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MARITAL RAPE IN INDIA- CAN IT BE CRIMINALIZED?

Abstract:

Non-consensual sex within marriage is not considered rape in India, one of the few countries in the world. One of the more contentious issues is whether marriage provides the husband with an expectation of intercourse and whether the wife implicitly consents to sex. Will removing this exception result in the creation of a new crime? Because marital rape is not currently classified as rape, the court should read the exception. A jury of two judges from the Delhi High Court has been hearing a series of petitions aimed at overturning the Indian Penal Code’s marital rape plea since January 20, 2022. The Supreme Court ruled in the case of the State of Maharashtra v. Madhkar Naraya in 1991 that every woman has a right to privacy that must be respected. We’ll look at the concept of marital rape in this article.

Introduction:

The RIT Foundation v Union of India case was decided on May 11 by two judges from the Delhi High Court. The case in front of the Court was simple. Rape is defined by section 375 of the IPC as when a man has sex with a woman without her consent. Section 375, on the other hand, does not consider having sex with a wife without her consent to be rape. A husband cannot be accused of raping an adult wife under the law. The Delhi High Court has received four petitions challenging the constitutionality of the “marital rape exception.”

Because it is a religious ceremony, any sexual act performed within the confines of a marriage is not considered illegal. When there is no consent, rape is defined as sexual intercourse or sexual penetration. As a result, proving rape necessitates proving the absence of consent. In most cases, it is the victim’s responsibility to demonstrate that there was no consent. Minors, for example, are presumed to be unable to consent to such acts by law, so consent is unlikely. However, consent is commonly assumed when the victim and the offender are married.

In the patriarchal system that governs Indian families, women have always been regarded as property of their significant others or guardians. As a result, rape was viewed as both a theft of a woman’s property and a crime against her husband or guardian. Our legislators have been influenced by this belief system to overlook the spouse’s rape crime by granting him the protection of his spouse’s right to marry, thus quietly tolerating that women are nothing more than a protest of his sweetheart’s sexual satisfaction, with no control over his sexuality. The right of women to equality and uniformity was established with this decision.

Rape is more than just ferocity against women; it is a grave violation of a person’s fundamental right to life and individual freedom. Nothing changes because there is a link between the victim and the offender. As a result, it is incorrect to assume that having sex with your spouse is a privilege bestowed on the husband by marriage. Marital rape is associated with social shame because it silences a woman’s voice against her husband, who takes advantage of her advantageous position to break her trust and trustworthiness. It has been proven that marital rape is more traumatic, with long-term physical and mental consequences. As a result, in some countries, marital opposition to spouses has decreased. Our state fails to fulfill its responsibility to ensure sexual fairness, which includes protection from wrongdoing and mistreatment, by decriminalizing spouse rape.

Several countries have now passed laws prohibiting marital rape, revoked special cases of marital rape, or enacted laws that do not distinguish between marital and ordinary rape. This demonstrates that marital rape is now considered a human rights violation. In 2006, more than 100 countries were estimated to have made marital rape illegal, but India was not one of them. According to those in charge of the strategy, despite the fact that India has passed numerous laws and institutions addressing violence against women in their homes, such as laws prohibiting the murder of girls and domestic violence, marital rape has yet to be recognized as a crime. In India, the sacred draperies of marriage hide marital rape.

Marital Rape and laws:

In India, rape in a married relationship is not a crime. In India, laws against marital rape are either non-existent or esoteric, and are interpreted by the courts. “A man’s sexual relations with his wife, his wife who is no less than 15 years old, are not rape,” says section 375 of the Indian Penal Code (IPC).  Unless the raped woman is the spouse and is not less than 12 years old, the rapist should be punished with imprisonment or imprisonment for a period that can extend to life imprisonment or up to 10 years, in addition to the fine, under article 376 of the CPI.

As a result, marital rape is only considered if the spouse is under the age of 15, and the punishment is less severe. After the age of 15, the spouse has no legal protection, which is against international human rights standards. A similar law that raises the legal age of consent for marriage to 18 protects only children under the age of 15 from sexual abuse.

When the wife is between the ages of 12 and 15, the offense is punishable by up to two years in prison or a fine, or both, under the Indian Penal Code; when the spouse is under the age of 12, the offense is punishable by up to ten years in prison and shoving. Rape of a legally separated spouse can carry a sentence of up to two years in prison and a fine, but not rape of a wife over the age of 15.

The Protection of Women from Domestic Violence Act, passed by Congress in 2005, recognizes marital rape as a form of domestic violence. A woman can sue her husband for marital rape under this law through legal division. Marital rape is irrational because it damages a woman’s affection and trust, leaving her feeling insecure and afraid. In the sacred place of marriage, he must give up his human rights. On the other hand, laws protecting the rights of victims of marital rape are inadequate and ineffective, and the methods employed are unacceptable.

These “laws” are based on the assumption that marriage entails consent to sexual activity. Is it true, however, that consenting to sexual activity entails consenting to sexual violence? The woman feels threatened and insecure as a result of the brutality, so she submits to sex. This is not the same as giving your consent to engage in sexual activity. In criminal law, the distinction between assent and non-assent is critical.

It’s odd that a woman’s right to life and liberty is protected in her marriage but not in her body. Rape should be defined differently (IPC section 375). Women have been using IPC section 498-A, which deals with the lack of remorse, to protect themselves from “unreasonable sexual intercourse directed by the spouse” until now. In any case, in marital relationships, there is no legal definition of ‘perversion’ or ‘unnatural.’ Is it possible to have too much sexual desire? Isn’t consent a prerequisite for everything? Is raping your partner legal? There is no response because both the judiciary and the legislature are deafeningly silent.

Reasons for Marital Rape not being a crime in India:

Women’s voices are silenced in a patriarchal society based on marriage. Making marital rape a crime, according to former Chief Justice of India Dipak Mishra, would cause complete anarchy in families and that our country’s survival depends on the family platform, which upholds family values. Marital rape cannot be criminalized due to existing traditions and social values. According to the Indian government, those who try to prevent women from being raped by their husbands are following Western countries’ lead.[1]

Our culture is built on the idea that once a woman marries, she gives her husband perpetual sexual consent. By mutual consent and marriage contract, the wife has thus relinquished her rights to her husband, which she cannot revoke. Judge Matthew Hale of the United Kingdom ruled that a husband cannot be held liable for raping his legitimate wife. The union government claimed in an affidavit to the Delhi High Court that a law criminalizing marital rape could be used to harass husbands, absurdly arguing that if all sexual acts between a husband and his wife occur, then the wife will be the sole judge of whether it is marital rape or not.[2]

This argument that women will falsely accuse their husbands and that, even if they do, the judiciary will be there to assist them has been made numerous times. Marital rape is a heinous, oppressive, and violent crime, which is the only valid justification or argument. Although the Indian constitution guarantees equality, the marital rape law is unconstitutional because it discriminates against women raped by their husbands.

Many women could use the criminalization of marital rape as a pretext to file a false report against their husbands, according to men’s rights activists. Making marital rape illegal, they argue, would encourage the wife to harass her husband. The male victim will not be able to prove his innocence because the wife’s relationship with her husband is essentially sexual in nature and the wife’s denunciation will be the main witness of the crime.

International Convention on Marital Rape

India should end marital impunity, according to the United Nations Committee on the Elimination of Discrimination Against Women (CEDAW). “Any distinction made on the basis of sex which has the effect of preventing… the exercise by women, regardless of their marital status… of human rights and fundamental freedoms in the…, cultural, civil or any other field,” according to Article 1 of the CEDAW.

The Indian Penal Code’s marital impunity also goes against General Recommendation 19, which labels mental and sexual violence against women as discriminatory. Sexual and mental harms, according to the report, deny women equal access to human and fundamental rights. General Recommendation 35 expands on General Recommendation 19 by stating that marital rape is defined by the use of coercive measures and the lack of free consent.

Despite the fact that India has not signed the CEDAW Optional Protocol, Article 2 mandates that women be protected regardless of their marital status. The organization may impose sanctions if the aforementioned provision is not followed.

India also violates the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights by granting marital immunity. According to Article 26 of the International Covenant on Civil and Political Rights, domestic law should ensure that all citizens, regardless of their status or race, are treated equally. Married and single women react to rape in the bedroom differently.

As a member state, India should not be allowed to violate any of Article 5’s fundamental rights. Due to the discriminatory nature of exception 2 to Article 376, India also violates Article 1 of the Universal Declaration of Human Rights.

India’s law also goes against the Beijing Declaration on the Status of Women. The Beijing Platform for Action encourages countries to adhere to CEDAW’s provisions, including the Optional Protocol, and to amend or repeal discriminatory provisions in national legislation.

Violence against women is a violation of their human and fundamental rights, according to the 59th session of the Commission on Human Rights, held in 2003. The United Nations has expressed concern about the dangers of laws that allow for marital rape on numerous occasions. In its annual Progress of the World’s Women report, UN Women urged member countries to make marital rape a criminal offense. He also chastised various countries’ “marry your rapist” laws.

Chief Justice Sir Mathew Hale’s book The History of the Pleas of the Crown, published in 1736, laid out the theory of implied consent. “The husband cannot be guilty of raping his lawful wife because the wife has thus given herself to her husband with their mutual consent and marriage contract, which she cannot retract,” she claimed. This theory has been adopted by the legal systems of all British colonies, as well as the British common law system. Another common law principle that supported the theory of implicit consent is the doctrine of coverage. When a woman married, her legal rights were subsumed by those of her husband, according to this doctrine. The theory of implied consent underpins this doctrine. The idea that husband and wife are the same person is a legal fiction.[3] The Doctrine of Coverture was widely accepted in England until the feminist movement in the mid-nineteenth century. It was considered oppressive to force women to exercise their legal and financial rights.

