Revival of NAM:A blow to Unipolar World

Revival of NAM:A blow to Unipolar World Concept :

The 16th NAM summit took place during from 26 to 31 August 2012 in Tehran, Iran and turn out to be huge success ,even UN Secretary General Mr Ban Ki Moon [defying US/Israel]attended inaugural session.The representatives from 150 countries attended the summit , the attendance at the highest level includes 27 presidents,2 kings and emirs,7 prime ministers,9 vice presidents,2 parliament spokesmen and 5 special envoys.At the summit, Iran took over from Egypt as Chair of the Non-Aligned Movement for the period 2012 to 2015.The Chinese representative also spoke at summit [observer].

This is real challenge to concept of unipolar world and USA domination of the world.It is clear reflection that world is not blind follower of US policies&its hegemony.

History of NAM : 
During cold war the erstwhile USSR and USA used to dominate the world politics ,the world was divided into two powerful blocks, one  lead by USA and another by USSR.Both powers started building 'Weapons of Mass Destruction'[WMD] to face each other in case of "World War "

Some of world leaders like Mr Tito,Mr Nasser and Mr Nehru during  late 50's  thought that they should form third block to work for world peace and solidarity.

The concept Non -Alignment Movement which came into existence in the former Yugoslavia in 1961, the NAM represents nearly two-thirds of the UN members and about 55 percent of the world population.NAM currently consists of 120 members, 17 observer countries and 10 observer organizations. China became a NAM observer in September 1992.  
 

It was brainchild of Yugoslavia's president, Mr. Josip Broz Tito; Indonesia's first president,Mr Sukarno; Egypt's second president, Mr.Gamal Abdel Nasser; Ghana's first president Kwame Nkrumah; and India's first prime minister, Mr. Jawaharlal Nehru . NAM means it is neither supporter of US or USSR,but chooses to remain neutral in world with an aim to work for world peace and solidarity.

After dismantling of USSR during 90's and world became unipolar as USA started dominating the world politics ,even it started controlling UN ,because it is largest donor of funds to it. NAM concept got blow after cold war over,it got revived due to one-sided world policing role of USA&its feudalistic policies. 


Main Principles of NAM :

 The five principles were:

• Mutual respect for each other's territorial integrity and sovereignty
• Mutual non-aggression
• Mutual non-interference in domestic affairs
• Equality and mutual benefit
• Peaceful co-existence

There is growing opposition to US policies&its tendency to dominate the world politics,which lead to many countries opting to join NAM block.It is evident that the NAM is going play huge role in coming years in world politics providing alternative to feudalistic US oppressive policies.


 References :


 http://en.wikipedia.org/wiki/Non-Aligned_Movement

Doctrine of Laches-Delay-Matrimonial cases

Doctrine of Laches-Delay &Matrimonial cases:

The law of limitation applies to civil proceeding,if civil proceeding are not initiated within the specified time period,the remedy becomes time barred and litigant may lose his remedy. 

Most people ask whether Doctrine of laches /delay applies to matrimonial cases,when matrimonial cases are civil proceeding, but ,the Limitation Act prescribes no period of limitation for filing a petition for divorce,litigant can also seek remedy by explaining the reasons for the delay in filing the case to the court basing on sound legal  principles.The courts are very liberal in condoning the delay as there is no prescribed statutory limitation period for matrimonial cases.

The Hindu Marriage Act ,1955:

Section 23(1) (d) of Hindu Marriage Act, 1955 says"there has not been any unnecessary or improper delay in instituting the proceeding....." 

 Dr. H. S. Gour book "Hindu Law of Marriage and Divorce".

"The question whether, in a given case, there had been unnecessary or improper delay in instituting the proceeding has to be decided on its own facts. No hard and fast rule can be applied in deciding that question. It is worth remembering that the Act has not prescribed any period of limitation for presenting an application under Section 12 of the Act." as stated in 

Principles of Hindu Law' by D. F. Mulla :

 

"The principle and the basis of the rule is that delay is a material factor because if unexplained it may lead to the inference that there was collusion between the parties, or acquiescence in the injury or indifference to the same or some wrong motive for seeking relief after slumbering over the matter in sufficient comfort for an inordinate period after the ground for relief had arisen. Whether the delay in instituting proceeding is unnecessary or improper would depend on the facts and circumstances of each case. A petitioner may not readily he charged with improper or unnecessary delay where any element of the nature indicated above is shown to have existed.

At the same time, the Court will not permit itself to be used as a place to which a party to a marriage can come for redress whenever it suits him or her to do so, having in the meantime held the weapon of redress over the head of the other party to the marriage. Delay in such a case would be highly improper."

In English law case in Key v. Key and Staples Case, 1956-3 All E R 955. "the Judge excused a delay of ten years in instituting divorce proceedings and accepted the explanation of the husband that he tried his best for some years to find out where the wife had gone and then he tried to save up enough money to start proceedings"

In Becker v. Becker, (1966) 1 WLR 423, a delay of fifteen years after desertion in the institution of the proceedings was not considered as a bar. 

