Archive for ◊ March, 2013 ◊

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• Saturday, March 30th, 2013

Minority Community Must Function In The State Where It Is Minority To Retain Such Character Supreme CourtSupreme Court of India has clarified that in order to retain the character of being a minority institution; the concerned minority institution must stay and operate in the State where it has been declared to be a minority institution.

This means that a minority institution in the State of Haryana cannot claim the same status in Bihar and it can claim the minority status in the State of Haryana alone. The Court has also clarified that Article 30 of the Constitution of India that confers the right upon minority institutions to manage such institutions is not absolute but subject to restrictions.

In short, if a minority institution wants to enjoy minority status, it is not only required to be set up by people from minority categories in a State but also administered by them and the members of a linguistic minority in one State cannot continue running a trust while staying in another State where they are not a minority community.

The Court held that before claiming minority/ linguistic status for an institution in any State, firstly the authorities must be satisfied that the institution has been established by persons who are minority in such a state; and, secondly, right of administration of the said minority/ linguistic institution is also vested in those persons who are minority in State.

The Court also observed that timely directions can be issued by the State government and universities for the maintenance of standard and excellence of such institutions.

This ruling came while the court dismissed a petition by DAV College Trust and Management Society, started in 1885, against a Bombay High Court judgment. In the year 2010, the Bombay High Court had declined to interfere with the Maharashtra government’s decision to withdraw recognition granted on the basis of linguistic minority status after observing that large number of society members was residing in Delhi and not in Maharashtra.

The Supreme Court, while affirming the decision of the High Court, held that these persons cannot be treated as minority in Maharashtra and they cannot claim the protection of linguistic minority in the State as the appellant Trust/ Society is registered at Delhi and majority of trustees reside at Delhi.

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• Friday, March 29th, 2013

Police Busted Racket Of International Call Hacking And Confiscated Two Illegal Exchange Towers In BiharThe Bihar police have unearthed a racket of international call hacking and confiscated two illegal exchange towers and modems at the houses of brick kiln businessmen.

The accused have been detained and questioned for their involvement in the racket by the police.

The two accused were diverting international calls through two exchange towers for which they had entered into an agreement with a “fake” Noida-based company.

This call hacking racket caused losses to Indian as well as Nepalese cell phone companies.

The place of the crime is also located near the border and this has raised a security alarm as well.

The Nepal police, who have been informed about the confiscation of illegal exchange towers, are likely to join the Bihar police and help nail the other culprits.

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• Friday, March 29th, 2013

Unrecognised Primary And Middle Schools Of Delhi Would Be Benefited By Relaxed Educational NormsEducation in Delhi has become a very complicated issue. Whether it pertains to pre school education or higher education, there are many shortcomings of educational system existing in New Delhi. This is the reason why PhDs in India are dying as corruption and mismanagement is taking its toll upon higher education of India.

Besides corruption, mismanagement and lack of transparency also exist in this educational system. On top of it, the Right to Education Act of India has failed to bring the desired results. As a natural result, the education mafia in New Delhi is flourishing unstopped rather encouraged due non action on the part of Indian government.

The education mafia is managed by few big schools that have obtained a monopolistic position in Delhi. The mid and small sized schools are at loss on all counts. Neither parents wish to get their wards admitted in these schools nor are the regulations and norms conducive for their growth.

The unrecognised primary and middle schools in Delhi are worst affected. Many such schools are on the verge of closing due to the fact that they cannot meet the criteria and regulations existing as on date under the Right to Education Act of India. The fate of students enrolled at these schools is also in dark.

Delhi Education Minister Kiran Walia has recently allayed the fears of such schools and their students by stating that relaxed norms have been formulated to tackle this situation. She also said that there would be no closure of any pre-primary school (which runs nursery and KG classes) as Delhi High Court has decided that the pre-primary schools do not fall under the Right to Education Act and as such they need not to apply for recognition.

Under the Right to Education Act of India it is mandatory on the part of schools to get themselves recognised. However, the land norms prescribed in the Master Plan for Delhi-2021 provide that for recognition of a primary school the minimum land area required is 800 square metres and for recognition of middle school, the land norm fixed is 1,000 square metres.

As per media reports, Prof. Walia said Chief Minister Sheila Dikshit had taken up the matter with Lieutenant-Governor Tejendra Khanna and also with Union Urban Development Minister Kamal Nath for authorising the Municipal Corporation and the Directorate of Education of Delhi Government to relax these norms, in respect of both recognised and unrecognised schools functioning in Delhi. The Lieutenant-Governor had agreed to the proposed land norms and directed that in view of these changes, the Government may go ahead with the proposal.

