Author: Legal India Admin

NCLAT exonerated the present Board of 63 moons of all the baseless allegations of oppression and mismanagement.

Posted on | by Legal India Admin | Leave a Comment on NCLAT exonerated the present Board of 63 moons of all the baseless allegations of oppression and mismanagement.

It is the right time to celebrate the big win for 63 moons as the National Company Law Appellate Tribunal, has dismissed the plea of the Ministry of Corporate Affairs (MCA) to supersede the Board of 63 moons technologies limited (formerly known as FTIL) under Section 397 of the Companies Act, 1956. The present 63 moons Board comprises of 4 former Secretaries IAS (Retd.), 1 former Supreme Court Judge, 1 former Bombay High Court Judge, 1 CA, 1 IIM-A Alumni, 1 noted Economist and 2 former Senior Bankers.

NCLAT has completely exonerated the present Board of 63 moons of all the baseless allegations of oppression and mismanagement.

On this occasion Mr. S. Rajendran, who is MD & CEO of 63 moons stated that “We are extremely happy to note that NCLAT has rejected MCA’s prayer to supersede the Board of 63 moons in connection with the payment default crisis that occurred at one of our subsidiaries, National Spot Exchange Ltd (NSEL) in 2013. The order has also given a clean chit to the current Board of 63 moons of any alleged misconduct or wrongdoing against the interest of its shareholders.”

Mr. Rajendran was shocked and surprised at NCLAT upholding the NCLT Chennai’s order on Section 388B and such sections against some of the past directors of 63 moons who were not even on the Board of NSEL i.e. Mr. Manjay Shah and Mr. Dewang Neralla. And strangely in case of Mr. Jignesh Shah, Section 388B was applied on the basis of material beyond the original petition filed by MCA in 2015. Shockingly, out of the three directors of 63 moons, only Mr. Jignesh Shah was on Board of NSEL and no Section 397 proceedings are initiated against NSEL nor any Section 388B is upheld against any other directors of NSEL including other directors of 63 moons who were also on NSEL Board. This complete contradiction is one of the many unexplained & unsubstantiated inconsistencies in the Order.

The NSEL payment crisis, occurred because of a well-crafted political conspiracy during UPA 2 era. It was due to continued targeting of Mr. Jignesh Shah which started in the earlier UPA Govt. by a powerful minister and his network of loyal bureaucrats, who failed in their duty and misled the Govt. for many such industry negative actions.

At this occasion Mr Rajendran stated that,“The operational part of judgement is being examined and all necessary steps will be taken as per the legal advice. We are very sure that ultimately truth shall prevail & justice will be done.”

 

Muslim Women (Protection of Rights on Divorce) Act 1986

Posted on | by Legal India Admin | Leave a Comment on Muslim Women (Protection of Rights on Divorce) Act 1986

Before the enactment of this Muslim Women (Protection of Rights on Divorce) Act, a Muslim woman, who was divorced by or from her husband, was granted a right to livelihood from her quondam husband in the shape of maintenance under the provisions of Chapter IX of the Code of Criminal Procedure until she remarried.
Parliament, with its supposed omniscience in law, may, in its professed omnipotence enact legislations to undo and set at naught the effect of any judicial decision of the Supreme Court or any other Court, however good and conducive to the welfare of the people that decision may be. But to borrow from Shakespeare, while it may be good to have giant’s power, it may not at all be good to use the same as a giant.

It is now well-settled, since the celebrated decision of the Supreme Court in Olga Tellis,“ that right to life and personal liberty guaranteed under Art. 21 of the Constitution includes the right to livelihood. Before the enactment of this Muslim Women (Protection of Rights on Divorce) Act, a Muslim woman, who was divorced by or from her husband, was granted a right to livelihood from her quondam husband in the shape of maintenance under the provisions of Chapter IX of the Code of Criminal Procedure until she remarried.

It is also equally well-settled, since the decisions of the Supreme Court in Maneka Gandhi and in Olga Tellis, that no one, obviously including a Muslim divorced woman, can be deprived of the right to life or livelihood except by the procedure established by law, which must be reasonable, right, just and fair.

Would the provisions of the Muslim Women (Protection of Righs on Divorce) Act of 1986, which apparently seeks to deprive a divorced Muslim woman of such right to maintenance from her former husband, and providing for maintenance to be paid by the former husband only for the period of iddat and thereafter to make her run after her own relatives one after the other and then ultimately to knock at the door of the Wakf Board, at all appear to be reasonable and to be a fair substitute for the provisions of Chapter IX of the Code of Criminal Procedure? To put it in other words, whether deprivation of the Muslim divorced woman of her right to maintenance under the beneficial provisions of Chapter IX of the Code of Criminal Procedure, which are otherwise available to all other women in India, has been effected by a reasonable, right, just and a fair piece of law as enacted in the Muslim Women (Protection of Rights on Divorce) Act of 1986?

And if these provisions are much less beneficial than the provisions of Chapter IX of the Code of Criminal Procedure, then a Muslim divorced woman has obviously been unreasonably discriminated and driven out from the protection of the benign provisions of the general law as enacted in Chapter IX of the Code of Criminal Procedure, which are available to a Hindu, Buddhist, ]ain, Parsee or Christian woman or a woman belonging to any other community.

Now except for the protection afforded by Art. 25(1) the provisions are patently violative of Art. 14 of the Constitution mandating equality

before and equal protection of laws to all persons otherwise similarly circumstanced, and also violative of Art. 15(1) of the Constitution which forbids any discrimination on the ground of religion, as the Muslim Women (Protection of Rights on Divorce) Act of 1986 would obviously apply to Muslim divorced women only and solely on the ground of their belonging to the Muslim religion. This criticism has been accepted (almost verbatim) by the Supreme Court in Danial Latifi v Union of India.

 

Danial Latifi v Union of India
The constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act 1986 was challenged in Danial Latifi.

A Constitutional Bench of five judges speaking through Rajendra Babu, ] noted that the purpose of the Act appears to be to allow the Muslim husband to retain his freedom of avoiding payment of maintenance to his erstwhile wife after divorce and the period of iddat, and thereby to reverse the decision in Shah Bano, but ironically the enactment actually codifies the very rationale contained in Drmial Latzfi.

At the outset the court noted that the Act in terms does not apply to a Muslim woman whose marriage is solemnised either under the Special Marriage Act 1954 or a Muslim woman whose marriage was dissolved either under the Divorce Act 1869 or the Special Marriage Act 1954 nor to the deserted and separated Muslim wives.

It was also made clear that to find out the personal law of Muslims with regard to divorced women’s rights, the starting point should be Shall Bano case and not the original texts or any other material all the more so when varying versions as to the authenticitv of the source are shown to exist.

The court held that if the provisions of the 1986 Act were read as less beneficial than the provisions of Chapter IX of the Code of Criminal Procedure, then a divorced Muslim woman has obviously been unreasonably discriminated and got out of the protection of the provisions of the general law which are available to Hindu, Buddhist, ]ain, Parsi or Christian women or women belonging to any other community. The provisions would then be violative of Art. 14 of the Constitution mandating equality and equal protection of law to all persons otherwise similarly circumstanced and also violative of Art. 15 of the Constitution which prohibits any discrimination on the ground of religion as the Act would obviously apply to Muslim divorced women only and solely on the ground of their belonging to the Muslim religion”.2° To avoid this result the court interpreted the Act by reading its provisions in a manner which would make it compatible with constitutional principles.

Sections 3 and 4 of the Muslim Women (Protection of Rights on Divorce) Act 1986 were the principal sections, under attack before the court. Section 3 opens up with a non-obstante clause overriding all other laws and provides that a divorced woman shall be entitled inter ailia to a reasonable and fair provision and maintenance to be made and paid to her within the period of iddat by her former husband”. Section 4 provides that as long as the divorced woman has not remarried and is unable to maintain herself after the iddat period the Magistrate may order such of her relatives as would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and lair maintenance to her; if they do not have the means then other relatives who do have the means and failing them the State Wakf Board.

The constitutional validity of these two sections was upheld through a process of ingenious interpretation. The court found first that the wordings of s. 3 of the Act indicated that the husband has two separate and distinct obligations:
(1) to make a “reasonable and fair provision” for his divorced wife; and (2) to provide “maintenance” for her?‘ Second it was held that the word “provision” in s. 3(1)(a) of the Act incorporates “mata” as a right of the divorced Muslim woman distinct from and in addition to mahr and maintenance for the iddat period. Third it found that the emphasis of s. 4 is not on the nature or duration of any such “provision” or “maintenance”, but on the time by which an arrangement for payment of provision and maintenance should be concluded, namely, “within the iddat period”.

Fourth, “nowhere has Parliament provided that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond it”.

