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Privacy cannot be sacrificed in the name of ‘protection’- WhatsApp Dispute

Right to Privacy is guaranteed under Article 21 by the Constitution of India which is regarded as the supreme Law of the Land. Right to “informational privacy” has also been recognized and established in law by the Supreme Court as well. Yet the application and interpretation of the said Fundamental Right continue to be a subject of heated debates. The new WhatsApp case is a testimony to these continuing disputes. 

The lacuna of proper Data Protection Laws in India despite the new amended IT rules persists, Personal Data Protection Bill 2019 poses as the main problem in the current issue. In January 2021, WhatsApp introduced a new update privacy policy that faced much heat in India. The issue focused around the protection of personal data and the right to privacy provided by the Indian Constitution, which was claimed to have been exploited by WhatsApp under the New Privacy Policy but WhatsApp refused to withdraw the policy in India. WhatsApp has clearly specified that the newly updated rules will not be applicable in the EU due to protective laws but will be strictly followed by users from all parts of the world. This clearly shows that the best method for protecting citizens’ privacy is through appropriate and relevant laws, like Europe’s GDPR.

Current Data Privacy Law and Its Issues

It is important to highlight that GDPR was enacted to provide citizens with absolute data privacy rather than partial data protection that is subject to government surveillance. The KS Puttaswamy decision is considered significant since it was the first time the Supreme Court recognized that protecting data from the government is also an important element of privacy.

New IT Rules, Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021,  by the Indian Government, serve as ‘a surveillance under the garb of protection and national security while being sensitive to Data Privacy and Personal Privacy”. All contradicting factors clubbed in a single set of rules could never ensure the privacy of a person. The new rules require messaging intermediary/providers to track the source of certain messages, keep backup of chats for six months which should be provided to the government when demanded protection and security. 

Under the New Rules, Social media intermediaries with more than 5 million users would be required to enable the identification of the original author of problematic content that may harm the country’s interests. Under this rule, the prospect of the first originator being located outside the territory of India is also included. Storing chats for ascertaining the originator will require the intermediaries to store data for a longer period and also go through several messages to ascertain the context and location of a single message. This is against the privacy right and breaks the cardinal rule of end-to-end encryption offered by WhatsApp to its user base.

WhatsApp’s Case

WhatsApp, which is owned by Facebook, has previously stated that it will not breach encryption because it jeopardizes its customers’ privacy. With over 400 million users, India is WhatsApp’s largest market.

The company has argued that ‘Traceability necessitates messaging providers storing information that can be used to determine the content of people’s messages, hence jeopardizing the end-to-end encryption guarantees.’Technology protection and control over intermediaries may only be exercised after a thorough examination of the technology at work in the application or website in question. Services would have to trace every message to trace even one single message. Additionally, the term “traceability” in itself infringes on the privacy of users by requiring private messaging services such as WhatsApp to keep track of who said what and who shared what in the billions of messages received every day.

The updated 2021 policy of Whatsapp has already faced a lot of anger and wrath of its users for its inherent need to share the data with the parent company irrespective of the consent of its users. This is already in dispute and the Apex Court, as well as the CCI, is looking into the matter. The concerns raised were that there would be an excessive amount of data collecting and that this data will be used and shared across the numerous companies that Facebook employs. WhatsApp and Facebook are two of them, yet they both want to capture a lot of your data, users have to make a choice prioritizing convenience over privacy. 

Then why is the Government seeking to increase data collection at the end of these intermediaries when the very job of data collection and sharing is an absolute breach of privacy. Does sharing the data with the Government make it less of a breach and more of protection?

Recommendations

It is clear that the new IT Intermediary Guidelines and Digital Media Ethics Code Rules, 2021 have raised the obligations of an intermediary who previously had liability exemptions under section 79 of the IT Act. Failure to comply with the new rules would result in criminal liability under the IPC. The main source of concern for Watsapp is Rule 4(2), which requires the identification of the first originator by judicial order or order by an appropriate agency. Watsapp claims that this will be an invasion of privacy and will violate its end-to-end encryption policy. The lack of clear guidelines as to where such orders can be made is a matter of concern. Other social media platforms including Twitter, Facebook, and Instagram are yet to comply with the same.

For instance, identifying the information originator by locating the first originator is technologically inaccurate. Since people frequently copy and paste text from websites or social networking platforms into chats, it would also be impossible to comprehend the context in which it was first distributed. How are Intermediaries supposed to comply with such absurd guidelines?

Ideally, the government should focus on understanding the technology and drafting relevant laws to protect the privacy of its citizens. Asking the messaging services to break end-to-end encryption is giving them armor to protect themselves from any future breach of privacy disputes. Misinformation and false messaging should be protected by limiting the messaging service providers/intermediary from sharing data or even accessing data at their end through clear precise guidelines. The new rules also grant arbitrary power to the government and are nothing less than unnecessarily assailment of the right to privacy in the garb of protection. ‘Protection’ cannot come at the cost of privacy.

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Complaint w.r.t offence u/s 182 of the IPC not maintainable without compliance with Section 195 of the CrPC rules the Supreme Court

False information has been plaguing the original discourse of natural justice since time immemorial. A prosecution, in fact, built on false information denies the accused the right to a fair trial. Keeping the view in mind of the extensively used phrase of “innocent until proven guilty”, it can be effectively observed that false information defeats the tunnels of justice accessible to the accused when he is fighting an uphill battle against fabricated information furnished against him. Evidently, there arose a need to mitigate such factors, which materialized only during the transposition of the criminal laws of England in the Indian context around the time when Indian Penal Code was drafted. The long-standing use of the IPC is a testament that the principles of criminal law are universal, however what is not consistent, is the various modes of interpretation of the principles.

