0

Boyfriend’s Day 2023: Legality of Live-in Relationships in India

Articles , , ,

“Living with the partner has no defined meaning or scope. The phrase “live-in relationship” refers to a living situation in which an unmarried couple lives together in a long-term relationship that mimics marriage. To the outside world, a pair portrays themselves as a couple. ‘Live in a relationship’ refers to a relationship in which the parties are not married in the sense of a legal marriage solemnization. Nonetheless, the parties live as a couple, demonstrating to the rest of the world that their relationship is stable and consistent.

 A ‘common law marriage’ is a term used to describe such a partnership. Marriage is a wonderful feeling that can unite people of every skin tone, ethnicity, socioeconomic status, or sexual orientation. Yet, having more time altogether, and perhaps even moving in together, can help couples strengthen and discover their love for one another. The terms “marriage” and “live-in relation” become relevant in this context.

It is generally believed by society and the law that married spouses should live together. Social acceptance has its own allure and gratification. Young folks nowadays can stay with their spouses even without the constraints of arranged weddings because of the rise of live-in relationships. There are benefits and drawbacks to all these societally created ways of expressing and experiencing love and romance.

 Live-in Relationships and the Law

“There is no explicit legislation in India that addresses live-in partnerships. The Hindu 

Marriage Act of 1955 provides legitimacy, succession, and property rights to children born in ‘void’ and ‘voidable’ marriages. The 2005 Protection of Women from Domestic Violence Act also provides some protection to the wounded parties from any sort of atrocity performed against females in “relationships like marriage”.”  

“A woman in a live-in relationship is entitled to the same legal rights as a wife if she has been in such a relationship for a reasonable period. This does not make an invalid marriage valid or provide legal recognition to bigamous marriages. While giving support to the woman with whom he is in a bigamous/adulterous relationship, a man may face allegations of adultery and bigamy.”  

The Treatment of Live-in Relationships by Indian Judges

“The Indian judiciary does not explicitly promote or condemn such live-in relationships. In each case, the judiciary simply dispenses justice by the law. The primary goal of the judiciary is to prevent a miscarriage of justice. The judiciary analyses cultural norms and constitutional principles while deciding cases. The meaning of the term “like marriage” is not immediately clear, and the PWEDVA is already arguing about it.”  

“The petitioner in Aruna Parmod Shah Vs UOI[1] challenged the Act’s validity, claiming that it discriminates against men and that Section 2(f) of the Act’s definition of “domestic relationship” is unconstitutional. In the second instance, the petitioner argued that equating “marriage-like relationships” with “married” status deprives the lawfully married wife of her rights. The Delhi High Court dismissed both challenges to the Act’s constitutionality. In answer to the second charge, the court ruled that a wife, as well as a woman living with a man as his “common law” wife or even a mistress, should be regarded similarly. In this decision, the judges defined “a connection resembling marriage” to encompass both a “common law marriage” and a relationship with a “mistress,” without going into detail about the legal and social consequences of these terms.”  

The Allahabad High Court held in Payal Katara Vs Superintendent Nari and Others[2] that anybody above the age of 21 has the right to travel and that anyone, man, or woman, can live together if they like. In the case of Patel and others, the Supreme Court declared that a live-in relationship between two adults who are not married is not illegal. The Supreme Court ruled in Lata Singh Vs State of U.P. & Anr[3] that live-in relationships are only permitted between married important individuals of different genders.”  

“The Apex Court ruled in the Radhika Vs State of M.P.[4] that if a man and woman have been living together for a long time, they would be regarded married and their child will be declared genuine. In Abhijit Bhikaseth Auto Vs State of Maharashtra and Others[5], the Supreme Court of India declared on September 16, 2009, that a woman does not have to establish her marriage to be entitled to maintenance under section 125 of the Cr.P.C. Under Section 125 of the Criminal Procedure Code, a woman in a live-in relationship may be entitled to assistance.”  

“The Supreme Court awarded the live-in partner the status of the wife in Chellamma Vs Tillamma7. Katju J. and Mishra J. both stated that a man and a woman can live together even if they are not married in their opinion. Although society considers this immoral, it is not illegal. It is important to distinguish between law and morality.

The court went even further, declaring that children born to such a parent are legitimate and valid. The heirs of such a person can only inherit the property of his or her parents. This is because such offspring are not granted coparcenary rights to their parents’ inherited Hindu undivided family property.

During S.P.S. Balasubramanyam v. Suruttayan, the Supreme Court ruled that children born to unmarried parents in a common-law relationship are entitled to legal protection (1993). The Supreme Court has ruled that under Article 14 of both the Indian Evidence Act, of 1872, a probability of marriage exists when a man and a woman share a home and live together for a prolonged period. This means their offspring can officially be a part of the family tree and perhaps get an inheritance. 

The Apex Court ruled in Bharatha Matha v. Vijaya Renganathan (2010) that babies living with cohabiting couples are entitled to a share of their parent’s assets. The Apex Court determined that, if the connection lasts long enough, a kid born in such a situation may not be regarded as an illegitimate immigrant. 

They are the legal proprietors of their parents’ possessions. One benefit of the ruling is that it will not only deter couples from hastily divorcing, but it will also encourage couples to have children, who were previously anxious about their children’s future if they divorced. In Madan Mohan Singh & Ors. Vs Rajni Kant & Anr[6], the court held that a long-term live-in relationship cannot be deemed a “walk in and walk out” relationship and that the parties are presumed to be married.”  

