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Monday 27 February 2017

Contempt of court

Juvenile Justice* – Age of juvenility

‬: *Latest Important decision reported in ALL SCR (Cri) February 2017 part*

*Dt.24/01/2017*

*Juvenile Justice* – Age of juvenility – Accused was 17 years old on date of commission of crime i.e. on 27/3/1998 – Age of juvenility fixed at 18 yrs. by JJ Act, 2000 – Same shall be applied retrospectively – Therefore, accused would be entitled to be treated as juvenile with reference to said offence…. *2017 ALL SCR (Cri) 287*
[27/02 6:44 am] ‪+91 90325 46288‬: 2006 All MR (cri) 1987
Ganesh Shetty vs State of Maharashtra
Sec.311.... recalling of witness....absence of cross examination by Advocate,due to his business in other session case..... absence of Advocate can cause serious prejudice to the case if accused..... application for recalling of witness can be allowed.
[27/02 6:45 am] ‪+91 90325 46288‬: *⭐Handcuffed, 4 Lakhs compensation granted, action ordered against police:*

Compensatory Justice
Illegal hand cuffing - Claim for compensation -Petitioner was Jomalist and he published news items for exposing ill - 
deeds of Government Officers - He was paraded in hand cuffed condition from bus stand to police station by police constable - On day of incident he was already in police custody for offence u/S. 384 IPC - Evidence
not showing that Magistrate had permitted his hand cuffing - Hand cuffing of petitioner
was in violation of fundamental rights -
Amount of 4 lakh granted as compensation - Also direction given to initiate disciplinary proceedings against officers for fixing
responsibility for lapse.

Case:
*Satish Banwarilal Sharma Vs. Union Territory of Diu, Daman and Dadra & Nagar Haveli.*

Citation:
*2017 ALL MR (Cri) 406*
[27/02 6:45 am] ‪+91 90325 46288‬: *Latest Important decision reported in ALL SCR February 2017 part*

*Dt.02/01/2017*

*Elections* – Interpretation of words “his religion” in S.123(3) of R.P. Act – Purposive and not literal interpretation is to be adopted – Said words should not be interpreted to mean only candidate’s religion or that of his rival candidates – Purposive interpretation in present social context requires a broad interpretation – Words “his religion” therefore take within its sweep religion of election candidates, their agents as also religion of voters – Vote appeal on ground of anybody’s religion is prohibited – Narrow interpretation taking only candidate’s religion, disapproved…. *2017 ALL SCR 337*
[27/02 6:49 am] ‪+91 90325 46288‬: *Latest Important decision reported in ALL SCR (Cri) February 2017 part*

*Dt.31/01/2017*

*Appeal against Conviction* – Power of appellate Court to order retrial – Scope of exercise…. *2017 ALL SCR (Cri) 289*
[27/02 6:50 am] ‪+91 90325 46288‬: *Latest Important decision reported in ALL SCR (Cri) February 2017 part*

*Dt.03/01/2017*

*Recovery Evidence* – No statutory provision which mandates taking signature of accused on recovery panchnama – Hence, plea that recovery panchnama was inadmissible in evidence for not containing signature of accused – Not tenable…. *2017 ALL SCR (Cri) 182*

COMMON CYBER-CRIME SCENARIOS AND APPLICABILITY OF LEGAL SECTIONS

COMMON CYBER-CRIME SCENARIOS AND APPLICABILITY OF LEGAL SECTIONS

Let us look into some common cyber-crime scenarios which can attract prosecution as per the penalties and offences prescribed in IT Act 2000 (amended via 2008) Act.
A) Harassment via fake public profile on social networking site : A fake profile of a person is created on a social networking site with the correct address, residential information or contact details but he/she is labelled as ‘prostitute’ or a person of ‘loose character’. This leads to harassment of the victim.
Provisions Applicable : Sections 66A, 67 of IT Act and Section 509 of the Indian Penal Code.

B) Online Hate Community  : Online hate community is created inciting a religious group to act or pass objectionable remarks against a country, national figures etc.
Provisions Applicable : Section 66A of IT Act and 153A & 153B of the Indian Penal Code.

C) Email Account Hacking : If victim’s email account is hacked and obscene emails are sent to people in victim’s address book.
Provisions Applicable : Sections 43, 66, 66A, 66C, 67, 67A and 67B of IT Act.

D) Credit Card Fraud : Unsuspecting victims would use infected computers to make online transactions.
Provisions Applicable : Sections 43, 66, 66C, 66D of IT Act and section 420 of the IPC.

E) Web Defacement : The homepage of a website is replaced with a pornographic or defamatory page. Government sites generally face the wrath of hackers on symbolic days.
Provisions Applicable:- Sections 43 and 66 of IT Act and Sections 66F, 67 and 70 of IT Act also apply in some cases.

F) Introducing Viruses, Worms, Backdoors, Rootkits, Trojans, Bugs :
All of the above are some sort of malicious programs which are used to destroy or gain access to some electronic information.
Provisions Applicable:- Sections 43, 66, 66A of IT Act and Section 426 of Indian Penal Code.

G) Cyber Terrorism : Many terrorists are use virtual(GDrive, FTP sites) and physical storage media(USB’s, hard drives) for hiding information and records of their illicit business.
Provisions Applicable : Conventional terrorism laws may apply along with Section 69 of ITAct.
H) Online sale of illegal Articles : Where sale of narcotics, drugs weapons and wildlife is facilitated by the Internet
Provisions Applicable : Generally conventional laws apply in these cases.

I) Cyber Pornography : Among the largest businesses on Internet. Pornography may not be illegal in many countries, but child pornography is.
Provisions Applicable:- Sections 67, 67A and 67B of the IT Act.

J) Phishing and Email Scams :
Phishing involves fraudulently acquiring sensitive information through masquerading a as a trusted entity. (E.g. Passwords, credit card information)
Provisions Applicable:- Section 66, 66A and 66D of IT Act and Section 420 of IPC

K) Theft of Confidential Information : Many business organizations store their confidential information in computer systems. This information is targeted by rivals, criminals and disgruntled employees.
Provisions Applicable:- Sections 43, 66, 66B of IT Act and Section 426 of Indian Penal Code.

L) Source Code Theft : A Source code generally is the most coveted and important "crown jewel" asset of a company.
Provisions applicable:- Sections 43, 66, 66B of IT Act and Section 63 of Copyright Act.

M) Tax Evasion and Money Laundering :
Money launderers and people doing illegal business activities hide their information in virtual as well as physical activities.
Provisions Applicable: Income Tax Act and Prevention of Money Laundering Act. IT Act may apply case-wise.