It would therefore ”extend to the whole life of the divorced wife unless she gets married for a second time”.3 Fifth, the court held “Section 4 of the Act refers only to payment of ‘maintenance’ and does not touch upon the ’provision’ to be made by the husband referred to in s. 3(1)(a) of the Act.”4 Consequently the right to have a fair and reasonable provision in her favour is a right enforceable against the woman’s former husband in addition to what he is obliged to pay as “maintenance” and so “there is no reason why such provision could not take the form of the regular payment of alimony to the divorced woman”. Finally it was held “what could be earlier granted by a Magistrate under 5. 125, CrPC would now be granted under the very Act itself This being the position, the Act cannot be held to be unconstitutional”.

Unfortunately, the court ignored the provisions of Art. 25 and its impact on personal laws for arriving at the same conclusion. It is arguable that the State is limited by Art. 25(2) to enact legislation to amend personal laws only for “social welfare and reform”. Further the legislation so enacted must be in compliance with fundamental rights.

Gajendragadkar, J. in Narasu Appa Mali, had said that the State Legislature can take gradual steps for social welfare and reform but cannot introduce distinctions or classifications which are unreasonable, irrational or oppressive. Since the 1986 Act is certainly neither a measure for “social welfare and reform” under Art. 25(1) nor a measure in compliance with the principle so enunciated, it is unconstitutional.

The decision although it reaffirmed Shah Bano, strangely did not cause any protest and is now the accepted as the authority for the proposition that that the powers and jurisdiction of a Magistrate under the 1986 Act are co-extensive with the those under s. 125 of the Code of Criminal
Procedure as far as a Muslim divorced woman’s right to
maintenance is concerned.

Even prior to Danial Latifi’s case the Supreme Court had already tempered the impact of s. 4 which provides for the right of a divorced woman to claim maintenance sequentially against various relatives and ultimately against the State Wakf Board, by directing that “she would instead be entitled to plead and prove such relevant facts in one proceeding, as to the inability of her relations aforementioned, maintaining her and directing her claim against the State Wakf Board in
the first instance” .

At present, as a result of the decision in Danial Latifi, according to some High Courts9 the Muslim divorced wife has higher rights than her counter parts in other religions.

Like other divorced wives under Section 125, CrPC, she can get monthly maintenance under s. 3 of the Act provided she is unable to maintain herself. Even when she is able to maintain herself and is even a millionairess, she can get the capitalised payment of amounts under s. 3 of the Act which other divorced wives cannot. Again while the remarriage puts an end to the claim of other divorced wives, the Muslim divorced wife on re-marriage can keep the capitalised amount with herself with no liability to return the same. Thus viewed from any angle, the Muslim divorced wife under her personal

law (i.e. the Act) has larger and superior rights than what her counter parts of other religions have under s. 125 of the Code”.

The Act, however, does not in any way affect the rights of the Muslim children to claim maintenance from the father and the provisions of Chapter IX of the Code of Criminal Procedure can obviously be invoked by or on behalf of such children. Section 3(1)(b) of the Act, no doubt, provides that a divorced women shall be entitled to, where she herself maintains the children born to her before or after divorce a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children. But as has been held,“ and rightly too, the right under s. 3(])(b) is a right of the divorced woman hersclfand is incidental to the divorce and the said provisions can in no way affect the operation of the provisions of Chapter IX providing maintenance for minor children.

Minors As Partners of Firm

Posted on | by Legal India Admin | Leave a Comment on Minors As Partners of Firm

Indian Partnership Act, 1932 defines persons as a partner who have agreed to share profits of the business carried on by all are any of them acting for all.[1]

A minor is a person who hasn’t yet attainted the age of majority according to the Indian Majority Act, 1875.[2] It is stated that a person who is domiciled in India will attain majority at the age of eighteen in the Indian Majority Act.[3]

The Indian Partnership Act governs the admittance of a minor into the partnership in Section 30. This section deals with the rights and liabilities of a minor who is admitted un the partnership.[4] A deeper reading of the provision, specifically section 30(1) makes it very clear that a minor cannot be admitted in the partnership as a full-fledged partner, but with the consent of the other partners, a minor can be admitted in the partnership to the benefits of the partnership.

It is an established principle that a minor is incompetent to enter in a contract, and therefore, a contract of partnership cannot be entered with a minor.[5] The same was also assented by the apex court of the country in the Dwarkadas Case[6] and the Hardutt Ray Case[7].

Minors Admitted Only For Benefits

The general principle has been laid down by Section 11 of The Indian Contract Act, 1872, where it is discussed that who is competent to a contract and thereby stating that a minor doesn’t have the ability to contract.[8] The same was supported in the Andhra Pradesh High judgement of Addepally Nageshwar Rao[9].

The Indian Partnership Act was drafted by a special committee. Before the enactment of The Indian Partnership Act the provision in partnership was governed by The Indian Contract Act and therefore the special committee thought that there was no requirement to deviate from the principle of incapability of a minor to enter into a contract of partnership as provided by Section 11 of The Indian Contract Act.

Following this the special committee did not allow the minors to become a partner in a partnership, although they allowed a minor to be admitted to the benefits of a partnership with the consent of all the existing partners in the partnership.[10]

The same kind of principle is also pronounced in judicial pronouncements like the S. C. Mandal case.[11] It was observed that under Section 4 of The Indian Partnership Act[12], a firm means a group of people who has entered into a contract of partnership among themselves and reading it with Section 11 of the Indian Contract Act,[13] it can be interpreted that a minor cannot be a part of a partnership contract.

It was held that a minor can only be in the partnership only for the benefits of the partnership. It also stated that there should partnership between two major partners before a minor can be admitted to its benefits.

The high court of Allahabad even declared a partnership deed to be void where the rights and liabilities of a partnership firm was divided between the minor and majors in the partnership.[14] The court held that in the present situation not only the benefits of the partnership but also the liabilities of the partnership are being put on the minor which is contradictory to the Indian Partnership Act[15].

Although the various judgements in the same line was there but still there was a huge confusion regarding the question as to can a minor become a full-fledged partner in the partnership firm as there were some contrary judgement to this effect also.

Finally, the Supreme Court in the landmark judgement of Commissioner of Income Tax vs D. Khaitan and Co.[16] took a legal stand that in a situation where a minor is made a full-fledged partner in the firm in that case the partnership cannot be registered by the Income Tax Department.

In case the partnership has to be registered by the Income Tax Department then a totally new contract has to be formulated where the minor is to be admitted only to the benefits of the firm, and the old contract will be invalid with the new contract coming in force. It was also stated that the new contract has to specifically mention that the minor has been admitted in the partnership only for benefits and no the minor is not liable for any losses.

Even in the judgement of Banka Mal Lajja Ram & Co. vs. Commissioner of Income Tax, Delhi[17], it was held that even if all the other partners of the partnership consent in making the minor a full-fledged partner still that can be brought into effect.

In the Guwahati High Court judgement of Commissioner of Income Tax vs. Kedarmall Keshardeo[18] the court held that a contract deed is valid when a guardian enters into a partnership on behalf of the minor but again no liability should be imposed on the minor, even the income of a minor from the firm should not be considered for the purpose of income tax.

The courts even came to the view that when a guardian is contracting for a minor then the damages must be calculated in the basis of what damage the guardian has suffered and not the minor.[19] It is also established by the courts that if a minor is contracting through a guardian then the benefits that are being conferred that has to be accepted by the guardian[20], but the minor may do away with the agreement id it is not entered for his benefits.[21]

Rights And Liability of A Minor

Section 30(2) of the Indian Partnership Act states that a minor is entitled to share of profits and the property of the firm which may have decided at the time the minor was admitted to the benefits of the partnership.[22] Under this provision, a minor has the right to inspect the accounts of the partnership but to that fact does not have any right to inspect other documents of the partnership.

Even in Section 30(3) of the Indian Partnership Act a minor can only be liable to the extent of his share in the partnership and can’t be liable personally to the partnership for the losses of the firm.[23] Even the same notion was taken in a Calcutta High Court judgement where it was stated that the creditors can only recover the amount from a minor to the extent of his share in the firm, but they can’t sue the minor personally, this benefit is not enjoyed by the major member in the firm.[24]

The Supreme Court went a step ahead when it adjudged that a minor can’t be declared insolvent even if the major partners of the firm are declared insolvent.[25] The apex court also came out with the same view as to when can a minor sue the other full-fledged partner in the partnership.[26]

Section 30(4) of The Indian Partnership Act states that a minor can sue the other partners of the firm for his benefits in the firm but the same right is not available to the full-fledged partners of the firm. The provision also states that in the case the minor severs all ties with the firm then valuation of his share is to be done according to Section 48 of The Indian Partnership Act[27] as far as possible.

Position of Minor Attaining Majority

According to section 30(5) of The Indian Partnership Act, a minor has two option after attaining majority, either he can sever the connection with the firm or become a full-fledged partner in the firm.[28] The minor has to make dis decision within six months of his attaining majority.

