Antitrust Laws in India: Overview of the Competition Act

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,

  1. Horizontal Agreements
  2. Vertical Agreements

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:

  1. directly or indirectly, imposes unfair or discriminatory practices
  2. limits or restricts the production of goods or provision of any services in any form
  3. indulges in practice or practices resulting in denial of market access
  4. concludes contracts subject to acceptance by other parties of supplementary obligations which have no connection with the subject of such contracts; or
  5. uses its dominant position in one relevant market to enter into, or protect other relevant markets.

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:

  1. Determining purchase or sale prices (Sec.3(3a))
  2. Limiting or controlling production/supply markets technical development, investment or provision of services (Sec.3(3b))
  3. Sharing of market/sharing of the source of production by the allocation of geographical areas, number of customer or types of goods or services (Sec.3(3c))
  4. Resorting to bid-rigging or collusive bidding (Sec.3(3d))

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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Regulations for Custody of a Child: Implications of Divorce

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

The content here is for educational purposes only. User access at your own volition. Click the link to read the full Disclaimer.

Divorce through Mediation: Legal framework of Divorce with mutual consent

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:

  1. Creating an impartial, de jure and mutually agreed divorce agreement.
  2. Avoiding the expense and trauma caused due to litigation
  3. Minimizing malevolence and post-dissolution squabbles.

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:

  1. Quicker- mediation involves much lesser time.
  2. Less expensive- mediation is a low-cost procedure as compared to other procedure.
  3. Less formal- the informality of the mediation allows the parties to be more involved than a court-driven process because of abundance of laws and rules to be followed.
  4. Confidential- it is a more private way to discuss the issues rather than in court where everything happens publicly since people also don’t get comfortable disclosing their personal problems.
  5. Preserves relationships- the biggest advantage of mediation is that it helps to preserve relationships, business and personal things that usually gets highly affected due to years of litigation. It is more of collaborative than belligerent process.
  6. Control- in mediation, the parties have much greater control over the negotiation and outcome of the problem.
  7. Better results- parties generally are more satisfied of the results of mediation than litigation since it is reached through mutual consent of both the parties.

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.

  1. Introductory stage– this stage involves finding your counsel and briefing the about situation couple. Both the spouses share the background information about their situation. Reckoning on how well the spouses know each other and communicate, the decision on a suggests an approach to optimize the probabilities of reaching an agreement.
  2. Information-gathering stage– in this stage, collect all the necessary information to be fully aware of all the facts of the case to make the mediation successful. It may include financial documents such as tax returns, bank and mortgage statements, insurance policies, etc. If the information required is unavailable or disputed then mediator suggests ways to get it. Also, discussion regarding the laws that will govern the mediation, which involves laws related to division of assets and property, child custody, alimony, etc.
  3. Framing stage– in this stage, outlining all the interests of both the spouses in order to know the outcomes they are wanting from the settlement. These interests involve priorities, goals and concerns of the spouses. Now, often the interests of the two spouses overlap with each other such as in case of child custody, alimony, and property division.
  4. Negotiating stage–  it is time for negotiation to settle an amicable agreement. The negotiation involves amount and duration of alimony, child custody and time duration for child care, division of property and debt, etc.
  5. Concluding stage– in this stage, everything discussed and concluded is put in an agreement and both the parties sign it.

 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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Legal Remedy for Cyber Stalking and Online Harassment

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.

  1. The Indian Penal Code, 1860

The Penal Code has provisions that address issues of harassment/stalking that not only limit to physical forms but, also extend to cyber/online modes. The act inter alia defines stalking under section 354 D 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 the act.

  1. Sexual Harassment – Section. 354 A

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:

  1. a demand or request for sexual favours; or
  2. showing pornography against the will of a woman; or
  3. making sexually coloured remarks.

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.

  1. Voyeurism – Section. 354 C

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

  • watching or capturing the image of a woman or
  • disseminating such an image

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

  • for the first conviction is imprisonment for a term not less than 1 year but, which may extend up to 3 years along with a fine and,
  • for the second or subsequent conviction, imprisonment for a term which shall not be less than 3 years, but which may extend to 7 years along with the liability to pay a fine.

Hence, the seriousness of the offence is indicative through the aggravated punishment that is given to repeat offenders.

  1. Online Stalking – Section 354 D

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:

  • for the first conviction is imprisonment that may extend to a maximum term of 3 years along with a fine &
    • for the second or subsequent conviction is imprisonment that may extend to a maximum of 5 years along with a fine.

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.

  1. Word, gesture or act intended to insult the modesty of a woman– Section 509

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.

  • Criminal Intimidation – Section 506 and Section 507

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:

  1. Imprisonment which may extend to a maximum of 7 years or fine or both – if the intimidation is to cause death or grievous hurt or to cause fire to a property or commit a crime punishable with life imprisonment or imprisonment that may extend to 7 years or to impute unchastity to a woman.  
  2. Imprisonment that may extend to 5 years or fine or both – when any other form of criminal intimidation is committed other than those given in (a).

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.

  1. Information Technology Act, 2000

Information Technology (IT) Act is a special legislation that was legislated with the object of specifically providing legal remedy for cyber/online offences.

