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DIVORCE NOTICE:-

Divorce among Hindus, Buddhists, Sikhs, and Jains are governed by the Hindu Marriage Act, 1955, Muslims by the Dissolution of Muslim Marriages Act, 1939, Parsis by the Parsi Marriage and Divorce Act, 1936 and Christians by the Indian Divorce Act, 1869. All civil and inter-community marriages are governed by the Special Marriage Act, 1956 respectively.

HINDU MARRIAGE ACT,1955

Under the Hindu Marriage Act, 1955 there are two sections for Divorce.
  • Mutual Divorce U/s .13 (B)
  • Divorce U/s. 13
The Notice regarding divorce is the way where both the parties have one chance of reconciliation, or come in front and talk on issues and try to solve them.

Mutual Divorce under Section 13(B) of the Hindu Marriage Act: Under Section 13-B of the Hindu Marriage Act, 1955, the parties can seek divorce by mutual consent by filing a petition before the court. Mutual Consent Divorce is the simplest way of coming out of the marriage and dissolve it legally. Mutual consent means that both the parties (i.e husband and wife) are agreed for a peaceful separation.

Divorce under Section 13 of the Hindu Marriage Act: Under this section, there are various grounds i.e. adultery, cruelty, deserting the other party for 2 years, conversion to another religion, unsound mind, mental disorder, etc. to file divorce.

Procedure for filing the divorce is that you may send a notice to the other party, stating the reason to file a divorce petition, asking another party whether they are ready to reconcile the issues. This notice should mention waiting period of 15 or 30 days in order to receive the revert from the other party. After the completion of the waiting period, if other party refuses to reply or is not replying then you can file a Civil case against him/her.

There is no compulsion to send a Legal Notice to the other party, you can directly file a case against him/her. The jurisdiction to file divorce may be the place the party resides, or they lastly resided together.

SPECIAL MARRIAGE ACT, 1954

Under the Special Marriage Act, 1954 there are two sections for Divorce.
  • Mutual Divorce U/s .28
  • Divorce U/s. 27
The Special Marriage Act, 1954 is an Act of the Parliament Of India enacted to provide a special form of marriage for the people of India and all Indian nationals in foreign countries, irrespective of the religion or faith followed by either party. The Act originated from a piece of legislation proposed during the late 19th century. Marriages solemnized under the Special Marriage Act are not governed by personal laws. It can apply in inter-caste and inter-religion marriages.

Now a day’s youth generation was getting married with their own choice and they prefer who has a better compatibility with them, rather than marrying someone who belongs to their caste or their religion.

All religions are equal and marriage amongst it should not be a big deal. Caste or religion is conferred on us by birth and not by choice. Thus, the Special Marriage Act is a special legislation that was enacted to provide for a special form of marriage, by registration where the parties to the marriage are not required to renounce his/her religion.

Under this Act, if any spouse wants to take a divorce she/he can file a case at any District Court. Explained in detail as below:

Every petition under Chapter V or Chapter VI shall be presented to the district court within the local limits of whose original civil jurisdiction.

  • (i) the marriage was solemnized; or
  • (ii) the respondent, at the time of the presentation of the petition, resides; or
  • (iii) the parties to the marriage last resided together; or 2[(iii a) in case the wife is the petitioner, where she is residing on the date of presentation of the petition; or]
  • (iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years by those who would naturally have heard of him if he were alive.]


(2) Without prejudice to any jurisdiction exercisable by the court under sub-section (1), the district court may, by virtue of this sub-section, entertain a petition by a wife domiciled in the territories to which this Act extends for nullity of marriage or for divorce if she is resident in the said territories and has been ordinarily resident therein for a period of three years immediately preceding the presentation of the petition and the husband is not resident in the said territories.

Before filing case, one legal notice of waiting period for 15 or 30 days be dispatched to the other party, in order to notify him/her whether he/she wants a divorce or is intending to go for reconciliation. If another party has replied within and he/she is ready for divorce then they can go for the Mutual Divorce. In case there are clashes in resolving problems and disputes between both, so you can file divorce on followings ground i.e. Adultery, Cruelty, desertion, imprisonment for seven years and more or unsound mind, or mental disorder respectively.


Tenant Eviction Notice

Tenant can be evicted from the premises after considering the rental Laws of the India, the conditions prescribed in the rent agreement and valid reasons of the eviction. Tenant Eviction Notice is a way to remove the tenant from rented premise of landlord, before filing lawsuit.The landlord must give reasonable time to tenant to vacate the rented property by serving a written notice not less than 30 days or of a period as mentioned in the rent agreement.Notice shall contain valid reasons of eviction and it is advisable to get it drafted through expert property lawyer. It should contain the time and date by which tenant has to vacate the property.

The landlord can file the lawsuit in appropriate jurisdiction of court, in case of refusal of notice or not satisfactory reply from tenant.After filing the case court may send the eviction notice to the tenant to vacate rental property. In the majority of cases, the tenants leave the rented premises after receiving a legal notice from the court.

Always remember that, don’ttakematters into your “Hand”

Without help of court and police, evictions are illegal in every state. Even if tenant is liar, deadbeat and causing physical damage to landlord’s property, landlords cannot do any of the following actions without court permission:-
  • Removing the tenant’s stuff from the property.
  • Removing the tenant or his family members.
  • Changing the locks or lock-out the tenant.
  • Shutting off essential utilities (electric, gas, water, etc)
  • Unleashing a family of skunks in the tenant’s basement (aka, harassment)

Eviction Notice Procedure:-

The eviction notice,considered valid only when it contains all the necessary requirements. It should indicate tenant name, date, reason and requires a response as per mention in notice.Eviction notice process also depends upon court jurisdiction and the various situations including time taken by the tenant for reply.

Types of Eviction Notices:-

  1. Notice to Pay Rent or Quit:- if tenant is not paying rent then landlord can give 10 to 15 days notice period. Law suit can be filed in case tenant is not paying rent even after receiving the said notice.
  2. Notice to Correct a Violation of the Lease or Quit:-if tenant violates the lease and rental agreement, landlord can give notice to the tenant with fix reasonable time to fix the violation. In case of failure by tenant Lawsuit can be filed by the landlord.
  3. Notice to Quit:-In this case landlord gives a simple notice to tenant to vacate the premises, failing which the landlord can move to the court with Lawsuit.

As mentioned above in detail, in case you are facing any issue with the tenant, legal notice is the option to be exercised before approaching the Court. Legato helps you in connecting with experienced lawyers who can assist you in drafting legal notice and even in filing lawsuit as a next step.


Refund of Security Deposit

In India most probably peoples reside on a rental basis. Because of exorbitant rates of properties in metro cities like Mumbai, many people are in the form of traveller workers. Living as a tenant can be a comfortable deal but sometimes there are cases where the tenant has to face rental issues and other related problems like getting an unwarranted eviction notice, or rude behaviour and also Refund of Security. So, let us understand the steps for a refund of security deposit from the landlord.

If you want to vacate the rented premises or to the shift any other place, you have to inform the landlord before one month about vacating the premises and ask refund of security deposit. In case the landlord is not ready to return the security deposit, always give your landlord 30 days written notice when you decide to move and ask him regarding refund of security deposit along with a photocopy of security deposit receipt through Registered post Ad/ Speed Post via email or Courier. After receiving notice, if the landlord does not reply positively then you can file Civil Suit for money inform of deposit and a criminal case for Cheating and Criminal breach of trust Or Continue to live the premises without paying rent till the security money is adjusted.

CONTENTS THAT’S NEEDS TO BE CHECK

Provide your Forwarding Address to Landlord
Notify your landlord of your forwarding address in writing, regardless if he asks. In many states, if a renter doesn't provide a forwarding address then, landlords aren't responsible for the same deposit refunds.

Before Moving to check the list of Premise
Before moving from rented premise prepare the checklist of the things, that helps you to what charges if any, you'll be responsible for. Bring your move-in checklist for cross-referencing. If you disagree with damages you can ask the landlord for the same.

