What are Divorce Laws?

(l) Any Any marriage which is solemnized, whether before or after the commencement of the Hindu marriage Act, may be Dissolved by a decree of divorce, by either the Husband or the wife presenting the petition on the following grounds:
(i) Firstly having had voluntary sexual intercourse with any person other than his or her spouse

(ia) Secondly has treated the petitioner with cruelty after marriage; or

(ib) Thirdly: has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or

(ii) Fourthly has changed is religion and has ceased to be a Hindu by conversion to another religion; or

*(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

matrimonial lawyer in ludhiana

Explanation: In this clause-
(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub­ normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or

(iv) has been suffering from a virulent and incurable form of leprosy; or (v) has been suffering from venereal disease in a communicable form; or (vi) has renounced the world by entering any religious order; or
(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, and that party been alive;

Explanation.- In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly;

(lA) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground-
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.

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(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,-
(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner;
Provided that in either case the other wife is alive at the time of the presentation of the petition; or
(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or
(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956, or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (or under the corresponding section 488 of the Code of Criminal Procedure, 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or
(iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.

Role of Lawyers in Social Transformation

“Lawyers are the foot soldiers of our Constitution.” RENNARD STRICKLAND & FRANK T. READ, The Lawyer Myth

On January 9 , 1915 at Apollo Bandar in Bombay a barrister returned to his motherland ,who would have thought than that he will lead India in one of the biggest war this country has ever seen and emerge victorious , he was no other than Mohandas Karamchand Gandhi . From early times of moderates like Motilal Nehru , Dadabhai Naoroji to extremists C Rajagopalachari , Bal Gangdhar Tilak or “Iron Man” Sardar Patel they all had their differences in opinions, thoughts and way of working but what they all had in common was they were practitioners of ‘law’. If not of the self sacrificing and dedicated efforts of these brave men how we would have won the independence we cherish.This was the first ever dynamic transformation in Indian society with many more to come.

At the dawn of independence, the parliament of independent India was the forge where a document that will guide the young nation was being crafted. It will fall on the keen legal mind of B. R. Ambedkar to formulate a constitution for the newly independent nation. The Indian Bar had a role in the Independence movement that can hardly be overstated – that the tallest leaders of the movement across the political spectrum were lawyers is ample proof. The new nation saw its first leader in Jawaharlal Nehru, and a paternal figure in M. K. Gandhi, both exemplary lawyers. Perhaps it is the consequent understanding of law and its relation to society that prompted the founding fathers to devote the energy required to form a Constitution of unprecedented magnitude in both scope and length.

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Lawyer in Ludhiana

Lawyers played a central role in drafting of constitution.The proceeding clearly show the part played by the lawyers in elaborating the basic concept of secularism, democracy and egalitarianism. It was because lawyers understood the than society in reality rather than substantive term.They also introduced well known ambiguities such as the uncertainty about fundamental rights and directive principles of state policy who were primary. Even after the constitution was adopted lawyers continued to play an important role in national politics .They represented 35.3 percent , 31.4 percent, 30 percent and 26.9 percent of the first four Lok Sabha.2

A man clad in black and white attire walking briskly in a corridor enters the courtroom, eyes of the victim turns to him with hope and belief that he will provide him with the justice he deserves, for him he is no less than the angel who saved his life. Lawyers are those small pillars in a building that are required during the construction of the main pillar as to give it support towards the right direction. We did not reach where we are in a days work , laws that governs us the freedom that we have to express , right to say what desire , choose what we want to work , practice the faith that we believe in. All these rights are conferred upon us by ‘law’ of India and lawyers are the officers who work to make sure that citizens of India are not deprived of their rights.

Being lawyer is a noble and honorable profession which requires a manner and conduct to be carefully followed. In Bar Council of India rules a lawyer holds a duty to act with dignity and self-respect , to uphold the interest of client by all fair and honorable means and shall not take advantage of the confidence reposed in him by his client.A lawyer is bound to conduct himself in a manner befitting the high and honorable legal profession and if he departs from the high standard which the profession has set for itself and demands of him in professional matter, he will be liable to disciplinary actions.3

Apart from fighting cases lawyers provide their skills and knowledge to the society by doing pro bono cases and lending legal services to the poor and needy. A huge change has been brought upon by the legal aid services in India.Legal Aid implies giving free legal services to the poor and needy who cannot afford the services of a lawyer for the conduct of a case or a legal proceeding in any court, tribunal or before an authority.

Article 39A of the Constitution of India provides that State shall secure that the operation of the legal system promotes justice on a basis of equal opportunity, and shall in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disability. Articles 14 and 22(1) also make it obligatory for the State to ensure equality before law and a legal system which promotes justice on a basis of equal opportunity to all. Legal aid strives to ensure that constitutional pledge is fulfilled in its letter and spirit and equal justice is made available to the poor, downtrodden and weaker sections of the society. The Constitutional duty to provide legal aid arises from the time the accused is produced before the Magistrate for the first time and continues whenever he is produced for remand.

In 1987 Legal Services Authorities Act was enacted to give a statutory base to legal aid programs throughout the country on a uniform pattern. This Act was finally enforced on 9th of November 1995 after certain amendments were introduced therein by the Amendment Act of 1994.

Most social evils are an outcome or creation of poverty and the misery that comes with being poor in a country like India, at the same time it also needs to be borne in mind that the judiciary no matter however committed it may be towards uplifting the cause of the poor is ultimately bound by procedural formalities which do not take into account the misery or problems of the masses. Therefore the sufferings being so may it is not possible for the legal system to remove even few of such problems. In keeping with the same view Justice Krishan Iyer asserted that poverty is a creation of unjust institutions and unjust society. Therefore in a country like India if you are poor you are ineffective socially as well as economically the only way that you can then be empowered is through radical revamping of the socio-economic structure. Such a radical change according to him could only be brought about in the form of a revolution that the legal service program only is capable of gearing. Thus the legal aid program aimed at revamping the socio-economic structure by way of removing the socially unjust institutions and creating a new order based upon the ethos of human liberty, equality and dignity of mankind.Justice Blackmun in Jackson v. Bishop says that; “The concept of seeking justice cannot be equated with the value of dollars. Money plays no role in seeking justice.”4

