to protect and develop the natural environment like lakes, rivers, forests and wildlife and should show kindness towards the living creatures.

Types of Forest Land under the Indian Forest Act, 1927

Private Forests

The private forests are those which are not occupied by the Government. According to the Indian Forests Act, 1927, the Government is commanded to regulate timber cutting and cultivation etc. in private forest land and also allow the state government to capture the forest land for the public purposes.

Public Forests

Public forests are of three types:

• Reserved Forests
• Village Forests
• Protected Forests

Reserved Forest (Section 3)

These are the forests which are reserved by the Government. More than half of the forest area in India is declared as a Reserve forest. 53% of the total forests in India are the Reserved Forests. For the conservation of the forests and wildlife resources, the Government reserves these forests. The activities like hunting and cutting the trees are strictly banned in these forests. Only on special permissions by the higher authorities, these activities may be performed unless and until there is a valid reason for performing it. According to the Indian Forest Act, 1927, the reserved forests come under chapter II. Some Reserved Forests in India are:                                                                                                 

Village Forests (Section 28)

According to the Indian Forests Act, 1927, the State Government can give the rights to any village group, which the Government has over any land which has been reserved. Rules for regulating the management of the forest to be made by the State Government. In this type, two interchangeably terms are used- one is the village forest itself and the other one is a forest village, and both are different from each other. The village forest is in legal category under the Indian Forests Act, 1927, whereas the forest village lies in the administrative category in the Act. 

Protected Forests (Section 29)

The third most classification is “protected forest”. The Indian Forest Act empowers the State Government to use any land as protected forest. It must be noted that these forests are not reserved under the state government. A protected forest can be a reserved forest but a reserved forest cannot be a protected forest. Under these forests, the Government has the power to make rules and restrict uses of the forest. But in the lapsing of these rules, many practices under these forests are allowed. Other than this, the State also has some power to reserve some species of trees in these forests. These powers are provided so that the state can have control over the trees, whose timber, fruits and non-wood products have revenue-raising potential.

The Forest (Conversation) Act, 1980

Introduction

The Forest Conservation Act, 1980 is a Central Act of Parliament which conserves the forest. Section 2 of the act makes a provision of a prior approval of the Central Government necessary before a State Government or any other authority that issues direction for reserved forests (which have been reserved under the Indian Forest Act 1927), use of forest land for non–forest purpose, assigning forest land by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organization not owned, managed or controlled by the government and clear felling of naturally grown trees.

The objectives behind the Act

• To expand the establishment of forestry by confirming long term harvest levels based on the availability of best scientific information.
• To be sure at a high term forest productivity and saving the resources of the forest by afforestation, soil conservation and many more measures.
• To keep the quality of water good in lakes, streams, and other water bodies.
• To handle the nature and distribution of wildlife habitats and add that to the conservation of biological diversity by the development and implementation.
• To handle the visible impact of cultivation and other forest activities.
• To tell everyone the efficiency of the use of forest resources.
• To expand the practice of forestry through advanced programs.
• To make improvements for forest research, technology and science.
• To make the forest management better by appointing the resource professional, contractors by conducting training and educational programs.
• Words to agree with applicable federal, state, provincials or local news and regulations.
• To expand the activities in forestry by cheering the public and forestry community to take part in the commitment to forestry and report progress publicly.
• To cheer for continuous improvement in the activities practising in the forestry.

Principles

• To apply for reforestation after harvesting and keep them productive.
• To save the forest from wildfire, diseases, pests and other harmful organisms and hence, to keep up the productivity and improve the forest-land base in the long term.
• To keep the forest-land safe and maintain soil productivity.
• To save the water bodies in the forests.
• To make the forest land as so special that it could have unique qualities and also perform a diversity of habitats in wildlife.
• To agree with the state rules and orders which are related to the Environmental laws, regulations and statutes.
• To make continuous profits by practising the activities of forest management and also take care and report the performance to the forestry.

Scope and Applicability

The Forest (Conservation Act), 1980 is applicable to whole India including Jammu and Kashmir. It came into power on 25th October 1980. On this day the Forest (Conservation) Ordinance was also broadcasted.

Restriction on Dereservation of Forests or Use of Forests for Non-Forest Purposes [Section 2]

Section 2 of the Forest (Conservation) Act, 1980 enforces the restriction on dereservation of forests or use of forests for non-forest purposes. The restrictions are as follows:

• Any of the reserved forests shall cease to be reserved if any law is applicable to the state or any portion of the reserved forest.
• Any portion of the forest land can be used for the non-forest purpose.
• Any of the forest lands which are assigned by the way of lease to any private person, corporation, agency which are not owned, managed or controlled by the government.
• For the purpose of using reafforestation, the trees which have grown naturally in any forest land may be cleared.

The appeal before the National Green Tribunal (Section 2A)

Section 2A of the Forest (Conservation) Act, 1980 states that any person is unhappy by the order of the State Government and that some other authorities may file an appeal under Section 3 of the National Green Tribunal Act, 2010 to the National Green Tribunal in accordance with the rules of that act.

Case Laws

Tarun Bharat Sangh, Alwar v. Union of India

The petitioner Tarun Bharat Sangh, who was interested in environmental protection, wanted to make Sariska Tiger Park which is a tiger reserve which was located in Rajasthan, as a reserve forest because many people were illegally using that area for mining. When he asked the State Government then the State Government said it can’t be declared as a reserve forest, but when he said the same to the Supreme Court of India then the Court formed a committee which consisted of the State authorities, forest officers who were experts within chairmanship of a retired judge. After the meeting, the Court ordered not to do mining in that land and the committee should ensure the obedience, enforcement and implementation of the order. And also they were asked to compensate for the damage done.

Constitutional of Advisory Committee (Section 3)

According to Section 3 of the Act, it is given that the Central Government constitutes of a group of a number of persons on the basis of their knowledge so that they may be enough fit to give advice to the Government with respect to:

• The restriction regarding Section 2 of the Act.
• Any matter of which is related to conservation of forest which can be said to the Central Government.

Penalty for contravention of the provision for Act

According to Section 3A of the Act states that if a person breaks or avoids any of the provisions mentioned under Section 2 of this Act shall be punished with simple imprisonment up to 15 days.

Offences by the authorities and the Government.

According to Section 3B of this Act, when an offence has been committed by any department of government or by any authority, every person who was present in that time when the offence was committed will be directly charged for the offence and held responsible for it if found to be guilty for the offence than they would be punished. If the head of the department or any person who is accused of an offence, proves that he/she has committed the offence by mistake or without knowledge then he/she will not be held liable for such offences.

The National Forest Policy, 1988

The National Forest Policy of 1988 gives the protective duties of the forests in supporting environmental stability and ecological balance.

The general objectives that were ruled the National Forest Policy, 1988 were as follows:

• To maintain the environment stability through care and also recovering of the ecological balance that has been disturbed by a heavy reduction of forests in India.
• Reserving the natural heritage of India by protecting the remaining natural forests with varieties like Flora and Fauna, which represent the biological diversity of India.
• Testing the soil erosion and the process of erosion in the banks of rivers, lakes and reservoirs for reducing the floods and drought.
• Preventing the increase of sand-dunes in the desert areas of Rajasthan and coastal tracts.
• Through massive afforestation and social foresting programs, especially on degraded and unproductive land helps in increasing the forest across the country.
• Rural and tribal populations meet the requirement for fuelwood, fodder, small timber and minor forest products.
• By increasing the production of the forest for the essential needs.