If you are living group/ friends
Most leases with multiple renters hold each individual fully accountable for the group as a whole. That means each renter is responsible for the full amount of the rent and any damages, regardless of who caused it. So make sure you're not stuck with the bill for your roommate's wild party that resulted in three holes in the wall. In some states, the security deposit is refunded in equal portions, regardless of who wrote the original check.

Charges?
Typically, damage charges can't exceed actual repair costs. Fees for items like carpet, which depreciate in value over time, should take normal wear and tear into account.

When you will get a security deposit?
(1)After completion of agreement period or when you vacate the rented premises.
(2) You'll receive a letter with itemized deductions that explains why some or all of your deposit is not being returned.

No Letter or Deposit?
What if the allotted time passes and you never receive a letter or a refund? Don't worry. These are steps in place to protect your rights.

  • A form of Request for Return of Security Deposit along with a photocopy, this is usually available from a local tenants association.
  • Send it to your former landlord via certified mail with a request for return receipt.
  • Keep the return receipt.
  • Wait seven days (from the date of receipt) for a response.

If your landlord doesn't refund the deposit after the seven-day notice, you can sue him in small claims court. If your landlord sends a letter on time saying he is withholding some or all of your deposit, but you think the amount is too high, you can still sue him in small claims court.


Consumer Protection

Consumer Protection is always been very evolving sector due to increase in consumerism. In this outlook of business competition, the consumer is and will always be the king. In this scenario, it is very important to understand your rights as a consumer under the Laws of the Land.

In 1986, the Consumer Protection Act was passed for the better protection of the interest of consumers. It is the first and the only Act of its kind in India, which has enabled ordinary consumers to secure less expensive and often speedy redressal of their grievances. The Act provides for consumer protection councils at district (district forums), state (state consumer redressal commissions) and centre (centre consumer redressal commissions) level.

Section 7 of the Consumer Protection Act, 1986 defines the word “CONSUMER”.It regulates the relationship between individual consumers and the business that sell or buy or avail, goods and Services.The act provides for the path of preventing consumers from frauds and scams of service and sales contracts, eligible fraud, bill collector regulation, pricing, utility turnoffs, consolidation, personal loans that may lead to bankruptcy. Following are the rights to the consumers, as provided in the Act.

  • Right to Safety
  • Right to be Informed
  • Right to Choose
  • Right to be Heard
  • Right to be Seek Redressal
  • Right to Education

SECTORAL LAWS PROTECTING CONSUMERS IN INDIA

Besides the Consumer Protection Act 1986, various laws and Regulations in India protect the interests of consumers, some of which are:
  1. The Bureau of Indian Standard Act 2016: This Act contains provisions for establishing voluntary standards to bring under compulsory certification regime any article, process or service which it considers necessary from health, safety, environment, prevention of deceptive practices, security etc. point of view. Some provisions of this act have also been made for making hallmarking of the precious metal articles mandatory.
  2. The Legal Metrology Act 2009: The Act helps to weight and measure that is used for trade or commerce or for protection of human health and safety.
  3. The Essential Commodities Act 1955: The Act empowers the Government to regulate prices, production, supply, distribution etc. of essential commodities for maintaining or increasing their supplies and for securing their equitable distribution and availability at fair prices.
  4. The Food Safety and Standards Act, 2006: The Act envisages regulation of the manufacture, storage, distribution, sale and import of food to ensure availability of safe and wholesome food for human consumption and for consumers connected therewith.
  5. The Contract Act 1872: The Act binds people on their promises made in a contract. The Act also provides remedies available to parties in case of breach of contract.
  6. The Sale of Goods Act 1930: The act provides safeguard and relief to customers in case goods that are not complying with the expressed conditions and warranty.
  7. The Competition Act, 2002: The Act governs Indian competition law. It replaced the Monopolies and Restrictive Trade Practices Act, 1969. Under this legislation, the Competition Commission of India was established to prevent the activities that have an adverse effect on competition in India.
  8. The Drugs and Cosmetics Act, 1940: The Act regulates the import, manufacture and distribution of drugs in India. The primary objective of the act is to ensure that the drugs and cosmetics sold in India are safe, effective and conform to the state quality standards.
  • The Agriculture Produce Act, 1937 provides grade standards for agricultural commodities and livestock products. The quality mark provided under the act is known as AGMARK-Agricultural Marketing.
  • The Consumer Guarantees Act, states that when a business supplies you with consumer products and any problem occurs, you can ask them to fix the problem under the Consumer Guarantees Act (CGA). This act applies for auctions, online sales, or an agent or broker who sells on behalf of someone as well. An online trader has to make it clear if they are in the trade.

In India, the rights of consumer protection are specified in the Consumer Protection Act, 1986. There are Separate Consumer Dispute Redress Forums set up throughout India in each and every district level in which a consumer can file his complaint in simple format along with nominal court fees and his complaint will be decided by the Presiding Officer of the District. The complaint can be filed by consumers for goods as well as of the services. An appeal could be filed to the State Consumer Disputes Redress Commissions and after that to the National Consumer Disputes Redressal Commission (NCDRC).

Under the Consumer Protection Act, 1986, in case Consumer is not getting any refund, clarification, claims or good services, then he has a right to knock the door of the redressal forums. Consumers can file Complaint within 2 years from the date of action arise. In case of delay, he has to give a specific reason for it. If the Judge i.e the President and the members get satisfied with the reason for filing the complaint then and only then the matter is admitted. The consumer has a right to file the Complaint in a District Forum within the local limits were the cause of action arose or at the place of a branch of the Opposite party.


CHEQUE BOUNCE NOTICE

Cheque bounce is very much common term we hear or experience in day to day life. As word suggests it is dishonor of the cheque issued. Cheque bouncing cases comes under Section 138 of the Negotiable Instrument Act, 1881 (the Act) and creates criminal liability, punishable with fine and imprisonment under the Act and under Indian Penal Code, 1960.

Meaning of Cheque:-

‘Section 6’ of said Act, says that, “A "cheque" is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand.”

Meaning of Cheque Bounce Notice:-

Cheque bounce notice is only intimation to the issuer that legal action will be taken by the cheque beneficiary in case of non-payment of cheque amount on an immediate basis. Cheque bounce is a condition arising due to dishonor of the cheque issued. Sending notice to the person issuing cheque, for the dishonor of said cheque is the first and foremost step to initiate legal case under the Act. Notice provides chance to the issuer of the cheque to make the payment good and so as to avoid the law suit. Recently, Parliament has passed The Negotiable Instruments (Amendment) Bill, for quick prosecution in case of cheque bounce. Under this, once lawsuit is filed, an order may be passed by the Court asking the payment of interim compensation to the complainant by the defaulter.

Things to be looked at while issuing Cheque Bounce Notice:-

  1. It must be in reference to Section 138 of the Negotiable Instruments Act, 1881.
  2. In case the defaulter if the Company then notice should give reference to Section 138 along with section 141 of the Act.
  3. Information regarding the cheque presentation.
  4. Reason for non-realization of payment.
  5. Information regarding the request made to the cheque issuer to make payment on an immediate basis.
  6. A notice must be sent within 30 days of return of cheque to the cheque issuer.

Methos of sending Legal Notice:-

  • It is always advisable to draft and send the notice by taking assistance of the legal professional so as to avoid any future issues, which may be caused due to lack of substantial content as per legal requirements. Generally notice needs to be on a plain paper or on the letterhead of the business/lawyers. Notice shall be duly signed and also sealed, in case sender is the Company. It needs to be dispatched at the address of the cheque issuer through Registered post AD/ Speed post/ courier . Sending notice through email is allowed if the sender is business entity. Cheque beneficiary/ Complainant can retain one copy (called as a OC Copy) of the notice with himself. Legal notice shall contain following details and information.
  • Name of the cheque beneficiary;
  • Name and address of the check issuer/s;
  • Cheque retun date;
  • Reasons for cheque return;
  • Request made to check issuer for immediate alternate payment; and
  • That it is issued as per the Sec. 138 of Negotiable Instrument Act
  • Reference of Section 141 also needs to be provided in case notice being issued to non-individuls

When Cheque Bounce Notice is Issued and Next Procedure?