In the present article we shall look into the provisions incriminating false information provided to a public servant and the procedural technicalities which the court shall encounter while taking cognizance of the matter. Further, it is called for to delve into the difference between the instance where false information has been furnished to the police and the instance where criminal proceedings have been initiated on account on false information.

 

Offence u/S 182

Prior to pondering into the complexities, it is important to familiarize with the relevant laws. Sections 177 to 188 of the IPC deal with the provision of false information. The specific provision that we shall be adhering to is S. 182 which incriminates the act of providing false information to a public servant. It reads as follows:

182. False information, with intent to cause public servant to use his lawful power to the injury of another person.—Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant—
(a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, or
(b) to use the lawful power of such public servant to the injury or annoyance of any person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both

On a fine reading of the above provision, we can disseminate it into two parts:
• Knowledge of the informer that the information was false;
• Gives rise to cause of action through the public servant.

Thus, it may be construed that the offence is complete only when the concerned person has invoked the authority of the public servant.

On having covered the provision blanketing the false information to a public servant, it is vital to set out the difference between the former and criminal proceedings already instituted on account of false information. S. 211 covers the latter instance which reads out as follows:

Whoever, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that person, or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; and if such criminal proceeding be instituted on a false charge of an offence punishable with death [or imprisonment for life], or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine

Although both S.182 and S.211 incriminate the offence of rendering false information, they have an application at different stages. To elaborate upon it, let us consider the case of State v Bala Prasad [1], wherein it was held that:

The question whether information of this nature falls under Section 211 or under Section 182, Indian Penal Code has been the subject of debate in various High Courts and the view is not unanimous. The Bombay High Court had held that criminal law makes a clear distinction between a false charge which comes under Section 211 and false information given to the police, which comes under Section 182. The distinction has been drawn in this manner: “If the information conveyed to the police amounts to the false institution of criminal proceedings against a defined person or amount to the falsely charging of a defined person with an offence, then the person giving such information is guilty of an offence under Section 211.

While arriving at the above reasoning, the bench referred to the Apaya Tatoba v. Emperor [2], emerging from the pre-independence era. Nonetheless, the difference had been formalized that Section 182, when read with -S. 211, must be understood as referring to cases where the information given to the public servant falls short of amounting to an institution of criminal proceedings against a defined person and falls short of amounting to the falsely charging of a defined person with an offence.

 

The nexus between S. 182 IPC and S.195 Cr.P.C

Though there provisions are present in abundance to prosecute for the offence of giving false information, there is a bar on the court taking cognizance of all such matter as manifested through S. 195 of the Cr.P.C., which reads as follows:

195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.
(1) No Court shall take cognizance-
(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860 ), or
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate

If S.182 of IPC and S. 195 are read conjointly, it is clear that an offence u/s 182 of the IPC is essentially viewed as an offence against public justice and wrongful invocation of authority of Public Servant and therefore, it is not open for a prosecution to be initiated by a private person. The only way for a court to take cognizance of an offence like S.182 of the IPC is on a complaint in writing by a public servant. Further it stands undisputed as to who is the public servant concerned when the prosecution under Section 182 of the Indian Penal Code is for giving false information to a public servant with particular intent. The ‘public servant concerned’ meant in Section 195 (1) (a), Cr.P.C. can only be the public servant to whom the false information is given.This stands affirmed in the case of Daulat Ram v. State of Punjab [3], wherein it was held that,

There is an absolute bar against the court taking seisin of the case under Section 182 IPC except in the manner provided by Section 195 CrPC. Section 182 does not require that action must always be taken if the person who moves the public servant knows or believes that action would be taken. The offence under Section 182 is complete when a person moves the public servant for action. Where a person reports to a Tahsildar to take action on averment of certain facts, believing that the Tahsildar would take some action upon it, and the facts alleged in the report are found to be false, it is incumbent, if the prosecution is to be launched, that the complaint in writing should be made by the Tahsildar, as the public servant concerned under Section 182, and not leave it to the police to put a charge-sheet. The complaint must be in writing by the public servant concerned. The trial under Section 182 without the Tahsildar’s complaint in writing is, therefore, without jurisdiction ab initio.”

Further in the case of Saloni Arora v. State, the State prosecuting agency sought to prosecute the appellant for commission of an offence punishable under Section 182 IPC. The appellant felt aggrieved of this action of the prosecuting agency, filed an application for her discharge on the ground that since no procedure as contemplated under Section 195 of the Cr.P.C was followed by the prosecution, the appellant cannot be prosecuted for such offence.

The court held that, “It is not in dispute that in this case, the prosecution while initiating the action against the appellant did not take recourse to the procedure prescribed under Section 195 of the Code. It is for this reason, in our considered opinion, the action taken by the prosecution against the appellant insofar as it relates to the offence under Section 182 IPC is concerned, is rendered void ab initio being against the law laid down in Daulat Ram.” [4]

 

The conflict between S. 182 IPC and S.195 Cr.P.C

Thus, it stands settled that only a public servant may initiate proceedings u/S 182 IPC as per the procedure entailed u/S 195 of the Cr.P.C. This call for a concerted action however poses a temporal burden. As it is, we are quite that the Indian judicial system is rampant with delays in all aspects of a case proceeding. Further the task of resorting to S.195 creates an impediment with the registration of FIR for the offence u/S 182 IPC. Ultimately, the hindrances culminate in the delay in justice.

