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27 Apr 2019
Procedure For Registering Marriage
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  • Marriage Registration
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Marriages can either be registered under the Hindu Marriage Act, 1955 or under the Special Marriage Act, 1954 in India. For both, a marriage certificate is legitimate proof that a couple has married. A marriage certificate is an official declaration which states that two people are married. 

The Supreme Court mandates registration of the marriage for safeguarding women’s rights since 2016. It's essential that the women get their marriage registered immediately after marriage as it establishes their legal claim as a wife. Thus, obtaining a marriage certificate can have various benefits. It is not just 'another license' that one must acquire. To get the marriage certificate, the bridegroom should be over 21 years of age, and the bride should be more than 18 years.

The reason to obtain marriage certificate is that it is a vital document while applying for the passport or opening a bank account with a new surname post-wedding. Also, in the case of visa processing, many embassies request a copy of the marriage certificate. Therefore, it is obligatory for many couples who want to move abroad after the wedding.

Documents required while applying for marriage certificate;
1) Personal Identity proof
- Aadhar Card
- PAN Card
- Ration Card
- Driving license
- Passport
- Passport size photo

2) Age proof
- School certificate
- Birth certificate
- Visa
- Passport

2) Marriage proof
- Wedding invitation
- Temple marriage receipt (If Any)
- Any other proof of marriage solemnization

4) Address proof
- Electricity bill
- Rent agreement
- Ownership deed

Procedure for Registration of MarriageSteps to register the marriage under the Hindu Marriage Act, 1955 are as follows;
- The application form from the link provided by the state can be downloaded and printed.
- After getting the printout of the application form and filling all details to be asked in the way; and
- After filling all details in the form and declaration form, give your signature on the bottom of the form.
- Submit the application form to your nearest local authority 
Steps to register the marriage under Special Marriage Act:
- Fill the online application form from the link provided by the state and fill all the details to be asked in the form.
- Give notice of intended marriage to the registrar in 30 days advance with the prescribed fee.  
- In case of no objection found within 30 days from the date of notice of intended marriage. The bride and bridegroom must appear in the registration office within the next 60 days with three witnesses.
- After all the prescribed procedure, registrar registers the marriage.
Bride and bridegroom and three witnesses should give their signature on the declaration and marriage certificate. 

For marriage registration under the Hindu Act, the marriage must have been solemnised as per the Hindu customs or non-customary, and the bride & bridegroom must belong to Hindus, Jain, Buddhist and Sikhs. Further, any of the following premises should come within the jurisdiction of the Registering Officer:
- Residence of the bride.
- Residence of the bridegroom.
- Solemnization place.
- For Online Registration

Marriage Registration is required in India for the reasons:

It is a legal proof you are married and the most vital document of a marriage, for purposes like obtaining a passport, changing your maiden name, etc. ascertain dishonest husbands altogether deny marriage leaving their spouses in the pitch, be it for seeking maintenance, custody of children or inheritance of property, etc. Thus, moved by the plight of deserted women fighting for their rights like maintenance and custody of children, etc. it is imperative for such women to have their registration of marriage so that they can claim their right legally.

To ensure your marriage, you should have your marriage testament recorded. In case of applying for a travel permit, opening a financial balance in the wake of wedding and other legal exercises expect you to have your marriage authentication. A marriage declaration is additionally required on the off chance that you need to apply for life coverage arrangements. There are even odds of marriage question in specific cases, and marriage endorsement can be a substantial confirmation of the way that you are lawfully hitched.

Marriage registration is required as proof of marriage. It will help to manage a lot of legal complexities that may occur in future.

Suppose one of them died natural death the surviving partner has all rights on the property of the deceased. There are chances of others questioning the sanctity of the marriage. Mostly claims may come from the relatives of the dead.

Having some record of your marriage is only reasonable, and it will help you manage many situations in future. The Government insists on marriage registration after noticing misuse of marriage certificates from other (religious) institutions too. 