The amendments have been made in the Delhi School Right to Free and Compulsory Education Rules 2011 and simplified application format has been introduced. A provision has been made that on furnishing of this information, a provisional certificate will be issued by Directorate of Education for one year during which the school will be required to complete other formalities like Fire Safety Certificate, Building Safety Certificate and Health Certificate. Further land norms have been relaxed and this would help the existing primary and middle schools to get recognition with greater ease.

As per the relaxed norms a primary school would now need to have a minimum area of 200 square metres as against 800 square metres earlier and a middle school would need to have a minimum area of 700 square metres as against 1,000 square metres earlier.

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• Friday, March 29th, 2013

Expiring Medicines Patents Could Boost Pharmaceutical E-Commerce In IndiaIndian pharmaceutical industry is moving towards a maturity level. This is more so regarding the generic pharmaceutical industry of India. Good news for generic pharmaceutical industry of India is that the patent rights of many world renowned drugs and medicines are set to expire till 2017. This would give a free hand to generic drugs companies to produce and sale generic medicine in India and world wide.

Nothing can improve the reach of the generic medicines manufacturers of India than utilising the e-commerce platforms. However, these e-commerce platforms and websites must comply with Indian laws to fully encash the benefits of e-commerce.

The legal formalities required for starting e-commerce business in India must be duly complied with to escape various civil and criminal liabilities. This is more so regarding pharmaceutical industry where the risks and stakes are really high.

Legal issues of e-commerce in India vary as per different business models. For instance, electronic trading of medical drugs in India requires more stringent e-commerce and legal compliances as compared to other e-commerce activities. Digital communication channels for drugs and healthcare products in India are scrutinised more aggressively than other e-commerce activities. In fact, regulatory and legislative measures to check online pharmacies trading in banned drugs in India are already in pipeline.

As per the latest reports, the patent expiry of several major well known drugs, coupled with other factors, will fuel growth of global generic pharmaceuticals market by 2017. If this scenario is supported by suitable health policies and equitable distribution of medicines, India can be a hub for global generic medicines production.

In fact, leading global generic pharmaceutical manufacturers are already entering into contractual agreements with well known pharmaceutical companies for marketing rights and exclusivity in producing generic versions of their medicines. E-commerce can provide a viable platform to sell these generic medicines across the world.

Source: E-Commerce Laws And Regulations In India.

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• Friday, March 29th, 2013

Supreme Court’s Decision On Patent Rights Of Novartis AG's Cancer Treatment Drug Glivec In India to Be Pronounced SoonThe patent law of India is incorporate as the Indian Patents Act, 1970. As on date, we do not provide any utility models protection in India. A utility model protection provides a protection akin to patent but the duration of such protection is lesser as compared to a regular patent.

Similarly, the prerequisites for acquiring a utility model are less stringent as compared to patents. In utility models although the requirement of novelty must be duly met yet the burden to prove inventive step and non-obviousness can be easily discharged.

This practically means that the protection for utility models is generally sought for innovations of incremental character which may not meet the patentability criteria. This also means that cosmetic improvements of already existing and publically known inventions would not be protected by granting a patent.

When it comes to pharmaceuticals there are many more complexities involved. From Doha Declaration to compulsory licenses, pharmaceutical patents are subject to many tests. The pharmaceutical giant Bayer AG’s is also facing threes challenges in India.

The Intellectual Property Appellate Board has already rejected Bayer AG’s plea to stop Natco Pharma from producing a cheaper generic version of its patented cancer drug Glivec. The matter finally reached the Supreme Court of India and it is going to pronounce its judgment on 1st April, 2013.

The concerned patent case before Supreme Court would decide the fate of patent protection of the Glivec drug in India. It would also clarify what drug is patentable in India and many more definitional and other issues.

The patent office of India has refused patent protection for Glivec on the grounds that it is not a new medicine but an amended version of a known compound – a decision consistent with domestic patent law which sets tight restrictions on multiple patents for a drug.

India last year also allowed local drug maker Natco Pharma to sell cheaper copies of Bayer AG’s cancer drug Nexavar through the mechanism of compulsory licensing. Also last year, India revoked patents granted to Pfizer Inc’s cancer drug Sutent, Roche Holding AG’s hepatitis C drug Pegasys, and Merck & Co’s asthma treatment aerosol suspension formulation. They were all revoked on grounds that included lack of innovation.

We at Perry4Law believe that the decision of Supreme Court should definitely consider the aspects of Doha Declaration, TRIPS Agreement, Public Health and Public Interest, Compulsory License Requirements, etc.  We would cover the decision of Supreme Court once it is given.

Source: IPR Blog Of Perry4Law.

