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  • Aug 20, 2019
    PROMISES OF PROTECTING HER SAFE BY HUSBAND ARE NOW FADED LANDMARK JUDGMENTS ON SECTION 498A OF IPC Reported cases of crime against women increased 83% from 185,312 in 2007 to 338,954 in 2016. Cruelty by husband or his relatives” was the most reported crime against women, accounting for 33% of all crimes in 2016. So, Are the laws incompetent or are the execution of the law needs to be effective? Section 498A of IPC deals with the crime i.e. Cruelty to the woman by his husand or relatives. UNDERSTANDING SECTION 498A OF IPC Where religions and customs translated marriage as a bond based on love and sharing, local experiences indicated it as a license to ill-treat the wife. Section 498A has been engrafted in the India Penal Code(IPC), 1860 in the year 1983 when the national concise was disturbed by cases of bride beating, suicides, cruelty by husband and relatives on the wife. Section 498A through its explanations defines the term ‘cruelty’ as any wilful conduct which drives the woman to commit suicide or harm her life or health, or any kind of harassment whether mental or physical in order to meet the unlawful demand. Section 498A prescribes the punishment of three years along with fine, also here the burden of proof lies on the accused as result of the consequential amendment made in the Indian Evidence Act. This article will be dealing with the five landmark judicial trends respect to the Section 498A of IPC. LANDMARK CASES HELD Shobha Rani v. Madhukar Reddi - Cruelty was defined Noorjahan v. State - Objects behind the enactment of Section 498A of IPC Natubhai Somabhai Rohit v. State of Gujarat & Anr - FIR instituted against one and all family members irrespective of the roles, is liable to be quashed Mrs Christine Lazarus Menezes v. Mr Lazarus Peter Menezes - Misuse of Section 498A of IPC is cruelty and ground for divorce Social Action Forum for Manav Adhikar and another v. Union of India - SC Modifies The Earlier Directions Issued To Prevent Misuse Of 498A IPC, Says No To ‘Welfare Committees’ 1 - Shobha Rani v. Madhukar Reddi “The categories of cruelty are not closed." These words of ‘Lord Denning’ as referenced in the judgment, defines the core of the judgment in this very case. In a very short period of Four years after the introduction of Section 498A of IPC, there was an urgent need of an appropriate definition of cruelty and the same was pronounced in the landmark judgment of Shobha Rani v. Madhukar Reddi, 1987. The case focused on three basic questions related to Section 498A of IPC - ● What is Demand for dowry? ● Whether amounts to cruelty? ● Whether wife entitled to a decree for dissolution of marriage? FACTS OF THE CASE - 1 - The Petitioner Sobha Rani married Madhukar Reddy the Respondent on December 19 1982, but the relationship between them became bitter and hence the Petitioner approached the court for Divorce on the ground of cruelty by Husband and his parents. 2 - The appeal was dismissed by the trial court on the ground that there is no satisfactory reason which invites the term cruelty or harassment. 3 - Adjectiving the Petitioner Sobha as ‘hypersensitive’ the High Court rejected the appeal and additionally held that demand for money had to be viewed from a proper angle and there is nothing wrong if the respondent, a medical doctor asking her rich wife to spare some money. 4 - Petitioner approached the Supreme Court, and the Supreme Court allowed the appeal by the special leave(Article 136 of the Constitution of India). JUDGMENT - ● Cruelty is the course of conduct of one which adversely affects the other. Cruelty can be defined as ‘Mental’ or ‘Physical’, ‘Intentional’ or ‘unintentional’. Physical cruelty can be easily determined based on facts and degree, but mental cruelty determination brings challenges. ● So it is a matter of inference to be drawn from - i) the nature of the conduct, ii) effect on the complaining spouse and if the nature of the conduct is found to have a harassing nature on the complaining spouse, then that will lead to cruelty. ● Cases like where the nature of the conduct is itself bad enough, unlawful or illegal then there is no need to inquire the effect of the conduct and cruelty will be established if the conduct itself is proved or admitted. ● Each case may be different. A set of facts stigmatized as cruelty in one case may not be so in another case. Cruelty alleged may largely depend upon - 1. type of life the parties are accustomed to, 2. their economic and social conditions, 3. their culture and human values to which they attach importance. ● Cruelty should be observed from the case and the conduct of the parties of the case and shall not be decided on any preset standard definition because new kind of cruelty may crop up depending upon the human behavior. "The Court has to deal, not with an ideal husband and an ideal wife (assuming any such exist) but with particular man and woman before it” - Chandrachud, J HELD - Decree for dissolution of marriage was granted by the Supreme Court. 