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27 Apr 2019

The Maternity Benefit Act, 1961

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  • Employment Lawyers
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Maternity Act 1961 makes provisions to protect the dignity of Motherhood by giving complete and healthy care to women and her child when she is unable to perform her duty due to a health condition, Maternity Leave and benefit. 

Maternity Act 1961: Provides women, assurance that her rights will be looked after while she is at home to take care of her child.

Applicability: The Act extends to the whole of India. Every store or establishment wherein 10 or more persons are employed on any day preceding 12 months and to every factory, mine or plantation (including those belonging to Government).

Eligible for Maternity Benefit: A woman must be working in the establishment for a minimum period of 80 days in 12 months before the date of delivery — any women who earn less than Rs. 15,000/-, her employer may offer ESI (Employees State Insurance) scheme and she will not be eligible for benefit under the Maternity Benefit Act but will receive the maternity benefit under the ESI scheme.

Duties of Employee for Maternity Benefit: Any women expecting a child may ask the employer to give her light work ten weeks before the expected delivery date. The employer must be informed seven weeks before her delivery date about the leave period; also she must name the person to whom the payment will be made in case she cannot take herself.

Municipal Corporation Of Delhi vs Female Workers (2000) SCC 224: A Union of Female Workers who were not on regular rolls, but was treated as temporary workers and was employed on Muster roll, claimed that they should also get maternity benefit like other regular workers. Court held that the provisions of the Act entitle maternity leave not only to those in regular employment but also to women on a casual basis or muster roll basis on daily wages and, is wholly in on the lines of the Directive Principles of State Policy vide Articles 19, 42 and 43 of the Constitution of India.

Cash Benefits: 84 Days Leave with pay before/after delivery. A medical bonus of Rs. 3,500/- Take the payment for six weeks after/before childbirth. Additional leaves with pay, up to one month subject in case of illness subject to proof for the same. Six weeks leave with the average salary in case of miscarriage. Paid leave with wages of maternity benefit for a period of 2 weeks in case of tubectomy operation 

Non Cash Benefits:
- Light work for about ten weeks (6 weeks plus one month) before delivery. 
- Two Nursing breaks of 15 Minutes till the child becomes of 15 months.
- No women can be discharged or dismissed during maternity leave.
- Pregnant women who were discharged or dismissed may still claim maternity benefit from an employer.

Paid Maternity Leave Increased: The Amended Act has increased the duration of paid maternity leave available for women employees from the earlier existing 12 weeks to 26 weeks. This benefit could be availed by expecting women for a period extending up to a maximum eight weeks before the expected date of delivery, and the remaining can availed after the birth of the child. And for women who are having two children and expecting after them, then the duration of paid maternity leave will be 12 weeks (i.e., six weeks before and six weeks after the delivery).

Maternity leave for commissioning and adoptive women: Leave of 12 weeks will be available to mothers adopting a child below the age of 3 months from the date of adoption; in case of “commissioning mothers.” the same provisions have been made.

Option to Work from Home: The amended Act has also introduced a provision relating to "work from home" for women; this can be utilised after the 26 weeks' leave. Women employees may be able to take this benefit on the terms that are mutually agreed with the employer depending upon the nature of work.

Creche facility: The Act makes creche facility mandatory for every establishment which is employing 50 or more. Women employees shall be permitted to visit the creche four times during the day which includes rest intervals.
It is mandatory for employers to educate women about the maternity benefits available to them at the time of their appointment.

Legal Obligation under Maternity Act: No employer can unknowingly employ a woman in the establishment for six weeks following the date of delivery or date of miscarriage. No woman must work in any establishment during the six weeks immediately the day following her delivery. It is unlawful for her employer to discharge or dismiss her on account of such absence. In case of any Gross misconduct, the employer in writing can communicate about depriving such benefit. Within 60 days from the date of deprivation of maternity benefit, any Women can appeal to the authority prescribed by law.