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• Sunday, March 24th, 2013

RBI Governor Duvvuri Subbarao Stresses Upon A Need To Take Steps Against Money Laundering In IndiaBanking frauds in India is not a new phenomenon. ATM frauds, Internet banking frauds, online banking frauds, RTGS frauds, money laundering offences, etc are on rise and there is an urgent need to tackle them suitably.

Recently, after the sting operation by Cobrapost, the ICICI, HDFC and Axis Banks have been accused of indulging in money laundering and benami transactions. These are serious allegations and there should be a thorough investigation of these allegations.

Meanwhile the finance ministry and reserve bank of India (RBI) are investigating money laundering accusations against ICICI, HDFC and Axis Banks. Reports have also surfaced that these banks are also using the private investigation services in this regard. However, these banks must follow sound e-discovery and cyber forensics procedure to avoid legal liability. These banks may inadvertently destroy the evidence necessary to punish the culprits of money laundering, if any.

In fact, Reserve Bank of India (RBI) Governor Duvvuri Subbarao believes there is a need for action to prevent money laundering in the country following recent allegations against three large private sector banks.

Subbarao also opined that he cannot at this time say or make a broad sweeping statement that there are no transactions taking place at all. But he believes that the system is largely safe. He also believes that there is need for some corrective action.

He informed that RBI officials are going to the head offices of all those banks to check what the system is for detecting management-level control over these transactions. RBI is also conducting a study of the banking system on whether there are enough controls to prevent such incidents.

Meanwhile a demand was made in the Rajya Sabha on 18th March 2013 for a CBI probe into the matter and cancellation of the licences of these banks if found guilty. Surprisingly, the deputy governor of RBI has advocated his support for these banks even before the investigation report of the RBI and finance ministry is awaited.

We at Perry4Law Organisation believe that this is an unfortunate and immature act on the part of a senior official of RBI as giving a clean chit to these banks without even proper investigation would send wrong signals to offending banks. The approach of RBI Governor Subbarao is more mature and apt in the facts and circumstances of this case.

We should not encourage banks that are facing serious allegations of money laundering to feel that no matter howsoever serious the allegations are and howsoever compelling the evidence may be they cannot be touched and they would go scot free. The approach of deputy governor is exactly doing so and future incidence like these should be avoided.

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• Tuesday, March 19th, 2013

PRAVEEN DALAL MANAGING PARTNER OF PERRY4LAW CEO PTLBCorruption is one of the major Societal Evils of India that must be curbed immediately. From nursery admissions to higher education, sports, health, foods and supplies, human trafficking, telecom scams, etc none of the social segments of India have remain unaffected and untouched by corruption.

The general conception among masses in India is that if you are caught while indulging in corrupt practices you can pay further to get free. Practically, this means that a corrupt person or institution, which is wealthy and politically connected, would always remain free no matter howsoever corrupt practices he/it may indulge into.

India is a signatory to the United Nations Convention Against Corruption (UNCAC), which was ratified by India on May 9, 2011. Firstly, Indian joined the league too late. Secondly, it failed to ratify and take appropriate “Legislative Actions” in this regard even latter.

It has been reported that Indian Government has approved some significant amendments in a proposed Legislation that would make accepting or giving bribe by Foreign Public Officials a Criminal Offence. Such an Offence can attract a punishment of imprisonment of up to seven years among others penal provisions.

These amendments have been accepted by the Union Cabinet in the proposed Legislation titled The Prevention of Bribery of Foreign Public Officials and Officials of Public International Organisations Bill, 2011. The Legislation, if passed by Parliament, will be the exclusive law to deal with bribery by foreign public officials in India. This is significant as bribery by foreign nationals is not covered under any anti-corruption laws of India as on date.

The proposed Bill empowers the Government to attach, seize and confiscate property of Offenders. The Bill also incorporates provision for Extradition of an accused official. The Bill also empowers the Government to enter into Agreements with other Countries or Contracting States for enforcing this Law and for exchange of Investigative Information.

At Perry4Law Organisation and Perry4Law’s Techno Legal Base (PTLB) we Welcome this “Much Needed and Comparatively Timely Effort” of Indian Government and our Parliament. The proposed Bill is likely to be placed before Parliament during the ongoing Budget Session i.e. March 2013.

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• Sunday, March 17th, 2013

FBI National Security Letters (NSLs) With Gag Orders Declared Unconstitutional By U.S. District JudgeFederal Bureau of Investigation (FBI) has been the national security letters (NSLs) for long by showing national security requirements. FBI is maintaining that not only the contents of these NSLs but also the mere fact of its receipt must be kept secret by the recipient of such NSLs.

This practice was challenged before a District Court. It has now been reported that the U.S. District Judge Susan Illston declared the letters as unconstitutional violation of the First Amendment.