The minor has to furnish a public notice specified under Section 72 on The Indian Partnership Act[29] if he chooses to become a full-fledged partner. The minor continues to enjoy the rights as a minor till he makes his final decision as to he will join the partnership as a full-fledged partner or sever the connection from the partnership.

Section 7(a) of The Indian Partnership Act also states that after a minor partner has been admitted in the partnership as a full-fledged partner then he will be liable not only for the future liabilities of the firm but also the past liability from the date of his admission in the partnership.[30]

Section 7(b) states that a the share of the minor after he attains majority will be the same which was given to him when he was a minor as because when a minor chooses to become a full-fledged member of the partnership, there is no break in the partnership and it continues as it is just that the liabilities of being a full-fledged partner are now upon him.

Section 8 of The Indian Partnership Act[31] states that if the minor declines to continue as a full-fledged member of the partnership he will be liable for all the liabilities of the partnership till he furnishes the public notice as per Section 72 of The Indian Partnership Act. After serving the ties with the partnership, the minor may file a suit as to recover the benefits he was entitled to.

Conclusion
From the above discussion, we can say that a partnership firm cannot be formed with a minor as the only other member. The relationship of the partnership arises from a contract. According to Section 11 of The Indian Contract Act[32], a minor is not competent to a contract. Even in the Dwarkadas Khetan case[33] the Supreme Court of the country declares that a minor cannot be a full-fledged partner in the firm. The apex court in Shah Mohandas Case[34] stated that a minor may be admitted in the firm only for its benefits.

End-Notes:

  1. Section 4 of The Indian Partnership Act, 1932
  2. http://admis.hp.nic.in/himpol/Citizen/LawLib/C0141.htm; (last viewed on 22/3/19 at 09:54)
  3. Section 3 of The Indian Majority Act, 1875
  4. Section 30 of The Indian Partnership Act, 1932
  5. Shriram Sardarmal Didwani vs. Gourishankar Alias Rameshwar, AIR 1961 Bom 136
  6. Commissioner of Income Tax vs R. Dwarkadas And Co., [1971] 80 ITR 283 Bom
  7. Hardutt Ray Gajadhar Ram vs. Commissioner of Income Tax, [1950] 18 ITR 106 (All)
  8. Section 11 of The Indian Contract Act, 1872
  9. Addepally Nageswara Rao vs. Commissioner of Income-Tax, [1971] 79 ITR 306 AP
  10. Section 30(1) of The Indian Partnership Act, 1932
  11. Sanyasi Charan Mandal vs. Krishnadhan Banerjee, 1922 (24) BOMLR 700
  12. Supra, Note 1
  13. Supra, Note 8
  14. Hardutt Ray Gajadhar Ram vs. Commissioner of Income Tax, [1950] 18 ITR 106 (All)
  15. Supra, Note 4
  16. Supra Note 4
  17. Banka Mal Lajja Ran and Co. vs. Commissioner of Income Tax, Delhi, AIR 1953 Punj 270 (DB)
  18. Commissioner of Income Tax vs. Kedarmall Kessardeo, AIR 1968 Gau 68
  19. Khirnji Kuverji vs Lalji Karamasi, AIR 1941 Bom 129
  20. Commissioner of Income Tax Mysore, Bangalore vs Shah Mohandas Sodhuram, AIR 1966 SC 15
  21. Duaram Vir vs Jagan Nath, AIR 1968 Punj 84
  22. Section 30(2) of The Indian Partnership Act, 1932
  23. Section 30(3) of The Indian Partnership Act, 1932
  24. Sanyasi Charan Mandal vs. Asutosh Ghose, AIR 1915 Cal 482
  25. Shivagouda Ravji Patil and Ors. vs. Chandrakant Neelkanth Sedalge and Ors, AIR 1965 SC 212
  26. S. V. Chandra Pandian and Ors. vs S. V. Sivalinga Nadar and Ors., (1993) 1 SCC 589
  27. Mode of settlement of accounts between partners
  28. Section 30(5) of The Indian Partnership Act, 1932
  29. Mode of giving public notice
  30. Section 7(a) of The Indian Partnership Act, 1932
  31. Section 8 of The Indian Partnership Act, 1932
  32. Section 11 of The Indian Contract Act, 1872
  33. Supra Note 4
  34. Commissioner of Income Tax vs. Shah Mohandas Sadhuram, AIR 1966 SC 15

Devastating Effect Of The Domestic Violence Act 2005

Posted on | by Legal India Admin | Leave a Comment on Devastating Effect Of The Domestic Violence Act 2005

Since ages the social status of women has remained pitiful and worrisome. The stance of the society towards feminine gender was not as broad as today. They were the victims of dominance in the hands of their husbands and in-laws, unfortunately the women had no other choice but to accept the enormity as their fate and sanction the ambush done daily on their dignity without any condemnation.

Many tolerated the same as fortune and the rest who came forward to report had to step back due to lack of concrete provisions in law and improper legislation or had to face the gravest aftermaths of their attempt which at times may cost them their life! In order to provide effective protection of rights to women who were victims of violence of any kind occurring within the family, the Protection of Women and Children from Domestic Violence Act 2005[i] enacted as a step towards providing women with tangible legal protection.

The said enactment was in concurrence with the situation and social status of women then, however, the situation at present is not as same as before in fact has reversed, progress of mankind always shows the other side of the coin which is both negative as well as positive. The improved status of women in society and the rising awareness about the rights and privileges available is no doubt a great social change but is accompanied by the excessive bloody wisdom; due to the laws being completely inclined towards women, women find it irresistible to misuse and take the undue advantage of law.

As a result women use the given legal protection as a weapon against men and harass them by taking disadvantage of the prevailing laws. The author in this article has tried to highlight the devastating effect of the misuse of the provions by the women which are enacted for the welfare of women.

The Act at the inception proved to be very fruitful; women audaciously came forward and reported the violence that they suffered. Also, women were made more aware about their rights and the legal remedy that they could avail at the time of adversaries; they also became aware about how they could safeguard themselves as they started acquiring more and more education eventually giving them a better platform for better world exposure.

But as rightly said all power tends to corrupt and absolute power corrupts absolutely, the intention of the legislature entered demeaning stage when recently more of false cases were reported. In the recent time women started creating havoc by using the act as a tool or weapon to harass and blackmail men by registering false complaints against husband and his relatives with the alternate motive of extracting money.

Unfortunately the present law being gender specific there is no law to protect men [ii] from such melancholy, being a patriarchal and male dominated society the husband is left with very limited defences, the only remedy a man can avail at such time is either to defend the case and wait till the final judgement comes or file a concrete case against wife and prove her wrong. Mostly, the former remedy is the only one that can be adopted as the later one may get the husband into many complexities.

The primary intention of the legislature behind enacting gender specific law was to empower women and bring them at par with their male counter parts however, the law has not absolutely accomplished the objective of the legislature due to the presence of imperfections in it which in turned has become temptation for women to victimise themselves.

The most notable flaw in the act is that it lends itself to such easy misuse that women will find it hard to resist the temptation to teach a lesson to husband and his relatives and will file frivolous and false cases [iii] taking apt advantage of absence of any laws to protect men. The most prominent drawback of the act is that the definition[iv] of  domestic violence  is as stated in the act is very much ambiguous in nature.

The definition of  domestic violence  varies, depending on the context in which it is used. The meaning and interpretation of  violence  may vary from one instance to another. The same may be defined differently in medical, legal, political or social contexts. Though traditionally the definition of domestic violence is associated with physical violence yet the same is defined variedly in different parts of the world. For instance Merriam-Webster dictionary defines domestic violence as  the inflicting of physical injury by one family or household member on another also a repeated habitual pattern of such behaviour [v].

For instance the act includes  insults  and  jibes  under the definition of  verbal and emotional abuse . It might in some cases, be extended to mere domestic quarrels that were not intended to fall under the definition of mental and verbal abuse[vi]. Also, it is pertinent to note that unfortunately according to Domestic Violence Act, 2005 the aggrieved party is always  any women . Man does not come within the ambit of such definition.

Further, the  respondent  under the definition means any  adult male person , which means a complaint cannot be directed against women. However, it is not mandatory that the violence shall always be caused by the man on women.

In the matter of Dr N.G Dastane v/s Mrs S Dastane [vii] the Hon’ble Supreme Court held that the cruelty is of two types one is mental the other is physical. It might be true that physical is generally being perpetuated by the husband being a strong one but at the same time this can’t be said to be universally true. It is also vice versa in case of mental cruelty to the husband.

The term cruelty thus have a wider connotation and the term can be interpreted contingently as a consideration of those occurring which are yet to occur and which may not even occur. Women to book the husband falsely may interpret the term in the most dangerous way. Thus it is very pertinent to note that though the act has defined the term  domestic violence  albeit in a vague manner yet the concept of cruelty cannot specify for females only.

