Law book - Easy to Understand the Acts and be an Optimist in society: FAQ on Laws - Provided by National Law School of India University, Bangalore

CONTENTS

F.A.Q. 1: Family Law [Marriage, Divorce & Adoption]...... 5

F.A.Q. 2: Domestic Violence.................................................... 35

F.A.Q. 3: Consumer Protection............................................... 53

F.A.Q. 4: Banking........................................................................ 82

F.A.Q. 5: Property Law.............................................................. 99

F.A.Q. 6: Right to Education.................................................... 08

F.A.Q. 7: Juvenile Justice........................................................ 125

F.A.Q. 8: Right to Information................................................. 138

F.A.Q. 9: Criminal Law.............................................................. 152

F.A.Q. 10: Civil Law Procedure.............................................. 176

F.A.Q. 11: Legal Aid................................................................... 183

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FREQUENTLY ASKED QUESTIONS

ON LAW!

THE LEGAL SERVICES CLINIC

NATIONAL LAW SCHOOL OF INDIA UNIVERSITY, BANGALORE,

KARNATAKA, INDIA.

FOREWORD

18th April, 2014.

TO WHOMSOEVER IT MAY CONCERN.

Over the years the Legal Services Clinic has grown by leaps and bounds and this academic year has certainly been one of the most successful years for the clinic in terms of projects delivery and reaching the target group audience. The clinic has now ventured into

bringing out exclusive modules and publications on various laws

made simple for common man. This module ' toQuestithe commonns Law'man.is one such endeavor by the clinic in reaching out We congratulate the Legal Services Clinic for this booklet and wish them all the success in the coming days. F.A.Q.

Frequently Asked

Prof. (Dr.) Ashok R. Patil	Prof. Shankara Reddy
Faculty Advisor	Advisor
Legal Services Clinic-NLSIU.

TO ALL THE READERS!

This booklet- by the Legal Services ClinicFrequently2013-14 is dedicatedAsked Questionsto the futureoncommittees,Law- student volunteers, researchers and most importantly to the common man who wish to know the law-simplified.

We sincerely thank all the volunteers who assisted the clinic in preparing this module. The Committee further assures that in the next few months this F.A.Q Module shall be made available in Kannada.

Basavanagouda Patil	Va sh Gupta
Convenor	Joint Convenor
Legal Services Clinic 2013-14, NLSIU.

CONTENTS

F.A.Q. 1: Family Law [Marriage, Divorce & Adoption]...............................................	5
F.A.Q. 2: Domestic Violence.......................................................................................	35
F.A.Q. 3: Consumer Protection....................................................................................	53
F.A.Q. 4: Banking........................................................................................................	82
F.A.Q. 5: Property Law................................................................................................	99
F.A.Q. 6: Right to Education......................................................................................	108
F.A.Q. 7: Juvenile Justice...........................................................................................	125
F.A.Q. 8: Right to Information...................................................................................	138
F.A.Q. 9: Criminal Law..............................................................................................	152
F.A.Q. 10: Civil Law Procedure.................................................................................	176
F.A.Q. 11: Legal Aid..................................................................................................	183
----x----

Disclaimer: This Module/Booklet is merely informatory in nature and does not guarantee the accuracy of information/procedures prescribed, it is merely a guide to a layman, and therefore does not reflect the level of factual or legal inquiry or analysis which would be applied in the case of a formal legal opinion/research. Legal Services Clinic is a committee run by students of National Law School of India University and the services/opinions rendered by LSC are not equivalent to a Lawyer's or a Law Firm's legal opinion. The reader is advised to regularly consult a lawyer in matters relating to his/her legal issues.

Copyright © 2014 by The Legal Services Clinic-NLSIU: All rights reserved. This book or any portion thereof, may not be reproduced or used in any manner whatsoever, without due credits to the authors and the legal services clinic, NLSIU.

FREQUENTLY ASKED QUESTIONS

FAMILY LAW [MARRIAGE, DIVORCE AND ADOPTION]

1.What laws govern marriage in India?

Special personal laws based on the person’s religion govern laws concerning marriage and divorce for such persons. However, a couple may choose to opt out of this system by registering their marriage under the Special Marriage Act which is a secular legislation.

2.What is the minimum age requirement for people to get married in India?

According to Section 5 (iii) of the Hindu Marriage Act, the bridegroom (boy) has to complete 21 years of age and the bride (girl) 18 years of age. The Prohibition of Child Marriage Act, 2006 prohibits marriage of a male who has not completed 21 years of age and a female who has not completed 18 years of age.

3.Is the consent of parents legally required for a valid marriage?

The consent of parents is not necessary for a legally valid marriage. It is the consent of the marrying parties that is necessary and such consent needs to be free and voluntary. Hence, no one can be forced or misled into a marriage.

4.What happens in the cases of child marriages? Can the bride and groom later avoid it?

If a child below the legal age is married off by her parents, upon becoming an adult. The child must file a petition before the court to declare the marriage null and void, within two years of reaching the legal age of consent – the girl can file a petition till she becomes 20 years of age and a boy till he turns 23 years of age.

5.Can a person marry twice?

No, for all religions except Muslims, a man or a woman may marry only once. If they marry a second time, it is known as bigamy. Only a Muslim man may have four wives.

6.What are the consequences of a bigamous marriage?

Any second marriage is void if at the date of such marriage either party had a husband or wife living. It is also punishable under section 494 & 495 of the Indian Penal Code. Section 494 prescribes for imprisonment, which may extend to 7 years and fine.

HINDU MARRIAGES

7. Who can marry under Hindu Marriage Act, 1956?

Any person who is a Hindu by religion, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj or any person who is a Buddhist, Jaina or Sikh by religion, and any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion can marry under the Hindu Marriage Act, 1956. [It is to be noted that a Muslim, Christian, Parsi or Jew cannot marry under the Hindu Marriage Act]

8.Can people of different castes (but both Hindus) marry under this Act?

Yes, they can. No specific requirements are required to be fulfilled if the marriage is an inter-caste marriage.

9.What are the conditions to be fulfilled for a valid Hindu marriage?

The following conditions need to be fulfilled for a Hindu marriage to be valid:

i)Neither of the two parties can be married to someone else at the time of the marriage

ii)Both parties need to be people who are able to valid consent and hence their consent can be invalidated if they are proven to be of unsound mind, suffering from mental disease which render them unfit for marriage or procreation of children, subject to frequent attacks of insanity or epilepsy.

iii)The bridegroom needs to have completed 21 years of age and the bride should be 18 years old at the time of the marriage

iv)The parties are not within the prohibited degrees of relationship unless their customs allow them to do so. (See Q. 6)

v)The parties are not sapindas of each other- unless the customs permits it.

10.What do you need to prove a legally valid Hindu marriage?

In case one party claims the marriage never took place, the contesting party needs to prove to the court that they were indeed married. Usually, if the couple had ‘held out to the world’ that they were married and have been staying as a married couple for a long duration of time,

the courts presume that a marriage had taken place. However, one needs to prove that the essential ceremonies of a marriage took place. The performance of essential ceremonies is a necessary component to proving the validity of a marriage. Hence, every party to a marriage should keep photos or videos recording such essential ceremonies. Documentary evidence like wedding cards, bookings of weddings halls also help. The presence of witnesses who would be willing to attest to being an onlooker of the wedding ceremony would also be admitted in

a court.

11.What are the degrees of a prohibited relationship?

Section 3(g) of the Hindu Marriage Act, 1956 defines" degrees of prohibited relationship". Two persons are said to be within the" degrees of prohibited relationship"--

a.if one is a lineal ascendant of the other; or

b.if one was the wife or husband of a lineal ascendant or descendant of the other; or

c.if one was the wife of the brother or of the father' s or mother' s brother or of the grandfather' s or grandmother' s brother of the other; or

d.if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters;

e.Explanation - relationship includes-

f.relationship by half or uterine blood as well as by full blood;

g.illegitimate blood relationship as well as legitimate;

h.Relationship by adoption as well as by blood.

