LAW AND SOCIETY

Sunday, July 22, 2012

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

Sunday, July 15, 2012

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://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.

Monday, May 14, 2012

Genocide:A Gravest Crime Against Humanity Under International Humanitarian Law

Published in Orient Journal of Law and Social Sciences[ ISSN 0973-7480] Volume VI ,Issue-April 2012 ;Page -102-106:

Genocide:A Gravest Crime Against Humanity Under International Humanitarian Law*

“Laws are silent amidst of the clash of arms” –Cicero

The raw violence is result of power struggle, domination over the territory and false perception of superiority of race or ethnic community or religious community ,the history has witnessed many wars ,armed conflicts and mass killing without showing any mercy, killings not only include armed people but also non-armed people.

The history witnessed mass butchery of tribals,,ethnic and religious groups and no mercy shown on women and children, which resulted in adoption of various conventions and treaties ,which called for codification of the rules and laws relating to the laws of warfare and human rights.

The Genocide is regarded as crime against humanity under international law ,but also uncivilsed act in civilsed world ,moreover against the spirit of U.N charter as well as Universal Declarations of Human rights. The Genocide means systematic mass killings or ethnic cleansing of group during armed or non- armed conflicts.

Definitions:

There is no universal accepted definition of the word ‘genocide’, there is no single definition to say what constitute genocide? It is apt to discuss several definitions for broader understanding of the word ‘Genocide’ "The deliberate and systematic destruction of a racial, political, or cultural group "[1] The Genocide is defined as "the deliberate and systematic destruction, in whole or in part, of an ethnic, racial, religious, or national group" [2]The word Genocide derived from the Greek word “genos”, for race or tribe, and the suffix “cide” from the Latin for “to kill" [3]

The term "genocide" did not exist before 1944.It is a very specific term, referring to violent crimes committed against groups with the intent to destroy the existence of the group.It is a gross violation of Human rights, as laid out in the U.S. Bill of Rights or the 1948 ,United Nations Universal Declaration of Human Rights, which concern the rights of individuals.

The word ‘genocide’ was first defined by Raphael Lemkin' , Lemkin's idea of genocide as an offense against International Law was widely accepted by the international community and was one of the legal bases of the Nuremberg Trials.

Chalk and Jonassohn opined : "Genocide is a form of one-sided mass killing in which a state or other authority intends to destroy a group so defined by the perpetrator”[4] "The term Holocaust", means the mass murder of Jews under the German Nazi regime in World War II.[5]

The International Legal Definition:

United Nations General Assembly[1946] Resolution 96 (I) (11 December) therefore, affirms that genocide is a crime under international law .whether the crime is committed on religious, racial, political or any other grounds."The international legal definition of the crime of genocide is found in Articles II and III of the 1948, the Convention on the Prevention and Punishment of Genocide. (CPPCG) was adopted by the UN General Assembly on 9 December 1948 and came into effect on 12 January 1951 (Resolution 260 (III))[6]. "Any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life, calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; [and] forcibly transferring children of the group to another group"
Article II describes two elements to constitute the crime of genocide:[7]
1) the mental element, meaning the "intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such", and 2) The physical element which includes five acts described in sections a, b, c, d and e. A crime must include both elements to be called "genocide." Article III described five punishable forms of the crime of genocide: genocide; conspiracy, incitement, attempt and complicity. This definition has been criticized by many scholars and experts on the ground that it eliminated political and social groups.
M. Hassan Kakar in his book “The Soviet Invasion and the Afghan Response, 1979-1982 says that the international definition of genocide is too restricted[8]

History of Genocide:The Old Testament describes the genocides of Amalekites and Midianite, Genghis Khan of mongol is Known for killing boys and men of captured cities and also kidnapping the woman and girls.

Christopher Columbus landed on American soil in 1890,which lead to massacre of Sioux at Wounded Knee by the United States military on December 29, 1890[9], there were several instances of destruction of American aborigines.

