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Interim Maintenance under the Domestic Violence Act
  • By: Adv. Kishan Dutt Kalaskar
  • Date: 01 Aug 2020
  • Domestic Violence
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Domestic Violence is a type of abuse in the general domestic setting, such as in a marriage or cohabitation. Domestic violence usually gives rise to divorces between the couples as domestic violence is mostly witnessed in a marriage. In India, most of the wives file for a divorce due to domestic violence. In the times of Covid-19, the rate of domestic violence has increased rapidly due to the lockdown.

Domestic Violence Act: Interim Maintenance        

Discussion regarding the payment of maintenance need always refer to Sec. 125 of the CrPC which has been upheld to pay maintenance to the wife in a divorce proceeding, such that her status and standard of living will be maintained. The general rule of thumb is that the maintenance depends on the wife’s own capacity of earning and maintaining herself, and this will always play a role in determining the court’s decision to award maintenance. This paper is regarding a specific version of maintenance, and special legislative and judicial changes that have been made to it. This paper focusses on the payment of maintenance under the Domestic Violence Act, and the difficulties, if any that a petitioner has to undergo in receiving such maintenance.

The Act

To begin with, a little statutory introspection is necessary: Sections 12 and 23 of the Act, provide for the maintenance, in its own way Section 12 allows the filing before a magistrate for any of the reliefs provided in this act, including interim relief. Section 23, on the other hand, allows the magistrate to provide interim, or ex-part orders. Note here that neither of these sections describes maintenance, and the responsibility of the Judge, or discretion to pay maintenance. This is because maintenance is covered under Sec. 20 of the act, in the limited sense that it is mandated despite any payments already being made under Sec. 125 of the IPC. This means that there is no special power or relief under the Domestic Violence Act that covers women that face domestic abuse and needed protection under the law. Another important aspect of the statute to be kept in mind is the definition of economic abuse: Sec. 3 of the act includes the non-payment of maintenance as a separate form of domestic abuse. This paper will discuss the wisdom of doing so later on, but this definition makes it clear that the withholding of maintenance is a further offence and additional ground for filing under the act.

It is important to note that the act is not a family statute, and it does not provide a civil law remedy of divorce, separation or any of the conventional family law remedies, but it simply provides for maintenance, compensation and other tortious remedies and is rooted in criminal law. Most remedies are reflected in Sec. 18 and 19. Interim maintenance in this act is something similar, and it is not a power bestowed by statute, but rather has been left to the discretion of the magistrate. Interim maintenance under the act is not provided for and needs to be specifically listed and filed for. The aggrieved party has to file an application as provided in the Rules framed by the central Government and make a prima facie case for providing maintenance. This is the crux of all difficulty in making an interim maintenance application under the act.

The Precedent

It was recently decided by a bench in the Delhi HC, in Gaurav Machanda v Namrata Singh 2019 SCC Del 7353, that the right in Sec23 was not an entitlement to maintenance under the statute, but rather merely to present the application thereto. This has been the watchword in most Domestic Violence Act cases, the maintenance doesn’t become an automatic right, and in fact, this decision is in line with previous decisions by the same court regarding the status of maintenance of a woman in domestic violence. It is true that no such rights or any regular payment exist as a separate and distinct award under the act, as held in Javeria Iqbal Majid Khan Patni v Atif Iqbal Mansoori (2014) 10 SCC 76. The consensus through many ratios of the High Courts is that the applicant needs to establish a prima facie case for eligibility of maintenance under the act, or rather, in general: In Rajeev Preejna v Sarika and Ors.  The Delhi HC held that at the time of decision regarding the interim maintenance, questions such as the financial capacity of the petitioner, the pendency of the suit in court, etc.was not the matter of focus if the petitioner has submitted documentation before the court establishing the right to interim maintenance. It is in fact little that the petitioner needs to establish, as we see in the decision of Rahul Arun Suryacanshi v Anita Rahul Suryavanshi where the petitioner for interim maintenance, as per the lower courts, has not even submitted proper documentation pertaining to her painful employment and salary attached thereto, yet her application for interim maintenance has been accepted by the HC.

Limitations and Hurdles

Furthermore, under the provisions of the act, such maintenance can be given even if parallel maintenance is being provided in another jurisdiction: Anwar v Mr Shameena Bano. In fact, the SC in its decision in Shameena Farooqui v Shahid Khan held that the relief under such provisions of the Domestic Violence Act needs to be acted on in a timely manner and that if there were questions of law and fact that need to be determined in order for proper adjudication of maintenance, the same needs to be done without causing inordinate delay to the petitioner that might be in a vulnerable situation.

This decision was again reflected in R. Sanjeevi v Pushpalatha in the Madras HC where despite aa running dispute regarding concealment of fact in adjudication for interim maintenance, the MM passed an order for maintenance anyway.

These cases demonstrate that getting interim maintenance is very easy and that the right, even if it is not directly provided in the act. This should, by all means, be a good thing, this should by all accounts, allow for more easy filings, but that is not the case. More often than not, at the lower court level, the discussion surrounding an application for interim maintenance is overtaken by a discussion about the petitioners’ ability to maintain themselves, and time and time again High Court have had to step in and reiterate that self-sufficiency has never been a direct factor in determining maintenance in the statute. In the case of Bhuwan Mohan Singh v Meena (2915) 6 SCC 253 where it was held that while all the grounds for the grant of interim relief asunder Sec. 125 of the CrPC applied to the act, the income and gainful employment status was not one of them. Similarly, the Delhi HC had to clear the air once more, when it rendered a decision that, the mere possession of the petitioner of a degree, or higher education qualification did not automatically imply gainful and self-sufficient employment. Furthermore, it is a common perception in courts to assume that the quantum of maintenance can be lesser of the petitioner herself is earning and able to provide for herself, even when the application is under the act, where the purpose is more punitive than anything else. The case of Rahul S/o Ram Halde v Rashmi demonstrates the essentiality of submitting before a court in a Domestic Violence matter, the status of previous litigation and status thereof. The same has again been reiterated in Suryavanshi. While both these measures make sense from a purely eco-legal standpoint, it is important to note that there is more than meets the eye.

The combined requirement of establishing a prima facie case, with the debate about self-sufficiency, and the obligation to disclose the status of previous and pending litigation: This becomes extremely difficult to convince a judge to make a favourable decision, and in the event that the Judge might be amenable to a decision, these preconditions to granting interim maintenance give the opposite party enough cause to introduce doubt in the mind of the magistrate about eligibility and the genuineness of the petition itself. As the whole act and remedy depend on judicial discretion, it is always an uphill battle to get maintenance, and even when the award is made, the opposite party can always file for review as in Sanjeevi.

Remedies Available

These are the remedies available to the women (wife) against non- payment of interim maintenance:

1. The Bombay High Court considers the matter related to failure to make payment of interim maintenance under the domestic violence can result in the issuance of non-bailable warrant against the person failing to pay such maintenance under the Court order. Wife failed to receive the maintenance awarded by the court if fails to receive should lodge the complaint against the court which has issued such order. The Bombay High Court ruling out the ambiguity in issuing a non-bailable warrant against the husband said that the Judge has complete authority to issue such order under section 28(2) Domestic Violence Act, 2005     Case Law; Sagar Sudhakar Shedge v/s Naina Sagar Shedge.

2. The law Commission report states that if any women under the Domestic Violence Act, 2005 has undergone or is dealing with the pending proceeding fails to receive the alimony/ maintenance should inform the court about such disobedience of the decree of the court, the court on reviving such complaint can charge such person with a fine amounting the twice of such arrears pending to be paid and with not less than six months of rigorous imprisonment. Such a person should commit such an offence if without malice or for a reasonable excuse, then such a person should be considered. Should there be any pending interim maintenance should be passed by the court of justice.

Conclusion

The time-bound treatment of domestic violence matters needs to be reflected in the statute more than in precedent. It is important that there is a proper mechanism or a commity that can ensure the speedy disposal of cases and solve the issue where the women don’t receive the maintenance for several months even after the court passes an order in her favour.

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Shortcomings of the Consumer Protection Act, 2019

By: admin Consumer Grivances 25 Jul 2020

As with changing times and situation, it is very important to provide the equipment’s necessary to resolve and progress, as in the country with 1.3 billion consumers and therefore it was a priority to come with the new Consumer law that will help and provide remedies to advance and complex cases that arise before the court of law. Although every new legislation brings with it its own bright and dark sides, it also becomes important to understand the darker part of the legislation.

Drawbacks

Following are the shortcoming or drawbacks that are understood to be the part of the Consumer Protection Act, 2019.

  1. The Act provides relief for the paid service and does provide or even mentions any service that is provided for free of cost as charity or as a social responsibility. The Act does not include services such as clinical treatment or treatment in a hospital where service is provided free of cost to the patients, and it also left to mention the duty of the government department or services provided by the government unregulated such as sanitation, water supply, etc.
  2. The Act fails to provide any prohibition or any strict liability for any person offering for any goods that are hazardous for the public at large when put to use, the calluses mentioned provides the safety of the consumer from such products being marketed in public. These goods that are marketed should be done in the procedure laid down in the Act, but it remains silent on the consequences if there is a violation of the rules.
  3. A consumer as stated by the Act is one who consumes the service offered by a seller in consideration by any other way, but the Act only protects the interest of those consumers who have suffered a loss or damages due to unfair trade practices or by the Act in a contravention by the trader. The Act says nothing about the unfair practices or has not provided the legal back up to the rule of protection of consumer from any unfair trade practices.
  4. The all-new consumer legislation increasing the scope of the applicant to the district forum does not provide a wider scope of authority by not providing the powers to order interim injunction or cease and desist order as quick resolution till the pending matter.
  5. The Consumer Protection Act, 2019 does not or will not entertain any complaint or will not allow any person to lodge a complaint under the Act if such person can resort to any alternate remedy or dispute resolution mechanism provided in this behalf.
  6. The Act provides complete relief by not holding the chief executive, managing director or manager of any organization which is the part at default in providing the services as per the Act, it also specifies a time frame for expediting the process of resolution that is 90 days per se, but such process takes time longer than mentioned.
  7. Apart from many rights provided by the Consumer Protection Act, 2019 under section 6 such as Right to Choose, Right to Safety, Right to be Informed, Right to Redress and Right to Consumer Education but it completely remains silent on the Right to Safe and Healthy Environment for the consumer.
  8. The reality of the situation is far from the idea of justice. The Legislation is failed at the stage of implementation, and its execution is rather difficult to root out. A large number of pending cases at the Court and slow process of the court is a complex problem that is needed to be dealt with. Moreover, the Act has failed to provide the redressal forums with authority to remedy the situation and serious consequence if there is any violation of the court orders. 
  9. The authority under the Consumer Protection of Act, 2019 has widened the range of the District forums for accepting the complaints with regards to pecuniary jurisdiction, but the problems stand where there come issues of application and compliances of rules and regulations, the personnel department of the District Forum has very few members to work these results in the burden of the workload, there were issues regarding the space provided for carrying out the adjudication activity.
  10. The Act provides mediation as an alternate dispute resolution then resorting to the redressal forums, whereas mediation in itself remains futile to remedy the situation where the complaint is regarding defective goods or if there is the deficiency of service from the service provider. The common understanding among the consumer is usually to resolve the dispute without resorting for institutional help so mediation as an expressed provision will be of no better help it can though used for any disputes where the claim is higher it might be beneficial for such monetary compensation or performances. The Act remained silent on the issues regarding medical negligence, which should be a matter that can be referred to mediation, but such proviso has not been made in the Act.