MUSLIM MARRIAGES

12. What are the essential requirements of a Muslim marriage?

For a valid Muslim marriage, the following conditions must be satisfied-

a)The parties must have the capacity to marry- Every Muslim of sound mind who has attained puberty, may enter into a contract of marriage. A person is presumed to have attained the age of puberty on the completion of 15 years.

b)There must be a clear proposal and acceptance in the same meeting- The proposal and acceptance must both be expressed at one meeting. Any religious ceremony is also not essential.

Under the Sunni law, the proposal and acceptance must be made in the presence of two male Muslims who are of sound mind and have attained puberty or one male and two female witnesses who are sane, adult and Muslim. Absence of witnesses does not render marriage void but make it voidable.

Under the Shia law witnesses are not necessary at the time of marriage. The proposal and acceptance need not be made in writing. Where the offer and acceptance are reduced into writing, the document is called ‘Nikah nama or Kabin-nama.

c)Free consent- Free consent of the parties is absolutely necessary for a valid marriage .If there is no free consent a Muslim marriage is void.

d)No Legal disability

13.How many times can a Muslim marry?

Under Muslim law, a woman cannot marry second time so long as the first marriage subsists and the husband is alive. A Muslim man however can marry more than one wife with a restriction of maximum four wives. He is not punished under the IPC for bigamy.

14.When can Muslims remarry after a divorce?

A Muslim man can marry immediately after a divorce. A Muslim woman however has to wait for the iddat period of 3 months/ 3 menstrual cycles before remarrying. If she is pregnant, then she needs to wait till the full term of the pregnancy.

CHRISTIAN MARRIAGES

15.Who can marry under the Indian Christian Marriage Act?

Under Section 4 of the Act, marriages between persons, one or both of whom is or are a Christian or Christians, can be solemnized in accordance with the provisions of the Act.

16.What are the essentials for a valid Christian marriage?

The parties to the marriage must be Christian as defined under section 3 of the Act or at least one of them must be a Christian and the marriage must have been solemnised in accordance with the provisions of section 5 of the Act by a person duly authorised to do so. If a party to a marriage is a minor, the consent of father if living, or if the father is dead, the consent of the guardian of the person of such minor or if

there is no guardian, then that of the mother, is essential before marriage. A marriage of minor without such consent is not valid. Also, the age of the man intending to be married shall not be under twenty- one years, and the age of the woman intending to be married shall not be under eighteen years. Moreover, neither of the persons intending to be married should be married to anyone else at the time of the marriage. Two witnesses need to be present in the presence of a person licensed to conduct the marriage. If all these conditions are fulfilled then the parties shall be given a marriage certificate which can subsequently be used to prove the validity of the marriage.

17.What is the procedure to be followed to get married under the Indian Christian Marriage Act?

The procedure begins with one of the parties giving written notice to

the minister of religion, stating intention to marry, full name, address and profession of both parties, the time each has lived at address (the 30-day residency requirement must be met), and the church in which the marriage is to be solemnized

Following this, a notice is put up in the church for at least four days. A declaration is then made in person by one of the parties stating that there is no lawful reason why the marriage cannot go ahead, along with consent from bride’s father, mother or guardian (if she is under 21).

A certificate is issued by the minister and the marriage may be solemnized. The marriage needs to take place within two months of the certificate being issued; otherwise the whole process must be repeated. During the ceremony the marriage is registered in a register book and also on a certificate signed by the minister, the couple and two

witnesses. A copy of the certificate is then sent on by the minister to the registrar of births, deaths and marriages.

Following solemnization and registration, the marriage is complete and considered legally valid.

If a couple wish to marry under the Christian Marriage Act with a marriage registrar rather than a religious minister present the procedure differs slightly. The notice declaring intent to marry must be sent to the marriage registrar of the relevant district instead of the minister of religion. An oath before the marriage registrar must be taken by one of the persons intending to marry. A certificate is then issued to the couple permitting the marriage to be solemnized.

SPECIAL MARRIAGES ACT

18. The bride and groom belong to two different religions. How should they get married legally?

The bride and the groom can solemnise their marriage under the Special Marriages Act. People of same religion may also wish to marry under Special Marriage Act.

19. Who can marry under Special Marriages Act?

According to section 4 of the Act, a marriage between any two persons may be solemnized under this Act, if at the time of the marriage the following conditions are fulfilled, namely-

a)neither party has a spouse living;

b)neither party-

i)is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

ii)though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

iii)has been subject to recurrent attacks of insanity or epilepsy.

c)the male has completed the age of twenty-one years and the female the age of eighteen years;

d)the parties are not within the degrees of prohibited relationship Provided that where a custom governing at least one of the parties permits of a marriage between them, such marriage may be solemnized, notwithstanding that they are within the degrees of prohibited relationship; and

e)where the marriage is solemnized in the State of Jammu and Kashmir, both parties are citizens of India domiciled in the territories to which this Act extends.

20.How does one solemnise one’s marriage under SMA?

Special Marriage Act, 1954 allows for the solemnisation of marriages. SDMs, ADMs and Deputy Commissioners have been authorised as marriage officers who can solemnise marriages under SMA. In order to solemnise a marriage under SMA, both parties are required to be present and submit documents of issuance of a notice of the intended marriage. A copy of this notice would be put up in the office of the ADM and anyone can file an objection to such a marriage within 30 days of the notice being issued. If no objection is received, then the ADM solemnises the marriage after the aforementioned 30 days have

passed. The parties need to bring in 3 witnesses on the date of the solemnisation of the marriage after having submitted their names atleast a day in advance.

21.How does one register one’s marriage under the SMA?

The Parties to the marriage have to apply to the Registrar in whose jurisdiction the marriage is solemnised or to the Registrar in whose

jurisdiction either party to the marriage has been residing at least for six months immediately preceding the date of marriage A couple has to filed a ‘Notice of Intended Marriage’ with the Registrar in that jurisdiction Then, they both file an affidavit. A copy of the notice is put up on the public notice board at the Registrar’s office for 30 days. Anybody objecting to their marriage on the grounds specified in the Act (prohibited relationships, underage, insanity, and a living spouse) can file an objection within the 30-day time period. If there is no objection or if an objection is overruled, the Registrar solemnizes the marriage on a chosen date in the presence of three witnesses. Both the parties have to appear before the Registrar along with their parents or guardians or other witnesses within one month from the date of marriage. There is a provision for the condonation of delay up to 5 years, by the Registrar, and thereafter by the District Registrar concerned.

22.What are the ‘prohibited degrees of a relationship’ under SMA?

According to Section 2(b) of the SMA defines "Degrees of prohibited relationship" a man and any of the persons mentioned in Part I of the

First Schedule and a woman and any of the persons mentioned in Part

II of the said Schedule are within the degrees of prohibited relationship.

23.My partner and I want to get married secretly, but we are afraid that the Registrar will send a notice to our houses announcing our wedding. What to do?

He cannot do that, and you may inform him of that. The Delhi High Court in 2009 ordered the marriage officers to refrain from dispatching letters or notices to the parents as it is a breach of the right to privacy of the couples.

PART – I

1.Mother

2.Father's widow (step-mother)

3.Mother's mother

4.Mother's father's widow (step grand-mother)

5.Mother's mother's mother

6.Mother's mother's father's widow (step-great-grandmother)

7.Mother's father's mother

8.Mother's father's father's widow (step-great-grandmother)

9.Father's mother

10.Father's father's widow (step-grandmother)

11.Father's mother's mother

12.Father's mother's father's widow (step-great-grandmother)

13.Father's father's mother

14.Father's father's father's widow (step-great-grandmother)

15.Daughter

16.Son's widow

17.Daughter's daughter

18.Daughter's son's widow

19.Son's daughter

20.Son's son's widow

21.Daughter's daughter's daughter

22.Daughter's daughter's son's widow

23.Daughter's son's daughter

24.Daughter's son's son's widow

25.Son's daughter's daughter

26.Son's daughter's son's widow

27.Son's son's daughter

28.Son's son's son's widow

29.Sister

30.Sister's daughter

31.Brother's daughter

32.Mother's sister 33.Father's sister

34.Father's brother's daughter

35.Father's sister's daughter

36.Mother's sister's-daughter

37.Mother's brother's daughter

Explanation- For the purposes of this Part, the expression "widow" includes a divorced wife.