N) Online Share Trading Fraud : It has become mandatory for investors to have their demat accounts linked with their online banking accounts which are generally accessed unauthorized, thereby leading to share trading frauds.
Provisions Applicable: Sections 43, 66, 66C, 66D of IT Act and Section 420 of IPC
             I. Penalties, Compensation and Adjudication sections
Section 43 - Penalty and Compensation for damage to computer, computer system : If any person without permission of the owner or any other person who is in-charge of a computer, computer system or computer network
(a) accesses or secures access to such computer, computer system or computer network or computer resource
(b) downloads, copies or extracts any data, computer data, computer database or information from such computer, computer system or computer network including information or data held or stored in any removable storage medium;
(c) introduces or causes to be introduced any computer contaminant or computer virus into any computer, computer system or computer network-
(d) damages or causes to be damaged any computer, computer system or computer network, data, computer database, or any other programmes residing in such computer,computer system or computer network-
(e) disrupts or causes disruption of any computer, computer system, or computer  network
(f) denies or causes the denial of access to any person authorised to access any computer,computer system or computer network by any means
(h) charges the services availed of by a person to the account of another person by tampering with or manipulating any computer of a computer, computer system or  computer network-
(g) provides any assistance to any person to facilitate access to a computer, computer system or computer network in contravention of the provisions of this Act, rules or regulations made there under,
(h) charges the services availed of by a person to the account of another person by  tampering with or manipulating any computer, computer system, or computer network,
(i) destroys, deletes or alters any information residing in a computer resource or
diminishes its value or utility or affects it injuriously by any means,
(j) Steals, conceals, destroys or alters or causes any person to steal, conceal, destroy or alter any computer source code used for a computer resource with an intention to cause damage, he shall be liable to pay damages by way of compensation to the person so affected.
Section 43A - Compensation for failure to protect data :
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, not exceeding five crore rupees,to the person so affected.
Section 44 - Penalty for failure to furnish information or return, etc :
If any person who is required under this Act or any rules or regulations made there under to
(a) furnish any document, return or report to the Controller or the Certifying Authority,fails to furnish the same, he shall be liable to a penalty not exceeding one lakh and fifty thousand rupees for each such failure;
(b) file any return or furnish any information, books or other documents within the time specified therefore in the regulations, fails to file return or furnish the same within the time specified therefore in the regulations, he shall be liable to a penalty not exceeding five thousand rupees for every day during which such failure continues:
(c) Maintain books of account or records, fails to maintain the same, he shall be liable to a penalty not exceeding ten thousand rupees for every day during which the failure continues.
Section 45 – Residuary Penalty  : Whoever contravenes any rules or regulations made under this Act, for the contravention of which no penalty has been separately provided,shall be liable to pay a compensation not exceeding twenty-five thousand rupees to the person affected by such contravention or a penalty not exceeding twenty-five thousand rupees.
Section 47 - Factors to be taken into account by the adjudicating officer : It lays down that while adjudging the quantum of compensation under this Act,an adjudicating officer shall have due regard to the following factors, namely :-
(a) The amount of gain of unfair advantage, wherever quantifiable, made as a result of the default;
(b) The amount of loss caused to the person as a result of the default,
(c) The repetitive nature of the default.
                                    II. Offences sections