Conclusion

Considering the Act and its application, it becomes a valid argument to support it. However, the government should focus on empowering the workforce needed for satisfying the true letter and spirit of the Act. The Act is to be read in a way that should suffice the requirement of not just the consumers who could afford to bear the burden of litigation but also who need quick hand remedy for those whose claims rather not so time-consuming.

The government should consider the movement of the consumer in its entirety to reduce the problem with the help of expensive infrastructure dealing redressal and should cover every aspect of goods and services wherever there is a need to curb the unfair practices and not just the areas which can be covered. The Act with its new provision has obviously a catalyst to prohibiting the Act of unfair and deceptive practice but some future amendments as mentioned the above article will make it better in its application and results.

The Windows update prank can easily trick someone when opened in full screen. It looks and acts like a real install page.

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Tougher rules for the E-Commerce Industry

By: admin Consumer Grivances 25 Jul 2020

Online shopping is the new normal for everyone. Now that the deadly virus has hit the country, there has been a shift in the consumer of the practice of purchasing online as it’s much easier and convenient. After the ban of 59 Chinese apps by the Indian government, the Indian people are now dependent on Amazon, Flipkart etc. E-commerce is majorly used by the people as it allows a consumer even to return the product easily when the product is defective or unsatisfactory.

The initiative is taken to bring the digital economy of India at a higher position by introducing several norms and rules that will help in giving better competition and products in the Indian market. However, an official gazette for the same is yet to be released, but the implications and changes have to be made by the online platforms at the earliest.

The Consumer Protection Act, 2019, which replaced the old rules of Consumer Protection Act, 1986 has also taken into consideration of the e-commerce industry. According to the Ministry of Consumer Affairs, Food and Public Distribution, Ram Vilas Paswan, new guidelines for e-commerce will be released in the coming week for better redressal and communication with the consumers. The e-commerce platforms are required to setup a robust consumer redressal mechanism as part of the rules under the Consumer Protection Act, 2019 that is effective from July 20, 2020. Through the help of video conferencing, Ram Vilas Paswan also informed about the new rules and incoming guidelines that will be effective from the next week.

Changes in the Structure

As per the new rules for Consumer Protection Act, 2019, the e-commerce entities will be required to provide every detail to its consumer. The platform is required to give details regarding the return, refund, exchange, guarantee and warranty, delivery and shipment, modes of payment a consumer can pay through, a grievance redressal mechanism, security of payment methods, and also information about chargeback options if available.

For a better decision making of the purchaser, the online entities are required to mention the country of origin for every product so that the consumer is informed about the originality of the product before purchasing it.  Under the new Act formulated, a receipt has to be acknowledged by the online entities for any consumer complaint is essential within forty-eight hours and the complaint has to be redressed within a month from the date of the receipt. The e-commerce entity is also responsible to appoint a grievance officer for consumer grievance redressal.

Mandatory Rules and not just Norms

The most important thing is that these rules are not merely advisories, but are mandatory for every online business that are happening through e-commerce. It is the first time that such tougher rules have been introduced by the government regarding e-commerce entities.

Apart from all this, the shoppers can get relaxed as the new rules mention that, charging cancellation fees from the consumer when he/she cancels the order after purchasing it is wrong and is not permitted under the new Act. If the sellers tend to do so, then they are required to pay the similar charges to the purchaser too, when the seller cancels the order unilaterally for any reason which will be notified in the official gazette once released. When communicated with the e-commerce executives, they informed that such change will give “better defined” legal power to the consumers to go and fight against the counterfeit products or any other grievances in the court.

A difference in the new proposed model is also explained between the marketplace model and inventory model. In a marketplace model, all the goods are listed and sold by the third-party, whereas in an inventory model, the platform stocks goods and then sell online. 

The new draft of rules under Consumer Protection Act, 2019 also mentions that “Any inventory e-commerce entity which explicitly or implicitly vouches for the authenticity or reality of the goods and services sold by it, or guarantees that such goods and services are authentic is requested to bear appropriate liability in any action related to the authenticity of such good or service.”

Perfect competition should be followed, and there should be no manipulation of the prices by the e-tailers or sellers in the market. The sellers are also requested to not refuse to take back goods, discontinue services or stop refunds if the products are found to be defective, fake, delivered late or looked entirely different from description on the platform.

As snapdeal is one of the major online running businesses, its executive came forward and spoke about how these new rules for consumer protection will help in healthy business of e-commerce and as well as safeguard the interest of the consumers. He further mentioned, “While we are in the process of examining the provisions of the Consumer Protection (E-Commerce) Rules 2020, Snapdeal is fully supportive of all measures that enhance protection for the consumers, provide a level playing field to sellers and enable healthy growth of the e-commerce sector in India.”

Conclusion

Recently, the ban of dozens of apps of the Chinese technology has made the government reluctant about the rules and norms that every e-commerce platform has to adhere to if they want to trade their market in India. The issuance of fresh guidelines by the government under the Consumer Protection Act, 2019 is a step towards making the consumer the king even in the online commerce domain. Such guidelines will help in to invoke healthy competition in the market with a sense of accountability and trust provided to the consumers.

According to recent reports, one out of every four-member is the consumer who buys a product online and therefore; it was the need of the hour to bring in such norms and rules that eliminate counterfeit products from the market and also encourages speedy redressal of consumer grievances.

Shoppers can now expect to get their life easier when the online platforms would implement these norms in serving a consumer.

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Difficulties faced by men in Family Courts

By: Adv. Kishan Dutt Kalaskar Divorce 22 Jul 2020

A woman in India can file various cases against men according to the Indian laws. A marriage is considered as a soulful connection between a man and the woman and is performed through different marriage laws which include the Hindu Marriage Act, Personal Marriage Act, etc. However, nowadays, this institution of marriage is easily broken. There has been an increase in the number of the breakdown of wedlocks each year either due to the fault of the husband or the wife. The divorce rate of marriage in India is increasing every year. According to the reports,1out of every 100 marriages, is broken and is taken to court every year. Due to this increasing rates of divorce every year, strict laws have been implemented which safeguards the interest of the women, but at the same time, does not give much importance to the problems that a man has to go through in a family court. 

A family court witnesses’ matters that are related to the family. It includes divorce cases, property-related cases, annulment cases, etc. Most of the cases which are related to divorce are always biased against the husband unless and until it is not a mutual consent divorce. A divorce which is filed by the wife always backfires on the husband. The husband does not only tackle the trauma of divorce, but he also undergoes issues like filing of FIRs against him, allegations of domestic violence and dowry, matters related to maintenance and alimony etc. With this, a father also has to fight for child custody, which normally turns out to be in favour of the mother, as a mother holds the primary rights of her child. This has been held and reiterated in many decisions of the apex court, that except in situations where the child is able to form an opinion of his own, it is in the interest of the child that custody matters need to be determined, and the same has been held in Elizabeth R. Dinnshaw v Arvind M. Dinshaw 1987 AIE 3 here it was the case that the minor was not old enough to form his own opinion on the matter of custody, and the court had to make the call, it decided the matter in the mother’s favour, despite the different considerations weighed by the court in deciding the matter, it has since then become a rule of thumb that the child will be in the custody of the mother in the event of discord within the partners.

A wife is entitled to file a complaint against the husband under Section 498A, IPC, The Hindu Marriage Act, 1955 and the Domestic Violence Act, 2005. This paper extensively talks about the problems that men deal in the family court. It talks about how some Indian laws are favoured towards women, and for men, it gets tough and ugly to prove himself as innocent. This paper will also provide the reader with landmark judgments that have created some change in the country and have impacted the subject of the law to make some necessary amendments.

Discussed below is a list of major issue faced by men and his family members.

Section 498 A of IPC

According to section 498 which defines cruelty, the same is repeated in the DV Act, but for consideration in this section of the paper, Sec. 498A shall suffice, cruelty has been defined as follows: Including verbal as well as physical abuse by the husband or by his family. In Law context, there is a maxim known as Audi Alteram Partem (hear the other side), but it is important to note that, in practicality, section 498 of IPC has swept away this fundamental right as once a case is filed by the women, the police hardly listen to the men.

Moreover, what makes this law tougher is its subject matter. The Indian penal code has no definite definition of the term “Cruelty”, and therefore, anything done by the husband which goes against the ethics of the society is termed as cruelty and based on that FIRs are lodged. With this, it is a non-bailable and non-compoundable offence which makes it difficult for the men dealing with it.  It should be noted that, at the stage of registering of offence, the officers in charge have been known to show no discretion in registering the offence, despite in some situations outright inconsistencies in the complaint filed before them. This, combined with the ability of the litigant to include the family members of the husband in the complaint, usually results in harassment by police and investigating personnel, of the husband and his family.

The Madras court in Rukmani v Manonmani 2017 SCC OnLine 20343 demonstrates the potential and the difficulty in establishing the veracity of a vexatious complaint: In the matter, even though the complaint itself was a fiction, and it was prima facie to the HC, the District Court refused to quash the proceedings, and even refused to refer the act and complaint. It is important to note that in most instances of such alleged abuse, the courts have been quick to detect this same and make appropriate order in the matter: Saritha v R. Ramachandra2003 (1) E.C.R. Crim. 481, is a prime example of it, whereas part of a divorce proceeding on the grounds of cruelty the wife had filed under Sec. 498A against the whole family, the HC struck the complaint down, highlighting the possibility of vexatious complaints, and the duty of courts to detect the same. Something similar came before the Punjab and Haryana HC in Harjinder Kaur and Anr. V State of Punjab2004 (4) R.C.R. Crim. 432where the court had to determine the complaint under Sec. 498A filed against the family of the husband, where some of the co-accused were minors at the time of the alleged offence; Then court noted the same and opined that the complaint had included as many people as it could, without any proper consideration to the factual matrix. Courts have been aware of the misuse potential of Sec. 498, and the Madhya Pradesh HC has even recommended that the section be made compounded so that an amicable settlement could be reached between the parties: Ramgopal v State of MP. SLP (Ct.) No. 6494 of 2010The most prominent example of this judicial opinion towards Sec. 498A can be seen in the SC decision, and obiter dictum by J. Chandramauli Kumar Prasad held that due to its non-bailable and cognizable offence, it has lent it a dubious place among provisions that are misused, and are rife with potential for harassment, Primarily held in Social Action Forum for Manav Adhiikar v UOI(2018) 10 SCC 443there is ample precedent since then, to demonstrate that there have been so many instances of harassment and misuse of the section that, the judiciary has taken cognizance, an recommended measures to be taken by the legislature.