One logical way to approach this conflict is that the concerned police officer can treat the written complaint submitted by the public servant to the Magistrate/ an informal complaint given to the police officer himself as FIR and start a preliminary investigation and keep the findings with himself. When the court orders inquiry/ investigation into the matter, only then can he provide his findings to the court.

However, in the current situation when the courts are not fully functional it is not possible for the concerned public servant to approach the court to submit the complaint in writing. The public servant in such a case may give an informal complaint to the police. Thus in those cases where the public servant chooses to approach the police first, it may be the case that police prepares a preliminary informal report of the investigation of the matter. Now, when it becomes practically possible to approach the court, the public servant can give the formal complaint in writing as per Section 195(1)(a) CrPC along with the findings of the informal preliminary investigation if any.

Here the informal preliminary investigation done by the police right after having received an informal complaint is better than the investigation done in the regular process considering the importance of time. The problem is that being a complainant and an investigator for the police may lead to an argument that the police are biased. But this need not be the case because the ultimate authority lies with the court to decide on the matter.

The administratively superior authority mentioned in Section 195(1)(a) can supervise the same and can prevent any such arbitrariness and unfairness. Even if there remains any irregularity then the court is empowered enough to reject the findings of the investigation and order a fresh investigation. This way both the provisions can operate together rather than one being operative to the exclusion of others. A harmonious interpretation has been a very important rule of interpretation that allows both the conflicting provisions to operate. [5]

The Madras High Court held in Jeevanandham v State [6], that since cognizance under Section 195 is to be taken on a complaint in writing for an offence under Section 188 IPC, the police should not register an FIR under Section 188 IPC because the same would lead to a police report. This is an exercise in futility as a complaint does not include a police report as per Section 2 (d) of the Cr.P.C. Further, the court stated that in a case under Section 188 IPC the Police officer has the power to take action under Section 41 of Cr.P.C as a matter of preventive action, once the procedure enumerated under Section 195 (1)(a) of Cr.P.C is followed. This was reiterated in the case of R Anand Sekaran vs State through the Inspector of Police Tuticorin [7].

As a logical corollary, we may draw a parallel between S.188 and S. 182 since both the offences belong to the same species. The case cited above may also be applied to S.182, wherein the Court also takes cognizance of the matter through the letter of a public servant. Thus, the act of registering an FIR for the offence u/S 182 stands futile.

 

Conclusion

Although, the provisions may seem to be in direct contravention and in certain complex factual matrices will be in juxtaposition, it is paramount to remember that the object of S.195 Cr.P.C is only to facilitate a smoother operation of S.182. As noted in the case of Jeevanandham :

The object of the provision is to provide for a particular procedure, which gives authority only to the public servant. The legislative intent is to prevent an individual or a group of persons from facing criminal prosecution instituted upon insufficient grounds by persons actuated by malice, ill will, or frivolity of disposition and to save the time of Criminal Courts from being vexed by endless prosecution.

Therefore, in light of the discussions above, we may conclude that both sections need to be construed harmoniously to give way for natural justice.

[1] AIR 1952 Raj 142

[2] 14 Cri L J 491 (Bom)

[3] AIR 1962 SC 1206

[4] NCT of Delhi), (2017) 3 SCC 286

[5] https://www.theleaflet.in/the-conflict-between-section-188-ipc-and-section-195-crpc/

[6] Crl. OP (MD) No. 1356 of 2018

[7] 2019 Indlaw MAD 5177

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Daughter’s Right on Property

The status of women stayed receded for the majority of the time. It was only in 2005 with the introduction of the Hindu Succession Amendment Act which saw the upliftment of the status of women and a real improvement in the property rights vested in them. Initially, under the aegis of ancient Hindu law, hypocrisy was quite manifest. While the era saw a rise in the number of followers for the mythological goddesses while in reality, the respect shown to women was not in the same pace as their religious alignment. Women were treated as if they had no real contribution to society.

Female unmarried member of the societies have never been seen on an equal footing and the succession rules of an undivided Hindu joint family has been seen limited till the third generation of the coparcenary. In the case of Sujata Sharma v Manu Gupta[1], a case decided immediately after the passing of the Amendment, saw the Supreme Court finally take a much-awaited step of affirming the eldest female member of the society as a Karta (manager of the Hindu family). However, the journey to equalitarian judgment has been a long one, and only through the years of evolved jurisprudence and the dire need to see every individual of the family having equal participation in the property rights of the family.

Under the prominent two schools of Hindu law, i.e. the Mitakshara and the Dayabhaga schools, neither of them mentions the right to property to females. Perhaps this has been justified by the stridhana which is given as gift during the female’s marriage to her. However, the serious drawback to this may be seen in the fact that this comes nowhere close to the real division of properties that takes place among the male coparceners.
The customary laws, however, gave three options in which a woman could alienate her estate by herself: 1. legal necessity (that is, for her own need and for the need of the dependants of the last owner); 2. for the benefit of estate; and 3. for the discharge of indispensable duties (marriage of daughters, funeral rites of her husband, his shraddha and gifts to Brahmans for the salvation of his soul; that is, she can alienate her estate for the spiritual benefit of the last owner, but not for her own spiritual benefit)

 

Colonial-era
Hindu customary laws and rules continued to be practiced well after the British invaded the country. Even while uniform laws were introduced touching upon other facets of social life, such as crime and commerce in the eighteenth and nineteenth centuries, British colonial rulers recognized distinct Hindu family laws for different religious groups and other cultural groups. [2]

The inheritance laws thus continued to be governed by the Mitakhshara and Dayabhaga laws till the beginning of the twentieth century. This was primarily the way chosen by the British to impose a stronghold upon the people by preventing administration governance from straying into the beliefs and customs of the people. One of the initial acts which sought to give a uniform succession law for women was the Hindu Women’s Right to Property Act (1937), which emphasized women’s estates. This Act was the first of its kind to put an end to the controversial debate over the characteristics of stridhan, and it established Hindu women’s rights over landed properties inherited from male owners, especially from husbands, even though to a limited extent. The 1937 Act recognized three types of widows:
1) intestate man’s widow;
2) widow of a pre-deceased son; and
3) widow of a pre-deceased grandson who is the son of a predeceased father.