2 - Noorjahan vs State Rep. By D.S.P The Supreme Court, in this case, torches the objects behind the introduction of Section 498A of IPC. It was also held by the court that cruelty has been defined under Explanations for the purpose of Section 498A. In words of Supreme Court - “ Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman is required to be established in order to bring home the application of Section 498A IPC” FACTS OF THE CASE - 1- Appellant-1(A-1) and Syed Ali Fatima(deceased) married on 22/04/2001. A-2 is the brother of A-1. A-3 and A-4 are the sisters of A-1 and A-5 is the mother and A-6 is the father of A-1 2 - A-1 to A-6 were arrested. A-2 came forward to give confessional statement The accused persons pleaded innocence and, therefore, the trial was held in the court of Session and conviction was recorded and sentence was imposed. 3 - Accused approached the Supreme Court and hereby leave was granted. JUDGMENT - ● In the judgment, the Supreme Court referenced the Statement of Objects and Reasons while enacting the Criminal(amendment) Law Act 46 of 1983. ● Section 498A is implied to combat the menace of dowry death and cruelty as the cases which were concerned with the ill-treatment of the married woman by his husband or the relatives of the husband which lead to the woman to commit suicide or was murdered constituted only a small fraction of cases involving such cruelty. ● The object behind the proposal of amending the IPC, Criminal Procedure Act and Evidence Act was to deal suitably not only with dowry deaths but also with cases of cruelty by Husbands or relatives to the married woman. HELD - The prosecution failed to establish the allegations on the appellant and therefore the appellant was released on bail and appeal was granted. 3 - Natubhai Somabhai Rohit v. State of Gujarat & Anr Cruelty has been mentioned in the IPC to deal with the ill-treatment with the married woman but it is also possible and happens, that people use to exploit their rights and powers. The fact that you have been embedded with the power doesn’t mean that you are going to trouble the whole family or the innocent one. FACTS OF THE CASE - 1 - Application was filed before the Gujarat High Court for quashing of the FIR in which all ten members of the family were shown accused under sections 498A, 323, 504,506(2) and 114 of the Indian Penal Code, 1860, read with section 3 and section 7 of the Dowry Prohibition Act without any idea of their roles in the alleged crime. 2 - According to the FIR the complainant was harassed by the family members and was subjected to cruelty. JUDGMENT - _The court emphasised on the judgment delivered in the case of Neelu Chopra and another vs. Bharti a s the complaint or FIR should show that which accused played what role in the offence otherwise the complaint will suffer from opacity. ● The tendency to rope all the family members in the FIR speaks for themselves and therefore it becomes a matter of importance to allege specific role for each of the members. ● “All should stay together” forms an indispensable aspect in a complaint, which ropes all family members. ● The court relied on what was held in G.V Rao v. L.H.V Prasad that a complaint relating to matrimonial dispute where all the members are roped into irrespective of role, becomes liable to be quashed. HELD - The FIR roping the whole family for the alleged offence, was quashed. 4 - Mrs Christine Lazarus Menezes v. Mr Lazarus Peter Menezes FACTS OF THE CASE - 1 - The appellant(Wife) had filed the Criminal Complaint against her husband(Respondent) to which he was arrested and was in jail for about 7 days , later the respondent approached Family Court for dissolution of Marriage on the ground of cruelty and the prayer was granted by the family court to the respondent. 2 - The Appellant appealed against the order of the Family Court which awarded a decree for dissolution of marriage on the grounds of cruelty, in the Bombay High Court. JUDGMENT - A False case under Section 498A contributes to mental cruelty to Husband by the Wife and may attract dissolution of marriage on the ground of Cruelty. HELD - Upheld the order of Family court, opined with the view that the husband has been subject to mental cruelty by the wife. 5 - Social Action Forum for Manav Adhikar and another v. Union of India " We have protected Pre-arrest or anticipatory bail provision in dowry harassment cases ," said the bench headed by the CJI and comprising Justices AM Khanwilkar and DY Chandrachud. On September 14 2018, Supreme Court modified its latter judgment pronounced in the case of Rajesh Sharma & Ors. v. State of U.P. before focusing on the fresh judgment of Supreme Court let’s have a catchy look at the judgment of Rajesh Sharma & Ors. v. State of U.P - The main concern before the Supreme Court was to deal with the misuse of Section 498A of IPC, so a committee ‘Amicus’ was appointed to overlook the problem and aid the court with relevant solutions. Family welfare committees were established to examine the complaints attracting Section 498A of IPC and present the