The wife on the other side, makes it sure, that such complaints are lodged on Friday so that the defendant at least for the next two days cannot apply for bail since the courts are shut on the weekend. This was a major issue that was witnessed by the husband and his family, and due to the increasing cases of false complaints by the wife and due to the unavailability of any physical evidences, the courts used to give misgivings. However, according to the reports, a quarter of the arrested were women relatives of the husband. Charge-sheets were filed in almost all cases (93.6%), but convictions were abysmally low, at under 15%. Something was obviously wrong. At that rate, the report went on to say, 372,306 pending cases will have 317,000 acquittals. This low rate of conviction could be interpreted two ways, one that the inherent nature of domestic violence cases contributes to difficulty in establishing cases against accused, or that there are in fact, so few instances of proven domestic abuse and the cases and complaints filed have been merely to harass and intimidate the husband and his family. While neither of these assertions has been confirmed, nor denied, this statistical figure begs the question, whether more cases than necessary are clogging the docket.

The above report states that the courts will have to look for an alternate method that deals with speedy disposal of trials and something to be done with the false complaints lodged by the wife for malicious intentions.

  • It should be noted, that the courts have already made guidelines for disposal of complaints filed pursuant to filing under Sec. 498A. in the abovementioned case of Amresh Kumar,the SC endeavoured to make the following rules to ensure that automatic arrest and detention does not become the norm in such matters: Police officers shall fill in the checklist before making a decision in the arrest of a person accused.
  • The police shall satisfy themselves that there is a genuine case for abuse before registering the offence.
  • The decision by the police will be cross verified by the Magistrate.

Through these measures, the court ensures that cases of domestic abuse/ violence are not vexatious registered, and in the event that they are such ill intentions and false decisions are detected early in the investigative process.

Dowry Demands

The various provision covering the mental abuses with respect to women in India have also covered an interpretation regarding protecting the rights and interest of men on the same parlance. Covering various rights promised by the Preamble of India have further segregated and clubbed under various Act or laws. This article further narrows down by giving serious consideration to a wider understanding of these rights relating to the harassment and troubles faced by the men and their family members in society after a complaint or a suit filed by women by taking undue advantages of the provisions legislated to protect her interest in the society. In India, as far as marriages are concerned as quoted as wedlock between the families of the two individuals is far more than wedlock between the two individuals. Its tradition involves many rituals followed by some age-old practises such as dowry. Dowry in simplest term can be defined as kind or money itself given to the groom by the family members of the bride as a gift. The law has termed dowry from a period till today as a criminal offence if it is demanded from the natal family of the bride, and there are serious consequences if any person has conducted any act of dowry demand in the territory of India. The legislation understanding various criminal activities that are associated with or are the result of the dowry demands should be prohibited for the harmony of the state, with a clear objective legislature has passed an Act that regulates and prohibits such activities, i.e. Dowry Prohibition Act, 1961.

Though legislation incorporated the act with the intent to protect women it has also did not contemplate the abuse of it against the men in the society, there are provisions made specifically with the single objective which in turn has been understood as a double-edged sword. Dowry Demand has turned against the men in the society with various matters every day being filed in the police stations or with the women’s development cell of the country reiterating these provisions taking hold of men without being provided with an opportunity of being heard.

In the case of Pushkar Singh, it was seen that a resident (Pushkar Singh) residing at Lucknow committed suicide writing a note stating the in-laws are solely responsible for his death. Pushkar Singh was wrongly sentenced to imprisonment under section 4984, 323 and 504 of IPC. The wife in here filed against the husband stating the false demand of the dowry of Rs. 14,00,000/-. The deceased mentioned in the note that this case has also led in financial difficulties for him and his family they also have sold their house for procurement of some financial gain for survival.

Cruelty under the Domestic Violence Act

While explaining the cruelty the basic understanding of the point of view is that a mere annoyance not of any serious consequences in matrimonial affairs would not be treated as cruelty it has to be seen in an angle of nature of any act found to rare unlike routine discussed quarrel and is of serious nature that might lead to grave consequences to either spouse by the other. Any such act can only be termed cruelty which though not satisfying all inhuman or extreme inhuman condition but are considerable enough for protection of either party in matrimonial affairs.

Domestic Violence Act in its inception was enacted with a sole objective to curb the violence against the women in the country majorly violence’s involved in matrimonial affairs, but such provision protecting the rights of the women have proven to be fatal for men. The data signifies that many false Domestic violence cases have been filed by women, in turn, to coerce men into fulfilling impossible or unethical desires. A report submitted by the two non-profit organizations, save family Foundation and My Nation Foundation have published a survey which provides that out of 1,00,000 reports filed by the women in the country between the year 2016-17, only 2.8% of the cases were actually proven to be of some validity. The data provided by the National Crime Record Bureau that as compared to women, 21.16% of more men than women were reported to commit suicides due to DV.

During such pending litigation that eventually relates to curtailing the rights of the men by providing extra protection as assumed by the government towards women have led to many fatalities resulting suicides, depression, insanity and other inhuman activities out of frustration of having no remedy to set the matter out. Many organisations and advocates understanding the nature of the provision under various women protection law have advocated the need for new legislation or at least amendment in the law, in order to protect the interest of men. The Honourable Apex Court has understood the need to provide various direction to be provided to police in dealing with a various matter involving domestic violence, dowry, abuse or cruelty.  This context changed in respect of the men after the #metoo movement launched where women were freely asked to file complaints against any act of violence against them; there were many fakes cases being reported against men.

Protection

The Criminal Procedure Code (CrPC) deals with the procedure to deal with criminal complaints filed by any person in prayer to authority to act in their capacity to take steps to mitigate the loss or reinstate the right of the pleader. The various sections dealing with the protection of any person who is the opinion of the complaint raised against him is false or futile.

Further various legal remedies have been made available to any person who is accused by any person under any law enacted to protect women’s rights. A person can seek protection` under these provisions mentioned:

Section 227: The section states that any person believing the complaint raised by his wife is false according to him the person has to provide the evidence in contrary to the complaint on this basis and the Honorable Magistrate can dismiss the plea by the spouse under section 498A and decide accordingly.

Section 438: This section in CrPC deals with presenting an appeal or making an application for bail before the session court to circumvent the arrest from the police; this application is also known as Anticipatory Bail.

Section 482: The inherent power of the High Court to dismiss the matter if the evidence or testimony does not seem to support the accusation made against the person (spouse) by his wife where such section deals with an objective that any power of the law to protect the interest should not be used for personal vendetta or as a weapon for undue advantage, this can also be used to quash the FIR by any person.

The Honorable Apex Court, while envisaging the guidelines for the use of section 482 states the list of pointers to be included in the application:

a. No prima facie case

b. Absence of cognizable offence

c. Crime in the case cannot be disclosed

d. Lack of evidence

e. Time barred by the Limitation Act

f. Vexatious in nature

A person can also file the complaint under section 9 of Civil Procedure Code, 1908 to recover the damages a person faced under the proceeding or police custody for the false case.

As per the finding of the Apex Court in the case decided by the Honorable High Court in Anuj Chaudhary v/s State of Uttar Pradesh stated that there cannot be two or more / any multiple FIR of the same offence. Any person filing multiple FIRs will be considered as one offence if the matter of the offence is same and person lodging the FIR praying for the same remedy from the state authority (police) this contemplation was provided by section 154 of Indian Penal Code.

The Indian Penal Code governs, regulate, and directs the punishment found guilty under the crime of any nature (whether heinous or non-heinous). There are various provision protecting the rights of spouse if being caught in case of heinous nature if such person believes himself to be innocent.

  • Section 120B: This section deals with criminal conspiracy, any person filing a suit or complaining about any person to the state authority and such complaint has no stand or basis or that person has no locus standing in filing complaint such person is at good faith to file a complaint under section 120B to prove the complaint is a mere conspiracy against him.
  • Section 182:  This section deals with protecting the interest of the person against his spouse if the wife submitted or provided false evidence for the public servant to act accordingly.
  • Section 191: This section states that person can file a complaint under this section, raising doubt on all the documents presented by his wife to authority seeking benefits of false evidence.
  • Section 504: This section deal with any act by spouse or communication by way of oral or written to provoke the other party is acting against with an intent to make it a reason for filing a complaint or instigating a situation of violence to provide evidence to falsely accused.

The Apex court states that any person filing FIR does not conclude with translating it into the immediate arrest of the person against whom a complaint has been filed. The court has time and again reiterated the cardinal principle of “presumption of innocence” where it states that every person is to be treated as innocent until proven guilty. In the case of Advait Amrish Goel v/s Mukesh school of technology,it was laid down that mere filing of the FIR would not be understood as gospel truth.

In the case of Arnesh Kumar v/s State of Bihar the apex court states that section 41 of Criminal Procedure Code, 1973 should be implemented and practised by the police if any cases have been registered under section 498A of IPC. Further, it states that there should a change in police arrest techniques a human conception should be applied to every case depending on the gravity and police acumen to take the next step. Arresting a person on the filing of FIR violates the cardinal principle of the law, and it also results in the violation of the rights of the person provided by the Constitution of India. The arrest of any person in violation of Article 14 that provides equal protection of the law and equality before the law. It also curtails the freedom of life and liberty thus should be made proper accordance of the law. The law provides the authority to arrest a person without a warrant in the cognizable offence, but it also restricts the police to arrest of any person chargeable with imprisonment of more than 7 years under section 4 of the Dowry Prohibition Act, 1960 if the presiding officer according to him is not satisfied with the arrest to be made.

The Apex Court further states that any person on the basis of the cardinal rule and also if the court has no evidence to believe either the offence that has been committed or under argument provided by the counsel has reason to believe of being harmless should be provided bail until the matter concluded.

Conclusion

Mental illness contributes to one’s health in a very drastic way. We often tend to ignore this aspect as it does not attract any major law. But right now, it is the need of the hour, that stringent law should be made which are able to protect and safeguard a man’s mental health that arises solely due to the false circumstances that a woman creates.

The family welfare program has been constituted by the government that takes as the duty to protect the rights of the victim and his family member in cases causing mental trauma or economical diseconomies. Various groups have been formed in protecting the rights of men, and they have taken up the issue that is causing them serious consequences in their life.