The Armenian Genocide: Armenian genocide during world war -I during Ottoman Empire. Armenian deaths is between 1 million and 1.5 million in the year 1915.It is regarded as first modern genocide in the world.

Nazi Genocide of Jews: One of the prominent genocide case was Jews prosecution during Second World War [1933-45:], It is estimated that six million Jewish men, women and children were systematically murdered in extermination or "death" camps located in Eastern Europe .by Nazi army led by Adolf Hitler, which became subject of debate as a war crime during second world war. Nuremberg &Tokyo tribunals were formed to prosecute war criminals during Second World War holocaust.

Partition of India & Pakistan: During Partition of India in the year 1947, millions of Muslims, Hindus and Sikhs were slaughtered or disappeared for being on the wrong side of the newly formed border.

Bangladesh Liberation war :The Guinness Book of Records lists the atrocities by General Agha Mohammed Yahya Khan of Pakistan on Bengali intellectual, cultural, and political elite in East Pakistan(now known as Bangladesh) during Bangladesh Liberation war, in the year 1971 as one of the top 5 genocides in the 20th century.

Sikhs in India: Hundreds of Sikhs died during army operations, while tackling separatist agitation and mass killing of Sikhs aftermath of assassination of Mrs. Indira Gandhi [then Prime Minster of India] in 1984.

Bosnia & Herzegovina[Yugoslavia]:In 2001, the International Criminal Tribunal for the Former Yugoslavia (ICTY) was formed to investigate crime against humanity in Bosnia and Herzegovina and it delivered its first conviction for the crime of genocide, against General Krstić for his role in the 1995 Srebrenica Genocide. It is estimated that civil war killed people at around 100,000–110,000 and most devastating conflict after world war –II

Rwandan Genocide:In ,1994 mass murder of an estimated 800000 people were reported in small East African nation of Rwanda. [Hutu –Tutsi conflict]The International Criminal Tribunal for Rwanda (ICTR) is a court under supervision of the United Nations for the prosecution of offenses like genocide committed in Rwanda occurred there during April and May, 1994, it is stated that ICTR has convicted 57 accused persons.

Darfur Genocide:In February 2003, when the Sudan Liberation Movement/Army (SLM/A) and Justice and Equality Movement (JEM) groups in Darfur took up arms, accusing the Sudanese government of oppressing non-Arab Sudanese in favor of Sudanese Arabs.
In January 2005, an International Commission of Inquiry on Darfur, authorized by UN Security Council Resolution 1564 of 2004, to investigate the crimes against humanity and war crimes that have been committed in Darfur in Sudanese civil war.
Chechenian deportation :On February 26 2004 ,the plenary assembly of the European Parliament recognized the deportation of Chechen people during Operation Lentil (23 February 1944), as an act of genocide, on the basis of the 1907 ,two Hague Conventions on laws of war.

East Timor conflict : UN report states that the Indonesian military used starvation as a weapon to exterminate the East Timorese, along with Napalm and chemical weapons, which poisoned the food and water supply. Between 1975 &1999, there were an estimated 102,800 conflict-related deaths (approximately 18,600 killings and 84,200 'excess' deaths from hunger and illness), the majority of which occurred during the Indonesian occupation.

Ethiopian rule :Amnesty International estimates that up to 500,000 people were killed during the Ethiopian Red Terror lead by former Soviet-backed Marxist dictator Mengistu Haile Mariam. The Eritrean–Ethiopian War took place from May 1998 to June 2000.

Cambodia:In Cambodia, the Khmer Rouge, led by Pol Pot, Ta Mok and other leaders, organized the mass killing of ideologically suspect groups, ethnic minorities like the ethnic Vietnamese, Chinese[1975-1979]

Sri Lankan Tamils: Recently ,In Sri Lankan Tamil conflict ,hundreds of minority Tamils were disappeared or killed by Sri Lankan army. On 22nd March ,2012,,the U.N Human Right Council (UNHRC) passed a resolution condemning mass killings[40,000],&human rights violations by the Sri Lankan Army in the name of fighting terrorist outfit LTTE.India is among 24 countries ,which voted against Sri Lanka and in favour of resolution.