  1. Section 67 & Section 67 A – Publication, transmission and causing of transmission of obscene content and sexually explicit material

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:

  1. For first conviction – Imprisonment that may extend to 5 years along with a fine that may go up to 5 Lakh Rupees
  2. For second or subsequent conviction– Imprisonment that may extend up to 7 years along with a fine that may go up to 10 Lakh Rupees.

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:

  1. For first conviction – Imprisonment that may extend to 5 years along with a fine of ten Lakh Rupees.
  2. For second or subsequent conviction- Imprisonment that may extend to 7 years along with a fine of ten Lakh Rupees.

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

  • Imprisonment that may extend to three years or
  • A fine that may go up to two lakh Rupees or
  • Both.

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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Legal provisions for domestic abuse and violence in marriage

Domestic violence is violence or other abuse in a domestic setting, such as in marriage or cohabitation. Domestic violence is normally committed by a spouse or partner in an intimate relationship against the other spouse or partner. Domestic violence can take place in different forms, i.e., physical and mental violence, economical abuse, sexual violence, verbal abuse, etc. and are covered under Protection of Women from Domestic Violence Act, 2005.  There are also provisions under the Indian Penal Code addressing such violence which essentially include dowry death or harassment, female foeticide, public harassment or trafficking.

This article focuses on the legal framework of domestic abuse and violence especially in marriages, incorporating the Protection of Women from Domestic Violence Act (PWDVA), Indian Penal Code (IPC) and the Indian Evidence Act.

LEGAL MECHANISMS

  1. PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005, PWDVA

PWDVA is a civil law and it protects the women from violence inflicted by spouse/family members and recognises the right of the women to live in a violence-free home. The procedure adopted in such cases is as per the Criminal Procedure Code (CrPC) for the purpose of effective actions

  • WHO CAN FILE A CASE UNDER THIS ACT?

A case can be filed by an ‘aggrieved person’. According to Section 2 of this Act, an aggrieved person is any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.

The aggrieved person can file complaint or applications through a protection officer or a Service Provider or the person can directly file a complaint before the Court.

Though Section 2(q) defines respondent as male, in the case of Sou. Sandhya Manoj Wankhede vs Manoj Bhimrao Wankhede, it was held that legislature never intended to exclude the female relatives from the scope of complaint and that there is no restrictive meaning to ‘relative’ and the expression is not limited to males only.

  • KEY PROCEDURES INVOLVED UNDER PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT
  1. The first step to be taken is to inform the Protection Officer which is given under Section 4(1). Any person who has a reason to believe that an act of domestic violence has taken place or is likely to take place may give the information to the Protection Officer.
  2. Once the complaint is received by the Protection Officer, it is the duty of the Officer under Section 5 to inform the aggrieved person about her right to file an application for obtaining relief, the availability of services by the Service Providers and Protection Officers including the medical facilities and shelter homes under Section 9 and right to file a complaint under Section 498A of Indian Penal Code.
  3. After the receipt of the complaint, it is the duty of the Protection Officer to make a Domestic Incident Report to the Magistrate and submit it to the concerned Police Officer.
  4. Once the Application is presented before the Magistrate, the Magistrate shall fix the date which necessarily would not be beyond three days from the date of receipt and shall endeavour to dispose of every application within 60 days. A notice has to be served to the respondent by the Protection Officer within two days from the date of receipt.
  5. Further, the Magistrate may ask the parties to undergo counselling.
  6. In the meantime, the aggrieved person has the right to stay in her place of abode and cannot be evicted, moreover, a part of the house can also be granted to her for personal use, irrespective of her share in the property.
  7. The Magistrate, after hearing both the parties and being satisfied that domestic violence has taken place may issue a protection order or a residence order. The Magistrate may also direct the respondent to pay monetary relief in order to meet the losses and expenses occurred.
  8. In case there is a breach of the Protection Order, the respondent will be liable with imprisonment of either description which may extend to one year of imprisonment or with fine which may extend to Rs.20,000/- or with both.

Protection of Women against Domestic Violence Act, 2005 is assuring legislation as it provides temporary and emergency relief, it also provides effective and immediate remedies to the victims.

2. PROVISIONS UNDER INDIAN PENAL CODE, 1860

Indian Penal Code contains various provisions with regards to the offences in the form of domestic violence, they are discussed as follows:

  • FORCEFUL TERMINATION OF PREGNANCY AND FEMALE FOETICIDE

Forcing the wife to terminate the pregnancy and female infanticide are also the forms of domestic violence. IPC Section 313 states that the causing of miscarriage without woman’s consent is punishable. If a man causes the death of a woman while causing miscarriage, he would be liable for imprisonment up to ten years and if the act is done without the consent of woman, he is liable for imprisonment up to ten years or for life and a fine. Section 315 and Section 316 prohibits the act of killing a female child.

All these offences are cognizable, non-bailable and non-compoundable and could be tried by the Court of Session.

  • HURT & GRIEVOUS HURT

According to Section 319, anyone who causes bodily pain, disease or infirmity to any person is said to cause hurt. Section 320 recognises a hurt as grievous if it results in loss of sight or hearing, fractures or any serious hurt that endangers life, etc. Under these sections, the person who causes hurt can be punished only if there is intent behind it. The punishment if an act is caused voluntarily shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both. If the hurt is caused using dangerous weapons or means, severe punishment of 3 Years or Fine or Both.