Clifford v. Clifford, (1948) p 187, the marriage was declared a nullity even after 27 years the marriage,in this petition was filed for nullifying the marriage on the ground of impotency.

Smt. Leela vs Dr. Rao Anand Singh And Anr. on 29 January, 1963, AIR 1963 Raj 178: It was held that delay can be condoned on the principles :

1. Delay resulting from ignorance of law;
2. The petitioner's want of means and property;
3. Unwillingness to involve members of the petitioner's family in family difficulties;
4. Fear of scandal and desire to avoid a final break-up, if possible;
5. Reasonable hope of reconciliation; and,
6. Patience and forbearance on the part of a spouse and particularly the wife and considerations of welfare and position and interest of children of the marriage.

Lakshmi Ammal vs Alagiriswami Chettiar AIR 1975 Mad 211, (1975) 1 MLJ 228:In this case , the first wife to sue for divorce on the ground that her husband had married again before the coming into operation of that enactment.The first wife had continued to live with the husband for ten years after his second marriage and had children born of him after the second marriage and her petition for divorce was allowed though it was resisted by the husband on the ground of condonation and on the ground that it would be inequitable under the circumstances to grant a decree for divorce.

"The language of the section did not permit of delay being pleaded in bar of the relief. Under the present sub-section it would be competent to the court and even necessary and incumbent on it to consider in any case whether there was any unnecessary or improper delay in instituting the proceedings as laid down in Section 23(1)(d) of the Hindu Marriage Act."

Balvindar Kaur v. Avtar Singh (1985) 2 D.M.C. 26: held that "mere delay or long lapse of time in launching of the proceedings by itself is not a bar to the grant of decree under Hindu Marriage Act if it is explained properly"

Gopibai v. Hukumchand 1977 M.P. W.N. 480: it was  held that "under Section 23(1) of the Act the Court should satisfy before proceeding to grant any relief under the Act that there has not been unnecessary or improper delay in instituting the case"

Pavunambal vs Ramaswamy And Anr. 1979) 2 MLJ 273:"It seems to me therefore that what had got hold of the Courts below in this case was their obsession over the mere length or passage of time of 17 years, 11 years and the like. But I have said enough already to show that the statute does not demand this approach, and the Courts below were quite wrong in thinking they were under some duty bound to dismiss a petition once they had held that there was an improper or excessive delay in its institution."

According to this finding, "it is clear that the petitioner married Anakarudu as his second wife, while the first Wife Arumbu was alive. As such, this marriage is null and void under Section 11 of the Hindu Marriage Act." If so much is granted, it certainly provokes one to ask why the Courts below should at all have felt compelled to dismiss the wife's petition on the ground of delay? My answer is that they had no call to do so." 
The decree for nullity of her marriage upheld ,despite 17 yrs delay in filing of proceedings for nullifying a marriage.


The cases remanded for unexplained delay :

In  Manchar Bapuji v. Chandrawati, AIR 1936 Nag 26 the, Nagpur High Court held that a delay of seven years in presenting a petition for divorce is, prima facie, unreasonable and raises a presumption of connivance or condonation and the burden is on the petitioner to explain the delay before he can be granted the decree he seeks. The case was remanded for further enquiry. 

In Ammanna v. Ammanna, AIR 1949 Mad 7 it was observed by the Madras High Court that the petitioner should have given evidence to explain the delay of 12 years intervening from the time when the wife left home until he presented his petition for dissolution of his marriage. The case was remanded.

  
Other cases :  

 M. Akkamma vs M. Jagannadham AIR 1981 AP 269:"There has been unnecessary and improper delay of nearly 10 years in the institution of the proceedings by the husband on the ground of Adultery ,A.P High Court upholded the decree and and dismiss the appeal.

Jyotsnaben Ratilal vs Pravinchandra Tulsidas,AIR 2003 Guj 222, (2003) 2 GLR 1395 b " I am of the view that there is no unnecessary or improper delay in filing the application under Section 12(1)(a) of the Act though he came to know about incapacity of the wife he has waited for some time because he was of the view that after sometime due to medical science she may be able to conceive the child and therefore the petitioner husband has waited for some time i.e. up to 1994" ...It is no doubt that the wife has deceived the respondent-husband by suppressing her physical defect.

 Gurmit Kaur vs Buta Singh 2009[P-H High Court]10.11.2009,In this case, It was also pleaded case that provisions of Limitation Act, 1963 were not applicable to the petition and immediately on coming to know about fraud played on him he sought decree of declaration that the marriage was null and void.The petition was liable to be dismissed on account of delay and laches. on the ground that "guilty party cannot take advantage of his own wrong"

Hence,it is pertinent to note that even though there is no prescribed limitation for matrimonial proceeding,it is discretion of the court to condone[adhering to principles stated in Smt. Leela case] or not to condone  the delay ,depending upon facts and circumstances of the case.   