Another notable flaw is that the Magistrate is empowered to pass protection order[viii] which means that the magistrate can take measures to protect the women from any acts of violence that are even likely to take place in the future. The act further says that the complaint can be filed by any person other than the aggrieved person who has reason to believe that the violence has taken place. The act has certainly given women with too many rights under one roof.

The powers and discretion of the judicial officers too are wider in nature. The foremost action what court takes after receiving complaints of domestic violence is initiating the order of  stop violence order  or  Protection order  against the respondent. The intention of this order is to give a space free from violence to women facing domestic violence. It is in nature meant to be emergency law. If the respondent is disturbing the aggrieved in peaceful living in a shared household, the residence order [ix] which is in it a dangerous immunity conferred upon the women.

The another treacherous provision yet justified by the law is that the interim custody of the child also can be given to the aggrieved which puts the respondent in the fear as the visitation rights can also be denied in the  custody order . [x]

The prominent protection that gives wings to the ill-intentions of women is  monetary protection . Earlier, the genuine reason why women never raised their voice against their sufferings because they were economically dependent on their husband however, the condition is not the same now. Women too are educated and are economically self-reliant and at times are seen having more income than their male counter parts. The one who are indeed economically independent too harass their husbands by asking monetary reliefs by availing the benefit as provided under section 20(1) of the act. The women can avail the monetary relief, when the court is of the opinion to grant compensation to the victim for damages for injuries  compensation order  is issued.

The victim of domestic violence is also protected with monetary relief and the remedy to victim under any other civil or criminal court is not barred. In addition to this and exclusive of other provisions of law the jurisdiction of the magistrate to grant maintenance allowance is governed by section 125 of CrPC impliedly mandatory provision for maintenance and monetary relief was absolutely not required. The women who earn well also are seen taking undue advantage of the same on some or the other pretext.

The provision only tends to create multiplicity of proceedings and consequences which could be grossly unfair to both the parties. However, it is only the Hindu Marriage Act 1955 and Parsi Marriage and Divorce Act 1936 which specifically provides the relief of maintenance to both husbands as well as to wives at par [xi].

Domestic violence is extremely complex and to report the same as what is happened is even more complex. The violence takes place within the four walls of the house and no one else can aptly state it other than the one who suffered it specifically in the country like India where there are no specific laws for the protection of men.

There are many laws for the protection of women Dowry Prohibition Act, Section 498A in Indian Penal Code i.e offense of cruelty by husband and relatives of husband, Section 125 in Code of Criminal Procedure Code i.e maintenance for wife protection of women from protection of Domestic Violence, whereas there is no provision like 125A in Criminal Procedure Code or 498 B in Indian Penal Code.

The specific laws are misused by women and are accompanied by the failure in the investigation mechanism. Courts too are not diligent while pronouncing orders and often fail to apply their minds. Nobody addresses the grievances of husbands and his relatives not even the society. The practice says real purpose of the women related specific laws are misused and thereby husband suffer for no fault[xii].

In Vijayalakshmi v. Punjab University[xiii] it was held that as a result of joint operation of Article (15) and (3), the state may discriminate in favour of women against men but it may not discriminate in favour of men against women. Wherein is known that protection against domestic violence is a civil right it cannot be forgotten that its misuse cannot be taken lightly [xiv].

The other view on the other hand argues that social problems if remedied by force may lead to stronger reactions from the respondents, which in the end may be detrimental to the existence of society itself [xv].

It is absolutely true that to keep a check on men some stringent measures are necessary but this needed to be brought about not by adding more and more laws in the statute books with ill-advised measures but through proper enforcement of legal frame-work. Due to few false cases all the genuine cases too loose the gravity of being real and true and at times may be neglected.

The false reports puts the society into a perplexing condition wherein to believe or not to believe becomes the question. There are true cases where women are trapped in atrocious marriage and brutal household environment; they suffer in the hands of their husbands and in-laws.

Even the most educated and dignified people commit the offence of Domestic violence and even the qualified and well behaved women become the victim of Domestic Violence, many women are victims of sexual harassments and marital rapes which may lose spotlight if constantly women would report those crimes which never took place. Thus, in reality it is not only the law but also the inappropriate implementation of law which is responsible for the critical imbalance as what is seen today in the society.

Thus, the Police authorities too should be alert and diligent enough while registering the complaints while taking initial action and while doing further investigation they must once check the veracity of the crime instead of merely following the protocol. The Courts too should bound themselves with a responsibility of delivering decisions which would be based on applicability of their prudent minds and not by any stereotypical mind-set. It is true that the world is changing speedily and so does the social status of women but how many of the women do actually get literate to empower themselves is a biggest question having the most subjective answer.

Today we see women talking about the so called gender equality, we see their aspiration to pursue all what is being pursued by their male counterparts, we see women talking of the independence and freedom, but how many of them do practice it in reality? In a country like India, unlike other religions marriage is sacrament but considering the present situation importance of the institution of marriage is diminishing which consequently is disturbing the culture of family, the one who suffers the most is children in such families.

Conclusion:
The present law needs a rational approach and shall go through a revision. The society changes at particular intervals and that the laws shall commiserate with the change. Bringing into force more and more laws is not the solution but implementing the already existing ones is what is required. Everyone right from the investigating authorities till the courts where justice is sought shall play their role diligently and try to strike a balance in society only then the misuse of law will not take place.

End-Notes

  1. To be referred to as  the Act  throughout the article.
  2. Section 2 (a) of the act provides the definition for aggrieved person which is  aggrieved person  means 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 definition clearly indicates that the act provides specifically to women.
  3. John Enrich Edward Dalberg Available at http://www.goodreads.com/quotes/814115-absolute-power-corrupts-absolutely
  4. Section 3 of domestic Violence Act defines  Domestic Violence
  5. Available at http://www.meriam-webster.com/dictionary/violence.
  6. Gosh & Choudhari, pg 323
  7. AIR 1975 SC 1534
  8. Section 18 of PWDVA 2005
  9. Section 19 of PWDVA 2005which retrains the husband from disposing of property or disturbing the possession of shared household, irrespective of her legal inequitable interest in it.
  10. Section 21 of PWDA 2005, the protection provided in the said section should be given diligently by the judicial authorities. Due to this there are chances of future of child getting affected.
  11. Under Section 24 of Hindu Marriage Act, 1955 either of the spouses, husband or wife can be granted relief if the court is satisfied that the applicant has no independent income sufficient for his or her support and necessary expenses of the proceedings pending under the Act Under Parsi Marriage and Divorce Act, 1936 either Parsi wife or husband is entitled to claim expenses where the proceeding is pending under the Act
  12. P.K Das, law relating to cruelty to husband (2008) P.1
  13. AIR 2004 SC 3946
  14. http//:criticalanalysisof domesticviolenceLawinsection
  15. IOSR Journal of Humanities and Social Science(IOSR-JHSS) Volume10, ISSUE 2 (Mar-Apr 2013), PP41-44 e-ISSN:2279-0837, P-ISSN:2279-0845

First Information Report (FIR) : Know more

Posted on | by Legal India Admin | Leave a Comment on First Information Report (FIR) : Know more

The first information report means an information recorded by a police officer on duty given either by the aggrieved person or any other person to the commission of an alleged offence. On the basis of first information report, the police commences its investigation. Section 154 of the Code of Criminal Procedure, 1973 defines as to what amounts to first information.

The said section reads as under:-

154. Information in cognizable cases

  1. Every information relating to the commission of a cognizable offence, if given orally to an officer-in-charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
  2. A copy of the information as recorded under sub-section
    (i) shall be given forthwith, free of cost, to the informant.
  3. Any person aggrieved by a refusal on the part of an officer-
    in-charge of police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post to the Superintendent of Police concerned, who if satisfied that such information discloses the commission of a cognizable offence shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer-in-charge of the police station in relation to that offence.


The provision in section 154 regarding the reduction of oral statement to writing and obtaining signature of the informant to it, is for the purpose of discouraging irresponsible statement about criminal offences by fixing the informant with the responsibility for the statement he makes.

Refusal by the informant to sign the first information is an offence punishable under section 180 of the Indian Penal Code. The absence of signatures on the first information report by the informant, however, is not necessary to the extent that it will vitiate and nullify such report. The first information is still admissible in evidence.

In order to constitute an FIR in terms of section 154 of the Code. of Criminal Procedure, 1973 two conditions are to be fulfiUed:-
(a) what is conveyed must be an information; and
(b) that information should relate to the commission of a cognizable offence on the face of it.

In other words, FIR is only a complaint to set the affairs of law and order in motion and it is only at the investigation stage that all the details can be gathered. In one of the judgments, the Madhya Pradesh High Court observed that the report of the crime which is persuading the police machinery towards starting investigation is FIR, subsequent reports are/were written, they are not hit under section 161 of the Code of Criminal Procedure, 1973 and cannot be treated as such.

Who can File an FIR?