Section 65 - Tampering with Computer Source Documents : If any person knowingly or intentionally conceals, destroys code or alters or causes
another to conceal, destroy code or alter any computer, computer programme,
computer system, or computer network, he shall be punishable with imprisonment up to three years, or with fine up to two lakh rupees, or with both.
Section - 66 Computer Related Offences :  If any person, dishonestly, or fraudulently, does any act referred to in section 43,  he shall be punishable with imprisonment for a term which may extend to two three years or with fine which may extend to five lakh rupees or with both.
Section 66A - Punishment for sending offensive messages through communication service : Any person who sends, by means of a computer resource or a communication device,
(a) any information that is grossly offensive or has menacing character;
(b) any information which he knows to be false, but for the purpose of causing
annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation,enmity, hatred, or ill will, persistently makes by making use of such computer resource or a communication device,
(c) any electronic mail or electronic mail message for the purpose of causing
annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages shall be punishable with imprisonment for a term which may extend to three years and with fine.
Section 66B - Punishment for dishonestly receiving stolen computer resource or communication device : Whoever dishonestly receives or retains any stolen computer resource or communication device knowing or having reason to believe the same to be stolen computer resource or communication device, shall be punished with imprisonment of either description for a term which may extend to three years or with fine which may extend to rupees one lakh or with both.
Section 66C - Punishment for identity theft : Whoever, fraudulently or dishonestly make use of the electronic signature, password or any other unique identification feature of any other person,shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to rupees one lakh.
Section 66D - Punishment for cheating by personation by using computer resource : Whoever, by means of any communication device or computer resource cheats by personating shall be punished with imprisonment of either description for a term which may extend  to three years and shall also be liable to fine which may extend to one lakh rupees.
Section 66E - Punishment for violation of privacy : Whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may extend to three years or with fine not exceeding two lakh rupees, or with both.
Section-66F Cyber Terrorism :
Whoever with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people by
(i) denying or cause the denial of access to any person authorized to access
computer resource; or
(ii) attempting to penetrate or access a computer resource without authorisation
or exceeding authorized access. commits or conspires to commit cyber terrorism shall be punishable with imprisonment which may extend to imprisonment for life.
Section 67 - Punishment for publishing or transmitting obscene material in  electronic form  :
Whoever publishes or transmits or causes to be published in the electronic form, any   material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it,shall be punished on first conviction with imprisonment of either description for a term which may extend to two three years and with fine which may extend to five lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.
Section 67B. Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc. in electronic form :
Whoever:-
(a) publishes or transmits or causes to be published or transmitted material in
any electronic form which depicts children engaged in sexually explicit act or conduct or
(b) creates text or digital images, collects, seeks, browses, downloads, advertises,
promotes, exchanges or distributes material in any electronic form depicting children in
obscene or indecent or sexually explicit manner or
(c) cultivates, entices or induces children to online relationship with one or more
children for and on sexually explicit act or in a manner that may offend a reasonable adult on the computer resource or
(d) facilitates abusing children online or
(e) records in any electronic form own abuse or that of others pertaining to
sexually explicit act with children,shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with a fine which may extend to ten lakh rupees & and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.Provided that the provisions of section 67, section 67A and this section does not extend to any book, pamphlet, paper, writing, drawing, painting, representation or figure in electronic form
Section 69 - Powers to issue directions for interception or monitoring or decryption of any information through any computer resource :
(1) Where the central Government or a State Government or any of its officer specially authorized by the Central Government or the State Government, as the case may be, in this behalf may, if is satisfied that it is necessary or expedient to do in the interest of the sovereignty or integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above or for investigation of any offence, it may,subject to the provisions of sub-section (2), for reasons to be recorded in writing, by order, direct any agency of the appropriate Government to intercept, monitor or decrypt or cause to be intercepted or monitored or decrypted any information transmitted received or stored through any computer resource.
(2) The Procedure and safeguards subject to which such interception or monitoring or decryption may be carried out, shall be such as may be prescribed.
(3) The subscriber or intermediary or any person in charge of the computer resource shall, when called upon by any agency which has been directed under sub section (1),extend all facilities and technical assistance to -
provide access to or secure access to the computer resource generating, transmitting, receiving or storing such information; or
intercept or monitor or decrypt the information, as the case may be; or
provide information stored in computer resource.
The subscriber or intermediary or any person who fails to assist the agency referred to in sub-section (3) shall be punished with an imprisonment for a term which may extend to seven years and shall also be liable to fine.
Section 69A - Power to issue directions for blocking for public access of any information through any computer resource :
(1) Where the Central Government or any of its officer specially authorized by it in this behalf is satisfied that it is necessary or expedient so to do in the interest of sovereignty and integrity of India, defense of India, security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of any  cognizable offence relating to above, it may subject to the provisions of sub-sections (2) for reasons to be recorded in writing, by order direct any agency of the Government or intermediary to block access by the public or cause to be blocked for access by public any information generated, transmitted, received, stored or hosted in any computer resource.
(2) The procedure and safeguards subject to which such blocking for access by the public may be carried out shall be such as may be prescribed.
(3) The intermediary who fails to comply with the direction issued under sub-section(1) shall be punished with an imprisonment for a term which may extend to seven years and also be liable to fine
Section 69B. Power to authorize to monitor and collect traffic data or information through any computer resource for Cyber Security :
(1) The Central Government may, to enhance Cyber Security and for identification,analysis and prevention of any intrusion or spread of computer contaminant in the country, by notification in the official Gazette, authorize any agency of the Government to monitor and collect traffic data or information generated, transmitted, received or stored in any computer resource.
(2) The Intermediary or any person in-charge of the Computer resource shall when called upon by the agency which has been authorized under sub-section (1), provide technical assistance and extend all facilities to such agency to enable online access or to secure and provide online access to the computer resource generating, transmitting,receiving or storing such traffic data or information.
(3) The procedure and safeguards for monitoring and collecting traffic data or
information, shall be such as may be prescribed.
(4) Any intermediary who intentionally or knowingly contravenes the provisions of subsection (2) shall be punished with an imprisonment for a term which may extend to three years and shall also be liable to fine.
Section 71. Penalty for misrepresentation :  Whoever makes any misrepresentation to, or suppresses any material fact from, the Controller or the Certifying Authority for obtaining any license or Electronic Signature Certificate, as the case may be,shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both.
Section 72 - Breach of confidentiality and privacy : Any person who, in pursuant of any of the powers conferred under this Act, rules or regulations made there under, has secured access to any electronic record, book,  register, correspondence, information, document or other material without the consent
of the person concerned discloses such electronic record, book, register, correspondence, information, document or other material to any other person shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both.
Section 72A - Punishment for Disclosure of information in breach of lawful contract :   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 a fine which may extend to five lakh rupees, or with both.
Section 73. Penalty for publishing electronic Signature Certificate false in certain particulars :
(1) No person shall publish a Electronic Signature Certificate or otherwise make it available to any other person with the knowledge that
the Certifying Authority listed in the certificate has not issued it; or
the subscriber listed in the certificate has not accepted it; or
the certificate has been revoked or suspended, unless such publication is for the purpose of verifying a digital signature created prior to such suspension or revocation
(2) Any person who contravenes the provisions of sub-section (1) shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both.
Section 74 - Publication for fraudulent purpose :
Whoever knowingly creates, publishes or otherwise makes available a Electronic
Signature Certificate for any fraudulent or unlawful purpose shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both.
Section 75 - Act to apply for offence or contraventions committed outside India :
(1) Subject to the provisions of sub-section (2), the provisions of this Act shall apply also to any offence or contravention committed outside India by any person irrespective of his nationality.
(2) For the purposes of sub-section (1), this Act shall apply to an offence or
contravention committed outside India by any person if the act or conduct constituting the offence or contravention involves a computer, computer system or computer network located in India.
Section 77A - Compounding of Offences : 
(1) A Court of competent jurisdiction may compound offences other than offences for which the punishment for life or imprisonment for a term exceeding three years has  been provided under this Act.Provided further that the Court shall not compound any offence where such offence affects the socio-economic conditions of the country or has been committed against a child below the age of 18 years or a woman.
(2) The person accused of an offence under this act may file an application for
compounding in the court in which offence is pending for trial and the provisions of section 265 B and 265C of Code of Criminal Procedures, 1973 shall apply.
Section 77B - Offences with three years imprisonment to be cognizable :
Notwithstanding anything contained in Criminal Procedure Code 1973, the offence punishable with imprisonment of three years and above shall be cognizable and the offence punishable with imprisonment of three years shall be bailable.

Section 78 - Power to investigate offences :
Notwithstanding anything contained in the Code of Criminal Procedure, 1973, a police officer not below the rank of Inspector shall investigate any offence under this Act.
-----------------------------------------------------------------------------------------------
Note : Sec.78 of I.T. Act empowers Police Inspector to investigate cases falling under this Act
-----------------------------------------------------------------------------------------------
Sec.503 IPC : Sending threatening messages by e-mail
Sec.509 IPC : Word, gesture or act intended to insult the modesty of a woman
Sec.499 IPC : Sending defamatory messages by e-mail
Sec.420 IPC : Bogus websites , Cyber Frauds
Sec.463 IPC : E-mail Spoofing
Sec.464 IPC : Making a false document
Sec.468 IPC : Forgery for purpose of cheating
Sec.469 IPC : Forgery for purpose of harming reputation
Sec.383 IPC : Web-Jacking
Sec.500 IPC : E-mail Abuse
Sec.506 IPC : Punishment for criminal intimidation
Sec.507 IPC : Criminal intimidation by an anonymous communication
Sec.51 : When copyright infringed:- Copyright in a work shall be deemed to be infringed
Sec.63A : Offence of infringement of copyright or other rights conferred by this Act. Any person who knowingly infringes or abets the infringement of
Sec.63B : Enhanced penalty on second and subsequent covictions knowing use of infringing copy of computer programme to be an offence
Sec.292 IPC : Obscenity
Sec.292A IPC : Printing etc. of grossly indecent or scurrilous matter or matter intended for blackmail Sale, etc., of obscene objects to young person Sec .293 IPC
Sec.294 IPC : Obscene acts and songs
Sec.378 : Theft of Computer Hardware
Sec.379 : Punishment for theft
NDPS Act : Online Sale of Drugs
Arms Act : Online Sale of Arms