It is evident that the courts in India are very liberal in condoning the delay in matrimonial cases. 

References : 
 

1. http://indiankanoon.org/doc/478439/.
2. http://www.indiankanoon.org/doc/656042/
3. http://www.indiankanoon.org/doc/1256846/
4. http://indiankanoon.org/doc/595978/
5. Nirmoo vs Nikka Ram on 14 March, 1968  AIR 1968 Delhi 260
6. Dr. Niranjan Das Mohan v. Mrs. Ena Mohan AIR 1943 Cal 146.
7.  http://www.indiankanoon.org/doc/1607983/
8.  http://www.indiankanoon.org/doc/105409/

Decriminalising Prostitution&Drug Use -An Analysis

Decriminalising Prostitution&Drug Use- An Analysis. 

Many intriguing questions which puzzled me and troubled me since my graduation [LLB]days about drug abuse and prostitution.I always wonder; 

• Why drug addict should be jailed?

• Why prostitute should be jailed?

• Why gay should be jailed ?

• Why a person who attempts to commit suicide should be jailed?

• Why sex worker sent to jail and faces police harassment ,where as clients&pimps are allowed to go Scot-free without any punishment?

• Why sex workers will be caught by over-active police[otherwise in-active in other cases],only to present them before media as criminals or anti-social elements?

• Why only drug addicts/consumer will be caught and jailed,where as high profile mafia ,intermediaries and traders will never get exposed?While smoking and Alcohol consumption is legal ,but not drug consumption?

• Why society/state does not treat victims of drug use and prostitution with human touch,which is a societal problem not just an individual problem?

Both prostitution and drug use are very dangerous activity bound have serious health consequences.No person will voluntarily chose prostitution as calling or profession,either she will be forced into the prostitution or  exploited in the name of employment.

The Drug consumption will become uncontrollable addiction with help of drug peddlers/dealers,it is clear as long as drug are available like peanuts in the illegal market ,the drug addicts bound to exists in the society ,It is up heal task for victims of drug abuse and prostitution to escape from this trap.The society does not encourage to them to do so because of prejudices and stigma attached to it ,they will be  ostracized and  isolated from the society.

Case for Decriminalising Prostitution.

Anti-prostitution feminists like Andrea Dworkin, Catharine MacKinnon, and Melissa Farley see prostitution as a vicious form of male domination and oppression.The prostitution is direct result of commodification and objectification of women by men.The women are purchased for sex like Cigar and alcohol in the market.It is degrading form of exploitation of women by men.  


Most say prostitution is oldest profession since times immemorial ,can't be controlled by the state through repressive measures and it is illegal since,it is immoral activity and against the social ethos,but none support legalising the prostitution citing that it will corrupt the societal morals and lead to more chaotic situation as already the issues like Adultery and live-in relationship threatening the existence of institution of marriage and family life.Now legalising prostitution,it will compound the existing problems.If it is made legal ,no one wants brothel house in their neighborhood.The Swedish prostitution law that criminalizes purchasers and pimps and decriminalizes prostituted persons.

 

In 1949, the United Nations adopted a resolution in favor of the decriminalization of prostitution, which has been ratified by fifty countries but not by the United States.Mrs.Eleanor Roosevelt[who was instrumental in UNDHR] was one among ,those who approved.

 

Donna M. Hughes, PhD, Professor, Eleanor M. and Oscar M. Carlson Endowed [University of Rhode Island] wrote in the Oct. 20, 2004 in an article published in National Review "Women's Wrongs" that: 

"Legalization would mean the regulation of prostitution with laws regarding where, when, and how prostitution could take place. Decriminalization eliminates all laws and prohibits the state and law-enforcement officials from intervening in any prostitution-related activities or transactions, unless other laws apply."

Kimberly Klinger, writer, in the Jan.-Feb. 2003 in an article  "Prostitution, Humanism, and a Woman's Choice," The published in Humanist wrote :"Decriminalization essentially means the removal of laws against this and other forms of sex work”

 

In an article "Since Sex Sells, Why Not Make a Profit? by Robyn E. Blummer: It also discusses the reasons why people and society do not want to legalize prostitution; these are based on the "moralistic and paternalistic" rather than the "legal and practical." 

The State of Nevada[US] and other countries has decriminalised prostitution,the sex worker will be not be treated as accused and wrong doer under eye of law.    
 
Decriminalising Drug use : 

Columbia University epidemiologist Ernest Drucker says  that like alcohol prohibition, the “war on drugs” is doomed to fail and that prohibition measures like arrest and incarceration are forms of societal violence themselves.