Judicial Interpretation:

We’ll look at a few examples, as well as the story of a husband who seriously injured his wife. Marital rape law does not apply after fifteen years between husband and wife, according to Queen Empress v. Haree Mythee[4]. The husband was found guilty of rupturing his 11-year-old wife’s vagina and inflicting an injury on her that resulted in her death under section 338 of the Indian Penal Code, 1860.

The Andhra Pradesh High Court held in Saretha v. T. Venkata Subbaih[5] that the enforcement of the restitution of marital rights decree violates the inviolability of the person subject to the decree, as well as marital integrity and privacy, and that person’s home intimacy.

According to the Supreme Court of Karnataka’s ruling against Krishnappa, sexual violence is an illegal invasion of a woman’s right to privacy and holiness, as well as a dehumanizing act. Non-consensual sexual intercourse is considered physical and sexual violence, according to the same decision.

The Supreme Court equated the right to choose sexual activity with constitutional rights to personal freedom, privacy, dignity, and physical integrity in the case Suchita Srivastava v. Chandigarh Administration[6].

The Supreme Court defined the right to privacy on one’s body in the case of State of Maharashtra v. Madhukar Narayan Mardikar[7]. The right of a prostitute to refuse sexual activity has been established. Stranger rape is illegal, and all women, except wives, have the right to privacy over their bodies, which includes the ability to refuse sexual intercourse and refuse consent. The issue is that marriage is highly regarded. Rather than forcing the wife to meet her husband’s every need, especially sexually, mutual respect and trust should flourish. Being raped by a friend is far more traumatic, and living with them makes it even worse.

The Supreme Court of India recognized the right to privacy as a fundamental right of all citizens in the case of Justice KS Puttuswamy (Retd.) V. Union of India.[8]

As defined by “decision-making privacy,” “the ability to make intimate decisions that primarily involve one’s sexual or procreative nature and decisions regarding intimate relationships.”

In each of these cases, the Supreme Court recognized the right to refrain from sexual activity as a fundamental right guaranteed by Article 21 of the Constitution to all women, regardless of marital status. As a result, forced sexual coexistence is a violation of the Constitution’s Article 21.

In Different Countries:

In 1932, Poland became the first country to make marital rape illegal. In 1976, Australia became the first common law country to pass reforms making marital rape a criminal offense, thanks to the impact of the second wave of feminism in the 1970s. Several Scandinavian and Communist bloc countries, including Sweden, Norway, and Denmark, as well as the former Soviet Union and Czechoslovakia, had passed laws making marital rape illegal over the previous two decades. In 1932, Poland became the first country to make it illegal. Many common law countries have abolished marital rape immunity through legislation since the 1980s. South Africa, Ireland, Canada, the United States, New Zealand, Malaysia, Ghana, and Israel are among the countries represented.

Between the 1970s and 1993, all 50 US states made marital rape illegal. The New York Court of Appeals repealed the marital exemption in 1984. The European Parliament Resolution on Violence Against Women of 1986 called for the criminalization of marital rape, which France, Germany, the Netherlands, Belgium, and Luxembourg quickly implemented. The common law principle that a marriage contract implied a woman’s consent to all sexual activities was overturned by the UK House of Lords in 1991.

The spousal rape exception was abolished in Nepal in 2002 after the country’s Supreme Court ruled that it was infringing on constitutional rights to equal protection and privacy. The statement read, “It is not a reasonable classification of the law that an act committed against an unmarried girl becomes a crime while the same act committed against a married woman does not.”

According to the 2011 United Nations Women’s Report, 52 countries have changed their laws to make marital rape a crime. The remaining countries are those that have made an exception for marital rape in their rape laws, as well as those that haven’t and can prosecute their spouse under general rape laws.[9]

Conclusion:

In India, marital rape is not entirely prohibited. It is undeniably a serious form of female abuse that necessitates government intervention. Women who have been raped by their husbands or wives are more vulnerable to a variety of attacks and frequently suffer from long-term physical and emotional issues. Marital rape is much scarier for a woman in this situation because she has to live with her tormentor on a regular basis. Due to the seriousness of the consequences of marital rape, it is clear that the crime must be criminalized. Positive legal changes for women are occurring in India, but more work is required to achieve both legal and social changes, such as criminalizing marital rape and changing attitudes toward women in marriage. The law protecting women from domestic violence has numerous flaws because it does not expressly prohibit marital rape. On the plus side, passing a law prohibiting domestic violence has paved the way for legislation prohibiting marital rape. This reflects a shift in the state’s mentality, which previously valued non-interference in family situations.

 

[1] https://theswaddle.com/marital-rape-inda-decriminalized-crime/

[2] https://indianexpress.com/article/explained/marital-rape-a-crime-in-many-countries-an-exception-in-many-more-4821403/

[3]https://timesofindia.indiatimes.com/city/bengaluru/no-need-to-make-marital-rape-an-offence-ex-cji-dipak-misra/articleshow/68785604.cms

[4] (1891) ILR 18 Cal 49

[5] AIR 1983 AP 356

[6] (2009) 14 SCR 989, (2009) 9 SCC 1

[7] AIR 1991 SC 207

[8] (2017) 10 SCC 1

[9]https://www.legallyindia.com/blogs/t-sareetha-vs-t-venkata-subbaiah-remembering-a-revolutionary-decision#:~:text=Justice%20Choudary%20held%20that%20%E2%80%9Ca,at%20the%20heart%20of%20the/

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Sedition Law- Will It Be Scrapped?

Abstract:

The Supreme Court recently asked the government why the sedition law had not been repealed, stating that it is a weapon used by British citizens to silence citizens. Chief Justice NV Ramana expressed concern about the misuse of the sedition law by some state officials, comparing it to giving a carpenter a saw to cut a piece of wood and then using it to destroy the entire forest. Section 124A of the Indian Penal Code defines sedition. During the colonial era, the British used this sedition law to silence leaders like Gandhiji and Nehru. We discuss what this sedition law is, its history, section 124A of the Indian Penal Code, the status of this law in the Modi era and in different countries, and finally whether the Indian government will repeal the law in light of the Supreme Court’s recommendations.

Article:

Patricia Mukhim and Anuradha Bhasin, two journalists, recently challenged the constitutionality of the sedition law in the Supreme Court. It is not the first time that the sedition law has been challenged. Its constitutionality has been questioned numerous times in recent years and numerous incidents of abuse have been reported.

In the interest of state security, law and order, and so on, the Indian government has used this provision numerous times to reject criticisms leveled against it. It was implemented during the British era to crack down on demands for independence. During the imperial rule, the government tried and punished many people under the aforementioned provision, including the Father of the Nation and other freedom fighters. However, until now, the sedition law has been used as a convenient tool to stifle any form or expression of dissent or criticism.

What is Sedition:

Sedition is defined as an open challenge to the existing order, for example through speech and organization. Sedition is commonly defined as the subversion of a constitution and the incitement of dissatisfaction or rebellion against existing authority. Sedition is defined as any insurrection that is not aimed at the direct and open violation of the law. Seditious libel refers to the use of seditious language in writing. Someone who undertakes or promotes sedition is referred to as a seditionist. Because it is overt, sedition is often not considered a subversive act, and the overt activities that can be prosecuted under sedition laws vary by legal code.

Sedition is a type of state betrayal. Although sedition has the same ultimate effect as treason, it is typically limited to the offense of organizing or encouraging opposition to the government in a way that falls short of the more dangerous crimes that constitute treason (such as in speaking or writing).

In Indian Law:

Sedition is defined in section 124 A of the Indian Penal Code as “Anyone who, by words, spoken or written, or signs, or visible representations, or otherwise, carries or attempts to cause hatred or contempt, or excites or attempts to excite disaffection with the government established by law is punished with life imprisonment, to which a fine can be added … “

The provision also includes three explanations: 1- The term “disaffection” encompasses all the feelings of enmity; 2- Comments expressing disapproval of Government policies in order to obtain their modification through legal means, without inciting or attempting to incite hatred, contempt or disaffection, do not constitute a crime within the meaning of this section. 3- Comments expressing disapproval of administrative or other government actions that do not incite or attempt to incite hatred, contempt or disaffection do not constitute a crime under this section. This act was enacted in 1860 by the British government to prevent crimes against the state, but it did not involve sedition. It was added in 1870 due to an error in the original IPC draft.

Origin and history of Sedition law in India:

The history of the sedition law in India is fascinating. The British used the sedition law to silence dissent and imprison freedom fighters such as Mahatma Gandhi and Bal Gangadhar Tilak who criticized the policies of the colonial administration. After the Declaration of Independence, the authors of the Constitution spent a lot of time deliberating on various aspects of colonial law. One of the most vocal opponents of the sedition law, K.M. Munshi said such draconian legislation is a threat to Indian democracy. He said that “the essence of democracy is, in fact, criticism of the government”. As a result of his efforts and the persistence of Sikh leader Bhupinder Singh Mann, the word “sedition” was removed from the Constitution.