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The consumer is the King in 2020

By: admin Consumer Grivances 21 Jul 2020

New laws and provisions have been formulated by the government to safeguard the interest of the consumers in the market. In a country like India, consumers are always tagged as kings of the market, but the question is, are the consumers given authorities and powers as a king has over its throne? The answer to this was a big “no” a few years ago, but today, the scenario has been changed, and finally, the king of the market, has been granted the right powers and authorities through the formation of Consumer Protection Act, 2019.

The Consumer Protection Act, 2019 has replaced the three-decades-old Consumer Protection Act, 1986, which mainly eases the procedure to file complaints by the consumers and gives higher protection the consumer dealing in the market.

With this, the new Consumer Protection Act 2019 seeks to revamp the process of settlement and administration of consumer disputes, with strict penalties, including jail term for adulteration and counterfeit products. It will also cover any misleading advertisements by the firms.

Consumer Protection Act, 2019

Before going further, what the new law speaks and implements, its first important to know how the transformation of a “bill” to an “act” took place. The Minister of Consumer Affairs, Food and Public Distribution, Ram Vilas Paswan introduced the “Consumer Protection Bill, 2019” in the Rajya Sabha also known as Upper House of the Parliament on July 8, 2019. The Lok Sabha then passed the bill on July 30, 2019, and was later cleared by the Rajya Sabha on August 6, 2019. On August 9, the bill was signed by the President Ram Nath Kovind. It came into effect on July 20, 2020.

The government of India has notified the country, regarding most of the provisions of the Consumer Protection Act, 2019 which will come to effect on July 20, 2020. To keep the consumers happy and in focus, the newly implemented law will ensure that complaints can be lodged at a district or state consumer commission from the site where the complainant resides rather than from where the service or product was bought.

The provisions which have come up by the government covers consumer protection councils, mediation, consumer dispute redressal forum, the liability of products or services, the penalty for manufacturing, distributing, selling, etc. products which contain adulterant or spurious goods.

The new laws of the Act will allow the consumers to drag to court if manufacturers, distributors or sellers are found dealing with the adulterated or spurious goods. The consumers can also lodge complaints in consumer claiming compensation for any counterfeit products or the wrong ones from the manufacturers.

Under situations where the consumer is not injured, the court can give compensation of Rs. 1 lakh to the consumers or award six months of Jail under the provisions laid down by the Consumer Protection Act, 2019. In cases where the consumer is injured, the fine to the seller, manufacturer, or the distributor could be upto Rs. 5 lakh and upto 7 years in jail. If in a situation, the consumer dies, then a minimum fine of Rs 10 Lakh and seven years in jail can be imposed, which may be extended to life imprisonment. Any provisions regarding direct selling or online services are yet to be made by the government, which may come in the next two or three weeks. The provisions relating to the constitution of an apex Central Consumer Protection Authority (CCPA) at the national level also remain to be notified by the government.

The CCPA will make interventions to prevent the consumer from unfair trade practices. The agency can also initiate class action, which will include enforcing recalls, refunds and returns of products. The bill also promotes simplified dispute resolution process, which also has provision for mediation and e-filing of the cases. For mediation, there will be fixed timelines that will be released by the ministry. E-filing of cases will take place, and the requirement of a lawyer to produce will also be reduced.

Misleading advertisements is one of the most followed things by the common people. We often tend to fall for the advertisements that are fancy and exaggerating. The new bill introduced carries a provision for jail term and fine for manufactures. However, the celebrities who are a part of such advertisements will not be put behind bars, though there are chances that they will be banned if something wrong is endorsed by them, which is misleading. A major change in the bill is the formulation of product liability. For the first time, the product liability is introduced where the manufacturer or the service provider or the product seller will be liable to compensate the injured consumer for the defective product or deficiency in services.

The consumer commissions at district, state and national level will entertain complaints, and on the other hand, the CCPA will be able to take suo moto action and forward cases to National Consumer Dispute Redressal Commission for class action lawsuit where a large number of consumers are affected.

Conclusion  

The relationship of a seller and a buyer is very fragile and therefore needs proper protection which safeguards the interest of both the parties. To give the consumer, the title of King, it's important to implement such laws and policies, which makes sure that every consumer in the market is the decider and the king. The addition of the Consumer Protection Act, 2019, in the already existing acts is proof that India is developing and such laws, will help to protect the relationship between a buyer and seller.

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Illegal Termination of an Employee during Covid-19.

By: Adv. Kishan Dutt Kalaskar Employment 13 Jul 2020

Due to the current lockdown being exercised by order of the Government of India for maintaining physical distance or to avoid forming group amongst people to protect and to eliminate the spread of the deadly virus. The lockdown came into effect from 25.03.2020 with nationwide closing of the industries, private/public entities, and other workplaces have led to some serious consequences on the working class. Corporates due to interrupted business have led to financial difficulties resulting in the layoffs from the workforce to reduce the cost, in turn, immersing the numbers in the balance sheet. In the time of covid-19, employers have laid off many employees, most of them were contractual in nature.

Introduction

An illegal termination is an act by an employer who is laying off an employee without providing a fair arrangement for such a layoff or by not following the legal method while terminating them.

Illegal termination can be classified with majorly different categories such as:

1. Discrimination.

2. Breach of Contract.

Though there are many other factors that are also categorized under the heads of illegal termination that are:

1. illicit order of the employer.

2. personal grudge.

3. dispute

Discrimination is an attitude or biases towards a particular personal traits and hatred for others. Such character traits also include age, race, sex, nationality or any other discriminatory grounds.

As employer and employee are parties to the contract of employment, such contract has laid down rules and condition regarding the employment and the employer cannot terminate any person from the employment in violation of such condition if any employer conducts such termination it will be termed as illegal, and action can be taken against such employment. There many rules and regulation provided under the various act such Workmen Compensation Act, 1923, Industrial Disputes Act, 1947 and states Shop and Establishment Act.

During this global pandemic, the employees have been laid off from the course of their employment without providing any rationale, in turn, proving to violate the code of conduct of the contract of the employment. Many employees have been laid off with reasons stating the poor performance of the employee, there is neither any proof provided nor any basis for such reason, further, in some companies, there were provisions regarding the training period in case of poor performance which has not been complied pursuing to covid-19 nationwide lockdown which makes such termination illegal in nature, but no answer has been provided for relief of terminated employees. Due to nationwide lockdown, many (HR) departments personnel have been engaged in the process of termination such termination has led many illegalities as such personnel have been laid off without paying any severance package which is an essential part of the termination process. Many employees who were working for more than a period of a decade were laid off without any warning or notice period, which is essential for termination.

Though discussions have been held with the cabinet secretaries for maintaining the peace and harmony in the state that also includes the employment as an aspect to be considered for the eventual objectivity, i.e. stability of the state. Though order has been passed by the Ministry of Human Resources and development that states that “No employer will terminate or retrench any employee from the course of employment for any reason not in violation of the code of conduct, with rationale provided by the lockdown, the word employee also includes casual and contractual employees.”Many corporate employers have been terminating the employee from the jobs to cover the cost that has been lost due to interrupted businesses. Employees though have been looking forward and searching for new opportunities without participating in the battle against such wrongful termination, have lost faith in the stable economic situation and are in the state of turmoil.

Whereas, government and people from the legal fraternity after taking due cognizance of the matter, as they have been enthusiastic in finding and accumulating help in fighting against such terminations. Various guidelines have been issued that revolves around the topic discussing the termination of the employees in this current circumstance.

Start of the Lockdown

During the start of the lockdown, the Government circular dated 29th March 2020was issued in accordance with the National Disaster Management Act, 2005 and in some states under the Epidemic Diseases Act, 1897 that is applicable on all the entities in the country stated that“no entity will be allowed to terminate any employee of any nature unless a violation of the contract under which such employment was agreed”. Under the said notification by the government read along with the Payment of Wages Act, it states that an employer is responsible for the payment of salaries to his employees in full without any unauthorized deduction even in the time of nationwide lockdown such proviso makes compulsory for any employer to comply with the employment rules and not terminate the employee that might be treated loss of wages which is in violation of the act read with government circulars. Though there was some scope in the dispute regarding reduction in salary the same dispute has been settled in contrary stating that any reduction will result in the violation of section 7 of the Payment of Wages Act including the lockdown pursuing to covid-19.

Any reduction by the consent of the employee, if at all has been mandated, will not be allowed, though the employment contract may have the proviso that can allow any employee to voluntarily or by consent agree to reduce the salary such decision will not be allowed as long as the provisos of Disaster Management Act are applicable. The government circular is proposed to promote the safety of the worker and employees in the period of the pandemic, and this will also include non-retrenchment and layoffs. Further issuing guidelines, it is also important to take the cognizance of the operational aspect of industries pursuing to the lockdown the business may have interrupted with their offline activities such organizations are expected to implement work from home culture to future date as determined so to protect the interest of the employees. Also Disaster Management Act, 2005 allows the Central Government to form the national Disaster Management Authority that will be playing a major role in framing policies to mitigate the loss and protect the objective of the welfare state, and section 38 of the Act also makes it compulsory for all the states to follow the direction provided by the authority. Moreover, section 78 of the said Act has an overriding effect over any other law, to the extent, it is inconsistent which concludes that any order of the Ministry of Home Affairs will override the state orders and municipal order to the extent they are inconsistent.

Surveys and Statistics

According to the survey conducted by the Azim Premji University, seven out of ten (72 per cent) workers in Karnataka reported having lost their employment during the Covid-19’s lockdown. This survey was conducted in collaboration with ten civil society organizations. In a statement released by the university, it stated that a detailed phone survey of 5,000 workers across 12 states in the country, to estimate and understand the impact of the pandemic on employment, globally. It will also gauge the impact on government relief schemes. Talking about the survey, it covered self-employed, casual, salaried workers, and the ones who work as per the system of regular wages.

The survey findings stated that seventy-six percent of urban workers and sixty-six percent of rural workers lost their employment amid the nationwide lockdown. For wage workers and the non-agricultural self-employed workers, who were still employed and doing their work, however, the findings said that their average weekly earnings witnessed a fall by two-third. The findings also revealed that more than four in ten salaried workers (44 per cent) saw either a reduction in their salary or received no salary during the lockdown.

As a reply to these findings of the survey, the team which conducted the survey suggested the expansion of Public Distribution System to increase its reach and implementation of expanded rations for at least the next six months. With these, it also suggested proactive steps like the introduction of urban employment guarantee, investment in universal basic services and expansion of MGNREGA. Cash transfers equal to at least Rs.7000 per month for two months was also suggested by the survey team.