National Forest Policy, 2016

Green Tax on Citizens

The National Forest Policy (NFP) established the levy of green tax for promoting ecologically responsible behaviour and providing financial resources which are essential to address forestry.

Draft Policy Undermines the Forest Rights Act

NFP ignores the Forests Rights Act, 2006 which has control only in the area of local Gram panchayat, mainly in tribal places which are close to India’s forests and makes joint forest management for the enchantment of agroforestry.

Forest Management Mission to promote Supply to Wood Industry

The policy plans to launch a new community forest management mission, gathering the Government, private land and community under the new planned management system. It wants to make one-third of the Government-owned forests under the community forest management regime by the end of the coming decade. The policy also suggests the contracts within the forest-dependent industries and farmers to make a fixed price and quantity to make a sure supply for the wood industry.

Technology to Minimise Damage to Forests

The policy talks about the forest land diversion projects which are related to mining, construction of dams, roads and other small infrastructure which are needed to be chosen for some special cautions. To reduce the pollution and damage, state of the art technology should be used.

Board to Monitor Management of Forests

The policy says that the National Board of Forestry and State Board of Forestry should be made to ensure the control of the spread in forest areas and management of forest cover. 

Provision for responsible tourism

The policy says that for supplementing the livelihood needs of local communities they must be developed on sound ecotourism models with a focus on conservation. As per the policy, tourism is responsible for any negative impact on wildlife and its inhabitants. Tourism would also be responsible for any reduction in income or loss of revenue of the local communities.

Climate change to emerge as an important factor in policy

This policy states that climate change should be an important factor if some plans are in all the forest management plans and community management plans.

Purchase of Wildlife Corridors

The policy specifies that for purchasing wildlife corridors from people CMPA (Compensatory afforestation Fund Management and Planning Authority) funds are to be used.

Maintaining Urban Forests

This policy asks for the management plans for the forest, parks, gardens which are present in cities to nourish and sustain the health and clean air.

References

• http://www.yourarticlelibrary.com/law/acts/summary-of-forest-protection-act-1927-of-india/30188
• https://tribal.nic.in/FRA/data/FRARulesBook.pdf
• http://nbaindia.org/uploaded/Biodiversityindia/Legal/3.%20Indian%20forest%20act.pdf
• https://www.youtube.com/watch?v=bfJr8dw0BhQ

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

The post Laws governing Indian Forests: Amendments to Indian Forest Act, 1927 appeared first on iPleaders.

This article is written by Aarchie Chaturvedi, from the National University of Study and Research in Law, Ranchi. In this article, she discusses the violation of dignity and injustice that is faced by the survivors of sexual violence acts and the legal changes that were implemented to provide justice to sexual assault victims and suggestions for improving the conditions in the society.

Introduction

On paper, India has many progressive and supportive laws for women. These laws appear to be more reformist than the laws of many developed countries. However, in practice transgression of law takes place from the very grassroots level. The violation of laws at the most basal level, is actually, what should bother our collective conscience. Lack of education and understanding among the upholders of law, doctors and police officers often hinder the path of justice for the survivors. Not only can this lack of awareness stop the survivors from reporting, but even when the survivors might have decided to report of the crime, this deficiency of awareness can make them feel more traumatized and disempowered. All of this in total has led to an increase in the crime rate against women from 57.9% in 2017 to 58.8% in 2018  as per the data released by the National Crime Record Bureau (calculated on the basis of per lakh women population). The data released by NCRB also shows that approximately 47,139 cases were filed for investigation of rape in the year 2018 which means that an average of 3800 cases per month, 129 cases per day, and 5 cases per hour were filed.

In this article, we will be discussing the crime of rape, the provisions of the IPC relating to non-consensual sexual intercourse, the medical examination of rape victims, the ineffectiveness of the laws in place which leads to an increase in the number of crimes and some of the leading cases.

Understanding of non-consensual sexual intercourse provisions under the IPC

Section 354 of the IPC

Assaulting or using criminal force against a woman with the knowledge/intention of outraging the modesty of the woman would be punishable under Section 354 of the IPC with imprisonment of not less than one year (which can be extended to a period of five years) and shall also be liable to pay fine.

Section 354A of the IPC

Section 354A of IPC begins with the sub-section(1) stating that any man committing any of the below-mentioned acts:

(i) physical contact and advances comprising of unwelcome or explicit sexual overtures; or

(ii) demanding or requesting for sexual favours; or

(iii) showing of pornography to a woman against her wishes; or

(iv) making of sexually coloured remarks, shall be guilty of the offence of sexual harassment.

Sub-section (2) further states that any man committing a crime under the ambit of clause (i), (ii) & (iii) of the sub-section(1) shall be punished with rigorous imprisonment for a term which may extend to a period of three years or shall be liable to pay fine or both.

This is followed by the sub-section (3) of the IPC which states that any man who commits a crime as described under clause (iv) of the sub-section (1) shall be punishable with imprisonment (which may be extended to a period of one month) or with fine or both.

Section 354B of the IPC

Section 354B states that anyone who tries to assault or tries to use criminal force against a woman, with the knowledge/intention to outrage her modesty, by disrobing her or compelling her to be naked, would be punishable with a imprisonment of not less than three years (which can also be extended to a period of seven years)  and would also be liable to pay fine.

The question that arises on reading these sections is what constitutes an outrage to female modesty. The clear cut answer to this question is provided nowhere. The sex of a woman is considered the essence of a woman’s modesty. The culpable intention of the accused is of utmost importance in these kinds of cases. The woman or the victim’s intention is also relevant but is not the only determining factor in these cases.  The word ‘modesty’ as used under this section, as an attribute, is also used to associate females as a class of human beings. It is an attribute attached to a woman owing to her sex. 

A leading case relating to these provisions is of Raju Pandurang Mahale v. State of Maharashtra.  

Facts

In this case, the victim was brought to the house of the co-accused by the accused and was intoxicated against her wishes. The accused thereafter disrobed her and clicked her nude photographs. 

Judgment

The accused was held liable by the Supreme Court under section 354 of the IPC as his acts amounted to insulting the normal sense of female decency. 

Section 375 of the IPC

A man is said to have committed rape under Section 375 of the IPC when he has sexual intercourse with a female under the following circumstances

Firstly – Against the will of the woman;

Secondly – Without her consent;

Thirdly – With her consent, however, putting her under the fear of death or hurt to her or any of the persons whose welfare she is concerned with;

Fourthly – With her consent, when she has given her consent to have sexual intercourse with a man whom she believes she is lawfully married to, however, the man knows that he is not her husband;

Fifthly – With her consent, when her consent is given due to unsoundness of mind or intoxication and the woman is unable to understand the nature and consequences of that to which she has  given consent;

Sixthly – With or without her consent, when she is under sixteen years of age;

Seventhly- When she is unable to communicate her consent.

This section is followed by an exception and an explanation. The explanation states that penetration is sufficient to constitute the sexual intercourse to the offence of rape. However, the exception to this section is that sexual intercourse by a man to his own wife when she is not under 15 years of age would not constitute the offence of rape. The offence of rape is said to have occurred when:

• A man penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of the woman or makes the woman do so with him or some other person; or
• Inserts to any extent, into the vagina, mouth, urethra or anus of the woman any object or a part of the body other than the penis of him or of some other person; or
• Manipulates any part of the body of the woman so as to cause penetration into the vagina, urethra or anus or any other part of the body of such woman or makes the woman do so with him or any other person.