Duties and Penalty for Employer: Record Management: Every employer needs to prepare records or registers. The penalty for Contravention of Act is Imprisonment with a minimum period of 3 months to maximum 01 years and Fine from Rs.2000 to Rs. 5000.

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27 Apr 2019

Reasons Why Cheques Dishonoured

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  • Dishonour of Cheques
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A banker can stop the payment of a customer and can dishonour the cheque. The following are the main reasons and circumstances in which the bank can dishonour the Cheque of the customers.

We often issue Cheque to make payment as it is a convenient and less risky to make payment through Cheque. You write the date, the amount in figures and words, name of the party to whom payment needs to transfer along with signatures. It appears to be easy, but we often make some common mistakes due to which Cheque is dishonoured by the bank or return unpaid.

Let's find some common reasons or mistakes to be avoided while writing or issuing Cheque. When Cheque is given for payment, the bank should make the payment to the payee as specified in the Cheque if everything is in order. In case the bank refuses to make payment of amount then Cheque is said to be dishonoured. Bank returns the Cheque to Payee with a memo specifying the reason for dishonour.

Before we go through the reasons for the Dishonour of Cheque, let's see what needs to write Cheque;
• Name of the Person to whom payment is to be done, i.e. Payee Name
• The amount in Figures and Words 
• Date of depositing the cheque
• Drawee Signature

If one has written everything as mentioned above in order, then your cheque is dishonoured due to any one of the following reason.

Funds Insufficient/Exceeds Arrangement – Prevalent reason due to which bank return the cheque unpaid. Sometimes, you write the cheque against salary which is to be credited on a particular date. In case salary is not credited or get late then the Cheque is presented for payment, Bank will return it unpaid. So, confirm or maintain bank balance in your account before issuing. In the case of the overdraft account, the cheque is dishonoured with the reason "Exceeds Arrangement".

The amount in words and figures – Bank dishonour the Cheque if amount written in words and numbers are different. In such a case, the bank can terminate the payment of the cheque and dishonour it.

• Payee Name – In case the payee name is absent then the bank can dishonour the Cheque with the reason "Payee Name Required".

• Signature Differ – Sometimes you forget your signature, which you did while opening the account. The Bank will dishonour the Cheque if the (drawer) signature doesn't match with specimen available in a bank record.

• Alterations/Overwriting – The Bank will not honour the Cheque if you overwrote/altered something on it. It is advisable to avoid overwriting and alternation.

Post Dated Cheque – When date written on Cheque is yet to come is called post dated Cheque. Suppose, Date written on Cheque is 04th May 2019, But you present it for payment on 1st May 2019. Bank will dishonour the Cheque and return it unpaid as the bank cannot honour it before the date mentioned on Cheque.

• Instrument Out-Dated/Stale Cheque – A Cheque is valid for three months from the date written on Cheque. If a Cheque is presented after three months of the date mentioned, then it is called Stale Cheque. Bank cannot make the payment of Stale Cheque and return it unpaid with the reason "Stale Cheque or Instrument".

Payment Stopped by Drawer – Mostly drawer stop the payment in case if the cheque is lost or stolen. In this case, Bank dishonours the Cheque and return it unpaid with the reason that payment is stopped by the drawer.

• Dormant / Inoperative Account – If the account is dormant or inoperative, then the bank can dishonour the Cheque.

• Account Number – If the account number is not mentioned in Cheque clearly or it is absent. Then bank dishonours the Cheque.

• For No Funds – In case there is no credit balance in customer's account, but he has drawn a cheque to the bank, the bank must dishonour the cheque. 

• Typed Cheque – As a general rule if the customer draws a typed Cheque because it is easily altered, then the bank can refuse to make payment.

Same Branch – The same bank branch can make payment of a cheque where the customer has his account. If a customer presents a Cheque for payment at a branch where he has no account, the bank will not make payment of the Cheque.

• Alteration Or Change – when it is seen that the customer has altered the figures, date, name, etc. after drawing the Cheque, but has not legally attested it, the banker will dishonour the cheque.