India’s highest court has ruled that a live-in relationship is not a crime in the case of D. Velusamy Vs D. Patchaiammal[7]. The petition alleges that the appellant moved out of the respondent’s father’s house after two or three years and began living in his own country, but that he continued to visit the respondent regularly. According to the lower Family Court, the appellant was married to the respondent, not Lakshmi. The High Court and the Family Court Judge in Coimbatore’s rulings were overruled, and the matter was remanded to be considered again by the law.”  

“According to the judges in the case, the word marriage is not specifically defined in the PWDVA, 2005. The judges decided that a “relationship like marriage“ is equal to common- law marriage, tying it to the prevalent “live-in” partnerships in the west. If a man had a ‘keep,’ whom he financially supports and hires solely for sexual purposes and/or as a servant, it would not be a marriage-like arrangement, the judges said. A ‘domestic relationship’ is more than merely hanging around on weekends or having a one-night stand. The Supreme Court’s ruling would exclude many ladies who have had a live-in relationship from benefiting from the 2005 Act.”  

By stating this, the judges appear to be implying that the term “live in relationship” has a far broader scope than “relationship like marriage”. In 2010, the New Jersey State Assembly passed a law requiring the parties to have a formal agreement before asserting palimony. Palimony is a phrase used in the United States to denote the provision of maintenance to a woman who has lived with a man for a long time without marrying him and then been abandoned by him. In Alok Kumar Vs State & Anr[8], the complainant sought to have his First Information Report (FIR) dismissed.”  

Suggestions 

  • “Legal system does not want to recognize all live-in partnerships as marriages. Only solid and sufficiently long-term relationships between the parties qualify for protection under the 2005 Act. “
  • “Simultaneously, it is not hostile to new emerging partnerships such as live-in couples, which are particularly common in cities. The judge should be pragmatic rather than dogmatic when dealing with such issues. “
  • “In the absence of unambiguous social and legal categorization of non-marital relationships, the field has been left wide open.”
  • “Even the highest court authorities preach on the need to separate a “relation like marriage” from a “servant” or a “keep” and a “one night stand”. It should also be noted that none of these legislative measures are intended to encompass the entire spectrum of live-in partnerships.”

Conclusion

“It is encouraging for the country that, rather than ignoring the problem, it has opted to take steps to safeguard women living in shared households, even if they are not married. Given India’s social and cultural context, enacting legislation to govern live-in relationships would be unwise. Most individuals choose this option to escape the burden and commitments that come with a long-term commitment.

 In the event of a dispute on whether to continue the partnership, a partner is free to come and go as he pleases without the tedium and complication of divorce processes. That is how some people prefer it. It is not the job of the government to regulate and monitor human lives and decisions on such a minute scale. “  

“It is a person’s choice whether to marry or get into a live-in relationship. I believe that the existing system in the United Kingdom and other nations should be studied. Couples should be able to sign cohabitation contracts outlining their rights and responsibilities if they so want.”  

“Even then, the rights and responsibilities will be limited in comparison to those granted in marriage. Another important aspect to consider is that, even under the Domestic Violence Act of 2005, the man in a live-in relationship has no legal rights. This part of Indian legislation must also be investigated.”  

“In India’s current marriage laws, common-law marriages, or partnerships in the form of marriage must be recognized and provided for. Wherever there is a need to change the legislation to give rights and responsibilities for such a partnership, it should be done. There is a need to restructure the legal system to meet societal changes, but there is no need to establish new and distinct legislation to do so.”  

References

  • Landmark Judgments- Live-In Relationship: SC’s Judgments Concerning the Legal Standing   Of                Live-In      Relationships      lawyersclubindia, https://www.lawyersclubindia.com/articles/landmark-judgments-live-in-relationshipsc-s-judgments-concerning-the-legal-standing-of-live-in-relationships-14068.
  • Important Judgements on Live-In Relationship in India Law Trend, https://lawtrend.in/important-judgements-on-live-in-relationship-in-india/ Landmark Supreme Court judgments concerning the legal standing of live-in relationships
  • Are Live-in Relationships Legal in India? https://www.latestlaws.com/articles/arelivein-relationships-legal-in-india/

[1] Aruna Parmod Shah Vs UOI 2008(102) DRJ543. 

[2] Payal Katara Vs Superintendent Nari and Others AIR 2001 All 254. 

[3] Lata Singh Vs State of U.P. & Anr AIR 2006 SC 2522. 

[4] Radhika Vs State of M.P. AIR 1966 MP 134, (1969) ILLJ 623 MP. 

[5] Abhijit Bhikaseth Auto Vs State Of Maharashtra and Others AIR 2009 (NOC) 808 (Bom.).  7 Chellamma Vs Tillamma AIR 2009 SC 112. 

[6] Madan Mohan Singh & Ors. Vs Rajni Kant & Anr AIR 1992 SC 756 

[7] D. Velusamy Vs D. Patchaiammal 2010 10 SCC 469 

[8] Alok Kumar Vs State & Anr 1968 AIR 453, 1968 SCR (1) 813  

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by- Anushka Satwani

0

The Seema Haider Case: A Closer Look at the Immigration Laws of India

Articles, Uncategorized , , ,

Introduction:

The case of Seema Haider has been on the news for a few months now. The background of the case revolves around Seema Haider, a Pakistani National, who illegally immigrated into India. She is a married woman with four children. Along with her children, in the month of May 2023, Seema crossed the Nepal border to meet Sachin Meena, who she had met through PUBG, an online game and fell in love with.