Gujarat Violence in India: There were communal riots in 2001, hundreds of minority Muslims were targeted ,after train bogey was burn down at Godhra station,Gujarat.The issue of Gujarat riots has reached Hon’ble Supreme Court of India for impartial inquiry as allegations of failure of state machinery surfaced. during riots.

Formation of International Criminal Court:

The International Criminal Court[10] was formed under Rome statue, 1998. The Rome Statute entered into force on 1 July 2002 after ratification by 60 countries .The ICC can only prosecute war crimes committed on or after 1 July 2002.. The ICC is an independent international organisation, and is not part of the United Nations system. The Court publicly indicted 28 people, proceedings against 23 of whom are ongoing.[as reported in Wikipedia]

Mrs.Mary Robinson of UNHCR said “A strong permanent international criminal court will send out a powerful message of deterrence to all those in positions of power and leadership that they can no longer use terror tactics, systematic rape, ethnic cleansing, mutilation and indiscriminate killing of non-combatants as weapons of war or for any other purpose”[11]

Conclusion:

The Genocide is most heinous crime war against humanity during armed or non –armed conflict. The individual was not a part of International law or Law of nations, there was no legal protection for offences against humanity, but after individual became a part of International Law, there was perceptible change in the outlook of international community in fighting crimes against humanity.

The special war tribunals were set up for prosecuting war criminals after second world war ,the major development of International Humanitarian Law occurred with adoption of four Geneva conventions of 1949, which came into effect on 1950 and two additional protocols of 1977, The International Humanitarian law is regarded as an integral part of Human Rights law. The International Humanitarian law includes two components one is law of warfare and another is human rights law.

Another major development in International law is state terrorism and state torture,now it is regarded as international crime under International Law, the U.N declarations on Torture in 1975 condemned the state torture, it violates Article 7 of International Covenant on civil and political rights, 1966., which came into effect in the year 1976, which clearly prohibit torture as instrument of oppression by the state.

The International criminal court was formed after Rome statue enacted, the ‘genocide’ is recognized as war crime and perpetuators are liable to be prosecuted under ICC charter.

Foot notes:
*Author is Practicing Advocate at A.P High Court,Hyderabad &worked for A.P Women's Commission,Hyderabad.

[1]Funk, T. Marcus (2010). Victims' Rights and Advocacy at the International Criminal Court. Oxford, England: Oxford University Press.

[2] http://en.wikipedia.org/wiki/Genocide

[3]http://en.wikipedia.org/wiki/Genocide#Lemkin

[4]Frank Chalk, Kurt Jonassohn The History and Sociology of Genocide: Analyses and Case Studies, Yale University Press, 1990,

[5]Compact Oxford English Dictionary,1991

[6]http://untreaty.un.org/cod/avl/ha/cppcg/cppcg.html
[7] http://www.preventgenocide.org/genocide/officialtext.htm

[8]M. Hassan Kakar :The Soviet Invasion and the Afghan Response, 1979-1982 University of California press , 1995 The Regents of the University of California.

[9]Massacre At Wounded Knee, 1890," EyeWitness to History, www.eyewitnesstohistory.com (1998).

[10]http://www.icc-cpi.int/Menus/ICC/About+the+Court/

[11]Address by Mary Robinson ,15 june 1998,http:// www.un.ord/icc/speeches/robinson.htm.

References:

1.Charlotte Lindsey: Women facing war-ICRC study on the impact of armed conflict on women ,ICRC,Geneva ,October 2001

2.Compact Oxford English Dictionary,1991

3.Funk, T. Marcus (2010). Victims' Rights and Advocacy at the International Criminal Court. Oxford, England: Oxford University Press.