Various Issues and Circulations

As the country entered the next phase of the lockdown, the Ministry of Home Affairs has withdrawn the order which stated that companies were entitled to pay full salaries to its employees and workman, through the period of nationwide lockdown. This move of the government will bring much relief to a large number of companies and industries which were not in the capacity to pay full wages to their employees amid the lockdown. While issuing guidelines for this phase, Union Home Secretary Ajay Bhalla's order on Sunday said, "Whereas, save as otherwise provided in the guidelines annexed to this order, all orders issued by National Executive Committee (NEC) under Section 10(2)(1) of the Disaster Management Act, 2005, shall cease to have effect from 18.05.2020."

The guidelines released for the fourth phase did not include the March 29 order issued by the Union Home Secretary, that directed all the employers to pay wages to workers on due date without any deductions, though the commercial unit was closed during the lockdown period.

Appeals in the Courts

The Supreme Court of India, in its recent hearing, in the case Ficus Pax Private Limited v. Union of India stated that “no coercive action against firms for not paying full salary during lockdown”. The court in this regard was hearing a bunch of petitions that were filed by several private companies that could not pay full salaries to their employees and therefore challenged the order released by the Ministry of Home Affairs to pay full salaries to employees during the 54 days of Lockdown. The Supreme Court further asked the private companies to reach to a settlement between them and the employees over the wage payment. It had also asked for a report to be submitted before the commissioners. The court also asked the Centre to file an affidavit within the time period of 4 weeks, challenging the Ministry of Home Affairs, ordered to pay full salaries to employees in the 54-day lockdown, that was implemented by in view of the pandemic. The bench consisted of Justices L N Rao, S K Kaul and B R Gavai, concluded that both the industries and labourers need each other in these tough times and efforts should be made to resolve the dispute over wage payments.

The court on 4th June had observed that some negotiations need to take place between the employers and workers to iron out what has to be done for the salary of these 54 days. The Micro, medium and small enterprises (MSMEs) stated that the 29th March dated order issued by MHA was not taken in keeping the situation these small businesses which have been impacted adversely due to the pandemic.

Senior advocate Jamshed Cama, appearing for the association, said the companies are going out of work as they do not have orders for production of goods and they are being prosecuted due to the government circular. Therefore, it is necessary that the government supports the companies as well as industries in these tough times. Solicitor general Tushar Mehta, appearing for the Centre, said that he had a conference on the issue and needs to file a detailed response on the pleas. The Association of MSME further stated that such blanket decision of the government to provide full salaries to the employees is arbitrary, unconstitutional and unsustainable.

The Supreme Court passed a set of interim orders and stated that a settlement process is necessary to be carried out between the employer and the employee to safeguard the interest of both the parties. Accordingly, the supreme court has passed the following interim directions:

  1. The private establishments, industries, employers, are now allowed to initiate the process for negotiation and settlement with their employees, workmen to reach to a conclusion regarding the non-payment of wages in this nationwide lockdown. If the settlement cannot be carried out between both the parties, the establishments can approach the labour authorities for such settlement. Once the settlement is done, the same can be applied without taking in consideration of the MHA order dated March 2019, 2020.
  2. The above-mentioned relief is also made applicable to those establishments which were not functioning in their full capacity.
  3. The settlement shall be without prejudice to the rights of the employers and employees which is pending in the writ petitions already made by them. The private establishments shall permit the workers who are willing to work without prejudice to their rights regarding unpaid wages of above 50 days.
  4. The government shall take all the necessary measures to publicise and circulate this order so that it benefits both the employees and employers. The said circulation has to be carried out through the Ministry of labour.

The above case will now be taken up at the end of July, and till then no coercive action can be taken against the employees as instructed by the Supreme Court of India.

Another plea was filed by the National Information Technology Employees Senate (NITES), a Maharashtra-based IT union, seeking protection of IT employees against termination and salary cuts in the wake of the Covid-19 pandemic. The bench which was headed by Justice L Nageswara Rao, Sanjay Kishan Kaul and BR Gavai, turned down the plea.

The Supreme Court, dismissing the petition read, “We are not inclined to entertain this petition under Article 32 of the Constitution of India. The writ petition is accordingly dismissed.” Article 32 of the Indian Constitution provides the citizen with remedies which means that a person has the right to move to the Supreme Court and high court also, for securing his fundamental rights. The petition was filed with an aim to ensure that employees working in private companies are protected and not legally sacked against their rights mentioned under Articles 14, 19(1)(g) and 21.

The petition was filed after a lot of IT companies in the country initiated a drive of illegal mass termination of the employees, withholding the salaries of the employees and illegal pay cuts by the employers. Experts report that close to 1.5 lakh IT/ITeS employees could lose jobs due to the ongoing pandemic.

Contrasting Opinions

In a statement, a spokesperson of Cognizant, an IT company who has been accused of illegal termination, said that “Performance management is a normal process across all companies in the IT industry, including Cognizant.” However, Vinod AJ, General Secretary of FITE (Forum for IT Employees) stated that “We plan to file such petitions in Bengaluru and Kolkata as well. We want to expose to the government as well as the society the mass terminations that are going on. Because of this, not just thousands of employees but also their families are getting affected. The government should intervene immediately” He further added “They cannot terminate workers by just branding their performance as poor. Cognizant Chennai’s policy itself says that when an employee gets poor performance ratings, they will be put in a performance improvement programme. After three to six months of training, their performances are evaluated, and the company can then take a decision whether to retain them or not”

As in his own words, Dr Kislay Pandey, an eminent lawyer of the Supreme Court, has submitted that if at all any person who has been wrongfully terminated by his/her employer, it becomes a stronger case against the employer. Further, he mentions that Indian Contract Act, 1872 which deals with the contract of employments silent against the term force majeure (Act of God) that benefitted the employees, if at all such argument has been filed on such rationale there’s no case has there is no legal value to that term, or it can be said that it has mere theoretical existence. Though any term Act of God has been used or if mentioned in the contract does not include pandemic as such, which still leaves no scopes to use against any complaint filed.

Conclusion

It is advisable to take measures to help the country and eliminate the crisis by implementing different policies, but every policy should be implemented in the nation’s interest. In a simultaneous effort by the government, it is important for the business sector to maintain the hold of nation’s interest paramount to any other interest, a sector which contributes to major part of not just the country but the world at large. Business sector should comply with humanitarian policies beyond mere business strategies and valuation of the business in terms of money’s worth.

Following the direction provided by the legislature every person should put efforts in protecting his/her interest with the societies interest, the further legal professional should maximize their efforts in providing legal help to people who suffered in this pandemic for promoting the righteous nature and object of the legislature. Any situation resulting termination of the employees should resort to the legal remedies provided by the government. Any situation resulting termination of the employees should resort to the legal remedies provided by the government. Business sector should consider the government's effort to protect and promote national interest to defeat the grave consequences of the pandemic, this effort, in turn, will help the nation to build a stable economy in coming years. This act is contrary to policies of government for any reason whatsoever, will further lead the economy.

The recent decision taken by the Ministry of Home Affairs will, however, help both the companies and the employees to reach a decision of payment or non-payment. The country is in a situation where lockdown restrictions are yet not lifted up, and therefore, there are many companies which have not started their operations still. A bunch of petitions in the Supreme Court were filed, which is now dismissed taking in view of the current pandemic. These, in turn, is just messing up the situation in the country regarding the scenario of an employee and employer relationship.

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Child Labour Laws in times of Covid-19

By: admin Civil 03 Jul 2020

India is on the 4th position when talking about the coronavirus badly affected countries. The number of cases in the country is increasing rapidly, and there is yet no solution discovered for the same. The government is trying its best to tackle the situation and therefore, is constantly imposing relaxations on different laws to improve the circumstances for everyone. These relaxations have been imposed on the migrant workers, schools and colleges, large scale and small scale companies, and now also on the child labour laws.

International Labour Organization

The ILO (International Labour Organization) has asked India to ensure that children should not fall into the trap of child labour, post the outbreak of covid-19, which has led to the significant decline in family incomes and due to the disrupted school education. A six-point roadmap for India is laid out which addresses the problem of poverty alleviation measures bring about universal social security, come up with education-related measures to ensure children go back to school, regulate laws and enforce them while ensuring there is the social dialogue between all stakeholders. This was suggested by the director of the ILO, Dagmar Walter.

The thing is, lockdown imposed has made many families helpless and poor. This has, in turn, led to the situation, where the parents will ask their children to work and earn, instead of study, when the lockdown opens. A webinar was arranged on World Day Against child labour which was jointly organised by the ILO, labour ministry and the VV Giri National Labour Institute on Friday in which Walter addressed India.

Coming to a conclusion, that there are high chances, that child labour will increase post-Covid-19, the Union Labour Minister Santosh Gangwar has ensured that the government will work under a concrete national plan to eradicate child labour within the given time. Centre, states and society at large will have to work collectively to help eradicate child labour from the country. According to the existing laws of India, no child below the age of 14 can be allowed to indulge in any kind of work.

As per the recent reports of ILO-UNICEF, globally 152 million children are working as child labourers out of which 72 million are involved in hazardous jobs. These children are now at even greater risk of facing circumstances that are even more difficult and working longer hours. The current pandemic is expected to raise the child labour, the first time in the last 20 years. From 2000, India has only witnessed a decrease of child labour by 94 million, but this gain soon can be reversed according to the warnings of the two multilateral bodies, which are ILO and UNICEF. The studies suggest that a one percentage point rise in poverty leads to at least a 0.7 per cent increase in child labour in certain countries. Factors like quality education, better economic opportunities and social protection services can play game changers and reduce poverty as well as increasing child labour in the country.

States like Madhya Pradesh are also more vulnerable because it is among the five states in the country with the highest number of child labourers with total 7,00,239 child labourers according to the 2011 Census. Of it, 4,13,929—that is more than half—are adolescents (15-18 years) while others are in the age group of 5-14 years. MP contributes 7 per cent of the child labourers in the country, while UP tops the list with 22 per cent, followed by Bihar at 11 per cent and Rajasthan 8 per cent.

Formation of Alliance

There is a constant fear that relaxations provided in the labour laws may drive the women and child to join work and earn for their families. To combat this situation, an alliance of NGOs has come together to request the Indian government to review the rules and regulations of the same. The Alliance Working Group on Women in Value Chains (WiVC), have highlighted that how guidelines issued by the government in various states is adopted to promote business operations and as well as to maintain the steady output to drive economic growth that can lead to dilution of labour law. 

To form a group of NGOs, under Working Group on Women in Value Chains (WiVC), the NGOs which have come forward and took a stand are Sewa Bharat, International Development Research Centre, CARE India, Society for Labour and Development, Oxfam India, Save the Children, change alliance and many others.

As the lockdown has lifted at places, the factories have increased the working hours from nine to 10 or 12 hours a day, suspension of inspection mechanisms at someplace, and dilution of the labour laws can adversely impact women and affect children in households which is again a global crisis for the country. In a statement released by the alliance of NGOs, it read, that, "Dilution of monitoring mechanisms through tapered inspection may lead to increased incidences of exploitation and abuse of workers and see children join the workforce."

