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Cyber crimes can involve criminal activities that are traditional in nature, such as theft, fraud, forgery, defamation and mischief, all of which are subject to the Indian Penal Code and Code of Criminal Procedure. The abuse of computers has also given birth to a gamut of new age crimes that are addressed by the Information Technology Act, 2000.
The related laws and regulations include enactments such as Industrial Dispute Act 1947, Trade Union Act 1926, Minimum Wages Act 1948, Payment of Wages Act 1936, Factories Act 1948, Payment of Bonus Act 1965, Equal Remuneration Act 1976, Payment of Gratuity Act 1972, Workmen’s Compensation Act 1923 etc.
The people of India belong to different religions and faiths. They are governed by different sets of personal laws in respect of matters relating to family affairs, i.e., marriage, divorce, succession, etc. Law relating to marriage and/or divorce has been codified in different enactments applicable to people of different religions.
Intellectual property in India refers to the patents, copyrights and other intangible assets in India. The "Copyright Act, 1957" (as amended by the Copyright Amendment Act 2012) governs the subject of copyright law in India. "Indian trademark law" statutorily protects trademarks as per the Trademark Act, 1999.
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Legal Consultancy and Advocacy
Antitrust laws also called competition laws are statutes to protect consumers from predatory business practices. Such laws are expected to regulate economic activity that monopolizes competition within the market with aims to protect consumers and small enterprises and ensures the freedom of trade.
The major focus of “The Competition Act 2002” and the predecessor Monopolistic and Restrictive Trade Practices Act, 1969 (MRTP Act) was structured around regulating monopolistic behaviour however the erstwhile MRTP Act was not equipped enough to combat the aspects of market competition brought about after the LPG (Liberalization, Privatization, Globalization) policies in the 1990s. The world in general and India in specific was going through a shift towards globalisation. India in particular was moving towards opening its economy in the wake of privatisation and liberalisation.
Aims and Objectives of the Competition Act 2002
As per the preamble of the Competition Act, the objective of this Act is “…keeping in view of the economic development of the country, for the establishment of a Commission to prevent practices having adverse effect on competition, to promote and sustain competition in markets, to protect the interests of consumers and to ensure freedom of trade carried on by other participants in markets, in India, and for matters connected therewith or incidental thereto”.
The true mandate of this Act is present in its Preamble. The Act is aimed to focus on promoting sustainable and fair competition in the market; preventing and restricting the practises that cause appreciable adverse effect on competition; to promote and protect the best interest of the consumers, and to ensure the freedom of free and fair trade in the market. BY promoting and protecting these principles enshrined in the preamble of the Act, we move towards a more efficient economic system. The primary focus of the Act is to ‘protect and promote competition’ which shall result in benefits for all the stakeholders associated with the market including the competitors as well as the consumers.
In the case of the Competition Commission of India v. Steel Authority of India Ltd & Anr, the Supreme Court observed, “The main objective of the Competition Law is to promote economic efficiencies using competition as one of the means of assisting the creation of market responsive to consumer preferences.” The National Competition Policy, 2011 also stated that the primary role of the competition policy in India is to ensure the welfare by encouraging the optimal allocation of resources and granting economic agents appropriate incentives to pursue productive efficiency, quality, and innovation. Competition has a close relationship with the growth of the economy. There is sufficient statistical data do deduce that there is a directly proportional relationship between competition and GDP growth. Competitiveness results in GDP growth by increasing employment. This further increases the competitiveness in the market which results in increased productivity. Subsequently, this reduces the prices for the consumers.
ANALYSIS OF THE ANTI_TRUST LAWS IN INDIA
The Competition Act was implemented in stages. One of the more significant changes were brought about in May 2009 when the provisions dealing with anti-competitive agreements as mentioned in Section 3 of the Act and the abuse of dominant position as mentioned in Section 4 of the Act were implemented. Section 5 and 6 of the Act dealing with combinations, acquisitions, and mergers were brought into force in June 2011.
There are four most important components of the Competition Act of 2002, namely anti-competitive agreements, abuse of dominance, regulation of combinations, and competition advocacy. The Competition Act is a comprehensive Act consisting of 66 sections and 10 chapters.
Competition Commission of India (CCI)
Section 7 of the Competition Act, 2002 calls for the establishment of the “Competition Commission of India” (CCI). The CCI was established as a body corporate having perpetual succession and a common seal with power as per Section 7(2) of the Competition Act. Section 8 of the Act sets out the composition of the CCI. The CCI consists of a Chairperson along with not less than two and not more than six other Members to be appointed by the Central Government. Section 8 (2) of the Act states that all the members of the CCI including the Chairperson shall be persons of ability, integrity, and standing who have relevant and special knowledge of the market and industry along with at least 15 years of professional experience in economics, business, trade, finance, accountancy, public affairs and matters related to competition law, et al. Section 10 talks about the term of office of Chairperson and other members of CCI. According to Section 10 (1) of the Act, The Chairperson and every other Member shall hold office as such for a term of five years from the date on which they enter upon their office and shall be eligible for re-appointment, provided that the Chairperson or other Members shall not hold office as such after they have attained the age of sixty-five years.