Sunday 26 February 2017

Advocate can't refuse to give NO OBJECTION or return files merely because fees are pending from the client:

*⭐Advocate can't refuse to give NO OBJECTION or return files merely because fees are pending from the client:*
http://law.geekupd8.com/2017/01/Whether-Advocate-can-refuse-to-give-No-Objection-to-Client-if-Client-wishes-to-engage-other-Counsel.html?m=1

View Complete document

R.D. Saxena vs Balram Prasad Sharma on 22 August, 2000

A litigant must have the freedom to change his advocate when he feels that the advocate engaged by him is not capable of espousing his cause efficiently or that his conduct is prejudicial to the interest involved in the lis, or for any other reason. For whatever reason, if a client does not want to continue the engagement of a particular advocate it would be a professional requirement consistent with the dignity of the profession that he should return the brief to the client. It is time to hold that such obligation is not only a legal duty but a moral imperative.

In civil cases, the appointment of an advocate by a party would be deemed to be in force until it is determined with the leave of the court, (vide order 3, Rule 4(1) of the Code of Civil Procedure). In criminal cases, every person accused of an offence has the right to consult and be defended by a legal practitioner of his choice which is now made a fundamental right under Article 22(1) of the Constitution. The said right is absolute in itself and it does not depend on other laws. In this context reference can be made to the decision of this Court in State of Madhya Pradesh vs. Shobharam and ors. (AIR 1966 SC 1910). The words of his choice in Article 22(1) indicate that the right of the accused to change an advocate whom he once engaged in the same case, cannot be whittled down by that advocate by withholding the case bundle on the premise that he has to get the fees for the services already rendered to the client.

If a party terminates the engagement of an advocate before the culmination of the proceedings that party must have the entire file with him to engage another advocate. But if the advocate who is changedmidway adopts the stand that he would not return the file until the fees claimed by him is paid, the situation perhaps may turn to dangerous proportion. There may be cases when a party has no resource to pay the huge amount claimed by the advocate as his remuneration. A party in a litigation may have a version that he has already paid the legitimate fee to the advocate. At any rate if the litigation is pending the party has the right to get the papers from the advocate whom he has changed so that the new counsel can be briefed by him effectively. In either case it is impermissible for the erstwhile counsel to retain the case bundle on the premise that fees is yet to be paid.

Compensation is not income

*Compensation is not income*

Motor Vehicles Act (59 of 1988) S.168 — Income-tax Act (43 of 1961), S. 194 — Compensation in motor accident cases — Interest accrued on deposit of compensation — Deduction of TDS — Compensation awarded in motor accident cases cannot be categorized as ‘ income— — Compensation is awarded to victims for their restitution and rehabilitation — Compensation awarded cannot be subjected to TDS. CDJ 2015 Ch HC 110, CDJ 2015 Kar HC 532, CDJ 2004 NHC 1575 (Mad), Dissented From.

Income Tax Act (43 of 1961) S.194 — Deduction of TDS — On compensation amount — Compensation awarded or interest accruing on compensation, cannot be subjected to TDS — Compensation does not fall under term ‘ income— . (Paras 13, 16, 17)

MD, TNSTC
Vs   Chinnadurai.
Madras High Court [ SJ ]
CRP(PD) No. 1343 of 2012
*AIR 2016 MADRAS 146*

That Aadhaar Is Not Must For Marriage Registration

CIC Tells Govt, Authorities To Create Awareness That Aadhaar Is Not Must For Marriage Registration [Read Order]

Read more at: http://www.livelaw.in/cic-tells-govt-authorities-create-awareness-aadhaar-not-must-marriage-registration/

Friday 24 February 2017

SOME IMPORTANT CITATIONS ON TIME GAP IN LAST SEEN THEORY

SOME IMPORTANT CITATIONS ON TIME GAP IN LAST SEEN THEORY

VILAS SHAMRAO GOYAR @ CHOTA PAPA V/S STATE OF MAHARASHTRA, THROUGH UNDER SECRETARY, HOME DEPARTMENT (SPECIAL), MANTRALAYA AND ORS

2011 AllMR(Cri) 1491, 2011 (4) BCR(Cri) 468, 2011 (4) MhLJ(Cri) 495

 Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-offenders and Dangerous Persons Act, 1981 - Sec 12(1) - detention - continuation of - case of petitioner will have to be considered in view of fact that basis of detention order is pendency of nine criminal cases - if pendency of criminal cases was basis then authorities concerned ought to have minutely scrutinized, verified as to whether petitioner secured acquittal in any of cases or whether he was released on bail - however, authorities have not taken precaution in this regard - thus, authorities failed to adhere to mandatory procedure which ought to have been followed in passing detention order and confirming same - authorities ought to have explained in respect of time gap which was consumed from date of in camera recording of statements of persons till passing detention order - entire papers of criminal cases of petitioner not placed before detaining authority - detention order set aside - petition allowed.

 KUSUMA ANKAMA RAO VERSUS STATE OF ANDHRA PRADESH

2008 STPL (LE) 40319 SC [AIR 2008 SC 2819 = (2008) 13 SCC 257 = JT 2008 (7) SC 360 = 2008 AIR(SCW) 4669 = 2008 CRI. L. J. 3502 = (2009) 2 SCC(Cri) 298] SUPREME COURT OF INDIA

 (D) Evidence Act, 1872, Section 3 - Evidence - Circumstantial evidence - Last seen theory - Comes into play where time gapm between the point of time when accused and deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible - Even in such a case the courts should look for some corroboration.

 2008(14) SCC 667/2009 CrLJ 319 Chattarsingh VS Haryana

2009 CrLJ 3032 Tipparam Prabhakar VS AP

Last seen theory comes into play only when time gap between death and last seen is so small that possibility of any other person other than accused being the author of crime becomes impossible.

 (Hatti Singh Vs. State of Harayana)6, reported in 2007 DGLS (soft) 427 : 2008(3) S.C.C.(Cri.) 246, the Honble Supreme Court observed that:h

 The evidence of last seen by itself apart from having not been proved in this case cannot be of much significance. It may provide for a link in the chain but unless the time gap between the deceased of having been last seen in the company of the accused person and the murder is proximate, it is difficult to prove the guilt of the accused only on that basis.