PART II

1.Father

2.Mother's husband (step-father)

3.Father's father

4.Father's mother's husband (step-grandmother)

5.Father's father's father

6.Father's father's mother's husband (step-great-grandfather)

7.Father's mother's father

8.Father's mother's mother's husband (step-great-grandfather)

9.Mother's father

10.Mother's mother's husband (step-grandfather)

11.Mother's father's father

12.Mother's father's mother's husband (step-great-grandfather)

13.Mother's mother's father

14.Mother's mother's mother's husband(step-great-grandfather)

15.Son

16.Daughter's husband

17.Son's son

18.Son's daughter's husband

19.Daughter's son

20.Daughter's daughter's husband

21.Son's son's son

22.Son's son's daughter's husband

23.Son's daughter's son

24.Son's daughter's daughter's husband

25.Daughter's son's son

26.Daughter's son's daughter's husband

27.Daughter's daughter's son

28.Daughter's daughter's daughter's husband

29.Brother

30.Brother's son

31.Sister's son

32.Mother's brother

33.Father's brother

34.Father's brother's son

35.Father's sister's son

36.Mother's sister's son

37.Mother's brother's son

Explanation- for the purposes of this Part, the expression "husband' includes a divorced husband.

DIVORCE

HINDU LAW

24.After what period of time can persons seek a divorce under the Hindu law?

Under Section 14 of the Hindu Marriage Act 1956, no petition for divorce can be filed within one year of the marriage. But in case the petitioner’s case is of exceptional hardship High Court is in empowered to grant leave to file the case before the expiry of one year.

25.What are the grounds of divorce under Hindu Law?

Divorce under the said Act can be obtained only on the grounds specified under Section 12, whereby a person can seek divorce on the following grounds:

(a) If the other party after the marriage had voluntary sexual inter- course with another person.

(b)If the other party after marriage has treated the complainant with cruelty.

(c)If the other party has deserted the complainant for a continuous period of not less than two years.

(d)If the other party has seized to be Hindu by converting to another religion.

(e)If the other party has been in curably of unsound mind or has been suffering from mental disorder of such a nature that the complainant cannot be reasonably expected to live with her/him.

(f)If the other party has been suffering from an incurable form of leprosy.

(g)If the other party has been suffering from venereal disease in a communicable form.

(h)If the other party has renounced the world.

(i)If the other party has not been heard of being alive for a period of over 7 years.

Divorce can also be obtained by mutual consent by Husband and Wife in accordance with Section 13 B of the Hindu Marriage Act, 1956.

A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground-

i) If the husband has indulged in rape, bestiality and sodomy.

ii)If the marriage is solemnized before the Hindu Marriage Act and the husband has again married another woman in spite of the first wife being alive, the first wife can seek for a divorce.

iii) that in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, (78 of 1956), or in a proceeding under Section 125

of the Code of Criminal Procedure, 1973, (Act 2 of 1974) or under corresponding Section 488 of the Code of Criminal Procedure, (5 of 1898), a decree or order has been passed against the husband awarding maintenance to the wife.

iv) her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage before attaining the age of eighteen years but after the age of fifteen.

26.How long after a divorce can persons get remarried?

Section 15 of the Hindu Marriage Act, 1956 provides that after a decree of divorce has been granted, in case there is no right of appeal against the decree or if there is a right, the time has expired without an appeal having been presented or if the appeal filed has been dismissed, it shall be lawful for either party to marry again. The period of appeal as provided under Section 28 of the Hindu Marriage Act is 30 days from the date of the decree or order.

27.What are the grounds for the annulment of a marriage?

A Hindu marriage can be declared null and void under s.12 of the Hindu Marriage Act, 1955 on the following grounds:

(a)if the parties have not consummated their marriage because either of the spouses are impotent.

(b)if either of the parties are incapable of entering into the marriage legally

(c)if one of the spouse’s consent to the marriage was obtained through force or by fraud.

(d) if the wife was pregnant with another man’s child at the time of the marriage.

28.What is the difference between the annulment of a marriage and a divorce under Hindu Law?

When a marriage is declared null and void, it is as if the parties were never married. The marriage would be deemed to have not existed at all and neither of the parties would have any obligations that arise out of a marriage. However, in case of a divorce, the relationship of marriage is terminated at the time of the divorce but the marriage was valid till the time of the divorce. This is why after a divorce one still needs to pay maintenance to one’s spouse and children.

29.What is a judicial separation under Hindu Law?

A judicial separation is a legal way to stay separate from the spouse, without obtaining a decree of divorce. Either party to the marriage may

present a petition on any of the grounds stated in the provisions for divorce section 13 of the Hindu Marriage Act, 1956 praying for a decree of judicial separation. A judicially separated spouse does not include a spouse merely living separately, and who has not obtained a decree for judicial separation. In case, there has been no resumption of cohabitation between the parties to the marriage for a period of one year or upwards, after the passing of the decree for judicial separation, it shall be a ground for a divorce.

30.What is divorce by mutual consent?

In case both parties want a divorce or consent to a divorce, then Section 13-B of the Hindu Marriage Act provides that the parties can seek

divorce by mutual consent by filing a petition before the court. The provisions of the said Section require that the husband and wife should be living separately for a period of more than one year and they are not able to live together any further. “Living Separately” has been now defined by the Supreme Court as “not living as husband and wife and not performing marital obligations”, even if the husband and wife are living under the same roof. The terms of the settlement (essentially agreement regarding child custody, division of assets, maintenance etc.) are passed by the court as a consent decree.

Filing for divorce under mutual consent is often deemed as the simplest and most hassle-free method of filing divorce by family law practitioners. If you are contemplating divorce, it is suggested that you convince your husband or wife to grant you consent so that you may proceed with this type of proceeding which is settled in six months rather than a long-drawn, emotionally draining battle. Even if is a mutual consent divorce, it is recommended that parties have separate lawyers to draw up the terms of the agreement.

31.What is the procedure for getting a divorce by mutual consent?

A joint petition has to be filed in this regard and after the filing of the same the Court grants a minimum period of six months (and maximum 18 months) for the parties to come again and make a statement confirming the said consent. It is only after this second consent having been given by both the parties after six months of the filing of the petition for mutual consent, a decree for divorce is passed by the Court. If during this period of six months after the filing of the petition, any of

the parties withdraws the consent, the divorce cannot be granted. Before passing a decree of divorce, the court has also to be satisfied that the consent has not been obtained by force, fraud or undue influence.

32.What is the procedure for getting a contested divorce?

In a case where the divorce is contested, the party who is initiating the divorce has to file it using one of the fault grounds mentioned under the Hindu Marriage Act. After this a petition citing the reasons for wanting a divorce will be filed in court. The contesting party will be asked to appear before the court and to reply to the divorce petition filed by the other spouse. Once the matter goes to trial, the party which filed the divorce petition has to prove its argument by producing evidence. After being satisfied of the grounds of divorce being met, the court passes an order of divorce.

MUSLIM LAW

33.What is a triple talaq and what effect does it have on a Muslim marriage?

The pronouncement of talaq thrice in the presence of the wife is a legal and most common form of divorce under Sharia. While it is not an ideal form of divorce, it has gained prevalence in India. The intent of the parties is immaterial- even if it is done in an inebriated condition or in sleep, it would be held valid. Such a pronouncement ends the marriage between the two spouses.

34.What is a khula form of divorce?

A Muslim woman can obtain a divorce from her husband through a Khula form of divorce. It is the permission a husband gives his wife to end the marriage in return for a payment which is more or less equivalent to the mahr given to her in the beginning of the marriage.

35. What is iddat?

Iddat is the period during which it is incumbent upon a woman, whose marriage has been dissolved by divorce or death of her husband to remain in seclusion and to abstain from marrying another husband. The purpose behind that is to ascertain whether she is pregnant by earlier husband, so as to avoid confusion of the parentage of the child. The period of Iddat is prescribed as under:

i)In case termination marriage by divorce- three lunar months or three menstrual courses

ii)In case of widow- 4 months and 10 days

iii)In case the woman is pregnant - till the delivery.