  • MISAPPROPRIATION OF WIFE’S PROPERTY

Section 405 and Section 406 deal with the problem of misappropriation of spouse’s property which is a common form of domestic violence. It states that if the husband or any of his relative dishonestly misappropriates the property or converts to his use the property belonging to his wife, it will be termed as criminal breach of trust according to Section 405 and he will be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

  • RAPE

Section 375 of IPC, defines rape as sexual intercourse with a woman without her consent, against her will or coercing her, obtaining consent when she is intoxicated, or is of unsound mental health and if in any case, she is under the age of sixteen, irrespective of whether it is consensual or not.

Section 376A states that sexual intercourse of a man with his judicially separated wife would also amount to rape.

In the case of Nimeshbhai Desai v State of Gujarat the applicant was accused by his wife of performing non-consensual, unnatural sexual activity. It was held by the Court that the wife would not be in a legal position to initiate proceedings under Section 376 since marital rape is not recognised as a crime. The Bench, however, emphasized the fact that the husband should not violate the dignity of his wife by engaging in forceful sexual activity without her free consent.

  • MATRIMONIAL CRUELTY

Matrimonial Cruelty was introduced in the Indian Penal Code in 1983. Section 498A was introduced to protect the women from cruelty by her husband or any of his relatives. 498A is a criminal offence and the main objective behind its introduction was to combat the problem of domestic violence. It states that whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Under this section, cruelty means:

  • Any conduct which drives a woman to commit suicide or any conduct which is likely to cause grave injury to life, limb or health of the woman.
  • Harassment with the purpose of coercing her or her relatives to give some property and in case of the unfulfillment of the demand for money or property, the wife is harassed by her husband or his relatives.

An offence under this section is cognizable, non-bailable and non-compoundable and it is also triable by a Magistrate First class. Bar of limitation to take cognizance of the offence under Section 468 of Cr.P.C would not apply to matrimonial offences where the allegations are specifically of cruelty and torture. Cruelty is a ground for divorce and separation under all the personal laws.

  • DOWRY DEATH

Section 304B of IPC deals with dowry death, it states that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death. Any person who is found to be convicted under Section 304B shall be punished with imprisonment which would not be less than seven years but it may be extended to imprisonment for life.

  • ABETMENT OF SUICIDE

Section306 of IPC deals with the abetment of suicide. When a person drives another person to commit suicide with a motive, also followed by an action to drive another to commit suicide is amounted as abetment of suicide.

Whoever abets the commission of such suicide shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.

In the case of Brijlal v. Prem Chand, the deceased wife was continuously facing ill-treatment at the hands of her mother-in-law. The husband used to constantly pester her for bringing a sum of Rs. 10,000, he also stated that her death would provide him with relief. As a result of which, she set herself on fire and sustained 80% burn injuries on her body. Therefore, it was held by the Court the accused, i.e., her husband instigated her to commit suicide and hence, he was liable under Section 306. 

3. PROVISIONS UNDER THE INDIAN EVIDENCE ACT, 1872

Indian Evidence Act, 1872 provides the presumptions in respect of matrimonial offences which generally take place in the matrimonial homes. Since it is difficult to get any evidence to prove the matrimonial offence, presumptions are necessary.

The Act deals with the presumption of abetment of suicide by a married woman under Section 113A. The Section states that if a married woman commits suicide within seven years of her marriage and if her husband or his relatives had subjected her to cruelty, it is presumed by the Court that the husband or such relative had abetted the suicide.

In the case of Anup Kumar v State, wife committed suicide within one and a half years of marriage and records revealed that the wife was in a state of mental agony because of torture by her husband, the husband was treating her with cruelty and hence presumption was attracted.

CONCLUSION

Despite the progressive and comprehensive legislations for the protection of women, viz, PWDVA and Indian Penal Code, the malpractice still prevails in the society. One of the reasons for this is the lack of education of the rights of women and the responsibilities of adult who decide to live in a permanent relationship.


— Janhavi Sakalkar intern at Ravindra Vikram Law Associates

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Force Majeure Clause in Contracts: Impact on Lease Agreements

As we grapple with the Coronavirus pandemic, it has become increasingly clear that the commercial world will suffer from an extraordinary event or circumstance beyond the control of the parties. The force majeure event has already caused substantial commercial loss and has obstructed the performance of many contracts for no fault of either party. This therefore, leads us to a discussion about the much-forgotten Force Majeure clause with focus on this contractual clause with respect to lease agreements.

‘Force Majeure’ events relieve a party from performance of its contractual obligations, without any consequential breach of the contract, provided such performance is adversely impacted by events outside the control of an affected party such as act of God, natural disaster, war, strike, lockout, epidemic, Government orders, etc. The principle of force majeure is recognized in express terms in most civil jurisdictions, and the force majeure clauses are contained within in contracts to safeguard the interests of the parties where they are unable to perform their obligations due to unforeseeable situation.

This concept has been adequately detailed in the Indian Contract Act via Section 32 and Section 56. A landmark decision clarifying this position comes in the case of Satyabrata Ghose v. Mugneeram Bangur & Co , the court in this case held that: “In deciding cases in India, the only doctrine that we have to go by is that of supervening impossibility or illegality as laid down in section 56 of the Contract Act taking the word ‘Impossible’ in its practical and not literal sense.