Various branch of studies deals with the specific study of which they are specialized for. Eg. A medical practitioner can deal only in the line of medicine, an engineer only in his limited scope of engineering but a lawyer deals with all the fields of society including science,social values,human rights, banking , Intellectual property etc. As famously said “A lawyer should know something about everything and everything about something”. Julius Stone defined ‘The lawyer’s extraversion, It is the lawyer examination of the precepts, ideas and techniques of the law in the light derived from present knowledge in discipline other than the law’. Apart from their role in legal services lawyers have equal participation in imparting of knowledge i,e, Law Schools providing legal education from the old 3 years law courses to dynamic 5 years integrated courses. Not just Bar Council of India is supreme body that regulate the course it keeps in check the quality and methods of imparting legal education. For eg. 66% of the attendance is compulsory and there is no distance learning in law because law requires practical approach, students need direct confrontation with reality as they will be the future which will decide the direction in which the legal system will take place. With practical subjects like moot court and drafting there is scope for students to develop their personal skills. Lawyers are not extra-territorial creatures they are human beings who live in the society and are affected by its whereabouts but the difference is that they have the ability , power, resources and knowledge to change it. Question arises does common man working 9 to 5 around the clock does not have the power to change the law or the conditions of the society. Yes, he has and there are examples in the history but than taking a practical approach how many have actually tried the percentage is very low. How will I change it? To whom should I complain? Why should I take all the pain? These are the questions that stops a common man but our legal system has provided a way to by which we can bring change and help those who are affected but are unable to help themselves , answer is Public Interest Litigation(PIL).

businessman signing a contract

Attorney in Ludhiana

Public-Interest Litigation is litigation for the protection of the public interest. In Indian law, Article 32 of the Indian constitution contains a tool which directly joins the public with judiciary. A PIL may be introduced in a court of law by the court itself (suo motu), rather than the aggrieved party or another third party. For the exercise of the court’s jurisdiction, it is not necessary for the victim of the violation of his or her rights to personally approach the court. In a PIL, the right to file suit is given to a member of the public by the courts through judicial activism. The member of the public may be a non-governmental organization (NGO), an institution or an individual. 5

In the case of SP Gupta vs Union of India that the Supreme Court of India defined the term Public Interest Litigation in the Indian Context.The concept of Public Interest Litigation (PIL) is in consonance with the principles enshrined in Article 39A of the Constitution of India to protect and deliver prompt social justice with the help of law. Justice Bhagwati and Justice V.R, Krishna Iyer were the first to accept the PIL.The Court entertained a letter from two professors at the University of Delhi seeking enforcement of the constitutional right of inmates at a protective home in Agra who were living in inhuman and degrading conditions.

But a coin has two sides with the ability to file PIL there was a increased number of frivolous PIL. The 38th Chief Justice of India, S. H. Kapadia, has stated that substantial fines would be imposed on litigants filing frivolous PILs. His statement was widely welcomed, because the instance of frivolous PILs for pecuniary interest has increased.So necessary steps has been taken to stop its misuse.

We live in a world full of technology and gadgets, when we lose our cell phone or internet connection is hampered we feel like we have been handicapped.One know more about his distant friend what has he/she taken in breakfast but barely know the name of the person sitting next to him/her. A world were virtuality has become an integral part of reality and were there are people there are certain misadventures and to prevent those misadventures there is ‘cyber law’. It is the age where we the government is talking about digital India. With the increase in digital activities there is a hike in online frauds and scams. A recent study shows there is 50% increase in complaints of cyber crime than in 2013 to 2014. The problem does not end here along with these scams there is harassment, cyberbullying and degrading regards of human values as no one is there to keep a check.

Let us take a few examples Monika Lewinsky was the first victim of cyber world or as she herself called as ‘patient zero’, the infamous Delhi MMS scandal, Lottery fraud cases, Charity fraud and recent increase in Nigerian fraud were they make friends via facebook or through emails and then demand a brief amount of money to give you a substantial sum. Many have fallen ill to this , recent a Mumbai based education institute owner.

Engineers can provide you with better softwares so it may not happen again , Doctors will give you medicine so you may come out of your depression but who will provide you justice,who stand up for you and bring the culprit down.It is Lawyers. They will take the stand and bring notice the society what has happened and now what should be done so that the victim will recover from the injury suffered.

The Information Technology Act , 2000 is the statute that provide guidelines regarding the rules and regulations of laws prevailing in India for Cyber Crimes. Lawyers with the help of these laws help the victim as it is not possible for a common man to know all the laws and act accordingly.

When people hear the word lawyer being spoken, they usually think of an individual who goes to court everyday and stands before a judge defending the freedom of another individual. This is true in some cases; however, there are many different types of lawyers with a variety of job responsibilities and duties. No matter what type of lawyer one maybe they ultimately have an extremely important role in the lives of others. So, the lawyers have a wide range of responsibilities and duties when it comes to their profession. Their role in society is even more important as they are acting as a voice for others and a social engineer having intellectual challenges.

Lives of people are not only affected by standing in court and proving if one is innocent and guilty. They are affected even when a company takes over another, there is change in the banking rules or even there is increase in gas prices. One might not know but lawyers are not just confined to courtrooms but extended to the high profile business meetings of these Multinational Companies to the merchant selling his business to another.As their transactions are governed by law and a corporate lawyer is the one who helps them in solving out the legal paradoxes and allow them to do their business freely.
Public opinion of lawyers is that , one who will take up your time bind you into the legal system and instead of providing you with the remedy will take up all the remaining resources you have.But let me ask them this question, You can give your opinion freely and say what one wishes to say why because our constitution allows it. That constitution which was drafted by majority of lawyers headed by Dr. B.R. Ambedkar. When the Bhopal Gas tragedy took place who provided legal support to the public and provided them with remedy. Justice Bhagwati developed the concept of ‘Absolute Liability’ so the accused would be held liable for those innocent deaths. In ‘Nirbhya’ case it was the lawyers who demanded for speedy justice and asked the court if not ‘Justice Delayed is Justice Denied’ to that innocent girl who was battling for life and death.
Yes, there are corrupt lawyers some who work for their personal gains and benefits but dirty work of few who lack on morality and ethics should not hide the great achievements and role of a lawyer in building a nation and developing a society which is fearless and advance. Lawyers keep in check that there is no one force which dictates the shape of nation.A recent example ‘Beef Ban’ during Jain festival Paryushan which now is being challenged in court if it is against the Right to religion. These questions help us to evolve with the changing times and helps to repeal the old law with the modern one.