First Information Report (FIR) can be filed by any person. He need not necessarily be the victim or the injured or an eye-witness. First Information Report may be merely hearsay and need not necessarily be given by the person who has first hand knowledge of the facts.

Where to File an FIR?

An FIR can be filed in the police station of the concerned area in whose jurisdiction the offence has occurred. A first are to obtain information about the alleged criminal activity so as to be able to take suitable steps for tracing and bringing to book the guilty person.

Its secondary though equally important object is to obtain early information of an alleged criminal activity and to record the circumstances before the trial, lest such circumstances are forgotten or embellished.

Why FIR should be filed promptly

This is the golden principle of law prescribed in the Code of Criminal Procedure, 1973 that the First Information Report should always be filed promptly and without wasting any time. Such type of report gains the maximum credibility and is always welcome and appreciated by the courts.

According to Supreme Court the FIR recorded promptly before the time afforded to embellish or do away with the evidence is useful. It eliminates the possible chance of giving rise to suspicion.

Is there time duration fixed for Filing an FIR?

We have already emphasized this fact that as far as possible and practicable, every FIR should invariably be filed promptly, expeditiously and without wasting any time. There may be circumstances where some concession of time must be given in filing the FIR But there must be cogent reasons for reasonable delay in filing the FIR under the compelling circumstances. Judges with lot of wisdom and experience can use their discretion judiciously and in the interest of justice in each and every case. However, no possible duration of time can be fixed for applying the test of reasonableness to the lodging of an FIR as we have already explained. It depends upon facts and circumstances of each case. The delay in lodging the FIR as such is not fatal in law if the prosecution substantiated the factual difficulties encountered by the persons lodging the report.

Following are the reports or statements which do not amount to be an FIR:

  1. A report or a statement recorded after the commencement of the investigation (sections 162 and 163 of the Code of Criminal Procedure, 1973).
  2. Reports not recorded immediately but after questioning of witnesses.
  3. Reports recorded after several days of developments.
  4. Information not about occurrence of cognizable offence but only cryptic message in the form of an appeal for immediate help.
  5. Complaint to the Magistrate.
  6. Information to beat house.
  7. Information to the Magistrate or police officer on phone.
  8. Information received at police station prior to the lodging of an F.LR.

It was held in Damodar v. State of Rajasthan, AIR 2003 SC 4414: 2003 AIR SCW 5050: 2003 (4) RCR (Cri) 355 (SC) that if the information was conveyed to police on telephone and DO entry was made, it will not constitute an FIR even if the information disclosed commission of cognizable offence.

Citizenship (Amendment) Act 2019: Persecuting the Religious Minorities

Posted on | by Legal India Admin | Leave a Comment on Citizenship (Amendment) Act 2019: Persecuting the Religious Minorities

Tanisha

Recently the government passed a bill with respect to the immigrants who have resided in the subcontinent since time immemorial. The amendment to the citizenship act 1955 known as the citizenship amendment act 2019 (CAA) provides that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Pakistan or Bangladesh, who have entered India on or before the 31st of December 2014 shall not be treated as illegal migrant for the purpose of this act.[1]

Provided the immigrant must have been in India not less than five years. Thus granting Indian citizenship to the immigrants. This impugned act has gained a lot of attention due to its alleged biasness towards the mentioned communities as it openly excludes the Muslims from the entire act.

CAA and the Assam Connect
Notwithstanding that the entire nation is on fire for this discrimination on the basis of religion, the plight of the people of Assam and the northeast is against the immigrants from Bangladesh irrespective of the community they belong to. The North-easterners claim that the immigrants are a threat to the cultural identity, a threat to their economy, making them the minority of their own state. The act makes an exception for certain states in the northeast.

It says that this act shall not apply to the tribal areas of Assam, Meghalaya, Mizoram or Tripura (as mentioned in the sixth schedule of the constitution) nor shall it be applied to the areas covered under the “the inner line”. The inner line covers the North-eastern states of Arunachal Pradesh, Nagaland and Mizoram where no citizen can overstay without permission unless he or she belongs to the place.

However, 26 districts of Assam are not under the sixth schedule and out of the total population of 26,655,528 (as per census 2001) of the state 23,346,958 people are not protected under the sixth schedule thus under the threat of immigrants. And once the immigrants from Bangladesh get the Indian citizenship, they are just like the people of Indian origin and will be able to settle and practice any trade or business, get jobs in the organic sector in the tribal areas that are covered under the sixth schedule of the constitution.

Therefore this provision in the act is redundant. Bangladesh shares 2217 km border with Meghalaya ,Mizoram and Tripura and is close to the rest of the North-eastern states, the influx from Bangladesh who have already entered India on or before 31st Dec 2014, i.e. 2.3 million ( as per census 2011) people are most likely to inhabit these states, endangering the lives of the native of north east.

The resources are limited, the jobs are limited, the properties are limited, and such a mass taking over the place will reduce the standard of living of the people of northeast, those who have been the citizen of this country since the beginning. Assam is a mixture of over 200 plus tribes and 50 plus dialects, such a diversity has its own cultural identity which will be jeopardized if the immigrants from another country get rights that of an Indian origin and start living within the community. It also remains to be seen what will happen if the illegal Muslim immigrants convert to Hindu to take the advantage of this citizenship under this act in view of absence of any clarity or preventing measure in the act.

This act is in clear violation of the Assam Accord that was signed in 1985. The clause 5 of the Accord states that after the date of March 25 1971 any immigrant from Bangladesh moving into the country will be subjected to deportation and will be expelled in accordance with the law. The act shifts the cut-off date from 25th March 1971 to 31st Dec 2014. I.e. 43 years 9 months and 7 days. The 5th clause also stated that all the migrants coming before 25th march 1971 can get registered in this country.

The state of Assam already taking the burden of such a huge population when the other developed states didn’t. Shifting the cut-off date is absurd, unreasonable and unfair for the indigenous people of Assam. The clause 6 of the Accord states that Constitutional, legislative and administrative safeguards, as may be appropriate, shall be provided to protect, preserve and promote the cultural, social, linguistic identity and heritage of the Assamese people.[1] The infiltration threatens the language, the tradition and the cultural identity of the people. This act will populate the place with Bengali speaking as the majority making the Assamese the minority in their own state. However, the Centre has setup a panel to implement clause 6 and constitutionalise it.[2]

CAA and Secularism
Another flaw of this disputed act is that it attacks the Secularism of the state. The act has been made on the basis of religious prosecution. But, the crux is how the secular fabric of the constitution be diluted on the basis of religion by excluding a category (Muslims) subjected to same type of sufferings as other minorities when the preamble of the constitution begins with the words- “we, the people of India…” (No mention of any community) Meaning that all the immigrants from Afghanistan Pakistan and Bangladesh of the faiths Hindu, Sikh, Buddhists, Jain, Christians and Parsi are exposed to religious prosecution. And as these countries are Islamic countries the centre assumes that these countries wouldn’t persecute the Muslims on the basis of religion.

The Ahmadiyyas and Shias of Pakistan and the atheists of Bangladesh even though born in Muslim families are at the receiving end of extremist violence.[3] These types of Muslims face religious persecution. So if an immigrant from these countries of such community has entered India for protection he wouldn’t receive the benefits of this act. Discriminating on the basis of religion violating one of the predominant features of the preamble.

CAA and Article 14
It also violates article 14 of the constitution. Article 14 provides that “the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. That directs that all the immigrants should be treated equally. Now any law must fulfill two conditions 1) the classification must be founded on an intelligible differentia 2) the differentia must have rational nexus. It simply means that the classification must be understood by all. That the reservation or the provision given is rational and has a valid base. The impugned act is differentiating among the equals as some of the communities are not included. Any classification must not be arbitrary.

The Honorable Supreme Court has ruled out many laws where the act is distinguishing unreasonably. In the case Maneka Gandhi v. Union of India it was held that no law can be arbitrary. The citizenship amendment act 2019, is allowing citizenship on the basis of religion and even then is arbitrarily excluding the Muslims and by doing this is this act is going against the essence of the constitution, the rule of law.

The legislature does have a power to make laws and this is a policy where the centre has selected three countries covering six religions and it is one such policy for the improvement of these particular religion and maybe the government might formulate some other act where they will include the excluded immigrants like the Tamils from Srilanka. But the reason of any act should be reasonable and if this is about all the immigrants who are persecuted on the basis of religion then the Ahmadiyyas and Shia Muslims should also be included. Because then the government can contrive a law where it will arbitrarily forbid the citizens from wearing western clothes or leaving the country on some invalid basis like religion or orthodox norms. This act is violating one such indispensable fundamental right, which is for everyone, the citizens and the immigrants.

CAA and NRC
The national register of citizens (NRC) which was conducted in the state of Assam had its own limitations. The government of India has implied and in many occasions voiced that it will implement NRC in the whole country. Which signifies that each one of us will have to prove we are the citizens of this country. The government has not disclosed how will that be or will it be like the way it was implemented in Assam or how many documents will a person have to bring in order to prove his citizenship.