  • The first condition is that cheque must be towards the liability.
  • Within a period of 6 months of validity of cheque, it should be presented by the beneficiary.
  • Due to insufficient funds/Stop Payment the bank must have returned the cheque.
  • Within 30 days of the receipt of information from the bank regarding the insufficiency of funds, demand is raised by the payee by giving a written cheque bounce notice for the payment.
  • Within 15 days of the receipt of the written notice of cheque bounce, drawer fails to make payment of the said amount then payee can file a complaint before a magistrate within 30 days.
  • A complaint has to be filed in such a state where the bank is situated.

In case, you forgot to send the legal notice within 30 days from the date when bank memo received at that time there is only one option, if the cheque is still within its validity period, he can again present the cheque to the bank for clearing the amount. If the cheque is returned unpaid for the second time, then this time he can issue a legal notice within 30 days from the date of the cheque being returned unpaid for the second time. [However, if the validity period of the cheque is already over, then this option cannot be exercised.


Labour and Services in India

In India, there are different types of Act which are governed by state and central to protect and provide all facilities to the labourers. It is safeguarding the interest of workers as part of the fundamental rights of the constitution of India. Indian labour law makes a distinction between people who work in "organized" sectors and people working in "unorganized sectors". People who do not fall within these sectors, the ordinary Law of contract applies. The working people and their organizations include trade unions and employee unions, enforced by government agencies.

Labour is the amount of physical, mental and social effort used to produce goods and services in an economy. It supplies the expertise, manpower, and service needed to turn raw materials into finished products and services

The labour law is reflective of various struggles in the society, including employers cost capabilities, employees demands, health safety conditions, political pressures during a given point of time. Following are the few points:-

  • Working hours per day and week.
  • Guidelines for spread-over, rest interval, opening and closing hours, closed days, national and religious holidays, overtime work.
  • Employment of children, young persons and women. Rules for annual leaves, maternity leaves, sick leaves and casual leaves, etc.
  • Rules for employment and termination of service.
  • Unemployment
  • The minimum age for employment
  • Night Shifts for Men’s and Women’s.
  • Maternity production

Domestic workers in India

Child labour in India is prohibited by the Constitution, article 24, in factories, mines and hazardous employment, and that under article 21 the state should provide free and compulsory education up to a child is aged 14.

Sexual Harassment at the Workplace (Prohibition, Prevention and Redressed) Act, 2013

The Sexual Harassment at Workplace (Prohibition, Prevention and Redressal) Act, 2013 (SHW Act) was enacted by the Parliament to provide protection against sexual harassment of women at workplace and prevention and redressal of complaints of sexual harassment and for matters connected therewith. The SHW Act makes it mandatory for every organization having 10 employees and more to constitute an Internal Complaints Committee (ICC) to entertain complaints that may be made by aggrieved women.

The SHW Act also provides that the aggrieved women may in writing make a complaint of sexual harassment as the case may be within a period of three months from the date of occurrence of such incident. Further, in a case where the aggrieved woman is unable to make a complaint on account of her physical incapacity or Death, a complaint may be filed inter alia by her relative or legal heirs.


TRADEMARK AND COPYRIGHT

Protection of Intellectual property repeatedly goes un-noticed by the business owners. Very few business or start-up owners understand the importance of safeguarding their Intellectual Property in long run. It is therefore highly very important for a business owner, a startup owner, a creative person or an inventor to have clarity about the concepts of Trademark, Copyright.

Trademark: A trademark is a symbol, logo, design, word, phrase, colour, sound or a combination of these which is used for the purpose of trading goods or providing services. It indicates the source of goods and services and distinguishes them from the goods and services of others. It provides individuality of rights to the use of a trademark in relation to the product or service

Procedure for Registration of Trademark

Documents can be filed by a person or through his duly authorized agent to the appropriate office of the trademark registry. The Registry must be in the territorial jurisdiction where the business is located. Documents must be a filed at the office personally through registered post Ad or by submitting Documents on their official website.

Documents must be a filed in Hindi or English, it must be handwritten or typed. It should contain the detailed information/contents of the business i.e. Name, the address for service of person, details, and grounds, etc.

Types of Trademark

  • Product Trademark
  • Service Trademark
  • Collection Trademark
  • Certification Trademark

Types of Trademark

Suit for infringement/breach/violation, etc., to be instituted before District Court.—
(1) No suit—
  • for the infringement of a registered trademark; or
  • relating to any right in a registered trademark; or
  • for passing off arising out of the use by the defendant of any trademark which is identical with or deceptively similar to the plaintiff's trademark, whether registered or unregistered, shall be instituted in any court inferior to a District Court having jurisdiction to try the suit.

(2) For the purpose of clauses (a) and (b) of sub-section (1), a "District Court having jurisdiction" shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or any other law for the time being in force, include a District Court within the local limits of whose jurisdiction, at the time of the institution of the suit or another proceeding, the person instituting the suit or proceeding, or, where there are more than one such persons any of them, actually and voluntarily resides or carries on business or personally works for gain. Explanation —For the purposes of sub-section (2), "person" includes the registered proprietor and the registered user.

Copyright: Copyright is a right given to the creators of literary, dramatic, musical and a number of other works of the intellect. It normally means that only the creator has the right to make copies of his or her works or prevents others from making copies. The basic idea behind such protection is the premise that innovations require incentives. Copyright recognizes this need and gives it a legal sanction. Copyright protects all of them.

Section 62 of the Copyright Act, 1957:

Jurisdiction of court over matters arising under this Chapter.—

(1) Every suit or other civil proceeding arising under this Chapter in respect of the infringement of copyright in any work or the infringement of any other right conferred by this Act shall be instituted in the district court having jurisdiction.

(2) For the purpose of sub-section (1), a "district court having jurisdiction" shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, include a district court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or other proceeding or, where there are more than one such persons, any of them actually and voluntarily resides or carries on business or personally works for gain. The Copyright Act, 1957 gives the rights, procedure, authorities established and relief modes under copyrights. It lays down a definition of copyright and states the types of works protected under this law i.e. literary works, dramatic works, artistic works, musical works, cinematograph films, and sound recordings.


Corporate

The definition of corporate is something related to a business group or a business that operates as a single legal unit.

A corporation is a form of organization that has an existence independent of its owners. It has powers and liabilities of the separate and individual form of its owners. They can be organized for many purposes and can come in many ways.

Corporate Structure:-

  • How a business is organized to accomplish its objectives.
  • It determines the ownership, control, and authority of the organization.
  • There are three group of characteristics are represented: shareholders, directors, and officers.
  • Ownership belongs to the shareholders.
  • Control is exercised by the board of directors on behalf of the shareholders, while authority over the day-to-day operations is vested in the officers.

Limited Liability:-

If the corporation cannot pay debts, in this case, company assets must be seized and sold. But although you can lose your investment, the creditors cannot attach your personal assets (such as cars, houses, or bank accounts) to satisfy their claims.

Personal liability may also be imposed if the corporation does not comply with required legal formalities or fails to keep proper records.

Forming a Corporation:-

If you want to form a corporation, it is necessary to obtain a state charter. Here are some things to do before you apply:
  • Choose the state in which you want to incorporate, this will be your head office or where it conducts most of its business.
  • Choose and decide the Officers.
  • Although many states require at least two or three parties to form a corporation, they need not all be the shareholders.
  • Friends or family members to serve as the initial officers.
  • If you are the sole shareholder, you alone will control the corporation's activities.

Shareholders:-

In a corporation, a group of shareholders has shared ownership, represented by holding shares of common stock. Most business corporations are established with the goal of providing a return for its shareholders in the form of profits. Shareholders have the right to share in the profits of the business but are not personally liable for the company's debts. This concept is known as limited liability and is one of the main advantages of the corporation in a form of doing business.