This was further reiterated in Energy Watchdog v. CERC, where the court reproduced a statement from the Satyabrata case: “The performance of an act may not be literally impossible but it may be impracticable and useless from the point of view of the object and purpose of the parties. If an untoward event or change of circumstance totally upsets the very foundation upon which the parties entered their agreement, it can be said that the promisor finds it impossible to do the act which he had promised to do.”

This principle was further summarized by a bench comprising of Justice P.C. Ghosh and R.F. Nariman,. Some key principles that were laid down by the Hon’ble Court are as hereunder:

  • If an express or implied ‘force majeure’ clause exists in a contract, the same will be exercised over and prior to the principle enshrined under Section 56;
  • Application of Doctrine of Frustration must always be with narrow limits and implication;
  • A mere rise in cost or expense does not come under the ambit of Doctrine of Frustration;
  • Doctrine of Frustration will not apply so long as the fundamental basis of the contract remains the same.

FORCE MAJEURE CLAUSE IN THE LEASE AGREEMENT

Relief from payment of rent due to a ‘Force Majeure’ event can only be availed if such a relief is explicitly provided under the lease agreement. In most of the, lease agreements excuse the lessees from payment of rent during a Force Majeure event if there is a damage or destruction of the property leading to its unavailability for use by the lessee, however, they do not provide blanket waiver from payment of lease rentals on occurrence of every Force Majeure event. As Force Majeure is a contractual right, the express wordings of the clause have to be carefully assessed and the lessee cannot, as a matter of right, invoke non-payment due to a Force Majeure event in the absence of a supporting clause and/or a specific rent waiver agreed under the contract. If the lease agreement does provide for stoppage of rent or suspension of all obligations during a Force Majeure period without any qualifications or riders, then the lessee should immediately exercise its right by issuing a letter to the lessor invoking Force Majeure event and intimating cessation of its obligation to pay lease rental during the period the Force Majeure event continues.

FORCE MAJEURE CLAUSE IF NOT IN THE LEASE AGREEMENT

While Force Majeure is not specifically covered under the Indian Contract Act, reference to the concept of force majeure can be derived from Section 32 and Section 56. If the contract itself either impliedly or expressly contains a term, according to which performance would stand discharged under certain circumstances, the dissolution of the contract would take place under the terms of the contract itself and such cases would be dealt under Section 32. If, however an untoward event or change of circumstance totally upsets the very foundation upon which the parties entered into their agreement, the contract can be held to be frustrated under Section 56 of the IC Act. But it is pertinent to note that Section 56 is applicable only if the contract does not have an explicit Force Majeure clause.

The Indian courts have generally taken the view that Section 56 is not applicable when the rights and obligations of the parties arise under a transfer of property under a lease. The doctrine of frustration belongs to the realm of law of contracts and it does not apply to a transaction where, not only privity of contract but a privity of estate has also been created in as much as lease is the transfer of an interest vis-à-vis the immovable property within the meaning of Section 5 of the Transfer of Property Act, 1882.

In view of the foregoing, in the absence of a Force Majeure clause under the lease agreement, it is unlikely that a lessee can claim frustration of contract (which eventually leads to termination of the contract and may, therefore, not assist the lessee in the long run) and seek waiver of lease rental as consequence of a Force Majeure event.

CONCLUSION

However, given the unprecedented nature of the widespread outbreak of COVID-19 and/or the response of the government across the globe, it is highly probable that COVID-19 would constitute a force majeure event under many contracts having such clauses. The official memorandum dated 19-02-2020 headed as “Force Majeure Clause (FMC)” issued by Ministry of Finance, Department of Expenditure Procurement Policy Division clearly states that spread of Coronavirus (COVID-19) should be considered as a case of natural calamity and FMC may be invoked, wherever considered appropriate, following the due procedure.In the context of the COVID-19 outbreak, the issues that will arise for consideration are whether alternative ways of performing the contractual bargain were possible or not and were explored or not; whether the contractual bargain could have been performed albeit with difficulty or at a higher cost; or whether a party’s non-performance is rather and in fact, attributable to some other delay or deficiency. Further, the party claiming relief from performing the contract would also be required to notify the other party of the occurrence of such an event and its efforts to remedy the same. In contracts bereft of any force majeure clause, the parties may resort to the statutory provisions of Section 56 of the Indian Contract Act, as already stated hereinbefore.

— Ananya Agarwal intern at Ravindra Vikram Law Associates

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Overview of Data Privacy laws in India

Privacy implies not to interfere in the interest of others. The technological advancement has led to privacy becoming a cause of concern for every individual. Data protection stresses individual liberty which comes under menace by the interference of a stranger. The access of a stranger to the individual’s activity by any means needs to be ceased by law. The Constitution of India has highlighted the importance on the enjoyment of rights rather than the compliance of duty. A rights-based approach is considered for data protection.