However, the controversial First Amendment, enacted by the government led by the first Prime Minister, Jawaharlal Nehru, reinstated this law. “Now, as far as I’m concerned, that particular Section (124A IPC) is highly questionable and hateful, and should have no place, whether for practical or historical reasons, if you will, in any body of law that we might pass,” Nehru said in the 1951 proposing the first amendment to the Constitution. The sooner we reveal it, the better. “However, he lingered on this because, in 1951, his government not only restored the sedition law through the First Amendment, but also strengthened it by adding two expressions:” friendly relations with states. foreigners “and” public order “- as reasons to impose” reasonable restrictions “on free speech.

Post-Independence:

After independence, the term “sedition” was removed from the Constitution in 1948, after debate in the Constituent Assembly. KM Munshi proposed an amendment to the draft Constitution that would remove the word “sedition” as a basis for limiting constitutional freedom of speech and expression. The term “sedition” was therefore removed from the Constitution when it was adopted on November 26, 1949 and Article 19 (1) (a) guaranteed absolute freedom of speech and expression. However, section 124A remained in the CPI.

Jawaharlal Nehru proposed the first amendment to the Constitution in 1951, which limited freedom under Article 19 (1) (a) and gave the state the authority to impose “reasonable restrictions” on the right to free expression.

Indira Gandhi’s government made section 124A a criminal offense for the first time in Indian history. The new Code of Criminal Procedure, 1973, which came into effect in 1974 and repealed the 1898 Colonial-Era Code of Criminal Procedure, made sedition a knowable crime.

Case laws:

Previous high court rulings were overturned by a five-judge constitution court, which upheld the constitutionality of section 124A of the IPC. The court, however, attempted to limit the court’s potential for abuse. The court ruled that, unless there is an incitement or appeal for violence, criticism of the government cannot be considered sedition. The ruling limited sedition only to the extent that the seditious speech incited “public disorder,” a sentence not found in Section 124A but added by the court.

In addition, the court issued seven “guidelines” defining when critical speech is not considered sedition.

The court stated in its guidelines for applying the new, more restrictive definition of sedition law that not all speech that expresses “disaffection”, “hatred” or “contempt” towards the state, but only speech that can inciting “public disorder” would qualify as sedition.

According to Kedarnath’s decision in 1962, the sedition law was to be used only in extreme cases where the country’s security and sovereignty were threatened. However, new evidence suggests that this law was used as a weapon as a useful tool against political opponents, suppressing dissent and free speech. According to the most recent data provided by Article 14, 25 cases of sedition were filed in response to the protests against the Citizenship Amendment Act, 22 in response to the Hathras gang rape and 27 in response to the Pulwama incident. After 2014, 96% of the 405 sedition cases filed against Indians in the previous decade were recorded.

Following the Kedar Nath verdict, “public disorder” was deemed a necessary component of the sedition. The court ruled that the mere slogan does not constitute sedition in the absence of a threat to public order. This decision in Balwant Singh v. State of Punjab (1995) reaffirmed the importance of considering the true intent of speech before labeling it seditious. The petitioners were accused of sedition after shouting in public: “Khalistan Zindabad, Raj Karega Khalsa, Hinduan Nun Punjab Chon Kadh Ke Chhadange, Hun Mauka Aya Hai Raj Kayam Kar” (Hindus will leave Punjab and reign).

Following decisions, such as Dr. Vinayak Binayak Sen v. State of Chhattisgarh (2011), the court found that a person can be convicted of sedition even if he was not the author of the seditious speech but simply circulated it.

In Arun Jaitley v State of Uttar Pradesh, the Allahabad High Court ruled in 2016 that criticism of the judiciary or a court ruling would not amount to sedition: former Union Minister Arun Jaitley had criticized the Supreme Court ruling of 2016 which declared the National Commission for Judicial Appointments unconstitutional in a blog post.

The India Law Commission and even the Supreme Court have issued reports highlighting the widespread abuse of the sedition law. Kedar Nath’s guidelines, as well as a textual deviation in the law, require police officers who register a case to distinguish between legitimate and seditious speech.

The Supreme Court overturned the FIRs accusing the journalist of sedition for criticizing Prime Minister Narendra Modi’s handling of the Covid-19 crisis in Vinod Dua v Union of India and warned against the abuse of the provision.

Furthermore, according to data from the National Crime Records Bureau, sedition cases increased by 163% from 47 in 2012 to 93 in 2019. However, only 3% of cases are converted into convictions. This shows how the police and other state authorities are arbitrarily applying sedition laws to terrorize citizens and silence any criticism or dissent against the regime.

Sedition is a crime punishable under section 124A of the Indian Penal Code. It does not constitute a crime. Section 124A penalties can range from three years in prison to life in prison, plus a fine. During the British Raj, the Indian Penal Code was enacted in 1860. Section 124A of the code is found in Chapter VI, which deals with state offenses.

Anyone who incites or attempts to incite hatred or contempt, or incites or attempts to arouse disaffection with the government established by law in India, by word, spoken or written, or visible signs, or representations, or by any other means, must be punished with life imprisonment, to which a fine can be added, or with a fine. A person accused under this statute is prohibited from working for the government, is required to live without a passport, and is required to appear in court if necessary.

New Challenge to Sedition Law:

Mahatma Gandhi dubbed Section 124 A the “prince among the political sections of the IPC designed to suppress citizens’ freedom”. Jawaharlal Nehru called the disposition “hateful”, saying that “the sooner we get rid of it, the better.” However, in July 2019, Nityanand Rai, Minister of State for Internal Affairs, told Rajya Sabha that “there is no proposal to repeal the provision of the IPC relating to the crime of sedition”. It is not necessary to maintain the arrangement to effectively combat the anti-nationalist, secessionist and terrorist elements. ”TRS lawmaker Banda Prakash asked the question.

The Supreme Court agreed to hear a new challenge to the arrangement following a series of petitions from reporters, Kishorechandra Wangkhemcha, Kanhaiya Lal Shukla, and Trinamool Congressman Mahua Moitra, among others. A jury of seven judges would decide whether Kedar Nath’s decision was correct. Although the government initially defended the provision, arguing that “isolated incidents of misuse” do not justify its removal, it has now informed the court that it is considering a new revision of the colonial law.

Signatories argue that other laws, such as strict counter-terrorism laws like the Unlawful Activities Prevention Act, may address Kedar Nath’s definition of limited sedition. The court’s intervention is critical because if it confirms the provision, it will have to reverse the Kedarnath ruling and uphold earlier rulings that were more liberal on free speech. However, if the government decides to revise the law, weaken it or repeal it altogether, the provision could be reinstated in a different form.

Sedition cases rise under NDA era:

Since 2010, nearly 11,000 people have been charged with 816 cases of sedition, 65 percent of them after the Modi government took power in 2014.

95 percent of the 405 Indians accused of sedition for criticizing politicians and governments over the past decade were charged after 2014. 149 of them were accused of making “critical” or “derogatory” remarks about Modi, while 144 were accused of criticizing Uttar Pradesh chief minister Yogi Adityanath.

The data shows a 28% increase in sedition cases filed annually between 2014 and 2020, or Modi’s mandate, compared to the United Progressive Alliance (UPA) administration’s second term annual average from 2010 to 2014.

To Stop Misuse:

Human rights activists and civil rights organizations have called for the repeal of Section 124A, arguing that this repressive colonial arrangement has no place in any democratic country. They argue that the legislation defines sedition in a way that undermines the rights and freedoms of citizens. It is also used when there is no threat to public order or incitement to violence.

In 2018, the Law Commission issued a consultation document requesting a review of the laws enacted under Section 124A. It was noted that the United Kingdom, the creator of the sedition law, as well as New Zealand, Australia, Indonesia, South Korea and others, have repealed their respective sedition laws. It has been argued that a British law passed to suppress the independence movement should still be valid in India.

As a result, the sedition law has been used to silence rumors of protest, dissent and criticism of the government since its inception in 1870. Furthermore, the Supreme Court’s Kedar Nath decision, which upheld the sedition law, is it came at a time when doctrines such as the “chilling effect” to free speech, which creates psychological barriers through legal sanctions, were unknown.

The growing number of sedition cases in recent years shows that the authorities are indiscriminately enforcing this exceptional law. The data clearly shows that Section 124A is known for its widespread misuse, subjective application, ambiguity, and frequent use as a tool to harass citizens for trivial reasons.

Why Should the Law be Scrapped:

Some might consider a given discourse “seditious” and “anti-national”, while others might consider it democratic and good. Regardless of judicial safeguards, successive administrations have used and abused the sedition law to achieve their political goals. The chilling effect of these rules threatens to erode, and ultimately eliminate, the legal and constitutionally protected right to protest, disagree or criticize the government.

Some points can be raised to question the sedition law. The sedition law was enacted as a constitutional safeguard to protect the state by forbidding individuals to incite “disaffection”. It’s a system designed to keep anti-government sentiment at bay. It also symbolizes the “free expression” guaranteed by Article 19 of the Indian Constitution. Indeed, it is every citizen’s legal right to expose the flaws of the government they disagree with, sow discontent and disloyalty among the population, and attempt to remove the government from power. Disloyalty to the state is not the same as disloyalty to the government. However, the state recently used this provision to crack down on peaceful protests and human rights activists. Between 2016 and 2019, the number of cases filed under Section 124-A (sedition) of the Indian Penal Code (IPC) increased by 160%, while the conviction rate decreased from 33.3% in 2016. to 3.3% in 2019. (NCRB).