 Rambraksh @ Jalim Vs. State of Chhattisgarh2016 ALL SCR (Cri) 911

 Penal Code (1860), S.302 - Evidence Act (1872), S.3 - Murder - Circumstantial evidence - Deceased last seen alive in company of accused 7 days before alleged skeleton of deceased was noticed in a field - Wife of deceased stated to have witnessed accused assaulting deceased with lathi and danda - However, no marks of injury found in any of the bones recovered from the field - Medical examination of bones even not showing cause of death - No attempt made by Investigation Officer to conduct DNA test of bones to prove that the skeleton was that of deceased - Death not proved - Conviction cannot be based merely on circumstance of last seen that too with such a long time gap of 7 days. (Paras

Shri Zahir Ahmed Saeed Ahmed Mistry & Ors. Vs. The State of Maharashtra2016 ALL MR (Cri) 3679 

Penal Code (1860), Ss.364, 300, 201 - Evidence Act (1872), Ss.3, 8, 24, 27 - Kidnapping and murder - Circumstantial evidence - Identity of dead body of deceased established - Motive alleged that accused person developed jealousy on account of business of deceased - Time gap between deceased last seen with accused persons and recovery of dead body was about 20 hours - Accused persons stating that they departed with deceased at particular railway station - Last seen theory not established - Merely because accused persons were absconding after a particular date itself cannot be treated as determining factor - Extra judicial confession made to stranger about their guilt is highly improbable - Discovery of incriminating articles at instance of accused after a gap of four months in a proper condition is not reliable - Accused persons entitled to benefit of doubt. (Paras

Thursday 23 February 2017

SOME IMPORTANT CITATIONS ON TIME GAP IN LAST SEEN THEORY

SOME IMPORTANT CITATIONS ON TIME GAP IN LAST SEEN THEORY

VILAS SHAMRAO GOYAR @ CHOTA PAPA V/S STATE OF MAHARASHTRA, THROUGH UNDER SECRETARY, HOME DEPARTMENT (SPECIAL), MANTRALAYA AND ORS

2011 AllMR(Cri) 1491, 2011 (4) BCR(Cri) 468, 2011 (4) MhLJ(Cri) 495

 Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-offenders and Dangerous Persons Act, 1981 - Sec 12(1) - detention - continuation of - case of petitioner will have to be considered in view of fact that basis of detention order is pendency of nine criminal cases - if pendency of criminal cases was basis then authorities concerned ought to have minutely scrutinized, verified as to whether petitioner secured acquittal in any of cases or whether he was released on bail - however, authorities have not taken precaution in this regard - thus, authorities failed to adhere to mandatory procedure which ought to have been followed in passing detention order and confirming same - authorities ought to have explained in respect of time gap which was consumed from date of in camera recording of statements of persons till passing detention order - entire papers of criminal cases of petitioner not placed before detaining authority - detention order set aside - petition allowed.

 KUSUMA ANKAMA RAO VERSUS STATE OF ANDHRA PRADESH

2008 STPL (LE) 40319 SC [AIR 2008 SC 2819 = (2008) 13 SCC 257 = JT 2008 (7) SC 360 = 2008 AIR(SCW) 4669 = 2008 CRI. L. J. 3502 = (2009) 2 SCC(Cri) 298] SUPREME COURT OF INDIA

 (D) Evidence Act, 1872, Section 3 - Evidence - Circumstantial evidence - Last seen theory - Comes into play where time gapm between the point of time when accused and deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible - Even in such a case the courts should look for some corroboration.

 2008(14) SCC 667/2009 CrLJ 319 Chattarsingh VS Haryana

2009 CrLJ 3032 Tipparam Prabhakar VS AP

Last seen theory comes into play only when time gap between death and last seen is so small that possibility of any other person other than accused being the author of crime becomes impossible.

 (Hatti Singh Vs. State of Harayana)6, reported in 2007 DGLS (soft) 427 : 2008(3) S.C.C.(Cri.) 246, the Honble Supreme Court observed that:h

 The evidence of last seen by itself apart from having not been proved in this case cannot be of much significance. It may provide for a link in the chain but unless the time gap between the deceased of having been last seen in the company of the accused person and the murder is proximate, it is difficult to prove the guilt of the accused only on that basis.

 Rambraksh @ Jalim Vs. State of Chhattisgarh2016 ALL SCR (Cri) 911

 Penal Code (1860), S.302 - Evidence Act (1872), S.3 - Murder - Circumstantial evidence - Deceased last seen alive in company of accused 7 days before alleged skeleton of deceased was noticed in a field - Wife of deceased stated to have witnessed accused assaulting deceased with lathi and danda - However, no marks of injury found in any of the bones recovered from the field - Medical examination of bones even not showing cause of death - No attempt made by Investigation Officer to conduct DNA test of bones to prove that the skeleton was that of deceased - Death not proved - Conviction cannot be based merely on circumstance of last seen that too with such a long time gap of 7 days. (Paras

Shri Zahir Ahmed Saeed Ahmed Mistry & Ors. Vs. The State of Maharashtra2016 ALL MR (Cri) 3679 

Penal Code (1860), Ss.364, 300, 201 - Evidence Act (1872), Ss.3, 8, 24, 27 - Kidnapping and murder - Circumstantial evidence - Identity of dead body of deceased established - Motive alleged that accused person developed jealousy on account of business of deceased - Time gap between deceased last seen with accused persons and recovery of dead body was about 20 hours - Accused persons stating that they departed with deceased at particular railway station - Last seen theory not established - Merely because accused persons were absconding after a particular date itself cannot be treated as determining factor - Extra judicial confession made to stranger about their guilt is highly improbable - Discovery of incriminating articles at instance of accused after a gap of four months in a proper condition is not reliable - Accused persons entitled to benefit of doubt. (Paras

legal-representative-cant-challenge-mact-award-claimants-death-

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Wednesday 22 February 2017

Exhibiting documents not sufficient but contents have to be proved _ Some recent case laws

Exhibiting documents not sufficient but contents have to be proved _ Some recent case laws
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Exhibiting of document _ Proof of contents _ Document does not get proved unless the conditions enumerated in Sections 65 and 66 are complied with _ Mere exhibiting of the document does not imply that the document is admitted in the evidence and is required to be read as it is _ Giving of exhibit to a document is only ministerial act and the party is not relieved of the burden to prove the contents. (See 2009 (11) LJSOFT 12)

Mere production of documents or exhibition thereof in the Court does not amount to proof of documents and contents thereof _ It does not amount to proof of truthfulness of the contents of the documents. (See 2013 (8) LJSOFT 135)