The migrant labourers are considered as a key element in the urban economy and therefore are called back in the lockdown due to the absence of employment and insecurity of income, resulting in increased vulnerability, exploitation and poverty. Moreover, the extended working hours are expected to impact the time of the parents, and they would be left with less time to concentrate on the well-being and education of their children. As there will be a reduction of benefits for the workers and their families, it will negatively impact the wellbeing of the children. According to the reports suggested, evidence shows that all these factors will result in a decrease in the participation rates of women in the labour market.

The WiVC have requested the government to restore the relevant provisions of labour laws to make sure that the workers and labourers are looked after in the formal and as well as in the informal sector. With this, the government has to ensure the commitment of state and businesses to adhere to internationally recognized labour standards and engage with suppliers to promote the safety and security of workers engaged in various tiers of the supply chain, so that the workers are not scared to come to the workplace. The alliance has further appealed the government to keep a watch on the labour departments in the states to identify violations of relevant provisions of labour laws, including non-payment of wages and exploitative or unsafe working conditions and take action.

Conclusion

The country is already going through one of the major crisis and therefore putting the country in another crisis is not the solution. It is important that when the government is putting on relaxations, it keeps in mind about the circumstances of these poor families who need the utmost support of the government right now. The recent relaxations in labour laws, undertaken in view of the pandemic is further likely to precipitate the crisis in states like Madhya Pradesh, the analysis conducted with the support of Tata Institute of Social Sciences.

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Real Estate scenario Post Covid-19

By: admin Property 03 Jul 2020

The country is under the lockdown from almost four months now. Everything has come to a standstill, and slowly and steadily, the government’s step to reopening businesses is providing relaxations on lockdown so that people can go back to their normal life. Under the 5th version of the nationwide lockdown, many states have lifted the lockdown, but with this, the lockdown has also become rigid in the containment or red zones.

Being a developing country, the outbreak of the novel virus in the country has affected the small as well as the larger companies. Every sector is facing its difficulties, from cash flow in the market to the reduction of supply and demand in the market.

India, where the growth rate of the economy is already set to slow down to a record 11-year-old, a prolonged lockdown in the country will only further worsen the situation in Asia’s third-largest economy. Some of the research agencies are predicting a near-term halt in the growth rate of the real estate in India. The Prop Tiger data shows housing sales in India’s nine major cities declined by 26% in the period between January-March 2020. How badly, the real estate is affected can be seen in the last quarter of the fiscal because March is usually one of the biggest months of sales. In the year 2019, deal volumes in office space in India increased by 27% to an all-time high of over 60 million sq. Ft. However, any records or reports made before the lockdown stands retracted as the situation has changed now.

More than that, the Real Estate sector will have to recover from a record 65% default rate during the lockdown, and it is in this light that when a nationwide economic stimulus package was announced, the Prime Minister laid out a specific and separate plan for the Real Estate sector, this was hailed as a timely and much-needed implementation on the part of the government.

Impact on Builders

The builders of India had hoped from the government to announce some relaxations regarding the unsold stock that the builders had with them due to the ongoing crisis. The country’s non-banking finance sector, a key source for housing sector funding, made borrowing for the public extremely difficult, which jeopardized their plans to deliver projects within the stipulated time. The unsold stock with the developers was around Rs 6 lakh crores as of March 2020. The construction has been put on a halt due to the lockdown, and there has been a delay in supply of manufacturing material and equipment from China, this will further push delivery timelines of ongoing projects, consequently increasing the overall cost for developers.  The government of India has announced several measures in its coronavirus-specific stimulus package and the EMI holiday for developers during the crucial period are some steps that might offer some relief to the builder community.

The pandemic has hit the country at a time when statutory pay-outs and streamlining of balance sheet happens for the builders. Therefore, to combat this situation, the builders have asked the government for some economic interventions like rescheduling loan repayments, a one-time rollover for debt restructuring and deep interest rate cut. Furthermore, the government has placed limitations on construction sites, requiring the presence of a COVID marshal at all sites, and requiring the workers at these sites to undergo a health check. While being welcome measures, are cumbersome and difficult to implement considering the largely unorganized nature of building and construction work; it should be kept in mind that most measures taken by the government in the construction sector have happened in the earlier stages of the lockdown, where towards the end of March the government had ordered the release of 52,000 Cr. to alleviate the income crunch of construction workers, in the same fell swoop, the government by the end of April had acquiesced to the demands of building and construction companies in their demand that sending workers home might be detrimental to the industry and in the ‘Lockdown 3.0” notification on May 1st had permitted construction sites to work at full capacity provided social distancing guidelines were followed.

The most significant measure taken during the lockdown, especially for the real estate sector has been the government’s instruction to treat the lockdown, and ensuing consequences of COVID as ‘Force Majeure’ under the RERA, this will allow the liabilities accrued during the pandemic to be written off, or rendered in actionable.

Impact on Home-Buyers

There were chances that the low-interest rates (home loan interest rates are 8%) and high tax exemption (rebate against home loan interest payment is as high as Rs 3.50 lakh per annum) were going to make some changes in the behaviour of the consumer in the market, but due to the outbreak of the virus, there are no chances that it will change the behaviour of the consumer. Moreover, amid the lockdown, it is next to impossible that site visits can be made by the buyer, which in turn is delaying the purchase decisions. As the coronavirus has impacted all the sectors of the economy, troubles have compounded for India’s realty sector, which has been dealing with a challenging scenario, since the government has released the economic policies. The slowdown in the business has been from February almost, and due to the non-existent of the site visits, the decision-making process for the purchasing is hugely delayed. As there is no clarity of the business security to many of the employees amid the lockdown, a final decision on property purchase cannot be made. Despite these issues, the industry is confident that demand for real estate will go up in post-lockdown, due to the potential increase in sellers of unused real estate assets.

Even when the RBI has announced several rate cuts, and the repo rate is brought down to 4%, still any of its positive results will only be witnessed in the medium to the long term. However, the step has come to major support for the current buyers who will be able to pay the EMIs in the short-term because of the lockdown and in the medium terms in the event of job loss.

Despite this, it is not all doom and gloom for the housing economy post-COVID, since individual buyers will be in an advantageous position for once, thus enabling them to contribute in a way to the speedy recovery of the Real Estate Sector especially the housing sector, there is also slated to be a surge in buyers looking for immediate accommodation in the aftermath of the pandemic, as the rental home sector has seen the highest number of evictions and uncertainty for the first time in a long time.

Impact on Office Spaces

Recent reports suggest that India has indicated that over 70% of companies would extend the work from home policy for another six months to further avoid the spread of Covid-19. A similar trend is being adopted globally. The companies worldwide have debated, if the work from the home policy could replace the workspaces in the future. The answer to the debate can only be given through the ultimate level of success achieved by businesses through remote working.

The office utilisation demand rates will fall as remote working areas rise and landlords with exposure to short-term leases are the most vulnerable as the delay to investment activity and softer rental growth than previously forecast are headwinds to 2020 performance. This is not to say that short-term leases are not being considered on a serious note by many small and medium firms in the country, because of the increased investment in work from home capabilities, and cuts in expenditure therefrom, companies are considering halting long term rental plans to explore a more flexible short term arrangement for their employees. It is also theorized that companies, due to the lower prices of commercial real estate, would be more amenable to purchasing office spaces,for a more permanent solution to the ‘social distancing problem.

While stating that the demand for remote working and investment in collaboration technologies would grow, fast-tracking a widespread adoption of these practices, the report, says that this trend can’t be perceived as a threat to the future office demand. “A focus on higher utilisation and densification of space has already driven efficiencies and resulted in limited excess space in optimised portfolios. Rising employment in relevant sectors will more than outweigh any impact on demand from home-working. With a reduction in the demand of the working spaces, the economy of the country is also highly affected.

Conclusion

Every industry and sector is facing its own battles, and similarly, real estate is one of the major sectors which will witness a huge change in its demand. There is a huge drop in demand for the properties due to less or zero money supply in the market, and this situation in the country has been created due to the outbreak of the novel coronavirus. Half of the population is with no income anymore, and half of the population is struggling with very basic income, this has put many restrictions on the sale of luxury goods. In these testing times, it is not easy to convince people to invest in areas like real estate. Moreover, the research studies suggest that India is currently the 4th country which has been the most affected by the virus the most, thus adding into the situation. It is important for the government now, to reduce the costs of real estate and make sure that people who work for real estate do not suffer. Laws can be revised for the same, and better policies can be created for the one selling, and also the one who is purchasing.

This article also highlights that there is the very real possibility and potential that the real estate sector might bounce back once the pandemic has been contained and both private and commercial consumers of real estate try to take advantage of a buyers’ market, and may also cause a frenzy in their desire to not depend on leaseholds that proved to be extremely volatile during periods of economic crisis as shown by the months-long lockdown.

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Post Covid-19 Digital Shift of Legal practise

By: admin Covid-19 03 Jul 2020

After the breakdown of Covid-19 in the country, it has almost been two months, that people are locked in their houses and are either working from home or working through using digital modes like video conferencing, zoom calls and WhatsApp calls to connect with their bosses, employers and other co-workers. In such a scenario, when people can’t go out to work, digitalization is playing a major and effective role. It is the requirement and as well as the only way through which India’s economy can grow in this stagnant situation.

Legal Fraternity

Every profession is doing its best to control the crisis, but only a few of them are able to control it. Once this pandemic is over, everything from our lifestyle to eating habits will change. Life, as we know it, will change. Under such circumstances, one can only use this pandemic to challenge themselves and use this opportunity to bring a positive change in society. Since laws are what governs this society, this pandemic has given a chance to the legal fraternity to bring change in the way of litigation and in practising. By making use of technology, things can be innovated in a way to enhance the legal decisions as well as the legal knowledge around the country. Right now, the way the situation is prevailing and the way the lockdowns have been extending, the only method left with the courts, lawyers, and the legal profession is to shift digitally to maintain and govern law and order in our states.

Use of AI in Courts Pre Covid

In the recent celebration of Constitution Day, the Chief Justice of India, SA Bobde, has proposed to introduce the system of Artificial intelligence (AI) to improve the judicial system of the country. Such a system will help in better administration and delivery of judgements. However, the CJI also mentioned that people should not form an opinion that digitalization will ever replace the judges of the country. The event was organized by Supreme Court bar association (SCBA) in which the CJI said “We propose to introduce, if possible, a system of artificial intelligence. There are many things which we need to look at before we introduce ourselves. We do not want to give the impression that this is ever going to substitute the judges.” 

The president of India, Ram Nath Kovind, was also present in the event where the Supreme Court App was introduced. Justice Bodbe, while talking about the application, asserted that artificial intelligence fueled law translation system will facilitate the quality translation and will further help in improving the efficiency of the Indian Judicial System. The app that was released will translate the judgements into nine religion languages.