 

Post-Independence
There was a strong urge among the early parliamentarians to sideline the backwardness prevalent among the masses. In Annagouda Nathgouda Patil vs. Court of Wards and Ors [3] which dealt with provisions of the Hindu Law of Inheritance Act of 1929, it was observed that the said Act only governs succession the separate property of a Hindu male who dies intestate. It does not alter the law as regards the devolution of any other kind of property owned by a Hindu male and does not purport to regulate succession to the property of a Hindu female at all.

A uniform succession law, the Hindu Succession Act (1956), was adopted for Hindus in free India which finally gave a death blow to the ancient practice of preventing women from inheriting landed property from male heirs based on the Hindu Code Bill. With this Act, the concept of women’s estate was finally discarded and the meaning of stridhan expanded by including landed property along with other movable and immovable properties. Women’s estate now had legal backing however the concept of stridhan forwarded by Section 14 of the legislation said that any property a Hindu woman receives after June 17, 1956, will be her absolute property. According to the Act, “property” includes both movable and immovable property that she receives as a gift, or through maintenance or inheritance, or that she acquires by her own skill or by purchase, prescription, partition, etc. But even the Hindu Succession Act did not give women full ownership over the property, as Subsection 2 of Section 14 retains the power of any person or the court to give the limited estate to a woman in the same manner as a limited estate may be given to any other person. Thus, Section 14 has had a retrospective or backward-looking glance [4]. It converts an existing women’s estate into stridhan or absolute estate only when two conditions are fulfilled:
1) ownership of the property must vest in her and it is not limited ownership; and
2) she must be in possession of the estate when the Act came into force.

The Act also keeps silence in cases of a woman’s deceased husband’s property. Except for the right of maintenance, the property cannot become her absolute property. [5]

 

Shortcomings of the Ancient Hindu Customs and the Hindu Succession Act 1956
Since the inception of the concept of stridhan, the acquisition of property by inheritance or by share, and the legality of such property remained controversial. As mentioned earlier, according to Yagnavalyka “[w]hat was given to a woman by [her] father, mother, her husband or her brother or received by her at nuptial fire or presented on her supersession and the like is denominated women’s property.” [6] Vijnaneshwara interpreted the original version of Yajnavalkya’s commentary and interpreted the “and the like” as property including inherited property and out of share or purchase. He was the first among the ancient law givers to interpret stridhan to a broader aspect to include property acquired by inheritance and by share or purchase. However its broader interpretation was opposed by smritikaras. Manusmriti, which is considered as the first and the main source of Hindu law, dictated that women were unable to own such property as they are inferior to men.

The two schools of Hindu law, namely the Mitakhshara and the Dayabhaga schools, upheld succession laws of Manusmriti and women remained as secondary owners of the landed property until the inception of Hindu Women’s Right to Property Act (1937). By the promulgation of this Act, the colonial rulers in India in the eighteenth and nineteenth century took the first step to secure a married woman’s right to property, to a limited extent. It was nearly fifty years after the inception of the Hindu Succession Act (1956) that these questions were solved in the Hindu Succession (Amendment) Act (2005). The ancient concept of stridhan included nine types of property, namely, i) gifts and bequests from relations, ii) gifts and bequests from strangers, iii) property acquired by self-exertion and mechanical arts, iv) property purchased with stridhan, v) property acquired by compromise, vi) property obtained by adverse possession, vii) property obtained in lieu of maintenance, viii) property obtained by inheritance and ix) share obtained by partition, which were finally recognized by the modern legislation; and women, whether married or unmarried,

Even though Section 14 of the Hindu Succession Act (1956), converted women’s estate to stridhan, it was not flawless. The issue of female inheritance was questioned in case of inheritance with a limitation clause. There were several other clauses that continued the age-old discrimination of male and female heirs. The Act of 1956 is meant for unmarried daughters to claim inheritance of the property. Under Section 15 of the Hindu Succession Act (1956), the daughter-in-law inherits only when she is a widow. Hence no question of her succession arises in her father-in-law’s property till her husband is alive . This decision was arrived at by the Courts while discussing the applicability of Section 15 (b), which states any property inherited by a female Hindu from her husband or from her father-in-law shall devolve in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon other heirs referred to in subsection (1) in the order specified therein, but upon the heirs of the husband. The Court had to clarify the wordings of Section 15 (b) for the purpose of finding out the right heir of the property of widowed woman who has inherited her share from her father in law. In the case of Kailash v. Kishan [7] the court thus decided that there is no flaw in the factual operation of the Section. For the purpose of the widow’s heir in question, the inherited property from her father-in-law would be devolved upon the heirs of her husband after her death. In case she remarries and her second husband also dies and she inherits property from her father-in-law from the second marriage, the said inherited property from the second marriage would be devolved upon the heirs of the second husband and not on the heirs of the first marriage. Hence the will of succession for women remained marginalized to the husband’s heirs mostly.