Portugal and other countries decriminalised drug use ,drug addict will be treated and rehabilitated under experts supervision.The drug addictive will not be sent to jailed,but he or she will treated as victim ,state will ensure his/ her treatment as well as rehabilitaion under expert guidance.   
 
about  20 countries have adopted some form of decriminalisation of drug possession,including some States that have only decriminalised cannabis possession. 


Conclusion :


The United Nations called for Decriminalisation of Prostitution and Drug ,but countries like India,it is difficult to imagine the concept of  decriminalizing and legalising the prostitution due to various reasons.  
    
The Supreme Court of India also urged that age old-profession the prostitution should be decriminalised and legalised ,proponents of legalisation argue that ,when you cant control it ,it is better to legalise to identity people associate with prostitution for better rehabilitation and helps to control diseases like AIDS/HIV/STD.The opponents argue such experiments will not work in India where socio-econmic conditions are different when compared to  countries like Germany or New Zealand.When Caste system and caste discrimination still prevalent in rural areas,most victims belongs to weaker sections and poorer sections of the society.

The decrimnalising drug use will bound to help the state to identify the drug addictive for proper treatment and  rehabilitation.It will lessen social stigma of drug addictive and give courage to drug addictive to opt for treatment and rehabilitation voluntarily. 
 
Recently in July 2012 ,United Nations-backed Global Commission on HIV and the Law; recommended that nations should get rid of “punitive” laws against prostitution  or “consensual sex work” and decriminalize the voluntary use of illegal injection drugs in order to combat the HIV epidemic.It also wants nations to "Decriminalise private and consensual adult sexual behaviours, including same-sex sexual acts and voluntary sex work.”

 References :

• http://www.prostitutionresearch.com/Decrim_fact_sheet.htm

• http://prostitution.procon.org/view.answers.php?questionID=000114

 

• http://www.colombiareports.com/colombia-news/news/24849-colombia-court-approves-decriminalization-small-amounts-of-drugs.html

 

• http://www.huffingtonpost.com/ernest-drucker/decriminalization-of-drug_b_1656045.html

 

• http://www.rawstory.com/rs/2012/07/07/global-report-decriminalization-does-not-increase-rates-of-drug-use/   

• http://www.huffingtonpost.com/ernest-drucker/decriminalization-of-drug_b_1656045.html?utm_hp_ref=tw

•  http://www.niemanwatchdog.org/index.cfm?fuseaction=background.view&backgroundid=615

 

• http://prostitution.procon.org/view.answers.php?questionID=000114

• http://cnsnews.com/news/article/un-commission-calls-legalizing-prostitution-worldwide

• http://www.cato.org/publications/white-paper/drug-decriminalization-portugal-lessons-creating-fair-successful-drug-policies

Legal Validity of Gram Panchayat Divorce&other issues

Legal Validity of Gram Panchayat  Divorce &other issues

We are familiar with terms tyag-patra,farkat-nama,Talaknama and Viddakullu patrammu [Telugu term],whether customary divorce through gram panchayat or community  elders or [kulla] caste panchayat are legally recognized?

What is  Concept of Panchayat Raj?

According to Prof.Harold Laski "Local self government helps to cultivate civic sense and responsiblity among citizens and coordinates harmonious collaborations in common interest" 

J.G Clarks "Local Government is that part of the government of a nation or state deals with mainly with such matters as concern the inhabitants of the particular districts or palce together with those which parliament has deemed it desirable should be administered by local authorities subordinate to the central government"

J.S Mill  one of the vocal supporter of democracy based on individual liberty said "It is obvious to begin with that all business purely ,all which concerns a single locality ,should develop upon the local authorities. it is true that structural aspect of the local government differ in different political system ,such differences area matter of nominal interest and weight ,since they do not have any predominant impact on the object of local government "

De Tocqueville said " the local assemblies of citizen constitute the strength of free nations.town meetings are at liberty what primarily schools are to science ,they teach  men how to use and how to enjoy it.A nation may establish system of full government ,but without the spirit of municipal institution it can not have the spirit of liberty."

Panchayat Raj in Ancient India : 

Kautilya's Arthashastra ,references were made on the village administration ,there will be one gramin in charge of a village .he takes overall  responsible maintenance of law and order in that village,all persons residing in that village should cooperate with him.

Pt. Jawarlal Nehru  makes reference about "Nitisara of Adi Shankaracharya ",which elaborately dealt on position of villages and village councils.  


Importance of Panchayat Raj :


Panchayat Raj is an important institution in Indian  democratic set up ,it is one of the pillar in three tier structure of the provincial [state]government.

One of the main dream of Mahatma Gandhi was 'Gram swarajya ',the self -sufficient village rule or local self government.

There is legislation pending[Gram Nylaya bill] before parliament,for setting up panchayat level or taluk level courts for effective resolution of disputes,which are basically petty in nature,litigants need not approach traditional court for relief ,as courts are already overburdened with heavy work load.