• Joint Account – Some customers have a joint account, and the signature of all the persons is needed on the Cheque, and if the Cheque has not been signed by all jointly, the bank will not make the payment.

• When the Payment Is Stopped – In case the drawer asks the bank to stop payment and not to pay for a cheque issued, in that case, the Cheque will not be honoured by the bank.

For Frozen Account – In case the government or court order that the account of a particular person has to be frozen, in such case, the bank will dishonour all the cheques bearing that account number.

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27 Apr 2019

Guardian and Ward Act In India

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  • Family Lawyers
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A guardian is someone who gets appointed concerning taking care of the person or property of that person or both.  The protected individual, known as the ward, is considered legally incompetent of acting for himself or herself; examples are a child or individuals suffering from a severe illness. 

The question of guardianship most commonly arises to children, where there is parental abuse, negligence, drug dependency, or divorce (in which case is reposing custody in one parent, or the other generally becomes the issue).

What is the Minor, Guardian, and ward defines:-

- "Minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is to be deemed not to have attained his majority. 
- "Guardian" means minor for whose person or property or both there is a guardian. 
- "Ward" means a minor for whose person or property or both there is a guardian.

Where can you file the case?

For the Guardianship of minor, the case should be filed before the District Court within the jurisdiction where the minor resides, or the place where the child has its property.
If the case of guardianship of the property of a minor is filed before the district court, not within the jurisdiction where the minor resides, the court has a right to return the application or can dispose of the same. The case should always be filed within the jurisdiction.

The Guardians and Wards Act, 1890 is a law to replace the other rules relating the same. It is the only non-religious universal law for the guardianship of a child, and It applies to all children despite any creed or race. 

As per the act, a minor is any person who has not completed 18 years of his age. The court and the appointed authority can decide the guardian of a child by selecting the one. No order can be passed without making an application. The application contains all information about the child/minor and reasons for guardianship. Once the court admits the form, then the hearing date is set by the court. The court will hear evidence before making a decision. A minor and his property may have more than one guardian. The court must work in the interest of the minor, taking into consideration the age, sex, religion, character of the guardian, the death of the parent(s) and also the relation of the guardian with a child. The court always considers the preference of the minor. 

The collector of the district within the jurisdiction of minor resides can appoint the guardian of the child. Guardians are not allowed to make a profit, but they can receive remuneration as the court seems fit. One minor cannot be deemed as a guardian of another. A guardian is responsible for the education, health and support of the ward.

Guardians who intend to move the child out of the court's jurisdiction may only do so with the permission of the court. Failure to get approval is a punishable offence. A guardian of property is not allowed to mortgage or sell the property of a ward without the permission of minor or the court who must act in the interest of the child.

The guardian must submit the list of ward's immovable and movable property to the court.  The court can allow the guardian of minor to use funds from the property or use the whole property for the maintenance of the minor. A court can remove a guardian for abusing the trust of the court and not performing his role as a proper guardian. A person who intends not to act as a guardian of a minor can apply to the court for the discharge of his duty. 

There are punishable offences if the guardian fails to produce the property of the ward, he fails to produce the child before the court when ordered and fails to produce an account of the property of the minor. Reports submitted by the subordinates of court or collector can be considered as evidence. Such orders can be appealed in a High Court.

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26 Apr 2019

Medical Negligence In India

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  • Medical Negligence
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Indian Society is experiencing a growing awareness recently regarding the patient’s rights. Hospitals are increasingly facing complaints regarding the facilities and the correctness in their diagnosis methods. Since the Consumer Protection Act, 1986, has come into force some patients have filed legal cases against doctors, establishing that the doctors were negligent in providing medical service, and have thus claimed and received compensation. Therefore, a number of legal decisions have been made on what amounts to negligence and what is required to prove it.

Medical negligence is a blend of two words. The second word describes the meaning, though the meaning of negligence is an act carelessly done by a person resulting in likely damages to the others. Negligence is an offence under the law of tort, Indian Penal Code, Indian Contracts Act, Consumer Protection Act and so on. Medical negligence is basically the misconduct by the medical practitioner by not providing services and resulting in a breach of their duties towards their patients. Many deaths are caused or have resulted in some adverse effect on the patient’s health due to medical negligence.