The police have been investigating with respect to how she had managed to cross the Indian borders and reside here for considerable amount of time without anyone knowing. Even though the route that she took from Pakistan – Dubai – Nepal and finally to India is not completely clear, the point of question is how she had obtained valid documents to legally get through the borders. Therefore, this article examines the immigration laws of India and cases similar to the one of Seema Haider’s.

What is Immigration and Who is an Immigrant?

Immigration is the process of relocation of individuals from one country to another with the intention of establishing a permanent residence. The principal challenge faced by immigrants is the process of acquiring citizenship in the host country and so that they can exercise their basic and fundamental rights in their new place of residence.

Part II of the Constitution of India deals with matters related to Citizenship. Article 5 to Article 11 deals with the various provisions.

“Art. 5 – Citizenship at the commencement of the Constitution.

Art. 6 – Rights of citizenship of certain persons who have migrated to India from Pakistan.

Art. 7 – Rights of citizenship of certain migrants to Pakistan.

Art. 8 – Rights of citizenship of certain persons of Indian origin residing outside India.

Art. 9 – Persons voluntarily acquiring citizenship of a foreign State not to be citizens.

Art. 10 – Continuance of the rights of citizenship.

Art. 11 – Parliament to regulate the right of citizenship by law.”

Another way to obtain citizenship: Naturalization Process – One can get an Indian citizenship after living in India for more than 14 years and foreigner registration with the FRRO (Foreigners Regional Registration Officer) or FRO (Foreigners Registration Officer).

A person can become a citizen of India by birth, by descent, or by registration.

Key Legislations regarding Immigration:

  1. The Citizenship Act, 1955: This fundamental piece of legislation governs citizenship in India. It is also called the Indian Nationality Law. It defines who is considered an Indian citizen by birth, descent, registration, or naturalization.
  2. The Foreigners Act, 1946: This act empowers the Indian government to regulate the entry, stay, and departure of foreigners in India. It provides authorities with the means to arrest and deport individuals without proper documentation.
  3. The Passport Act, 1967: This act regulates the issuance and use of passports and travel documents in India. It sets out the legal requirements for obtaining a passport and prescribes penalties for passport-related offenses.
  4. The Visa Manual: India has a comprehensive Visa Manual that outlines the various types of visas available, their eligibility criteria, and the procedures for application. This manual is regularly updated to reflect changes in immigration policies.

The Case of Sapla Akhtar

The case of Sapla Akhtar was just the opposite of what happened to Seema Haider. Sapla is a Bangladeshi National who illegally immigrated into India to meet her online boyfriend. She had come through Siliguri, West Bengal. They had met on Facebook and only after coming here did she know that he was not the person she thought he was. He was making arrangements and was planning to sell her in Nepal. Sapla was eventually arrested for illegal immigration and the police are in search of the boyfriend.

Case of Anju and Nasrullah

Anju, a married woman and mother, is an Indian National. She married a Pakistani man, Nasrullah, who she had met online. The difference in this case is that Anju, now Fatima, legally immigrated into Pakistan with the necessary documents.

How is the case of Seema Haider relevant?

The main concern with illegal immigrants like Seema is the National Security Threats. India has a lot of hostile neighbouring countries. Thus, there is a need for well stringent laws on immigration. Major chunk of the illegal immigrants may have criminal intent and can be smugglers or terrorist, due to the hostility between the countries. Criminal activities, including human trafficking, drug smuggling, and organized crime will be on the rise. India cannot afford to be flexible with its border security due to this reason.

A large number of Illegal immigrants can also cause an economic strain on India. Statistics show that there are thousands of immigrants from neighbouring countries that cross the border and try to stay in India. This also causes conflicts between the natives and the immigrants for resources among other things.

Pakistan has not issued any official statement on the Seema Haider case. She was arrested by the police on the 4th of July and investigations are underway to confirm if she is a security threat. These cases show that there is a need for a stricter implementation of the immigration laws of the country so that the national security is not threatened.

References:

  1. INDIA CONST. art. 5 – 11
  2. https://www.indiacode.nic.in/bitstream/123456789/4210/1/Citizenship_Act_1955.pdf
  3. https://indiancitizenshiponline.nic.in/acquisition1.htm#:~:text=A%20person%20born%20in%20India%20on%20or%20after%203rd%20December,the%20time%20of%20his%20birth
  4. https://www.wionews.com/india-news/seema-haider-case-reversal-indian-woman-travels-to-pakistan-to-meet-lover-618720

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by- Sweta Shoumya

0

Medical Negligence Laws in India.

Articles , , ,

Abstract:

This article delves into the intricate web of medical negligence laws in India, shedding light on the legal intricacies, consequences, and responsibilities entailed in this multifaceted domain. With a spotlight on the pivotal role of regulatory bodies like the Medical Council of India (MCI) and the establishment of consumer courts, it explores the avenues through which medical negligence cases are addressed. Additionally, it examines the surge in medical malpractice insurance, the emergence of alternative dispute resolution (ADR) mechanisms, and the evolving jurisprudence surrounding medical negligence in India. As India navigates the dynamic landscape of healthcare, this article serves as a valuable resource for healthcare professionals, policymakers, and individuals seeking a deeper understanding of medical negligence laws in the country. With a commitment to balance the rights of patients and healthcare providers, India’s evolving legal framework strives to ensure accountability and uphold the highest standards of medical care.