There is an urgent need to recognise and adopt human rights protection in cyberspace. This is important to maintain a balance between civil liberties and national security requirements world over.

Both US and India need to understand this crucial requirement as giving primacy and priority to presumed national security over civil liberties would be declared to be unconstitutional by US and Indian Courts.

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• Friday, March 15th, 2013

US Army Developed Open-Source Physiology Engine For Medical SimulationsUse of technology for practicing medical profession is fast becoming acceptable to stakeholders at large.

For instance, telemedicine and online pharmacies are primarily relying upon information technology to expand the activities of medical related professions.

Unfortunately, we have no dedicated telemedicine laws in India.

It has been reported that the US Army has developed an open-source physiology engine that anyone can use to develop medical simulations.

Many hope that this new engine will enable the public to develop medical simulations that will benefit military as well as civilian medicine.

Some interesting platforms in this regard are Open PHACTS and HumanSim.

We at Perry4Law Organisation and Perry4Law’s Techno Legal Base (PTLB) welcome this positive development in the field of medicine and telemedicine.

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• Thursday, March 14th, 2013

StehoscopeThere is no second opinion about the fact that when technology is used for medical purposes, it gives rise to medico legal and techno legal issues. Countries around the world have realised this fact and they have made suitable laws to tackle these medico legal and techno legal issues.

For instance, in United States, the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Health Information Technology for Economic and Clinical Health Act (HITECH Act), etc are some of the laws that take care of medico legal and techno legal issues of e-health and telemedicine.

On the other hand, we have no dedicated telemedicine laws in India. Issues like online sales of prescribed medicines in India, digital communication channels for drugs and healthcare products in Indiaonline sales and purchase of prescribed drugs and medicines in India, etc are still vague and confusing.

E-health laws and regulations in India are still missing and legal enablement of e-health in India is needed on an urgent basis. As on date e-health in India is facing legal roadblocks. Till now we do not have any dedicated e-health laws and regulations in India.

At Perry4Law Organisation and Perry4Law’s Techno Legal Base (PTLB) we firmly believe that dedicated telemedicine laws of India must be urgently formulated.

This is more so when there are many people and institutions in India that are using Internet in an illegal manner for selling medical products and services. Illegal and unregulated online sales of prescribed medicines in India are rampant and Indian government has still not regulated or controlled these online sales of medicines in India, especially in the NCR region.

Similarly, there are some medical professional and para medical professional who are using Internet for providing their services without following the applicable laws of India. There are also many online pharmacies in India that are violating Indian laws, especially the e-commerce laws and regulations of India.

It is high time for Indian government to regulated Internet related medical issues in India before they become a big nuisance and health hazard for Indian citizens and residents.

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• Thursday, March 07th, 2013

Central Monitoring System (CMS) For Telephone Tapping In IndiaThe Central Monitoring System (CMS) Project of India is a “centralised mechanism” where telecommunications and Internet communications can be analysed by the Indian Government and its Agencies.

The CMS project of India is a good and ambitious project that is required to manage national security and law and enforcement requirements of the country. However, adequate “procedural safeguards” must also be established in the system so that it is not abused for political and personal reasons.

The telephone tapping laws in India are already weak and violative of constitutional protections. We are still following the colonial telegraph act that requires an urgent repeal. Further, the information technology amendment act 2008 made e-surveillance in India a regular phenomenon. The big brother in India must not overstep the limits.

We at Perry4Law Organisation and Perry4Law’s Techno Legal Base (PTLB) believe that a holistic and comprehensive law on telephone tapping in India as well as governing related aspects must be formulated in India. For instance, the cell site data location laws in India and privacy issues must also be covered by the proposed law. Similarly, the cell site location based e-surveillance in India and surveillance of internet traffic in India must also be part and parcel of the new legislation.

A national e-surveillance policy of India must be formulated that should cover both policy and legislative issues pertaining to CMS project and telephone tapping relating issues. Call data record (CDRs) must also be regulated and protected by adequate and strong laws.

Indian government has already started working in the direction of making the CMS project operation in the month of April 2013. A new mechanism will be put in place by the Indian government to eliminate the loopholes in authorised phone tapping by intelligence and enforcement agencies.

Under the proposed framework, a centralised mechanism would be adopted where the need to approach individual telecom service providers would be obviated. This would exclude the interaction with these service providers and make the entire process of telephone tapping more secure and leak proof. However, this would also result in abusing the telephone tapping mechanisms in the absence of adequate procedural safeguards.

The CMS project would be brought under the Department of Telecom (DoT) and will be manned by the Intelligence Bureau (IB). Some procedural changes have also been introduced in this process. For instance, a clear electronic audit trail of the phones tapped would be maintained. This would eliminate the traditional paper based trail procedure that is cumbersome and prone to leak. The entire phone-tapping system will also move to an electronic platform from the current manual system.