However, in any manner the whole scenario will cost a fortune to this country and will be a living hell for the poor illiterate people and those who won’t have documents to back their claim of citizenship. In this context, this act is acting like a protection, an umbrella for the people of the mentioned faiths. All those who would not be able to prove their citizenship when a pan-India NRC is implemented, they will be termed as immigrants according to the law.

Nonetheless, if the so called immigrant is a Hindu, Sikh, Jain Parsi, Buddhist or Christian, the CAA will come into rescue as according to CAA any immigrant of these faiths will get citizenship provided all the provisions are met which most of the excluded will have. But the Muslims, the Indian origin Muslims who are either poor or do not have the documents will not be saved. All of the Muslims then will be deported or put into detention. This is how dangerous this act will be if implemented with NRC. Not to mention the 1.9 million who were termed as illegal immigrants when the NRC was conducted in Assam will benefit from this as they will also avail citizenship, most of them being Hindu Bangladeshis, making the whole operation a futile one.

CAA and Fraternity
Not only the fundamental rights of equality, life, and liberty are violated under CAA, but also the deepest constitutional commitments to dignity, fraternity and integrity that breathe life into our fundamental rights, are also violated.[4] Illegal immigrants are also human beings as any other citizens. They may be categorized separately for special treatment but not in a way that denies their inherent dignity as safeguarded under the constitution. The CAA, here proposes to sacrifice fraternity by segregating illegal immigrants based on religion which breaches the intrinsic relation between fraternity and secularism.

In S.R.Bomai’s case, the super court upheld this intrinsic link between fraternity and secularism when it stated- “India being a plural society with multi religious faiths, secularism is the bastion to build fraternity and amity with dignity of persons as its constitutional policy.”

CAA also is a source of humiliation to the legal migrants who must wait for seven years at least for citizenship by giving a message to them that they are less deserving than chosen illegal migrants who could get citizenship in just five years on the basis of specific religion and countries they belong to.[5]

Similarly Muslims in general have been made to believe unnecessarily how their religion is singled out as a means to select countries and individuals for citizenship of a country which they call their own. That means CAA undermines the value of community by violating the fraternal bonds between the communities- a public good recognized by Ambedkar and the Supreme Court in verdicts on secularism.

Conclusion
It is remarkable to see the whole country protesting and raising its voice and asking questions making the government feel that it is accountable to its people, although the protests should be peaceful and not turned into violent fulminations. The faith shall always reside on the Honorable Supreme Court for the justice shall prevail under any circumstance, under article 13 and a plausible violation of part three of the constitution ( fundamental rights), upholding the ethos and morals of the constitution of India. Let there be no such law which will bring in ill-feeling or seclusiveness within the community. India is a country of diverse ethnicity and religion and let that uniqueness triumph.

End-Motes:

Clause 6, Assam Accord, 1985.
Kaushik Deka, CAB done, over to clause 6 of Assam Accord now, India Today.( Dec. 24, 2019, 8:09 AM) https://www.indiatoday.in/india-today-insight/story/citizenship-amendment-bill-assam-accord-clause-6-1627922-2019-12-13.
Alok Prasanna Kumar, Citizenship (Amendment) Act: An unconstitutional Act.( Dec.24, 2019, 9:15 PM) https://www-deccanherald-com.cdn.ampproject.org/v/s/www.deccanherald.com/amp/specials/sunday-spotlight/citizenship-amendment-act-an-unconstitutional-act-785638.
Pritam Baruah, ‘Not just equality, the CAA betrays constitutional values of dignity, integrity’, The Wire ( Jan 10, 2020, 7:40 PM) https://www.google.com/amp/s/thewire.in/rights/caa-constitution-equality/amp/
Ibid
Citizenship (Amendment) bill, 2019.
Written By Tanisha Mishra, National Law University Assam,
Ph no.- 8144161387

Related Articles on CAA:

The Situation In Assam And The Threat Of Its Islamization
The situation of Bengal and Bengali Hindus
Historical Position of Indian Political Parties on the issue of CAA
Historical Backdrop of Partition and Nehru Liaquat Pact
A Brief Analysis of CAA And Its Impact on Citizens
Salient Points of Union Home Minister Shri Amit Shah’s Speech on Citizenship Amendment Bill in Lok Sabha

Properties And Rights Which Are Transferable And Which Are Non-Transferable.

Posted on | by Legal India Admin | Leave a Comment on Properties And Rights Which Are Transferable And Which Are Non-Transferable.

Renuka Mishra

Symbiosis

The Transfer of Property Act (hereinafter mentioned as TOPA, 1882) was enacted in the year 1882 to regulate the process of transferring of property and various other conditions associated with it. Before the enactment of TOPA, 1882 these procedures were governed by the principles of English Law and equity. The term property hasn’t been clearly defined but the Act gives it a very wide scope and ambit.[1]

Property and its types
The word ‘property’ has not been specifically defined by the legislature. The judiciary has however interpreted it to be of widest amplitude and most generic in legal sense Property is not only something which is subject to ownership but also includes dominium or right or ownership or partial ownership and is indicative of every possible interest that the party may have.[2] The Act specifically encompasses two types of property namely (i) movable and (ii) immovable.

Movable Property – movable property shall mean property of every description, except immovable property;[3]

Immovable Property – immoveable property does not include standing timber, growing crops or grass; instrument , means a non-testamentary instrument;[4] immovable property shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth; [5] The capacity in a thing of suffering alteration vis-a-vis surface is its movability whereas immovability pertains to such alteration.[6]

Transfer of Property
Transfer of Property has been defined under Section 5 of the Act. As per the aforementioned provision the transfer of property is an act by which a living person conveys property in present or future, to –
One or more other living persons; or
To himself; or
To himself and one or more other living person
The word living person are also said to include-
A company, or
An association or body of individual, whether incorporated or not, but nothing in this Act affects any law relating to transfer of property to or by companies, associations or bodies of individuals.[7]
The word himself mentioned herein implies that an owner of a property, in one capacity, may transfer it to himself to hold as owner in other capacity.[8] The word living person only includes within its ambit alive human beings, a person disposing off his property by will does not amount to living person as the transfer takes place only after his death. The provisions expressly mentions company or association to include them under it. [9] In ordinary circumstances transfer implies change of ownership and implies the presence of two persons namely, transferor and transferee.

The word ‘transfer’ is defined in Section 5 through ‘conveyancing’ implying transfer of right in property inter vivos. [10] Act includes five modes of conveyances namely, sale, gift, exchange, mortgage and lease. The first two convey absolute interest and the latter three limited interest.[11] The transfer of property may be done immediately or on a future date.

What may be transferred
Section 6 of the Act reads as, Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force-,[12]
Therefore, this provision of the Act deals with the demarcation between transferable and non- transferable property. The section has 9 sub clauses, each of which explains the different kinds of transfer of property that. Everything else according to the Act can be legally transferred in various means and forms.[13]

The different exceptions are summarized as follows:
Section 6(A): Spes Succession Is
This clause provides that the following cannot be transferred:
The chance of an heir-apparent succeeding to an estate;
The chance of a relation obtaining a legacy on the death of kinsman;
Any other mere possibility of a like nature.
These restrictions are based on Public Policy. Rights falling in this category are uncertain and are not vested or contingent interests.

Illustration: A owns a property. If A passes away, B will get the property, because he is A’s legal heir. However, if B during the lifetime of A decides to transfer his chance to gain a right over the property to X, it will be deemed to be an invalid transfer. This is because one cannot transfer his chance of succeeding to an estate.

However, this does not meant that in case a widow who has an interest in her husband’s property, cannot transfer such interest that she has already inherited owing to her incidental right of survivorship. Widows are allowed to validly partition the properties and allot separate partitions to each.

When an heir received advantage for giving up his future right to property, it was held that he could not be allowed benefit of the doctrine of spes successionis. He became estopped from claiming his share from the property – Sheshammal v Hasan Khani Rawther, AIR 2011 SC 3609.[14]

In Suryaprabhakar Rau v. Gummudu[15] it was held that: when the parties entered into a contract, there was no certainty that the land could be enfranchised, although he was expecting it to be so done, and agreed to transfer his interest in the property when the event had taken place. It was held, this could not be more than a transfer of expectation and, as such, offended this section, and the agreement was void.

Section 6(B): Right of Re-entry
As per this clause, a mere right of re-entry for breach of a condition subsequent cannot be transferred to anyone except the owner of the property affected thereby. The right of re-entry being a mere incident of the rights of the owner in leased premises, its transfer is prohibited by Law.

Illustration: Where X grants a lease of land to Y for 5 years. At the expiry of 5 years he transferred the right of re-entry to Z. This transfer shall be valid.