The Delhi High Court held in the case of Google Inc. v. CCI that CCI has the power to review or recall its own order, but the same shall be subject to certain restrictions and the same should only be done sparingly.
COMPAT – Competition Appellate Tribunal
The Competition Appellate Tribunal (COMPAT) was a statutory body established pursuant to provisions under the Competition Act to hear and dispose of any appeals against any decision or direction by the Competition Commission of India (CCI). It also had jurisdiction over claims for compensation that may arise from the findings of the CCI or the Appellate Tribunal in an appeal against the findings of the CCI. COMPAT was set up on 19th October 2009 with its headquarters at New Delhi.
The COMPAT has been replaced with the National Company Law Appellate Tribunal (NCLAT) since 2017.
Prohibition of Anti-Competitive Agreements
Section 3 of the Act is a very important provision dealing with anti-competitive agreements and arrangements. It states that enterprises or persons or associations are prohibited from entering into agreements concerning supply, distribution, storage, production, acquisition or control of goods or services that can impact the market in a manner that causes “appreciable adverse effect” on the competition in the relevant market. In other words, an anti-competitive agreement is an agreement having an appreciable adverse effect (AAEC) on the competition. All such agreements are considered void as stated in Section 3(2) of the Act. The term appreciable adverse effect (AAEC) however, has not been defined in the Act.
Anti-Competitive Agreements can broadly be divided into two categories,
Horizontal Agreements
Horizontal Agreements are agreements between parties who happen to be at the same level of production in the market. All such agreements, if present shall be considered anti-competitive and illegal. The proviso to this particular subsection states that nothing contained in this sub-section shall apply to any agreement entered into by way of joint ventures if such agreement increases efficiency in production, supply, distribution, storage, acquisition or control of goods or provision of services.
Agreements under Section 3(3) are mostly between two or more manufacturers, two or more distributors or two or more retailers or parties which deal with similar kinds of products in the same market. These agreements have a direct negative impact on effective competition and the prices of commodities in the market. Hence, these are considered void.
Vertical Agreements
Vertical Agreements are agreements between parties or enterprises that happen to be at different levels or stages of production in the market. For these agreements, the presumption is not that they are always anti-competitive, but one has to establish that the agreement in question does indeed cause an appreciable adverse effect on competition for them to be declared void, unlike horizontal agreements.
There are certain exceptions to the section which are enumerated under Section 3(5) of the Act. The effect of Section 3(5) is that Section 3 dealing with anti-competitive agreements shall not be invoked in cases where the owner of any intellectual property rights under 6 enactments provided in Section 3 (5) (i) does anything in the exercise of their right to restrain the infringement of any of those rights or imposes reasonable conditions as may be necessary for the protection of any of those rights.
In the case of Mohit Manglani v. M/s Flipkart India Pvt. Lt.d & Ors it was alleged that e-commerce platforms were engaging in anti-competitive agreements by signing “exclusive agreements” with distributors and sellers of goods. The informant further alleged that this left the consumer with no option concerning purchasing the product other than to purchase it from the e-commerce website. The question before the court was whether the practise of entering into exclusive sale and purchase agreements by e-commerce platforms could be considered an anti-competitive agreement. It was held that such exclusive agreements were not in violation of Section 3 of the Act, instead, they were assisting the consumer to make an informed choice.
The CCI in M/s Jasper Infotech Private Limited (Snapdeal) v. M/s Kaff Appliances (India) Pvt. Ltd. held that the display of products at a price which was less than the pre-determined price agreed to by the distributor hinders their ability to compete. This was considered a violation of Section 3(4) read with Section 3(1) of the Act.
Abuse of Dominant Position
According to the Competition Act, 2002, dominant position means a position of strength or dominance in the relevant market that is maintained by an enterprise. That dominant position must enable the enterprise to operate independently of the competitive forces in that relevant market and affect competitors, consumers, or the relevant market in its favour. Dominant position is when one or more undertakings in a defined market use their position in that relevant market to affect price, supply, the amount of production and distribution, by acting independently of their competitors and the customers of that relevant market.
Section 4 of the Competition Act, 2002 prevents any enterprise or group from abusing its dominant position. The relevant section lists situations where there may be an abuse of dominant position.
An enterprise in dominant position performs any of the following acts:
The Competition Act does not frown on dominance as such. An enterprise is free to grow as large as it pleases or achieve as big a market share as it can. The problem arises only when there is an abuse of dominance. Section 4 of the Act is attracted when an enterprise or firm, or group of enterprises or firms which are dominant in the market engage themselves in eliminating or affecting their competitor(s) in a way or when they deter the free entry of new players in the market which results in reducing or lessening the competition in that relevant market.
An important term and concept to understand this is the ‘relevant market’. Section 2(r) of the Act defines the term relevant market as, the market which may be determined regarding the relevant product market or the relevant geographic market or regarding both the markets.
Another important concept is that of ‘Predatory Pricing’. For instance, if one player in the market decides to sell their product, which is similar to the competitors in that relevant market at a price that is lower than that of their competitors intending to drive them out of the market, then that is known as Predatory Pricing, According to Explanation (b) to Section 4 of the Competition Act, 2002, predatory price means the sale of goods or provision of services, at a price which is below the cost, as may be determined by regulations, of production of the goods or provision of services, with a view to reduce competition or eliminate the competitors.