4.J.G Stark: Introduction to International Law ,Butterworth &co [Publishers]Ltd 1999.[Indian edition].

5.M. Hassan Kakar :The Soviet Invasion and the Afghan Response, 1979-1982 University of California press , 1995 The Regents of the University of California

6.M.K Balachndran &Rose Varghese[editors]:Introduction of International Humanitarian Law ,ICRC,New Delhi 1999

Weblinks :

@All Rights Reserved
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Friday, May 4, 2012

Hindu Marriage&Judicial Remedies

Hindu Marriage&Judicial Remedies :

According to Hindu Philosophy the marriage is holy and permanent union

There is no provision of divorce in ancient Hindu law as marriage is regarded as scared union because it performed by chanting holy mantras.

After codification of Hindu Law, the ancient Hindu Law assumed secular character ,more over the elements of contractual obligations were added in the concept of Hindu marriage,which is otherwise scared union.

Judicial Remedies includes:

Restitution of conjugal rights
Judicial separation
Divorce
Maintenance /permanent alimony

According section 13 of Hindu Marriage Act ,1955 grounds for divorce includes:

Adultery
Cruelty
Desertion
Conversion
Insanity
Leprosy
Venereal disease
Renouncing the world
Unheard for seven years or more

Special grounds for wife :

Bigamy
Rape,sodomy&bestiality
Maintenance decreed to wife -husband not paying the same -ground for divorce,non resumption despite restitution of conjugal rights or judicial separation.
Repudiation of marriage by wife.

Break down theory

Mutual consent divorce

References :
Hindu Marriage Act ,1955.

Monday, April 23, 2012

Essential Ceremonies&Customary Rites in Hindu Marriage:

Essential Ceremonies&Customary Rites in Hindu Marriage:

The Marriage celebrations is a huge occasion among Hindu families with presence of relatives ,friends and Vedic pundits to perform marriage according to Vedic rites&rituals.

Marriage is a union between a male and a female with a commitment to pursue Dharma,Artha-possessions,Kama -physical&other desires&Moksha -the liberation together.

Types of Marriages:Brahma,Daiva Arsha,Prajapatya , Gandharva Asura,Rakshasa,Paishacha-Manu Smrti III.20-34

There is no uniformity of following ceremonies,rites,rituals or customs in Hindu marriages , neither,there is strict rules in Hindu law to be followed for solemnizing marriage nor there is consensus among pundits about essential ceremonies to be followed by Hindu couples.

Most customs,rites or rituals or ceremonies are followed by Hindu's, since time immemorial.Most ceremonies like Homa,Mangalsutra dharan and Saptapadi are followed by Hindu's since Rig veda.

The customs or rituals vary from region to region or caste or family.

In some caste, marriage is performed at Bride Groom place or in some caste, marriage is performed at Bride 's place.

There is no mention of dowry in any texts,but some gifts were given by bride family for starting new married life as matter of custom /usage

Some Ceremonies commonly observed in most Hindu marriages :

Welcoming Bride Groom/Barat with Arthi

Sankalpa

Ganapathi Puja [Ganesh prayers ]

Kannyadaan

Akshatropanam

Mangalsutrabandhanam

Paani Grahanam

Laja Homa

Agni Pradakshina

Saptapadi

Arundhati darshanam

Nishekam

Dravidian marriage or South Indian marriage :

Nichayathartham[Engagement ceremony or exchange of rings,reading out lagna patrika ]

Varapuja-edurukolu[Welcoming ceremony]

Kasi yatra

Ankurarpanam

Gowri Pooja by bride

Sankalpam

kanyadanam

Sumuhoortam

Mangalya dharana -Tying 3 knots

Talambralu -Rice shower

Sadasyam Nagavelli

Saptapadi- 7 steps before holy fire
- Step 1-May the first step lead to food that is both nourishing and pure.
- Step 2 -May the second step lead to strength (at the physical, emotional, intellectual &spiritual levels).
- Step -3-May the third step lead to prosperity.
- Step-4-May the fourth step lead to all round happiness.
- Step-5-May the fifth step lead to progeny (noble & virtuous children).
- Step -6-May the sixth step lead to long life.
- Step-7-May the seventh step lead to bondage (through harmony).