Secondary evidence _ Court is obliged to examine the probative value of the document produced or their contents and decide the question of admissibility of a document in secondary evidence _ Also the party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced _ Neither mere admission of a document in evidence amounts to its proof nor mere making of an exhibit of a document dispense with its proof, which is otherwise required to be done in accordance with law _ Genuineness, correctness and existence of the document shall have to be established during the trial. (See 2015 (12) LJSOFT (SC) 25)

Test identification parade held by the Executive Magistrate in presence of panchas _ Neither the Executive Magistrate nor the panchas were examined by the prosecution _ Contents of the panchanama cannot be said to be duly proved _ Said document, though exhibited, can not be used against accused No.2. (See 2015 (8) LJSOFT 104)

Recovery of amount _ Report regarding value of the work done by respondents _ Maker of the report was not available for recording his evidence as he had expired _ Merely because the document is marked as an exhibit does not by itself prove the contents of such document and as such it was incumbent upon the appellant to adduce corroborative evidence to substantiate the disclosures made in such report. (See 2012 (8) LJSOFT 150)

Appointment of Court Commissioner _ Report of Court Commissioner can be made a part of the record and exhibited if report is not objected to by the parties to the suit _ However correctness of contents of the report can only be proved by examining writer/author of document _ Mere production of report and it being admitted in evidence by itself does not prove contents of document or as to what investigations were carried out by the court commissioner _ Courts below were justified in ignoring commissioner's report along with its map on the ground of non-examination of the court commissioner as a witness. (See 2010 (9) LJSOFT 71)

Proof of documents _ Merely because a document referred to in cross-examination is marked as an exhibit the same does not dispense with the proof of document in accordance with law of evidence. (See 2009 (2) LJSOFT 97)

Spot panchanama _ Appellants nowhere admitted contents of spot panchanama _ Endorsement was made to dispense with the formal proof of documents and exhibit number was put on the said document _ Such endorsement neither results in admission of the documents nor it dispenses with the necessity of proving the contents of the documents. (See 2007 (4) LJSOFT 75)

Saturday 18 February 2017

arunachal-pradesh-cm-pul-kalikho-sources-have-receipts-that-could-nail-sc-judges-who-took-bribes

https://www.thequint.com/politics/2017/02/17/arunachal-pradesh-cm-pul-kalikho-sources-have-receipts-that-could-nail-sc-judges-who-took-bribes

SOME IMPORTANT CITATIONS ON SEC 24 OF HINDU MARRIAGE ACT

*SOME IMPORTANT CITATIONS ON SEC 24 OF HINDU MARRIAGE ACT*

Richa Arya Vs. State of NCT of Delhi & Anr.2016 ALL MR (Cri) JOURNAL 233 

Protection of Women from Domestic Violence Act (2005), Ss.12, 18, 19, 20, 21, 22, 23 - Hindu Marriage Act (1955), S.24 - Interim measure - Refusal to grant on premise that petitioner being granted maintenance pendent lite under divorce proceedings - Held, relief u/S.12 of DV Act is in addition to any other relief - It is not necessary that relief under DV Act can only be sought for in proceeding under DV Act - Same may also be sought for in any legal proceeding even before a civil court and family court apart from criminal court - Therefore, rejection of claim, held, not proper. (Paras 

Amit Rasiklal Shah Vs. Sonal Amit Shah2011(1) ALL MR 765

 Hindu Marriage Act (1955), S.24 - Interim maintenance - Husband producing income-tax returns - Computation of taxable income must be seen in its entirety and only net income cannot be considered. (Paras 

Smt. Vrinda Bharat Mhapsekar Vs. Shri Bharat Prabhakar Mhapsekar2013(2) ALL MR 271 

Hindu Marriage Act (1955), S.24 - Application for enhancement of maintenance - Change of circumstances viz. promotion in service - Fit case for enhancement of maintenance. (Paras 

Sau. Vanita Pravin Gaikwad Vs. Shri. Pravin Pundlik Gaikwad2010 ALL MR (Supp.) 445 

Hindu Marriage Act (1955), Ss.13, 24 - Civil P.C. (1908), O.8, R.1 - Divorce petition - Grant of litigation expenses - Application filed under S.24 by wife for grant of litigation expenses - Wife cannot be compelled to file a written statement unless an order is passed in favour of the wife directing the petitioner husband to pay litigation expenses - Wife is expected to file written statement only after the amount is paid to her.(Para 

Ritula Singh Vs. Lt. Col. Rajeshwar Singh2010(3) ALL MR 828 

Hindu Marriage Act (1955), S.24 - Maintenance to wife - Interim maintenance - Wife having income sufficient to maintain herself - Merely because the husband starts earning additional amount, she cannot be taken not to have income sufficient to maintain herself ipso facto. (Para 

Arvind Chenji Vs. Krishnaveni2010(1) ALL MR (JOURNAL) 33 

 Hindu Marriage Act (1955), S.24 - Interim maintenance - Grant of, in favour of children, not permissible - Section 24 confers right upon spouses alone, to claim maintenance - Children alone, excluded - Lower Court order granting interim maintenance to two minor children also, held, bad. (Para 

8. It needs to be mentioned that the EP filed by the respondent was under Rule 11 of Order 21, read with Rule 141 of the Civil Rules of Practice. A specific prayer was made for attachment of some items of movable property. Whenever a decree-holder wants the judgment-debtor to be arrested, an application under Rule 37 of Order 21, CPC has to be made. Detailed procedure is prescribed to deal with applications, filed under that provision. The scope of enquiry would be, as to the means, possessed by the judgment-debtor, and his disinclination to pay the decretal amount. Even assuming that the EP filed by the respondent herein can be treated as under Order 21, Rule 37, the Family Court did not bestow its attention to the prescribed procedure. Therefore, the direction issued by the Executing Court, for arrest of the petitioner, is not sustainable in law.

 Smt. Manju Kamal Mehra Vs. Mr. Kamal Pushkar Mehra2009(5) ALL MR 798

 Hindu Marriage Act (1955), Ss.9, 24 - Hindu Adoption and Maintenance Act (1956), S.18 - Grant of maintenance to wife - Challenge to - Decree of restitution of conjugal rights against wife - Held, when the husband has succeeded in obtaining a decree of restitution of conjugal rights against the wife, it is implied that wife was required to join the company of the husband at her matrimonial home and therefore, there is no question of maintenance at least from the date of the said order - Order to that extent is required to be set aside - However, Court refused to interfere in the maintenance granted to daughter. 