Negligence is the violation of a legal duty to care. It means carelessness in which the law mandates carefulness. Breach of this such duty gives the patient the right to initiate action against this negligence.

The ingredients of negligence are as follows:
- The defendant has a duty of care to the plaintiff
- The defendant has violated this duty of care.
- And the plaintiff has suffered an injury due to his breach by the defendant.
in case of medical negligence usually, the doctor is the defendant. Negligence is a theory of liability concerning allegations of medical malpractice, making this type of litigation part of the Tort Law.

Negligence under the Law of TortA tort can be defined as a civil wrong, for which action can be initiated for unliquidated damages. In certain cases, there can be concurrent liability under tort and contract. For instance, if there is a contract existing between a patient and a doctor, then the doctor, for his negligence, will be liable under the contract.

Negligence under Civil LawNegligence is the breach of a duty to care. It means carelessness in which the law mandates carefulness. Breach of such duty gives the patient the right to initiate action against this negligence.

In India, Doctors may be held liable for their services individually or vicariously unless they come within the exceptions specified. Doctors aren't responsible for their services separately or vicariously if they don't charge fees. Therefore free treatment/diagnosis at a non-government hospital, health centre, governmental hospital, dispensary or nursing home would not be considered a “service” as defined in Section 2 (1) of the Consumer Protection Act, 1986.

Nevertheless, no human being is perfect, and even the most renowned specialist can make a mistake in detecting or diagnosing the disease. A doctor can be held responsible for negligence only if one can prove that the doctor is guilty of failure, that no other doctor with ordinary skills would be guilty of.

Doctors must use an ordinary degree of skill. However, they cannot give a warranty for their expertise or a guarantee of cure of the disease. If the doctor has chosen the right way of treatment, if she/ he is skilled and has worked with a method and manner best suited to the patient, she/ he cannot be blamed for negligence if the patient is not cured.

Before considering the certain liability conditions must be satisfied. The accused person must have omitted or committed; this act must be a breach of the person’s duty; and which must have caused harm to another person. The complainant must be able to prove the allegation levelled on the doctor by the best evidence in medical science and by demonstrating expert opinion.

Negligence under Criminal LawSection 304A of the Indian Penal Code, 1860 says that whoever causes the death of a person by a rash or negligence not amounting to culpable homicide will be punished with imprisonment for two years, or with a fine, or with both.

In Poonam Verma Vs Ashwin Patel the Supreme Court distinguished between negligence, rashness, and recklessness. A negligent person is one who inadvertently commits an act of omission and violates an affirmative duty. A person who is rash knows the consequences but foolishly thinks that they will not occur as a result of her/ his act. A reckless person knows the effects but does not care whether or not they result from her/ his action. Any conduct falling short of recklessness and deliberate wrongdoing should not be the subject of criminal liability.

Thus a doctor cannot be held criminally responsible for a patient’s death unless it is shown that she/ he was negligent or incompetent, with such disregard for the life and safety of his patient that it amounted to a crime against the State.

Sections 80 and 88 of the Indian Penal Code contain defence for doctors accused of criminal liability. Under Section 80 (accident in doing a lawful act) nothing is an offence that is done by accident or misfortune and without criminal motive or knowledge in the doing of a legal act in a lawful mode by lawful means and with proper care and caution. According to Section 88, a person cannot be accused of an offence if she/ he performs an act in good faith for the other’s benefit, does not intend to cause harm even if there is a risk, and the patient has explicitly or implicitly given consent.

The burden of proof and chances of error: The burden of proof in case of negligence, carelessness, or insufficiency lies with the complainant. The law requires the best evidence, to support the allegation against a doctor, the patient must be able to establish her/ his claim against the doctor in case of negligence, carelessness, or insufficiency.

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