Apart normal functions,we often hear that panchayats and community elders are already resolving various issues pertaining to marital discords,partition of ancestral  property and other social issues like banning cell or love marriages ,which is often criticized by  civil society that it is against law and constitution. 

One of the most confusing aspect of customary divorce or dikats of panchayat or caste elders or Khap Panchayat is its legal validity.

Frequently Asked questions [FAQ]

• Whether divorce granted in the presence of  Panchas under the Gram Panchayat  or Kula pedallu /caste elders or community divorce is legally valid or not?

• Whether Panchayat can declare love marriage[Inter -caste or Inter -religious ]has null& Void.

• Whether Panchayat can declare Sagotra marriages[same gotra ] null &void.
  
  

Panchayat Divorce :No custom exists &Court has jurisdiction :

It is valid only ,if it is proved that there is custom in the that particular caste/community,where customary divorce is duly recognised for the dissolution of subsisting marriage,such custom should exists time immemorial or long period of time,burden of proof regarding existence of custom rest upon a person who pleads existence of such custom

Section 29(2) Hindu Marriage  Act: "Nothing contained in this act shall be deemed to effect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a hindu marriage ,wether solemnized before or after the commencement of this act" 

Secular Hindu Law recognises customary divorce but section 14,15,23,24,25&26  does not apply to customary divorces.


In Pakhali Jina Magan case, it was "a custom of Pakhali caste of Ahmedabad ,which recognizes mutual consent divorce was not repugnant to Hindu Law"

There are several tribes [santals& other tribes] or caste,which recognizes customary divorce.There are plethora of cases ,which says if existence of custom is conclusively  proved,customary divorce is recognised for such tribe or caste.
    
Among several caste and tribes ,husband has power to divorce his wife on several grounds like immorality,-chastity[prostitution],adultery  and conversion to another religion.

If there is no provision of customary divorce in the caste/community,then only competent district court or family court is authorised to grant degree of divorce for the permanent dissolution of the marriage under relevant provisions of Hindu Marriage Act,duly following procedure established by law.  

Whether Panchayat can declare love marriage[Inter -caste or Inter -religious ]has null& Void 


Panchayat  or community elders can not declare any legal marriage[inter caste or religious] has null and void.It is against law and Constitution.The supreme court of India has taken serious view of such panchayat orders ,also stated  that  criminal cases should be booked on khap panchayat members for inciting innocent people to kill lovers. 

Whether Panchayat can declare Sagotra marriages[same gotra ] null &void.

The division bench[lead by Gajendragadkar.J ] upheld constitutional validity of sagotra marriages among Hindu.The secular Hindu Law recognizes sagotra marriages.

The opposing the sagotra marriages amounts to violation of the law and Constitution,The Apex court said those who are opposing sagotra marriages and inciting violence against couples should be booked under law.

FAIR TRIAL TO MARRIAGE THEORY -WAIT PERIOD

FAIR TRIAL TO MARRIAGE THEORY-WAIT PERIOD

We often come across stories,newly married couples going for divorce after marital discord with in few months and some times,with in  few weeks or few days.[in exceptional cases].

whether it is arranged or love marriage ,breaking up with in few months has become common phenomena in this Information& Communication Technology age and highly competitive modern urban life.Where we don't have time to communicate and understand each other.In Anju Jain case ,a highly qualified couple filed mutual consent[H.M.S13B]application for divorce,the same  was rejected on technical grounds ,as it was filed with in 48 hrs of marriage.

The marital discord are due to several reasons like incompatibility mismatch,misunderstanding,ego clashes and other reasons,which is effecting the peaceful marital  life and cohabitation.

The couples in an emotional flareup takes an hasty decision to end the marital relationship permanently for trivial and insignificant reasons.

There are many reasons for modern marital discords among modern couples [who are opting for mutual consent divorce] like nuclear families,working couples,financial independence,career choices,mismatch and  carefree attitude or individualistic mindset[both are extremely ego-centric,lacks adjustment mentality,inability to take up family responsibility ] 

The court in number of cases opined that the divorce should be granted,only if ,it is convinced that it is a fit case of "Irretrievable Breakdown of Marriage ",where there is no possibility  of patch up or conciliation between parties.

The court gives ample opportunity to couples to patch up the differences and save marital relationship.In view of this principle enunciated in statutory law [Marriage act or civil procedure code ],the conciliation efforts should be made for effective resolution of marital discord before issuing the degree for the dissolution of the marriage.

The court keeps the  application for divorce in cold storage for some time,it can be called 'cooling period' or 'wait period' ,with an apprehension that couples may patch up their differences  before the court take up their application for divorce. 

FAIR TRIAL TO MARRIAGE THEORY:

The Hindu Marriage Act 1955 as well as Special Marriage Act 1954 lay down that no petition for divorce shall be presented before period of  one year has lapsed since the solemnization of marriage,unless it is a case of extreme hardship or exceptional hardship or exceptional depravity,however ,there is no exact definition of hardship or depravity in the act.