Introduction:

The realm of medical practice carries profound implications for both healthcare providers and patients, intertwined with intricate legal considerations. In India, the landscape of medical negligence laws has undergone significant evolution, reflecting the nation’s commitment to strike a delicate equilibrium between medical autonomy and patient rights. As the country continues to place a heightened premium on the sanctity of human life and well-being, understanding the contours of medical negligence laws becomes an imperative for healthcare professionals, legal practitioners, policymakers, and individuals alike. Medical negligence, though not explicitly defined in Indian statutes, represents a pivotal aspect of the legal framework governing the healthcare landscape. As such, this article endeavours to provide clarity by outlining the fundamental elements of medical negligence, the duty of care that doctors owe to their patients, and the standards by which their actions are assessed. By drawing from select judicial opinions of India’s higher courts, it elucidates the consequences of medical negligence, categorizing them into criminal liability, monetary liability, and disciplinary action, each with its unique implications. Furthermore, the article delves into the intricate web of informed consent, emphasizing the pivotal role of patient autonomy in healthcare decisions. It explores the boundaries within which medical practitioners must operate, recognizing that while they possess expertise, the ultimate choice should rest with the patient, guided by adequate information and consultation. As the legal landscape surrounding medical negligence in India continues to evolve, this article navigates through advisory guidelines and safeguards, as enunciated by the Supreme Court. It highlights the importance of preserving the sanctity of professional judgments while safeguarding patient interests. Additionally, it discusses the safeguards put in place to protect healthcare providers from frivolous and unjust criminal prosecutions, including the necessity of obtaining independent medical opinions. In a rapidly changing healthcare ecosystem, this article aims to serve as a beacon of clarity, providing insights, guidance, and an understanding of the legal nuances that underpin medical negligence laws in India. It acknowledges the dual responsibility of ensuring accountability for medical professionals and safeguarding the autonomy and well-being of patients. As we embark on this journey through the realm of medical negligence laws in India, we invite readers to explore the evolving landscape where medicine and the law intersect, forging a path toward equitable healthcare for all.

Overview of the Consequences:

Within the intricate framework of medical negligence laws in India, the ramifications of legally cognizable medical negligence can be broadly categorized into three distinct consequences: criminal liability, monetary liability, and disciplinary action. These consequences are a result of breaches of duty or wrongful acts committed by healthcare professionals in the course of their practice, and they play a pivotal role in ensuring accountability and safeguarding patient interests within the healthcare landscape.

Criminal Liability:

Criminal liability in cases of medical negligence is primarily governed by the provisions of the Indian Penal Code, 1860 (IPC). While the IPC does not explicitly define “medical negligence,” it provides a legal basis for holding healthcare professionals criminally liable for their actions or omissions. Notably, Section 304A of the IPC deals with cases involving the death of a person due to a rash or negligent act. This provision is frequently invoked in cases of medical negligence leading to a patient’s demise and can result in imprisonment for up to two years. Additionally, other general provisions of the IPC, such as Section 337 (causing hurt) and Section 338 (causing grievous hurt), are also utilized in the context of medical negligence cases. The distinction between civil and criminal liability hinges on the degree of negligence, with criminal liability typically requiring a higher threshold of recklessness or gross negligence.

Monetary Liability:

Monetary liability, often in the form of compensation, is another significant consequence of medical negligence. It arises from civil actions initiated by patients or their dependents seeking redress for injuries or harm caused by medical professionals. These actions are typically pursued before civil courts or consumer forums, where claimants must establish that the medical professional breached their duty of care, resulting in harm or injury to the patient. Permanent lok adalats, established under the Legal Services Authority Act, 1987, can also adjudicate on cases related to medical negligence involving “public utility services.” These lok adalats attempt conciliation before making determinations on the merits of the matter. Monetary compensation can be substantial, and the quantum of damages is assessed based on factors such as the severity of harm, medical expenses, loss of income, and other relevant considerations.

Disciplinary Action:

Disciplinary action against medical practitioners is governed by the Indian Medical Council (IMC) (Professional Conduct, Etiquette, and Ethics) Regulations, 2002, formulated under the IMC Act, 1956. The IMC and State Medical Councils have the authority to take disciplinary measures against healthcare professionals for professional misconduct. Such misconduct can encompass a range of actions, including medical negligence. Disciplinary actions may include suspension or the permanent removal of a medical practitioner’s name from the medical register, thereby barring them from practicing medicine. It’s important to note that professional misconduct is a broader concept that may encompass medical negligence, and the specifics of each case determine the disciplinary measures taken. The consequences of medical negligence in India are both multifaceted and far-reaching. They serve the dual purpose of holding healthcare professionals accountable for their actions while providing recourse to patients who have suffered harm or injury due to substandard care. By encompassing criminal, civil, and disciplinary dimensions, the legal framework strives to maintain a delicate balance between ensuring the quality of healthcare and protecting the rights of patients. Consequently, healthcare providers in India operate within a legal landscape that demands a high standard of care, while also recognizing the inherent complexities and uncertainties of medical practice.