The role as a lawyer is challenging and demanding. The role of lawyer is not simply to appear in court and argue passionately on the behalf of the client, but there is a multitude of background work as well as responsibilities related to this profession especially in favor of the country and not personally. A lawyers contribution is not seen in terms of calculative methods but its impact can be felt by generations to come.

A lawyer must be very careful about his attributes and behavior.As Mahatma Gandhi said –
Keep your thoughts positive, because your thoughts become your words.
Keep your words positive, because your words become your behavior.
Keep your behavior positive, because your behavior become your habits.
Keep your habits positive, because your habits become your values.
Keep your values positive, because your values become your destiny.
Open Your Mind, Open Your Life: A Book of Eastern Wisdom

13 Years of Big Drama Ends With a Small Note

India is a country which expresses freedom of thought and expression and other human rights which has acquired unique identity of India all over the world. It is the respect for human values through which India has attracted global attention, but at the same time it has also let to inordinate delay in dispensation of justice which has been questioned.

India is referred in the list of countries where no legal battle is decided in less than 10 years or perhaps more than that which itself has put question on the functions of the judicial system. This has been corroborated with the hit and rum case of actor Salman Khan who was involved. The Sessions Court in Mumbai held him guilty of culpable homicide on May, 6th 2015 and sentenced him to 5 years of imprisonment and fine of Rs. 25,000/- , 13 years after the incident which happened in the year 2002. In the case, a Toyata land Rover, owned by him ran over 5 people who were sleeping on the pavement in Bandra on September 28, 2002 which left one man dead and other four injured.

justice

advocate in Ludhiana

On the same day the Hon’ble High Court of Bombay granted the actor interim bail until 8th May 2015. Newspaper editorial devoted at least a half column lauding equality before law as a lodestone of democracy. But at the same time, all lamented the tardiness of law. They wanted to know whether it takes 13 years to judge who was driving the car and whether or not Salman Khan was under the influence of alchol. This delay is not seen for the first time and it has become vogue for all the cases present and past particularly those concerning the rich and the influential. Those having amole cases are the examples of cases against sedition by politician and industrialists, cases related disproportionate assets, rioting and others. So far as Bollywood is concerned it is one of the high profile case after the Sanjay Dutt case who is supposed to be languishing behind bars.

The case is not important because it involved Salman Khan but it showed the delay our judicial system is facing in giving justice. By the time a judgment comes out people forget what has actually happened. Salman Khan was charged with culpable homicide not amounting to murder and arrested and thereafter granted bail on October 2002. The Court on May 2003 rejected the plea to drop culpable homicide charges, but in June Hon’ble Bombay High Court dropped culpable homicide charges and tried Salman Khan was rash and negligent driving. In March 2015, Salman stated in the court that he was not drunk and his driver was behind the wheel. On May 6, 2015 he was found guilty by the court and awarded five years jail term. This time Court appeared to be convined by the evidence put forward by prosecution that Salman was driving the vehicle, the authenticity of the test showed that he had time the amount of alcohol in his blood stream at the time of the accident, and that the actor did not possess a valid driving license when the accident took place.

In the lead up to the final verdict, the prosecution has demanded a maximum punishment of ten years and prayed to the Court that deterrence and correction were important factors in awarding sentence to the famous actor.

Custodial Violence in India

In spite of the fact that every segment of the society feels concerned about custodial violence, over the years it has remained unabated. It seems to be on rise every year, in spite of the fact that rate of literacy has increased and the people have become aware about their rights and duties. The main arm of the criminal justice system that deals with people in custody is police. It will, therefore, be necessary to find out ailments, which govern this agency resulting into abuse of those who are in their custody. In this section, an attempt is made to find out as to what lies at the root of the problem of custodial violence. For this it is essential to study the conditions under which police works and to find out their mode of operation in dealing with the accused persons. The basic causes for Custodial violence can be grouped in the following categories: –

criminal lawyer in ludhiana

1. Work Pressure
The police in India has to perform a difficult and delicate task in view of the deteriorating law and order situation, riots, political turmoil, student unrest, terrorist activities, increasing incidence of bribery, corruption, tax evasion , violation of fiscal laws, smuggling and money-laundering. Organised criminal gangs are gaining strong roots in the society. They use ultra-modern weaponry, explosives and many other devices of committing crimes without leaving any evidence of their crime many a time. Similarly, dealing with insurgent and terrorist groups is also completely different from dealing with ordinary criminals. This category of criminals is well-trained, hardened and equipped with ultra-modern weapons. An ordinary policeman carrying a small revolver or even a gun ordinarily provided to him is invariably no match to them. Indeed, a resourceful criminal can escape the clutches of law almost indefinitely. The Indian police today finds itself handicapped not in its numerical strength but its inadequate infrastructural facilities like modern weaponry and equipment, transport and communication network and, more importantly, need-based training which is of paramount importance to make it more efficient and effective instrument of law enforcement.

A very important reason for continuing brutal behaviour by the Police is pressure. The sources of pressure are several, but basically they relate to performance or output beyond the narrow confines of police role, in spite of constraints on adequate role performance. Policemen have to deal with crime and disorder not on bits of paper but in the raw, directly. This generates lot of pressure, both from the people and the government. In addition to the constraints of the system are the constraints arising out of its actual operation. The outcome of Police efforts as they lead to deterioration of evidence and thereby reduces the chance of conviction in a court of law. Medical and legal reports are often received very late. TIP’s (Test Identification Parade) are often delayed considerably, before which the accused are bailed out, thus defeating the purpose of holding such a parade. In our accusatorial system, a person is presumed innocent unless his guilt is proved beyond reasonable doubts and thus, the degree of proof, which is required on part of prosecution, to secure conviction is exceedingly high. Thus, in a trial the chances of conviction are roughly one out of four. But results have to be achieved as quickly as possible or else the officer is transferred. So a shortcut is required to achieve result and for them, the UP Police Commission 1970-71 observed,

“An accused or suspect may be kept under Police custody for a maximum period of 24 hours as per law. In the meanwhile, a great deal of information remains to be elicited from the suspect especially in offences involving property, on recovery of which the success of prosecution greatly depends. Whenever the investigating officer finds it practicable, he records arrest after quite a few days of unrecorded and illegal detention. Thus the pressure of securing maximum information in the available time implies the investigating officer to use shortcut methods.”