A meeting was conducted of e-committee of the High court in which the head of e-committee Justice DY Chandrachud head of the Supreme Court e-committee, had stressed on the need to start virtual courts in all states not only to deal with traffic challans but also in all other summary violations.

Shift to Digitalization

The Supreme Court of India is leaving no stone unturned in hearing and adjourning of the cases through the courts are shut and there is a nationwide lockdown in the country till 3rd of May. On 23rd march to practise social distancing and to prevent the spread of the virus, the court decided to ban the entry of lawyers and litigants in the court, and it was also decided to hear only those cases which were of utmost importance and urgency. According to the recent reports, the Supreme Court has heard 593 cases in the last 34 days through video conferencing and other digital facilities. 203 out of the 593 cases were connected cases, that is, cases involving the same issue which were heard along with the main case. Furthermore, the top court also delivered judgments in 41 cases during this period. Through these 41 judgments, the court disposed of an additional 174 cases which were connected matters. The apex court decided to start the method of video conferencing on 23rd march, a day before prime minister announced the nationwide lockdown in the view of Covid-19 pandemic. Since then, the court sat for hearing on 17 working days with a total of 34 benches hearing cases through video conferencing. Not only this, but 53 benches also sat to decide review petitions. However, those were decided in chambers without an oral hearing and with these 84 review petitions were disposed of by the court during this period.

The hearings in the Supreme Court are conducted through the Vidyo app, which can be downloaded on mobile phones and desktop. The platform is hosted on the servers of the National Data Centre of National Informatics Centre.

While the judges on the bench join the video conference from the residence of one of the judges, the lawyers join from their respective houses.

The court also came out with standard operating procedure (SOP) for filing, mentioning and hearing of cases through video conferencing on three occasions - March 23, March 26 and April 15.

Apart from the court cases, online consultations have been started by the lawyers for their clients. Lawyers are now giving online advice through video calls or telephonic calls to make their clients know about what is legally right and legally wrong. The lawyers are able to take up cases and study them so that no time in the future to fight such cases is lost. It is the correct time for the litigants to make a place for them and earn the trust of their clients. Such situations will later lead potential clients to the litigants.

Big law firms are able to connect to their clients through social media and work from home techniques for the employees is working well for such firms. As most of the work these firms tackle is about research and writings, the work from home structures is proving to be supportive of them.

Therefore, the legal fraternity has witnessed a significant shift in the way they are working and practising post-covid-19 which is productive as well as beneficial to them.

What future holds for Legal Fraternity?

Imagine a scenario, where there is no lockdown and the people can finally go on dinners and meet their friends. Such three friends’ meet for dinner from whom one is a lawyer, the other is designer and the third one is an entrepreneur. These three friends meet and they start discussing the effects of covid-19. The conclusion of the discussion comes out that, the lawyer has been hired by the entrepreneur to fire one of his employees who didn’t work from home and is now asking for a full paycheque. With this, the lawyer is also hired by the designer to sue his boss for not giving him the paycheque for the lockdown period. These is what the future of lawyers is once the lockdown is over. Coming out of the imagination, as the nation is going through a lockdown because of the outbreak of covid-19, the businesses are in a dilemma as they have no idea how will they continue their operations and pay their employees. In a pandemic where the government is asking the businesses to provide full salaries to their employees and not to fire them due to the lockdown, consider the number of legalities and issues this company had to go through to fire its 200-300 employees across the country. The company must have consulted legal firms and considered the advice of the lawyers. Besides all this, a lot of paperwork and documentation must have been required by the company to fire its employees without involving any mistakes and errors legally.

On the other hand, the fired and frustrated employees during this time must be eagerly waiting for the lockdown to end and consult their legal friends to sue the company for such an ignorant act. Consulting their lawyers and filing cases against them again means, work for the legal fraternity. Hence, the future is full of opportunities for lawyers and legal firms. The only thing they have to do is to target the right group of people and build trust among the clients. For lawyers, COVID-19 crisis is a boon in the guise of a bane. When clients have lots of problems, lawyers thrive. The crisis has created lots of problems for clients.and therefore a lot of work - now, and for months to come, for lawyers.

As for the courts, the overnight shift in the paradigm is proof that courts can are efficiently equipped with the expertise to act without limitation at any hour of need. As stated by a senior advocate CS Vaidyanatha “This is an inflexion point for the legal profession in India. Till now, the mind-set was one of resistance to change, or at best, incremental change. The disruption occasioned by Covid-19 has put forward challenges that can be best countered with wholesome and wholesale changes – by the adoption of online courts with limited or no oral hearing but based on brief written submissions.”

On the plus side, the pandemic has paved its way in forcing our age-old legal practice to go digital quicker, which shall hopefully continue even post the lockdown and the pandemic. There may be some guidelines pursued on this matter later on, once the lockdown relaxes.

Introduction to E-Contracts

Post Covid-19, digitalization is taking over and therefore e-contracts are also increasing and making their place in the economy. Electronic contracts or e-contracts are agreements entered through an electronic form mostly through a software system as opposed to the traditional contracts documented on paper and signed using the wet ink. The Indian laws are recognizing various types of e-contracts such as contracts which are entered through emails, clickwrap and shrink wrap contracts and other similar platforms. However, to recognize it as a valid and legally enforceable contract, the pre-requisite of the Indian Contract Act,1872 needs to be followed. E-contracts execution is done by various modes among which one of the easiest and safest way is through digital signatures. The Information Technology Act enables obtaining of digital signatures in a scenario where social distancing is must, and people are not allowed to meet each other. Digital signatures are introduced so that contracts can be signed digitally and norms of social distancing are not hampered. It is important to note that there are certain contracts which are not eligible for execution through online modes. Furthermore, the contracts which are executed should be only made, after taking the help of legal people. The government is also taking initiatives to open online portals for the payment of stamp duties for such contracts.  

Conclusion

On the brighter side, the biggest winner in this technological shift may be the solving of the pendency problem in the Indian courts. As per the McKinsey Reports, 22% of a lawyer’s job can be automated.

Covid-19 is a troublesome situation for everyone, but these are the testing times. The legal mind has to now be creative and find opportunities and solutions in this chaos. As soon as the lockdown is uplifted, things will change and the adoption of such changes will be the only option left. The big law firms, as well as the individual lawyers and small law firms, are doing stellar work concerning the Covid crisis, innovating new services, helping clients with their current legal problems, and some have even set up dedicated desks for Covid related work. Therefore, the one who will be well prepared will be able to find the right opportunities amid Covid-19.

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Mutual Consent Divorce through Video Conferencing

By: Adv. Kishan Dutt Kalaskar Divorce 03 Jul 2020

Mutual Consent Divorce is an easy way of coming out of the matrimony and dissolve it legally. When the spouse (husband and wife) agree to take a divorce, the courts will consider as a mutual consent divorce. For the petition to be accepted, however, the spouse should be separated for more than a year or two years. They can be separated when the couple, still agree for mutual divorce because it is comparatively inexpensive and not as troubling as a contested divorce. The issues related to children's custody, alimony or maintenance and property rights can be agreed mutually too.

According to the law, there is no minimum or maximum limit of maintenance, and the child custody can be shared or joint depending upon the mutual comprehension of the couple.

The number of matrimonial cases filed per year in India is a lot more when compared to other countries. Delhi has 11,862 pending matrimonial cases. The courts disposed of more than 24,000 cases in the last two years. Kerala tops the list with 52,000 cases awaiting adjudication till November 2016. On the contrary, Uttar Pradesh has just 5,466 cases pending in its 76 family courts. This not only increases the burden on the courts, but it also delays the cases which are urgent and require speedy disposal. Due to the increasing number of cases, the need to use the technology to dispose of such cases was realized by the courts. Video-conferencing is one of the modern ways which can help people to get speedy trials, and on the other hand, the court, the judges and the litigants can enjoy less burden of matrimonial cases.

Video conferencing is a comparatively new tool in the arsenal of the judiciary, the aim of the same is to make the availability of witnesses and parties to the suit more pragmatic, as discussed in the matter concerning the Indian Planned Parenthood Federation in the Delhi HC, where the two-judge bench of J. Bader Durrej Ahmed and J. Sanjeev Sachdeva; The Hon'ble justices have referred to this pragmatisms in light of the specific appeal of the party in requesting the recording of the testimony of one of the witnesses via video conferencing. This seminal decision in the Delhi HC has been backed by the SC in State of Maharashtra v Dr. Praful Dubey AIR 2003 SCC 601 where the application of Sec, 273 of CrPC was discussed and held that the meaning of the term 'Presence' as used in the section refers not to the physical presence, but the general availability of the witness to the court, and since presence in this modern era can be guaranteed even without the physical existence of a party, video conferencing is an agreeable replacement to the physical attendance of the party to court. In both these cases, the court held financial ability and capacity to appear as a secondary reason and argued that there is no set reason why online attendance for a court procedure could be granted, although the text is obvious enough to exclude laxity. It is to be noted that the cases are criminal appeals in the respective HCs, and the interpretation focuses on interpretation in CRPC, but it is equally important to note that the term 'presence' can be superposed in civil matters as well, and there is nothing in the way of applying the same to family court procedure.

 

History of divorces through video-conferencing

Divorce cases may be fought on video in future rather than in crowded courtrooms amidst strangers. Krishna Veni Nagam vs Harish Nigam 2017, changed the way through which the courts use to start proceedings of the matrimonial cases. The case was regarding a woman who filed a petition in the court stating that, she lives in Hyderabad with her minor daughter and has to travel to Jabalpur where her estranged husband has filed a divorce case. The bench which had Justice A.K Goel and UU Lalit allowed the petition and transferred the divorce matter from Jabalpur to a family court in Hyderabad, noting that the plea was pending before it for three years. With this, the court observed that just transferring a case from one place to another is not a solution. The court said, "This court is flooded with petitions of this nature and considering the convenience of the wife, a transfer is normally allowed. However, in the process, the litigants have to travel to this court and spend on litigation. Question is whether this can be avoided." The bench observed that one could not ignore the problem faced by a husband if proceedings are transferred on account of genuine difficulties faced by the wife. The husband may find it difficult to contest proceedings at a place which is convenient to the wife. To combat this situation, it was then that the Supreme Court decided to conduct these cases through video conferencing, which not only saves money but is also more convenient to both the parties involved in it. Taking this decision, the court also said, technology ought to be utilized for receiving communication from parties. We are thus of the view that it is necessary to issue certain directions which may provide alternatives to seeking transfer of proceedings on account of the inability of a party to contest proceedings at a place away from their ordinary residence on the ground that if proceedings are not transferred, it will result in denial of justice." When it was argued that, not every place has the facility of Video calls, the court said, "We understand that in every district in the country, video conferencing is not available. In any case, wherever such facility is available, it ought to be fully utilized and all high courts ought to issue appropriate administrative instructions to regulate the use of video conferencing for a certain category of cases." This decision was important and essential as it eliminates the need for the person to be present personally in court. The court noted that a divorce case is usually filed in a court within which jurisdiction the husband lives or the wife lives or where the couple had their matrimonial home.