There is no explicit legislation in India related to data protection nor is it a party to any convention on the protection of personal data. Nevertheless, India is a party to many international declarations and conventions including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, which acknowledge the right to privacy. The data protection issue attracts the Right to Privacy, Right to Information, Information Technology, Indian penal Code, National Security, Intellectual property, Corporate Affairs, and much more. The constitutionality of privacy & data protection has been provided considerable significance in these recent days. The effective enforcement of the current legal framework is essential for the proper protection of privacy issues.

India has not yet ratified any particular legislation on data protection but, the Information Technology Act (2000) or referred to as the IT Act, 2000 was amended to include Sections 43-A and Section 72-A that have a strong bearing on the legal regime for data protection. Section 43-A and Section 72-A of the IT Act came into force on 27 October 2009. These provide for the right to compensation for improper disclosure of personal information.

Section 43-A reads as follows:

“Where a body corporate, possessing, dealing or handling any sensitive personal data or information in a computer resource which it owns, controls or operates, is negligent in implementing and maintaining reasonable security practices and procedures and thereby causes wrongful loss or wrongful gain to any person, such body corporate shall be liable to pay damages by way of compensation to the person so affected.”

Section 72-A provides for punishment of disclosure of information in breach of a lawful contract. It reads as follows:

“Save as otherwise provided in this Act or any other law for the time being in force, any person including an intermediary who, while providing services under the terms of lawful contract, has secured access to any material containing personal information about another person, with the intent to cause or knowing that he is likely to cause wrongful loss or wrongful gain discloses, without the consent of the person concerned, or in breach of a lawful contract, such material to any other person, shall be punished with imprisonment for a term which may extend to three years, or with fine which may extend to five lakh rupees, or with both.”

The central government has also issued the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 under Section 43-A of the IT Act. These came into effect on 11 April 2011. The Rules have inflicted some additional obligations on commercial and business entities in India regarding the collection and release of sensitive personal data or information which have some similarities with the GDPR (General Data Protection Regulation) and the Data Protection Directive

The government has introduced a biometric-based unique identification number for residents of India known as ‘Aadhaar’. Aadhaar is regulated by the Aadhaar (Targeted Delivery of Financial and Other Subsidies Act) 2016 and rules and regulations issued in the Act. The Act came into force on 12 September 2016. Entities in regulated sectors such as financial services and telecom sectors are subject to obligations of confidentiality under sectoral laws which necessitate them to keep customer personal information private and use them for prescribed purposes or only in the manner settled with the customer.

Internet Security and Personal data are also protected through secondary safeguards developed by the courts under common law, principles of equity, and the law of breach of confidence. In the landmark case of Justice K.S. Puttaswami & another Vs. Union of India, the judgment of which was passed in August 2017, the Supreme Court of India has recognized the right to privacy as a fundamental right under Article 21 of the Constitution as a part of the right to “life” and “personal liberty”. “Informational privacy” has been accepted as being a facet of the right to privacy and the court held that information about a person and the right to access that information also needs to be protected for privacy. The court stated that every person should have the right to control the commercial use of his or her identity and that the “right of individuals to exclusively commercially exploit their identity and personal information, to control the information that is available about them on the internet and to disseminate certain personal information for limited purposes alone” emanates from this right. This was the first time that the Supreme Court expressly credited the right of individuals over their data. Fundamental rights are enforceable against the state and its instrumentalities and the Supreme Court in the same judgment recognized that enforcing the right to privacy against private entities may require legislative involvement.

Consequently, the Government of India established a committee to propose a draft statute on data protection. The committee recommended a draft law and the Government of India has issued the Personal Data Protection Bill, 2019 based on the draft proposed by the committee. This is the country’s first bill on the protection of personal data and will repeal Section 43-A of the IT Act.

The Bill encompasses mechanisms for the protection of personal data and recommends the setting up of a Data Protection Authority of India for the same. The Bill aims to:

“to provide for protection of the privacy of individuals relating to their personal data, specify the flow and usage of personal data, create a relationship of trust between persons and entities processing the personal data, protect the fundamental rights of individuals whose personal data are processed, to create a framework for organisational and technical measures in processing of data, laying down norms for social media intermediary, cross-border transfer, accountability of entities processing personal data, remedies for unauthorised and harmful processing, and to establish a Data Protection Authority of India for the said purposes and for matters connected there with or incidental thereto.”

A combined parliamentary committee is presently considering the PDP Bill and a revised draft of the PDP Bill is anticipated to be issued in 2020. The PDP Bill would then have to be passed by both houses of Parliament and be notified in the official gazette before it becomes a law.

Other general legislation impacting data protection:

  1. The Copyright Act (1957):  Since the Act provisions intellectual property rights in diverse kinds of creative work including literary works, and the term “literary work” legally comprises computer databases, copying a computer database, or copying or distributing, a database could amount to copyright infringement under the Act. Clearly, there is a difference between database protection and data protection.  Database protection protects the creative investment in collecting, presentation and verification of databases, while data protection aims to protect the privacy of individuals by restricting access.
  • The Indian Penal Code (1860):  This could be used to prevent theft of data.  The offences of theft and misappropriation theoretically apply only to movable property under the IPC, but the term “movable property” has been defined to include corporeal property of every description except land or property that is permanently attached to the earth.
  • The Indian Constitution:  Article 21 of the Constitution protects an individual’s right to life and personal liberty.  The Supreme Court of India, in a nine-judge bench decision in August 2017,  held that citizens enjoy a fundamental right to privacy that is inherent to life and liberty. 