Cartels
A Cartel is a kind of an agreement between enterprises or firms in an industry to restrict competition for their mutual benefit. These agreements cater for minimum prices, setting limits on output or capacity, restrictions on non-price competition, division of markets between firms either geographically or in terms of the type of product, or agreed measures to restrict entry to the industry to create a monopoly in a given market. Usually, cartels involve an agreement between parties not to compete with one another and they can occur in any industry and can involve goods or services at the manufacturing, distribution, or retail level. These cartels form combinations to control prices and supply. These restraints are also known as anti-competitive, anti-trust, monopolies, trade combinations, restrictive trade practices, restraint of trade, or competition law.
Cartels are considered to pose a threat to competition by causing AAEC and affecting fair competition negatively. Cartels are more likely to affect the developing economies and markets due to the presence of favourable conditions which exist when there are few competitors; products are uniform and leave little scope for competition; the existence of communication chances between members; the market is hit by either excess capacity or general recession.
Section 3 (3) when applied with Section 3 (1) of the Act prohibits cartel-like behaviour or formation of cartels in India. Under the Act, a Cartel is presumed to have an adverse appreciable effect on competition (AAEC) until otherwise proved. Some of the effects of cartelization on the relevant market are mentioned below:
Rajasthan Cylinders & Ors v Union of India (2018)
In 2018, the Supreme Court gave a landmark judgment which changed the jurisprudence of Competition Law in India with regards to bid-rigging or collusive bidding. The Supreme Court in Rajasthan Cylinders and Tired Limited v. Union of India noted that to reach an adverse finding such as that of bid-rigging as under Section 3 (3) of the Competition Act, 2002, mere parallel pricing cannot satisfy the requirements. The case was in an appeal against the decision of COMPAT which upheld the decision of the CCI. The DG in his report in the case of Pankaj Gas Cylinder v. Indian Oil Corporation Limited (IOCL) stated that there seemed to be some sort of an anti-competitive agreement between the bidders. The CCI started a Suo Motu proceeding against the bidding companies and held them in violation of Sec 3 (3) of the Act. The CCI looked into the market conditions, barriers to new entrants in the market, the presence of an active trade association, identical products with little or no substitutes, and other ancillary factors. IOCL held about 48% of the market share which should be considered ‘substantial’. Along with that the fact that the market consisted of only 3 buyers, deterring new entrants. Moreover, the infamous meeting of the association which was alleged by the DG in his report was reportedly only attended by 19 parties, and the parties which were not present for this meeting had also quoted similar or near-identical bids. Considering these submissions, the CCI held the bidders in violation of Sec 3 (3) of the Act. After an appeal was filed, the COMPAT upheld the decision of the CCI stating that IOCL did not receive the honest competitive prices that it would have and hence the actions of collusive bidding caused AAEC. The appellants approached the Supreme Court of India. The Supreme Court took a very interesting approach in this case. Considering the arguments made by the counsel for the appellants, the apex court stated that market conditions are a very relevant factor while determining collusive bidding. Relying on the Excel Crop judgement, the Supreme Court reiterated that mere identical or parallel pricing is not sufficient to establish collusive bidding, other factors are also very important and relevant. The court in this case accepted the submission of the appellants stating that the market conditions were that of an oligopsony. In an oligopsony, the substantial share of the market is controlled by one party or a few parties. In such situations, the inter-relationship of the parties is such, that there can be no fair competition due to the dominant presence of the largest market shareholder. Here, IOCL controlled 48% of the market share which can safely be considered substantial. IOCL thus had control over the market prices, demand, and supply, et al. it also had the ability and power to affect the market price, demand, and supply in the identifiable ‘relevant market’. The appellants argued that in the present case the entire control was with IOCL and thus there can be no question of entering into an agreement for collusive bidding. Stating in other words, that the market conditions in the present case are unique and thus there is not pre-existing fair competition present in the market. The suppliers are powerless because the market is dominated by IOCL, which may control the market price, demand, and supply in the entire relevant market. In such a scenario, the bidders getting into an agreement of anti-competitive nature would simply not make sense or have any benefits. Hence, there was no bid-rigging and no cartelization proved against the appellants.
Conclusion Undoubtedly the Covid-19 pandemic has caused a disruption in businesses everywhere. Certain businesses are facing losses across sectors and the revenue has reduced greatly and then there are certain businesses engaged in essential services and other goods and services which have become a necessity in the pandemic. The Competition Act, 2002 is a very comprehensive and well-crafted piece of legislation that aims to regulate the market. The CCI and the appellant tribunals have, in a very short period of time attempted to create fruitful jurisprudence in the realm of competition law in India. We must keep in mind that the benefits of competition in the market are for all the stakeholders. Anti-trust laws are one of the most important requirements for economic development.