Under Sunni Law a marriage with a woman undergoing Iddat is irregular and not void. Under Shia law a marriage with a woman who is undergoing Iddat is void.

36. What are the grounds for divorce for a Muslim woman?

Based on the Dissolution of Muslim Marriage Act, 1939, a Muslim woman can seek divorce on the following grounds for divorce in India.

i) The husband’s whereabouts are unknown for a period of four years.

ii)The husband has failed to provide maintenance to the wife for at least two years.

iii) The husband has been under imprisonment for seven or more years.

iv)The husband is unable to meet the marital obligations.

v)If the girl is married before fifteen and decides to end the relationship before she turns eighteen.

vi)The husband indulges in acts of cruelty.

SPECIAL MARRIAGE ACT

37. What are the grounds for a divorce under SMA?

Under Section 27 of the SMA, a petition for divorce may be presented to the District Court either by the husband or the wife on the ground that the respondent-

(i)has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse; or

(ii)has deserted the petitioner for a continuous period of not less than two years immediately proceeding the presentation of the petition; or

(iii)is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code (45 of 1860); or

(iv)has since the solemnization of the marriage treated the petitioner with cruelty; or

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

b)A wife may also present a petitioner for divorce to the District Court on the ground-

(i)that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality;

(ii)that in a suit under Sec. 18 of the Hindus Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under Sec. 125 of the Code of Criminal Procedure, 1973 (2 of 1974), or

under the corresponding Sec. 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order has been passed against the husband awarding maintenance to the wife.

c) Additionally, either party to a marriage, whether solemnized before or after the commencement of the Special Marriage (Amendment) Act, 1970, may present a petition for divorce to the District Court on the ground-

(i)that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii)that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.

CHRISTIANS

38. What are the grounds for a divorce under the Divorce Act?

The following are the grounds of divorce mentioned under the Indian Divorce Act, 1869.

i)Adultery

ii)Conversion to another religion

iii)One of the couples suffering from an unsound mind, leprosy or communicable venereal disease for at least two years before the filing of the divorce.

iv)Not been seen or heard alive for a period of seven or more years.

v)Failure in observing the restitution of conjugal rights for at least two years.

vi)cruelty and giving rise to mental anxiety that can be injurious to health and life.

vii)Wife can also file a divorce based on the grounds of rape, sodomy and bestiality.

ADOPTION

39.Who is allowed to adopt a child under Indian laws?

The following people can adopt under Indian laws:

1.An Indian citizen

2.Non-resident Indian

3.Foreign citizen

4.A single female

5.A married couple

6.A single male is permitted to only adopt a male child. He cannot adopt a girl child.

40.What are the conditions to be fulfilled by an adoptive parent? (PAP-Prospective Adoptive Parent)

1.2 years of stable relationship in case PAPs are married

2.To adopt children in the age group of 0-3 years, the maximum composite age of the PAPs should be 90 years wherein the individual age of the PAPs should not be less than 25 years and more than 50 years.

3.To adopt children above three years of age, the maximum composite age of the PAPs should be 105 years wherein the individual age of the PAPs should not be less than 25 years and more than 55 years.

4.A single PAP desiring to adopt should not be less than 30 and more than 50. The maximum age shall be 40 years to adopt children in the

age group of 0-3 years and 50 years for adopting children above 3 years.

5.PAPs should have adequate financial resources to provide a good upbringing to the child;

6.PAPs should have good health and should not be suffering from any contagious or terminal disease or any such mental or physical condition which may prevent them from taking care of the child;

7.A second adoption is permissible only when the legal adoption of the first child has been finalised;

8.Single male is not permitted to adopt a girl child.

41.Who is eligible to be adopted?

The child must be legally free for adoption.

Siblings/twins/triplets cannot be separated except in exceptional cases.

Two unrelated children cannot be proposed to a foreign family at a time.

A child may as far as possible be placed in adoption before it reaches the age of 12.

The consent of the child above 6 years should be taken for the adoption.

Age difference of the adoptive parents and child should be 21 years or more.

42.Who is eligible to adopt?

Indian citizens who are Hindus, Jains, Sikhs, or Buddhists are

allowed to formally adopt a child. The adoption is under the

Hindu Adoption and Maintenance Act of 1956. Under this act, a single parent or married couple are not permitted to adopt more than one child of the same sex.

Foreign citizens, NRIs, and those Indian nationals who are Muslims, Parsis, Christians or Jews are subject to the Guardian and Wards Act of 1890. Under this act, the adoptive parent is only the ‘guardian’ of the child until she reaches 18 years of age.

There is also a Juvenile Justice Act of 2000, a part of which deals with adoption of children by non-Hindu parents. Recently, the Supreme Court has held that even if Muslim law does not permit adoption, Muslims may adopt under the Juvenile Justice Act, 2000. If adoption is under this Act, then even non-Hindu adoptive parents acquire the status of parent and not just guardian. However, this Act is applicable only to children who have been abandoned or abused and not to those children who have been voluntarily put up for adoption.

Foreign citizens and NRIs are supposed to formally adopt their child according to the adoption laws and procedures in the country of their residence. This must be carried out within two years of the individual becoming a child's guardian. There is also a Juvenile Justice Act of 2000, a part of which deals with adoption of children by non-Hindu parents.

43. What is the adoption procedure?

- Prospective parents register at a licensed adoption placement agency with all the required documents. Pre-adoptive counseling may be suggested.

- The waiting period begins once the agency’s social worker draws up the home study report.

- When the agency identifies a suitable child, they call the prospective parents to meet the child.

- If the parents approve, some agencies may hand over the child once a foster care agreement is signed.

- Meanwhile, the agency’s lawyer files a petition to adopt on behalf of the couple with the Court or Juvenile Justice Board, depending on the law under which the adoption will take place. An Order for execution of the adoption deed is granted.

For the most part, the agency representative and the parents register the adoption deed at the Registrar’s as proof of the completion of the adoption, and then apply for the birth certificate.

44. Can I adopt if I already have a child?

Yes. The gender of the child becomes a factor here. The Hindu Adoption and Maintenance Act, 1956 (HAMA, under which Hindus, Jains, Sikhs, Buddhists and Arya Samaj adopt) allows you to only adopt a child of the opposite gender to the one you already have. There are no such diktats under the other 2 adoption laws, namely the Guardians and Wards Act, 1890 (GAWA) and the Juvenile Justice Act (JJA 2000, amended in 2006), which has enabled many Indians to adopt a child of the same gender. Your child, if old enough, will be asked to express her views on the adoption, in writing.

45. Is there a minimum income needed to for adopting a child?

As per Central Adoption Research Authority [CARA], couples must have a minimum average monthly income of Rs. 3000. Lower income may be considered considering other assets and support systems e.g. your own house etc.

46. Are there any expenses involved in adopting a child in India?

The HAMA prohibits payments made or demanded in consideration or reward for adoption to the birth parents, agency or relinquishing guardians. If there are any payments made, it amounts to trafficking in children, and may result in imprisonment or a fine or both.

CARA has a fixed fee structure for adoption. Charges outside the stipulated headings are not legal.

-Registration fees: Rs. 200

-Home study report: Rs. 1000 + actual travel allowance (TA)

-Maintenance charges not exceeding Rs. 15,000 at the rate of Rs. 50 per day from the date of admission until placement in foster care.

-In the case of special medical care, hospitalization charges subject to a maximum of Rs. 9000 may be claimed on production of actual bills.

-Legal fees and scrutiny fees are as per actuals.

47. My husband and I have been married for a year now, can we adopt a child?

No, under Ministry guidelines prospective parents are required to have been married for at least two years before they are eligible to adopt.

48. My partner and I are in a live-in relationship, can we adopt a child?

Couples in a live-in a relationship are not eligible to adopt a child.

49. What is the order of priority for foreigners wanting to adopt a child from India?

(i)Non Resident Indian (NRI);

(ii)Overseas Citizen of India (OCI);

(iii)Persons of Indian Origin (PIO);

(iv)Foreign Nationals.