 

Recent Amendments
The 174th Law Commission took up the task to end this thousands-year-old custom alienating woman from property inheritance. It found that social justice demands that a woman should be treated equally both in the economic and the social sphere. “The exclusion of daughters from participating in coparcenary property ownership merely by reason of their sex is unjust.” [8] The Commission took into consideration the changes carried out by way of State enactments in the concept of Mitakshara coparcenary property in the five States in India, namely, Kerala, Andhra Pradesh, Tamil Nadu, Maharashtra, and Karnataka. The Commission felt that further reform of the Mitakshara Law of Coparcenary is needed to provide equal distribution of property both to men and women. The law commission took a revolutionary step by recommending changes in the ancient succession laws of Mitakhshara and Dayabhaga and thereby amending the existing Hindu Succession Act (1956) to give an equal share to Hindu women in their ancestral properties.

The age-old tradition of investing the whole share of the property of a Hindu who died intestate to his male heirs only has come to an end ultimately. By the New Succession law, the female heirs became equally eligible to inherit the equal share of the property as their male counterparts. In other words, the effect of the Hindu Succession Act (2005) is two-fold:
• Women became active members of the coparcenary property and enjoyed the right of partition of the ancestral dwelling house. In other words, they became the Karta, which was limited to the male heirs only before the promulgation of the new Act.

• Women became entitled to enjoy the right to property fully, no matter whether she inherits the property from her parents or her in-laws. This was affirmed in the case of Sujata Gupta v Manu Gupta wherein the Court finally put an end to the age-old discriminatory property rights.

The Supreme court bench in Danamma v Amar [9] held that the factum of birth that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by virtue of birth. The devolution of coparcenary property is the later stage of and a consequence of death of a coparcener. The first stage of a coparcenary is obviously its creation as explained above, and as is well recognized. Hence, the rights of coparceners emanate and flow from birth (now including daughters) as is evident from sub-s (1)(a) and (b) of S.15 of Hindu Succession Act.

Since it was already settled that the eldest daughter could become the karta, then it would have been grossly unjust to not let the female have her due share in the property even if she was the youngest which is after all a mere chance. The apex court in the matter of Vineet Sharma v Rakesh Sharma noted, “It is by birth that interest in the property is acquired. Devolution on the death of a coparcener before 1956 used to be only by survivorship. After 1956, women could also inherit in exigencies, mentioned in the proviso to unamended section 6. Now by legal fiction, daughters are treated as coparceners. No one is made a coparcener by devolution of interest. It is by virtue of birth or by way of adoption obviously within the permissible degrees; a person is to be treated as coparcener and not otherwise.”[10] The court further held that the provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities; moreover there was no requisite of a living father to prove coparcenary since it was acquired by birth.

 

Conclusion
Even after the inception of the new Act in 2005, discrimination of women toward succession has not been fully wiped out. The reasons are both sociological and historical in nature, namely: Hindu orthodox families discriminate against female children from birth in education, health and hygiene matters. Hence, mostly girls remain oblivious of their basic rights. Even though laws are made to prevent child marriages, such acts still prevail in many villages of India. Once a girl is married as a child, she never returns to ask for the share of her ancestral property, nor are such demands entertained by her parental family. The root cause for this is she will introduce a new member to the coparcenary property namely, her husband. Women are considered elements to bring more property to the in-laws’ family by way of dowry. The language of the Dowry Prohibition Act (1961) gives enough scope to convert stridhan into dowry in camouflaged ways. The new Succession Act (2005) gives women rights over their parental property. Possibilities of dowry harassment increase as the women may be pestered to demand family property not for themselves but because of the greed of their in-laws. The new Law may tempt the in-laws to practice the heinous custom of bride burning or Sati in order to remove the women from the list of legal successors of the landed property. The new law makes women eligible for the position of Karta of joint family property. But many Hindu families where women are severely discriminated against may not allow women to use the new law. The question arises when a Hindu daughter marries a person belonging to another faith and converts to the said religion, whether she would have the same rights of partition, succession of ancestral as she would have before marriage.

[1][CS (OS) 2011/2006]

[2]Narendra Subramaniam, Family Law and Cultural Pluralism, in Encyclopedia of India 55-58

[3] (17.12.1951 – SC) : MANU/SC/0065/1951

[4]Janaki Nair & Natl. L. Sch. of India U., Women and Law in Colonial India: A Social History 196

[5]SurajMal v. Babulal, 1985 Del. 95 (1985)

[6](Ya, II, 143).66

[7]Kailash v. Kishan, Pat 154

[8]Law Commission of India 174th Report, Property Rights of Women: Proposed Reforms under the Hindu Law, D.O. No.6(3)(59)/99-LC(LS) (May 5, 2000)

[9]SLP(C) Nos. 10638-10639 of 2013

[10]SLP (C) NO.684 OF 2016

 

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DIVORCE- Steps to be undertaken to Dissolve the Marriage by Mutual Consent, What to do if the spouse doesn’t give a divorce?

DIVORCE IN INDIA

INTRODUCTION:

India is a secular country and a wide number of religions are freely practised. The major religions practised include Hinduism, Islam, and Christianity. People solemnise marriages in accordance with religious rituals and ceremonies, which are mostly codified by statutory personal laws. Therefore, the matrimonial laws in India, including laws on marriage, divorce and other connected issues, are essentially governed by the personal laws of the parties depending on their religion, which are codified by statute in most cases:

  • Hindu: Hindu Marriage Act 1955.
  • Muslim: Muslim marriage is a contract under Muslim law.
  • Christian: Indian Christian Marriage Act 1872 and the Divorce Act 1869.
  • Parsi: Parsi Marriage and Divorce Act 1936.