This bar does not apply to nullity of marriage or judicial separation.This is also called "Fair Trial theory". 

The "Fair Trial to every Marriage" was first introduced in the England for the first time in Matrimonial Causes act .1937 ,India also adopted English Common law principles,No other personal law in India has this kind of provision except Hindu Marriage act 1955 and Special Marriage Act 1954.

Irretrievable Breakdown of Marriage not consonance with Fair Trial theory,If spouse commits adultery,extreme cruelty,suffering from venereal diseases or communicable diseases,perverted sexual behavior or unwanted behavior,in such cases "Fair Trail Theory" carries no meaning.

The wait period has been reduced to six months,it has been further reduced to three months after apex court verdict [ mutual consent is being granted in 2 or 3 sittings],there is lot of criticism for waiving of wait period ,it amounts to easy divorce.

 

Re-marriage -Wait period : 

Under both HM act as well as SM act ,no person will be allowed to re-marry before the decree of divorce granted,they can only marry after appeal is disposed off or only after  appeal limitation period has lapsed.However ,in Muslim law ,parties can re-marry after idda period.

 

Outsourcing Pregnancy&The Concept of Surrogacy: Need for Effective Laws.

Outsourcing Pregnancy&The Concept of Surrogacy: Need for Effective Laws. 

India is one of the hot destination for outsourcing of  IT &IT enabled services, taking advantage of India's cheap labour market ,Pregnancy is being outsourced to India for the same reasons like cheap surrogate market& cost effective hospitals.   

It is well known fact India is becoming health tourism destination for many foreigners ,especially Britain, France, the United States, Canada, Singapore, Japan, Australia, West Asia and Israel. 



The surrogate mother market is million dollar market in India, about 500-1000 hospitals , offering special packages to attract foreign tourist opting Indian surrogate mother ,which is cost effective&cheap[10 -25 lakh],when compared to other country.

The city of Anand in Gujarat is well known medical tourist destination for surrogate mother market.In 2008,a  study valued the assisted reproductive industry in India at $450 million a year speaks volumes of growth of surrogate mother market.

.   

The under privilege class people suffer from unemployment,poverty, and vicious circle of debts,prompting them to earn quick bucks through unusual methods to overcome their financial crises ,during mid 19th  and early 20th  century people used  sell blood and vital body organs like kidney to yearn handsome amount from rich patients to overcome financials crises and poverty.

The new phenomena of commercial surrogacy  has emerged in India.which is attracting lower and middle class women to rent their womb for commercial gains,they are being lured to carry some one else foetus for good amount of money,unmindful of dangerous  health consequences. 

Moot points involved in the issue:

• There is no comprehensive regulatory law in India to regulate the surrogate pregnancy and protect mother rights , since it was legalised in 2002 ,Assisted  Reproductive Technology is pending before parliament.

• There is a need for international convention to regulate world wide surrogate market.

• There is no statutory body regulate the surrogate pregnancy,especially when foreigners opting Indian mothers as it is cost effective &cheaper for them.

• Surrogate mothers should be educated properly about health and social consequences before opting to become surrogate mother.There should restrict number of surrogate pregnancy for women ,to avoid complications and health hazards.     

• The most agreement entered by both parties surrogate mother and commissioning parents  are one sided version,while they ignore miscarriages and health consequences of surrogate mother.

•  Only child centric agreement is made,the surrogate has no rights over the child after delivery.  

• The heath professionals should be trained properly to handle the sensitive cases or issues like privacy of surrogate mother. 

The proposed new ART bill :

The ART Regulation Bill,prepared by the Indian Council of Medical Research(ICMR),proposes to restrict number of surrogate unto five  and raising the age of donors to 21 yrs. The surrogate mother   cannot be less than 21 years or over 35 years.

It will make it mandatory for all clinics involved in treating infertility through procedures like artificial insemination with husband's semen(AIH)or in-vitro fertilization-embryo transfer (IVF) to get registered in the country's maiden National Registry of ART clinics. 

References :

• http://www.guardian.co.uk/commentisfree/2012/jun/05/india-surrogates-impoverished-die

• http://www.webmd.com/infertility-and-reproduction/features/womb-rent-surrogate-mothers-india

• http://www.labnol.org/india/interesting/infertility-surrogate-mothers-india/2040/ 

• http://articles.timesofindia.indiatimes.com/2012-05-17/ahmedabad/31748277_1_surrogate-mother-surrogacy-couples

• http://www.nytimes.com/2011/10/05/world/asia/05iht-letter05.html

• http://timesofindia.indiatimes.com/city/mumbai/Time-for-law-on-assisted-fertility-technology-experts-say/articleshow/14857486

Money Lenders are Village ATM

Money Lenders are Village ATM

Money lending business is risky business,one of the most difficult and embarrassing  aspect of business is recovering the money from the debtors.There is due procedure established by law for recovery of the money from the debtors like filling civil suit in civil courts,in several cases,High Courts and Supreme Court maintained that creditors should follow "Due Procedure Established by Law",came down heavily on creditors for coercive methods  i.e  Money Lenders,Finance companies,Banks and Micro Finance,while recovering the debt from debtors.    