— Dhananjai Shekhawat, an intern at Ravindra Vikram Law Associates
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When a couple separates, in the case of divorce, if there exists a child, there arises a question as to what is the situation of that child. Custody of a child is the legal right to take care of the child who is a minor (less than 18 years) and his/her future and property in the event of separation or death of one of the parents. It is up to the Court to decide as to who gets the custody of the child. In general, there are 3 kinds of custody, as follows:
1. Joint Custody:
The Court awards the custody of the child to both the parents. It is dependent on the facts and the Court as to how the responsibilities would be shared by the parents. It is not mandatory for both the parents to live together for the custody, instead the parents can turn by turn have the custody of the child. The Court makes sure that both the parents can take care of their child prioritising the welfare of the child
2. Physical Custody:
In physical custody, the Court awards the custody of the child to a single parent while the other parent can have the provision of visitations and interactions with the child. This type of custody is done generally for ensuring a safe and healthy environment that would promote the welfare of the child.
3. Legal Custody:
Legal custody is having the rights to take decisions on the welfare of the child as in education, medical treatment, raising of the chid. This type of custody need not necessarily be the physical custody of the child. Generally, the courts grant such custody to both the parents, so that both of them parallelly have the right to make decisions on kid raising choices.
Laws governing custody of the child in India:
These are different laws governing different kinds of marriages and hence there are different laws governing custody of the child too. Hindus, Buddhists, Sikhs and Jains are governed by Hindu Minority and Guardianship Act, 1956 whereas Muslims are governed by Muslim Personal Law (Shariat) Application Act, 1937. Custody with respect to Christians is governed by The Indian Divorce Act, 1869 and Custody for Parsis are governed by The Parsi Marriage and Divorce Act, 1936. It should be noted that all these laws are in addition to The Guardians and Wards Act, 1890 which is not gender specific.
Hindu Minority and Guardianship Act,1956.
This act applies only to Hindus, Buddhists, Sikhs and Jains. The Hindu Minority and Guardianship Act (herein after referred to as HMGA) and The Guardians and Wards Act (herein after referred to as GWA) are not derogatory but complementary to each other and hence the Court considers both the acts harmoniously while deciding upon the matters of custody of child among Hindus. Section 6 of HMGA, states that the father, and after him the mother are the natural guardians of the child and are entitled to have the custody of the child provided that the child is above 5 years and the girl is unmarried.
Section 6(c) of HMGA, provides the mother to have the custodial rights of the child if the child is below the age of 5 years. In case the girl is married, the custodial rights are given to the husband of the girl. While the law is enacted, the interpretation of the same is also necessary. In the case of Kusa Parida And Anr. vs Baishnab Malik And Ors, the Court held that: “legislature. the word `after’ does not necessarily mean after the death of the father, on the contrary, it depicts an intent so as to ascribe the meaning thereto as `in the absence of `- be it temporary or otherwise or total apathy of the father towards the child or even inability of the father by reason of ailment or otherwise and it is only in the event of such a meaning being ascribed to the word `after’ as used in Section 6”.
Also, in Ms. Gita Hariharan v. Reserve Bank of India, the apex court held that if the minor child is under the immediate custody of the mother who takes care of all the affairs of the minor even during the lifetime of the father, the mother would be deemed as the natural guardian of the minor child and the father, as per Section 6(a) of Hindu Minority and Guardianship Act, 1956 (Act 32 of 1956) would be considered to be ‘absent’ for the same. Moreover, it is deemed to be in the best interest of the minor if the custody of the minor child is transferred to the mother from that of the father and a fresh appeal can be filed in the court as soon as the child attains the age of five years, as the aforementioned is in the light of Section 6(a) r/w Section 13 of the Act.
Welfare of the Child:
The Courts in many cases have stated that while deciding the grant of custodial rights, the primary concern should be the welfare of the child and the decision with regard to custodial rights should be directed towards the welfare of the child.
In the case of Rosy Jacob v. Jacob A. Chakramakkal, it was held that:
“It is thus clear that the special enactment definitely states that the father is the guardian of the person of the minor until he is found unfit to be the guardian of the person of the minor. The welfare of the minor is the paramount consideration in the matter of appointing guardian for the person of a minor, and cannot be said to be in conflict with the terms of Section 19 of the Guardians and Wards Act which recognize the father as the guardian. Bearing this in mind, we proceed to consider as to who is fit and proper to be the guardian for the person of the minor children in this case”
As per the judgement in Surinder Kaur v. Harbax Singh the court held that even if the father is the natural guardian of the child before mother, welfare and interest of the child is of paramount consideration. It specified that the interpretation of “welfare” is to be in its widest sense so as to encompass all material, physical as well as mental well-being of the child.
The same was reiterated in the case of Re. v. Megrath (Infants) wherein the court held that the word “welfare” should be interpreted in the widest amplitude and not only in mercenary terms, it should also take into consideration his religious as well as moral well-being along with physical well-being of the child. The Supreme Court considered that the financial capacity should not be of sole importance as in the case of Dhanwanti Joshi v. Madhav Unde, it held that love, compassionate relations, understanding, care and correct guidance are also important for the holistic development of the child.
It was reaffirmed in the case of Ruchirkumar Gajanandbhai Suthar vs Amitaben D/O Hasmukhlal where the court held that the child below the age of 5 year cannot be looked after better than his/her mother by the father or any of his female relation no matter how compassionate and affectionate they are, the custody of the child should be granted to the mother as it is in the best interest of the minor.