Second, the UK, which pioneered the sedition laws of India, repealed them. While the UK abolished sedition laws in 2010, acclaimed writer Arundhati Roy and others have been accused of sedition for advocating independence for the disputed region of Kashmir. Sedition laws were first used in modern India. Many human rights activists have been accused of sedition.

Third, due to the ambiguity of the text, sedition has been used against political activists, human rights defenders and other individuals who are exercising or claiming their constitutional rights. Crimes must be defined by law and adhere to the concept of legality, which is a universally recognized prerequisite for a fair trial. This means that they must be clearly and precisely stated for people to regulate their behavior appropriately. Vague rules undermine the rule of law because they allow for selective judicial action and interpretation based on discriminatory policies of government officials and the personal preferences of judges.

Sedition Laws in different Countries:

In the UK, the Sedition Act was officially repealed under Section 73 of the Coroners and Justice Act, 2009, citing a chilling effect on free speech and expression. The common law of sedition, which dates back to the Statute of Westminster in 1275, when the king was considered the holder of divine right, has been called “arcane” and “of a bygone era in which freedom of expression was not seen as the right. which is today “.

Sedition is a federal offense in the United States under section 2384 of the Federal Criminal Code and is currently used against rioters involved in the January 6 attack on the capital. Despite the First Amendment’s ban on restricting free speech, “conspiracy to directly interfere with the functioning of the government” is considered sedition, not just speech.

Australia repealed its sedition law in 2010 and Singapore repealed it last year, citing several new laws that may adequately address the need for a sedition law without chilling effects.

Conclusion:

Invoking or threatening to invoke sedition is a subtle form of illegal self-censorship because it cools the exercise of one’s fundamental right to freedom of speech and expression. India should also seek inspiration in other countries, such as the United Kingdom, New Zealand and South Korea, where the sedition law has been repealed, as well as the United States, Germany and others, where the law still exists. but many of its provisions have been overturned. Legislation should allow for the expression of the widest possible range of ideas and opinions. Sedition is a repressive and antiquated colonial government that elevates government to sacred status and seeks to transform us into submissive and undisputed vassals. It has no place in a democratic society and should be phased out. Until parliament repeals the sedition law, the higher judiciary should use its supervisory powers to educate magistrates and police about constitutional guarantees of freedom of expression.

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RESTITUTION OF CONJUGAL RIGHTS UNDER HINDU LAW THROUGH A FEMINIST APPROACH

ABSTRACT

We do not create marriage from scratch. Instead, in the elegant language of the marriage ceremony, we enter into the holy estate of matrimony.”[1] Marriage, like any other relationship, will have its ups and downs. Sometimes the rift between the partners gets slightly out of hand, for which the constitution-makers have developed remedies to handle any issue with ease. Under the Hindu Marriage Act, 1955, a remedy is called “restitution of conjugal rights.” If a spouse decides to abandon the marital home, the courts will intervene and order the spouse to return to cohabitation if the desertion is not “reasonable.” In India, the laws preventing sexual assault and rape are primitive. Marital rape is one such offense that, to date, does not have proper punishment. Some parts of society still do not think that marital rape is a grievous offense. The laws involved in it are sexist and only question the dignity of a woman. Hence, it is safe to say that “restitution of conjugal rights” is concerning and blatantly disregards a woman’s right to life with dignity and freedom to livelihood and her choice to choose what she wants to practice. This research paper will discuss the ambiguity surrounding the constitutional legitimacy of such provision using numerous case laws.

INTRODUCTION

A legally binding contract between two consenting individuals, a husband, and wife, is known as a marriage. Indian law recognizes marriage as conjugal rights, consisting of marriage, divorce, and maintenance alimony during separation to a spouse. Under section 9 of the Hindu Marriage Act, 1955, restitution of conjugal rights “When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied with the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.”[2] The above section means that if a spouse has decided to walk away from the marriage on no reasonable grounds, the burden to find sufficient evidence of a valid excuse shall be on the spouse who chose to walk away in the first place. England was the first country to use this remedy that India followed in Moonshee Bazloor v. Shamsoonaissa Begum.[3] Although England was the first country to establish this remedy, it also abolished the same in 1970, whereas India still follows the traditional laws of section 9 of the Hindu Marriage Act, 1955. Section 9 can not be deemed constitutionally valid as it violates the fundamental right to privacy, especially of a woman. It is one’s own wish to end a marriage; the court interfering and imposing restitution of conjugal rights is a form of violation of their personal liberty and freedom to life.

THE LACK OF LAWS AGAINST OFFENCES AGAINST MARRIED WOMEN

The restitution of conjugal rights is coercive as it forces a husband and wife to stay married even if they decide to end the marriage. Marriage is a sacred and holy institution, but any offense against a married woman in India is always justified. The Hindu Law was formed immediately after the independence; hence, it can be declared almost wholly unconstitutional. But the sexist society still allows India to be governed by such laws. In India, the wives are usually expected to meet their husbands’ sexual demands even without consent. This is proof that there is no accountability of men for marital rape. All these types of cases should be dealt with in criminal proceedings. Under section 375 of the Indian Penal Code, all the offenses of non-consensual sex with a woman are explained in detail. But as a part of exceptions, it clearly states that sexual intercourse between a husband and wife can not be considered rape if the wife is above the age of 18. ( according to a recent judgment in 2017 ) Section 9 of the Hindu Marriage Act, 1955, the court mandates the woman to stay in the marriage, despite the abuse she faces in the union. These respective laws demean women and violate their fundamental right to life with dignity. In the year 2021, August, the High Court of Chattisgarh stated that “Even if it was forced or without the agreement of a lawfully married woman, sexual intercourse or any sexual act by a husband with his spouse would not be considered rape.”[4] To date, the courts fail to realize that a married woman is just as capable and can have her own life as an unmarried woman.

Along with India, there are 32 other countries where marital rape is not criminalized. However, according to World Health Organization, Sexual Violence can be defined as “any sexual act, attempted sexual act, sexually inappropriate comments or advances, or activities to traffic, or otherwise aimed, against a person’s sexuality using compulsion, by anybody, regardless of their connection to the victim, in any context, including but not limited to home and work.”[5] In India, the maximum remedy a victim of marital rape will get is that she will be sent back to her native and will be forced to not talk about the incident. This is evident that the lack of law can be why there can be no criminal proceedings. The sexist mentality of men that they “own” the wife after marriage leads to more than 50% of sexual offenses against married women. A woman should not be forced to stay with an abusive husband, it should be her right to walk away from the marriage with dignity, and the accused should be punished for the offenses. The worst part about marital crimes is that victims’ families prefer them to keep shut and not go to court or voice their opinions, which gives them no hope but to keep enduring the pain and abuse from their husbands. This proves that the Indian Constitution can not preserve a married woman’s dignity and fundamental right.

THE RIGHTS OF A WOMAN IS MORE IMPORTANT THAN RESTITUTION OF CONJUGAL RIGHTS

Traditional beliefs on preserving the marital relationship through conjugal rights should be ignored, and it should be acknowledged that marriage entails something more than residing with each other. Women are susceptible to physically attractive guys and lose their ability to say no in a married context. The Hindu marriage vow means “union of thoughts” rather than “meeting of bodies,” as uttered throughout the ritual. The notion that marriage can only function if sexual relations are secure should be refuted. It should be recognized that a successful marriage requires more than just meeting the sexual interactions requirement.[6] A few decades back, “Divorce” was considered a wrongful act, whereas a woman staying in an abusive marriage was considered the right thing to do. In this case, Shakila Banu v. Gulam Mustafa, the court held that “The notion dates back to when slavery or quasi-slavery was considered normal. This is especially true now that India’s constitution has come into effect, which protects men and women’s rights, equality of status and opportunity, and empowers the state to take special measures for their protection and security.”[7] This highlights the importance of protection against women and how women can enjoy men’s rights. In this case, T. Sareetha v. Venkata Subbaiah, the Andra Pradesh High Court declared Section 9 of the Hindu Marriage Act, 1955 as unconstitutional as it violates Article 21’s right to liberty, which includes the right to the right to privacy, article 14, Right to equality of the Indian Constitution. However, the wife was defended by stating that it is her free will to decide whether she would use her body for procreation, and no one could coerce her into doing the same. This freedom of choice is a part of her right to privacy. By enforcing Section 9 of the Hindu marriage act, the court violates her fundamental right to privacy and her free will of choice.[8]

The Delhi Court disregarded this view of the High Court of Andra Pradesh in Harvinder Kaur v. Harmander Singh. Justice Avadh Behari Rohatgi overlooked the decision of the AP High Court and stated that sexual relations are not the only relations between a husband and wife. The restitution focuses on cohabitation and consortium, which upholds the faith in marriage. In this case, the Justice proved the constitutional validity of section 9 of the Hindu marriage act.[9] The Supreme Court upheld the decision of the Delhi High Court in Saroj Rani v. Sudarshan Kumar. The order was passed in favor of the wife to restate conjugal rights. The Supreme Court judge commented, “I cannot agree that Section 9 is unconstitutional howsoever the remedy may be old-fashioned or out of tune with the times. The restitution decree in the scheme of the Act is preparation for divorce if both the parties do not come together in the end. I will repeat what I have said before it is for the legislature to abolish the remedy of restitution and not for the Courts to strike it down on the ground that it is unconstitutional. In my opinion, Section 9 is perfectly valid.”[10] The different courts provide various reasons of how courts intervention in a marriage is correct, but the courts fail to realize that their intervention is causing the most harm to women. The courts only focus on the restitution of the marriage, but they do not provide any judgment for the dignity of women. Once again, the restitution of conjugal rights is given more importance and value than a woman’s life.