Section 375 wipes out the possibility of the offence of rape being committed against a male, transgender and marital rape. Sexual violence under these heads cannot be counted as rape but would be covered under Section 377 of the IPC under the head of unnatural offences.

The fundamental notion of not treating marital rape as rape is that after marriage woman is considered the chattel of the husband and he is entitled to have access over her body. According to this notion, the tag of a marital relationship justifies a man having sexual intercourse with his wife irrespective of her consent. The definition in IPC is quite narrow and justifies patriarchal roots. 

Section 376 of the IPC

Section 376 of IPC prescribes the punishment for rape. It states that imprisonment in cases of rape shall be of rigorous nature, not less than ten years (which can also be extended up to imprisonment for life). The punishment shall also be accompanied by a fine.

What is Virginity Testing?

People have different surreal ways of detecting whether a female is a virgin or not. This detection is usually done to separate “pure” females from “impure” females. Purity is decided on the basis of whether a female had sexual intercourse or not. If a female didn’t have sexual intercourse and is a virgin, then she is worthy of getting respect otherwise she is not considered worthy enough of being respected by the society. These tests are mainly done on unmarried females, often without consent or in situations where they are unable to give consent. Countries, where this practice has been reported, include Afghanistan, Bangladesh, Egypt, India, Indonesia, Iran, Jordan, Palestine, South Africa, Sri Lanka, Swaziland, Turkey, and Uganda. The reasons for the conduct of these tests vary from region to region. Certain communities in Swaziland and South Africa conduct these tests to prevent pre-marital sex and HIV disease. In India, this has been a part of the sexual assault assessment of rape victims. In Indonesia, this is a part of the selection process of the police force.

This test is done by the doctor when he inserts two fingers into the vagina of the victim. The test helps in determining laxity and the sexual activity of the victim i.e whether the victim is sexually active or not. This test would help in verifying whether the hymen is broken or not. Insertion of one finger with strain into the vagina shows that the victim is a virgin whereas easy or smooth insertion of two fingers in the vagina shows that the female is habituated to sexual activity.  The reports of these kinds of tests were usually submitted by the doctors to the lawyers who used them as evidence to defend their clients. The process as a whole is unjust for the women and is ethically wrong also. The process also has no scientific background and has also been completely discarded by the Ministry of Health and Family Welfare of the Government of India, in its guidelines and instructions for the victims of sexual violence. The reasons given by them for dumping this process are:

• Vaginal introitus has no bearing in the cases of sexual violence;
• The status/size of the hymen is of no proof as the hymen can be torn due to various reasons such as cycling, riding, etc;
• An unbroken hymen does not rule out the probability of sexual violence and a torn hymen does not prove the sexual intercourse;
• Per vaginum examination has a limitation as it can only be done on adult women.

Thus hymen should be regarded as any other part of the genital while documenting examination in cases of sexual violence and other episodes like bleeding, oedema should be documented properly.

It was the combined efforts of judiciary, activists, governmental and non-governmental organizations that have led us to the important steps forward in the process of delivery of justice. Let us discuss in detail some of the major amendments and changes in the various laws and statutes.

The Criminal Law (Amendment) Act of 1983

There were amendments in CrPC in 1983 related to what amounted to custodial rape, provisions for enhanced punishment for the offences under Section 376 of the IPC and the presumption of the absence of the consent in cases booked under Section 376 of the IPC. The changes in CrPC were done by bringing changes in Section 114A of the Indian Evidence Act. Thus, in cases of custodial rape or the rape of a pregnant woman or a gang rape if it is proved that the man had sexual intercourse with a woman and the question of consent arises, and the woman who is alleged to have been raped says that she did not consent to the act of that man, then the Court will presume that the woman didn’t consent.

This amendment tries to balance the gender inequities that are existing almost at every place like police stations, jails and other such stations where the victim is overpowered and it is extremely difficult to prove non-consensual sexual intercourse through the testimonies of the witnesses. By presuming the absence of the consent (under Section 114A of the IPC) and granting of enhanced punishment for custodial rape (under Section 376 of the IPC) the judiciary and the legislature is trying to identify and fill the loopholes in law, in order to prevent the miscarriage of justice and in order to ensure speedy and fair trial. One more dimension to this issue that the upholders of law should acknowledge, is the fact that even when a woman was subjected to sexual intercourse without her consent then also she might be suffering from few or no injuries.

The Supreme Court Judgement in 2000

Prior to the Supreme Court judgment in the case of State of Karnataka v/s Manjanna doctors examined the rape victims only after receiving a report from the police officer. The victims must then first gather the courage to file a complaint in the police station of the correct jurisdiction. This kind of procedure would lead to a delay in the process of administration of justice considering the social obstacles faced by the woman to come out in the open against the accused. Further, a woman is often shunned out or excluded from society after being the victim of sexual violence. Only after the delayed complaint by the victim, begins the process of investigation by the police which is followed by a requisition sent to a doctor at a government hospital to examine the rape victim. On many occasions, if without reporting at the police station a victim reaches the hospital then she is denied the medicolegal examination and the collection of medical evidence because the requirement of a prior requisition of a police officer is not furnished with. By the time medical requisition is collected, much of the medical evidence is lost or can not be collected. This results in the release of the accused in many cases as no solid proof can be obtained to convict him. 

In its 2000 judgment of State of Karnataka v/s Manjanna, the Supreme Court recognized the victim’s right to medical examination as a medicolegal emergency. The provision of registering a complaint first also changed and now the victim can approach a doctor for a medical examination or medical help even without registering a complaint in the police station. The doctor was also obliged to examine her now even without a requisition. There are three ways according to the judgment by which a doctor/hospital may receive a victim. They are 

• When the victim voluntarily reports; or
• When a requisition is made by the  police officer; or
• When a requisition is made by the Court.

However, currently, the scenario is that as many doctors are not aware of these amendments in the existing laws, they still insist on requisition by the police officer before examining the victim.

Indian Evidence (Amendment)  Act of 2002

Section 155 of the Indian Evidence Act, 2002 earlier allowed the defense lawyer to confront the victim by presenting the argument that she has an immoral character. This confrontation in the name of legality allowed the defense lawyer to question her on her previous sexual acts,  her personal life, and other private matters. The amendment act in 2002 deleted Section 155 of the Indian Evidence Act and added a provision under Section 146 of the Indian Evidence Act.

According to the new provision the defense lawyer was barred from asking questions to the prosecutrix related to her general moral character. This paved the way for an end on to the unwarranted questions to the victim regarding her previous sexual activity.

However, a doctor conducting an examination on the victim requires information about her previous sexual activity, intercourse, and sexual practices. This is to correctly interpret the physical and genital findings. The findings of a forceful sexual act on a virgin would be different from a person who has experienced sexual intercourse in the past. So it is the duty of the doctor now to properly inform the victim of the purpose of the findings, the effect of such findings and how the findings will help her in getting justice. A victim must also be explained the amendments of Section 155 of the Indian Evidence Act. Otherwise, the victim would be hesitant to part with this crucial information as she would fear that this information will be used by the defense lawyer in the case to character assassinate her.

The Code of Criminal Procedure (Amendment) Act of 2005

For the liberal interpretation of Section 53 of the CrPC, it became necessary that a rape victim should be examined by a woman doctor only. This was done with the thought that the victim would be safer in the hands of a woman doctor. But it was sooner realized that there were fewer number of woman doctors in the workforce of doctors (especially in the rural hospitals) and their workload with maternity services often resulted in delaying the medical examination of the rape victims. Even if a doctor was available their busy schedule forced them to have only a cursory look at the victim and that resulted in an improper and incorrect collection of evidence. As earlier there was no specified law in these regards there was a lot of confusion regarding to who will ultimately examine a victim : a male doctor or a female doctor, and what will be the extent of that examination. 