2. Greed for Money
This is the most hateful reason for custodial torture and one that seems to be on the increase. At the level of Police Station, a number of Policeman use brutality to extract money from suspects and innocent persons. The legal situation and the nature of evidence facilitate the process of making SHO very powerful and giving what he does an air of finality, which gives him the unintended power to extract money and escape the corrective process of supervision. The courts give enormous importance to the FIR and what kind of FIR is actually written depends on the policeman on duty. Investigating a dacoity case, he can always threaten to implicate an honest man, even beat him up or simply keep him hanging about the police station until he gives him money. Supervision takes place after the fact and while an attempt can be made to punish the policeman concerned, it can seldom undo the wrong done, recover the evidence that has deteriorated. Each and every person gives the priority of money, they want money anyway, and this is mental condition of our primitive to higher society. For that in Police system made chains from minister to police. Now a day police machinery a means for producing money for officers and minister. In each police station have some cost, if any police ready to pay such amount they got the post at that particular location.

3. Punitive Violence
There are few honest but misguided policemen who believe in not letting the criminal get away with it. It is genuinely believed by them that except for a sound beating, there is no other way of controlling criminals. U. P. Police Commission 1970- 71, stated,

“The reason for use of third degree method is born out of wrong convictions. There is cross-section of the people and the police and a sizeable one at that, which believes in the efficacy of third degree methods alone in dealing with criminals, particularly hardened ones. They say that a jail term is no more a deterrent to the criminals. They remain happy there, particularly as conditions inside the jails have begun to score over conditions outside and the only thing they are scared is a beating by the police. It is not unusual to find rotaries against third degree methods pleading for use of ‘police methods’ for working out a case in which they happen to be interested.”

The whole tenor of the criminal justice system is punitive, hence a subsystem of it expected to be of service to the people cannot so operate. On account of the constraints of the system, the nature of the police function also becomes punitive, and many policemen see their brutality as extension of the punitive role of the organisation.

4. Positive re- enforcement
No matter what the constraints are, results have to be produced. As things are, a policeman, say a sub Inspector, who is brutal, who operates only on short cuts and is unscrupulous about the means he uses, produces results. The production of result ease the pressure on his superiors, even wins the acclaim of all and sundry, with the result that all his sins are and have to be forgiven. In due course and sometimes earlier, such a policeman rises in his hierarchy. This reinforces his use of third degree methods not only in his own eyes but also in the perceptions of his peer group and his subordinates. Sometimes the expertise at third degree of some policeman receives such wide appreciation that other policeman confronted by an intractable situation or a case, requests for his assistance. He then goes like a superior performer ‘tackles’ the suspect and produces results, gathering a reward in the bargain. This constant positive reinforcement of third degree method when it produces results is a very important cause of violence by Police in custody. Thus, positive reinforcement of Police violence takes place because it produces results and produces them fast, at least quicker than otherwise.

5. Police Sub- culture
The police sub-culture is the sociological side of the same coin. What it amounts to is the belief that a policeman reacts to a situation in a manner peculiar to him as a policeman and thus different and identifiable from how other people would react to the same situation. The sub-culture of our police includes use of third degree methods. The police sub -culture is strengthened by alienation, cynicism, law-esteem in society, a degree of pariah feeling, conflicting demands made of policeman, inconsistent judgment of their work, all forcing them into a corner. In this situation a policeman finds succour among others of his community with whom he identifies, leading to group solidarity, which in turn provides a sense of security against the hazards of his occupation, and a basis for a medium of self-esteem and some social affiliation in spite of the irregular hours of his work. Thus develops the culture of group that which demands greater conformance to threats, tortures, rather than rules, regulations, orders etc. However can one explain the fact that a young man of good family, trained in a reasonably good manner, starts behaving, within a few years only and particularly if he is in an operational rank such as that of sub inspector, in a brutal manner, true to the stereotype of his profession in general and rank in particular.

6. Lack of Proper Training
Lack of proper training to the Police officials, often result in use of third degree methods. The utterly inadequate training given to constables, the general absence of any attention to the necessity for keeping temper, being civil and respectful to the public, avoiding brutality or unnecessary harshness, are the factors that which leads to violence. Gore committee on Police Training 1972, was of is the view that one of the objectives of training should be to inculcate the right attitude towards the public which consists is never forgetting that the civil servant is the servant and not the master of the community. However, unfortunately, till date no adequate training with the objective mentioned, has yet been provided to police. Police should be given proper training which should include a separate course to impart them knowledge about the human rights and that they are here to protect the human rights and not to infringe them.

7. Other factors
Apart from the reasons mentioned above, the other reasons for custodial torture can be sexual weakness, sadism etc. Male police personnel may have a tendency of attraction towards opposite sex prisoner. For satisfaction of this lust he may use force and commit rape in the custody or he may use his official position to obtain consent for sexual intercourse. An amendment has been made in the IPC, 1860 to provide for stringent punishment for those officers, who use their official position to obtain consent of female prisoner in the custody for having sexual intercourse with them. The third degree methods are also applied for ‘teaching a lesson’ or ‘vomiting out anger’. It is the stage, where professional competence of the individual policeman surrenders before a situation and then he almost goes out of his mind. This can be averted if the policeman could keep their cool, not be overcome or torn by emotions, maintain a philosophical detachment and as a parallel requirement, have sufficient professional skill.