Basic Features of Medical Negligence and Standard of Care:

To comprehend the nuances of medical negligence in India, it is crucial to delve into its fundamental features and the yardstick applied to assess the standard of care expected from healthcare professionals. Medical negligence encompasses breaches of duty or wrongful acts by medical practitioners during the provision of medical care to patients. Here, we explore the key elements of medical negligence and the standards of care that guide legal determinations:

Duty of Care:

A paramount element of medical negligence is the duty of care owed by healthcare professionals to their patients. The duty to decide whether to undertake a case or not. It is the duty of a medical officer to determine the appropriate course of treatment with Care and Competence. The duty not to undertake procedures beyond one’s capabilities. Healthcare providers are expected to exercise a reasonable degree of skill, knowledge, and care when discharging these duties.

Breach of Duty:

Negligence, in the context of medical practice, is essentially a breach of the duty of care. It occurs when a healthcare professional fails to meet the standard of care expected of a reasonably skilled and prudent practitioner. The breach of duty can manifest in various forms, including errors in diagnosis, treatment, surgical procedures, prescription of medication, and the failure to obtain informed consent. Notably, errors of judgment alone do not necessarily imply negligence. Gross errors, however, may lead to findings of negligence.

Causation:

A critical aspect of medical negligence is establishing a causal link between the breach of duty and the resultant harm or injury suffered by the patient. The law requires that the breach of duty must be the direct or proximate cause of the harm. In other words, there must be a clear connection between the negligent act or omission and the adverse outcome.

Standard of Care:

The standard of care expected from healthcare professionals is a pivotal aspect of medical negligence cases. It sets the benchmark against which their actions are evaluated. In India, the standard of care is often assessed using the “Bolam test,” which requires healthcare professionals to adhere to the standard of the ordinary skilled person in their field, rather than the highest level of expertise. This test recognizes that the medical field is characterized by varying approaches and opinions, and it evaluates whether the practitioner’s actions align with those of a reasonably skilled peer in similar circumstances.

Errors of Judgment:

It is important to distinguish between errors of judgment and gross negligence. Errors of judgment, arising from complex medical decisions, do not necessarily equate to negligence. Gross mistakes, however, such as administering the wrong drug, operating on the wrong patient, or leaving surgical instruments inside a patient, may constitute gross negligence and warrant legal action.

Shifting Burden of Proof:

In medical negligence cases, the burden of proof initially rests with the party alleging negligence. The claimant must demonstrate a prima facie case of negligence. Once this threshold is met, the burden shifts to the healthcare provider to establish that there was no lack of care or diligence in their actions.

Evolving Standards:

Standards of care are not static and may evolve over time with advances in medical knowledge and technology. The standard of care applied is often influenced by the prevailing medical practices and opinions at the time of the incident. The assessment of medical negligence cases in India is a meticulous process that takes into account the complexities of medical practice and the need to balance accountability with the autonomy of healthcare professionals. While healthcare providers are held to high standards, the law recognizes the inherent uncertainties and variations in medical science, ensuring that judgments are fair and grounded in reasonable expectations of care.

Cases related to Medical Negligence

  • Indian Medical Association v. V.P. Shantha (1996):

This case introduced the concept of ‘informed consent,’ which mandates that patients must be provided with comprehensive information about the potential risks associated with a medical procedure before granting consent. The Supreme Court ruled that a failure to secure informed consent from a patient could constitute an act of medical negligence.

  • Martin F. D’Souza v. Mohd. Ishfaq (2009):

In this case, the Supreme Court delineated the expected standard of care for healthcare professionals. The court emphasized that a medical practitioner must possess the knowledge and skills that are reasonably anticipated from a competent professional in their respective field.

  • Samira Kohli v. Dr. Prabha Manchanda (2008):

Addressing the issue of vicarious liability in instances of medical negligence, this case established that a hospital can be held accountable for the negligence of its staff, even if the hospital itself was not directly responsible for the wrongdoing.

  • Malay Kumar Ganguly v. Dr. Sukumar Mukherjee (2009):

This case revolved around the significance of expert opinions in medical negligence lawsuits. The Supreme Court clarified that expert opinions can serve as evidence in such cases, but they should not be the sole basis for determining whether negligence occurred.

  • Kusum Sharma v. Batra Hospital & Medical Research Centre (2010):

In this case, the Supreme Court affirmed that patients have the right to seek compensation for medical negligence, even in the absence of physical injuries. The court emphasized that mental distress and trauma resulting from medical negligence can also be grounds for compensation.

Advisory to Doctors and Safeguards in Criminal Prosecution by Supreme Court

Recognizing the increasing frequency of criminal prosecutions against doctors, which can be both distressing and disruptive to their professional lives, the Supreme Court of India has laid down certain advisory guidelines to protect medical practitioners from frivolous and unjust prosecutions. These guidelines, until statutory rules or government instructions in consultation with the Medical Council of India (MCI) are issued, provide essential safeguards to doctors facing criminal charges related to medical negligence. Here, we delve into these important safeguards:

Prima Facie Evidence Requirement:

Private complaints alleging medical negligence may not be entertained by the legal system unless the complainant provides prima facie evidence in the court. This evidence should take the form of a credible opinion from another competent doctor.

Independent Medical Opinion:

In cases involving medical negligence allegations, the investigating officer is required to obtain an independent and competent medical opinion. This opinion should ideally be provided by a doctor in government service who is qualified in the relevant medical field. This requirement aims to ensure an impartial and unbiased evaluation of the case, applying the Bolam test to the collected facts during the investigation.