In Vaguram v. Rangayynagar, (31 All 304)[16], the lessee committed a breach of the convenant to pay rent and incurred forfeiture. Thereupon, the lessor leased the lands to another to take possession of the land from the tenant in default. The transfer was held to be invalid.

Section: 6(c): Easement
An easement is a right to use or restrict the use of another over a property in some way or the other. It has been defined as the liberty, privilege or advantage one may have in the lands of another. An easement cannot be transferred apart from the dominant heritage. Its scope is limited to easement which exist for the benefit of the dominant tenement and has no applications to easement not connected with possession or ownership of dominant heritage.[17]

Illustration: If A, the owner of a house, has a right of way over the adjoining land of B. A cannot transfer this right without transferring the house.

In the case of Satyanarayana v Lakshmayya , AIR 1929 Mad 79., it was stated that this clause contemplates transfer of existing easement and not the creation of one. [18]

Section 6(d): Restricted interest
According to this clause, a person cannot transfer an interest that has been restricted in its enjoyment of him. This is because a transfer of such an interest will defeat the purpose of the restriction. Various kinds of interests have been held to be restricted under this clause, such as;[19]
A religious office
Emoluments to a priestly office
A right of pre-emption
Service tenures

Illustration: X has an exclusive right of conducting priestly ceremonies in a temple. He is the sole owner of the right and cannot transfer that right to his friend B who is a mechanic by profession.

S. Rathinam v LS Mariappan,[20] AIR 2007 SC 2134 merely because donor mother has reserved to herself possession and enjoyment of property gifted did not render gift deed in favor of minor ineffective.

Section 6(dd): right to future maintenance
As per this provision inserted in the year Amending Act of 1929, a right to future maintenance in whatsoever manner arising, secured or determined, cannot be transferred. Maintenance being for the personal benefit of a person, therefore cannot be transferred.

In the case of Ashfaq Mohammad Khan v Nazir Banu,[21] AIR 1942 Oudh 410 it was held that right to future maintenance whether acquired under a deed cannot be attached in execution of decree.

Section 6(e): Right to Sue:
This clause provides that a mere right to sue cannot be transferred. The word mere implies that the transferee acquires no interest in the subject of transfer other than the right to sue as an ostensible owner of the property claimed of which, it may be, the real owner is somebody else[22]. However, property with an incidental right to sue for damages may be transferred[23].

Illustration: If A publishes libel of B. B can sue A as defamatory statements have been published. However, B cannot transfer this right to C and allow him to recover damages.

In Palani Goudhan v. Nallapa Goundan[24], an ex-minor transfers property that has without authority been sold by his guardian during his minority, he transfer not a mere right to sue but his interest on the property.

Section 6(f) Public office
A Public office is held for qualities personal to the incumbent, having a public duty attached to it. Person being chosen due to his qualities, cannot substitute another in his place. The office confers an interest which is restricted in its enjoyment to the incumbent person.

Illustration: A police officer cannot transfer his job to his friend who is a salesman. He can however attach his salary within certain limits as has been provided under section 60 of the Code of Civil Procedure, 1908.

In Divisional Accounts Officer v Radha Kissen,[25] AIR 1959 Cal 666 – the abovementioned clause does not apply to arrears of a family.

Section 6(g): Stipends and Pensions:
The clause lays down:
Stipends allowed to military, naval, air force and civil pensioners of Government
Political pensions,
Cannot be transferred. The object is to confer benefit of the stipend or pension to the recipients in the capacity of a pensioner.

The term political pension has a wider import than the term pension . depending on whether the pension is granted or continued by Government on political considerations. It is also exempted from attachment in execution of decree against the pension holder under the Code of Civil Procedure, 1908.

In Sundariya Bai Chaudhary v UOI,[26] AIR 2008 MP 227 (DB)—Stipends allowed to officers and political pensions cannot be transferred.

Section 6 (h): Nature of interest, Unlawful Object, Disqualification of Transferee:
According to this sub-section, transfer of any property that can lead to an act that is (1)Against the interest affected thereby, or (2) For committing an act that is for an unlawful object or consideration, or, (3) When is transferred to someone who is legally disqualified to be a transferee, then such transfer shall be deemed to be invalid.

Illustration: A, B and C enter into an agreement for the division among them of gains acquired by fraud. The agreement is void, as the consideration for it is lawful.

Joydev Sen v State of West Bengal, [27]AIR 2010 (NOC) 256 Cal—the petitioners were not entitled to obtain a stamp vending license on the basis that their father held such license.

Section 6(i): Untransferable Interests:
This clause was added in the year 1885 to remove incongruity in the non- transferability of occupancy rights. Any tenant having an untransferable right of occupancy cannot transfer his interest.

Illustration: A farmer cannot give up his interest in a holding to pay his debt to a creditor.

In Jagat Narain v, Laljee[28], the Allahabad High Court has held that where a Sridhar transfers his holding and subsequently becomes a Bhumidar of the holding, the transfer becomes effective with the aid of Section 43and is not hot by this clause.

End-Notes:
Mata Din v Kazim Husain (1891 ILR 13 All 432, p 473; Bansigopal vs K Banerji AIR 1949 All 433.
Jones v Skinner (1835) 5 IJ 546
General clauses Act, section 3(38)
Section 3, Transfer of Property Act, 1882.
General clauses Act, section 3(26)
Sukry Kurdepa v Goondakull (1872) 6 Mad 71.
Transfer of Property Act, Sanjiva Row, Volume 1, Edition 7th.
Naranbhai Dahyabhai v Suleman Isujbi, (1975) 16 GLR 289 (294) (Guj).
Weavers Mills. Ltd. v. Balkis Ammal, AIR 1969 Mad 462.
Official Assignee v T.D. Tehrani, AIR 1972 Mad 187 (188).
Law of Properties, S.R. Myneni.
Transfer of Property Act, Section 6, 1882.
H.R. Khanna and P.M. Bakshi, Mulla, The Transfer of Property Act ,7th ed.,Universal Law Publishing, (1985).
Sheshammal v Hasan Khani Rawther
Suryaprabhakar Rau v. Gummudu, AIR1925Mad 885.
Vaguram v. Rangayynagar, 31 All 304
Satyanarayana v Lakshmayya, AIR 1929 Mad 79.
Satyanarayana v Lakshmayya , AIR 1929 Mad 79
Avtar Singh, Textbook on The Transfer Of Property Act, 1882, Universal Law Publishing, 2nd Edition, 2011, (page44).
S. Rathinam v LS Mariappan, AIR 2007 SC 2134
Ashfaq Mohammad Khan v Nazir Banu,[21] AIR 1942 Oudh 410
Rushi Behera v. Poncha Behera, 1976 Cut LT 330
New Central Jute Mill Co. v. Rovers Steam Navigation Co, AIR 1959 Cal 352.
Palani Goudhan v. Nallapa GoundanAIR 1951 Mad 817
Divisional Accounts Officer v Radha Kissen, AIR 1959 Cal 666
Sundariya Bai Chaudhary v UOI, AIR 2008 MP 227
Joydev Sen v State of West Bengal, [27]AIR 2010 (NOC) 256 Cal
Jagat Narain v, Laljee , AIR 1965 All 504.

Impact of Increasing Women in Indian law firms.

Posted on | by Legal India Admin | Leave a Comment on Impact of Increasing Women in Indian law firms.

To some extent it’s understandable: for years, the Indian legal profession – particularly litigation – has been dominated by men, and most of the new law firms that rose in the nineties and noughties were headed by men. The (generally) male managing partners would often be busy trying to capture market share and executing the work; worrying about whether female lawyers were given the same opportunities as the men was for many an afterthought, if that.

The average percentage of women making up the partnership at 30 top Indian law firms, for which data was available, currently stands at 30%. At only 23% out of those 30 firms is that senior gender ratio above 40%; at a third of firms it’s below 20%. And amongst our Top 100 Corporate Dealmakers, only around 25% are women.

Samvad Partners stands out amongst all the larger firms with a gender balance of 64% in favour of women in its partnership of 14. “It just worked out that way, it was not planned that we had more women becoming partners,” explains partner Vineetha MG. “It is completely based on performance,” she adds, but agrees that it does help that the firm’s senior leadership has women in it. “It brings some sort of sensitivity to certain issues.”

Other larger firms with more balanced gender ratios include S&R Associates (46% are women out of 13 partners) and Rajani Associates (45% out of 13). And AZB & Partners, Shardul Amarchand Mangaldas and Cyril Amarchand Mangaldas are also above the average, with between 35% and 37%, out of more than 100 partners being women.

MG says that at most firms the gender imbalance is not necessarily intentional: “It depends on policies within the firm itself, how they look at development. I don’t see any firm in the market today actively trying to make some sort of discrimination. It has just resulted in that way, but it is also dependent on the environment: if you provide more opportunities, then women come out in a good way in those opportunities.”