Laja homam

Arundhati darshanam-Meditating on the Pole star & the Arundhati star.

Mangala harati

Grihapravesham-House warming ceremony

Satyanarayana vratam -Puja

Nishekam

Essential Ceremonies under Codified Hindu Law :

In Hindu marriage Act ,1955 there is no set of prescribed ceremonies for solemnizing marriage,section-7,expressly provides how marriage to be solemnized;

"1.A Hindu Marriage may be solemnised in accordance with the customary rites and ceremonies of either party thereto.

2.Where such rites and ceremonies include the Saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken."

The performance of marriage is complete with 7th step taken by the couple before holy fire,so saptapadi is most important customary rite recognized by Vedic customs as well as codified Hindu Law.

The merely wearing Mangalsutra or Sindur on forehead does not constitute legally accepted marriage,if other rites like saptapadi before holy fire were not performed.but Homa or Kanyadhan is not obligatory in Hindu marriage act.

Important case laws :

"Under the Hindu system of law, clear proof of usage will outweigh the written text of law."Collector of Madura v Mootoo Ramalinga.

If essential ceremony like saptapadi is not perfomed ,such marriage is not legally accepted-Shanti Dev Barma v. Kanchan Prawa AIR 1991 SC 816.

Bhrama form of marriage not essential after the enactment of Hindu Marriage Act, for valid Hindu Marriage according to A P High Court in Ramlal Agarwal v. Shantadevi AIR 1999 AP 251.

Custom permit a sudra to become sanyasi-Krishna Singh V Mathura Ahir 1980 SC707 ,1980 AIILJ 299

Udiki Marriages for widows amongst Munnuru kapus community upheld .not to be proved-Malakayya And Anr. vs Avait Bhommayya And Anr.,AIR 1971 AP 270,1971 1 Anwr 143 ;Serai Udiki marriage among Pancha- masal Lingayats ,proof unnecessary-Shakuntala Bai&Anr.V. Kulkarni&Anr.1989 AIR 1359, 989 SCR (2) 70, 1989 SCC (2) 526 , JT 1989 (1) 607,1989 SCALE (1)737.

Essential ceremonies must be proved for allegation of second marriage- Bhaurao Shankar Lokhande&Anr vs State Of Maharashtra & Anr ,1965 AIR 1564, 1965 SCR (2) 837.
A distinct community called Dudekulas consist of Mohammedans or Hindus,Governed by Hindu Law-Dudekulas belongs to Cuddapah district of A.P,who were originally Hindus but some generations ago began to adopt certain usages of Muslims so far as marriage and some social customs in general and they have been living as joint families following the incidents of Hindu families and customs-Rosanna v. Subbanna, ILR (1970) A.P. 1010

The taking of seven steps by the bride and the bride-groom together before the nuptial fire and the performance of 'nuptial homa' are the two essential ceremonies of a Hindu marriage. The ceremony known as 'Kushandika' is associated with 'nuptial homa' and the performance of a Sanskar. The evidence conclusively shows that at the time of performance of 'Kushandika' on the following morning both the ceremony of Saptapadi Gaman as well as the performance of homa had been done together and that the marriage became complete and binding between the parties-Rabindra Nath Dutta vs The State ,AIR 1969 Cal 55, 1969 CriLJ 164