Smt. Snehal W/O. Sanjay Bapat Vs. Shri. Sanjay S/O. Madhusudan Bapat2009(4) ALL MR 39 

Hindu Marriage Act (1955), S.24 - Interim maintenance - Enhancement of - Held, interim maintenance is an order which is meant for providing subsistence during the pendency of proceedings - In these circumstances, enhancement or the reduction in the interim maintenance can be sought by an application, if there is change of circumstances or extra-ordinary long delay in disposal of matter, even though there is no express statutory provision to pass such order. (Para 

Akella Rama Murthy S/O A. Thimmaya Shastry Vs. Akella Sitalaxmi W/O A. Rama Murthy2006(3) ALL MR (JOURNAL) 31 

Hindu Marriage Act (1955), S.24 - Maintenance - Claim for children - Right to claim maintenance is conferred only on husband or wife - It is impermissible to grant maintenance to children of the parties - Their remedy is under S.125 of Cr.P.C. and Hindu Adoptions and Maintenance Act. (Para 

Smt. Pampa Das Vs.Sanjib Das2005(4) ALL MR (JOURNAL) 65 

Hindu Marriage Act (1955), S.24 - Maintenance pendente lite - Application for - Conduct of applicant is immaterial - It is not open to Court to pre-judge the issues and to hold that as the applicant is guilty of matrimonial offences applicant is not entitled to alimony pendent lite and expenses of proceedings.

 Mrs. Rajashree Alias Vanita Rajesh Dixit Vs. Shri. Rajesh Nagesh Dixit2005(4) ALL MR 63

 Hindu Marriage Act (1955), S.24 - Criminal P.C. (1973), S.127 - Civil P.C. (1908), O.47, R.1(1) - Grant of maintenance - Alteration of interim maintenance amount - Provisions of S.24 of Hindu Marriage Act, cannot be given restricted meaning - If in a given case, an application is made for alteration of the interim maintenance amount already granted, such an application will have to be entertained as an application for review under order 47 of R.1(1) of Civil P.C. or in the alternative an application u/s. 127 of Criminal P.C.

Sanjay S/O Pundlikrao Niranjane Vs. Swati W/O Sanjay Niranjane2005 ALL MR (Cri) 2377

 Criminal P.C. (1973), S.125 - Hindu Marriage Act (1955), S.24 - Maintenance - Grant of - Claim of maintenance by wife u/s.125 of Criminal P.C. - Husband already paying higher amount of maintenance in compliance with the order passed under S.24 of Hindu Marriage Act - Wife not entitled to claim maintenance under S.125 of Criminal P.C. in view of the order passed u/s.24 of Hindu Marriage Act. 2000 ALL MR (Cri) 372 – Followed

 Vanmala W/O Maroti Hatkar Vs. Maroti Sambhaji Hatkar1999(2) ALL MR 504

 

Hindu Marriage Act (1955), S.24 - Order granting interim alimony and expenses of litigation to wife - Petitioner husband refusing to pay - Wife need not be driven to file execution proceedings - Court can in exercise of inherent powers stay proceedings for divorce for non-compliance with its order.

Mr. Krishnakant Mulashankar Vyas Vs. Mrs. Reena Krishna Vyas And Anr1999(2) ALL MR 103

Hindu Marriage Act (1955), Ss.5(1), 11 and 24 - Hindu Adoption and Maintenance Act (1956), S.18 - Second marriage while first marriage is subsisting - Marriage is void under S.11 read with S.5(1) - Second wife however is not disentitled from claiming maintenance pendente lite under S.24 - She is also not disentitled from claiming interim maintenance under S.18 of 1956 Act.

Occupation Of Rented Premises By Tenant’s Son-In-Law Amounts To Subletting:

Occupation Of Rented Premises By Tenant’s Son-In-Law Amounts To Subletting: SC [Read Judgment]

Read more at: http://www.livelaw.in/occupation-rented-premises-tenants-son-law-amounts-subletting-sc/

occupation-rented-premises-tenants-son-law-amounts-subletting

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Friday 10 February 2017

Maintenance Case laws in favor of husbands

*⭐Maintenance Case laws in favor of husbands:*

1. Reduced interim maintenance. (SC), Hbl J. R. M. Lodha, order on 20-07-2010, Appeal No. 5660 of 2010, Arising SLP (C) No. 6736 of 2007, Neeta Rakesh Jain Vs Rakesh Jeetmal Jain. Citation No. AIR 2010 SC 3540; (2010) 12 SCC 242; 2010 (7) JT I 76 (SC).

2. Wife is not entitled to maintenance who deserted her husband. (Supreme Court), Bench Hbl JJ. S. Ahmed & D. Wadhwa, order on 02-03-200, AIR 2000 SC 952, 2000(2) ALD Cri 15, 2000Cr. LJ 1498, Rohtash Singh Vs Smt. Ramendrei & Ors. Citation No. (2000) 3 SCC 180; JT 2000 (2) SC 553.

3. Maintenance not granted as it is proved that wife wants to reside separately. No maintenance to deserting wife. (HC Chhattisgarh), Hbl J., L. C. Bhadoo, order on 15 -02-2004, Crl. Revision No. 544/2003, Shiv Kumar Yadav Vs Santoshi Yadav.

4. Husband can get PF details of wife. (CIC, Delhi), Decision No. 1816/ IC (A) 2008, F No. CIC/MA/A/2007/00583, Prof M.M. Ansari, order on 10 Jan 2008.

5. Wife guilty of contempt of court, maintenance denied with cost. (HC Delhi), Hbl J. S. N. Dhingra, order on 25-01-2010, Cont. Case (C) 482 of 2008, Gurbinder Singh Vs Manjit Kaur.

6. Children have to maintain their parents. (High Court Gujrat), Hbl J. Akhil Kureshi, order on 09-02-2011, CR RA/759 of 2009, 4/4, Hasmukhbhai Narayan Bhai Viramiya Vs State & Ors.

7. Conditions when maintenance to be paid. (High Court Delhi), Mr. Pradeep Nandrajog J., order reserved on 02-04-2007, order on 14-04-2007, CM (M) No. 367 of 2007, Alok Kumar Jain Vs Purnima Jain. Citation No. 2007 (96) DRJ 115.

8. All states amends in Sec 125 CrPC is invalid. (SC), Bench Hbl M. Katju, Gyan Sudha Mishra JJ., order on 11 Jan 2011, Crl Appeal No. 107 of 2011, SLP (Crl) No. 6568 of 2009, Manoj Yadav Vs Pushpa Yadav. Citation No. 2011 : 1 L.W. (Crl.) 520.

9. Wife should clear that she is unable to maintain her. No maintenance to enable wife who deserted her husband. (High Court Karnataka), Bench Hbl J. M. Patil, order on 13-02-1980, Haunsabai Vs Balkrishna Krishna Badigar. Citation Nos. 1981 Cri LJ 110; ILR 1980 KAR 612; 1980 (2) Kar LJ 158.