50. In what cases/conditions can I surrender my child to adoption agencies?

(i)The child is born as a consequence of non-consensual relationship;

(ii)The child is born of an unwed mother or out of wedlock;

(iii)One of the biological parents of the child is dead and the living parent is incapacitated or unfit to take care;

(iv)The parents of the child are compelled to relinquish him or her due to physical, emotional and social factors beyond their control.

51. Can I adopt a child from a state other than the one I am residing in?

Yes, one can do so.

52.Can I adopt again if I have already adopted once before?

Yes, another child can be adopted.

53.Can I adopt my relatives child?

Yes, one is eligible to adopt a relative’s child, so long as the other criteria for adoptive parents are fulfilled.

54. What procedures should I follow for adopting a relatives child?

Firstly you need to obtain the consent of the biological parents for adopting the child, then enter into an adoption deed, you can take a lawyers assistance for this. This Adoption Deed has to be registered.

55. Do I need a court order even if I adopt my relatives child?

It is not mandatory to obtain a court order if you adopt a relatives child, however you will need a Court Order in order to obtain a Passport or a Visa for the child. Therefore it is always advisable that you have a Court Order.

56. Can a parent ask for a specific child?

An adoptive parent is allowed to ask for a child, as per her preferences. For example a parent may ask for a child of a certain age, gender (if it is the first child in the family), skin colour, religion, special features, health condition, etc. However, greater the specifications, the more difficult it is to find a child who conforms to them. This restricts the pool of children available for adoption.

Depending on the adoptive parent's desired details, children are scrutinised to find a suitable match. When a child with the desired characteristics is found, she is shown to the prospective parents. In case the parents are unhappy with the selection, about two more children with the same characteristics may be presented to the parents.

57. Does the law forbid me from putting up my child for adoption due to my inability to maintain?

A parent can surrender his/her child due to physical, emotional and social factors beyond their control.

58. What if I want to adopt a child from other country and bring him/her to India to stay along with me, what procedures apply? The same procedures as before?

The relevant procedure varies, and it depends on the requirements of the country that you are adopting from.

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FREQUENTLY ASKED QUESTIONS

DOMESTIC VIOLENCE

1.What is the scope of protection of women from Domestic Violence in India?

For long, the only legal remedy available to a woman subjected to domestic violence was criminal in nature under Section 498A, Indian Penal Code as per which a woman can make a complaint against her husband and his relatives for cruelty.

However, In order to keep in conformity with international recommendations delineated by the United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) and manifest the rights guaranteed to women in the Constitution under Articles 14, 15 and 21, the Union Parliament in 2005 enacted a dedicated legislation aimed at protecting women from violence within the family, namely the Protection of Women from Domestic Violence Act, 2005 (PWDVA)

In a nutshell, the legislation provides for legal protection of women in a ‘domestic relationship’ against a male partner and his relatives and otherwise. The nature of protection provided ranges from protection orders from the abuser, monetary relief in the nature of maintenance and the right to secure housing.

2.Is the PWDVA civil or criminal nature?

While the remedies are civil in nature, the procedure to be followed under the Act is that of the Code of Criminal Procedure Code, 1973.

3.Who is accorded protection under the PVDWA?

As per Section 2(a) of the act, any woman who is, or has been in a ‘domestic relationship’ with the person complained against can file a complaint on grounds of being subjected to any act of domestic violence by the respondent.

The term ‘domestic relationship’ is also defined in the act (Section 2(f), PVDWA). As per the definition, the two persons i.e. the complainant and the person complained against (Respondent):

1.be related consanguinity, marriage, or through a relationship in the nature of marriage, adoption or

2.are family members living together as a joint family;

In addition, the aggrieved person and the respondent should live or at any point of time have lived together in a shared household.

4.Is the application of the PWDVA restricted to married women?

No, the application of the PWDVA is not restricted to women formally married.

a.the Supreme Court has time and again held that relationships even women in the “nature of marriage” will also be entitled to protection under the PWDVA. In the case of Indra Sharma1, The Supreme Court also laid down guidelines to determine whether a relationship is in the nature of marriage. These include:

i. Reasonable duration of the relationship

1 2013(14)SCALE448

ii.Supporting each other by pooling in of resources and financial arrangements

iii.Entrusting responsibility of domestic arrangements to each other

iv.A sexual relationship not just for pleasure but an intimate relationship for procreation

v.Having children

vi.Socialisation in public

vii.Common intention and conduct of parties.

b.Further, a woman can also file a complaint against any family member provided they are or were living together in a joint family member.

5.Who can a woman complain against?

Under the PWDVA, a respondent would include any male person who has been in a domestic relationship in the nature of marriage. For long, it was disputed as to whether a woman could file a complaint even against the relatives of the husband/male partner and different high courts took opposing views on the matter. This question was finally settled by the Supreme Court in 2011 in the case of Sou Sandhya Manoj Wankhade v. Manoj Bhimrao Wankhade and Ors.2 However, as per the statute this right seems to be limited to women who are making complaints against husbands and male partners.

In other words, aggrieved persons other than wife or a female living in a relationship in the nature of marriage, viz., sister, mother, daughter or sister-in-law can file application against adult male person only. But on

2 (2011)3SCC650

the other hand, wife or female living in a relationship in the nature of marriage is given right to file complaint not only against husband or male partner, but also against his relatives.

6.How are relatives defined in the PWDVA?

Relatives have not been defined in the act. The Supreme Court in U. Suvetha v. State by Inspector of Police and Anr3 has considered the term “Relative” with reference to Section 498A of Indian Penal Code and has observed that in the absence of any statutory definition, the term "relative" must be assigned a meaning as it is commonly understood and it would include father, mother, son, daughter, brother, sister, nephew or niece, grandson or granddaughter of an individual or the spouse of any person. The same definition has been accepted by cases pertaining to the PWDVA.

7.How is domestic violence defined?

The Act defines domestic violence as any act, omission or conduct of the respondent that:

a.Harms or injures or endangers the health and safety, limb or mental or physical or well-being of the person and include physical, sexual, verbal, emotional and economic abuse.

b.Harasses, harms, endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property

c.Has the effect of threatening the aggrieved person or any person related to her by any conduct

3 (2009) 6 SCC 757

d.Otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

8.What kinds of remedies are available to and ‘aggrieved person’ under the PWDVA?

1. PROTECTION ORDERS

Under Section 18 of the PWDVA, as the term suggests, empowers the magistrate to protect any aggrieved person from further acts of domestic violence at the hands of the respondent if he is satisfied on a prima facie basis that domestic violence has taken place. The magistrate will pass an order prohibiting the respondent from committing, aid or abetting any act of domestic violence, entering the place of employment/school or any other place frequented by the aggrieved person, communicating with the aggrieved person in any manner, causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence or any other acts.

In addition, the respondent can also be prohibited from alienating any assets including bank accounts or property held jointly as well as the aggrieved person’s stridhan by both the parties.

2. CUSTODY ORDERS

As per Section 21, at any stage of hearing, the Magistrate also has the power to grant temporary relief of any child to the aggrieved person or person making the application on her behalf. Visits by respondents can be refused if the Magistrate is of the opinion that any visit of the respondent would be harmful to the child(ren)

3. RESIDENCE ORDERS

Under Section 19, PWDVA, the magistrate is free to pass a restraining order that would involve:

1.Restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, or alienating, disposing or encumbering the shared household or renouncing his rights in the shared household (except with the leave of the magistrate)

2.directing the respondent to remove himself from the shared household

3.restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides

4.an order to secure the same level of alternative accommodation for the aggrieved person as enjoyed by her in the shared household or pay rent for the same, if the circumstances so require.

4.MONETARY RELIEF AND COMPENSATION

Under Section 20, The Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence. This would include the loss of earnings, medical expenses, loss caused due to destruction of any property, maintenance including under Section 125, CrPC. In addition, the Magistrate is empowered under Section 22, PWDVA, to, on an application by the aggrieved person, direct the respondent

to pay compensation and damages for torture and emotional distress caused by the acts of domestic violence.

9.What kind of rights does the aggrieved person have in the shared household?