Hindu Marriage Act, 1955
Section 26 of the Hindu Marriage act deals with the custody of children. The court may, from time-to-time issue decrees under the Act for the welfare of the child with respect to the maintenance, custody and education of the child, and even change the decrees passed by it in the best interest of the children. It is mandatory to dispose any application pending with the court with respect to maintenance and education od the minor within 60 days, from the date of service of notice on the respondent.
Mahommedan Law:
Under the Muslim Law, the mother has the custodial rights on the child so long as she is not disqualified. This is called as Hazanat and the mother can have custodial rights for a period provided by the law which differs in case of son and daughter.
Son: In Shia law, the mother has the rights for custody of the son until he is weaned (completed the age of 2 years). Among Malikis, the Hazanat lasts until the son attains puberty. According to Hanafis, the mother is entitled to the custody of the child until the child attains the age of 7 years. This is the same with Shafis and Hanabalis, but these schools hold that the child would be given a choice of living with either of the parents after the completion of 7 years.
Daughter: Under all the schools of Muslim Law, the mother has the custodial rights over the daughter until she reaches the age of puberty. This is being well settled in the case of Enamul Haque v. Bibi Taimunissa and Immabandi v. Mutsadi. In addition to that in Malikis, Shafis and Hanabalis, the mother is entitled to the custody of the daughter till the daughter is married. On the other hand, under Ithana Ashari Law, the custodial rights of the mother extend until the daughter is of 7 years.
Father’s Right to Hazanat:
Father’s Right to Hazanat is observed uniformly by all the schools on two conditions:
1. If the child has completed the age to which the mother and the other female relations are entitled to.
2. In the absence of the mother or other female relations those are entitled to Hazanat.
Other male relations entitled to Hazanat:
Among Shias, in the absence of father, the grandfather would be entitled to Hazanat and in the absence of grandfather, it is not clear as whom would be given the Hazanat to. Among Hanafis, nearest brother, full brother, consanguine brother, full brother’s son, consanguine brother’s father, full brother of the father, consanguine brother of the father, father’s full brother’s son and father’s consanguine brother’s son.
Other female relations entitled to Hazanat:
Under Shia school, after the mother, the Hazanat belongs to the father and in the absence of both or if both the parents are disqualified, the custody belongs to the grandfather. It is however ambiguous as whom would be the custodial rights be given to after the grandfather. Among Malikis, maternal grandmother, maternal great grandmother, maternal aunt and grand -aunt, full sister, uterine sister, consanguine sister, paternal aunt and among Hanafis, the mother’s mother, father’s mother, uterine sister, consanguine sister, full sister’s daughter, uterine sister’s daughter, consanguine sister’s daughter, maternal aunt, paternal aunts are the females entitled to Hazanat up to the age to which the mother is entitled to.
When would the Right of Hazanat be lost by a Hazina.
All the schools of Mohammedan law states that the Hazin will no longer have right to Hizanat in the following cases:
i) by her apostasy
ii) by marrying a person not related to the child within the degrees of prohibited relationship.
iii) by her negligence, misconduct or cruelty towards the child.
iv) “by her going away and residing, during the subsistence of marriage at a distance from the father’s place of residence”.
Interests and Welfare of the Child:
Although the law is laid down, the Courts in some cases have considered the interests and welfare of child while deciding the custodial rights. In the case of S. Rehan Fatima v. Syed Badinudin Pariviz, the Court held that the interests of the child are paramount and as the child was indicating his preference by hugging his mother, the Court held the mother to be entitled of the custody of the child.
Also, in Mohammed Jameel Ahmed Ansari vs Ishrath Sajeeda And Ors, where the grandmother of the child is residing in a foreign country and while the father has taken no interest in the boy since his birth, the boy expressed his preference to stay with his grandmother and the Court have accepted his preference and entitled the custodial rights to the grandmother of the child.
As per the judgement of Ali v. Majjo Begum, it was held that
“…..but the court should also consider whether in doing so, it would be for the welfare of the minor. If evidence shows that she would not be a fit person to have the custody or that it would not be in the welfare of the child to give her the custody”
The same was held in Sharif Khan v. Muniya Khan, where the court was of the opinion that the paramount consideration should be the welfare of the child through which the decisions should be guided and not by the personal law. “Further, welfare is not only measured at the yardstick of money and physical comforts. Moral and ethical welfare is also important”
Indian Divorce Act, 1869:
Christians in India do not have any particular provision for custody under Christian Law instead the Indian Divorce Act,1869 provides for the same. This act applies for Christians. Under the act, Section 41,42,43, 44 provides the Court the powers to pass orders pertaining to custody of the child in a suit for separation/dissolution/nullity. “In any suit for obtaining a judicial separation the Court may from time to time, before making its decree, make such interim orders, and may make such provision in the decree, as it deems proper with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of such suit, and may, if it think fit, direct proceedings to be taken for placing such children under the protection of the said Court.”.
In the case of Rosy Jacob v. Jacob A. Chakramakkal, the Court held that the any orders pertaining to the custody of the child can be varied from time to time depending upon the circumstances and passage of time if such variation would result in the welfare of the child. The Court also specified that the orders relating to custody obtained by consent can also be varied.
The court also observed that:
“Merely because the father loves his children and is not shown to be otherwise undesirable cannot necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him as against the wife who may also be equally affectionate towards her children and otherwise equally free from blemish, and who in addition because of her profession and financial resources, may be in a position to guarantee better health, education and maintenance for them”.