The CrPC Amendment Act of 2005 brought about specific sections related to

• medical examination of the victims (Section 164(A) CrPC);
• medical examination of the accused (Section 53(A) of CrPC); 
• investigation by judicial magistrates of custodial rapes and deaths. (Section 176(1A)(a)(b)(CrPC)).

Section 164(A) CrPC explains the legal requirements for the medical examination of rape victims.

• One of the main elements is the consent of the victim for the conduct of the examination on her. This is an important step and should be a part of the procedure.
• The examination should be conducted by medical practitioners (who are allopathic doctors registered under the Medical Council of India) in a hospital run by the government or by the local authority. If such a practitioner is absent then the examination should be conducted by any other registered medical practitioner. This provision would help in granting permission to any practitioner to carry out the examination if the victim consents.
• The examination should be conducted within 24 hours of the police receiving information about such an incident.
• The examination should be conducted duly and a comprehensive and a “reasoned” report must be prepared. The report must contain the victim’s name, age, address, the details of the person by whom she was brought, the description of the materials collected from the victim for the DNA profiling, marks of injury if any, the victim’s mental condition, the exact time of the commencement and the completion of the examination. The report must also state the reasons for each conclusion that is drawn after examining the victims. Also, without delay, it must be forwarded to the investigating officer who in turn shall transfer it to the concerned magistrate.

Section 164A(7) of CrPC explicitly states that nothing else should be considered as reasonable enough for conducting the medical examination on the victim if she (or any other person legally entitled to do so on her behalf) has not given the consent for the same. It tries to make it clear that no examination should not be conducted on the victim forcefully without her consent. On reading the section closely, one finds out that this section even grants the right to the victim to not consent to any sort of partial examination being conducted on her.

In cases where the victim reports to the hospital on her own, without informing the police, the law gives the victim the right to decide whether she wants to inform the police or not. Even Section 39 of the CrPC that allows the public to give information in certain offences also does not enumerate Section 375 and Section 376 of the IPC. 

In these cases, it must also be made clear that for how long the hospitals should be without such information or evidence. For this, it is also essential to ensure the hospitals are equipped for doing so.

Section 53(A) CrPC lays down the requirements for the medical examination of a person accused of rape. There was no law earlier whether age proof was required, whether to check the potency was sufficient or not, whether evidence of injuries, stains or DNA samples was required to be collected or not. The answer to this confusion is now provided in this section as to what must be done. The medical examination is to be carried out by medical practitioners who are allopathic doctors registered under the Medical Council of India) in a hospital run by the government or the local authority. In the absence of such a practitioner within a radius of 16km from where the offence has been committed, the examination can be conducted by any registered medical practitioner on the request of the police officer, not below the rank of the sub-inspector.

By this, it is comprehensible that the law wants the medical examination of the accused also to be conducted as soon as possible. The medical examination of the accused should be carried out in as smooth a manner as provided for the examination of the victim.

Section 176 CrPC had amendments regarding the inquiry by the magistrate into the cause of death in custody. Section 1(A) was added under which after an inquiry by the police, an inquiry shall be conducted by the Judicial Magistrate or the Metropolitan Magistrate, as the case may be, within whose local jurisdiction the offence had been committed.

According to Section 1(A), the cases under which such power is provided to the Magistrate should fall under the ambit of clause (i) or clause (ii) of sub-section (3) of Section 174 of the CrPC.

The amendment now requires a judicial magistrate to investigate all cases of rape and death in custody.

The Code of Criminal Procedure (Amendment) Act of 2008

Many women do not want to register a complaint in the police station because of the clumsy procedure it involves and the uncordial or uncooperative atmosphere of the police stations. 

A woman has to narrate her story of trauma and pain mostly to a male police officer which is yet another awkward situation for her. There are unreasonable delays in the whole process. A victim has to narrate her traumatic experience in open courts again and again in front of people who view her testimony with suspicion. She has to stand through all the open court long trials. She feels psychologically harassed because of the whole process. In many cases, it is also seen that after all this process due to the unavailability of sufficient evidence, the accused is acquitted and no relief is provided to the victim. After looking into all these issues amendments were done in CrPC in 2008 which came into effect in 2009.

A provision had been added to Section 157 of the CrPC which describes the procedure related to the investigation that must be followed. The investigation of the victim shall be done at the residence of the victim or any other place of her choice in the presence of her parents, guardian or any social worker of the locality.

The amendment in Section 173 CrPC requires a child’s examination for rape to be conducted within three months of the time when the complaint was registered with the police. Also when an investigation is forwarded to the magistrate it must contain a complaint that should be related to Sections 376,376A, 376B, 376C and 376D of the IPC.

The amendment to Section 309 CrPC has the additional provision that the examination or investigation of anyone under the sections of the IPC mentioned above should be completed within a period of two months from the time of the commencement of the examination of the witnesses.

The 2008 amendment to Section 327 CrPC allows an in-camera trial to be conducted and as far as possible by a woman police officer or magistrate. This section also partially lifts the ban on the printing or publishing of the proceedings in relation to the offence of rape, subject to maintaining confidentiality with respect to names and addresses of the parties.

There is yet another amendment in CrPC in Section 357(A) CrPC in relation to introducing a Victim Compensation Scheme. When a recommendation from the Court will be received, the state legal services authority or district legal services authority will decide on the quantum of compensation. There is also a provision for relief after inquiry by the state or district legal service authority in those cases where no trial takes place as it becomes impossible to trace or identify the accused.

Though the formal proceedings have to still be carried out, this amendment proves to be a progressive step. This amendment recognizes the monetary help that is needed for rehabilitation for the already shattered and devastated rape victim. 

Right to Privacy in the context of two-finger test

An appeal of an accused who was convicted by the trial court for the rape of the girl was heard by a Bench of the High Court comprising of Justice B S Chauhan and Justice F M I Kalifulla in 2002. The High Court upheld the conviction order given by the lower court. The counsel for the accused presented the argument that the girl was 17/18 years of age (though there wasn’t any evidence about the same; like a birth certificate) and also the reports of the doctor acted as a proof that there wasn’t any external injury on the body of the girl so, therefore, it meant that the girl had consented to the sexual activity and there wasn’t any type of force that was enacted upon her. However, the High Court referred to various cases and petitions and declined the request of the accused on the grounds that the two-finger test conducted on the girl violated her right to privacy, dignity and mental integrity. Also, the Bench presented its view that the consent given for sex cannot be established just on the basis of the two-finger test. Despite the fact that the woman’s virginity status has no role to play while medically examining her, the test still continues.

After such a brutal and heinous act, the women/girl must be protected & rehabilitated. Nevertheless, when tests like these are carried out it will be like more of a re-rape to the victim which will harm her Right to Privacy. The World Health Organisation also suggested that examination of women after rape should be minimally invasive and has also advised that any sort of medical examination is hardly necessary to be carried out on a sexual assault survivor.

The Supreme Court in 2013, in the case of Lilu@Rajesh and Anr v. State of Haryana (2013), held that the two-finger test must not be practiced as it was unconstitutional and the previous sexual experience of the victim should not be taken into account or consideration while determining the consent or the quality of the consent given by the victim. The Supreme Court has described opinions based on the two-finger test as hypothetical and opinionative. In the year 2014, the Union health ministry framed new guidelines for treating the rape victims. Under the purview of those guidelines, every hospital was expected to have a separate room for the medical and forensic examination of the victim. These guidelines also outlawed the two-finger test conducted on the victims terming it to be unscientific. 