The CMS project, based in New Delhi, would also have four hubs in major cities of India. Proposal to curtail the discretionary power of agencies to listen into phone calls may also be implemented. The telegraph act may be suitable amended to reflect these changes.

As per the present regulatory framework, in cases of urgency the agencies can tap phones for seven days without obtaining permission. With the migration to electronic platform and adoption of CMS project, the request for sanctions will also be sent electronically which will cut down the time to obtain permission.

At Perry4Law and PTLB we believe that it would be even better if we ensure parliamentary oversight of intelligence agencies of India as well. Further, we also believe that it is high time to formulate a comprehensive and holistic telephone tapping and related law for India. We also understand that this is a very difficult and delicate task and may face stiff resistance from various quarters but the tough call has to be taken by Indian government immediately.

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• Wednesday, March 06th, 2013

Reconstruction Of Records, E-Courts And Right To Fair Trial In IndiaThere are circumstances where the records of police and judicial authorities may go missing or are destroyed beyond redemption. In such a case, proceeding with the concerned court case is next to impossible.

If the records of the proceedings are destroyed due to natural calamities and their reconstruction is not possible, then the court has no other option but to acquit the accused.

The traditional record keeping has this serious drawback that is absent when we adopt information and communication technology (ICT). For instance, if electronic records are maintained, the reconstruction of lost or destroyed records is just a click away.

Establishment of e-courts in India is of prime importance in the present ICT driven era. However, till the month of March 2013 we are still waiting for the establishment of first e-court of India. Digital preservation in India is also not in good shape.

If a guilty person is acquitted due to inability to reconstruct the records or an innocent is convicted due to defective reconstruction of records, this would amount to miscarriage of justice and violation of right to fair trial. Therefore, proper reconstruction of records is of utmost importance.

In a latest case in this regard, a Division Bench of Delhi High Court, comprising of Chief Justice D Murugesan and Justice VK Jain, has directed a District and Sessions Judge to “reconstruct” within two weeks the records pertaining to a 20-year-old rape case, in which judicial and police files went missing. The bench also directed for appropriate action against the officers responsible for missing of the files.

The bench further ordered for setting up a committee to examine the practices and systems prevailing in the matters of custody and maintenance of court records. At Perry4Law and Perry4Law’s Techno Legal Base (PTLB) we welcome this move of the Delhi High Court as it is progressive in nature and justice oriented.

We also feel that an electronic record is not only durable but can be easily stored as well. It must be noted that in majority of cases the witnesses do not come forward to give evidence and many important pieces of evidences are lost forever. This results in acquittal of the accused and a miscarriage of justice.

Source: Legal Enablement Of ICT Systems In India.

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• Monday, March 04th, 2013

Customary Divorce Laws In India The Essential Formalities And ProcedureThe objective of this research work by Law Firm Perry4Law is to explain the inverse relationship of a custom allowing the parties to the marriage to dissolve their marriage and the sacramental continuity of a marriage soleminised under the Hindu Marriage Act, 1955. According to laws of India, a valid and legally recognised custom is respected and given due weight by the courts while adjudicating the legality of a customary divorce. This is so because no person, including a court, has a right to challenge a well recognised and universally accepted custom, which has passed the test of time and the rigorous of public and societal interest.

I. Introduction

Marriage is the very foundation of a civilised society. The relation once formed, the law step in and binds the parties to various obligations and liabilities thereunder. Marriage is an institution in the maintenance of which the public at large is deeply interested. It is the foundation of the family and in turn of the society without which no civilisation can exist. A marriage solemnised, whether before or after the commencement of the Hindu Marriage Act, 1955 (Act) can only be dissolved by a decree of divorce on any of the grounds enumerated in Section 13 of the Act. Till the time a Hindu marriage is dissolved under the Act none of the spouses can contract second marriage. Thus, it is obvious from the various provisions of the Act that the modern Hindu Law strictly enforces monogamy[1]. Even under the Muslim Law plurality of marriage is not unconditionally conferred upon the husband. Muslim law as traditionally interpreted and applied in India permits more than one marriage during the subsistence of one and another though capacity to do justice between co wives in law is condition precedent[2]. As per the Hindu Law administered by courts in India divorce was not recognised as a means to put an end to marriage, which was always considered to be a sacrament, with only exception where it is recognised by custom. Public policy, good morals and the interests of society were considered to require and ensure that, if at all, severance should be allowed only in the manner and for the reason or cause specified in law. One of the causes expressly recognised by law is the legal sanction of a valid custom to dissolve a marriage. Thus the rules of dissolution of marriage and monogamy are subject to a valid custom to the contrary. This shows that the law relating to marriage and divorce of Hindus has an inverse relationship with a recognised valid custom. If a Hindu custom allows the parties to the marriage to dissolve their marriage as per the custom, then the Act cannot prohibit its operation, even if it goes against the basic spirit of the Act.