Restriction on Routine Arrests:

Routine arrests of doctors should be avoided unless they are deemed necessary for furthering the investigation or for collecting evidence. Arrests should not be made solely on the assumption that the doctor may attempt to evade legal proceedings. These safeguards are aimed at protecting doctors from the undue burden of criminal prosecutions, particularly when the allegations lack credible evidence or are driven by frivolous motives. By setting these guidelines, the legal system seeks to strike a balance between accountability and the prevention of harassment of medical professionals.

Conclusion:

In conclusion, the realm of medical negligence laws in India is a multifaceted landscape that balances the rights of patients with the professional judgments of healthcare practitioners. This intricate equilibrium is vital to uphold the highest standards of patient care while acknowledging the inherent complexities and uncertainties present in the practice of medicine. The consequences of legally cognizable medical negligence can range from criminal liability and monetary compensation to disciplinary action. The legal system in India has laid out mechanisms to address these consequences while respecting the autonomy of medical professionals and the challenges they face. The concept of medical negligence is underpinned by the duty of healthcare practitioners to exercise care, diligence, and a reasonable degree of skill while making clinical judgments. Errors of judgment, which are not uncommon in the medical field, do not necessarily amount to negligence unless they are gross or reckless. Informed consent is another crucial facet of medical negligence laws, emphasizing patients’ rights and autonomy in making decisions about their treatment. While professional judgments are respected, healthcare providers are required to obtain valid informed consent based on adequate information. The legal system relies on expert opinions from qualified medical professionals to navigate the complexities of medical negligence cases. Courts do not substitute their judgment for that of medical experts but may intervene if medical actions are deemed highly unreasonable. Moreover, safeguards have been put in place to protect doctors from frivolous criminal prosecutions. These safeguards require prima facie evidence, independent medical opinions, and restrict routine arrests in cases of medical negligence allegations. Medical negligence laws in India continue to evolve, and there is a growing recognition of the need to strike a balance between safeguarding patient rights and respecting the autonomy of medical professionals. As the field of medicine advances and new challenges emerge, the legal framework surrounding medical negligence will adapt to ensure that both patients and healthcare providers are treated fairly and justly within the healthcare system.

References:

https://www.lexology.com/library/detail.aspx?g=b271f61b-9bc7-4d12-9e88-4c058fd8951b

https://ssrana.in/articles/medical-negligence-india/

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2354282

https://www.ijlmh.com/medical-negligence-in-india-a-critical-study/

https://asiindia.org/medical-negligence-the-judicial-approach-by-indian-courts/

https://lawrato.com/indian-kanoon/medical-negligence-law/medical-negligence-in-india-laws-and-procedures-2833

https://www.latestlaws.com/articles/all-about-law-on-medical-negligence-in-india-by-gargi

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Article Written By: Jangam Shashidhar.

 

0

PATENTABILITY CRITERIA

Articles , ,

 When a person uses his intellect to invent something new, he must be rewarded for the same. Patent protection is granted to such inventions, so that no one else can copy or use those inventions without the permission of the Inventor. This gives monopoly rights to the inventor to use his invention however he likes and is considered a reward. This not only encourages more inventions but also contributes to the development of a country.

The word “patent” has been derived from the Latin word “patere” which means “to lay open,” or to make available for public at large.

A ‘Patent’ is an intellectual property right which protects any new invention. It is an exclusive right that protects the rights of the inventor and prevents other people to unauthorizedly use and misappropriate the registered patent. A patent is granted for a term of 20 years from the date of filling of the application.

Patents being territorial in nature are valid only in those countries where the applicant has actually applied and received patent protection. For example, a person has registered his invention of a massaging sofa-chair in India. So, the patent protection would be available only in India. If someone in America is copying his invention, he has no power to take any action for his patent is not registered in America.

In India, Patents are governed by Indian Patents Act, 1970. A person who has obtained a patent is called “Patentee” or a “Patent-holder.”

Types of Patents

Depending upon what is protected by the patent, the patents are classified into many types which are as follows:

  • Product patent – This is the patent which protects the actual invention. No one else can manufacture the same invention without the permission of the Patentee. This is especially helpful in addressing reverse engineered manufacturing.
  • Process Patent – The process of manufacturing the invention or a new way of manufacturing an existing product can be patented under Process patent.

There are also utility patents which protect processes, compositions of matter, machines. Design patents are used to patent designs or exterior ornamental design on something.

Patentability Criteria

According to Section 2(j) of the Indian Patent Act, 1970, an invention means “a new product or process involving an inventive step and capable of industrial application.” This definition highlights as to what qualifies to be a patentable invention.

An invention to be patentable must:

  1. Not be under Sec.3 and 4 of the Indian Patents Act, 1970 (patentable subject-matter)
  2. Novelty
  3. Utility
  4. Non-obviousness

1.Patentable Subject-matter:

Any invention that comes under Sec. 3 and 4 of the Patents Act, 1970 cannot be patented. Some of the subject-matters listed under Sec. 3 are:

  1. Frivolous invention – invention against the laws of nature or without any purpose. For example, a device that can give answer without any inputs or a device that can boost even 100% efficiency.
  2. Inventions against morality or public order – Inventions like a device that can cleanup after murder, a device that can open locked cars, a device used to cheat in exams etc.
  3. Mere discovery of naturally occurring substances – The mere formulation of an abstract theory, the finding of any living entity or non-living object happening in nature, or the discovery of any scientific principle is not enough. There must be some human ingenuity involved to make it patentable.