The Court ruled that the children are not to be considered as mere chattels or playthings to be shifted from one parent to other. Instead they should be considered as a separate individual where the child’s interest, development in a normal balanced manner should be prioritised so that the child shall be a useful member of the society.
Parsi Marriage and Divorce Act, 1936
This act is applicable only to Parsis. Section 49 of the Parsi Marriage and Divorce Act, 1936 mentions the provisions for custody of the child. Under the act, the Court has the powers to pass appropriate orders relating to custody and maintenance of the child.
In the case Jamshed Framroze Kalyanvala vs Mrs. Zerina Jamshed Kalyanvala, the Court held that:
“It is obvious that the welfare of the children is the paramount consideration in all matters regarding their education, maintenance and upbringing and the court in the event of a dispute will decide on the best course for the children on the above principle. We are therefore unable to accept Mr. Banerjee’s contention that the father merely because of his position as father and the earlier order of the court is entitled to have any absolute say in such matters. The position will have to be considered in the light of all the circumstances and in the context of children’s welfare”.
Also, in the case of Thrity Hoshie Dolikuka vs Hoshiam Shavaksha Dolikuka, it was held that while deciding the custody of a minor, it is true that the welfare of the minor is the paramount consideration, but while deciding the welfare of the minor, the interests and wishes of the child are to be considered.
The Guardians and Wards Act,1890:
This act is applicable to everyone irrespective of the religion. This is a secular act relating to the custody of child. Under the act, Section 17 states that the High Court should appoint a guardian for the minor who takes the custody of a child so that the resultant of which would help in the welfare of the minor. As every religion has its own personal laws, in addition to the personal laws, the Guardians and Wards Act, 1890 should also be considered harmoniously while deciding on the custodial rights of the child. This act is not in derogatory to the personal laws.
Conclusion:
In conclusion, it can be observed that both the parents are given equal possibilities of having the custodial rights over the child. But, when the child is of a very small age, custody with the mother is much preferred by the courts as the child at that tender age requires the mother’s affection and caressing. However, it’s true that the father is also equally important and entitled, but it is generally presumed that the child’s nourishment, mental health would be much better in the case of custody with the mother.
It can also be observed that the Courts have eventually considered interpreting the principle and purpose of the law rather than the strict application of the law. The courts have considered the welfare, development and interest of the child as a paramount consideration and not the mere application of the law. There have been cases where although the father is legally entitled for the custody, the Court has not provided the custody to the father considering the welfare of the child. This makes sure the child has a healthy environment and mental health to grow up so that the child is not treated just as a matter of dispute, but as an individual whose rights and interests are to be protected.
— Gagireddy Vyshnavi, an intern at Ravindra Vikram Law Associates
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Divorce, also known as dissolution of marriage, means terminating the bond of marriage. It is a process through which the marital bond ceases as per the law of the country. It sets the couple free from all marital relations, rights and obligations. It allows the couple to come back to the status as if they are not married or gives them right to marry again.
In India, like many other personal issues, divorce laws are also different for various religions followed in the country. The Hindu Marriage Act, 1955, governs the divorce among Hindus, Buddhists, Sikhs and Jains; Muslims are governed by Dissolution of Muslim Marriages Act, 1939, Parsis follow the Parsi Marriage and Divorce Act, 1936 and Christians are governed by the Indian Divorce Act, 1869. All divorce disputes arising in civil and inter-community marriages are governed by the Special Marriage Act, 1956.
Types of divorce petitions
Divorce with mutual consent
When both the husband and wife agree to end their marriage, the court grants them divorce on the basis of mutual consent between the couple. Generally, divorce with mutual consent takes less time and relatively is inexpensive because the couple reaches consensus with respect to property, maintenance and child custody.
The duration of a divorce with mutual consent varies between 6 months to 18 months depending upon the court’s decision. As per section 13B of the Hindu Marriage Act,1955 and section 28 of the Special Marriage Act,1956, the couple should be living separately for at least one year before the beginning of such court proceedings. However, separation of at least two years is required under section 10A of the Indian Divorce Act, 1869. One thing which is to be noted here is that living separately as mentioned above does not mean living at different places but only the fact that the couple is not living as husband and wife is enough.
Divorce without mutual consent
The couple seeking divorce under this provision can file petition upon certain grounds only and stating proper reasons. There other blogs on our website covering Divorce without mutual consent.
The role of mediation in divorce
The family courts and laws encourage to settle such disputes with amicable settlements outside the courts instead of suffering of the whole family because of litigation and court proceedings. Mediation here is a non-adjudicatory dispute resolution process to reach on a cordial agreement for dissolution of marriage.
As per section 23(2) and 23(3) of the Hindu Marriage Act, the court according to the facts and circumstances of the case, directs to try reconciliation between the divorce-seeking parties. Similarly, section 34(3) and 34(4) of the Special Marriage Act provides reconciliation as the first preferred option for divorce related matters. The alternate dispute resolution mechanism is provided in Section 89 of Civil Procedure of Code in cases where there is any probability of a settlement. In 2003 under Civil Procedure-Mediation Rule, the concept of mandatory mediation was introduced including family matters involving matrimonial cases since in the eyes of law it is one of the most important relationship which needs to be preserved.