Board of Directors:-

The board of directors is responsible for overseeing and directing the business of the corporation in the best interest of the shareholders. The key point here is an oversight; the board is not expected to actually operate the business. Rather, its purpose is to oversee operations, approve major plans, and monitor financial performance. The board generally performs the following functions:
  • Select, evaluate, fix the compensation for, and, when necessary, replace the company's chief executive officer
  • Oversee the business operations to evaluate whether the business is being properly managed
  • Review and approve major corporate plans, financial objectives, annual budgets, and strategies
  • Review the adequacy of financial accounting, auditing, and other systems to comply with applicable law

The board of directors is generally comprised of three types of people. The chairman of the board is technically the leader of the corporation, responsible for running the board effectively.

To prevent the concentration of power and information in one or a few individuals, boards are advised to have a balance of executive and non-executive directors, some of whom are independent.

An executive director is also an executive of the company, such as a CEO or CFO. A non-executive director is not a part of management and is valued for external perspectives and unique expertise.

“Non-executive” directors should meet in private regularly, without the presence of “executive” directors, according to governance experts.

Employees must be appointing any of Director to fix their salary.

Profit and losses are not always fixed in the corporation as they are always fluctuating in nature. It mainly depends upon the share market.


STARTUP

There are no limits on who can become a great Business entrepreneur. You don't necessarily need a college degree, a bunch of money in the bank or even business experience to start something that could become the next major success. However, what you do need is a strong plan and the drive to see it through.

Things to remember and required to start a business/company.

1. Select a Name & Legal Structure:- There are 4 types of legal structure/organization, of which you can select any one of them.

  • Sole Proprietorship
  • Partnership
  • Limited Liability Company (LLC)
  • Corporation or S-Corporation

2. Start a Market Research:- Is anyone else already doing what you want to start doing? If not, is there a good reason why? Start researching on the thing what you have decided to start and collect the information, also contact the peoples who can help you in this matter.

3. Write your Business Plan:- A Business Plan is a written description of how your business will evolve and from when it starts to the finished product.

  • Title Page: Start with the name, the name of your business, which is harder than it sounds.
  • Executive Summary: This is a high-level summary of what the plan includes, often touching on the company description, the problem the business is solving, the solution and why now.
  • Business Description: What kind of business do you want to start? What does your industry look like? What will it look like in the future?
  • Market Strategies: Who is your target audience, and how can you best sell best to that market?
  • Competitive Analysis: What are the strengths and weakness of your competitors? How will you overcome them?
  • Design & Development Plan: What is your product or service and how will it develop? Then, create a budget for that product or service.
  • Operations & Management Plan: How does the business function on a daily basis?
  • Finance Factors: Where is the money coming from? When? How? What sort of projections should you create and what should you take into consideration?

Start learning as much as you can about the production, New thing, development of Busines/company, so you can improve the process and your hiring decisions as time goes along.

4. Obtain your Federal Employer Identification Number (FEIN): If you are set up as a Corporation, LLC or Partnership (or a sole proprietorship with employees), apply for a Federal Employer Identification Number (FEIN) from the IRS. A FEIN will be necessary to open a bank account or process payroll.

5. Open the Company Bank Account:- Select a bank and open the company bank account.

6. Lease Office, Warehouse or Retail Space (if not home-based):- Depending on your type of business (retail, office or warehouse), arrange for office space to be leased. Contacting a commercial realtor in your area can be helpful. Also, make sure to arrange for utilities and office furniture.

7. Obtain Licenses and Permits:-

  • A. Federal Permits: Depending on the type of business you are in, you may need a Federal license or permit.
  • B. State Licenses: Some occupations and professions require a State license or permit. Laws vary from State to State, however, if you are engaged in one of the following professions, you should contact the responsible state agency to determine the requirements for your business. State license and permits are based on the Products sold.
  • C. Sales Tax Permit: If your company sells physical products within the state where it does business, you may have to collect and pay sales tax. This is usually accomplished by obtaining a State Seller’s Permit or Resale Permit.
  • D. Business License: Most Cities or Countries requires you to obtain a business license, even if you operate a home-based business. This is a license granting the company the authority to do business in that city/county.

8. Hire Employees (if applicable):- If you intend to hire yourself or others as a full or part-time employee of your company, then you may have to register with the appropriate State Agencies or obtain Workers Compensation Insurance or Unemployment Insurance (or both).

9. Set up an Accounting and Record-Keeping System:- Setup your Accounting and Record-keeping system and learn about the taxes your new company is responsible for paying.
Company documents generally are required to be kept for 3 years, including a list of all owners and addresses, copies of all formation documents, financial statements, annual reports, amendments or changes to the company. All Tax and Corporate Filings should be kept for at least 3 years.

10. Obtain Business Insurance:- There are many types of insurance for businesses but they are usually packaged as “General Business Insurance” or a “Business Owner’s Policy”. This can cover everything from product liability to company vehicles. A decent policy can run as little as $300/year and offers a great extra level of protection.

11. Systemize and Organize:- Prepare the business as if someone needs to take it over and run it for you. These means have a method to process orders, pay bills, pay employees, pay taxes, maintain your permits, etc. Basically, try to make the operational aspect of the business as automated and efficient as possible so you can concentrate on growing your business.

12. Develop a Business Identity:- Order business cards, letterhead and promotional materials for your business. A professionally created logo can make your business look professional and established.

13. Get the Word Out (Marketing):- Now that you’ve set-up the company for success, you need to get the word out. Create a marketing plan for your products and services that target your ideal customer.


SUPREME COURT OF INDIA

Supreme Court of India is the highest court in the Republic of India; it is a ladder of the court in many legal jurisdictions. Supreme Court is also known as apex court and the highest or final court of appeal. The decisions of a supreme court are not subject to further review by any other court, but their Orders are full and final and duty bound to all lower courts and can only be modified in some cases like death sentence by the President of India. It has several jurisdictions namely Original, Appellate, and Advisory.

Supreme court typically functions as an Appellate Court, which means hearing appeals from decisions of lower trial courts, or from intermediate-level appellate courts. Supreme Court of India is located at New Delhi. The Supreme Court judges are appointed by the President of India, as per the guidelines of the Constitution Of India. These judges get retired at the age of 65. There are currently 24 judges including Chief Justice of India against a maximum possible strength of 31.

COURTS IN INDIA:-

  • Supreme Court
  • High Court of every state
  • City Civil and Session Court
  • Metropolitan Magistrate Court.
  • District Court.
  • Lower Courts

In India, the Supreme Court of India was created on January 28, 1950, after acceptance of the Constitution. Article 141 of the Constitution of India states that the law declared by the Supreme Court is to be binding on all Courts within the territory of India. It is the highest court in India and has ultimate judicial authority to interpret the Constitution and decide questions of national law (including local by-laws). The Supreme Court is also vested with the power of judicial review to ensure the application of the rule of law.

FACILITIES OF SUPREME COURT OF INDIA:-

  • Display Board
  • Judge’s Library
  • E- Committee
  • Law Officers
  • Mediation and Conciliation Committee
  • Legal Aids
  • Important Links
  • List of Advocates on record
  • Notice and circulations.
  • Museum
  • E- visitors pass

Note that within the constitutional structure of India, Jammu and Kashmir (J&K) has a special status vis-a-vis the other states of India. Article 370 of the Indian Constitution is an article that gives independent status to the state of Jammu and Kashmir. The article is drafted in Part XXI of the Constitution namely Temporary, Transitional and Special Provisions.

The principles applied by the Supreme Court in its decisions are binding upon all lower courts; this is intended to apply a uniform interpretation and implementation of the law. The decisions of the Supreme Court are not necessarily binding beyond the immediate case before it; however, in practice, the decisions of the Supreme Court usually provide a very strong precedent, or jurisprudence consternate, for both itself and all lower courts. It is also known as the court of records, i. e. all judgments are recorded and printed. These are cited in lower courts as case - law in various cases.