Definition of wife defined :"Whether a marriage performed according to customary rites and ceremonies, without strictly fulfilling the requisites of Section 7(1) of the Hindu Marriage Act, 1955, or any other personal law would entitle the woman to maintenance under Section 125 Cr.P.C.? "We are of the opinion that a broad and expansive interpretation should be given to the term ‘wife’ to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a pre-condition for maintenance under Section 125 of the Cr.P.C, so as to fulfil the true spirit and essence of the beneficial provision of maintenance under Section 125."-G.S. Singhvi.J.&Ashok Kumar Ganguly in Chanmuniya v Virendra Kumar Singh Kushwaha,(2011) 1 SCC 141 In this case ,the Additional Solitor General told Supreme Court that "use of word keep one-night stand’ sexist, derogatory".

The Custom among Kammas of A.P that presents [pasupukumkuma] given to bridegroom by bride people shall be returned to them in the event of the bride dying issue less-intestate is established beyound doubt -N. Venkata Subba Rao v. Tummala Bhujangayya 1960 (1) An.WR 215.

The Custom,wife to get back dowry from estranged husband is valid -Venkateshwara Rao V Ganga bhavani ILR 1976 AP 26

References :

Essays in Classical and Modern Hindu Law-John Duncan Martin Derrett

http://indiankanoon.org/doc/1223472/

http://en.wikipedia.org/wiki/Viv%C4%81ha

http://indiankanoon.org/doc/1223472/

http://www.indiacourts.in/CHANMUNIYA-Vs.-VIRENDRA-KUMAR-SINGH-KUSHWAHA---ANR._0872e674-380b-4392-b622-42fda02f3f07

http://www.indiankanoon.org/doc/874780/?type=print

Tuesday, April 17, 2012

The concept of Hindu marriage

The concept of Hindu marriage:

Ancient Hindu Law&Marriage

The institution of marriage is as old as Rig Vedic and was given importance in Veda's,the marriage in Hindu philosophy is holy and scared union.

Marriage is one of 16 samaskara's as propounded by Veda Vysa,it is stated that Sudra has only one samaskara ,that is marriage.

One of the important stage of Hindu man's life is called Grihastha or married man [like Brahmacharya-Student,Grihastha-Household life ,Vanaprastha- Retired life , Sanyasa: Renounced ].

The purpose of marriage is not to beget children or sexual fulfillment ,but also to perform holy ceremonies ,Hindu wife is called 'Ardhangini' one half of man[Manu said "the man's personality is incomplete unless he gets wife",husband can not perform religious ceremonies without presence of wife[Sri Rama used Sita statue,in her absence in Yagna]

The married women is given utmost importance in Hindu society,ironically ,widow or single women&divorcee [even widow re-marriage prohibited]are not given much importance during certain Hindu ceremonies,which lead to mass social movements lead by Raja Rammohan Roy,Dayanand Saraswathi,Eshwarchand Vidhya sagar.

The gotra and surname of wife changes, as she will be regarded as family member of husband.

The Ancient Hindu law allowed polygamy[under certain conditions]but monogamy was prohibited , but Drupadi case of marrying five men [Panch Pandavas]was an exception to the rule.

There was no provision for divorce in ancient Hindu law as marriage was performed by chanting holy hymns [Mantra's].The wife leaves father's house for ever and become a member of husband's familiy for generations, the marriage is for seven generations.

In ancient Hindu law ,the offences of against marriage like Adultery was regarded as sin and wrongdoers were punished as well as ostracized from the society ,even prohibited to participate in social activities.The inter-caste marriage or [same]sagotra marriage was strictly prohibited in ancient Hindu law.

Secular Hindu Law :

The Hindu code bill was introduce for the first time during interim-parliament session by Law Minister Dr.B.R Ambedkar ,but there was no progress as Dr Ambedkar resigned from the Ministry.After first general election [1952] ,four acts into existence during year 1955-1956.