A shared household is defined in under Section 2(s), PWDVA, a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.

Under Section 17, PWDVA every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same. Therefore, it is immaterial that the aggrieved person is not the owner of the house.

10. In which situations would a woman not be granted a right to reside in a household?

The purpose of the PWDVA is to provide secure housing to the woman and not create any substantive rights in a household. In the Supreme Court case of S.R. Batra, the court held that the wife is

only entitled to claim a right to residence in a shared household, and a 'shared household' would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. Therefore, when the house is only owned by the father in law or mother in law, a woman would not be entitled to a right to reside in the household. Therefore, a wife’s right of residence does not mean the right to reside in a particular property.

1.Similarly, the proviso to Section 19, states that an order under section 19(b) i.e. an order directing the respondent to remove himself from the property cannot be passed against a woman. While judicial precedent is scarce in this regard, it can possibly be argued that the magistrate would not be inclined to pass on order to remove the respondent when other members of his family are residing in the house as well.

2.In situations where there exist hostilities between the family of the respondent and the aggrieved person, the magistrate would refrain from putting the aggrieved person in the same position.

11.In such situations, would an aggrieved person be left remediless?

No, the legislature has displayed ample foresight in this regard, and specifically empowered the magistrate under Section 19(1)(f) to provide for the same level of alternative accommodation of commensurate value if the circumstances so require. This implies that the magistrate has discretion to evaluate whether alternative

accommodation as opposed to residence in the shared household would be in the interest of the aggrieved person.

12.Does the PWDVA provide for interim orders?

Yes, under Section 23, the Magistrate has been granted the power to grant interim orders with respect to reliefs in the nature of protection, residence and custody orders and monetary relief and compensation against the respondent.

13.Are final orders granted under the Act permanent in duration?

Not necessarily, a magistrate can vary or discharge orders in the following manner:

1.A protection order will remain in force until the aggrieved person applies for discharge as per Section 25(1)

2.Under Section 25(2) with respect to any order, either aggrieved person or respondent can make an application explaining the change in circumstances that merits alteration, modification or revocation of any order made under the Act. If the Magistrate is so satisfied, he will allow such an application.

14.In any case, can such orders be appealed against?

Yes, the right to appeal is a statutory right that must be specifically provided for. In the case of PWDVA, any order made by the magistrate can be appealed to the Court of Session within thirty days of the order being served on the aggrieved person or the respondent, whichever is later. Therefore, both interim and final orders can be appealed against.

15. What happens if the respondent doesn’t comply with the protection order of the Magistrate?

As per Section 31, PWDVA, non-compliance with the protection order is a cognizable and non-bailable offence punishable with the imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both.

16.How can an aggrieved person make an application for relief under the PWDVA?

An aggrieved person has two options of making an application for relief:

1.Approaching the magistrate directly under Section 12, PWDVA to make an application for relief

2.Approaching a protection officer under Section 4. PWDVA or service provider, to give information about any act of domestic violence committed or likely to be committed. Such a protection officer is empowered to then make an application on behalf of and with the consent of the aggrieved person under Section 12.

17.Many a time, an aggrieved person would not be in a position to make a complaint or approach the service provider/protection officer, how would her complaint be addressed in such a case?

The law recognises that a woman may not always be in a position to have access to the legal recourse provided. Therefore, information to the protection officer or a complaint to the Magistrate can be made by any person. In such a case, the protection officer and service provider will proceed to the scene and make a domestic incident report. Moreover, information provided by such an informant in good faith is shielded from both criminal or civil liability.

18.Who are protection officers?

A protection officer is a public servant who usually serves as the first point of contact between the aggrieved person and the justice system. Informants and aggrieved persons can approach Protection Officers with information that an act of domestic violence has been committed or are likely to be committed.

As per Section 8, the State Government appoints these officers for a particular district. In most cases these officers are women.

19.What are the duties of a protection officer?

Upon receipt of information the duties of the protection officer are the following:

1.make a domestic incident report to the Magistrate and forward copies to the police officer of the relevant police station.

2.To apprise the aggrieved person of the right to make an application for relief under the act as well as under Section 498A, IPC, the availability of service providers and free legal aid.

3.To make available a safe shelter home for the aggrieved person so requires

4.To get the aggrieved person medically examined if she has sustained bodily injuries and forward such report to the police officer and Magistrate.

5.To ensure that aggrieved person is provided legal aid under the Legal Services Authorities Act, 1987 and ensure that the prescribed form of the complaint is provided free of cost

6.Make an application to the magistrate under Section 12 if the

aggrieved person so desires.

7. To maintain a list of service providers in the area.

20.Who are service providers?

Service providers are the private equivalent of protection officers. Under Section 10, any society registered under the Societies registration act or Indian Companies Act with the objective of protecting the rights and interests of women by any lawful means including providing of legal aid, medical, financial or other assistance can register itself with the State Government as service providers.

21.What are the duties/powers of service providers?

Akin to protection officers, service providers have the following powers:

1.Prepare domestic incident report to forward to the protection officer and the magistrate

2.Get the person medically examined

3.Ensure that the aggrieved person is provided a shelter home

22.What is a domestic incident report?

Under Section 2(e), PWDVA, a domestic incident report is a report made by the protection officer or service provider upon receipt of a complaint of domestic violence.

23. Is a domestic incident report compulsory in every case?

While the legislation is silent on whether a DIR is compulsory, it has been held in cases, that the preparation of a domestic incident report is not compulsory say for instance in cases where the aggrieved person approaches the magistrate directly. However, in cases where a DIR is made, it is compulsory for the magistrate to consider it.

24.What is the purpose of a DIR?

A magistrate should preserve it for the purposes of maintaining a record. It may be referred to in cases where an application is filed directly by the aggrieved woman. It may also be used in cases where an application is filed by with the assistance of a Protection Officer along with a DIR at a later stage.

25.Can an aggrieved person file a DIR on her own?

No only a Protection Officer or Service Provider can file a domestic incident report. In cases where the aggrieved person has directly filed the application, a domestic incident report need not be filed.

26.Even if it is not compulsory to file a domestic incident report when the aggrieved person files the application, should the Magistrate ideally call for the preparation of the Domestic Incident Report?

There is no need for a DIR at the stage when an application is filed in court as stage for the DIR is past and its purpose (i.e. recording the history of violence) does not exist. Once an application is filed in court, a Magistrate may order the Protection Officer to conduct a home visit or any other report under Rule 10 (1) if the circumstances so require.

27.Can a protection officer conduct a home visit without a court order?

No, a protection officer can only conduct a home visit upon a court order

28.How is a domestic incident report recorded?

A DIR is meant to be a faithful record of what the woman says. This means that all complaints must be recorded in a non-biased manner as long as the act complained of falls within the purview of the PWDVA.

If a woman is not able to narrate her story then the Protection Officer may call her on separate occasions to fill in the DIR. The Protection Officer can maintain a daily diary to enter details of each of the woman's visit.

29. What kind of rights does a divorced woman have under the

PWDVA?

An aggrieved person as per the act has been defined under the PWDVA as a woman who is, or has been, in a domestic relationship. However, high courts have taken differing views on whether divorced women can apply for relief under the act. A division bench of the Rajasthan High Court in Sabana (smt.) @ Chand Bai v. Mohd Talib has held that a divorced woman should not be precluded from protection under the act as even after dissolution of marriage between the parties, a divorcee husband may attempt to commit the act of violence such as entering the place of employment of the aggrieved person, attempting to communicate in any form with the aggrieved person, cause violence to dependents or other relatives or any person etc. Similarly, the divorcee husband might attempts to dispossess the divorcee wife from the shared household or attempt to dispossess the divorcee wife from the property jointly owned. Therefore, she should not be precluded from obtaining remedies under the PWDVA. This appeal to this decision is pending

before the Supreme Court. It is hoped that the Supreme Court would settle this position shortly.

30.But, is the nature of reliefs available to a married woman and divorced woman different?

No, the legislation has not sought to make any such differentiation in the nature of reliefs available.

31.Is the PWDVA religion neutral?