5 STEPS TO WIN THE INTERIM MAINTENANCE

10. Maintenance on actual earning. (High Court Delhi), Hbl J. Shiv Narayan Dhingra, order reserved 25-07-2008, order on 18-09-2008, CM (M) No. 1790 of 2006 and CM No. 1435 of 2006, Ritu Raj Kant Vs Anita. Citation No. 154 (2008) DLT 505.

11. Maintenance denied for working wife. (High Court Madras), Hbl A. S. Venkatachalamoorthy J., order on 21-06-2002, Kumaresan Vs Aswathi. Citation No. (2002) 2 MLJ 760.

12. No maintenance for capable and working wife. (High Court Maharastra), Hbl J. C. Chitre J., order on 24-03-2000, Smt. Mamta Jaiswal Vs Rajesh Jaiswal. Citation No. 2000 (4) MPHT 457; II (2000) DMC 170.

13. No maintenance to earning wife, only to children. (High Court Karnataka), Hbl K. Manjunath J., order on 22-08-2005, AIR 2005 Kant 417, ILR 2005 KAR 4981, Dr. E. Shanthi Vs Dr. H K. Vasudev.

14. No Maintenance to working wife in 125 CrPC. (High Court Madras), Hbl P. Sathasivam J., order on 21-01-2003, Manokaran @ Ramamoorthy Vs M. Devaki. Citation Nos. AIR 2003 Mad 212; I (2003) DMC 799; (2003) I MLJ 752 (Mad), CMP No. 16264 of 2002.

15. No Maintenance to wife, but only to child. (HC Mumbai), Hbl J. B. L. Marlapalle, order on 18-7-2009, Appeal No. 20 of 2005 and 144 of 2005, Smt. Manju Kamal Mehra Vs Kamal Puskar Mehra. Citation Nos. 2010 AIR (Bom) 34; 2009 (5) AIIMR 798; Legal/ 360.in 114983; LS/Bom/2009/1374.

16. No maintenance U/s 125 CrPC when wife deserts hubby without cause and also she is earning. No Maintenance to capable wife, but only to child and no maintenance to wife living in adultery. (HC Uttaranchal), Hbl J. Alok Singh, order on 18-11-2009, Crl. Rev. No. 201 of 2006, Smt. Archana Gupta & ors Vs Rajeev Gupta.

17. Wife should clear that she is unable to maintain herself. (HC Allahabad), Hbl J. B. Katju, order on 25-03-1976, Manmohan Singh Vs Smt. Mahindra Kaur. Citation No. 1976 Cri LJ 1664.

18. No Maintenance if wife is working. (HC Uttaranchal), Hbl J. Dharamveer, order on 25-10-2010, Crl Rev. No. 88 of 2002, Vikas Jain Vs Deepali @ Ayushi. Citation No. LAWS (UTN) 2010-1-36.

19. Wife living separate troubled in family no maintenance. (HC Madras), Hbl J. P. R. Shiva Kumar, order on 22-02-2008, Crl. R. C. No. 1491 of 2005, Marimuthu Vs Janaki. Citation No. AIR 2003 Mad 212; I (2003) DMC 799; (2003) I MLJ 752.🇮🇳🇮🇳

Tuesday 7 February 2017

Custody rights of Indian moms (and dads) after divorce

Custody rights of Indian moms (and dads) after divorce

Recently, the Supreme Court had stayed an order of the Gujarat High Court asking a mother to take her eight-year-old son to the United Kingdom, because of a judicial order passed there in a custody battle initiated by her estranged husband. Divorce and custody battles can become a quagmire and the innocent child gets caught up in the legal and psychological warfare between both parents.

Under Indian law, maximum importance is given to the best interests of the child and so either parent does not have a clear primacy to be granted the custody of the child.

After the dissolution of a marriage, custody of a child can be given as:

Joint Physical Custody: A new concept that has evolved while negotiating divorce settlements. Both parents will have legal custody, but one will have the physical custody (child resides with him or her) and will be the child’s primary caretaker.

Sole Custody: One parent has been proven to be an abusive and unfit parent and the other parent is granted custody.

Third Party Custody: Neither of the biological parents are given custody of the child. Instead, the child custody is granted to a third person by the court.

The Guardians and Wards Act, 1890 is the universal law pertaining to issues involving child custody and guardianship in India, regardless of the child’s religion. However, under secular principles, India also sanctions laws pertaining to different religions.

Under secular law as well as Hindu law

The mother usually gets custody of the minor child, under the age of five.Fathers get custody of older boys and mothers of older girls, but it is not a strict rule and is primarily decided based on the child’s interests.The choice of a child above the age of nine is considered.A mother who is proven to neglect or ill-treat the child is not given custody.

Custody under Muslim Law

As per the Muslim Law, only the mother holds the ultimate right to seek her child/children’s custody under the Right of Hizanat as long as she is not convicted or found guilty of any misconduct. The father’s right of Hizanat is applicable only in the absence of an able mother.

Custody under Christian Law

If divorce is inevitable, acrimonious battles cannot be the option to settle issues of child custody and access. Custody of a child only implies to whom the child will physically reside with. Both parents continue to be natural guardians.

Helpful information

The thinking has shifted from custody and access being the ‘right of a parent’ to being the ‘right of a child’. The principle on which custody is decided is the ‘best interests of the child’. Therefore, the parent who can take better care of the child’s emotional, educational, social and medical needs is favoured.

The earning capacity of the parent does not determine custody, but the capacity to provide a safe and secure environment does. Even a mother who is a housewife can gain custody of the child and the father will be asked to provide child support.

The mother is the preferred custodial parent when the child is less than fiveyears old. The opinion of a child who is over nine years old will be considered.

The non-custodial parent can get different types of access to the child based on circumstances and convenience. For example, court could grant weekly, fortnightly, daily or monthly visitation rights. It can be day or overnight access. It could also be free access with no fixed schedule, but as per the parents’ and the child’s convenience.

The parents can agree to a one-time amount or a staggered payment at different stages of the child’s educational life or a monthly payment with incremental increase. The child support should cover the child’s educational and nominal lifestyle expenses.

The court is parens patriae or the ultimate guardian of the child. So the child’s property is protected by law, and terms of custody, visitation and child support can be altered in changed circumstances in the interest of the child.

Other interesting rulings

A Supreme Court bench headed by Justice Vikramjit Sen had ruled that an unwed mother does not have to take consent from the biological father of the child, or reveal his identity for sole guardianship of the child.

The Delhi High Court has ruled that using the mother’s name is sufficient for a child to apply for a passport when the child is being brought up by a single mother without any involvement from the father.