There is huge short fall of rural finance,despite governmental schemes like "Paula Vaddi" and Women SHG,as cost of agriculture production has increased manifold proportions due to green revolution and more over ,rural people are also becoming materialistic and consumerist like urban counter parts.The ugly dowry system has spread to rural society.

The AIl India Debt and Investment Survey (NSS Fifty-Ninth Round) has revealed that share of institutional agencies in the total cash dues of urban households had increased from 72 per cent in 1991 to 75.1 per cent in 2002 and that of moneylenders had also increased during the period from 10.2 per cent to 14.1 per cent.

There were two legislation pertaining to money lending business in A.P ,i.e. Telangana Area Money Lenders Act, 1349 Fasli and  Andhra Region Schedule Area Money Lenders Regulation, 1960.

It is well established that  money lender cannot claim debt or liability from his debtors without valid money lending licence. But money lenders[Dora/Patel or Thakur]of villages of Telangana carry money lending business[instant finance] without obtaining any statutory license and indulging in forceful recovery of the loan amount ,double the principle amount ,which is against the RBI guidelines.It will also leads to servitude and slavery of poor villagers in the hands of influential money lenders,eventually,creditors will not only dominate the village  politically, but also every aspect of village life.The coercive tactics results in dehumanization of debtors ,resulting suicides effecting the stability of the society. 

In Kamala Mani V Subrmanyam 1980(2) Alt 178  "the Legislature has willfully and deliberately chosen to restrict the scope of the meaning of the expression ''loan'' only to cases of advances made with interest" 

The most of the hand loans lend to poor villagers are through oral agreements or amount entered in their personal diaries ,where they don't even enter principle amount with rate of interest,which is against statutory provisions.Some of the hand loans does  come under legal scrutiny  and  does not come under purview of the Money Lenders Act,1349 Fasli,[Trader to Trader ]    

What Money Lenders  Act says:

Who is money lender ,the legal enforceability of debt and what is debt as defined in the Andhra Pradesh (Telegana Area) Money Lenders Act, 1349 Fasli

 The Money Lenders Act. Act No. V of 1349 F. Was passed by the erstwhile Hyderabad Government and its preamble is as follows:-

"Whether it is expedient to regulate the transactions of money lending and to make better provision for its control; it is hereby enacted as follows:-
Section 2 (4) defines the loan as follows:"Loan" means a loan secured or unsecured, advanced on interest in cash or in kind and shall include every transaction which is in substance a loan but shall not include the following:

....(g) a loan advanced by one trader to another trader in the ordinary course of business, in accordance with practice in trade."

Section 2 (7) defines the money lender as follows:-

"(7) 'Money lender' means a person including a pawn broker, who within the meaning of this Act, only advances loan in the ordinary course of his bossiness or does so along with other business, and shall also include the legal representative of such person and the person claiming to be his representative on the ground of succession or assignment or otherwise."

Section 3 provides for registration of money lender,. Sub-section (5) (a) of Section 3 is as follows:

"No money-lender shall carry on in any district the business of money lending without obtaining a licence provided for in sub-section (2)

(b)if any person contravenes the provisions of clause (a) he shall be punished with rigorous imprisonment for a term which may extend to six months or with fine or with both. The fine imposed shall in case of default be recoverable as arrears of land revenue. The Taluqdar shall have power to award punishment, under this clause. An appeal against his order shall lie to the Sessions Judge.

(c) An offense under this sub-section shall be cognisable and bailable."

Section 5 provides for the maintenance of accounts and the furnishing of statements thereof to debtors by money lenders. Section 6 applies to additional accounts to be maintained by pawn brokers. Section 9. Which provides for the procedure of court is as follows:

"Notwithstanding anything contained in any law for the time being in force, in every suit relating to loan.

(1) The Court shall frame and decide the issues wither the money leader is a money lender as defined in sub-section (7) of Section 2 and whether he has complied with the provisions of Section 3 and of clauses (a) and (b) of sub-sec. (1) of Section 5, and sub-sections (1) and (2) of Section 6.

(2) If it is proved that the plaintiff is a money lender as defined in sub-section (7) of Section 2 but does not hold a licence granted under Section 3 the Court shall dismiss his suit.

(2-A) If it is proved that the money lender has not complied with the provisions of clause (a) of sub-section (1) of section 5 or of sub-section (1) of Section 6 or of section 8 and the plaintiff's claim is established in whole or in part, the Court may, in the circumstances of the case, disallow the whole or any portion of the interest due and may disallow the cost wholly or in part.