Diamond v. Chakrabarty[1]– The scientists added 4 plasmids to a bacterium, which enabled it to breakdown various components of crude oil. This was opposed on the grounds that it was only a discovery of a naturally occurring bacteria. The Court held that the bacterium was modified because the inventor had added plasmids and that could be patented for it was a non-naturally occurring manufacture or a composition of human ingenuity having distinct character and use.

Association for Molecular Biology v. Myriad Genetics[2] – Myriad discovered the precise location and sequence of 2 human genes BRCA1 and BRCA2, mutations of which could   increase the risk of breast and ovarian cancer. This knowledge was used to test the cancer risk of patients and Myriad obtained a number of patents on this. Later, the Petitioner filed a suit that Myriad’s patents were invalid under S.101 of US Code for being mere discovery of naturally occurring substance. The US SC revoked the patent as there was no modification of the genes and therefore, it did not create anything. It was merely a discovery of naturally occurring substance.

4. Mere discovery that does not enhance any knowledge

Mere discovery of substances like new salts or new forms of a new substance that does not add to any existing knowledge cannot be patented.

Novartis AG v. UOI[3] – The case arose on the order of rejection of Novartis AG’s application for a patent on a product named Gleevec/Glivec, used for treating blood cancer (leukamia) and Gastro-Intestinal Stromal Tumours (GIST). The Cancer Patients Aid Association of India, Mumbai, and the companies producing the generic versions of the product opposed the grant of patent as it lacked novelty, was obvious to a person skilled in the art, and that it was merely a “new form” of a “known substance” and that as required by the new section 3(d) there was no proof of enhancement in the efficacy of the substance. The Patent Office refused to grant patent on the ground that it did not meet the requirement of the new section 3(d).

After appealing before IPAB, Madras HC, the SC was finally approached. Dismissing the appeals filed by Novartis, the Supreme Court stated: “We have, therefore, no doubt that the amendment/addition made in section 3(d) is meant especially to deal with chemical substances, and more particularly pharmaceutical products. The amended portion of section 3(d) clearly sets up a second tier of qualifying standards for chemical substances/ pharmaceutical products in order to leave the door open for true and genuine inventions but, at the same time, to check any attempt at repetitive patenting or extension of the patent term on spurious grounds.“

5. A substance obtained by a mere admixture resulting only in the aggregation of the properties of the component

6. Mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way

7. Section 3(h): a method of agriculture or horticulture; A method of agriculture or horticulture is not patentable as it would not be capable

8. Section 3 (j) “Plants and animals in whole or any part thereof other than micro-organisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals.

Nuziveedu Seeds Limited and others v. Monsanto Technology LLC[4]– Nuziveedu Seeds Limited and others filed for the revocation of patent on the ground that the technology is not an invention but a mere discovery and as such is not a patentable invention under section 3(j) of the Patents Act, 1970.

Diamond v. Chakrabarty[5]

9. section 3(k), a mathematical methods, business methods, computer programmes per se and algorithms are not considered as patentable subject matter.

Sony Communication Network v. USPTO – The subject of the application was of a method for facilitating exchange of electronic messages between two parties, where the message can be sent only if the receiver of the message has signified that he or she is willing to receive any message from that sender. The functions of this invention were controlled by software running on the computers. The Examiner held that the invention was excluded by section 1(2)(c) of the UK Act, which disentitled a business method and a programme for a computer from patentability. Holding that the invention was a case of using known technology to solve a business problem, the Patent Office ruled that it was excluded from patentability as a method of doing business and a program for a computer as such.

10. 3 (l)“A literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions” Following type of work comes under the domain of Copyright Act, 1957, hence not-patentable

11. 3 (m)“A mere scheme or rule or method of performing mental act or method of playing game”- Mere scheme or rule or method of performing mental acts or method of playing games, are not patentable because these simply comes from human mind

12. Traditional Knowledge– An invention that effectively duplicates or aggregates the known properties of a traditionally known component or components is defined in Section 3(p). Traditional knowledge is information that was previously available (in prior art). This wisdom has been passed down from generation to generation for a very long, ancient, and historical time.

Turmeric Case[6] – University of Mississippi had gotten a patent for “wound healing properties” of turmeric. CSIR, India challenged the grant of patent on the grounds that it was traditional knowledge of India. They were able to prove it with ancient texts and therefore, USPTO revoked the patent granted to them.

Neem Case – WR Grace and the Dept. of Agriculture, USA made a discovery of Antifungal property of neem. They developed a technology with neem-oil formulation to prevent the growth of fungi and they filed an application to obtain a patent over this technology. Indian opposed the grant of patent on the grounds that it is traditional knowledge; already known to India through ancient texts.

13. Inventions relating to atomic energy not patentable – Section 4: Section 4 states that “No patent shall be granted in respect of an invention relating to atomic energy falling within sub-section (1) of Section 20 of the Atomic Energy Act, 1962.” Section 4 of the 1970 Act prohibits the grant of a patent in respect of any invention relating to atomic energy falling within section 20(1) of the Atomic Energy Act, 1962

2.Novelty (Newness)

According to section 2(1)(1) a “new invention” means any invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of patent application with complete specification, i.e. the subject matter has not fallen in public domain or that it does not form part of the state of the art.  

Simply put, an invention is something that the inventor has himself devised and it could be a product or a process to produce a product. It must be the result of his steps to bring it about and one that did not exist before he commenced his work of invention. This is because, the inventions can be opposed later on the grounds of being prior anticipation or prior claims by someone else.