IMMIGRATION

Now a day’s India has been receiving large numbers of immigrants, mostly from the neighbouring countries and some from other parts of the world, and hence it needs to be seen as a major immigration country. The objective of immigration is gaining citizenship or nationality in a different country. In India, the law relating to citizenship or nationality is mainly governed by the provisions of the Constitution. The Constitution of India provides for a single citizenship for the entire country.

The provisions relating to citizenship are contained in Articles 5 to 11 in part II of the Constitution of India. Articles 5 to 9 of the Constitution determine the status of persons as Indian citizens at the Commencement of the Constitution. Article 10 provides for their continuance as such citizens subject to the provisions of any law that may be enacted by the legislature. Under article 11, the Constitution expressly saves the power of parliament “to make any provisions with respect to the acquisition and termination of citizenship and all other matters relating to citizenship”. Article 5 states that at the commencement of this constitution, every person belonging to the following categories, who has his domicile in the territory of India, shall be a citizen of India:

  1. Who was born in the territory of India; or
  2. Either of whose parents were born in the territory of India;
  3. Who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement

Article 6 of the Constitution provides for the rights of citizenship of certain persons who have migrated to India from Pakistan. Article 7 of the Constitution has made provisions for citizenship of certain migrants to Pakistan and Article 8 of the Constitution provides for the rights of citizenship of certain persons of Indian origin residing outside India

When a person enters a new country for the purpose of establishing permanent residence and ultimately gaining citizenship, it is called Immigration. Immigration Law constitutes a very complicated set of rules, regulations, and exceptions. But the residence of immigrants is subject to the conditions set by the Immigration Law. Every nation has specific laws to govern Immigration within it.

There are 86 Immigration Check Posts all over India, catering to international traffic. Out of these, 37 ICPs are functioning under the Bureau of Immigration, while the remaining are being managed by the concerned State Governments.

Immigration Law is the law which exclusively governs Immigration in a nation. For instance, a Government may in its discretion determine who it may allow in, and for how long, and who it may deport, the subject of course to internationally accepted basic human rights and principles.

The objective of immigration is gaining citizenship or nationality in a different country. In India, the law relating to citizenship or nationality is mainly governed by the provision of the Constitution. The Constitution of India provides for a single citizenship for the entire country.

So far as foreign citizens are concerned, Immigration Law is related to the Nationality Law of a national governing the matters of citizenship. International Law regulates Immigration Law concerning the citizens of a country. Hence, Immigration law refers to national government policies which control the phenomenon of immigration to their country.

What is Embarkation Form?

A departure card, also known as an outgoing passenger card or embarkation card, is a Legal Document used by immigration authorities to provide passenger identification and an effective record of a person’s departure from certain countries. It also serves as a declaration in relation to health and character requirements for non-citizens entering a particular country.

Typically the information on the departure card includes

  • Full name
  • Nationality
  • Passport number
  • Flight number or name of aircraft, ship or vehicle
  • Purpose of trip: vacation, education/study, visiting relatives/families, business, diplomatic
  • Duration of stay
  • Destination (next stop of disembarkation)
  • Address in country

VARIOUS ACTS GOVERNING IMMIGRATION INTO INDIA:

  • The Citizenship Act, 1955
  • The Registration of Foreigners Act, 1939
  • The Immigration (Carriers Liability) Act, 2000
  • The Passport (Entry into India) Act, 1920
  • The Passports Act, 1967
  • The Emigration Act, 1983
  • Foreign Contribution Regulation Act, 1976
  • The Foreigners Act, 1946
  • Foreigners Law (Application and Amendment) Act, 1962.


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Legal framework for the Elimination of violence against Women in India

The Indian Constitution grants equality to women by empowering the state to adopt measures of eliminating discrimination and violence against women in India. The constitutional articles that favour the growth of women help to neutralize the cumulative socio, economic and political disadvantages faced by them in our society. The fundamental rights ensure equality before the law, equal protection of the law, prohibits discrimination and also guarantee equality of opportunity to all citizens. The Constitution guarantees all citizens the fundamental right to live in peace and harmony through Article 12 to 35 of the constitution.

To mandate and uphold the constitutional provisions, the state has also enacted various legislative measures to ensure equal rights, to counter social discrimination and various other forms of violence. Women have been the victim of serious crimes such as Rape, Murder, Robbery, Cheating, etc. All the crimes which are directed against the women are characterized as ‘Crime against women’.

The Indian Penal Code includes the legal provision for several crimes against women in India. The crimes against women are classified into two categories namely:

  • Crimes under IPC
  • Crimes under special laws

 

A few changes in the legal system of India include provisions such as strict laws regarding sexual assault, creation of fast track courts for prosecution against severe crimes like rape, murder, etc. Recent cases of violence against women like Unnao rape case and Kathua Rape case have also led to certain legislative changes. Following are the laws that help to eliminate violence against women:

Dowry Prohibition Act, 1961: According to the provisions mentioned in the Act, taking or giving of dowry is to be penalized. Over the centuries, the lack of independence of women and taboo towards divorce resulted in bride burning for the demands of dowry at the time of marriage.

Indian Divorce Act, 1969: The act allows the dissolution of marriage, mutual consent, nullity marriage, restitution of conjugal rights if any violence is caused against the women after her marriage.

The Immoral Traffic (Prevention) Act, 1956: The act is enacted to combat trafficking and sexual exploitation of the women and girls for commercial purpose. The act provides the legal consequences of the criminal act which helps to eliminate the violence against women.

Protection of Women from Domestic Violence Act, 2005: The act provides the effective provisions for protecting women against violence occurring within the family and the matters connected therewith. The act helps to protect women from any sort of domestic violence against women.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013: The Act applies to all women employees to get protection against sexual harassment at workplace. The act came into effect after the landmark judgement of Vishaka &Orsv. The state of Rajasthan.

The Criminal Act (Amendment) Act, 2013: The act provides the amendment of the Indian Penal Code, Criminal Procedure Code and Evidence Act. The act works on the major amendments of the sections related to offences said in the above-mentioned acts. It recognizes the broad range of sexual crimes of which women fall victim. In Nirbhaya case, stalking was added as an offence under section 354 D of the Indian Penal Code under the amendment of the Criminal Act, 2013.

The Indian Penal Code, 1860: The Indian Penal Code mentions and explains the sexual offences against women,which encompasses the offences such as rape (Section 376), gang rape (Section 376 D), outraging the modesty of women (section 509), disrobing a woman (section 354B), Voyeurism (Section 354 C), etc. along with the punishment for those crimes.

The Indian Evidence Act, 1872: Section 114 of the Indian Evidence Act defines the presumption of absence of consent in the prosecution of rape. The section helps to decide the cases relating to rape as they are mainly dependent on the consent of the victim in the act.

 

Government Initiatives For Women

The Indian Government has implemented various policies, laws, programs to eliminate violence against women. The Government has established the statutory body with an intent to monitor all matters relating to the legal and Constitutional safeguards provided for women and to eliminate the violence against them. The Statutory body; namely, the National Commission for Women, practice to review the existing legislation to amend it whenever it is necessary in order to eliminate violence against women. Also, in 1992, the 73rd Constitutional amendment was passed to ensure and allot one-third of the total seats for women in the elected offices.

In 2001, the Department of Women and Child Development had prepared a “National Policy for the Empowerment of Women” The goal of this policy was the development and Empowerment of Women. The objective of the policy was as follows:

  • To create a positive environment for the social and economic development of women.
  • Equal access to participate in the social, economic and political life of the nation, equal access to health care, quality education, employment, equal remuneration, health safety, social security, etc.
  • Strengthening legal systems to eliminate the violence against women
  • Development in the elimination of discrimination and all forms of violence against women and girl child
  • Changing the attitude of society and community practices by the active participation of both men and women

 

Government has initiated and encouraged the changes in the personal laws to inculcate the provisions relating to marriage, maintenance, divorce, etc to eliminate discrimination. Also, the evolution of property rights of women in a patriarchal society has contributed towards equality. The existing laws are reformed and new laws are enacted to ensure the quick justice to the women.