Hindu Marriage Act ,1955.
Hindu Succession Act ,1956
Hindu Minority and Guardianship Act ,1956
Hindu Adoption and Maintenance Act,1956

Conditions for Valid Hindu Marriage under Hindu Marriage Act ,1955:

Sec-5:Conditions for a Hindu marriage-A marriage may be solemnized between any two Hindus,if the following conditions are fulfillled,namely-

(i)Neither party has a spouse living at the time of marriage;

(ii)At the time of marriage, neither party,

(a)Is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(b)Though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c)Has been subject to recurrent attacks of insanity;

(iii)The bridegroom has completed the age of [twenty-one years] and the bride, the age of [eighteen years] at the time of marriage;

(iv)The parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;

(v)The parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.

Reference :

Kane,P.V.(1973),History of DharmaŚãstra,Poona: Bhandarkar Oriental research Institute.
Mulla -Hindu Law

http://indiankanoon.org/doc/1762508/

Monday, April 9, 2012

The Concept of Hinduism,Hindu Marriage&its Essential Ceremonies

The Concept of Hinduism,Hindu Marriage&its Essential Ceremonies:

Series of Posts on Hindu Law

The concept of Hinduism.

Hindu Marriage.

Essentials of Hindu marriage.

The divorce and maintenance under Hindu Marriage Act .

Who is an Hindu ? What are definitions of Hindu or Hinduism?

The word 'Hindu' is derived from the Sanskrit word 'Sindhu', It was first mentioned in the Rig Veda.

Hinduism is not religion "way of life" [S.C] ,it is not institutionalized religion or no religious central authority exists for Hinduism like Vatican church.

According Section 2 Hindu Marriage Act 1956[Legal definition of "Hindu"]

(a) to any person who is a Hindu by religion in any of its forms and developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,(b) to any person who is a Buddhist, Jain or Sikh by religion, and“(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion”

The Indian constitution does not define word 'Hinduism' includes a Virashaiva,Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj.

It is well accepted that the word 'Hindu' derived from Sindhu river or Indus [ NW frontier province / Punjab, now in Pakistan] ,the Persians used to pronounced Sindhu as Hindu,basically Aryans, who settled in Indus Valley were also called as Hindus.

Hinduism is world oldest living religion ,as old as Harappan period (5500–2600BCE).The epics s Ramayana and Mahabharata were written roughly from 500–100BCE.

It has third largest followers after Christianity and Islam .

The Arabic term al-Hind referring to the land of the people ,who live across river Indus.

" to many Hinduism seems to be a name without any content. Is it a museum of beliefs, a medley or rites, or a mere map, a geographical expression" in "The Hindu View of Life" by Dr. S Radhakrishnan,

Hinduism is often referred to as Sanatana Dharma (सनातन धम) by its practitioners,a Sanskrit phrase meaning "the eternal law".

Sources of Hindu Philosophy includes,Vedas[divine revelations sruti,four Veda's-Rigveda,Yajurveda&Sama veda],smriti[Laws of Manu],Upanishads,Purana's and Itihasa.

Mahabharata and Ramayana are considered holy epics in Hinduism. [500–100BCE]

Sikhism,Jainism,Buddhism are off-shoots Hinduism are governed by Hindu Law.

Hinduism believes every aspect of life holy, the marriage is one of the Sixteen Samskaras[Samaskaras propounded by Veda vysa holds important other 's sages theory],which Hindu's believe sacrament or religious duty.

"When we think of the Hindu religion, unlike other religions in the world, the Hindu religion does not claim any one prophet; it does not worship any one god; it does not subscribe to any one dogma; it does not believe in any one philosophic concept; it does not follow any one set of religious rites or performances; in fact, it does not appear to satisfy the narrow traditional features of any religion or creed. It may broadly be described as a way of life and nothing more."-Chief Justice P. B. Gajendragadkar.