In addition, the Special Marriage Act 1954 applies to all persons of all religions. This is civil legislation and parties from all religions, caste or community can elect to marry under it. A divorce would then be governed by the Special Marriage Act 1954.

All these laws apply throughout India.

DIVORCE LAWS IN INDIA

Divorce is a legal procedure that ends a marriage between two adults. Hindus, including Sikhs, Jains, and Buddhists, are regulated by the Hindu Marriage Act of 1955, while Christians are governed by the Indian Divorce Act of 1869 and the Indian Christian Marriage Act of 1872.

Divorce laws apply to Muslims, as do the Dissolution of Marriage Act of 1939 and the Muslim Women (Protection of Rights on Divorce) Act of 1986. Similarly, the Parsi Marriage and Divorce Act of 1936 governs Parsis. Other partnerships are regulated by the Special Marriage Act of 1954, in addition to the above rules.

Section 13B[1], added to the Hindu Marriage Act in 1976 to allow for mutual consent divorce, allows for a total of 18 months until a divorce decree can be issued.

The Court may, upon application made to it in accordance with such rules as the High Court may make in that behalf, allow a petition to be presented [before one year has elapsed]since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner o Section 14[2] provides that No petition for divorce shall be presented within one year of marriage provided that the Court may, upon application made to it in accordance with such rules as the High Court may make in that behalf, allow a petition to but, if it appears to the Court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the Court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the [expiry of one year] from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the[expiration of the said one year] upon the same or substantially the same facts as those alleged in support of the petition so dismissed.

Types of Divorce Petitions

A couple can get a divorce with mutual consent, or either spouse may file for divorce without the consent of the other.

Divorce with Mutual Consent:

The courts will consider a divorce with mutual consent if both the husband and wife agree to divorce. However, in order for the petition to be approved, the couple must have been apart for at least a year or two years (depending on the applicable act) and be able to demonstrate that they are unable to live together. Even if neither husband nor wife wants it, they always consent to a no-fault divorce because it is less costly and less painful than a contested divorce. Custody, care, and property rights for children should all be mutually agreed upon.

What does the Section say?

The duration of a divorce by mutual consent varies from six to 18 months, depending on the decision of the court. Usually, the courts prefer to end mutual consent divorces sooner, rather than later.
Before divorce proceedings can begin, the couple must live separately for at least one year under Section 13 B of the Hindu Marriage Act, 1955, and Section 28[3] of the Special Marriage Act, 1954. The couple must, however, be apart for at least two years under Section 10A of the Divorce Act of 1869. It’s important to remember that living separately does not always imply living in different places; the couple just needs to show that they haven’t been living together as husband and wife during this period.

Divorce without Mutual Consent:

In case of a contested divorce, there are specific grounds on which the petition can be made. It isn’t as if a husband or wife can simply ask for a divorce without stating a reason. The reasons are as follows, though some are not applicable to all religions.

1. Cruelty

Cruelty may be physical or mental cruelty. According to the Hindu Divorce Laws in India, if one spouse has a reasonable apprehension in the mind that the other spouse’s conduct is likely to be injurious or harmful, then there is sufficient ground for obtaining divorce due to cruelty by the spouse.

2. Adultery

In India, a man that commits adultery (i.e. has consensual sexual intercourse outside of marriage) can be charged with a criminal offence. The wife may, of course, file for divorce as a civil remedy. If, on the other hand, a wife commits adultery, she cannot be charged with a criminal offence, though the husband can seek prosecution of the adulterer male for adultery.

3. Desertion

One spouse deserting the other without reasonable cause (cruelty, for example) is a reason for divorce. However, the spouse who abandons the other should intend to desert and there should be proof of it. As per Hindu laws, the desertion should have lasted at least two continuous years. Christians, however, will not be able to file a divorce petition solely for this reason.

4. Conversion

Divorce can be sought by a spouse if the other spouse converts to another religion. This reason does not require any time to have passed before divorce can be filed.

5. Mental Disorder

If the spouse is incapable of performing the normal duties required in a marriage on account of mental illness, divorce can be sought. If the mental illness is to such an extent that the normal duties of married life cannot be performed.

6. Communicable Disease

If the spouse suffers from a communicable disease, such as HIV/AIDS, syphilis, gonorrhea or a virulent and incurable form of leprosy, the Hindu Divorce Law in India says that the other party can obtain a divorce.

7. Renunciation of the World

If the spouse renounces his/her married life and opts for sannyasa, the aggrieved spouse may obtain a divorce.

8. Presumption of Death

If the spouse has not been heard of as being alive for a period of at least seven years, by such individuals who would have heard about such spouse, if he or she were alive, then the spouse who is alive can obtain a judicial decree of divorce.

Steps to be undertaken to Dissolve the Marriage by Mutual Consent:

Step 1: Filing of the Petition in the Family Court

A joint petition for dissolution of marriage for a decree of divorce is presented to the Family Court by both the spouses on the ground stating that they have not been able to reconcile the differences and live together. Thus, have mutually agreed to dissolve the marriage or they have been living separately for a period of one year or more. This petition has to be signed by both parties.

Step 2: Appearance before the Family Court Judge for First Motion for Divorce

Both the parties will enter their appearance in the Court along with their legal counsels. Family Court Judge will go through the contents of the petition along with all the documents presented in the Court. The court may attempt to reconcile the differences between the spouses, however, if this is not possible, the matter proceeds further.

Step 3: Statement on Oath

After going through the contents of the application, Court may order the party’s statements to be recorded on oath.