The act does not create in differentiation on the basis of the religion of the aggrieved persons. However, this point has generated some controversy on certain aspects. For instance, it has been contended that a divorced muslim can only claim maintenance under the Muslim Women (Protection of Rights on Divorce) Act, 1986 or under Section 125 CrPC and not the PWDVA. However, rejecting this contention, the Bombay High Court in Khushi Mohammed v. Smt Aneesha did not accept this argument. Instead the Court referred to Section 36, PWDVA that clearly makes it an Act to have additional field for the benefit of aggrieved person, therefore, even if some benefit could be envisaged or allowed to the wife under the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986, that cannot come in the way of the wife to secure the relief under the provisions of Domestic Violence Act, 2005. However, any binding decision by the Supreme Court on this point is still awaited.

32. Which court has jurisdiction under the PWDVA?

Under Section 27, PWDVA, the court of Judicial Magistrate of the first class or the Metropolitan Magistrate have jurisdiction. In terms of territorial jurisdiction an application can be filed before any magistrate

within the territorial limits of which the respondent resides or carries on business or is employed or wherein the person aggrieved permanently or temporarily resides or carries on business or wherein the cause of action arose.

33. But is the jurisdiction of the Magistrate exclusive in this regard?

Don’t divorce proceedings and other similar proceedings allow for similar reliefs?

No, the jurisdiction of the magistrate is not exclusive in this regard. Indeed, since the nature of relief envisaged in the PWDVA such as maintenance, monetary reliefs and custody orders would also be a part in parcel of divorce proceedings, etc., the PWDVA is intended to complement such proceedings but at the same time avoid duplication of proceedings and litigation. For this purpose Section 26 envisages two situations:

1.Any reliefs provided under the PWDVA may be sought as a relief under a legal proceeding before a civil court, family court or criminal court such as dissolution of marriage (wherein a person will be entitled to maintenance, custody, residence, etc.) and proceedings under the PWDVA act would continue simultaneously.

2.Alternatively, in the same legal proceeding before a family court, civil court or criminal court an application under the PWDVA also be made. For instance a miscellaneous petition may have been filed for dissolution of marriage in the family court wherein ancillary reliefs such as maintenance and custody would be prayed for. In this petition, a miscellaneous application under

Section 12, PWDVA can also be filed claiming protection orders, monetary relief, and custody and residence orders. This mechanism has been created, as both these proceedings would deal with materially similar facts and parties thereby making adjudication simpler and more convenient.

Similarly, section 12 clearly states that an application under the PWDVA Act does not preclude the right of an aggrieved person for filing a suit for compensation from the aggrieved person.

34.But does this mean that the aggrieved person will effectively get twice the relief from the magistrate and civil court?

No, Section 26 obligates the aggrieved person to inform the magistrate in case any relief is obtained in any proceeding in another court such that the magistrate can factor the same in his decision. In the same manner, Under Section 12, any compensation received by an aggrieved person in a separate suit for compensation would be set off against the order of the magistrate.

35.Are minors also protected under the PWDVA?

Yes, as the term 'child' is defined under the law, minors will also be within the ambit of the definition of 'domestic relationship'. Section 2

(b) of the PWDVA defines child as "any person below the age of eighteen years and includes any adopted, step or foster child.

36. Are only female minors protected under the Act?

No. both male and female minors are protected under the Act. The mother can make an application on behalf of her minor child (whether male or female). In cases where the mother makes an application to the court for herself, the children can also be added as co-applicants for a

relief under the PWDVA. The Court can also, whenever appropriate, appoint a guardian or next of friend to represent the child.

FREQUENTLY ASKED QUESTIONS

CONSUMER PROTECTION.

1.What is Consumer Protection Act, 1986 all about?

Goods and services are somehow procured by all of us on a regular basis. By consuming goods and availing services, we become consumers. The procurement of regularly used entities like toothpaste, pens etc. too makes us a consumer.

In 1986, to provide a base for protection of all consumers from any discrimination and also to protect their interests, a social-welfare legislation was enacted called the Consumer Protection Act, 1986.

This act provides us with a set of rights and grants us with a procedure through which one can attain justice. This act broadly speaks about the different ways of unfairness against consumers and how consumers can apply for a simple, speedy and inexpensive redressal of consumers’ grievances.

2.What are the objectives of Consumer Protection Act, 1986?

The Consumer Protection Act, 1986 accomplishes to provide a simple, speedy and inexpensive manner of redressal for consumers’ grievances. The Act regards a three-tier quasi-judicial mechanism at the national, state and district levels.

The main feature of this act is that this act protects consumer rights by providing the consumers with compensatory, preventive and punitive provisions.

The Act also requires establishment of Consumer Protection Councils at central, state and district levels and specifies that the main objectives of these councils are to promote and guard the rights of all consumers.

The Consumer Protection Act, 1986 also aims at providing consumers with their basic consumer rights such as-

a.the right to be protected against promotion of goods which are hazardous to life and property;

b.the right to be informed about the quality, quantity, effectiveness, purity, standard and price of goods to protect the consumer against unfair trade practices;

c.the right to be assured, wherever possible, access to an authority of goods at competitive prices;

d.the right to be heard and to be assured that consumers interests will receive due consideration at appropriate forums;

e.the right to seek redressal against unfair trade practices or unscrupulous exploitation of consumers and;

f.right to consumer education.

3.What does the term appropriate laboratory mean?

Unless otherwise specified, it signifies a laboratory or an organization recognized by the Central Government; State Government subject to guidelines provided by the Central Government or any laboratory that is established by or under any law maintained or financed by the Central Government or State Government for carrying out any tests or analysis.

4.Who is a Consumer?

The word Consumer as per the definition given in the Act indicates towards any person who buys any good or avails any service for consideration (monetary value). The definition of a consumer is not confined to being a direct purchaser but also includes any other person who buys goods for consideration when such use is made with the approval of the buyer. The consideration if paid or partly paid still approves the payer to be a consumer.

5.Who is a manufacturer?

The one who makes or manufactures any good or assembles the parts of the goods or puts his own mark on the good is known as a manufacturer.

6.What is the difference between defect and deficiency?

Defect generally stands for any imperfection or fault or shortcoming in the quality, quantity, potency, purity or standard to be maintained by or under the law for the time being whereas deficiency means any fault or shortcoming in the quality, nature and manner of performance which is required to be maintained by or under the law

for the time being. In other words, the term defect is used when there

is some imperfection in the way a good is manufactured while deficiency is used when there is some imperfection in the way a service is executed.

7.When can one avail protection under the Consumer Protection Act?

An aggrieved consumer can file a complaint and seek redressal but only as per the certain grounds provided by the Consumer Protection Act. The Consumer Protection Act protects consumers against the following:

a.If the goods purchased by a consumer suffer from defect(s).

b.If the services availed of by a consumer suffer from any deficiency.

c.When the price paid by a consumer is in excess of the price displayed on the goods or when the price is in excess of the price fixed under any law in force.

d.Goods, which will be hazardous to life and safety, when used, are being offered for sale to the public in contravention of the provisions of any law.

e.An unfair or restrictive trade practice adopted by any trader or service provider.

8.What are the reliefs that a consumer can obtain?

The District Forum / State Commission can order the following reliefs:

a.to remove the defects in the goods pointed out;

b.to replace the goods;

c.to return to the complainant the price of the goods;

d.to pay such amount of compensation for the loss or injury suffered by the consumer;

e.to remove the defects or deficiency in the services;

f.to discontinue the unfair trade practice or not to repeat it;

g.to withdraw the hazardous goods from being offered for sale;

h.to provide the cost of expenditure incurred by the complainant.

9.How do the Consumer Protection proceedings work?

For the purpose of promoting and protecting interests of the consumer, the Consumer Protection Act, 1986 provides for several quasi-judicial bodies under a three-tier approach, namely the District Forum, The State Commission and The National Commission [under Sec. 9 to 18, 18-A, 19 to 23, 24-A, 24-, 25, 26 and 27]. These bodies are not the same as the normal civil courts as they constitute separate bodies giving remedies only related to consumer protection. Although they work on a similar basis observing the same principles of natural justice, are empowered enough to grant relief and whenever possible, impose penalties for not adhering to the orders of these bodies. These bodies were constituted with the objective of providing speedy redressal to consumer disputes. The complete act elaborates on important aspects such as jurisdiction, limitation,

compensation etc, as well as, defines the functioning of the Consumer Protection Councils [under Sec. 4, 5, 6, 7 and 8] and the importance of the Consumer Welfare Fund.