The Department of Health Research (DHR) along with the Indian Council of Medical Research (ICMR) also prepared national guidelines for controlling criminal assault cases,  which will put an end to the horrendous medical procedure which the victims are subjected to, after suffering from sexual abuse. 

We must, however, always bear in our mind that it was not an easy journey reaching over here. It took us a long time for the realization of the fact that rape is a stigmatized crime. The survivors face a lot of humiliation and discrimination within their homes, office/ workplace and therefore the doctor at such a point of time, or rather at the most vulnerable situation of the victim can be of great help or support. 

Suggestions

One of the main functions of the Government of India, (as it is a part of several international treaties) is to make the Government follow all the methods and the procedures and make the criminal justice process respect the survivor’s or victim’s’ dignity, integrity, physical and mental aspects.

Some suggestions to boost the whole process can be-

• Hospitals should be using rape kits for the forensic examination which must comprise of bags, paper sheets for evidence collection, combs, documentation forms, envelopes, materials for blood sample collection, instructions, etc.
• Every police station should have a sexual assault cell taking into account the increasing number of sexual crimes happening every day. A special team must be made including female doctors, female officers, and attendants. 
• Doctors must not comment on the sexual history of the girl. 
• Trial courts must not accept any view regarding the fact that whether the victim is habituated to sex or not.
• The forensics test must be conducted by the female doctor and if it is conducted by the male doctor then it must be carried out in the presence of a female nurse.
• In India, only Delhi and a few other states have amended the procedures. The rest of the states still follow the old techniques for examination.  Therefore there is a need for a strict law that uniformly applies all over the country and acts as a regulating measure.
• There must be a strict implementation of the recommendation of the Justice Verma Committee about two-finger tests and regarding the collection of evidence. (The Committee has directed the discontinuation of the Two-Finger Test to find out whether the hymen is distensible because the process is hampering the right to privacy of the victim.)
• There must be proper counseling of the victim who suffered such a brutal act and her future habits, behavior pattern should be recorded so as to give the victim better treatment for improving her health and mental condition.
• Rehabilitation should be considered as one of the important processes so as to help the victim come out of the mental pain and trauma she just suffered.

Conclusion

Though much needs to be done for the sexual assault victims, some changes and amendments in the law in the past three decades have brought in hope for justice and fair treatment. With the help of various judicial and legislative actions there is a transformation in the process of investigation by the officers and doctors. Changes are also made in the procedure of trial and rehabilitation in cases of sexual assault. Rape is an odious, inhuman act which disrupts the purity of the society.  A test like the Two-Finger test is yet another inhuman and irrational process that attacks the right to privacy and is a serious blow to the mental, physical and ethical conditions of the victim. The test should be condemned and should be strictly prohibited by enacting amended laws that apply uniformly throughout the country.

References

• https://www.academia.edu/25504018/The_Two_Finger_Test_Legal_and_Ethical_Issue
• https://blog.ipleaders.in/medical-examination-of-rape-victim/
• https://ijme.in/articles/legal-changes-towards-justice-for-sexual-assault-victims/?galley=html#twohttps://blog.ipleaders.in/rape-laws-india/
• https://blog.ipleaders.in/offences-against-women/https://www.business-standard.com/about/what-is-section-375
• https://indiankanoon.org/doc/623254/
• https://devgan.in/ipc/section/354B/

The post Why was the Two-Finger Test banned? appeared first on iPleaders.

This article has been written by Sushant Biswakarma, a student from Symbiosis Law School, NOIDA. This article deals with the recent amendments in the Arbitration & Conciliation Act, 1996.

Introduction

In India, the Arbitration Proceedings are governed by the Arbitration & Conciliation Act, 1996 which is based on UNCITRAL Model Arbitration Rules, 1976 and UNCITRAL Model Law on International Commercial Arbitration. 

The UNCITRAL Model Rules have been amended in order to meet the present-day requirements and resolve disputes more efficiently.

The Indian Arbitration Act also sought to make some changes in order to modernize it and standardize it with the international laws of arbitration.

This article analyzes the amendments that were made in 2019 along with their pros and cons.

Arbitration and Conciliation before the amendment

• Arbitration

Arbitration is a way to settle disputes privately instead of going to court. It can be described as a process wherein the parties to a contract after having agreed upon to resolve the dispute without the aid of litigation, appear before a tribunal to seek remedies.

The arbitral tribunal has been defined in Section 2 of the Arbitration and Conciliation Act, 1996 as a panel of arbitrators. 

An arbitrator is a person appointed to resolve the dispute. He is like a judge in the case. There can be one arbitrator or more, provided that the number remains odd. 

Section 10 of the act gave the parties a free choice to determine the number of arbitrators for their proceedings as long as they are not in an even number.

The arbitral award is provided after the completion of the proceedings. Section 35 of the Act prescribes that the arbitral awards are binding on the parties and other claimants.

• Conciliation

Similar to arbitration, Conciliation is a form of Alternate Disputes Resolution (hereinafter referred to as ADR). 

In order to initiate conciliation, one party shall:

• Send a written invitation to conciliate, describing the issues to be discussed.
• When the other party accepts in writing the invitation, the proceeding of conciliation shall begin.

The parties may choose to appoint one – three conciliators.

Both parties together can appoint:

• One sole conciliator, or 
• One conciliator each, or 
• A third conciliator who shall act as a presiding conciliator as mentioned in Section 64 of the Act.

After the completion of the conciliation proceedings, the parties reach into a settlement agreement. 

Section 73(3) says that the settlement agreement will be binding on the parties and other claimants.

Why was the 2019 amendment required?

After the amendment of UNCITRAL Model Law in 2006, the UN General Assembly suggested all countries shape their laws relating to ADR accordingly, in order to achieve uniformity of arbitral procedures.

• To make the process uniform 

With the amendment, the government seeks to standardize the procedure of International Commercial Arbitration to make it at par with the international arbitration procedures.

Also, the process of domestic arbitration would become standardized for more efficiency.

• To Promote Alternate Dispute Resolution

The Government of India is the biggest litigator in the country and it needed to promote a more cost-effective and faster way to resolve disputes.

The latest amendments seek to promote ADR and have formed a council that has been vested with the responsibility to do so. 

With this amendment, we strive to make India a hub of domestic and international arbitration such as Singapore.

• To reduce the burden of the courts

Courtroom litigation is still the most popular way people seek to resolve their disputes.

Even when people go for arbitration but cannot find an arbitrator, they approach a High Court or the Supreme Court for the appointment of Arbitrators.

The burden of the courts will be lifted to some extent with the presence of an Arbitration Council for the appointment of arbitrators.

• To provide a faster remedy

The act provides that the proceedings of an Arbitration must be completed within 6 months from the date of appointing the arbitrators.

The arbitral award is to be given within 12 months from the date of appointment of arbitrators.

This will definitely speed up the entire procedure and provide a quicker remedy.

What are the key changes brought about by the amendment of 2019?

Definition of Arbitral Institution

Section 11 of the Arbitration and Conciliation prescribes the procedure for appointing arbitrators. 

Prior to the amendment:

• Parties were free to choose arbitrators on their own.
• The number of arbitrators to be appointed could have been mentioned in the contract under the arbitral clause. 
• A sole arbitrator could have been appointed by one party or together by both parties, or
• Each party could appoint one arbitrator each, and 
• The appointed arbitrators shall appoint the third arbitrator.