In 2013, in the case of K. Srinivas Rao v D. A. Deepa, Supreme Court held that even in non-compoundable criminal cases where parties want to settle the dispute through mediation should be sent for same making it necessary for divorce cases to be sent for mediation if there are chances for settlement between the spouses.
Goals of divorce mediation
When both the parties seeking divorce agree to go for the process of mediation, there are certain goals of such mediation such as:
Why to resolve matter through mediation?
With the increasing number of divorce cases in the recent years, divorce couples have decide on dissolving the marriage amicably and , the judicial system has also realized the need of developing mechanisms to hear and settle disputes outside the courtroom. Hence, in the recent times popularity of mediation has increased around the country.
Advantages to a mutual divorce:
The parties in mediation are not required to reach a settlement always, sometimes they don’t.
Process of Mediation:
Most of the mediation process involves five stages- not necessarily in the same order as described below and also any stage can happen more than once as and when required.
If the court has directed the couple for mediation, then the mediator prepares a settlement report and submit it to the court along with the signed agreement. In case the couple was unable to negotiate and reach an agreement through mediation, then spouses go for litigation.
Conclusion
Mediation has also become popular mechanism in recent times to resolve matrimonial disputes since it is less time consuming and cost-effective, giving the parties the chance to reach to an amicable solution with respect to alimony, child custody and all such disputes which completely destroy relations in case of court-driven process. The couples with such matrimonial disputes opt mutual over litigation for better outcomes in a less distressing way and minimize impact of dissolution of marriage.
— Himanshi Sangtani an intern at Ravindra Vikram Law Associates
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Almost everyone and everything can be accessed with just one click behind a computer or phone, in this wave, there has been a surge in all forms of online stalking and sexual harassment especially, on social media platforms. The element of anonymity encourages and leads to the commission of such acts. This article primarily decodes and simplifies the various forms of legal remedy that is available for any such form of ONLINE stalking or ONLINE sexual harassment.
In general, cyber stalking refers to computer-based harassment. The term is usually interchangeably referred as online harassment or online abuse. Further, it can be understood that Cyber/ Online harassment/ stalking/ abuse may be defined as a repeated, unsolicited, hostile behaviour by a person through cyberspace with the intent to terrify, intimidate, humiliate, threaten, harass or stalk someone else.
LEGAL REMEDIES
In India, legal remedies primarily exist in penal form for the offence of cyber stalking/ harassment. They are present in general as well as specific legislations such as the Indian Penal Code, 1860 and the Information Technology Act, 2000.
Section 354 A of the Indian Penal Code primarily punishes offence of sexual harassment. In terms of cyber stalking/ harassment it provides to punish the following:
For the commission of acts mentioned in a) and b) the punishment is rigorous imprisonment for a period which may extend to three years, or with fine, or with both. Further for the commission of offence mentioned in c), the punishment is imprisonment of either a period which may extend to one year, or with fine, or with both.
Hence 354 A punishes posting of lewd comments or sexually coloured remarks on a woman, forceful sharing/messaging/posting showing of pornography to a woman, against her will and any requests made for sexual favours through online platforms as well.
Section. 354 C of the Indian Penal Code provides to punish the act of voyeurism. It inter alia defines the act of voyeurism to include the act of a man
when the woman is engaging in a private act.
In an instance, where the victim has ONLY consented to the act of capturing the image or recording a video of such kind, but has NOT CONSENTED or agreed upon the circulation or dissemination of the same, then, upon such non-consensual circulation or dissemination, such act of circulation or dissemination will constitute as an offence under section 354-C
The punishment for the commission of voyeurism as given under this section
Hence, the seriousness of the offence is indicative through the aggravated punishment that is given to repeat offenders.
There is a provision that addresses the issue of stalking that not only limit to physical forms but, also extends to cyber/online modes. It defines stalking to include “the act of any man who monitors the use by a woman of the internet, email or any other form of electronic communication,” that essentially forms online stalking which is punishable under this provision.
Certain exceptions have been laid out for the act as described under this section, the important one being if such act is reasonable and justified in a certain circumstance.
The punishment for commission of the offence under this section:
In Kalandi Charan Lenka v. State of Orissa, the accused sent obscene, vulgar and scandalous mails, published obscene pamphlets and the accused created a fake Facebook account with name of the victim with intentions to intimidate her and exploit her sexually. Upon the accused having changed her place of study to avoid harassment, the accused followed her to harass her online and offline. Theaccused was found to be guilty for the offence of sexual harassment.
Section 509 of the Indian Penal Code has been inserted in to the code to protect the modesty and chastity of women. In order to such an offence certain conditions are to be met, one The accused must have the intention to insult the modesty of a woman and in pursuance of such intention the accused must have carried out an act knowing that the woman whose modesty is being insulted can hear or see such sounds, words, gestures and objects. The act of insult of modesty could also be through the invasion of the privacy of a woman.
The punishment for conviction under this provision is imprisonment that may extend to a maximum period of 3 years along with a fine.