report and, pro report, no arrest can be made. FACTS OF THE CASE - Nyayadhar, a Non-Governmental Organisation(NGO) which is a group of women advocates of Maharashtra’s Ahmednagar District approached the Supreme Court through a Writ Petition seeking sharpness in Section 498A, claiming that the otherwise "helpful instrument" in the hands of victim women has become "valueless". The case was before a three-judge bench headed by CJI Deepak Mishra. JUDGMENT IN THE PRESENT CASE - ● The court restored the powers of the police to act in Dowry harassment complaints under Section 498A of IPC and said - “ We think it appropriate to direct the investigating officer to be careful in dealing with the complaints of dowry harassment.” ● Investigating Officer probing with the offences under Section 498A should be provided rigorous training with regard to the principles stated by the top court relating to the arrest made in such cases. ● There should be gender justice for women as Dowry has a chilling effect on marriage, and also right to life and personal liberty of man. HELD - Family Welfare committee is quashed and police officers are now made competent authority to deal with the complaints and based on the facts of the case and subject to law should decide the case. CONCLUSION In accordance to deal with ‘Misuse of power‘ diluting the power of authorities, will rather lead to pendency and since today’s society should be provided speedy justice accurate and direct procedure should be followed. Authorities chargeable for adjudicating disputes or serious crimes should be in direct power to deal with the case in accordance with the facts of the case considering the legal sphere and so the same has been held by the Supreme Court modifying its the previous judgment. AUTHOR- Mr. Prashant Tiwari (Penultimate Year Law Student)
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  • Aug 20, 2019
    Do you know that one out of every six older persons living in the urban areas of India isn’t getting a proper nutrition intake? One out of every three older persons don’t get treated with appropriate health care and medicine? And one out of every two older persons are not getting the love and good conduct from their family members they deserve? Well, all these problems may seem normal to you but have you ever thought of an old person walking next to you? Let’s not deny the fact that in today’s era of urbanization where women are increasingly joining the workforce, the roots of joint family systems are eroding. It’s very common as the even the stats suggest a higher number of older people who have spent most of their life with their joint families face loneliness and marginalization in their old age. Making this statement would sound like hyperbole but it’s a fact that in the rural regions the senior members of the family are respected more, and hold a strong joint family system as it’s roots are still existing. Surveys give the stats that in general, a village secures 46.91% of the older men and 50.1% of older women from an extended family wherein in rural areas only 13,560 out of 29,000 elderly have an extended family. These stats give us a clear perspective that senior people are suffering from serious issues. However, the government has implemented some laws in favor of senior citizens in every other country. We’ve put together some of the major laws which benefit the seniors and their livelihood. The legal right of the senior citizens to claim for their maintenance is given under the personal laws, Code of Criminal Procedure and Maintenance and Welfare of Parents and Senior Citizens Act, 2007. Parents are entitled to claim maintenance from their son as well as their daughter if they are unable to maintain themselves under Section 20 of the Hindu Adoption and Maintenance Act, 1956. Also under the Muslim personal law, children are bound to pay for the expenses of the maintenance of their parents who cannot afford their livelihood. The income tax divisions provided different facilities for senior citizens and super senior citizens. Income up to 3 lakhs for senior citizens and 5 lakhs for super-senior citizens has been made tax-free while 10% of income tax is levied on the income of 3-5 lakhs in case of senior citizens. Under Section 80D of Income Tax Act, 1961 the deduction allowed for payment of medical insurance premium is 20,000 for senior citizens. Central Government pays a pension of INR 200 to senior citizens belonging to the BPL household under the National Old-age Pension Scheme. Another INR 200 is provided by the State Government to senior citizens. A concession of 30% and 50% in railway fare to male and female senior citizens both above the age of 60 years is provided by the railway ministry.   Ample of other laws and provisions are given to the senior citizens but these remain the most common and implied. Let’s not hesitate to make this statement that though the children have forgotten the responsibilities towards their parents, the government has made enough provisions for the betterment and ease of the senior citizens.