Step 4: First Motion order is passed, 6 Months Time period is given for the Second Motion

An order on the first motion is passed by the court. After this, a six months period is given to both the parties to a divorce, before they can file the second motion. The maximum period to file for a second motion is 18 months from the date of presentation of the divorce petition in the family court.

Step 5: Second Motion hearing and Final Decree

Once the parties have decided to go further with the proceedings and appear for the second motion, they proceed with the final hearings. This includes parties appearing and recording of statements before the Family Court.

If the court is satisfied after hearing the parties that the contents in the petition are true and that there cannot be any possibility of reconciliation and cohabitation and the issues pertaining to alimony, custody of children, properties etc are settled, Court can pass a decree of divorce declaring the marriage to be dissolved.

Divorce becomes final once the decree of divorce has been passed by the court.

What if the spouse does not give divorce?

Divorces, even those desired by both spouses, often get contentious. And if one spouse won’t agree to end the marriage or is trying to avoid the divorce, the process may stretch out longer than expected.

Some resisting spouses can make the divorce process very difficult by refusing to sign the necessary divorce papers or by completely failing to respond to a request for a divorce. Others do so by hiding or trying to avoid “service” (meaning in-person delivery) of the divorce paperwork.

How a judge will treat these situations depends on where you live: some states will allow the divorce to proceed “uncontested,” while others allow the petitioning spouse (the spouse asking for the divorce) to obtain a “default divorce.”

Uncontested Divorce

The easiest type of divorce is an “uncontested” divorce, which means both spouses have filed the necessary paperwork (a divorce petition and a response) and they agree to all divorce-related issues, such as alimony (spousal support), child custody and support, and the division of property and debts.

Typically, if you and your spouse have reached a divorce settlement agreement on all of your issues, you can bring your agreement and any necessary divorce paperwork to court, where a judge will review it, issue orders based on that agreement, and grant you a divorce.

If the agreement involves child support and custody terms, judges will check to make sure your parenting agreement and the child support amount is in the best interests of the child and meets state guidelines.

If you properly served the divorce petition and your spouse filed an uncontested response, but won’t sign off on the final divorce papers, courts in some states may allow the case to proceed as though it’s uncontested. You may wait to be assigned a court appearance date. If your spouse fails to show up in court on that date, the judge may treat the case as though it’s uncontested and enter orders based on your divorce petition and the response.

Request to Enter a Default

If you have served your spouse properly, and your spouse failed to file a written response on time, some states let you file a request to enter a default divorce. State and local rules may vary, but generally, if your spouse failed to respond to your divorce petition within 30 days, you may file a request to enter a default along with a proposed judgment. It may also be allowed when a spouse can’t be located for service.

The court will set a hearing date and ask that you appear. At the hearing the judge may issue a ruling based entirely on what is stated in your divorce petition (or based on what you proved to the court) and then issue your divorce orders and judgment. By failing to respond or appear, your spouse gives up the right to have any say in the divorce proceeding or court judgment.

If you have filed for divorce and are dealing with an uncooperative spouse, you should speak with an experienced divorce attorney to discuss the possibility of pursuing a default case.

[1] HINDU MARRIAGE ACT,1955- 13B Divorce by mutual consent

[2] HINDU MARRIAGE ACT,1955- No petition for divorce to be presented within one year of marriage

[3] SPECIAL MARRIAGE ACT, 1954- Divorce by mutual consent

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THE MEDICAL TERMINATION OF PREGNANCY (AMENDMENT) ACT, 2021: A PROGRESSIVE STEP

INTRODUCTION:

The Supreme Court in the case of Suchita Srivastava v. Chandigarh Admn.[1] had recognized that “that a woman’s right to make reproductive choices is also a dimension of “personal liberty” as understood under Article 21 of the Constitution of India. It is important to recognize that reproductive choices can be exercised to procreate as well as to abstain from procreating.” A woman’s freedom of choice whether to bear a child or abort her pregnancy are areas which fall in the realm of privacy. [2] Thus the medical termination of pregnancy act, has helped empower women with reproductive freedom in light of their inherent dignity, liberty, freedom to choose and make decisions in relation to their bodies. Under Indian Penal code termination of pregnancy is still a crime for which the mother as well as the abortionist could be punished except where it had to be induced in order to save the life of the mother. Thus the Act as a safe harbor for women who are in need of termination on certain limited grounds.

The Medical Termination of Pregnancy (Amendment) Bill, 2020, was passed by Parliament on 16th March. The Act received the assent of the President  and was notified on 25th March, 2021. The Amendment Act has been enacted with the motive to extend the limitation of time period within which a pregnancy can be terminated in accordance with Section 3 of the Act. The Act has amended the upper limit for length of pregnancy from 20 weeks to 24 weeks. The same was done because a number of writs were filed before different courts, wherein women wanted to terminate their pregnancy as the same had exceeded the 20 week  upper limit provided under the prior Act. Most of these writs were filed by women who became pregnant as a result of rape and women who had been diagnosed to with substantial foetal abnormalities din the later stages of their pregnancy.

Section 3 of the act lays down grounds under which pregnancies can be terminated legally. A medical practitioner in good faith can terminate pregnancies on grounds that the pregnancy if not terminated will place the women’s life at risk, or on the ground of grave injury to her physical and mental health, or if the child were born it would suffer serious physical or mental abnormality. The section has been amended and now women with length of pregnancy under 20 weeks, with the opinion of one medical practitioner, can get their pregnancies terminated on any of the grounds mentioned above. Whereas certain category of women which are yet to be specified under rules of the act by the central government, who fall under the second category ie women who have crossed the 20 week limit but have not crossed the 24 week length of pregnancy, such women can seek opinion of two medical professionals and undergo medical termination of pregnancy. For the time being until such rules are notified, explanation II states that where pregnancy has allegedly been caused due to rape such women will fall under the category of women who can get their pregnancy terminated under 20 to 24 week time. None of the limitations of time apply in case of termination of pregnancy by the medical practitioner where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a Medical Board. Thus women that have crossed the length of 24 months but want to terminate pregnancy because of  fontal abnormalities, can approach medical board and under go termination after their approval through diagnosis.