SEXIST MYTHS AND BELIEFS OF SEXUAL VIOLENCE AGAINST MARRIED WOMEN

Marriage confers a privileged place on women in many traditional societies, such as India, and married women are socially accepted. Indian Traditional culture is distinguished by “arranged unions,” respected intermediaries such as family priests and relatives form marital ties between the two households. Although the new couple may be asked about the union, the parents have the last say in whether or not the marriage is approved. In most scenarios, the wedding couple may not have much time together before finalizing their choice. In most traditional Indian cultures, however, class, social standing, economic level, and religion all play essential roles in the preference for arranged marriages. Therefore, stressing the importance of marriage and family in India gives a comprehensive view of conventional gender roles and marriage relationships. Most individuals believe in sexist attitudes and may voice them towards women who have been sexually assaulted. Due to ancient cultural hurdles and rape myths, any woman who has been subjected to marital abuse by her husband may confront an ambiguity. In India, one of the most widespread preconceptions is that rape cannot occur well within the confines of a marriage. In addition to not recognizing they have already been raped or assaulted, society frequently trivializes the pain and repercussions that these women experience. Another belief followed by some parts of India is that rape by a stranger is more painful and traumatic than by the husband as there is chemistry and sexual intimacy. Culture and traditions, orthodox ideals, rape myths, toxic masculinity, and legal loopholes are all possible influences in India’s disregard for domestic abuse, especially against married women. However, there is little evidence that conjugal sexist attitudes are widespread in India. Outsiders must avoid interfering in family affairs since they are seen as private. This causes victims to remain silent about their complaints and the violence they have endured. There seems to be a “culture of silence” linked with sexual assault that happens within the family. As a result, victims are frequently met with an indifferent and callous response from the judicial system. Survivors’ experiences of exposure to traumatic events are enriched by socio-cultural practices and encounters with various agencies and organizations of society. Sociologists only studied spousal abuse in the last twenty years. The conventional hierarchical family’s function as a fundamental pattern of interpersonal support systems in India is threatened by investigations on marital abuse in India. Due to spousal abuse’s general delicate and private nature, it frequently elicits significant cultural and family opposition. The orthodox traditions of dowry practice in India play an important role in contextualizing the potential risks and social conventions that provoke spousal abuse against women and humiliation and embarrassment for the victims of marital abuse. 

In this case, Huhhram v. Misri Bai, The wife left her marriage house, claiming that her husband and father-in-law mistreated her. On the other hand, the spouse sought a “restitution of conjugal rights” decision, and the judge mandated her to go back to her marriage house, just for her face mistreatments all over again. This shows that the court is least bothered about the dignity of women.[11] As per Hindu tradition, “the success of a marriage is determined by righteousness, reproduction, and sexual satisfaction.” In this case, State of Bombay v. Narasu Appa Mali, “restitution of conjugal rights as a question of personal law infringes on India’s basic rights as outlined in Provisions Of the Indian constitution. The wife’s request for restitution of conjugal rights against the husband is uncommon. The man is more often than not judged if he is unkind or trying to evade paying alimony.”[12] The Kerala High Court stated that marital rape constituted “a good reason” for divorce. On their 6 August judgment, Justices A Muhamed Mustaque and Kauser Edappagath said, “The husband’s licentious disposition neglecting the autonomy of the wife constitutes marital rape, while such behavior cannot be penalized, it comes within the frame of bodily and mental cruelty.”[13] In this case, Swaraj Garg v. K.M. Garg, even though defenses article 19(1)(e) and (g) were not disputed, the court dismissed the injunction on social grounds. The husband filed a case on the restitution of conjugal rights when the wife refused to quit her job and travel with him.[14] In this case, Shanti v. Ramesh, When his wife refused to resign her employment, the husband filed a lawsuit for “restitution of conjugal rights.” It was concluded that there was insufficient justification for denying the husband a declaration of “restitution of conjugal rights” since the wife’s refusal to join her husband in the marriage house owing to her employment was irrational and absurd. The court determined that the wife’s relocation for work was an unjustified justification for her abandoning the marriage home, infringing her fundamental right that guarantees freedom of choice and place of livelihood.[15] As a result, women’s oppression and subordination under a sexist system and conservative relationship difficulties exacerbate marital violence in India.

CONCLUSION AND RECOMMENDATIONS

The clause of “restitution of conjugal rights” serves as a solution for any tension that arises within matters of marriage by forcing the spouse to maintain coexistence; a judgment for “restitution of conjugal rights” that is not obeyed for more than a year would serve as a basis for separation. Nonetheless, the court’s intervention in a marriage should not be glorified. It should be one’s personal choice to stay or walk out of a marriage. The restitution of conjugal rights leads to unhappy people at weddings as they are being forced against their will to reside together. The court has no right to violate the people’s fundamental rights and should refrain from indulging in their private matters. Sexual offenses against married women should not be glorified. The law should give the same importance and seriousness as any other sexual offense against women.

Contrary to society’s beliefs in India, Marital Rape is not a myth but a serious offense that should be criminalized. Any sexual move against women without consent is a sexual offense, even if it is against a wife and the husband is an accuser. Instead of restitution of conjugal rights, society should give importance to preserving the dignity of a woman. Women’s fundamental freedoms and rights should not be violated and should provide the same level of importance and status as men. The only case that favored the dignity and rights of women was T Sareetha v. T Venkatasubbaiah. In this case, the Andra Pradesh High Court declared Section 9 of the Hindu Marriage Act, 1955 as unconstitutional as it violates Article 21’s right to liberty, which includes the right to privacy, article 14, Right to equality of the Indian Constitution.

Nevertheless, the clause has withstood all challenges, with India’s fundamental values, with the High Courts and the Supreme Court confirming its legality. It is also worth mentioning that the English judicial framework, which kindly provided us with this remedy, does not respect its legitimacy and has subsequently knocked down this clause in the year 1970, thereby prompting one to wonder if the existing legal system’s conservative mindset will triumph overall. The majority of the Indian courts have passed judgments that degraded women and questioned their choice of livelihood. This research paper mentions many cases where the court ordered the woman to return to the marital home despite her hardships. No woman should face this type of discrimination. A woman’s dignity is imperative than her marriage. In case of any problems in the union, the couple can seek therapy and try to work on their issues. There are sensible options like couple’s therapy and other counseling sessions that help them work on their marriage. If none of the methods are proven valid, the couple can divorce. A divorce is much better than an unhappy marriage. The court should not meddle in this case. It should be recognized that “restitution of conjugal rights” is a solution for healing a broken union and promoting reunification in the simplest forms.

Nevertheless, no one should be compelled to do anything against their free will, and it should be up to the spouses to decide if they want to keep their marriage together or not. Most crucial, policymakers, advocates of women, public defender clinics, and feminist groups should keep working on expanding and broadening legal terms of marital rape, sexual pressure, and harassment by spouses. Furthermore, the judicial process must guarantee that health and safety laws for women and their children who have been victims of sexual abuse and laws criminalizing any domestic abuse in India are strictly enforced.

BIBLIOGRAPHY

  1. Paras Diwan, The Hindu Marriage Act, 1955.
  2. D Gaur, Textbook on the Indian Penal Code.
  3. Geeta Pandey, BBC News, “In India, growing clamour to criminalize rape within marriage.”
  4. News18, “Marital Rape is Not a Crime in 32 Countries. One of Them is India.”
  5. Debasis Poddar, NLU Delhi Journal, “Restitution Of Conjugal Rights: A Quest For Jurisprudence Behind The Law.”
  6. Murali Krishnan, RFI International, “Marital rape is still not a crime in some parts of India.”

[1] Nancy Pearcey – We do not create marriage from scratch….. https://www.brainyquote.com/quotes/nancy_pearcey_530921

[2] Hindu Marriage Act, 1955, § 9, 1955 (India).

[3] Moonshee Bazloor v. Shamsoonaissa Begum, 1866-67 (11) MIA 551.

[4] MARITAL RAPE IS STILL NOT A CRIME IN SOME PARTS OF INDIA, https://www.rfi.fr/en/international/20210927-wk-marital-rape-is-still-not-a-crime-in-india (last visited Feb 18, 2022)

[5] MARITAL RAPE IS NOT A CRIME IN 32 COUNTRIES. ONE OF THEM IS INDIA, https://www.news18.com/news/india/marital-rape-is-not-a-crime-in-32-countries-one-of-them-is-india-4130363.html (last visited Feb 18, 2022)

[6] Debasis Poddar, Restitution Of Conjugal Rights: A Quest For Jurisprudence Behind The Law, Vol. 4, Journal National Law University Delhi, pp. 93-121 (2017).  http://14.139.58.147:8080/jspui/bitstream/123456789/383/1/Journal%20National%20Law%20University%20Delhi%20Volume%204%202016-2017.pdf

[7] Shakila Banu V. Gulam Mustafa ILR 1971 Bom 714.

[8] T Sareetha v. T Venkatasubbaiah AIR 1983 AP 356.

[9] Harvinder Kaur v. Harmander Singh, AIR 1984 Del. 66.

[10] Saroj Rani v. Sudarshan Kumar, AIR 1984 SC 1562.

[11] Huhhram v. Misri Bai, AIR 1979 MP 144.

[12] State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84.