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  • Aug 01, 2019
    The initiation of space exploration and its advancement unexpectedly sparked off another field of law known as the law of outer space or the space law. Space law is an area of law that helps in governing activities in outer space and the effects arising out. Parameters of space law include space exploration, liability for damage, weapons use, rescue efforts, environmental preservation, information sharing, new technologies, and ethics. Other fields of law, such as administrative law, intellectual property law, arms control law, insurance law, environmental law, criminal law, and commercial law, are also included within space law. The five treaties and agreements of international space law cover non-appropriation of outer space by any one country, arms control, the freedom of exploration, liability for damage caused by space objects, the safety and rescue of spacecraft and astronauts, the prevention of harmful interference with space activities and the environment, the notification and registration of space activities, scientific investigation and the exploitation of natural resources in outer space and the settlement of disputes. The basics of space law are dependent upon five UN Treaties. Although there are innumerable solutions to this domain but the treaties mentioned below provides for the most significant and substantive portion of space law. Five international treaties are: The 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (the "Outer Space Treaty"). The 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (the "Rescue Agreement"). The 1972 Convention on International Liability for Damage Caused by Space Objects (the "Liability Convention"). The 1975 Convention on Registration of Objects Launched into Outer Space (the "Registration Convention"). The 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (the "Moon Treaty").  
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  • Jul 11, 2019
    Spouse Support Alimony.   When a marriage ends, either one party will need financial support from the other to make ends meet for survival. Alimony is the legal obligation to make those payments and receive the authority financially. Today, all states have no-fault divorce laws. It means, if either party wants a divorce, it's granted regardless of either side's reasons/obligations. When these laws came, it changed how alimony would be given. There is no gender-based consideration for either spouse. Instead, it depends on which party is the supported spouse, which is determined by the actual marital roles and earning capacity of each member. The judiciary will consider the mentioned points for giving the alimony: Earnings of both spouses, their standard of living, whether one spouse supported the other during his/her education, the length of the marriage, the age, physical condition, emotional state, and financial condition of the former spouses. Here “fault” is a differential terminology. Fault these days is called as marital misconduct; it can be infidelity, physical or sexual abuse, emotional abuse, or just about anything that forced the non-abusing spouse to endure excess burdens during the marriage. Misconduct by one party still affects alimony in two ways: If the spouse, the court requires making payments, engaged in misconduct, the court can increase the payment and If the supported spouse engaged in misconduct, the court might not give that spouse “pendent lite” alimony, which is support during the time of separation, and the payments wouldn't start until the divorce was final. Or the permanent alimony award might be lowered. Most alimony payments are issued on a regular monthly basis. There may be different types of alimony payments. Permanent Alimony : This is spousal support that last for an indefinite amount of time. Temporary Alimony : Spousal support that last for a specific amount of time. The time for terminating alimony may be set by the judge. Rehabilitative Alimony: This is alimony whose purpose is to help the other party recover financially. This type of alimony may terminate when the recipient has reached a certain level of financial stability. Thus, alimony orders are generally issued according to the projected needs of the parties. Alimony orders can often be modified or terminated according to the circumstances.