Some of the firms that have struggled the most to increase diversity at the top, have also been making strides recently to address the deeper issues. At Khaitan & Co, only 9% of its partnership are women, but in its most recent promotion round in April 2019, more than half of the 11 new partners were women.

At IndusLaw, all four of its new partners made in April 2019 were women – in probably a first in the industry – increasing its ratio to 33%. At Cyril Amarchand Mangaldas and AZB & Partners this year, respectively 42% and 40% of new partners were women.

While a charge may occasionally be whispered by male colleagues that women are getting unfairly advantaged these days by firms trying to be more diverse, it is highly unlikely that firms which primarily value profitability and quality above most other factors would dilute their quality at the top. The fact is that many law firms have actively worked at improving their internal systems, which allows high performers, many of whom happen to be women, to shine and be recognised.

“The firm actively encourages diversity in all its avatars, especially gender,” explains Khaitan & Co executive director for HR, Amar Sinhji. “Towards making our firm more inclusive and supportive of women, a host of policies, including flexi time, work from home and truncated hours for returning mothers have recently been introduced. The firm is also introducing a structured mentoring programme beginning with our principal associates.”

With 50% of incoming campus recruits being women (“selected based strictly on merit”), Sinhji says that this would, “over the next couple of years positively skew the gender balance in the firm”.

Other firms at the lower-end in terms of gender balance, such as J Sagar Associates (JSA), which stands at 22% of its women being partners (dropping to 14% at the equity partner level), are also doing more. Joint managing partners Vivek Chandy and Amit Kapur explain in a statement that the firm now offered six months of maternity leave, in accordance with statutory requirements, had introduced creche facilities for working mothers, and has a flexible timings system to allow lawyers to “balance both work and needs of a young family”. And the leadership at JSA has historically also included two female joint-managing partners as well as female partners represented in “important decision-making committees” at the firm.

But, not everything is about getting systems in place either. A large part may simply be a new-found awareness, sensitivity and practical attitudes of some issues by male senior partners, of which they may have previously been (blissfully) ignorant.

“I think policies don’t always work,” says AZB Mumbai managing partner Zia Mody. “I’m a big believer in bespoke solutions, and that’s still possible for Indian law firms because of their size.”

“Not all our women get married and get pregnant at the same time,” she notes. “It’s possible for management to have bespoke conversations to understand the need of every woman separately. [When women ask for maternity leave or flexible working] there will be common concerns about time, ability, ‘will I lose out in the race?’, ‘will my career be affected?’

“At this time it’s very easy for partners or the team, to basically get irritated, etc, and that negativity feeds down to the woman in question, which then becomes a circle of diffidence and lack of confidence, and then she just quietly leaves. If you dive into that, it’s a problem, it’s a reality: there will be some disruption and unexpected availability, and therefore you need a backup that you bring in the beginning. You understand that a client won’t pay for an extra hand, but as an organisation you’re allowing the gap to be filled in and providing for limited redundancy for the period.”

“It’s an outlook change as well that’s required,” agrees Samvad’s MG about how the profession can increase participation of women at senior levels. But she adds: “As compared to other Asian countries, India is ahead.”

That is likely true: countries such as Japan, for instance, are well known for their dearth of women in corporate leadership positions, and the female partnerships at some of India’s largest firms are far more gender diverse than nearly all international firms.

So, as India’s top firms become more secure in their market position, with the most rapid growth behind them, many of are taking promising steps in the right direction.

However, it’s clear that no change will come without deliberate efforts.

Bombay High Court directs Congress leader P Chidambaram and others to file statement in 10,000 cr damage suit by 63 Moons Technologies.

Posted on | by Legal India Admin | Leave a Comment on Bombay High Court directs Congress leader P Chidambaram and others to file statement in 10,000 cr damage suit by 63 Moons Technologies.

The Bombay high court on Friday asked Congress leader P Chidambaram, former forward market commission (FMC) chairman Ramesh Abhishek and serving bureaucrat KP Krishnan to file their statements in the the Rs 10,000 crore damage suit by 63 Moons Technologies within four weeks.

The bench said that if the trio fail to submit the statements within the 4-week deadline, then it would be considered as an undefended suit. At the same time The Bombay high court warned the three that this would be the last extension given to them, as they missed the deadline for the second time.

On October 22, 2019, he Bombay high court had directed Congress leader P.Chidambaram, Ramesh Abhishek and KP Krishnan to file their written statements within eight weeks in the Rs 10,000 crore damages suit filed by 63 Moons Technologies Limited.

The court had also rejected the plea of Chidambaram’s counsel for further liberty saying that eight-week time is more than enough to file the written statements.

In February, 63 Moons had said that it served legal notice to Chidambaram and the two others seeking damages worth Rs 10,000 crore.

The company has alleged that the three individuals played a major role in perpetrating the NSEL payment crisis to destroy the exchange ecosystem created by 63 Moons. As per the company, it resulted in huge damage and value erosion and loss of employment.

In August, the Bombay high court had ruled that the National Spot Exchange Ltd (NSEL) is not a financial institution and hence notifications for attachment of the company’s assets, including bank accounts and properties, under the MPID Act stand quashed.

The company (63 Moons) has also filed a case against Ramesh Abhishek in Madras high court seeking Central Vigilance Commission (CVC) probe into the matter.

 

Preferential voting- a perennial perk?

Posted on | by Legal India Admin | Leave a Comment on Preferential voting- a perennial perk?

Disha Jain

Preference shareholders are entitled to number of benefits as opposed to ordinary shareholders due to their position in the company. The foremost benefit being that they will be paid first when the company makes a decision of the payment of dividends. They are not entitled to voting rights, which is enjoyed by the ordinary shareholders because the preference shareholders are not in a perilous position. In fact, this is a bargain made in return of an assured income

 

Section 43 of the Companies throws light on one of the privilege of the preference shareholders.  It provides that on winding up of the company preference, the amount paid up on preference shares must be paid back before anything is paid to the ordinary shareholders.  Thus, the first preference is to be given to the preference shareholders as regards the payment of shares. It could be seen that they are given preference even on the winding up of the company and their chances of being wiped out is extremely low, therefore they should not be given voting rights if dividend is not paid for 2 years.

The trouble lies in the details of the Companies Act, 2013. Section 47(2) gives the same voting rights to the Preference shareholders as to the ordinary shareholders. The provisions of voting rights are extremely useful and it is necessary that its limitations and disadvantages are given due treatment.

The second proviso to Section 47(2) is equivocal. It offers no clarification as regards the meaning of ‘two years’ (whether consecutively or any two years). Clause (2) of Section 47 delineates that preference shareholders shall have a right to vote on those resolutions which affects the rights directly attached. This rights granted by this section to preference shareholders would definitely require the interpretation of whether the rights are directly attached to the preference shares or they are ancillary to it. Thus increasing the rounds of litigation.

One way of looking at this is that the ordinary shareholders are the true representatives of the company and hence their position should be shown deference. The giving of equal treatment to the preference shareholders as regards voting rights would defeat the purpose of classification. Giving additional voting rights would be prejudicial to the interests of the class of the preference shareholders who have been duly paid dividend and thereby not given voting rights, especially when the ordinary shareholders have also not been paid the dividend.Alikes should be treated alike.

The preference shareholders are called so because they get paid first, they preferred over the ordinary shareholders. Thus, the phrase ‘Once aKing, always a King’ doesn’t hold good for the preference shareholders.Therefore, if they are prioritized in the payment of dividend, it would not be just if they have the same voting rights in the decision making of the company. Finally, the purpose of issuance of preference shares is to ensure that ownership is not diluted. Voting provisions will enable the preference shareholders to extort control from the ordinary shareholders.

Providing voting rights to the Preference shareholders would sometimes have disastrous consequences when the corporate battles between the Board and the Shareholders arise. The corporate battles involving two group of shareholders where one group seeks to amend the AOA so that the preference shareholders may be entitled to voting rights if dividends are not paid for two or more years, would be fatal. Such types of amendments would show that the company is sought to be controlled by board, so that shareholders’ approval would lose its force. Preference shareholders may thus gain an upper hand and would be at par with the ordinary shareholders. The group possessing majority of preference shares, if given voting voting rights would defeat the resolution of other groups owing to their animosity. Thus, such rights can be used to further their causes and for their advantage.

The preference shareholders are given preferential treatment in the payment of dividend only in consideration of their contribution to the capital.The use of voting provisions for preferential shareholders, brings into limelight the larger and important issue of   balancing the freedom to vote against the safeguards necessary to protect the interests of ordinary shareholders that is beneficial to the company as a whole. The picture of the corporate affairs would be dramatically affected, if the preferential treatment were extended to voting rights. Hence, such voting rights should be discouraged.

 

This article has been authored by Disha Jain, a 5th year student in Jindal Global Law School. She may be reached at 15jgls-djain@jgu.edu.in