[13] In India, growing clamour to criminalise rape within marriage, https://www.bbc.com/news/world-asia-india-58358795 (Last visited Feb 18, 2022).

[14] Swaraj Garg v. K M Garg AIR 1978 Delhi 296.

[15] Shanti v. Ramesh LJ 1961 All 67.

Written By Rangasree.

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THE KERALA HEALTHCARE SERVICE PERSONS AND HEALTHCARE SERVICE INSTITUTIONS, PREVENTION OF VIOLENCE AND DAMAGE TO PROPERTY) ACT 2012

Introduction:

According to The Kerala Healthcare Service Persons and Healthcare Service Institutions, Prevention of Violence and Damage to Property) Act 2012, prohibition of violence[1] is considered to be an offensive act. The idea is linked with an omission (to not to do something of legal nature). Violence[2] has been defined as the activities causing any harm, injury or endangering the life or intimidation, obstruction or hindrance, to any healthcare service person in discharge of duty in any healthcare service institution or damage or loss to property in healthcare service institutions.   This act is designed to protect the people from act of violence i.e. commission of violence to health care service individuals and to decrease damage or loss to property in a healthcare service institution. Contrarily, if this act would not be considered offensive, it would be a risk to the health care service institution to help people in our country.

This act protects the rights of patients, doctors and hospital properties from attacks. The patient will have the right and power to get complete information of medical treatment. And if there is any lapse or negligence in treatment, patient can go for the prosecution of offenders. The judgement of punishment truly depends on the gravity of the offence committed.

Classification of Offences

Cognizable offence means an offence in which a police officer has the authority to make an arrest without a warrant and to start an investigation with or without the permission of a court. Contrastingly, in case of a non-cognizable offence, a police officer does not have the authority to make an arrest without a warrant, and an investigation cannot be initiated without a court order.

In case of bailable offence, the grant of bail is a matter of right. It may be either given by a police officer who is having the custody of Accused, or by the court. However, a nonbailable offence is one in which the granting bail is not a matter of right. Any violation of the act or any offence committed under the section 3 i.e. if any act of violence is committed against healthcare service persons or damage or loss to property in a healthcare service institution shall be cognizable and non bailable.

Police do not have to wait till they get a warrant to arrest the person who committed the act. If the person fails to pay compensation, then the govt can go for a revenue recovery against the assaulter. The offender can be imprisoned for up to 3 years for the same. The provisions under this act does not provide bail at ease. The investigating officer has the right to investigate the case as from the time of confirmation of commission of offence.

The Procedure For Arrest, Bail, And Investigation

The offence committed is serious in nature. Therefore, the arrest can be made without warrant and investigation begins immediately as the consequences of the offence being mentioned can be a question to the safety of the society. Any offender who commits any act in contravention of section 3, shall be punishable with imprisonment for a period which may extend to three years and with fine-which may extend to fifty thousand rupees. The section 437 of CrPC talks about bail.

The offender shall be liable to pay to the healthcare service institution; a compensation of twice the amount of purchase price of medical equipment damaged and the loss caused to the property which the court determines during the proceedings of the offence. During the investigation, police can collect evidence, interrogate and examine individual. If under investigation police finds that the person is not provided with good treatment, the police can act against them. If the offender has not paid the compensation under sub-section (2), the said sum shall be recovered under the provisions of the Kerala Revenue Recovery Act, 1968 (15 of 1968), as if it were an arrear of land revenue due from him. The same way of penalties is described in the Cr.PC procedure.

The offence committed is a threat to society and that is the reason for considering it as non bailable but as the ingredient of bail is seniority of the offence that is committed. This provision allows a person to seek bail in expectation of an arrest  on accusation of having carried out a non-bailable offence. Investigation should be started immediately, and the person must be arrested too. It is a cognizable offence so without warrant also the police can arrest the person.

The Investigating Officer must produce the accused before the Judicial Magistrate /Judge concerned within 24 hours of the arrest. In this offence accused may be granted bail if competent authority deems it fit, exceptional circumstances should be brought in and presented to show that bail would not harm further process of trial and justice. A charge sheet should be presented before the court. A court is bound to presume a person innocent till the trial is complete. This is the procedure followed for the offence committed. If the charge sheet is not failed to file within the time, trial judges can grant bail. The procedure of investigation under CrPC depends upon the offence and has 60-90 days to file a charge sheet.

Punishable Acts

This act complies three types of punishment of IPC i.e. Simple or rigorous imprisonment up to three years, Fine which may extend to fifty thousand rupees and Forfeiture of property if fine is not paid as a penalty for illegal conduct. If a person failed to comply with an order from the commissioner within TWO WEEKS after the notice is given, the commissioner can seek a compulsive forfeiture as considered by the court. The Judge has all the means to form an opinion on the sentence which would meet the end of justice in a particular offence. If the offence is grave in nature, then the Code had prescribed the maximum and the minimum duration of the punishment i.e. up to 3years.  The decision should fit to the overall gravity of the offence. The punishment which is given shall not be severe unless required. when an offender is punished with more than one sentence, the overall sentence must be just and appropriate which shall proportional to the offending behavior.

The purpose of punishment can be a deterrent, rehabilitative, protection of the healthcare institutions (including those having provisional registration), registered nurses, medical students, nursing students, para medical workers employees, etc.  sentencing shall not be depending on the bias or personality of the judge. There shall be a clear and definite scheme of sentencing. the sentencing shall reflect the actual term to be served by the prisoner in prison, so there shall be no place for ambiguity. The court can issue a warrant to levy the amount by attaching and selling any movable property which belongs to the offender, can issue a warrant to the collector of the district at the place of living of the offender, authorizing him to take the money from the immovable property or movable property or both.

Cheating by providing non-valid services or information is also an offence and s.417 of IPC gives punishment for cheating. S.201,202 &204 IPC also talks about disappearance, intentional omission and destruction of evidence to hide facts and s.6 of The Kerala Healthcare Service Persons and Healthcare Service Institutions, Prevention of Violence and Damage to Property) Act 2012 talks about the same. Burden of proof lies on the prosecutor.

Continuance/Repeal/Revival of The Statute

It is in power and is enforceable. To repeal, revoke, abrogate or cancel particularly a statute the new statue must be more beneficial to both parties.  This act benefits the legal system of the country to uplift and ensure the safety of the health service institutions (including those having provisional registration), registered nurses, medical students, nursing students, para medical workers employees, and patients who are treated. This act protects the rights of the patients, doctors and the hospital properties in the time of an attack). The Government may, by notification in the Official Gazette, make rules for the purposes of carrying out the provisions of this Act.

Section 7 (2) of The Kerala Healthcare Service Persons and Healthcare Service Institutions, Prevention Of Violence And Damage To Property) Act, 2012  says Every rule made under this Act shall be laid, as soon as may be after it is made, before the Legislative Assembly, while it is in session for a total period of fourteen days which may be comprised in one session or in two successive sessions, and if, before the expiry of the session in which it is so laid or the session immediately following, the Legislative Assembly makes any modification in the rule or decides that the rule should not be made, the rule shall, thereafter, have effect only in such modified form or be of no effect. However, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

Section 8(2) mentions that if the repeal is not withstanding, anything done or deemed to have been done or any action taken or deemed to have been taken under the said Ordinance shall be deemed to have been done or taken under this Act. This act must not be taken away as taking away this act may lead to unprotected state of healthcare service institutions.

According to changes in the medical field in future the act can be repealed so as to improve. Reviving a statute of limitations means that the entire time period begins again. The differences are made with consideration to provide better implementation of law. In case the new provision is not benefitting then we can revive. The provision of repeal in this act is bought in good faith. The repeal made should not be preceding against the central or state government or any other government body.

Conclusion & Commentary

Everyone in the society has the right to healthcare. The people who so ever in any manner do any act against the safety of healthcare service institutions must be inside the bars. People should be socially responsible. If the trouble is caused due to doctors or the service provider harassment which in response created an inconvenience to a genuine person who had no intention to harm but due to provocation harmed, should have right to protest against wrong doing of the doctor or the service provider.[3] There must be such exception to be provided as to make things better and idealize the judgement hence, removing the ambiguities. Other amendment can be, consumer protection act makes it better for the patient to get perfect treatment possible due to medical negligence. To get a bail one must pay the full fine of twice the amount of damage. If the person tries to damage the whole property and risk the life of people, the fine must exceed twice the amount of damage and exceed imprisonment from that of three years. There should be a special regulatory body to keep a check on health care service institutions on a regular basis to prevent the corruption in medical records and data entry of treatment given.

There must be videography in every healthcare institutions with the help of CCTV and these records must not be destroyed for a decade. Every prescription made must be kept on records until a year passes after the patient’s death after the enquiry and, summary of the reasons responsible for death including death certificate copy must be kept. These are some of the amendments that can be made to safeguard the health care services. The fine amount is revised as above 1 lakh as additional penalty if the person does not fallow or does not obey the rules of police while under investigation. And in statutory penalty, upon conviction, be punished with imprisonment for a period of minimum 5months to years, inclusion to the liability for payment of a monetary penalty in the range staring from 5000rs.

At the time of pandemic such as COVID-19 there much be an action towards people who do not follow the rules/medical instructions for safety and welfare of the country. Every person should be treated equally in medical institutions while providing services. The services if not provided with best quality then there must be appropriate provision to bring up services. The statue must be repealed for the benefit of the healthcare service institutions.