After the amendment:

• Arbitral Institutions have been introduced for appointing arbitrators for cases excluding international commercial arbitrations.
• It has been defined in Section 2 of the Amendment Act of 2019 as an arbitral institution designated by the Supreme Court or a High Court as the case may be.
• In international commercial cases of arbitration, the arbitral institution designated by the Supreme Court will appoint arbitrators.
• In domestic arbitration, the same will be done by an arbitral institution designated by the concerned High Court.
• If any arbitral institution is not available, the Chief Justice of a High Court has to make a panel of arbitrators to work as an arbitral institution.
• The process of appointing arbitrators should be completed within a maximum of 30 days.

Eligibility of Arbitrators

An arbitrator is the most important person in an arbitration proceeding. He is like a judge who hears both parties and reaches a solution for settling the dispute between the parties. 

The act had no eligibility criteria for an arbitrator prior to the amendment.

Section 11 stated the process of appointing arbitrators but did not mention any qualifications that may be required.

It was briefly mentioned in Section 11(8) that if any specific qualification is required for the arbitrator, then the party could make an agreement for the same before appointing one.

In order to maintain the quality of arbitrators, some qualifications and experience have been laid down in the 8th Schedule that the arbitrators are required to have.

The 8th Schedule states that in order to be an arbitrator, a person should be either:

• An advocate who has at least 10 years of experience in practising as an advocate; or
• A chartered accountant who has at least 10 years of experience; or
• A cost accountant with at least 10 years of experience; or
• A company secretary having at least 10 years of experience; or
• A former officer of the Indian Legal Service; or
• A law degree holder who has at least 10 years of experience in legal matters with the government, or public or private sector; or
• An engineering degree holder who has at least 10 years of experience as an engineer; or
• A former senior-level officer of the central or state government;
• A college graduate degree holder with at least 10 years of experience in specialized areas in the government, such as – telecom, information technology, intellectual property rights.etc.

On reading the list, it is clear that no foreign lawyer or any equally qualified foreigner can be appointed as an arbitrator.

The amendment was made to promote international and domestic arbitration and make the process easier, fairer and more reliable.

But, the exclusion of foreigners is in opposition to the intent behind the amendment.

In matters of international arbitration, the foreign parties will not have the arbitrator of their choice because of his nationality. This might discourage them to opt for Arbitration proceedings in India.

This defeats the purpose of the amendment as the purpose of the amendment was to promote arbitration in India and make India a hub of Arbitration.

Arbitration Council

The new amendment has introduced a new independent body, known as the Arbitral Council of India. The council has been assigned a number of functions including promoting ADR and framing policies to make the Arbitration procedures more efficient.

Section 43C of the amendment act of 2019 says that the council will be headed by a Chairperson who will be either:

• A former Judge of the Supreme Court, or 
• A former Chief Justice of a High Court, or 
• A former Judge of a High Court.

The chairperson is required to have specialized in the field of arbitration and must be experienced in the conduct or administration of arbitration.

The council also includes other members who are:

• An eminent practitioner of arbitration who is knowledgeable and experienced in domestic as well as international arbitration.
• An eminent academician who specializes and professes ADR laws.
• The Minister of Law and Justice, or Secretary in the department of legal affairs.
• Secretary in the Department of Expenditure or in the Ministry of Finance.
• A representative of a government recognized body of commerce & industry, who will be on a rotational basis.
• Chief Executive Officer or a Secretary ex officio.

• Duties and Powers of Arbitration Council

The main duties of the Arbitration Council are:

1. To frame policies for grading Arbitral Institutions and authorizing arbitrators.
2. Frame norms to maintain a good quality level of ADR.
3. Promote institutional arbitration by strengthening arbitral institutions.
4. Keeping records of arbitral awards granted in India and Abroad.
5. And other duties that will be decided by the Government.

• Grading of Arbitrators and Arbitral Institutions

The Arbitration Council of India has been assigned with the duty to grade Arbitrators and the Arbitral Institutions. Grading will be done on the basis of:

• Quality and capability of arbitrators;
• Performance;
• Infrastructure;
• Meeting the time limits for disposal of domestic or international arbitral proceedings.

Time-limit for completing proceedings

Section 23 of the Act talks about Statements of claim and defence. Prior to the amendment, the time limit for statements of claim and defence could have been: 

• Agreed upon by the parties; or 
• Could have been decided by the arbitral tribunal.

After the amendment of 2019, a new subsection – Section 23(4) has been added to the section.

The new Section states that the statement of claim and defence should be completed within 6 months from the day when the arbitrator or all the arbitrators have been appointed.

Section 29(1) has been added which states that:

• The arbitral award must be given within 12 months from the date of completion of proceedings as prescribed under Section 23(4).

The proviso to the Section states that in cases of International Commercial Arbitration:

• The arbitral award must be given as quickly as possible;
• The arbitrators must try as hard as possible to give the award within 12 months from the date of completion of Arbitral Proceedings.

The intent behind this amendment of time limitation was to provide a faster remedy and save the parties their time and money.

But, earlier the parties had the freedom to decide the time limit of the proceedings that could match their schedule and fit them best, which cannot be done now.

The time limit puts a lot of pressure on the arbitrators to complete the proceedings quickly, it ignores the fact that international arbitration can be very complex at times and completing them within 6 months could not be possible.

Arbitrations can happen within multiple parties, that could make huge stacks of paperwork. Completing such proceedings within 6 months could not actually be possible.

Arbitral awards

Section 34 of the Act talks about setting aside an arbitral award. It says:

• The only remedy to a court against an arbitral award is to set aside the award by way of an application by a party.
• The party seeking to set aside an award must “furnish proof” that:
  – The party did not have the capacity;
  – The arbitration agreement was invalid;
  – The party was unable to present his case properly;
  – The main disputes are not addressed in the award.

In the latest amendment, the words “furnishes proof that” has been replaced with “establishes on the basis of the record of the arbitral tribunal that”, in order to elucidate that the parties seeking to set aside an award will have to establish their case solely relying upon the record before the arbitral tribunal.

Setting aside an arbitral award can be done by presenting a petition before a Court, and if the court is satisfied the award can be set aside.

If any petition under Section 34 is pending before the court, the arbitral award could not be enforced. 

This was prescribed in Section 87 of the act which says that:

• There will be an “automatic stay” on awards if the same has been challenged and the petition is pending before the court.
• Which meant that even after receiving an arbitral award, the award holder party can not enforce his award while the petition of the other party that challenged the petition is pending before the court. 

In the case of Hindustan Construction Company Ltd. v. Union of India, the Supreme Court was of the view that this section clogged the rights of a bona fide award holder and deprived him of enjoying his award.

The court also observed that this section leads companies into insolvency as it does not allow companies to pay their creditors with the amount received from the arbitral awards till the petition is bending.

It was the contention of the petitioner that companies such as the National Highway Authority of India (NHAI) were owed thousands of crores of rupees which was not paid due to the automatic stay on arbitral award. This automatic stay is putting such companies through insolvency.

The court said that any payment that the award holder is due to receive will not be processed because of the automatic stay of the arbitral award. That pushes such award holders to the rigours of the insolvency code.

The award holder may be able to get his award enforced only after years of litigation due to the automatic stay. While it defeats the purpose of ADR which was to provide speedy remedy.

The Supreme Court considered Section 87 to be defective and held that it leads companies towards insolvency. Also, award holders are deprived of enforcing their order.

Therefore, Section 87 was repealed by the Supreme Court.