Another reason of custodial violence can be the social factor. In our country, we are accustomed to think in terms of ‘an eye for an eye’ and ‘tooth for tooth’. Therefore, the Society tacitly expects and approves the use of violence on suspects to get the truth. Complainants themselves urge the police to use force or violence to break a suspect. Therefore, in a Society, where the public are indifferent to the use of force on fellow human beings, policemen gets, as it were, social support for these illegal acts.

a) The third degree is a short act to quick results. As per the report of National Police Commission, an investigating officer is able to devote only 37% of his time in investigation while the rest of his time is consumed in law and order duty, VIP and security duty, court attendance and other miscellaneous duties. The result is naturally short cut and extra legal.

b) Lack of knowledge of application and experience of scientific methods in crime investigation and interrogation of accused. Inadequate training etc.

c) Sometimes society expects police to take tough action not sanctioned by law against criminals. Use of third degree is their service right and accepted part of profession.

d) Political and bureaucratic influence and interference, collusion with rich and influential people and dancing to their tune.

e) They feel immune to the fact that whatever they will do won’t be questioned.

f) Disproportionate ratio between crime rate and manpower.

g) Lack of effective supervision and inspection of Police Station by superior officers.

h) Delay in trial gives more time to interrogate.

i) Erring police officials go unpunished due to lack of evidence.

j) Psychological aberrations of the custodian – sadism, sexual weakness, social hatred, etc.

k) Lack of time for investigation.

l) Inability to keep a person for longer duration in custody for interrogation than 24 hours are such factors which induce police to keep suspect in ‘unofficial custody’ which ultimately encourage the police to indulge in custodial violence.

m) Long duration of work and deplorable conditions of work. A study carried out by National Productivity Council had shown that a policeman has to work sixteen hours a day and seven days a week.

Custodial Violence and Indian Constitution

The legal framework in India both constitutional and statutory contains provisions relating to safeguards arrest, detention, custodial torture and other crimes in custody. The substantive law (Indian Penal Code, 1861) provides punishment of a person causing injury, torture or death on the body of a person in custody. The procedural law (Criminal Procedural Code, 1973 and Indian Evidence Act, 1872) contains several provisions safeguarding the legal rights of a person in custody. The Constitutional and the relevant statutory provisions on the subject have been supplemented by the significant judicial pronouncements. In addition, the Protection of Human Right Act, 1993 provides institutions of the National and State Human Rights Commissions as well as Human Rights Courts for better protection of human rights of a person in custody. India has ratified, acceded and singed the International Declarations, Covenants, Conventions and treaties such as Universal Declaration of Human Rights( UDHR), International Covenant on Civil and Political Rights ( ICCPR), International Covenant on Economic, Social and Cultural Right (ICESCR), International Convention on the Elimination of All forms of Racial Discrimination( ICERD), Convention on the Elimination of All Forms of Discrimination against Women( CEDAW), Convention on the Right of the Child (CRC), Convention against Torture and Other Cruel, inhuman or Degrading Treatment and Punishment (CAT), and the International Convention on the protection of the Rights of All persons against Enforced Disappearance (CPAED). This apart, the UN Declaration on Basic Principles of Justice for Victims of Crime and abuse of Power is relevant.

Sexual Harassment of Women at Work

In 1997, the Honorable Supreme Court of India, in Vishaka and Others Vs. State of Rajasthan and Others (“Vishaka Judgment”) acknowledged the gravity of sexual harassment of the working women at the workplaces and laid down guidelines making it mandatory for employers to prevent the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment. The guidelines issued by the Hon’ble Supreme Court were treated as law declared by the Hon’ble Supreme Court under Article 1412 of the Constitution of India. It was held by the Hon’ble Supreme Court that the guidelines framed by the Supreme Court would be strictly observed in all work places for the prevention and enforcement of the right to gender equality of the working women.

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It was observed by various Courts from time to time in the past that the guidelines and norms framed by the Hon’ble Supreme Court in Vishaka Judgment have not been followed in workplaces strictly.
The increasing work participation rate of women made it imperative for enacting a comprehensive legislation focusing on prevention of sexual harassment as well as providing a redressal mechanism.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 & Rules made therein

In 2013, after a span of 16 years, India finally enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as the ‘Act’) for prevention of sexual harassment against women at the workplaces. The Central Government vide notification SO 3606 (E) appointed 9 December 2013 as the date on which the provisions of the Act came into force and on the same day, the Central Government made the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (“Rules”).

Objectives of the Act
The Act is enacted by the Indian Parliament to provide protection against sexual harassment of women at workplace and prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto. Sexual harassment is termed as a violation of the fundamental rights of a woman to equality under Articles 14 and 15 of the Constitution of India and right to life and to live with dignity under Article 21 of the Constitution of India. Sexual harassment is also considered a violation of a right to practice any profession or to carry on any occupation, trade or business which includes a right to a safe environment free from sexual harassment.

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Definitions

Sexual Harassment

The Act has adopted the definition of ‘sexual harassment’ from Vishaka Judgment and the term sexual harassment includes any unwelcome acts or behaviour (whether directly or by implication) such as physical contact and advances, demand or request for sexual favours, making sexually coloured remarks, showing pornography or any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

In, Apparel Export Promotion Council Vs. A.K. Chopra, the Honorable Supreme Court while deciding an issue whether the act of a superior officer (wherein such superior officer tried to molest his junior woman employee) would amount to sexual harassment, the Court relied on the definition of the term ‘sexual harassment’ laid down by the Supreme Court in the Vishakha Judgment (which is similar to the definition of the Sexual Harassment provided in the Act) held that “the act of the respondent was unbecoming of good conduct and behavior expected from a superior officer and undoubtedly amounted to sexual harassment…”.

Section 3 of the Act provides that no woman shall be subjected to sexual harassment at any workplace. This section further provides the circumstances which if present or connected with any act or behaviour of sexual harassment may amount to sexual harassment such as implied or expressed promise to preferential treatment or implied or explicit threat of detrimental treatment in her employment, implied or explicit threat about her present or future employment, interference with work or creating an intimidating or offensive or hostile work environment, humiliating treatment likely to affect health or safety of a woman.