 

WRITTEN BY- POOJA LAKSHMI, LEGAL INTERN, PRIME LEGAL

REVIEWED BY- RITI GUPTA, LEGAL ASSISTANT, PRIME LEGAL

 

References:

  • The Kerala Healthcare Service Persons and Healthcare Service Institutions, Prevention of Violence and Damage to Property) Act 2012
  • Indian Medical Association Vs V.P. Shantha & Ors 1996 Air 550, 1995 SCC (6) 651.

[1] S. 3 of the act.

[2] S. 2(e) of the act.

[3] Indian medical association vs V.P. Shantha & Ors 1996 AIR 550, 1995 SCC (6) 651.

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MODERN TRENDS IN INHERITANCE LAW

Abstract

The paper delves into the matters related to inheritance law, right to property, recent judicial developments in Indian succession law, where courts have recently interpreted laws to provide Indian citizens additional property rights. Moreover, it also covers ancient and medieval trends in the inheritance law with respect to Indian statutes. Further, this paper also covers key areas such as principles of succession, rationale behind succession laws, coparcenary system.

As the current era is recognized as the Constitutional Era of Equality. The courts continue to be cautious when examining the constitutional legitimacy of personal laws, and with the emergence of social integration, economic independence, and reform movements, a stronger push for the advancement of women’s rights in Indian society in terms of equal property rights is expected. Thus, a part of the study also includes information on the gender disparities in inheritance law and the changes implemented to address the issues.

The holistic approach to inheritance law covers title transfer (in the presence or absence of a will), succession and legal heir-ship certificate, taxation and other conditions, nominee rights, and the procedure to be followed in claiming the same. The present study is confined to explore the scope of the judiciary processes within the inheritance law and evolution with respect to scope of inheritance in network virtual property.

Introduction  

Property enmity has traditionally been the source of long-running disputes. Property succession has historically resulted in conflicts between relatives all across the world. After the period of kings ended, the modern world’s arena shifted to the courts. Though succession law is an important and integral aspect of the entire system of laws, it is also a fascinating yet difficult subject due to its complexities. One of the most important concepts in the evolution of family law is to offer protection to family members. In India, the law of inheritance has been so recently and extensively modified that no one needs to be concerned about dying intestate, that is, without leaving a valid will. 

Inheritance refers to a person’s legal right to have a legal entity of origin or succession. Laws of Succession deal with the legal principles that govern the disposition of a deceased person’s assets. The study begins by outlining succession laws in India in a nutshell, including the differences between the two Hindu schools, Islamic inheritance rules, principles of succession, justification for succession laws, and the coparcenary system covering both agnates and cognates. It should be emphasized that the definition of an heir differs based on the person’s community and religious faith, which the paper attempts to illustrate.

Women account for half of the world’s population, work nearly two-thirds of the time, earn onetenth of global income, and own one-hundredth of the world’s property. The law on maintenance through inheritance which covers protection from desertion by husbands, property of a Hindu female dying intestate, and judicial developments in India will be explored in the following chapter on women’s right to property – recent trends. 

While the law of succession has been settled as a result of successive Supreme Court and High Judicial opinions, the competing rights of the nominee and the legal heir have always been a source of contention. The following chapter, co-operative societies and inheritance, discusses how to claim one’s rightful share – succession and legal heirship certificate, transfer of ownership to a nominee upon a member’s death, and processing housing society inheritance, inheritance scope of network virtual property

With each passing day, the mortality toll from Covid rises, which, as unpleasant as it may be, unavoidably leads to an increase in succession and property-related disputes, creating difficulties of inheritance. The final chapter, Conclusion and Commentaries, contains the ideology and observations on the work, as well as suggestions and a path ahead to address the challenges faced in India. This section focuses mostly on the evolution of precedent and its impact, as well as how it could have been better or more preferable. 

Succession Laws in India – In A Nutshell 

Laws of Succession deal with the legal principles that govern the disposition of the assets of a deceased person. Corporate entities with permanent existence are exempted and are subject to different rules governing winding up, reorganization, and closure. The laws of succession are separated into two categories: primarily, where the deceased has left a legal and enforceable ‘Will,’ and next, wherein a deceased has departed without making such a ‘Will.’

 Succession laws – the two Hindu schools

In the Mitakshara school of inheritance, property is inherited by the successors (coparceners) naturally because they were born into the family, whereas in the Dayabhaga school of inheritance, property passes to the successors (coparceners) on the death of the father or holder of the property.[1] The Mitakshara was considered to be extremely discriminatory toward women, giving them the least rights to inherit property. Despite the fact that Dayabhaga was discriminatory, it allowed women more rights compared to Mitakshara and was hence regarded a liberal school. Traditional Hindu law did not regard females equivalent to males, and they were not granted the same status as men. The Hindu Women’s Rights to Property Act, 1937, was one of the first legislation to grant women the right to ancestral property. The Supreme Court judgement[2] upheld the 2005 amendment, effectively making women coparceners in the same way as men are, and thus removing the final barrier to women’s access to ancestral property.

Islamic laws of Inheritance

Sharers and Residuaries are two types of heirs recognised by Muslim law. Sharers are those who are entitled to a portion of the deceased’s property, whereas residuaries would take over the portion of the property that remains after the sharers have taken theirs.[3] If the deceased left behind daughter/daughters and son/sons, the daughters cease to be sharers and instead become residuaries, with the remainder allocated so that each son receives twice as much as each daughter. 

In Sunni law, the per capita distribution approach is often adopted. The inheritance left over by the ancestors is shared evenly among the heirs under this approach, therefore each person’s share is influenced by the number of heirs. On the other hand, Shia law recognizes per strip distribution method where the property is divided amongst heirs as per the strip to which they belong, thus determined by the section and the number of people who belong to it.

Women’s Right to Property – Recent Trends

The situation in India has evolved dramatically, with women rising to positions of leadership in a variety of industries and thereby acquiring property in their own right. Section 16 of the Act establishes the order of succession of the Hindu female’s heirs and therefore should be read in conjunction with Section 15 of the Act, which establishes the basic norms of succession. The term “property” refers to both movable and immovable assets possessed and obtained by a Hindu woman by inheritance, partition, gift, or purchase.

The Law on Maintenance through inheritance 

Recognizing the pivotal need for uniform, reliable, procedural fairness, and timeliness in the handling of maintenance cases, the Supreme Court recently issued rules on several areas of maintenance payment in matrimonial disputes (“Guidelines”).10 The Supreme Court’s Guidelines address, primarily the issue of overlapping jurisdiction for payment of maintenance under different enactments11; followed by payment of interim maintenance;  criteria for determining maintenance quantum; date from which maintenance is to be awarded; and the enforcement of maintenance orders[4].[5] Embracing India’s completely different demographic profile (which includes metropolises, urban, rural, and tribal areas, among other factors), the Court emphasized and acknowledged that the Affidavit of Disclosure to be filed by parties residing in urban areas would be entirely different from that filed by parties residing in rural or tribal areas. The Supreme Court’s issue of the aforementioned Guidelines and the formulation of the Affidavit of Disclosure will ensure that the entire process of granting maintenance to a spouse is implemented.

Property of A Hindu Female Dying Intestate

Section 15 of the Act lays out a consistent and effective succession scheme for a Hindu female who dies intestate. Section 15 of the Act fails to evaluate the equity of a Hindu female’s selfacquired property when she dies intestate since the legislators did not anticipate that Hindu females would have self-acquired property during the time the legislation was enacted.[6] The Section fails to distinguish between property inherited by a Hindu female and property obtained by her on her own. It generally states that if property is inherited from her husband or father-in-law, it will go to her husband’s heirs, and if property is inherited from her father or mother, it will go to her father’s heirs in the absence of her descendants. 

In the absence of her in-laws, even if she has living siblings, the Hindu female’s entire self-acquired property would vest in the brothers and sisters of the pre-deceased spouse and not in the Hindu female’s family. If a Hindu woman dies intestate, leaving behind her self-acquired property, and her heirs in the first class (fathers’ siblings or in-laws) fail, her property will fall entirely to her husband’s heirs, who may or may not be connected at all, and are likely unaware of the existence of each other.

Judicial Developments in India

Even after 60 years of independence and a written constitution that guarantees the right to equality without discrimination on the grounds of sex or religion, the law with respect to the distribution of property by way of inheritance has not been clearly decided in India. Before the Hon’ble Supreme Court, the issue of a married women was raised wherein her husband died three months after they married, leaving her a widow. As a result, she was banished from her marital home directly following her husband’s death.[7] In the case of a Hindu married female dying intestate, as in the above case, if her husband predeceases her and there are no descendants, her property devolves on her husband’s heirs, i.e., paternal and maternal heirs do not inherit her property, but her spouse’s relatives inherit in the capacity as her husband’s heirs, regardless of what relationship they have with her husband.[8] Contemporary Indian society refuses to abandon ancient ideals and maintains ancient patterns of material asset ownership. The agrarian transition in India has been poor, inconsistent, and patriarchal.[9] It is far more important to adhere to the Constitution of India’s ideals of equality, fairness, and non-discrimination than to keep the outdated, irrational, arbitrary, and unequal personal laws that degrade women’s standing in India.