Section 506 and 507 of the Indian Penal Code, 1860 punish the offence of criminal intimidation. The essence of criminal intimidation as described under section 503 is the threat of causing injury /harm with the intention to cause such harm/injury and hence cause alarm in such person or force them to do an act they aren’t legally bound to do or force them to omit an act that they are legally bound to do.
In the context of harassment of women online, Section 506 can be accessed when a woman receives online threats of rape/ acid attack / sexual harassment/ any other criminal offence.
The conviction for the commission of an offence under Section 506 is punishable with:
Criminal intimidation of rape/acid attack/ sexual harassment online would fall under punishment given in (a).
Section 507 can be accessed or used when the criminal intimidation is committed by a person anonymously or by using a fake account or by concealing their identity.
Punishment for conviction of offence under section 507 is the same as that prescribed under section 506 along with the provision to extend the imprisonment to an additional 2 years.
6. Defamation- Section 499
A person can seek remedy under Section 499 of the Indian Penal Code, which exclusively deals with remarks on social media or obscene images or videos posted for public consumption and which prove to be defamatory, if they believes that their reputation is being harmed by a visible representation published on the internet can invoke this provision Under this provision, defaming a woman or a man on online platforms can be punished.
Information Technology (IT) Act is a special legislation that was legislated with the object of specifically providing legal remedy for cyber/online offences.
Section 67 of the IT act punishes the act of publishing, transmitting and causing the transmission of obscene/ vulgar content in electronic form. The term obscenity under this section is said to include any word that creates sexual thoughts in the reader or hearer or words used to express sexual desires or thoughts. Furthermore, judicial pronouncements have also held that words even if the words used are extremely unparliamentary, unprintable and abusive in nature, so long as the they aren’t capable of arousing sexual thoughts in the minds of the hearers or reader and does not involve any lascivious elements that arouse sexual thoughts or desires or the words do not have the effect of depraving persons, and defiling morals by sex appeal or lustful desires, it cannot be penalised and brought under Section 67 of the IT Act.
The punishment for first conviction of this offence is imprisonment for a term that may extend to a maximum of 3 years along with a fine that may extend up to Rupees Five Lakhs.
The punishment for second or subsequent conviction is imprisonment that may extend to a term of five years and with a fine that may go up to Ten lakh rupees.
Section 67 B of the IT act punishes an offence similar as in Section 67 B but however in a graver and more express form. Section 67 B punishes the act of publishing, transmitting and causing the transmission of obscene/ vulgar content in a sexually explicit way through an electronic form. Here the term sexually explicit in simple terms means that whatever matter is published or transmitted must be describing or representing sexual activity in a direct and detailed way along with it necessarily being lascivious or of prurient interest. Further an image of a person bilateral sexual activity, it can be unilateral sexual activity but it should be explicit and not implied.
For Example: When the image of a male private part is sent to someone through a Facebook private message, one can seek remedy under Section 67 of the act. However, a picture of an erected male private part held in their hand, is sent as a message, it is a more sexually explicit image along with being vulgar and obscene and hence can be charged under Section 67 A.
The punishment for commission of an offence under Section 67 A is:
Both these offences require the obscene content to be sent without the consent of the receiver/receivers. Further, the exceptions to these two sections is when the publication is proven to be correct as being for the public good or which is use bona fide for religious purposes.
2) Section 67 B- publishing or transmitting of material depicting children in sexually explicit act
Section 67 B of the IT act provides to punish those who publish, transmit and download child pornography that is children engaging in sexually explicit acts. The provision provides in detail the various acts relating to children in sexually explicit positions that could constitute an offence under it. The victim as under this section can be a child that is any person who has not completed the age of 18 years.
The punishment for the commission of offence under Section 67 B is:
3) Section 66 E- Violation of Privacy
Section 66 E of the IT Act punishes anybody who intentionally/knowingly captures, publishes or transmits a picture or video graph of the private area of a person without their consent. Such act is made punishable primarily as a matter of breach of privacy of person and as means to tackle voyeurism similar to his provision of law specifically deals with the offece with respect to electronically sent visual image with the intention to be viewed by a person or persons of an image videotape, photograph, film or record by any means the naked or undergarment clad genitals, pubic area, buttocks or female breast.
For example, in case a person A has installed hidden cameras in a ladies changing room where A knew that a B would come to swim and subsequently A has captured a video of B changing through the hidden cameras and has forwarded this video of B through MMS. Person B can seek remedy under section 66 E of the IT Act, against A’s actions.
Punishment for commission of offence under Section 66 E is
In the light of increased connectivity and anonymity, the instances of online harassment has gone up and subsequently laws have evolved and been incorporated to tackle these problems primarily through two legislations that are the Information Technology Act and the Indian Penal Code. The various acts of voyeurism, online stalking, child pornography, anonymous criminal intimidation (threats of rape/ acid attack or other forms of sexual harassment) etc have been made punishable and legal recourse is hence, made available for the same. Most of these offences have a maximum punishment that is usually for longer periods of 3, 5 or 7 years to create a greater level of deterrence. Furthermore, some offences such as stalking and voyeurism under section 354 C and 354 D of the Indian Penal Code are made punishable with graver punishment if there are instances of repeated offenders which is again indicative of the seriousness and gravity of the offence.
— Gowri Krishna an intern at Ravindra Vikram Law Associates
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