II. The inverse relationship

The importance of the custom in relation to the applicability of the Act has been acknowledged by the Legislature by incorporating Section 29(2) providing that nothing in the Act can affect any right, recognised by custom or conferred by any said enactment to obtain the dissolution of a Hindu Marriage whether solemnised before or after the commencement of the Act even without the proof of the conditions precedent for declaring the marriage invalid as incorporated in Sections 10 to 13 of the Act. Thus, a marriage which may not be permissible to be dissolved as per the provisions of the Act can still be dissolved if the party relying on a custom can successfully plead and prove it. This shows that a valid and recognised customary law of divorce will prevail over the provisions of the Act and thus it shares an inverse relationship with the provisions of the Act, which restrict the right of the spouses to get divorce on limited grounds only. It must be noted that the customary law of divorce can be relied upon only if it satisfies certain well-accepted principles, as enumerated by the Courts from time to time. The characteristics of a valid and binding custom or usage empowering the parties to obtain divorce are:

(1) it must be of immemorial existence, it must be reasonable, it must, be certain and it must be continuous. Every custom must have to be in existence preceding memory of man and if the proof was carried back as far as living memory would go, it should be presumed that the right claimed had existed from time of legal memory[3],

(2) it is the essence of special usages modifying the ordinary law that they should be ancient and invariable; it is further essential that they should be established to be so, by clear and unambiguous evidence and that it is only by means of such findings that the Courts can be assured of their existence and that they possess the conditions of antiquity and continuity and certainty on which alone their legal title to recognition depends. Custom must be proved and the burden of proof is on the person who asserts it[4],

(3) after the existence of a custom for some years has been proved by direct evidence, it can only, as a rule, be shown to be immemorial by hearsay evidence and it is for this reason that such an evidence is allowable as an explanation to the general rule[5],

(4) the breach of a custom in a particular instance need not destroy it for all times[6],

(5) the material customs must be proved in the first instance by calling witnesses acquainted with them until a particular custom has by frequent proof in the Court becomes so notorious that the Courts take judicial notice of it. A custom cannot be extended by logical process[7],

(6) an oral evidence as to instances, which can be proved, by documentary evidence cannot be fairly relied upon to establish custom when no satisfactory explanation for withholding the best evidence is given. Custom cannot be extended by analogy and it cannot be established by a priori method[8], and

(7) the ordinary rule is that a custom, general or otherwise, has to be proved under Section 57 of the Evidence Act. However, nothing need be proved of which the Courts can take judicial notice. When a custom has been judicially recognised by the Court then it passes into the law of the land as proof of it becomes unnecessary under Section 57(1) of the Evidence Act[9].

III. Judicial response

The response of the courts in India is two fold. On the one hand they respect the mandates of the valid and well-recognised customs whereas on the other hand any attempt, which fails to satisfy the rigours of public policy and societal interests, is thwarted at the very threshold. The courts are also very conscious to ensure that the requirement of the existence of a valid custom are duly fulfilled and they must be expressly pleaded and clearly established before any relief is granted. The general impression is that since these customs are going against the basic theme and policy of the Act, they must be construed narrowly and strictly. At the same time once these customs are validly recognised even in the limited, narrowed and restricted parameters of societal interests, they are given their due weight age and the wisdom of courts is not substituted for their wisdom and recognition.

In Sankarlingam v Subban[10] divorce by consent was held valid as a matter of custom of the Pakhali caste of Ahmedabad observing that there was nothing immoral in a caste custom by which divorce and remarriage were permitted by mutual agreement. There was no invalidity in a custom by which married couple on account of disagreement between them by consent could divorce and were divorced by parties approaching the headman and other relations, paying certain amount and taking away tali or the sacred thread from round the wife’s neck and giving it back to the husband. It was only when the divorce was enforced against the wishes of his wife that the custom permitted divorce would be illegal.

In Pakhali Jina Magan v Bai Jethi[11] it was held that a custom of divorce with mutual consent of husband and wife stated to exist among the Hindus of Pakhali caste of Ahmedabad was not repugnant to Hindu Law. When it was contended that the institution of divorce was itself opposed to the concept of Hindu law and that there was no decision of any Court in India which held a custom of divorce as valid as it was observed that divorce is not contemplated by the Hindu Law but it is not repugnant to its principles, and if there be a well established custom in its support, it may override the general provisions of that law. It was further observed that there had been many cases in our Courts arising out of divorce in the lower castes. In all those cases even where it was held that the divorce had not been properly granted, it had been taken for granted that the custom of divorce can validly exist in a particular community, especially if it is a Sudra community, but that divorce granted cannot be forced by the caste against an unwilling person.