Complaints Committee & Complaint Procedure

Internal Complaints Committee:
The Act makes it mandatory for every employer to constitute an internal complaints committee (“ICC”) which entertains the complaints made by any aggrieved women. The members of the ICC are to be nominated by the employer and ICC should consist of i) a Presiding Officer, ii) not less than two members from amongst employees preferably committed to the cause or women or who have had experience in social work or have legal knowledge and iii) one member from amongst non-governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment. In order to ensure participation of women employees in the ICC proceedings, the Act requires that at least one-half of the members of ICC nominated by employer are women.

Local Complaints Committee:

Provisions are provided under the Act to form Local Complaints Committee (LCC) for every district for receiving complaints of sexual harassment from establishments where the ICC has not been formed due to having less than 10 workers or if the complaint is against the employer himself.

Complaint procedure:

the Act stipulates that aggrieved woman can make written complaint of sexual harassment at workplace to the ICC or to the LCC (in case a complaint is against the employer), within a period of three months from the date of incident and in case of a series of incidents, within a period of three months from the date of last incident. If the aggrieved woman is unable to make complaint in writing, reasonable assistance shall be rendered by the presiding officer or any member of the ICC (or in case the aggrieved woman is unable to make complaint in writing to the LCC, the reasonable assistance shall be rendered by the Chairperson or any member of the LCC) for making the complaint in writing.

As per the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 , in case the aggrieved woman is unable to make a complaint on account of her physical incapacity, a complaint may be filed inter alia by her relative or friend or her co-worker or an officer of the National Commission for Woman or State Women’s Commission or any person who has knowledge of the incident, with the written consent of the aggrieved woman.

Right to Litigate Must be Replaced with Right to Justice!

Our legal system is one of the most inefficient in the world is not a secret, with bottom ranking on contract enforce-ability in ease of doing business index. Even CJIs have been record predicting complete breakdown of our legal system since time immemorial (I recall justice PN Bhagwati saying this in 1985). That we are still surviving as a sovereign and democratic nation is nothing short of a miracle. How long could it go on is a big question mark, given that legal reforms have never been a priority for any government in India so far.

From my personal experience, I have learnt that our legal system is tailor made for the blackmailers in property cases which has made it extremely easy to embroil anybody in court for decades, preventing him from using or selling his property even if injunction is not granted, and ultimately succeeding through forced compromise at some stage. Kindly consider the following:-

Legal presumptions/bias in suits under Specific Relief Act 1963

1. Law assumes that money is not an adequate relief for breach of contract for sale of immovable property.

a. In most suits, plaintiff is claiming monetary loss due to breach of contract, and his intention/purpose of buying the property was to sell the same as it is or after development/construction.

b. Very rarely, plaintiff will have anything more than monetary consideration where the above assumption could be justified.

c. Plaintiff targets and will invariably reach compromise with monetary compensation at some stage.

d. Since suit for compensation does not prevent a defendant from selling his property, enough pressure is not created on him. Hence, plaintiff has been armed with this legal assumption which either through injunction or the principle of lis pendence effectively prevents seller from selling his property until this case is settled.

e. Even if defendant wins trial court, plaintiff will invariably go into appeals, and thus, armed with weapon to publicize to whole world that the subject property is disputed, and scare the buyers away. Eventually, defendant will succumb one day regardless of merits in the case.

2. Law assumes that time is not essence of the contract for sale of immovable property.

a. This allows a plaintiff to default on his payment obligations, and yet come to court which assumes that time is not essence of the contract.

b. Even if contract specifically means payment to be within this particular month, courts interpret that not to be essence of
the contract.

3. Law allows enforcement of oral contracts.

a. This is despite provisions of Stamp Act and Registration Act requiring contracts for sale of property to be registered and properly stamped.

b. This is also despite the provisions of evidence act stating that an oral contract which needs to be executed in writing by law cannot be taken as evidence.

c. Since in most suits, proper stamp duty has not been paid, the plaintiff concocts the story of there being an oral contract for enforcement.

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d. Registration Act proviso to Sec 49 which provides an exception to bar on production of any unregistered document as evidence in court, has been mis-interpreted by courts giving boost to such frivolous litigation. The section states.

4. Law only wants plaintiff to state that he was willing and capable to discharge his obligation, but there is no need for him to actually tender the payment. Even case laws have repeatedly held that plaintiff need not actually tender payment.

a. It allows plaintiff who actually has no means to pay for the property under the contract to come to court. Of course, he will not win the trial but he is still entitled to file an appeal, and then, second appeal. His lawyers can easily buy him one or two decades in court to enable him to scare buyers of the property that long, and ultimately force seller to come to terms with him.

b. The defendant is not allowed to demand depositing of the purchase consideration in court. Consequently, buyer’s property (the money) remains free while seller’s property remains stuck. This is inbuilt injustice in the legal system.

5. Supreme Court has held that there could be no counter claim for damages on the plaintiff who manages to secure injunction on defendant’s property which is ultimately held to be unnecessary or unjust. This makes the entire litigation lopsided.

6. Courts are extremely reluctant and strict in accepting applications under order 7 rule 11 for dismissal. They do not consider probability of the suit succeeding but they only want to see extremely strictly as to why the suit is legally barred. This allows every frivolous suit a direct right to trial which means another right to appeal, and so on.

It is high time we replace right-to-litigate with right-to-justice !!!

Difference Between Lease and License

The term ‘lease’ and ‘license’ are defined under Section 105 of the Transfer of Property Act and Section 52 of the Indian Easements Act respectively.

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Section 105 of Transfer of Property Act:
“Lease Defined. A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.”

Section 52 of the Easements Act, 1882:
“License, Defined. Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called, a license.”

“Lease” is a word which everyone is aware of, and hears it day in and day out while dealing the transactions related to immovable property. Lease can be defined as the right to enjoy an immovable property for a certain period of time, in consideration of a price paid by the person getting possession of the property.

Under Black’s Law dictionary, “Lease” can be defined as a conveyance of lands tenements to a person for life, for a term of years, or at will, in consideration of rent or some other recompense. Oxford Dictionary of Law defines it as “a contract under which an owner of property grants another person exclusive possession of the property for an agreed period, in return for rent and sometimes for a capital sum known as a premium.

Section 105 of Transfer of Property Act, 1882 defines lease and one would be easily able to derive some of the important characteristics of a lease such as transfer of an interest, parties to the lease, subject matter of lease etc. But, there is another provision or legal principle which at sometimes is confused with the concept of lease i.e. Licence.