In addition to the above, invasion or breach of privacy also results to an action in tort. Also, there are some sector-specific legislation that influences data protection.

The National Association of Service & Software Companies (NASSCOM), which is a non-profit industry association and the apex body for the Indian IT BPM industry leads the private sector initiatives to protect and boost data privacy regulation in the country.

The Business Process Outsourcing Units implement self-regulatory processes, such as the BS 7799 and the ISO 17799 standards, to regulate information security management and restrict the quantity of data made accessible to employees.

The Reserve Bank of India issues guidelines, regulations and circulars from time to time, to maintain the secrecy and privacy of client information, and it also established a body called the Banking Codes and Standards Board of India to develop a set of voluntary norms which banks must enforce themselves through internal grievance redressal mechanisms within each bank.

The Medical Council of India has set out the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002 (Code of Ethics Regulations, 2002).  These rules administer various issues, including doctor-patient confidentiality, the collection of personal data from patients, issues of consent, and the extent to which invasive procedures may be conducted.

These regulations apply supplementary to the IT Rules. Although they provide a certain degree of security, the lack of legislative enforcement and foresight mean that they are enforced in varying degrees by each institution and do not come with guaranteed parliamentary sanction.

The several agencies performing cyber security operations in India, such as the National Technical Research Organisation, the National Intelligence Grid and the National Information Board, require robust policy and legislative and infrastructural support from the Ministry of Electronics and Information Technology, and from the courts, to enable them to do their jobs properly.

— Simran Khurana intern at Ravindra Vikram Law Associates

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Laws in respect of Parole and Furlough in India

Granting of parole and furlough to a convict is a part of the criminal justice system and is an executive function. Over the years with the development of criminal jurisprudence the concepts have developed and are well imbibed at present in the Criminal justice system of India. As such no statute provides a specific definition for the two concepts. However, the terms have been well recognized and developed by various decision of the Honorable Supreme Court.

Historically ‘parole’ is a concept known to military law and denotes release of a prisoner of war on a promise to return. Parole has become an integral part of the English and American systems of criminal justice intertwined with the evolution of changing attitudes of the society towards crime and criminals. Release on parole is a wing of the reformative process and is expected to provide an opportunity to the prisoner to transform himself into a useful citizen. Parole is thus a grant of partial liberty of lessening of restrictions to a convicted prisoner, but released on parole does not change the status of the prisoner. Rules are framed providing supervision by parole authorities of the convicts released on parole and in case of failure to perform the promise, the convict released on parole is directed to surrender to custody– PoonamLata v. M.L Wadhawan 1987.

In Asfaq vs. State of Rajasthan & Ors., 2017 the honourable supreme court defined parole as conditional release of prisoners i.e. an early release of a prisoner, conditional on good behaviour and regular reporting to the authorities for a set period of time. It is a conditional pardon by which the convict is released before the expiration of his term. The parole is granted for good behaviour on the condition that parolee regularly reports to a supervising officer for a specified period. Such a release of the prisoner on parole can also be temporarily on some basic grounds. In that eventuality, it is to be treated as mere suspension of the sentence for time being, keeping the quantum of sentence intact.

Many State Governments have formulated guidelines on parole as part of its jail Manuals, in order to bring out objectivity in the decision making and to decide as to whether parole needs to be granted in a particular case or not. Such a decision in those cases is taken in accordance with the guidelines framed. Guidelines of some of the States stipulate two kinds of paroles, namely, custody parole and regular parole. ‘Custody parole’ is generally granted in emergent circumstances like:

(i) death of a family member;

(ii) marriage of a family member;

(iii) serious illness of a family member; or

(iv) any other emergent circumstances.

As far as ‘regular parole’ is concerned, it may be given in the following cases:

(i) serious illness of a family member;

(ii) critical conditions in the family on account of accident or death of a family member;

(iii) marriage of any member of the family of the convict;

(iv) delivery of a child by the wife of the convict if there is no other family member to take care of the spouse at home;

(v) serious damage to life or property of the family of the convict including damage caused by natural calamities;

(vi) to maintain family and social ties;

(vii) to pursue the filing of a special leave petition before this Court against a judgment delivered by the High Court convicting or upholding the conviction, as the case may be.

Furlough is also an executive action and conditional release. Though it is right of the prisoner, the brief conditional release from the prison is given in case of long term imprisonment.   In-State of Maharashtra & anr. vs. Suresh Pandurang Darvakar (2006) 4 SCC 776 the distinction between parole and furlough was laid down as follows:

(i) Parole can be granted in case of short term imprisonment whereas in furlough it is granted in case of long term imprisonment.

(ii) Duration of parole extends to one month whereas in the case of furlough it extends to fourteen days maximum.

(iii) Parole is granted by Divisional Commissioner and furlough is granted by the Deputy Inspector General of Prisons.

(iv) For parole, specific reason is required, whereas furlough is meant for breaking the monotony of imprisonment.

(vi) The term of imprisonment is not included in the computation of the term of parole, whereas it is vice versa in furlough.

(vii) Parole can be granted the number of times whereas there is a limitation in the case of furlough.

(viii) Since furlough is not granted for any particular reason, it can be denied in the interest of society.