In Veerappa Chettiar v Michael[12] the main question involved in both the appeals was whether the marriage of Bangaru Ammal was in Asura form or in Brahma form. The contention of the appellant was that it was not in Asura form. The Court held that the marriage of Bangaru Ammal was not in Asura form but in Brahma form. The Court observed: “Except a bare allegation in the plaint that the said marriage was held in Asura form, the plaintiffs did not give any particulars or set up any custom in the community to which the parties to the marriage belonged. There was nothing to show that there was a practice in the family to give Kambu as ‘Parisam for the bride or Kambu was paid as ‘Parisam’ at the time of the betrothal ceremony in connection with the marriage of Bangaru Ammal. We are also in these appeals not concerned with any customary form of marriage but only with a marriage sanctioned by Hindu Law, for no custom was pleaded in derogation of Hindu Law. But there may be a custom in a community not in derogation of the Hindu Law but in regard to the manner of complying with a condition laid down by Hindu Law. That is to say if the criterion for an Asura marriage was that there should be a sale of the bride, there may be a custom in a community in regard to the manner of paying the consideration’ for the sale”.

In Shakuntalabai v V.L.V. Kulkarni[13] the Supreme Court held that custom must be proved and the burden of proof is on the person who asserts it. A custom cannot be extended by logical process. The Court observed: “ Customs cannot be extended by analogy and it cannot be established by a priori method. Further, nothing need be proved of which the Courts can take judicial notice. When a custom has been judicially recognised by the Court then it passes into the law of the land as proof of it becomes unnecessary under section 57(1) of the Evidence Act. The Court entertaining no doubt that there has been ancient and unbroken customs of dissolution of marriage and of Serai Udiki marriage among the Panchamasal Lingayats which was judicially noticed by the Courts, and that the marriage in the instant case, of the fourth defendant with Gurulingappa was proved to have been customarily dissolved and that she was subsequently legally married with Gurappa in the valid customary form of Udiki marriage, whereafter, she lived with Gurappa as husband and wife until Gurappa died, and that, thereafter, she enjoyed the family pension by dint of her being nominated as wife of Gurappa to the knowledge of all concerned. She was accepted by the community as wife of Gurappa even after his death. There is, therefore, no scope for declaring the marriage illegal posthumously”.

In Dr. Surajmani Stella Kujur v D.C.Hansdah (14-02-01) the Supreme Court observed: “It is conceded even by the appellant that the parties to the petition are two Tribals, who otherwise profess Hinduism, but their marriage being out of the purview of Hindu Marriage Act, 1955 in light of Section 2(2) of the Act, are thus governed only by their Santal Customs and usage. The appellant has, however, relied upon an alleged custom in the Tribe, which mandates monogamy as a rule. It is submitted that as the respondent has solemnized a second marriage during the subsistence of the first marriage with the appellant, the second marriage being void, the respondent is liable to be prosecuted for the offence punishable under Section 494 of the Indian Penal Code. No custom can create an offence as it essentially deals with the civil rights of the parties and no person can be convicted of any offence except for violation of law in force at the time of commission of the act charged. Custom may be proved for the determination of the civil rights of the parties including their status, the establishment of which may be used for the purposes of proving the ingredients of an offence which, under Section 3(37) of the General Clauses Act, would mean an act or omission punishable by any law by way of fine or imprisonment. Article 20 of the Constitution, guaranteeing protection in respect of conviction of offence, provides that no person shall be convicted of any offence except for violation of law in force at the time of commission of the act charged as an offence. Law under Article 13 clause (3) of the Constitution means the law made by the Legislature including intravires statutory, orders and orders made in exercise of powers conferred by the statutory rules. For custom to have the colour of a rule or law, it is necessary for the party claiming it to plead and thereafter prove that such custom is ancient, certain and reasonable. Custom being in derogation of the general rule is required to be construed strictly. The party relying upon a custom is obliged to establish it by clear and unambiguous evidence. Nowhere in the complaint the appellant has referred to any alleged custom having the force of law, which prohibits the solemnisation of second marriage by the respondent and the consequences thereof. It may be emphasised that mere pleading of a custom stressing for monogamy by itself was not sufficient unless it was further pleaded that second marriage was void by reason of its taking place during the life of such husband or wife. In order to prove the second marriage being void, the appellant was under an obligation to show the existence of a custom, which made such marriage null, ineffectual, having no force of law or binding effect, incapable of being enforced in law or non- est. The fact of second marriage being void is a sine qua non for the applicability of Section 494 IPC. It is settled position of law that for fastening the criminal liability, the prosecution or the complainant is obliged to prove the existence of all the ingredients constituting the crime which is normally and usually defined by a statute. In view of the fact that parties admittedly belong to the Scheduled Tribes and in the absence of specific pleadings, evidence and proof of the alleged custom making the second marriage void, no offence under Section 494 of the Indian Penal Code can possibly be made out against the respondent”.