Women that have cross the length of pregnancy beyond 24 weeks but have not been diagnosed with foetal abnormalities, ie the women that seek termination of pregnancy on the basis of rape, or grave injury to her physical or mental health, will still have to approach the court if they seek termination through writ jurisdiction of courts. Regardless the bars of time limitation under section 3 do not apply where, the termination of a pregnancy by a registered medical practitioner, has been done in good faith and where such termination was immediately necessary to save the life of the pregnant woman.

The courts of the country have time and again recognized that “ the consent of the pregnant woman is an essential requirement for proceeding with the termination of pregnancy. This position has been unambiguously stated in Section 3(4)(b) of the MTP Act, 1971”[3]. From the position of the law as well as through judgments of the courts we can infer that the Indian courts do not shy away from considering that women with reproductive freedom also have right to engage in consensual sexual encounters either in or outside marriage. Thus another change that has been made through the amendment is with respect to the terminology used under the act. The act prior to amendment under explanation 2 used the terms “any married woman or her husband”. In the judgement of High Court on its Own Motion v. State of Maharashtra[4], the court had observed that, “ today a man and a woman who are in live-in-relationship, cannot be covered under Explanation 2 whereas Explanation 2 should be read to mean any couple living together like a married couple.” Giving life to the interpretation of the learned court, the terms under explanation 2 have now been amended to state  “any woman or her partner”, thus expanding the scope of interpretation to include women who are married or otherwise as well as those with or without live in relationships. The same is a progressive step to more inclusive to the changing nature of society. The benefit of the act can now be availed by larger group of women, without the judgement of society.

The Medical Council of India’s Code of Ethics Regulations[5] protects patient confidentiality and privacy. Right to privacy includes right to choose and also to choose who has access to medical records, this right is directly connected with the liberty and dignity of a person as has been observed under KS puttuswany case. In furtherance of the right to privacy a provision on similar lines to the ethics code has been inserted under the amendment. Section 5-A has been included by amendment in the MTP Act to deal with the protection of the privacy of women. Medical practitioners have been barred from revealing the identity and other particulars of a woman whose pregnancy had been terminated under the Act. The information can only be given to authorized persons, in accordance with the provisions of the Act only. Any medical practitioner that contravenes the privacy of any such women will be punishable with imprisonment which may extend to one year, or with fine, or with both.

Despite the extension of the limitation to the length of pregnancy certain issues such as explanation of which women fall under the category of woman given under clause (b) of sub-section (2) of section 3 has been left to the central government to decide through rules, which are yet to be notified through the Official Gazette. The Act has mentioned formation of a Board to be called a Medical Board for the purposes of this Act to exercise such powers and functions as may be prescribed by rules made under this Act.[6] The Act mentions a need for diagnosis to be conducted by the board the in cases where there is presence of substantial foetal abnormalities. There has been no mention with regard to timeframe under which the board is to make such diagnosis.

The case that require such diagnosis are not effected with time limits mentioned under Section 3 (2), it can be safe to interpret that the same will apply in cases where limitation on length of 24 weeks, has been crossed. In cases of High Court on its own Motion v. The State of Maharashtra[7]  the court has observed that in “pregnancy, every day is important on account of growth of foetus. Once a woman prisoner is found to be pregnant and she indicates that she wants to terminate the pregnancy, she should be immediately referred to the hospital and it should be ensured that her pregnancy is terminated.” Thus as pregnancy and termination of pregnancy are both time sensitive issues, where each day matters, the act should have mentioned the time under which such diagnosis should be carried on by board as the matter concerned should be treated with urgency. The same would have prevented delays in the process of seeking termination in a time bound and effective manner.

CONCLUSION

Overall the Act is a welcome step as the increased time limit to avail legal termination under the act will certainly reduce the burden on the court and reduce the writs that were being filed as no other resort was present with the aggrieved women. The Act will provide relief to women who had crossed the time limit specified under the prior Act and also women who due to lack of resources and knowledge with respect too their legal rights, economic constraints were  unable to approach the court for remedy. The court has in the case of Mahima Yadav v. GovtNCTD & Ors  also observed that “the above amendments introduced in 2021 are of enormous significance as they have relaxed the conditions under which pregnancy can be terminated. In fact, there are several decisions wherein termination has been permitted on a case-by-case basis even beyond the 24-week period.”[8].

Thus the Amendment Act has through change of terminologies and reference to prior judgments from different courts which allowed termination of pregnancies in good faith beyond the specified time period, given life to the intentions of the courts that had been reiterated through various judgments. A number of petitions that had been made where abnormalities had been detected in fetus would now be resolved through the medical board itself. In the time when developed countries are drafting legislations to further restrict abortions, India is moving towards a more progressive society.

[1] (2009) 9 SCC 1

[2] K.S. Puttaswamy  v. Union of India, (2017) 10 SCC 1

[3] (2009) 9 SCC 1

[4] 2016 SCC OnLine Bom 8426

[5] Ethics Regulations 2002

[6] Section 3 (2C) MTPAct, 1971

[7] 2016 SCC OnLine Bom 8426

[8] Mahima Yadav v. GNCTD & Ors,W.P.(C) 4117/2021.

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