Co-Operative Societies and Inheritance 

Owning property is a human right. India has the concept of legal heirs; the individual whose name appears in the deceased’s will who will lawfully inherit property. If will is absent, the legal heir to a deceased person’s property is determined by the relevant succession or property inheritance rules in India, which vary according to religious faith. The legal procedures for attaining title of a deceased person’s property differ according to the type of property, the rights to it, the number of legal heirs who can claim ownership, and other factors.[10]

Claim One’s Rightful Share – Succession and Legal Heir-ship Certificate

A succession certificate is defined by the Indian Succession Act, 1925 as a document provided by a court to the legal heirs of a deceased person to confirm their validity and grant them the authority to claim the deceased’s assets, securities, and other debts. A succession certificate’s objective includes liabilities and securities such as provident funds, bank deposits, insurance, shares, or any other central or state governmental asset to which the deceased was obligated to receive. The principle goal of succession certificate is the facilitation of collection of debt and provide protection. In cases where the inheritance amount is significant, a succession certificate may be necessary in order to establish the claimant’s authenticity. Banks and financial institutions mostly rely on the succession certificate and/or a legal heirship certificate in the absence of a Will. A legal heirship certificate is given to recognize a deceased person’s surviving heirs, whereas a succession certificate is issued to confirm the heirs’ legitimacy and grant them the permission to inherit debts, securities, and other assets left behind by the deceased.[11]        

Conclusion & Commentaries.

A person’s property passes to his or her heirs when he or she dies. A person can pass away with or without a will. If he or she dies without leaving a will, the property is distributed among his or her heirs in accordance with inheritance or succession laws, thus, inheritance is one of the most important rules in both family and property law. This paper focused with inheritance law in general, including the nature and scope of inheritance, as well as how it is carried out. The paper while discussing about immovable property also finds the importance of discussing the inheritance scope of network virtual property due to its importance in the present era. 

There is now no explicit provision in “inheritance law” regarding network virtual property, resulting in a lack of legislative guidance in court in such circumstances. As intellectual property rights evolve, it’s also critical to consider inheritance in the context of intellectual property. Inheritance is a topic with a lot of qualitative material, thus it needed to be thoroughly investigated in order to produce a paper.

Moreover, the summary of the facts and information pertaining to the case study with respect to inheritance law makes it clear that India is yet to develop with respect to inheritance law, especially with respect to title of women with respect to Karta and many more. To deepen comprehension of the issue, the current covid crisis and its impact is vast that virtual life increased with increase in death leading to conflicts and challenges escalating.  

WRITTEN BY- POOJA LAKSHMI, LEGAL INTERN, PRIME LEGAL

REVIEWED BY- RITI GUPTA, LEGAL ASSISTANT, PRIME LEGAL

 

References:

Statutes:

  • Hindu Succession (Amendment) Act, 2005
  • Indian Succession Act, 1925
  • Intellectual Property Act 2014
  • Muslim Personal Law (Shariat) Act, 1937
  • The Companies Act 1956
  • The Family Law Act 2019
  • The Hindu Inheritance (Removal of Disabilities) Act, 1928
  • The Hindu Law of Inheritance (Amendment) Act, 1929
  • The Hindu Women’s Right to Property Act, 1937
  • The Transfer of Property Act, 1882

Cases

  • Kailvelikkal Ambunh (Deceased) by LRs v H Ganesh Bhandary (AIR 1995 SC 2491)
  • Vineeta Sharma vs Rakesh Sharma, (2020) 9 SCC 1
  • Indrani Wahi v. Registrar of Cooperative Societies and Ors., AIR 2016 SC 1969.
  • Prakash & Ors. v. Phulavati & Ors., (2016) 2 SCC 36
  • Rajnesh v. Neha & Anr., Criminal Appeal No. 730 of 2020
  • Omprakash and Ors. V/s. Radhacharan and Ors., (2009) 15 SCC 66

Articles

  • Aditya Mehta , Manasvi Nandu and Tanya Singh, India: Supreme Court Clarifies The Law On      Maintenance,      Cyril      Amarchand      Mangaldas,      (11      February      2021), https://www.mondaq.com/india/family-law/1034570/supreme-court-clarifies-the-law-onmaintenance?type=popular#_ftn2
  • Archana Mishra, Towards Women’s Equal Right to Property – Recent Judicial Developments in India, Property Law Review (2016) 5 Prop L Rev 161, https://dx.doi.org/10.2139/ssrn.2672561
  • Balwant Jain, Inheriting assets after death of the owner, (February 25, 2021), https://housing.com/news/inheriting-assets-after-death-of-the-owner/
  • Divi Dutta and Anant Gupta, India: How to Claim One’s Rightful Share – Succession And Legal Heirship Certificate, Shardul Amarchand Mangaldas & Co, (11 July 2017), https://www.mondaq.com/india/wills-intestacy-estate-planning/609552/how-to-claimone39s-rightful-share-succession-and-legal-heirship-certificate
  • How will the property be distributed if I die without leaving a Will behind?, https://lawayz.com/how-will-the-property-be-distributed-if-i-die-without-leaving-a-willbehind/
  • Inheritance under   Muslim            law, https://districts.ecourts.gov.in/sites/default/files/jcj%20palakondawrkshp1.pdf
  • Komal Rajak, Trajectories of Women’s Property Rights in India: A Reading of the Hindu Code    Bill,     (May   1,         2020), Volume:          12        issue:   1, https://doi.org/10.1177/2455328X19898420
  • Maneck Mulla and Jinal M. Shah, India: Property Of A Hindu Female Dying Intestate, (23 October 2018), M Mulla Associates, https://www.mondaq.com/india/wills-intestacyestate-planning/747976/property-of-a-hindu-female-dying-intestate?
  • Noopur, Processing       Housing           society             inheritance,     (March            26,             2021), https://adda.io/blog/2021/03/processing-housing-society-inheritance/
  • Olivia Y. Truong, Virtual Inheritance: Assigning More Virtual Property Rights, Syracuse
  • Science & Technology Law Reporter, https://jost.syr.edu/wp-content/uploads/3_TruongSSTLR-Vol.-21-Fall-2009-FINAL.pdf
  • Pengfei Ji, Discussion on Issues of Inheritance of Internet Virtual Property, Scientific Research Publishing Inc., https://www.scirp.org/html/1-7200987_54442.htm
  • Rachit Garg, Historical perspectives of Hindu law of inheritance, (September 28, 2020), https://blog.ipleaders.in/historical-perspectives-hindu-law-inheritance/
  • Shalabh Agarwal and Asoke Nath, A Comprehensive Study on Scope and Challenges in Digital Inheritance, International Journal of Scientific Research in Computer Science, Engineering and Information Technology, Volume 7, Issue 2, Page Number: 98-104, https://ijsrcseit.com/paper/CSEIT217225.pdf
  • Shekhar Agrawal, Succession Laws in India in a Nutshell, The Law Point, (Jun 26, 2020), https://www.thelawpoint.com/post/succession-laws-in-india-in-a-nutshell?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedInintegration
  • Solomon & Co., India: Co-Operative Societies – Transfer Of Ownership To A Nominee Upon Death Of A Member, https://www.mondaq.com/india/wills-intestacy-estateplanning/623826/co-operative-societies–transfer-of-ownership-to-a-nominee-upondeath-of-a-member?type=popular
  • Subodh Asthana, Coparcenary under Hindu Law: An Overview of the recent Amendments, (February 25, 2020), https://blog.ipleaders.in/coparcenary-hindu-law/

[1] Rachit Garg,      Historical              perspectives          of            Hindu     law         of            inheritance,           (September           28,                 2020), https://blog.ipleaders.in/historical-perspectives-hindu-law-inheritance/

[2] Vineeta Sharma vs Rakesh Sharma, (2020) 9 SCC 1

[3] Inheritance under Muslim law, https://districts.ecourts.gov.in/sites/default/files/jcj%20palakondawrkshp1.pdf

[4] Sections 51, 55, 58, 60 read with Order XXI of the Code of Civil Procedure, 1908.

[5] Aditya Mehta , Manasvi Nandu and Tanya Singh, India: Supreme Court Clarifies The Law On Maintenance, Cyril Amarchand Mangaldas, (11 February 2021), https://www.mondaq.com/india/family-law/1034570/supreme-courtclarifies-the-law-on-maintenance?type=popular#_ftn2

[6] Maneck Mulla and Jinal M. Shah, India: Property Of A Hindu Female Dying Intestate, (23 October 2018), M Mulla Associates, https://www.mondaq.com/india/wills-intestacy-estate-planning/747976/property-of-a-hindu-femaledying-intestate? 

[7] Omprakash and Ors. V/s. Radhacharan and Ors., (2009) 15 SCC 66

[8] Maneck Mulla and Jinal M. Shah, India: Property Of A Hindu Female Dying Intestate, (23 October 2018), M Mulla Associates, https://www.mondaq.com/india/wills-intestacy-estate-planning/747976/property-of-a-hindu-femaledying-intestate?

[9] Archana Mishra, Towards Women’s Equal Right to Property – Recent Judicial Developments in India, Property Law Review (2016) 5 Prop L Rev 161, https://dx.doi.org/10.2139/ssrn.2672561

[10] Noopur, Processing Housing society inheritance, (March 26, 2021), https://adda.io/blog/2021/03/processinghousing-society-inheritance/

[11] Divi Dutta and Anant Gupta, India: How to Claim One’s Rightful Share – Succession And Legal Heirship Certificate, Shardul Amarchand Mangaldas & Co, (11 July 2017), https://www.mondaq.com/india/wills-intestacyestate-planning/609552/how-to-claim-one39s-rightful-share-succession-and-legal-heirship-certificate

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