The Constitution Bench in Sunil Fulchand Shah v. Union of India and Ors. 2000 CriLJ1444 considered the distinction between bail and parole in the context of reckoning the period which a detenu has to undergo in prison. Bail and parole have a different connotation in law.

‘Parole’, however, has a different connotation than bail even though the substantial legal effect of both bail and parole may be the release of a person from detention or custody. The dictionary meaning of “parole” is: Released from jail, prison or other confinement after actually serving part of the sentence. Conditional release from imprisonment which entitles parolee to serve the remainder of his term outside confides of an institution if he satisfactorily complies with all terms and conditions provided in parole order. Black Law Dictionary (6th Ed.), a prisoner in a year can avail 90 days of parole, however, he cannot be released on parole for more than 30 days at once.

Thus parole and furlough are parts of the penal and prison system for humanising prison administration but the two have different purposes.

— Advocate Ravindra Vikram, Ph: +91-94100-22521

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Bail in India: Legal Provisions and Procedure

The term “bail” is not defined in the CrPC (Criminal Procedure Code), however, the code does define “bailable offences”. Section 2 (a) defines  bailable offence  “as an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force, and non- bailable offence means any other offence.” It can be inferred that bail is a conditional temporary release of an accused person from custody awaiting trial. Broadly in India, bails can be of three types: regular bail; anticipatory bail and interim bail; and the process for applying for bail shall depend on the stage at which the matter is pending.

Section 50 CrPC obligates the police that whenever arrests are made without warrant any person other than a person accused of a non-bailable offence, shall be informed that he is entitled to be released on bail and that he may arrange for sureties on his behalf. Bail can be granted by the police as well as by the courts.

Section 436 CrPC, deals with granting of bail for a bailable offence where the person has been arrested or detained without any warrant. Such bail can be granted by the police or by the court. The court or the police officer as the case may discharge him on his executing a bond without sureties for his appearance; however same is a discretionary power. The section also states that where a person has failed to comply with the conditions of the bail- bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under the code.

Section 440 of the code states that the amount of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the case and shall not be excessive. The Hon. High Court and Court of Sessions has the power to reduce the amount of bail.

Bail in Non-bailable Offences:

Bail in case of bailable offences can be touted as a matter of right, however granting of bail in case of non-bailable offences as a matter of judicial discretion. Section 437 CrPC deals granting of bail in case of Non-Bailable offence, the section also delineates the basis of exercising judicial discretion by stating:

  1.  The bail shall not be granted when
    • such person (accused) shall not be released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
    • such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence
    • Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm.
    • The Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason.
    • The mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.

2.       If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further enquiry into his guilt the accused shall, subject to the provisions of section 446A and pending such inquiry, be released on bail at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.

3.       When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abetment of, or conspiracy attempt to commit, any such offence, is released on bail the Court may impose any condition which the Court considers necessary-

4.      Any Court which has released a person on bail may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.

5.       If, in any case, triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate,  the magistrate directs otherwise for reasons recorded in writing.

6.      If at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties

Anticipatory Bail: Section 438 CrPC deals with the concept of Anticipatory Bail. Section 438(1) states that if a person has reason to believe that he may be arrested on accusation of commission of a non-bailable offence he may apply to the High Court or the Court of Session for a direction that in the event of such arrest, he shall be released on bail. High court and session court may be guided by the following reasoning while granting anticipatory bail:

  1. the court may impose a condition that the person shall make himself available for interrogation by a police officer as and when required;
  2. the court may impose a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
  3. the court may impose a condition that the person shall not leave India without the previous permission of the Court;
  4. such other condition as may be imposed under subsection (3) of section 437, as if the bail were granted under that section.

Apart from the statutory provisions the judiciary through various case laws have also developed the concept of granting of bail. For instance in Prasanta Kumar Sarkar vs. Ashis Chatterjee, (2010) 14SCC 496). It was held that at the time of considering an application for bail, the Court must take into account certain factors such as the:

  1. existence of a  prima facie  case against the accused, 
  2. the gravity of the allegations, position and status of the accused,  
  3.  the   likelihood   of  the   accused  fleeing  from   justice  and repeating   the   offence,
  4. the   possibility   of   tampering   with   the witnesses   and   obstructing   the   Courts   as   well   as   the   criminal antecedents of the accused. 

It is also well settled that the Court must not go into deep into merits of the matter while considering an application for bail.  All that needs to be established from the record is the existence of a prima facie case against the accused. Anil Kumar Yadav vs. State (NCT) of Delhi, (2018) 12 SCC 129.

Interim Bail:

Interim Bail is a temporary bail granting protection to the accused from arrest and direction to prosecution not to arrest the accused till further orders. It can be granted till the time the application of the accused for Anticipatory Bail or Regular Bail is pending before a Court and is generally granted with some condition. One needs strong reasons to secure temporary bail like death, marriage or medical procedure etc. The interim bail can be extended by the court, however,  if the accused person granted interim bail does not fulfil conditions such imposed then the freedom granted under the interim bail will be cancelled and the accused person be taken into custody or a warrant will be issued against the accused person.

Can Bail once granted, be cancelled or revoked?

“439(2) A High Court or Court of Sessions may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.” reproduced from CrPC.