 

Effective Implementation Of Legislation

The laws and policies have initiated strict enforcement of all relevant legal provisions and speedy redressal of grievances. Also, the measures have been implemented to prevent sexual harassment at the workplace, crimes against women, protection for women workers, etc by strict enforcement of laws. The investigation, detection and prosecution of the matters are reviewed at the Central, State and District level. The women cell in Police station, family courts, legal aid centres, counselling centres and Nagar Panchayats are strengthened to eliminate the violence against women.

 

Conclusion

Unfortunately, the cases of violence against women in India are rising despite the implementation of several laws, policies and legal frameworks to eliminate violence against women. The indicators of violence against women are a reflection of the structural and institutional inequality of women in society.

International Day for the Elimination of violence against Women
The United Nations General Assembly has designated November 25th as the International Day for the Elimination of violence against women.

Women's rights activists have observed November 25th as a day against gender-based violence since the year 1981. This date was designated to this cause in order to honour the Mirabal sisters, three political activists who were brutally murdered in the year 1960 by an order by the country’s (Dominican Republic) ruler, Rafael Trujillo. On 20th December 1993, the General Assembly adopted the Declaration on the Elimination of Violence against Women, paving the path towards eradicating violence against women and girls worldwide.

Finally, on 7th February 2000, the General Assembly officially designated 25th November as the International Day for Elimination of Violence Against Women, they invited world governments, international organizations as well as NGOs to join hands and organize activities designed to raise public awareness of the issue every year on that date.

 

Violence Against Women

Violence against women takes various forms and affects every society. Violence against women and girls is a form of gender-based violence. Violence against girls and women is among the most widespread and devastating violations of their human rights, some cases of these violence’s can be narrowed down to:

  • Rape
  • Trafficking
  • Slavery
  • Domestic Abuse
  • Female genital cutting
  • Early Child marriage

The UN general assembly in its Declaration on the elimination of violence against women defines violence against women as “any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.”  The brutal psychological, physical or sexual harm causes severe health conditions that affect women at all stages of their life.

As stated in a WHO report noted that every 1 in 3 women is experiencing physical and/or sexual violence in their life. However, unlike an illness, perpetrators still choose to commit the crime of violence, when they still have an option to stop. Violence is not inevitable, and it can very well be prevented. But it’s not as straightforward as eradicating a virus. There is no vaccine, medication or cure. And there is no one single reason for why it happens.

 

Importance Of Elimination Of Violence

One peculiarity of gender-based violence is that it knows no economic or social boundaries and affects women of all socio-economic backgrounds, this issue needs to be addressed in both developed and developing countries.

This issue is not only devastating for survivors of violence but it also deeply affects their family members. Apart from this, one other problem is the high social and economic costs.

This violence leaves survivors with long-term physical and psychological trauma; and is used with terrifying effect in conflict settings, with women as the primary target.

Violence is not just limited to women, it also affects them in their tender age also. It is critical that girls are safe in school and colleges. Educating girls is crucial for the eradication of global violence. When societies don't value girls and their futures, entire communities suffer and generations are mired in poverty.

 

Conclusion

The UN Secretary General’s ‘UNiTE’ plans to End Violence against Women through their campaign (UNiTE campaign), managed by the UN Women, is a multi-year effort that aims at preventing and eliminating violence against women and girls around the world. It calls on the governments, civil societies, women’s organizations, the media, the private sector, young people, and the entire UN system to join forces against this violence and also in addressing the global pandemic of such violence against women and girls.

The elimination of violence against women and girls is not a short-term goal. It requires most coordinated and sustained efforts from the world government and people. Showing that these efforts will yield the required results is the best tribute to survivors of this violence.

Family Courts in India
In India, a marriage is considered to be very sacred, but with the changing times, it has become a subject of great judicial scrutiny. People of different religions, as well as traditions, are regulated by a diverse set of personal laws that relate to family affairs. Prior to 1984, all family matters were resolved by the ordinary civil court judges who used to look after the recovery matters. In 1984, the family Courts Act was passed and came into force. The main objective of the act was to take family and marital disputes out from the overcrowded and traditional courts of law and to bring them in the sympathetic surrounding. Matrimonial litigation is a traumatic experience in the lives of partners and their children. The aim was to conciliate between the estranged family members and not in confrontation.

 

Objectives:

From 1955, when the Hindu Marriage Act was passed, till date, several amendments are made to liberalise the grounds for divorce and many other family issues. The process of settling the matrimonial disputes includes divorce, judicial separation, maintenance, settlement of property, etc. which are time-consuming and expensive.

To achieve the objectives, the government is put under obligation to establish family courts mainly in the cities and towns as the population of cities and villages exceeds one million. However, the state government may also establish family courts wherever it feels necessary. As per the Family Court Act, the state government can consult their respective high courts and specify the local limits of the area, where family courts can be established.

 

Where should the divorce petition be filed?

It states that every petition under this Act, shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction, the marriage was solemnized, or the respondent resides at the time of presentation of the petition, or the place where parties to the marriage last lived together, or the place where petitioner is residing at the time of submission of petition, in case if respondent is at the time, residing outside the territories to which this act extends, or has been heard of being alive for a period of seven years or more by that person who would naturally have heard of being alive.

In case the wife is the petitioner, she can file a divorce petition at the place where she resided at the time of presentation of the petition.

 

Jurisdiction of Family Courts:

Section 7 (1) and (2) of the Family Courts Act of 1984, describes the kind of disputes over which the family court has the jurisdiction. It states that subject to other provisions of this act, a family court shall have and can exercise the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force with respect to suits or proceedings. A family court shall be deemed to exercise the jurisdiction under such law, to be a district court or as the case may be any subordinate civil court in the area to which the jurisdiction of Civil Courts in the area to which jurisdiction of family court extends.

The suits and proceedings referred in the above-mentioned section are suits and proceedings of the following nature between the parties to the petition:

  • For a decree of nullity of marriage (declaring the marriage to be null and void, or as the case may be) or restitution of conjugal rights or judicial separation or dissolution of marriage.
  • For the validity of a marriage or as the matrimonial status of the person
  • For the property of the parties or property of either of them.
  • For order or injunction in the situation arising out of a marital relationship.
  • For the declaration as to the legitimacy of any person.
  • For maintenance
  • For guardianship of the person or the custody of, or access to the minor.

 

Subject to the other provisions of the act, the family court also exercises:

  • The jurisdiction is exercisable by the magistrate of the First class relating to the order for maintenance of wife, children and parents.
  • Any such jurisdiction that may be conferred on it by any other enactment or amendment.

 

Territorial jurisdiction:

The territorial jurisdiction of the family court is limited to that of a district court as per the notifications released by the state government with the consultation of High Court. The State government has the authority to reduce or increase its territorial limits from time to time, depending on the factors and circumstances of the matter. The state government and High Court can confer the jurisdiction only to a limited area.

 

Jurisdiction for property dispute matters:

As per the Family Court Act, 1984, section 7 (c) deals explicitly with the issues related to the property disputes of the parties to the marriage. The conflict that arises after the decree of divorce is passed. To deal with the property matter of the parties of the marriage, the family court should exercise its jurisdiction by satisfying two conditions:

  • The property dispute must be between the parties to the marriage only
  • The dispute should be in respect to the property of either of the parties.

It should be noted that the family court has no jurisdiction to deal with the property matters between the members of the joint family.

The SC in K.A Abdul Jaleelvs T.A. Shahida stated that with respect to division bench in a matter arising out of a preliminary issue on the question of jurisdiction held that the dispute over the properties of parties to marriage could not be confined to the parties to a subsisting marriage.

 

Jurisdiction as per subject matter:

All matrimonial disputes and disputes relating to maintenance under section 125 of CrPCis adjudicated under the jurisdiction of a particular district. The family court also exercises the jurisdiction in respect of suits or proceedings between parties to the marriage for the decree of nullity of marriage, restitution of conjugal rights, dissolution of marriage, judicial separation, validity of marriage, guardianship, custody and access to minor, legitimacy of any person. Family matters are to be viewed from a different perspective. Family Court seeks to promote conciliation in family matters.