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  • Jul 06, 2019
    Social Media and Lawyer’s Privacy- An act worth reading!   Social Media has become an essential part of every living creature. People turn to social media sites for various reasons. Whether it’s to catch up on the news, to find out latest gossips on family and friends, to shop, or to locate a restaurant, social media is a primary source of information. Although social media has pervaded our culture for more than a decade now, the legal profession wasn’t always on board. In the beginning, lawyers were suspicious of social media and resisted what many believed to be short-lived fad. Over time, as it became clear that social media was here to stay, their attitude changed and an increasing number of attorneys became interested in learning using, social media for business development and professional networking purposes. The results of the American Bar Association’s 2017 Legal Technology Survey show that this trend continues, with more lawyers from firms of all sizes interacting online. From blogging and LinkedIn to Facebook and Twitter, the legal profession’s use of social media continues to increase.   Courts have also considered the ethical implications of social media and have granted access to social networking sites in some cases. In Romano v. Steel case, Inc., 30 Misc. 3d 427, 907 N.Y.2d 650 (N.Y. Sup. Ct., Suffolk Co. 2010), plaintiff claimed she had suffered permanent injuries that affected her enjoyment of life when she fell out of an office chair. The defendant sought to access the plaintiff's current and historic Facebook and MySpace pages, which revealed that she had an active lifestyle and had traveled during the time period she claimed that her injuries prohibited such activity. The court held that since neither Facebook nor MySpace guarantee complete privacy, the plaintiff had no legitimate reasonable expectation of privacy. Even though there is no privacy right regarding information contained on social networks, attorneys must be careful when attempting to access private information contained on the sites. In New York, lawyers may not use false or deceptive information to "friend" a party or non-party in order to obtain private, non-public information. Lawyers should use the normal discovery devices, such as a request for production of documents to acquire discovery from social networks.    
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  • Jun 20, 2019
    Specific Performance of Contract: Plaintiff to Prove Readiness and Willingness to Perform Contract- Supreme Court. Case name: Vijay Kumar & Ors. v. Om Prakash In the case, the Appellant approached the Supreme Court assailing High Court of Punjab & Haryana’s order, whereby the High Court had affirmed the judgment of the First Appellate Court thereby granting a decree for specific performance in favor of the respondent-plaintiff. In the appeal, one of the main contentions of the Appellant was that the respondent-plaintiff could not establish the readiness and willingness to perform the contract. Brief facts of the case: The case revolved around an agreement of sale entered between the parties in respect of a total sale consideration of Rs.26,00,000, wherein Rs.4,00,000/- was paid by the respondent-plaintiff to the appellants as earnest money and the remaining amount of Rs.22,00,000/- was to be paid on 31st March 2008 that is the date fixed for executing the registration of the sale deed. However, the sale deed was not executed on the stipulated date and subsequently, the respondent-plaintiff filed a suit for specific performance. The appellants contested the suit on the ground that the respondent-plaintiff was not ready and willing to perform his part of the contract. On consideration of the evidence, the Trial Court dismissed the suit for specific performance holding that the respondent had failed to prove his readiness and willingness to perform the contract. Later in appeal, the High Court set aside Trial Court’s order and passed an order in favor of the respondent-plaintiff. Bench’s Verdict  The Two-Judge Bench of the Supreme Court allowed the appeal in view of the following observations in the case: That in order to obtain a decree for specific performance, the plaintiff has to prove his readiness and willingness to perform his part of the contract and the readiness and willingness has to be shown throughout and has to be established by the plaintiff. In view of the facts of the case, the Supreme Court noted that the respondent-plaintiff had not shown his capacity to pay the balance sale consideration of Rs.22,00,000. The Supreme Court also remarked that the relief for specific performance is purely discretionary. The Court noted that though the respondent-plaintiff has alleged that he was ready and willing to perform his part of the contract, the First Appellate Court ought to have examined first whether the respondent-plaintiff was able to show his capacity to pay the balance money. Reference -Vakilno.1.com
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