"Acceptance of the Vedas with reverence; recognition of the fact that the means or ways to salvation are diverse; and the realization of the truth that the number of gods to be worshipped is large, that indeed is the distinguishing feature of Hindu religion." -Bal Gangadhar Tilak

A diverse body of religion, philosophy, and cultural practice native to and predominant in India, characterized by a belief in reincarnation and a supreme being of many forms and natures, by the view that opposing theories are aspects of one eternal truth, and by a desire for liberation from earthly evils-The Free Dictionary.

"Hinduism is practiced primarily in India, Bangladesh, Sri Lanka, and Nepal. It is a diverse family of devotional and ascetic cults and philosophical schools, all sharing a belief in reincarnation and involving the worship of one or more of a large pantheon of gods and goddesses, including Shiva and Vishnu (incarnate as Rama and Krishna), Kali, Durga, Parvati, and Ganesh. Hindu society was traditionally based on a caste system"-2012,Oxford University Press.

Supreme Court &H.C Judgements &Definition of Hinduism :

Gopal Narhar Safray v. Hanmanl Ganesh Safray (1879) I.L.R. 3 Bom. 273,

Lingayats founded by Basava [12th century] believes only one God, Siva, and reject the other two persons of the Hindu Triad[Brahma&Vishnu]They reverence the Vedas, but disregard the later commentaries on which the Brahmans rely.Their faith purports to be the primitive Hindu faith, cleared of all priestly mysticism.Lingayats are not Hindus in religion because they are no image worshipers.

The court held Lingayats are Hindus ,they have been subject to Hindu law as applied to Shudras.There is no other special law applicable to them

Nalinaksha Majhi v. Rajanikania Das Mohanta (1931) I.L.R. 58 Cal. 1392.

It was held that under the Bengal School of the Hindu law of inheritance, a Vaishnava of whatever class was entitled to inherit from an ancestor who professed the orthodox Hindu creed and that a person of Vaishnava faith does not renounce the Hindu religion and continues to be a Hindu and professes Hindu religion in his own way, and though he may have seceded from orthodox Hinduism, as Lutherans did from the orthodox Catholic Church, he does not go out of the pale of Hinduism"

Bhatinda v. State of Punjab [AIR 1971 S C 1731] &DAV College, Jullundur v. State of Punjab [AIR 1971 S C 1737]

"even if [institute] established by Arya Samaj, which is merely a part of the Hindu religion, cannot be held to be an institution established by a minority community so as to qualify for protection under Article 30 of the Constitution of India"-Arya Samaj is part of Hinduism ,no separate law exists for Arya Samajis .

Acharya Jagdishwaranand Avadhuta, etc. VS. Commissioner of Police, Calcutta & Anr. [1984 1 SCR 447]

"Whether protection of Arts. 25 and 26 available to Ananda Marga-A socio-Spiritual organisation; No, Ananda Marga is not a separate religion but a religious denomination. Performance of Tandava dance in procession in public streets not an essential religious rite of Ananda Marga."

Brahmachari Sidheswar Shai & Others v. State of West Bengal [AIR 1995 S C 2089]

"Sri Rama Krishna Mission found by Swamy Vivekanad is not separate religion &its institutes can not claim minority status under Article 30" It is well known Sri Rama Krishna was worshiper of Goddess Kali of Kalighath.

Commissioner Of Endowments, vs All India Sai Seva Samaj on 19 October, 2001,A.P High Court Special Bench -Ref.case:2001 (6) ALD 747, 2001 (6) ALT 539:[S Sinha, G Raghuram, V Rao]

"Sai temples are also Hindu temples, Endowment Act is applicable to Shiridi Sai Baba Temples " "can not be treated parallel to Kabir Panth."

The State Of Bombay vs Shastri Yagna Purushadasji on 3 October, 1958 (1959) 61 BOMLR 700

Swaminarayan temple at Ahmedabad and the temples subordinate there to were Hindu religious institutions within the meaning of Article 25(2)(b) of the Constitution.

Swaminarayan Sampradaya[Vaishava sect] is not a different religion from Hinduism.

References :