Black’s Law Dictionary defines “Licence” in the context of property law as an authority to do a particular act or series of acts upon another’s land without possessing any estate therein. Oxford Dictionary of Law defines it as Permission to enter or occupy a person’s land for an agreed purpose.

Both the provisions look similar, then what make them different is a very important question, which has to be resolved, and it is abstruse to do so. Sometimes, there arise some situations, which abridge difference between them. In order to understand the difference between these two provisions and to know the situation, which they may conflict, it becomes very important to understand the basic features of both Lease and Licence.

Generally, a lease contemplates the following:
a) a demise or a transfer of a right to enjoy property;
b) for a term or in perpetuity;
c) in consideration of a price paid or promised, or of money, a share of crop or services or other things of value to be rendered periodically or on specified occasions to the transferor.

The essential characteristic of a lease are:
1. transfer of an interest;
2. parties to a lease;
3. subject matter of lease;
4. types of lease;
5. duration of lease; and

6. consideration for lease.
Transfer of Interest
A lease a transaction with respect to immovable property and creates a right to enjoy such property for a certain term and for consideration on the conditions mentioned in it. The right to possess and enjoy the property is transferred in favour of the lessee and he acquires this interest through the conveyance of the lease. After the creation of such an interest, a tenant or a sub-tenant is entitled to remain in possession thereof until the lease is duly terminated and eviction takes place in accordance to law. The relationship of landlord and tenant can come into existence only after the transfer of an interest in immovable property pursuant to a contract and creates a right in rem. Where there is no transfer of interest there is no lease.Further, if an option is given to the lessor by the lessee himself to resume the leasehold, it is a personal covenant and does not create an interest in the land.

Parties in Lease
The parties to the lease are the transferor, who is called the lessor or landloard, and the transferee, who is called the lessee or tenant. Both the parties must be competent to contract. The lessor and the lessee cannot be the same person, they have to be two different persons.A lessor can be an absolute owner of the land or a joint tenant or a lessee himselfbut above all must be competent to contract. Thus minors, or unregistered associations cannot be lessees.

Subject Matter of Lease
The subject matter of a lease is a specific immovable property such as land, houses, factories, shops, minerals, buildings etc. Usually a lease of a house and a shop includes not only the superstructure but also the site, unless the same is specifically excluded from the definition of the land in the lease deed.However, terrace and air space above a tenanted multi-storeyed building are not included in lease.

Duration of Lease
The lease need not be for fixed period but its duration should be definite. An uncertainty as to the duration of the term will be detrimental to the lease.When the lease is for specific period, its period cannot be infinite by mere provisions of renewal every year.

Consideration for Lease

There must be a consideration fixed for lease for lease that may be in the form of:
a) money;
b) money’s worth such as a share in crops;
c) service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee.
Consideration may be termed as rent plus premium as well as rent alone or premium alone. Also, a lease without consideration is invalid.

Licence
A licence is a right to do or continue to do, in or upon the immovable property of the grantor, something which would in the absence of such right is unlawful, and such right does not amount to an easement or an interest in the property. Further, it is an authority to do a particular act or series of acts upon another’s land without possessing any estate therein.

Thus, the primary distinction between a lease and a licence is that the lease is a transfer of a right in a specific immovable property, whereas, licence is a bare permission and a licencee is not entitled to notice to quit before evidence.

Primary distinctions between Lease and Licence:

1. A lease is a transfer of an interest in a specific immovable property, while licence is a bare permission, without any transfer of an interest.

2. A lease creates an interest in favour of the leassee with respect of the property, but a licence does not create such an interest.

3. A lease is both transferable and heritable, a sub tenancy can be created by the tenant and on the death of the tenant, the tenancy can be inherited by his/her legal heir, whereas, licence is neither transferable nor heritable.

4. A licence comes to an end with the death of either the grantor or the garantee, since it is a personal contract, but a lease does not comes to an end on either the death of the grantor or grantee.

5. A licence can be withdrawn at any time at the pleasure of the grantor but the lease can come to an end only in accordance with the terms and condition stipulated in the contract of tenancy agreement.

6. A lease is unaffected by the transfer of the property by sale in favour of a third party. It continues and the purchaser has to wait till the time period for which the tenancy was created is over before he can get the possession, whereas, in case of a licence, if the property is sold to a third party, it comes to n end immediately.

7. A lessee has a right to protect the possession in his own right. Whereas, a licencee cannot defend his possession in his own name as he does not have any proprietary right in the property.

8. A lessee in possession of the property is entitled to any improvements or accessions made to the property, while a licencee is not.

Whether a Lease of a Licence

A finding on the question whether the person in possession is a tenant or a licencee is a finding of fact. To ascertain if a document creates a lease or a licence, the substance of the document should be preferred to its form. Where it creates an interest in the property, it is a lease; but, if it only permits another to make use of the property, of which legal possession and control continues with the owner, it is a licence. A licence does not create any estate or interest in the property to which it relates.Thus, whether an instrument operates as a lease or licence is not a matter of words contained in the instrument creating it, but of its substance. The decisive consideration is the intention of the parties, but the intention must be gathered on a true construction of the agreement and not merely from the description given by the parties.

Where, on point of intention the document is ambiguous, the question is to decide in the context of the surrounding antecedent and consequent circumstances, and parole evidence. A document, which expresses the intention of both parties or of one party to create license will nevertheless create tenancy if the rights and obligations enjoyed and imposed satisfy the legal requirements of tenancy.

The mere use of words appropriate to a lease will not preclude its being held a license; so even a document referring to ‘rent’ maybe a license. Transfer of exclusive possession generally indicates an intention to create a lease even though the sum is described as a ‘license fee’, but it is no longer a conclusive test and there maybe cases where transferee in excusive position is a licensee. Where, after the expiry of the original period of lease, the lessee continues in possession and the lessor accepts from him premium for the subsequent period, it is a lease and the lessee could not be ejected without the termination of the freshly created lease.