The invention must be new or something that was not known before or it can be a more developed version of something that is already known. Eg: When mouse was made for the first time, it was considered as an invention. But mouse in a different color is no “invention” as it is different only in its exterior design. However, if a person made wireless mouse, it would be considered an invention for it involves an “inventive step” or is more developed than the previous version.

In Bishwanath Prasad Radhe Shyam v. Hindustan Metal Industries: The SC held –“ In order to be patentable, an improvement on something known before or a combination of different matters already known, should be something more than mere workshop improvement, and must independently satisfy the test of invention or inventive step. It must produce a new result, or a new article or better or cheaper article than before. The new subject matter must involve “invention” over what is old. Mere collection of more than one, integers or things, not involving the exercise of any inventive faculty does not qualify for the grant of a patent. To decide whether an alleged invention involves novelty and an inventive step, certain broad criteria can be indicated. Firstly, if the “manner of manufacture patented, was publicly known, used or practiced in the before or at the date of patent, it will negate novelty or “subject matter”. Prior public knowledge of the alleged invention can be by word of mouth or by publication through books or other media. Secondly, of the alleged invention discovery must not be the obvious or natural suggestion of what was previously known.”

Mariappan v. AR Safiullah[7] – Manufacturing food grade paper in the shape of leaf is considered as an inventive step and therefore, the validity of the patent was upheld.

Turmeric Case[8] – A US-based University got a patent for a turmeric’s “wound healing properties”. Now, the fact of turmeric being used in India from the ancient times for its wound healing properties is considered traditional knowledge and this was challenged by CSIR on the ground of lack of novelty and inventive step. The USPTO revoked the patent granted to The University for lack of novelty and inventive step.

  1. Non-obviousness

Under Section 2(ja) of the Patents Act provides “the characteristic of an invention that involves technological advancement or is of economic importance or both, as compared to existing knowledge, and invention not obvious to a person skilled in the art.” This means that the invention should not be obvious to a person ordinarily skilled in the same field where the invention is concerned. It should not be inventive and obvious for a person ordinarily skilled in the same field.

Eg: If a person has made a robot that can finish tasks on voice commands, anybody else in the field of robotics should not be able to make the same. This is non-obviousness. If the invention can be made by anyone else, it is not an “invention” within the meaning of the Act.

The Supreme Court in the Novartis v. UOI[9] case broke down Section 2(ja) into its elements in the following way: “It [The product] must come into being as a result of an invention which has a feature that:

(a) entails technical advance over existing knowledge; Or

(b) has an economic significance And

(c) makes the invention not obvious to a person skilled in the art”

Rado v. John Tye& Son Ltd.[10] – It is: “Whether the alleged discovery lies so much out of the track of what was known before as not naturally to suggest itself to a person thinking on the subject, it must not be the obvious or natural suggestion of what was previously known.

Graham v. John Deere Co[11]. – US SC has devised a test to find out the obviousness of an invention. There must be 3 checks –

  1. The difference btw prior art and challenged claims
  2. The level of ordinary skill in the field relating to the patent
  3. Whether one possessing that level of skill would have deemed to be obvious from the prior art reference.

Pfizer Inc. v. Teva Pharmaceuticals USA, Inc.[12] – Pfizer had obtained a patent on it drug “Protonix”. Few years later, Teva & Sun Pharma got a patent on “Pantoprozole”, an essential ingredient of Protonix. They started selling generic version of Protonix and made huge profits.

Pfizer challenged the grant of patent on the ground of it being obvious. They were able to prove that Teva had done this before with another drug called Prilosec where the defendants patented omeprazole. The Court ruled in the favour of Pfizer and Teva and Sun Pharma were asked to huge sums of money as damages.

4.Utility/Industrial Application

Industrial applicability is defined in Section 2 (ac) of the Patents Act as “the invention is capable of being made or used in an industry”. This basically means that the Invention cannot exist in the abstract. It must be capable of being applied in any industry, which means that it must have practical utility in respect of patent.

Eg: You discovered a bacterium which excretes a certain chemical “X”. This alone cannot be patented. There must be some use of the invention in question.

Melia’s application: The person had applied patent for his business model to exchange prison sentence to corporal punishment. The application was refused for the lack of industrial applicability.

CONCLUSION

These are the most important factors to be kept in mind while applying for a patent. Applying for a patent without checking for Subject-matter patentability, novelty, utility and non-obviousness would only lead to waste of time and money. Plus, there is always a threat from others that the invention infringes their patent rights. It is always better to have a thorough check of prior art regarding the invention that it to be patented. Therefore, it is always advisable to conduct a pre-application search for prior claims and obviousness, to avoid opposition later.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by- Aparna Gupta, University Law College & Dept. of Studies in Law

[1] Diamond v. Chakrabarty, 447 U.S. 303 (1980)

[2] Assoc. for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576 (2013)

[3] Novartis AG v. UOI, 13 S.C.R. 148

[4] Monsanto Technology LLC v. Nuziveedu & Ors, AIR 2019 SC 559

[5] Diamond v. Chakrabarty, 447 U.S. 303 (1980)

[6] Case of the Turmeric Patent (1997, USPTO)

[7] 2008 (38) PTC 341 (Mad.)]

[8] Ibid, see footnote 6.

[9] Ibid, see footnote 3.

[10]  (1967) R.P.C. 297

[11] 383 U.S. 1 (1966)

[12] Civil No. 2:10cv128.

1 2