The SC in Bhuwan Mohan Singh vsMeena&Ors held that family courts are established for the conciliation procedure and to deal with family disputes in a speedy and expeditious manner. Delay in adjudication by family courts is against the human rights and dignity of an individual.

 

Jurisdiction of High Court:

The jurisdiction of the district court was transferred to the family court as per section 7 of the Family Court Act. But the legislation did not clearly exclude the original matrimonial jurisdiction exercised by High Court. This clause of the Family Court Act led to considerable confusion and ambiguity during the initial phase and became contradictory judicial interpretation.

 

Overriding effect of the Family Courts Act on other laws:

As held by SC in BalramYadavvsFalmaniyaYadav, the section 7 (1) explanation (b) states that  a suit or proceeding declaring the validity of both marriage and matrimonial status of a person within the exclusive jurisdiction of family court, under Section 8, all those jurisdictions covered under section 7 are excluded from the purview of the jurisdiction of Civil Courts.

In case a dispute is observed on the marital status of any person, a declaration in that regards has to be sought only before the Family Court. Section 20 of the Family Court Act, 1984 also endorses that this act shall have an overriding effect on other laws.

Inheritance Law in India
Inheritance means Succession, succession follows the death of a person. Inheritance of property means the passing on property, its title, debts, rights and obligations to the other party upon the death of an individual. The term inheritance is referred to whatever an individual receives upon the death of the relative according to law whichever is applicable when no will is present. Inheritance is the integral component of the family. It is the process of passing the material property from one generation to another. The transmission in inheritance is regulated and governed by specific laws in India. The law of testamentary or inheritance can be easily segregated in terms of religions.

 

Laws Related To Inheritance

 

The Hindu Succession Act was passed in the year 1956 by the parliament to amend and codify the laws relating to the intestate. The Hindu Succession Act was established to assure equal inheritance rights to both son and daughters. The Act states, every Indian is entitled to an equal share on inheriting the property. The Act applies to all Hindus, Sikhs, Buddhists and Jains. It plays an important role in the process of dealing with the inheritance of property. In India, inheritance or how the property is to be distributed is determined by the law of succession. In 2005, the Hindu Succession Act was amended by clarifying the right of women in dealing or disposing of the property as per her will.

The governing law applicable to Parsis for the intestate succession is the Indian Succession Act 1925 under section 50 and 56. Also, the governing law applicable to Christian and Jews inheritance is governed under section 31 to 49 of the Indian Succession Act, 1925.

Laws of succession governing Muslims in case of non-testamentary succession is the Muslim Personal Law (Shariat) Application Act, 1937. And if any Muslim has died intestate, then the issue of an intestate is governed under the Indian Succession Act 1925. Law of succession in case of interfaith marriages is governed under the Special Marriage Act, 1954. The Indian Succession Act, 1925, states that everyone is entitled to equal inheritance.

 

Intestate Succession

 

The property gets delegated upon the relatives of the deceased in two ways:

  1. Testamentary Succession
  2. Intestate Succession

 

Testamentary Succession refers to succession resulting from a legally executed testament. It is also known as the right of inheritance. The testamentary succession is fixed at the time of a decedent’s death. It occurs when a person dies and leaves a will.

Intestate means when a person died without making a will, which is capable of taking effect. If a person is said to have died intestate that means he has not disposed his assets under a will. Or the disposition mentioned under a will is not capable of taking effect on account of the illegal bequest. If a person dies intestate, the assets in his possession are distributed as per the provisions of the Indian Succession Act.

 

Intestate Succession Among Hindus/Muslim/Christians

 

India has several laws governing the intestate succession among the different religions. The mains laws that governers the intestate are as follows:

  1. Hindu Succession Act
  2. Intestate Succession Act
  3. Sharia Law
  4. Indian Succession Act

 

Hindu Succession Act applies to Hindus, Buddhists, Sikhs and Jains. The laws applicable to inheritance depends on the gender of the deceased. In the case of males, there are four classes of people who can inherit the property of a man. The first preference goes to the Class I heirs than for Class II and so on. ‘Heir’ is a person, who under the law of intestacy is entitled to receive the property of the intestate deceased.

 

As per the Hindu Succession Act, 1956, further amended in 2005, if a Hindu male dies intestate then the following person can make a claim:

  • Class I heirs: The class I heirs are the immediate relatives of the deceased that is the wife, children, mother, siblings and grandchildren. If the children of the deceased died before the deceased, then their spouses will form part of Class I heirs.
  • Class II heirs: The class II  heirs include the father, grandfather, uncle, aunt, nephews and nieces of the deceased.
  • Class III heirs: The class III heirs are the relatives of deceased from the male line, but it is limited to the blood relatives. They are called as agnates.
  • Class IV heirs: They are the relatives of the deceased from the female line; they are called cognates.

 

If a Hindu female dies intestate, the four classes of heirs are slightly different:

  • Class I heirs: The husband and children of the female are the clas I heirs.
  • Class II heirs: The heir’s of her husband are the class II heirs of the female.
  • Class III heirs: The class III heirs are her parents.
  • Class IV heirs: The heir’s of her mother are the class IV heirs of the female.

 

The apex court in case of Danamma Suman Surpurvs Amar &Ors clarified that the position of law relating to the Hindu Succession Act, 2005 held that the right is inherent and can be availed by any coparcener, as per the amended act of 2005, even a daughter is a co-parcener.

 

Indian Succession Act is the act that applies to Parsis, Christians and other religions that are not mentioned in the Hindu Succession Act. The spouse of the deceased takes one-third of the total inheritance in the absence of children and no living relatives.

The remaining two-thirds are divided between the children and surviving relatives in the following order of preference:

  • Father
  • Equally between mother, brothers and sisters (nephews or nieces if brothers and sisters are dead)
  • Mother (in case if there are no brothers, sisters, nieces or nephews)
  • Other close living relatives

 

As per section 2 of the Indian Succession Act 1925, the legal heirs of the Christians are husband, wife or the kindred of the deceased. In Mary Roy v. the State of Kerala, the apex court decided upon the inheritance rights of a Christian Women against the law for the first time. It also held that no personal law can be held above the Constitution of India.

 

Sharia law applies to Muslims. Under this law, one can divide only upto the one-third of the estate. In Sharia law, whether the succession is testate or intestate, the son, daughter, father, mother, brothers, sisters, grandsons and granddaughters are the nine relatives that inherit the remaining two-thirds of the estate.

 

Conclusion

 

To avoid the complications and disputes within the family, proper planning should be adopted by the families. Due to the evolving nature of inheritance and succession law, proper steps should be taken to understand the inheritance rights. Despite several developments in law, the awareness regarding inheritance law is on a downward graph and hence it is the need of the hour.

Rights of Children in India

The future of the nation depends upon the growth and development of Children in the country. It is the state’s duty to look after the development of children as they are the future of India. The Indian constitution defines certain rights for the citizens of the country, which also includes the rights of children directly or indirectly. In India, child rights must go beyond human rights which exits to ensure fair and proper treatment of the people across the country.

The Convention on the rights of child defines the term ‘child’ as a person below the age of eighteen years unless the majority is defined differently under the applicable law governing children.

In India, the Constitution defines a person below the age of fourteen years as children. Also, the Children Act, 1960,  defines a child as a person who has not attained the age of 16 years in the case of the boy and 18 years in the case of a girl.

 

Constitutional Provisions

The constitution, in its fundamental rights and directive principles, guarantees the rights granted to children in India.  The constitution accords the right to children as citizens of the country and also, due to their special status,  certain special laws are enacted for this purpose.

In 1950, the constitution included the Rights of Children in the provision of fundamental rights and directive principles. Many individuals and activists have approached the apex court for the amendments relating to the rights of children.  There are certain constitutional provisions for children.

 

Right To Education

Article 21 A has listed down the rights of the child to get free education for all children in the age group of 6-14 years in a manner as determined by the state.  The apex court in its liberal interpretation of life and liberty under article 21 held that liberty includes the right of a human being to live with dignity along with the right to education.