Yes, bail once granted can be revoked; bail is judicial conditional release of an accused person from the custody, however when this enlargement is misused by the said accused person, then under Section 439 (2) and 437(5) of CrPC, the court may review the previous decision on the ground of supervening circumstances. Section 439 CrPC grants special powers to High Court and Session courts in respect of modifying bail terms and conditions to secure justice.

Therefore, Bail is well understood in criminal jurisprudence and Chapter XXXIII of the CrPC contains elaborate provisions relating to grant of bail. Bail is granted to a person who has been arrested in a non-bailable offence or has been convicted of an offence after trial. The effect of granting bail is to release the accused from internment though the court would still retain constructive control over him through the sureties. In case the accused is released on his own bond such constructive control could still be exercised through the conditions of the bond secured from him. The literal meaning of the word ‘bail’ is the surety. The effect of granting bail is not to set the defendant (accused) at liberty but to release him from the custody of the law and to entrust him to the custody of sureties who are bound to produce him to appear at his trial at a specified time and place. The sureties may seize their principal at any time and may discharge themselves by handing him over to the custody of the law and he will then be imprisoned.

— Advocate Ravindra Vikram, Ph: +91-94100-22521

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Rules and regulations for Sole Proprietorship Businesses in India

A sole proprietorship firm is an entity that is owned by a single individual. It is different from a company; partnership firm, or a one-person company. None of the legislation in India defines a sole proprietorship firm. It is considered to be the simplest form of organization structure in terms of registration and compliance. With the introduction of One-person Company in Companies Act, 2013, the legislature has taken up a step towards regularizing and protecting the interest of entrepreneurs who wish to do business solely. “One person company” and “Sole proprietorship firm” are two different concepts. A sole proprietorship firm is not a separate legal entity, unlike a Company. The identity of the proprietor and that of the firm is essentially the same.

In Miraj Advertising Corporation v. Vishaka Engineering 115 (2004) DLT  it was held that;

“A proprietorship firm has no legal entity like a registered firm.   A suit cannot be instituted in the name of an unregistered proprietorship firm and the said suit is to be instituted in the name of the proprietor.”

Registrations and Compliances for Sole Proprietorship:

The necessary documentation for a proprietorship firm shall essentially depend upon the area in which the said business intends to operate. A tentative checklist for a person intending to incorporate a sole proprietorship firm shall be as follows:

  • Licensing and registration under the Shop and Establishment Act: The shop and establishment act comes under the state list of legislation. In essence, any “establishment”, which can be in the nature of shop; commercial establishment; residential hotel; theatre; any place of public amusement or entertainment, etc have the Shop and establishment act applicable to it. Registration under this act is mandatory. The license under this act is generally mandatory for all business entities, even if you are working from home. An establishment generally is required to register itself within 30 days of commencement of operations.
  • Registration under the Micro, Small, Medium Enterprises (MSME) Act, 2006: The registration under this act is not mandatory. However, the act provides considerable benefits for the MSME sector and in order to reap the benefits under the act, the registration is required. The registration process can be provisional or permanent.
  • Intellectual Property Registration (IPR): According to the requirements the business can register to get exclusives right by registering under any or selected types of (IPR) i.e. Trade Secrets, Trademarks, Copyrights, and Patents.
  • GST registration: Chapter VI of Central Goods and Services Tax Act, 2017 mentions the entities required to get registration under GST. Central Excise Duty, Additional Excise Duty; Service Tax; Countervailing Duty; Special Additional Duty of Customs; State Value Added Tax/Sales Tax; Entertainment Tax (except for tax levied by local bodies); Central Sales Tax; Purchase Tax; Octroi and entry tax; Luxury Tax;  Taxes on lottery and betting are taxes subsumed under the GST Act. 
  • Opening a current account is a necessary requirement for most businesses.

Income tax treatment for Sole Proprietorship Business:

Sole proprietorship business is not taxed as a separate legal entity. The owner files the business taxes on their personal tax returns. i.e. business income gets added to the individual income of the sole proprietor. Since a sole proprietorship is not a legal entity a separate PAN cannot be issued in the name of the sole proprietorship firm. PAN of the owner is the PAN of the business.

A sole proprietorship firm based on its annual turnover is also exempted from maintaining books of accounts of the business and its auditing. The taxation in such cases is done on the basis of the “presumptive income” method and the scheme is applicable to an individual, a HUF or a partnership firm (not available to a Company). The turnover of the business for which an individual/ sole proprietor can avail this scheme should be less than Rs 2 crore. The scheme cannot be adopted by the taxpayer, if he has claimed deduction under section 10, 10A, 10B, Section 10BA, or Section 80HH to 80RRB in the relevant year. The scheme is also not applicable “Income from commission or brokerage”; “Agency business”; “Business of plying, hiring or leasing goods carriage”; “Professionals”.

Highlights of Sole Proprietorship:

The structurization of a business entity as a “Sole Proprietorship Firm” requires less legal formalities, in comparison to other entities. However, since they are not categorized as a separate legal entity, therefore, the liability of the proprietor is unlimited in case of such business structures.  Also, the continuity of the organization is entirely dependent upon the life of the owner.

— Advocate Ravindra Vikram, Ph: +91-94100-22521

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