In Yamanaji Jadhav v Nirmala[14] the Supreme Court observed: “We find that the courts below have erroneously proceeded on the basis that the divorce deed relied upon by the parties in question was a document which is acceptable in law. It is to be noted that the deed in question is purported to be a document, which is claimed to be in conformity with the customs applicable for divorce in the community to which the parties to this litigation belong.

Thus such a custom being an exception to the general law of divorce ought to have been specially pleaded and established by the party propounding such custom since said custom of divorce is contrary to the law of the land and which, if not proved, will be a practice opposed to public policy. In the instant case, we have perused the pleadings of the parties before the trial court and we do not find any material to show that prevalence of any such customary divorce in the community, based on which the document of divorce was brought into existence was ever pleaded by the defendant as required by law or any evidence was led in this case to substantiate the same. It is true in the courts below that the parties did not specifically join issue in regard to this question and the lawyers appearing for the parties did orally agree that the document in question was in fact in accordance with the customary divorce prevailing in the community to which the parties belonged but this consensus on the part of the counsel or lack of sufficient pleading in the plaint or in the written statement would not, in our opinion, permit the court to countenance the plea of customary divorce unless and until such customary divorce is properly established in a court of law. In our opinion, even though the plaintiff might not have questioned the validity of the customary divorce, the court ought to have appreciated the consequences of their not being a customary divorce based on which the document of divorce has come into existence bearing in mind that a divorce by consent is also not recognisable by a court unless specifically permitted by law. Therefore, we are of the opinion to do complete justice in this case it is necessary that the trial court be directed to frame a specific issue in regard to customary divorce based on which the divorce deed dated 26th of June, 1982 has come into existence and which is the subject matter of the suit in question. In this regard, we permit the parties to amend the pleadings, if they so desire and also to lead evidence to the limited extent of proving the existence of a provision for customary divorce (otherwise through the process of or outside court) in their community and then test the validity of the divorce deed dated 26.6.1982 based on the finding arrived at in deciding the new issue”.

IV. Conclusion

A close reading and appreciations of the traditional Hindu Law and the Act reveals that the codification of the traditional Hindu Law is a positive step in the right direction, which recognises a benign movement from the statehood of non-recognition to the platform of recognition of grounds for divorce. The traditional Hindu law did not recognise the system of divorce and the husbands were literally free to desert their wives, as this was a socially accepted phenomenon. There was, of course, the customary law which recognised that divorce can be granted by either party to the marriage if a custom prevailing in their community permits them to do so. The legislature by way of codification has improved the “marital equality” among the spouses by formulating certain grounds, which can be invoked by either spouse to get a decree of divorce. In this sense the legislature has made “positive and constructive departures” from the traditional Hindu law. The best part about this codification drive is that it expressly and in clear terms reserved the right to grant divorce under the customary Hindu law by incorporating Section 29(2) in the Act. Thus, the spouses are now free to get divorce either by invoking the provisions of the Act or by successfully pleading and proving a valid custom permitting them to obtain divorce.

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[1] Smt. Sarla Mudgal v U.O.I, AIR 1995 SC 1531.

[2] Lily Thomas v U.O.I, AIR 2000 SC 1650.

[3] Edward v Jenkins, (1896) 1 Ch.D.308, reiterated in Mohammed Ibrahim v Shaik Ibrahim, AIR 1922 P.C. 59.

[4] Ramalakshmi Ammal v Sivanantha Perumal Sethurayar, 14 M.I.A.81.570.

[5] Raja Rajendra Narain v Kumar Gangananda, AIR 1925 PC 213.

[6] D.C. Bara Banki v. Receiver of the Estate of Choudhry & Ors, AIR 1928 PC 202.

[7] Effuah Amissah v. Effuah Krabah, AIR 1936 P.C. 147.

[8] Saraswati v Jagadambal AIR 1953 SC 20.

[9] Uzagar Singh v Mst. Jeo, AIR 1959 SC 104.

[10] [1894] 17 Madras 479.

[11] I.L.R.1941 Bom 535.

[12] AIR 1963 SC 933.

[13] AIR 1989 SC 1359.

[14] (2002) 2 SCC 637.

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