(3) If is proved that the money lender has not furnished the debtor with a statement of account in accordance with the provisions of clause (b) of sub-section (1) of Section 5 or sub-section (2) of Section 6 the court shall in computing the amount of interest, exclude the interest in respect of every period for which the money-lender has not furnished the debtor with the statement of account."

XX XX XX

"From a reading of the above provisions it is clear that the object of the Act is to serve the public purpose and protect the borrowers from unscrupulous and usurious money lenders by prohibiting them from lending moneys without obtaining licence on pain of imprisonment as well as by empowering courts to dismiss the suits of such money lenders"

The Legal enforceability -Valid License

Baba Finance Corporation V. Mohd. Nayeem And Another: (1997(1) ALD (Crl) 719 (AP)) in which it was held as under:"... if it is proved that the plaintiff is a money-lender as defined under the Act {A.P.(T.A) Money Lenders Act} and if he does not possess licence in question, the Court shall dismiss his suit. In other words, such a money lender cannot claim debt or liability from others, from his debtors without valid money lending licence. ...." 

Veralaxmi v. Syed Kasim Hussain 1962 (2) Andh WR 137:AP High Court DB

"The scope of money-lenders under the Hyderabad Money-Lenders Act is discussed in this case. The Division Bench of A.P High Court observed "that in order to fall within the definition of money-lender it would not merely to show that the man had on several occasions lent money at remunerative rates of interest. There must be certain degree of system and continuity about the transactions. It is further held that the definition of money-lender envisaged only those classes of persons whose regular business is to advance moneys and not to those who advance moneys casually."

Munagala Yadagiri v. Pittala Veeriah 1958(1) Andh WR 413:AP High Court -DB

In this case it was held by the Division Bench of A.P High  Court that "if a professional money-lender who has not obtained a licence cannot maintain a suit for recovery of amounts. It is further held that a person who seeks to non-suit the plaintiff should necessarily allege and prove that the plaintiff is a professional money-lender. "Obviously, the plaintiff cannot prove the negative viz., that he is not a professional money-lender, it is for the defendant to allege and prove that the plaintiff is a professional money-lender."

Somanath Baraman v. Jagannatha Rao: AIR 1973 AP 144: APHC DB

"A stray or casual transaction by a person not possessing the licence would not amount to a transaction done in the ordinary course of business."

Kaloji Talusappa Gangavathi vs Khyanagouda And Ors. on 9 April, 1970:AIR 1970 SC 1420, (1970) 3 SCC 862

"Section 9 of the Hyderabad Money Lender Act clearly establish that if it is found that the plaintiff was carrying on business as a money-lender on the date of the transaction without a licence the Court is bound to dismiss the suit."

Mc. Gardie. J. In Edgelow v. Mac Elwee (1918 ) 1 KB 205 at p. 206
"A man does not become a money lender by reason of occasional loans to relations, friends or acquaintances whether interest be charged or not. Charity and kindliness are not the bases of usury. Nor does a man become a money lender merely because he may upon one or several isolated occasions lend money to a stranger. There must be more than occasional and disconnected loans. There must be a business of money-lending and the word 'business' imports the notion of system, repetition and continuity.

New Law 

 Andhra Pradesh Money Lenders' Bill 2010:

• Money lenders should maintain a cash book , ledger, register of securities and other such accounts books. 

• Should not collect more than the interest rates fixed by the government for any local area. 

• Prohibited from collecting interest more than the principal amount 

• Restricted from taking any promissory note, acknowledgment or other documents without mentioning the principal.

 Conclusion :

• Hand Loans should be given by Licensed Money Lender.

• Hand Loans should be given as per individual re-paying capacity ,annual income of the debtors should taken into considerations, while approving the hand loans.

• Recovery of Loans should be through "Due Procedure Established by Law" like filling  civil suit in competent court of law. 

•  Zero tolerance to coercive methods,coercive methods lead to personal humiliation,which will increase the rural suicides. 

• Rural Money Lenders[licensed] should seek the help of village panchayats by adopting Alternate Reddressal of Disputes[ADR] methods,which is humane way of dealing the disputes.   

 References : 

•  http://indiankanoon.org/doc/1817910/

•  http://indiankanoon.org/doc/1334283/
•  http://indiankanoon.org/doc/1086827/ 

•  http://rbidocs.rbi.org.in/rdocs/PublicationReport/Pdfs/78893.pdf
•  www.mdevlaw.com

• http://www.andhranews.net/State/2010/April/7-money-lending-business.asp#ixzz20iQZfFVl

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Author of this informative piece of article is Practicing Advocate based at Hyderabad and worked for A.P Women Commission for some time ,holds First Class Master Degree in International Law[LLM],traveled extensively in rural areas of A.P.