Retrospective Effect

In the case of BCCI v. Kochi Cricket Pvt. Ltd the parties had initiated arbitration proceedings in 2011 and two arbitral awards were given in 2015 after the aforementioned Section 87 came into force by way of 2015 amendment.

The respondents went for getting their awards enforced while the applicants filed a petition challenging the awards.

The respondents were not allowed to get their orders enforced due to the pendency of a petition before the court. Even though the concept of automatic stay did not exist when the cause of action arose and the parties went to settle their dispute.

Section 87 was introduced much after the proceedings had initiated. A single-judge bench in Bombay High Court said that automatic stay would apply in this situation. Giving the amendment act a retrospective effect.

However, when the case went to the Supreme Court, it was held that the act will not have a retrospective effect and automatic stay shall not be applicable in cases where the proceedings began prior to when the amendment came into force.

In the 2019 amendment, a new Section 87 has been inserted in the Act. The section states that:

• The amendment of 2019 will be applicable to proceedings that were initiated after the amendment of 2015 came into force.
• It shall not apply to court proceedings that arose out of arbitral proceedings that have been initiated before or after the amendment of 2015.

This newly inserted section is contrary to the judicial ruling in the BCCI case. It gives the amendment a retrospective effect for up to 2015. This section needs judicial interpretation, or should be repealed.

Powers of the Court to refer matters

Under Section 45 of the Act, the courts have been vested with the power to refer any matter to the arbitration clause if:

• There there is an arbitration clause in the agreement,
• One of the parties or any claimant requests for arbitration.

The court would reject the request if the court finds the agreement to be null and void.

This section has been amended to replace the words “unless it finds” to “unless it prima facie finds”. 

Prima facie is a legal maxim which translates to ‘on the face of it’. Meaning, at first glance.

Prior to the amendment, a court proceeding would take place in order to find that the agreement is null and void. The parties would argue and establish their case.

Post amendment, if the court can see that the agreement is null and void, the request can be rejected without any proceeding on that matter. 

Confidentiality Clause

Any proceeding of arbitration and conciliation must be confidential in order to protect any information of the parties being leaked. 

Section 75 of the act states that:

• Any conciliation proceeding is to be kept confidential notwithstanding anything contained in any other law.
• The settlement agreement shall remain confidential unless they need to be disclosed for purposes of implementation and enforcement of awards.

While the statute mandated a conciliation proceeding to be kept confidential, there was no such statute regarding an arbitration proceeding.

Keeping that in mind, a new Section 42A has been inserted in the act – that says:

• The arbitrator, arbitral institution and all the parties should keep the proceedings confidential.
• The information anyhow needs to be disclosed if needed for the purpose of implementation and enforcement of the award.

This was a much-required change brought upon by the new amendment.

Conclusion

The intent behind the amendments might have been good but the execution is not flawless.

The process regarding the grading of the arbitrators is not very clear. The exclusion of foreign arbitrators discourages foreign parties who wish to commence arbitration in India.

The amendment is a step in the right direction and with some more amendments, India may be able to become a Hub for Arbitration.

References

Legislations

• The Arbitration and Conciliation (AMENDMENT) Act, 2019
• The Arbitration and Conciliation Act, 1996
• UNCITRAL Model Arbitration Rules, 1976 
• UNCITRAL Model Law on International Commercial Arbitration. 

Online Sources

• http://arbitrationblog.kluwerarbitration.com/2019/08/25/the-2019-amendment-to-the-indian-arbitration-act-a-classic-case-of-one-step-forward-two-steps-backward/
• http://arbitrationblog.kluwerarbitration.com/2018/11/24/proposed-2018-amendments-to-indian-arbitration-law-a-historic-moment-or-legislative-blunder-2/
• https://www.mondaq.com/india/Litigation-Mediation-Arbitration/840292/The-Arbitration-And-Conciliation-Amendment-Act-2019-Key-Highlights
• http://arbitrationblog.kluwerarbitration.com/2018/10/16/bcci-v-kochi-untangled-issues/
• https://www.barandbench.com/columns/npac-arbitration-review-2019-arbitration-amendment-act
• https://www.clydeco.com/insight/article/arbitration-conciliation-act-of-india-2019-intent-v-purpose
• https://corporate.cyrilamarchandblogs.com/2018/03/supreme-court-2015-amendments-cabinet-2018-arbitration-amendments-good-india/
• https://corporate.cyrilamarchandblogs.com/2019/08/applicability-of-the-2015-amendments-2019-amendments-arbitration-conciliation/
• http://www.nishithdesai.com/fileadmin/user_upload/pdfs/NDA%20In%20The%20Media/News%20Articles/190909_A_The_Indian_bitration_and_Conciliation_Act_2019.pdf

The post Recent developments in Arbitration and Conciliation Act, 1996 appeared first on iPleaders.

This article has been written by Ishaan Banerjee, studying in Vivekananda Institute of Professional Studies, affiliated to Guru Gobind Singh Indraprastha University. This article gives a brief introduction to alternative dispute resolution and its pros and cons, along with exploring the different types of dispute resolution methods.  

Introduction

Today’s world has become globalised and commercial with the advent of technology. People can now contact each other and settle business deals and disputes when they are sitting at the opposite ends of the world. Most people no longer have the time to go and file papers at the courts and then wait long periods for a hearing. We are rapidly approaching a stage where litigation is being replaced with alternative dispute resolution (ADR), due to the inefficiencies and drawbacks of litigation. India hasn’t quite reached a stage where litigation has been completely displaced by ADR methods, but the legal system is beginning to see the benefits of ADR. This article shall be helpful to give you an overview of the ADR methods and how it is beneficial.

What is alternative dispute resolution? 

Alternative dispute resolution (ADR) refers to a range of dispute settlement methods which help the parties in the dispute to come to a settlement without going to court, or without litigating on the said matter. These methods usually involve a third party, who helps them in settling the disputes. In many cases, ADR methods are used alongside the litigation process as well through court authorisation.

How did the concept of ADR arise?

As stated in the 222nd Report of the Law Commission of India, the Constitution has guaranteed access to justice for all, primarily through Article 39A, which states that everyone must have an equal opportunity of getting justice and this must not be denied to any citizen by reason of economic or other sort of disabilities. 

The report further states that ‘access to justice’ for the common masses in India means access to the courts of law. But even that has been hindered, due to factors like poverty, illiteracy, ignorance, social and political backwardness etc. 

In a developing country like India, many people still live in poverty. When their rights get violated, they often do not have the money to fight long battles in the Court. They do not have the money to afford a lawyer. They do not know the legal system and procedures. Therefore, they often think that the court system is an inconvenience. 

These kinds of inefficiencies are shared reasons among many countries, which is why ADR is being explored. The courts also have too many pending cases and these cases keep going on for many years which is a tremendous burden to the courts. 

These reasons prompted the Indian Government to enact Section 89 of the Code of Civil Procedure, 1908 and replace the earlier Arbitration Act,1940 with The Arbitration and Conciliation Act 1996, in accordance with the mandates of the United Nations Commission on International Trade Law (UNCITRAL).