Justice Hurried is Justice Denied

Nirbhaya’s case shook the entire nation particularly young generation from head to toe. The brutal assault on Delhi based physiotherapist raised large number of voices against Justice Delivery System. This led to certain revolutionary reforms in Judiciary which includes setting up of Fast Track Courts for disposing of the cases relating to heinous crime against women such as abduction, rape, dowry death etc. Chief Justice of India had written to all the High Court of the Country which resulted in creation of such exclusive courts presided over by women Judicial officers in most of the courts so that the large number of cases relating to women pending in various courts are disposed of expeditiously.

On the direction of the High Courts, subordinate judiciary at District level started disposing such cases in speedy mode even in few days. Very often in the print media, we studied about decision of various courts particularly in Punjab that cases relating rape and other crime against women are disposed of by a court within 7 days, 5 days or amazing in 2 days!

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Such a sensitivity of Judicial Officers can be understood particularly when there is huge pressure of High Courts. However, we need to see the scenario from the other side of the wall also. Can such a case, on a very serious matter that too when authenticated investigation is required and live and liberty of accused is at stake should be decided in a haste. No doubt, justice to the prosecute/victim should be provided at any cost and without delay, but sometimes trial by media and social pressure may lead to miscarriage of justice also. A sessions trial such as rape, murder which normally takes months to conclude, if decided within few days to reduce the pend-ency anticipating that if accused in innocent then an appeal to the High Court or the Apex Court may set the person free, is misconceived. If an under trial is economically poor, he may not be able to appeal to superior court and this can confine him behind the bars for years which is violation of his fundamental right to life and liberty provided to every citizen by the Constitution of India under Article 21.

We also come across number of cases when personal enmity can lead to innocent persons booked for rape cases. Recently, Punjab Police has exposed number of such cases where innocent persons were falsely implicated in rape cases and ultimately police withdrew the charges of rape and sexual assault.

When the public outcry wants death sentence to be imposed on perpetrators of such inhuman acts, then sentencing accused in such a small time ignoring other cases in the cause list is not an ideal course of action. What we want is quality in quantity for which Indian Judiciary is acknowledged in the international legal sphere and not just quantity in a hurry to reduce the pend-ency of more than 3 crore cases pending in various courts at all levels for which reforms, known to everybody, like filling up of the existing vacancies of Judges, staff and adequate infrastructure is required and good news is that the necessary steps in this regard have been initiated.

Adoptions Made Easy

Adoption procedure is supposed to become simpler as the new simplified “Guidelines Governing Adoption of Children 2015” notified by the Central Government on 17th July 2015 have come into effect from today. The press release by the Government through PIB states that the new Guidelines are intended to provide for more effective regulation for adoption of orphan, abandoned and surrendered children and would bring more transparency and efficiency in the adoption system. With the new guidelines, it would become possible for Prospective Adoptive Parents (PAPs) to track the status of their application making the entire system more user friendly. Along with it, the fully revamped IT application for the purpose of adoption of children, CARINGS (Child Adoption Resource Information & Guidance System), has also become operational from today.

Adoption-words

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According to new guidelines the prospective adoptive parents should be physically, mentally and emotionally stable; financially capable; motivated to adopt a child; and should not have any life threatening medical condition. Any prospective adoptive parent, irrespective of his marital status and whether or not he has his own biological son or daughter, can adopt a child. Single female is eligible to adopt a child of any gender whereas single male person shall not be eligible to adopt a girl child. In case of a couple, the consent of both spouses shall be required and no child shall be given in adoption to a couple unless they have at least two years of stable marital relationship. Couples with more than four children shall not be considered for adoption. The minimum age difference between the child and either of the prospective adoptive parents should not be less than twenty five years.

The new guidelines also say in unambiguous terms thatNon-resident Indian prospective adoptive parents shall be treated at par with Indians living in India in terms of priority for adoption of Indian orphan, abandoned or surrendered children. Adoptive procedures for resident and non-resident Indians are separately given in the new guidelines. Any child care institution, intending to be recognised as specialised adoption agency, shall apply for it, to the concerned State Government. The functions of these agencies are also detailed in the new guidelines.

High Court Orders CBI Probe for Child Trafficking

Acting on a public interest litigation, a division bench of the Kerala High Court on Monday ordered a CBI probe into the trafficking of children from north and northeastern states to orphanages in Kerala.The division bench of Chief Justice Ashok Bhushan asked the CBI to step in despite the state government opposing probe by a central agency.

While saying that all orphanages in Kerala should be brought under the purview of the Juvenile Justice Act, the court added that district administration and child welfare committees at the district-level must ensure that proper legal procedure is followed while bringing children from other states.

Trafficking of children from other states to Kerala orphanages hit the headlines last year when 450 children from Bihar and Jharkhand were brought to a few Muslim-run orphanages in North Kerala. The railway police in Palakkad had then booked the ‘agents’ involved on charges of trafficking children without proper documents and even railway tickets.

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Subsequently, police and several agencies began investigating the conduct of other orphanages in Kerala. Two months back, police detained several children in Kochi, who were brought to some orphanages in central Kerala.

Kerala has around 1800 orphanages, recognised by the State Orphanage Control Board, and many of these institutions — especially in north Kerala — have several north Indian children as inmates.

According to sources, children from other states are in demand because of shrinking enrollment of local students, which threatens to lead to the closure of schools run by orphanage trusts. Some trusts that run schools have actually opened orphanages only to ensure steady flow of students to their schools and to stay in business. Agents, claim sources, find ‘eligible’ children in north Indian villages — in Uttar Pradesh, Bihar, West Bengal, Assam, Manipur, Jammu and Gujarat — and at the start of an academic year bring them in batches to Kerala.

In the past, the Indian Union Muslim League (IUML), an ally of the Congress-led Government, had alleged that the state government was trying to prevent the functioning of institutes meant for destitute Muslim children. The IUML had then stated that the orphanages were not involved in the sale of children for sexual exploitation or organ trade and the government should desist from oppressing them by pointing out procedural lapses.

Orphanages in Kerala, particularly those run by Muslim organisations, have been regularly bringing destitute Muslim boys and girls from other states. Many of these orphanages, like JDP Islam Orphanage in Kozhikode, have over the years grown into hubs of professional and technical institutes, increasing the demand for more inmates.