In most cases, estranged couples may very well go their separate ways, probably to other States. The Supreme Court found that the odds are usually stacked against the estranged husband when the wife prefers a transfer of the matrimonial proceedings to a court in her vicinity. When such a transfer application comes up, the courts either order the husband to foot the wife's travel and accommodation expenses or mechanically allow her plea. The judiciary justifies that this empathy towards women is based on three factors — the constitutional scheme to provide women equal access to justice, the power of the State to make special provisions for women and children and duty to uphold the dignity of women.

It is also important to note that, this judgment was opposite to the case the court had in the 2006 judgment in Anindita Das versus Srijit Das. In the mentioned case, the Supreme Court had insisted that transfer of the matrimonial case to the wife's place is a must when she does not have "any male member to accompany her to the matrimonial proceedings".

 

Current Stand of Divorces through Video conferencing

After the Supreme Court, allowed the divorces through video calls, the current scenario of divorces remains the same and people do apply for divorces through skype and video calls. In a recent case, Harshada Bharat Deshmukh Vs. Bharat Appasaheb Deshmukh, ST. NO.1788 of 2018, the Bombay High Court has held that a petition for divorce through mutual consent can be filed through a registered power of attorney and directed the Family Court, Bandra, to allow recording of consent terms via Skype or any other technology. The couple filed a petition before the Family Court for dissolution of marriage through mutual consent under section 13 B of Hindu Marriage Act.

However, the petition was signed by the husband and the father of the wife, who is also her registered power of attorney holder. The family court under this held that both the parties must remain present, for filing such a petition and the petition was dismissed on the same ground. Samir Vadiya, the lawyer of wife, argued that his client was employed in the United States of America and was unable to remain present due to employment rules and regulations she was governed by. Vadiya also claimed that both the parties were living separately for more than a year and the refusal of the petition on the ground of non-presence is not valid. He placed reliance on a judgment of the high court in Mukesh Narayan Shinde v Palak Mukesh Shinde to submit that it is permissible for the family court in the light of technological development to arrange for e-­counselling and e-­verification by video conference.  Furthermore, he also relied upon the judgment of Punjab & Haryana High Court in Navdeep Kaur v Mahinder S Ahluwalia to submit that personal appearance of the parties at the time of presentation of the petition for divorce by mutual consent is not mandatory and the parties may be represented through a duly constituted attorney.  The same reasoning was used in the matter of J. Kalpana v S. Sreenath that was filed before the Madras HC.

It is important to note that, in Sec. 13-B, the court interpreted the words 'In the presence of the parties' in a literal sense, this has led to courts having to think of workarounds in situations where the parties are estranged, or in different jurisdictions. In the case of Kanwalijeet Sachdev v State of UP(2016) 99 ACC 323, the Allahabad HC followed the ration on Navdeep and agreed that alternative methods, among them, filing a mutual divorce petition through power of attorney, and remote recording of evidence etc. can be done to accommodate the party. Thereafter in the HC of Calcutta, in Annalie Prashad v Ramesh Prashad AIR 1968 Cal 48 it was held that the strict interpretation of the presentation by parties would imply accommodation rather than exclusion of evidence, this ratio has been taken forward in division bench decision by the Delhi HC in Vinay Jude Dias v Renajeet Kaur(2009) 186 Drj 183, here it was held that the power of attorney can be used even in matters of mutual consent divorce, as long as the other requirements have been fulfilled.

These cases establish that, divorce petitions do not require the direct presence of the parties and that alternative solutions can be sought. Courts have shown similar leniency in matters of party presence before the court, in divorce matters, where the party for whom video conferencing is needed is merely a witness as held in Sujoy Mittra v State of West Bengal(2015) 16 SCC 615, and this has been affirmed by the Kerala HC in the matter of Zacharia Arun George Scaria In Re: Titus Mani Adv. 2013 SCC Ker 169.

In the times of Covid-19, the domestic violence is on the rise, and there is very little the government can do about the rehabilitation of the victims, for this reason, it is not too farfetched to think that there might be a spike in the number of petitions filed for separation and divorce after courts return to full capacity. As the courts are only working online, and are taking cases which are of urgent matters, the cases related to divorce might not be heard as of now. However, lawyers suggest that the divorce cases, which includes huge alimony and settlement amounts, will have to be revived and amendments would be made, as the economic situation of every individual post corona period is not going to remain same.

One downside is that most proceedings, except extremely sensitive matters such as POCSO - Preventive Detention, Terror and related matters, are public hearings; thus it means that the courtroom is open to the public to venture into and view. Although it is common practice for parties in sensitive divorce matters to request in-camera proceedings, it is not the norm. Currently, due to the nature of video conferencing itself, most matters where one or both parties deigns to attend through online means will automatically render the proceedings in-camera.

 

Conclusion

Many countries, apart from India, have also used digitalization to grant divorces to couples who cannot remain present together in one particular State or country. There have been many cases in which the parties give their consent for divorce through video calls using Skype, WhatsApp and other online applications. This not only saves time of both the parties, but it is also the way through which hassle-free divorces takes place.

The Indian Judicial System gave a landmark judgment in the year 2017 when it permitted the mutual consent divorce through video conference. Video calls allowance will also help to save a lot of many, which is spent on travel by the parties through one State to the another where the case is being heard. It has also given equal rights to both the women and the men as neither party would have to travel for trials of the cases. Furthermore, digitalization of the country is important as the whole world is turning digital and to match with the same pace is essential.

It is also important to note that Family Court proceedings are more amenable to the collection of both testamentary and material evidence through electronic means, this is because standard evidentiary rules don't apply to family courts due to the application of the Family Courts Act 1984. Hence, any testamentary evidence gathered through video conferencing will not face the usual hurdles of admissibility specifically because the matter is posted before a family court.

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59 Chinese Apps banned in India

By: admin Others 30 Jun 2020

Seeing the current circumstances, India was already apprehensive and skeptical for the number of Chinese products used by the Indian citizens. People were already angry, and a lot of them were demanding only Indian made products rather than ‘made in china’ products. Another thing which made the situation worst was the recent Indo-China war which took place at the Galwan Valley situated in Ladakh on 15th June 2020. The Indian Army reported that around 20 soldiers died due to the wounds caused by the Chinese army. Such a cold war is brewing between India and China, which has been witnessed almost after 45 years. On the other hand, China did not confirm any casualties but accused India of crossing the border onto the Chinese side. This Indo-China war attracted a lot of outrage from India towards China.

 

Banning of Chinese apps

Though India imports many products from China, the growing tension between these two countries has no end, and things are certainly taking the wrong turn. Talking about the recent news, India finally decided to ban the use of 59 Chinese online applications which are very prominent in India and influence half of the population. The news of banning these apps came on 29th June and witnessed mixed reactions. One of the more popular app which is banned by the Indian Government is Tik Tok as it has huge stars following it. While some of the citizens are celebrating this decision, it is also important to note that Indians working with these brands will face unemployment issues soon. Such a decision is likely to increase the unemployment rates in the country as creators of many such apps are Indians, and many offices of these apps are located in India. Applications like Tik Tok and helo, which has over 100 million active followers and helps its stars to earn money, will now not be possible and might create certain problems.

Following are some of the most prominent applications that have been banned by the Indian Government:

The list is including, but not limited to:

  1. Tik Tok
  2. Helo
  3. Shein
  4. Club Factory
  5. Cam Scanner
  6. UC Browser
  7. Shareit
  8. Romwe
  9. Xender
  10. WeChat
  11. Likee
  12. Viva Video

 

Legalities involving the Ban

The ban has been enforced under Section 69A of the Information Technology Act, 2000 (“Power to issue directions for blocking for public access of any information through any computer resource”): “Where the Central Government or any of its officers specially authorised by it is satisfied that it is necessary or expedient so to do, in the interest of sovereignty and integrity of India, defence of India, the 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 by order, direct any agency of the Government or intermediary to block for access by the public or cause to be blocked for access by the public any information generated, transmitted, received, stored or hosted in any computer resource.

Talking to The Ministry of Information and Technology it has revealed that they “have received many complaints from various sources including several reports about the misuse of some mobile applications for stealing and surreptitiously transmitting users’ data in an unauthorised manner to servers which have locations outside India”. Since this “ultimately impinges upon the sovereignty and integrity of India, is a matter of very deep and immediate concern which requires emergency measures” the ministry has conveyed.

The ministry has accused these apps of stealing and secretly transmitting user’s data in an unauthorized manner to servers which have a location outside of India. If reports are to believed then-new IOS (Apple) found out that, these apps were receiving and recording information of the user even when it was not required. The ban will be implemented through, internet users, who are asked to block the respective applications on Google Play and Apple App Store. People who already have these apps installed in their phones might receive a message, stating that the government has banned the use of this application. However, such apps, which works even offline, may be available to the users after the ban too.

This isn't the first time Chinese apps have been banned in India. In 2017, Alibaba's UC Browser had come under the scanner for allegedly leaking mobile data of Indian users. And that year, India's defence ministry asked all armed personnel and officers to uninstall 42 Chinese apps it classified as "spyware", according to media reports. Even the Tik Tok was banned on the order of Madras HC for a few days in the year 2019. However, once the ban was lifted, Tik Tok was again widely used.

All these situations have led to a rift between India and China. Such a decision taken by the Indian Government may further deteriorate the relationship between the two countries. However, the safety of the country is a priority. It is also important to note that it will not only affect the Chinese producers, but it will also have a huge impact on the Indian Economy.

 

Punishment

At present, it is not illegal to use the banned Chinese apps, so there is no fine levied at the moment for the usage of the apps. The Government has not issued any guidelines relating to the ban and hence there is ambiguity as to the usage of these apps post the ban.

However, as this ban is invoked under section 69A of the Information Technology Act, as per the act, an individual who fails to comply with the direction issued can be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.

While the apps that are pre-installed on the phones, will continue working for some time, they will no longer receive any updates in India as they will be removed from the Play Store.
 

Conclusion

Due to the rising situation between India and China, this decision seemed necessary. To protect the sovereignty and integrity of India, which are the essentials of the Preamble of India, it was important to limit or ban the use of such applications that not only stole the information but also could potentially circulate it.

Tik Tok is one of the most widely used application all over the country, it has been in talks with the government and is likely to conduct a meeting with the concerned authorities to prove that Tik Tok complies with all the rules and regulations of the Indian Law, including the Preamble of India. As the ban is just a day old, its enforcement and its impact is yet to be witnessed and reported.

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