Pros and cons of ADR

Pros of ADR

• It is less expensive.
• It is less time consuming.
• It is free from the technicalities that are present in the court system. 
• The parties are free to differ in their opinion and can discuss their opinions with each other, without any fear of disclosure of this fact before the courts. 
• There is no feeling of enmity between the parties as there is no winning and losing side. They also get their grievances redressed and their relationship remains as it was before, therefore, they can conduct future business deals with each other.
• ADR is more suitable for multi party disputes, as all the parties can put forward their opinions at the same place and in one go, rather than going to court again and again. Also, it provides for a wider perspective of the dispute.
• The parties often have the choice of the ADR method to be used. They sometimes also have the choice to select the individuals or bodies who will settle the dispute.
• The process is also very flexible, according to what suits the parties.
• The parties also have the option of being confidential. The ADR system also enables the parties to put focus on practical solutions.
• A wider range of issues are considered and shared future interests of the parties are protected.
• ADR system also allows for risk management.

Cons of ADR

• ADR is not helpful where a dispute is to be decided on the basis of a precedent.
• When there is a need for court and interim orders, ADR would not be useful.
• ADR is less suitable when there is a need for enforcement.
• When there is a need for live and expert evidence and analysis in a case, then ADR would not be useful.
• When there is an imbalance of power, between the parties in the dispute, then ADR would not work.
• If the case is of a complex nature, then the adjudicating body must look into minor details and may need expert advice and suggestions. Here, ADR would probably not work.

Types of ADR methods

There are various ADR methods, but they differ from country to country. This article shall look at the main ADR methods used, with special focus on India.

• Arbitration 

Arbitration in India is governed by The Arbitration and Conciliation Act, 1996. It is a form of dispute resolution where one or more parties are appointed to adjudicate the dispute. They act as third parties. This third party should be neutral and this party is referred to as an ’arbitrator’ while the decision of the arbitrator, which is essentially a determination of merits in the case, is known as ‘arbitration award’.

The arbitration process is informal and this process allows the dispute to be resolved amicably and efficiently as it takes less time and involves lesser costs for the parties. Therefore, parties frequently choose to arbitrate when disputes arise, especially in the business world. Big corporations would rather settle disputes quickly, rather than fighting long cases in the courts. 

Before the arbitration process begins, an arbitration agreement is required to be formed. This agreement lays down the terms and conditions on which the arbitration process is carried out. It is determined through this agreement as to how the process will be made cheaper, efficient and and how the rules of evidence would be applied etc. This agreement should be valid as per The Indian Contract Act 1972 and the parties must have the capacity to contract under Sections 11 and 12 of the same Act.

Arbitral decisions are final and binding on the parties, who have limited scope of objecting to the decisions. Non binding arbitrations also exist wherein the party can request a trial if it is not satisfied with the arbitrator’s decision. 

Main Types of arbitral proceedings

Ad Hoc Arbitration

Under ad hoc arbitration , the parties involved in the dispute determine the conduct of the arbitration proceedings themselves, without going to an arbitral institution. In case if the parties are not able to settle on one arbitrator, or one of the parties is reluctant to appoint that particular arbitrator, then Section 11 of The Arbitration and Conciliation Act 1996 will be invoked by the other party. Under Section 11 of the Act, the arbitrator for that dispute will be appointed by either the Chief Justice of the Supreme Court or his designate or the Chief Justice of the High Court or his designate. 

• If it is a domestic arbitration, then the Chief Justice of the High Court or his designate will appoint the arbitrator.
• If it is international commercial arbitration, then the Chief Justice of India or his designate will appoint the arbitrator. In ad hoc arbitration, the fee of the arbitrator is decided mutually by the parties and the arbitrator.

Institutional Arbitration

In this kind of arbitration, the parties decide in the agreement itself, that an arbitration institution will administer the arbitration. The Indian institutions are International Centre for Alternative Dispute Resolution and the Indian Council of Arbitration. These institutions formulate the rules for arbitration owing to their experience in observing arbitral procedures and situations, therefore they are prepared for all possible situations that may arise in future arbitration cases. 

• Mediation

In mediation, a third neutral party aims to assist two or more disputants in reaching a settlement. This third party is referred to as the mediator. The mediator needs to properly communicate with both the parties and use proper negotiation techniques, in order to make one party fully aware of the other party’s perspective, through empathy and dialogue. This process is controlled by the parties.

One of the characteristics of this type of dispute resolution is that the mediator is not allowed to give an outcome of the dispute. The solution is given mutually, and the agreements are generally non binding. Parties are in significant control of the mediation process and it is strictly confidential. The parties can even go for litigation if they are not satisfied with the mediation process. 

It must be observed that the main aim of the mediation process is to build relationships, and not to make a decision. It is more of an amicable resolution of differences with potential form future business between the parties.

• Negotiation 

Negotiation is also a form of dispute resolution, but there is no third party to adjudicate the matter, therefore the parties work together to find a mutually acceptable solution or a compromise. The parties may choose to be represented by their attorneys during their negotiations. Negotiation is not statutorily recognized in India. There are no set rules for conducting a negotiation. 

Essentials of negotiation-

• It is a process of communication which helps to resolve conflicts.
• It can be entered into voluntarily and its outcome is non-binding. 
• The parties are benefitted here as they have control over the outcome and procedure and the process is carried out keeping their interests in mind. 

• Conciliation

In conciliation, the third party, who is called the conciliator, talks to the parties involved separately so that the parties can arrive at a mutually acceptable solution through facilitating talks between the parties. Conciliation is also governed in India under The Arbitration and Conciliation Act, 1996. Under Section 61, conciliation is provided for disputes arising out of legal relationships, whether they are contractual or not. 

Difference between mediation and conciliation

In mediation, the mediator plays a more active role in the the process by proposing compromise solutions after hearing all parties while in the case of conciliation, the conciliator has to bring the parties into such a state of mind as to facilitate the parties to come to an acceptable compromise. 

• Lok Adalats

In a country like India where there are many illiterate people, the concept of Lok Adalats is a necessity. This was first introduced in 1982 in Gujarat. This concept mainly focused on reducing the burden of pending cases on the Courts and has incorporated the concept keeping in mind various factors like social justice. 

Lok Adalats are governed under The Legal Services Authorities Act,1987. Sections 19, 20, 21 and 22 specifically deal with Lok Adalats. They have been organised by the State Legal Aid and Advice Boards with the aid of District Legal Aid and Advice Committees. These have helped poor people to avoid the inefficiencies of litigation. The aim of The Legal Services Authorities Act was to provide access to justice for all, whether he be poor or rich. Since the poor masses of the society were not being delivered on this promise, this Act was formed. This access has been further strengthened by judgements of various courts, such as the Delhi High Court, in the case of Abul Hasan and National Legal Service Authority v. Delhi Vidyut Board & Ors. AIR 1999 Del 88, where it gave an order for setting up permanent Lok Adalats. Further, the decision given by the Lok Adalat is binding and shall be treated akin to the order of a civil court., thereby increasing poor people’s access to justice. 

Conclusion 

There are many other dispute resolution methods, like med-arb, mini trial, summary jury trial etc. But arbitration, mediation and Lok Adalats etc are the most commonly used techniques of ADR in India. Throughout the world, ADR has been slowly becoming the favored choice for parties, but India still relies a lot on litigation. However, with the development of these ADR methods, and in an effort to improve access to justice, ADR is being seen as a necessity. Legal recognition should be given to all ADR methods including negotiation as they are viable and convenient., and it would help to ease the burden of the courts. 

References

• https://www.lawctopus.com/academike/arbitration-adr-in-india/#_edn29
• http://lawcommissionofindia.nic.in/reports/report222.pdf
• https://blog.ipleaders.in/adr-alternative-dispute-resolution/
• https://singhania.in/alternative-dispute-resolution-in-india-a-brief-overview/

The post An Introduction to Alternative Dispute Resolution  appeared first on iPleaders.