Article 45 of the Constitution lays down that the state shall endeavour to provide early childhood care and education for children until they attain the age of six years. Article 45 is the provision for free and compulsory education for all children. Right to free primary education is significant for helping children to develop discipline, life skills and to find a safe and healthy environment to nurture the physiological development of the child.

Article 51 A specifically states that it shall be the fundamental duty of the parent and guardian to provide opportunities for education to his child between the age of six and fourteen.

In the case of P Unnikrishnan vs State of Andhra Pradesh, the apex court included the right of education under the ambit of right to life. The Court observed that education is a preparation for living and therefore concluded that every citizen has a right to education.

 

Right To Be Protected Against Exploitation

Article 23 explains the prohibition of human trafficking and forced labour. The Indian Penal Code and Criminal Procedure Code have separate provisions to prohibit human trafficking in order to track and govern these heinous crimes.

Article 24 lays down the prohibition of employment of children. It states that no child below fourteen years of age shall be employed to work in any factory or be engaged in any hazardous employment that may directly or indirectly affect the healthy growth of the child

The apex court in case of MC Mehta vs State of Tamil Nadu noted that the menace of child labour was widespread in India and that is the reason; the court issued wide directions against prohibiting the employment of children below the age of 14 years and making arrangements of the funds for their education.

The exploitation extends to abuse, negligence and violence against children. The child cannot be made to work in difficult or dangerous conditions.

Article 39(e) states the right of the child to be protected from being abused and forced by economic necessity to enter any occupation unsuited to the age and strength of the child.

It is the right of a child to get equal opportunities and facilities for his personal growth and development. Along with this the children also have  equal rights as the citizens of India, which includes the Right to equality (Article 14), Right against Discrimination (Article 15), Right to personal liberty (Article 21), Right to be protected from being trafficked and forced into the labour ( Article 23), Right to the standard living and improved public health (Article 47).

 

Constitutional Remedies For Infringement Of Rights Of The Child

If the fundamental rights of the children are infringed, the Indian constitution laid down several provisions for constitutional remedies through Article 32 and 226. Article 32 states that a person has the right to move the Supreme Court for protecting his fundamental rights. According to article 226, a person may approach the High Court for the same reasons as mentioned above, however, it is not necessary that the right should be a fundamental right in order to take legal action under these provisions.

Public Interest Litigation may be filed in the apex court or the high court against the government by virtue of article 32 and 226 for the protection of rights of the child.

Some of the other important acts, legislations and policies framed by the government for the protection of child right are

  • Indian Penal Code, 1860
  • Guardian and Wards Act, 1890
  • Child Marriage Restraint Act, 1929
  • Immoral Traffic Prevention Act, 1956
  • The Women’s and Children’s Licensing Act, 1956
  • Probation of Offenders Act, 1958
  • Child Labour (Prohibition and Regulation) Act, 1986
  • Juvenile Justice (Care and Protection of Children) Act, 2000
  • Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act, 2000
  • Protection of Children from Sexual Offences Act, 2012
  • Orphanages and other Charitable Homes (Supervision and Control) Act, 1960
  • National policy for Children, 1974
  • Bonded Labour System (Abolition) Act, 1976
  • Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance Act, 1987
  • Prohibition of Child Marriage Act, 2006
  • The Child Labour (Prohibition and Regulation0 Amendment Act, 2017

 

Conclusion

The rights of the child need to be protected in order to promote the well-being of the child since they require more protection than other people who have attained majority due to the set of unique needs stemming from their vulnerabilities.  Every single child of the country deserves equality, no matter what colour, race, religion, language, gender define them.

Children with their development process can flourish and in turn, benefit the nation as they are the future of the Country. India, with the help of various international and national mechanisms, is constantly trying to secure the rights of the children.

Virtual Clinic
Virtual Clinic is a technology backed initiative providing a platform for cloud-based unified health record and virtual interaction with doctors and patients through audio and video communication. It is a planned contact by the health care professional responsible for care with a patient for consultation, advice and treatment planning. Virtual Clinic is a social initiative by the Asian Health Meter. The user interface is a tablet PC. The platform of Virtual clinic provides the dashboard of all specialists in the district with a detailed description of their clinical expertise so that patient can choose the specialist on the basis of experience and proximity. It is a web-based technology which aims to provide a scheduled appointment with the doctor for consultancy.
 
In rural India, the patients get affected due to the non-availability of doctors for treating them with prompt and accurate diagnosis. In spite of huge efforts by the government, it had become almost impossible to reach specialist care to the rural population. The main purpose of initiating virtual clinic is to provide quality health care services.
 
The benefit of the virtual clinic is that it is possible to leverage the expertise of specialists who are not available nearby; it promotes the extensive outreach of specialist. It saves the transportation time along with the cost of transportation. The advantage of the virtual clinic is that it is available on a fingertip, convenient for both doctor and patient. Because of convenience, frequent consultation will improve the outcome in chronic illness like heart failure, diabetes and respiratory failure.
 
The growth in the concept of the virtual clinic is likely to lead medico-legal and ethical challenges in India. The challenges include the confidentiality of patients, the standard of treatment, consent from patients, professional misconduct, credentials of doctors, licensure, reimbursement, penalties and liabilities as per the various prevalent laws. The challenges may adversely affect the acceptance and adoption of a virtual clinic consultation.
 
Cons of virtual clinics:
Virtual Clinic has some downsides because of its virtual nature as it requires infrastructure and technical training. It may reduce the direct interaction of the patients with doctors without the impersonal interactions and to make a complete diagnosis; the physical examination needs to be done.
 
Once the relationship between doctors-patient is established, it is doctors responsibility to provide treatment and due care. It raises the two important questions as follows:
 
Can a physician be sued for medical malpractice in operating a virtual clinic?
 
Can medical practitioners be protected by medical indemnity insurance?
 
All medical practitioners must maintain and establish the duty of care to clarify the responsibility of the patient as well as other health care providers. The roles and responsibilities of healthcare professionals should be clearly defined with respect to various aspects and extents.
 
In-country like the US, the virtual clinics allow patients to connect with a healthcare provider through text, video chat or telephone. The medical services in the virtual clinic include consultation, tests and online prescribing.
 
Services of Virtual Clinic limits to patients with the same province or territory, but to interact with them in a different jurisdiction, it is necessary to consider whether the telemedicine license is required or applicable. The requirement for licenses varies from provinces and territories.
 
The ethical and legal obligation of the physician is to protect the personal health information of the patient. The virtual clinics satisfy that the security protocols of information transmitted electronically, including video call, chat, text messaging, etc. Each of these has unique privacy challenges covered. In order to provide services, the jurisdiction where the patient is located is a must.
 
The method of delivering care through a virtual clinic presents unique challenges in obtaining consent from the patient. Some additional consent requirements are recommended while using telemedicine and virtual care. It may include the information of the patient where physicians are located, what is the status of their license, how is the privacy of the patient is managed and all about personal health information.
 
It is essential that medical records are made and maintained for any patient through the virtual clinic. The information of the patient’s medical history and clinical interactions is vital to maintain as the medical records are the legal documents that can be served as evidence of the care provided or the services given to them. The physicians will have continued access to the medical records after the consultation, especially when a patient initiates a claim or complaint. The owner or the operator of the virtual clinic having the custodian of the medical record of the patient should maintain the same in proper order.
 
For instance, BRYAN Health under the telemedicine meets the demand for virtual care and is an award-winning health system in Nebraska; they achieved their strategic growth by developing a virtual care service line with Zipnosis, a platform which allows BRYAN telemedicine to leverage internal clinical expertise and offering care to the patients.
 
Conclusion:
Virtual Clinics are a new upcoming reality to deliver healthcare. If India is thinking to evolve in the concept of a virtual clinic to provide the medical service, it is necessary to consider the medical-legal issues that can emerge. It is necessary to consider whether any special licensing requirements may apply, or the standards and guidelines concerning other medical technologies including privacy, security, consent and online prescribing are applicable.

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