10.What are the procedures followed to file a complaint?

Before filing a complaint, a Legal Notice is to be served by any authorized lawyer on behalf of the client, or by the client himself to the opposite party, explicitly giving them the last opportunity to settle the matter before it reaches the court. Further, it communicates the intention of the complainant in clear terms to the opposite party and acts as a legal warning stating that if the matter is not resolved and the grievances of the consumer are not addressed within a specified period of time, the consumer would have no option other than moving proceedings before the consumer courts.

11. Can a minor file a suit under Consumer Protection Act, 1986?

Minor’s legal guardian or parents can file a case on behalf of him. For instance, if a minor was admitted in a hospital and his surgery went wrong then the minor’s parents can file a suit under Consumer Protection Act, 1986.

12. What is the time frame within which a complaint can be filed?

Section 24A of the Act provides that a consumer dispute can be filed within two years from the date on which the cause of action arises. This provision was inserted in the Act in 1993, before that the Consumer Forums were following the Limitation Act, 1963, which

says that a suit can be filed within three years after the cause of action arises.

The point of time when cause of action arises is an important factor in determining the time period available to file a complaint. There are no set rules to decide such time. It depends on the facts and circumstances of each case.

Examples :

1.A got his eye operated by B in 1989. He got a certificate of blindness on 18th December, 1989. He was still in hope of gaining his sight and went from second operation in 1992 and was discharged on 21-1-1992. He filed a complaint against B on 11-1- 1994. B opposed on the ground that more than 2 years were over after 18-12-1989, thus the complaint is not maintainable. The Commission held that here the cause of action for filing the complaint would arose after the second operation when A lost entire hope of recovery. Thus the suit is maintainable - Mukund Lal Ganguly v. Dr. Abhijit Ghosh III 1995 CPJ 64.

2.A house was allotted on 1-1-1999. Defects appeared in the house on 10-1-1999. Here the cause of action will arise on 10-1- 1999. It may be noted that these time frames are not absolute limita- tions. If the Consumer Forum is satisfied that there was sufficient cause for not filing the complaint within the prescribed period, it can entertain a complaint beyond limitation time. However the Forum must record the reasons for condonation of delay.

Example : A deposited some jewellery with a bank. Bank lost it. Bank kept giving her false sense of hope to retrieve the jewellery,

and thus A was put in a state of inaction. Later on when A filed a suit on the Bank, it claimed that the suit was not maintainable as the limitation time after the cause of action arose has lapsed. The Commission reprimanded the bank and admitted the case - Agnes D’Mello v. Canara Bank [1992] I CPJ 335 (NCDRC).

13. Are lawyers to be appointed to fight a suit filed in a Consumer Forum?

No. A person can represent himself in Consumer Courts. This is one reason why Consumer cases are not as expensive as other civil cases.

14. What is the functioning of District Forum? How is it different from other forums?

The Disputes Consumer Dispute Redressal Forum (DCDRF) functions at the district level and is formed by the State Government with the permission of the Central Government (Sec. 9). Sec. 11 of the act talks about the Jurisdiction of the district forum. Jurisdiction is basically the power of any court to hear and decide on matters, which means that the court can only entertain cases which fall under its jurisdiction. Jurisdiction is of two types in District Forums:

a.Pecuniary Jurisdiction;

b.Territorial Jurisdiction;

The monetary features or the financial value of claims for the goods and/or services are dealt under the Pecuniary Jurisdiction of all courts. Cases where the claim is of a value less than Rs. 20,00,000/-

(20 lakhs) can only be taken up in district forums. As for territorial jurisdiction, the district forum can hear matters where the opposite parties at the time of the complaint carry on business, reside, personally work for profit, or operate branches within the same geographical locations as that of the forum, or the area where the cause of action arises. Here cause of action means those events which have given the consumer the right to file a complaint before the dispute redressal agencies. Presently there are 604 district forums in the country.

15. What is the functioning of State Forum? How is it different from other forums?

State Forums are formally addressed as the State Consumer Disputes Redressal Commission (SCDRC). State Forums are established by the State Government with the consent of the Central Government [under sec. 9]. Three types of jurisdictions are dealt with in theses forums; pecuniary jurisdiction, territorial jurisdiction and appellate jurisdiction. The State Commission must redress all grievances with claims amounting to more than Rs. 20,00,000/- (20 lakhs) and up to Rs. 1,00,00,000 (one crore) as per pecuniary jurisdiction,. In a similar manner as District Forums, the State Commission exercises territorial jurisdiction within its local limits, where the complaint must be filed against the opposite parties or any of them who reside, carry on businesses directly or through branches, work for personal gain within those limits, or where the cause of action arises. The State Commission also has appellate jurisdiction to handle appeals

from the District forums or other lower courts within that particular state. Any person who is not contented with the orders of the District forum may appeal to the next appellate level of authority: the State Commission, within 30 days from the date when the order is communicated to the person. This 30-day period may be relaxed if sufficient cause for delay is provided. The commission also has revisional jurisdiction to call upon a matter, its records and decrees, if it feels that the district forum has failed to exercise its jurisdiction, or has exercised jurisdiction that it is not entitled to do. (Sec. 17).

The following checklist is important while filing an appeal:

a.Three sets of the brief (for the commission) and one copy for each of the opposite parties.

b.District forum order copy in original.

c.Case Summary.

d.Within 30 days from date of receipt of District Forum.

e.Condonation of delay petition (if 30 days are exceeded).

f.Memo of parties with address.

g.If advocate, Vakalatnama.

h.Pagination 1 to last.

i.Attach FDR Photocopy to appeal: In favor of Registrar, State Commission/ State Consumer Disputes Redressal Commission and should be drawn on a Nationalized Bank and should be for a Minimum period of 1 year.

j.Index containing

i.Memo of parties

ii.Appeal

iii.District Forum order original

iv.Condonation of delay with affidavit (after expiry of 30 days)

v.Annexures

vi.Vakalatnama

In any of the consumer courts, if an opposite party does not appear before the court for several continuous hearings, the court can order for the matter to be proceeded ex-parte (that is, with respect to or in interests of one side only) where, the opposite party loses its right to defend its case. But before this order is passed, the complainant is supposed to re-serve the notice by dasti, i.e. in person, to the opposite party. In certain exceptional circumstances, where a persuasive application is made by the opposite party in this regard, the ex-parte order can be set aside. This step might experience several disadvantages such as: a) Where the opposite party appears at a later stage the ex-parte order may be set aside b) Lack of any reply on behalf of opposite party, may make it difficult for the Complainant to prove his side c) The ex-parte decision may be appealed against, thereby further delaying the process.

16. What is the functioning of National Commission? How is it different from other forums?

The National Commission, known as the National Consumer Disputes Redressal Commission, was established in 1988 under Sec. 9 of the act, by the Central Government. The Pecuniary jurisdiction of the National Commission covers all complaints with claims exceeding the value of Rs. 1,00,00,000 (One crore). The commission has the appellate jurisdiction to entertain all appeals against the orders of the State Commission, and the revisional jurisdiction to look into matters of the State Commission on its own motion if it feels that the latter has illegally, irregularly or simply failed to exercise the vested jurisdiction (Sec. 21 and 22B). Sec. 23 allows a party aggrieved by the orders of the National Commission to appeal against such an order to the Supreme Court within a period of 30 days from the passing of the order.

No complaint can be entertained by any of the Forums beyond the limitation period of 2 years since the date on which the cause of action arose. However, delays can be condoned if the reasons provided by the complainant satisfy the bench. (Sec. 24A)

17.Whom should the consumers approach for help?

If consumers are unsatisfied with the service provided to them or the product that they have purchased, they may approach the seller first and try to resolve it with the seller. If the seller is a company or organization, they will have their own internal mechanism, and consumers may get a quicker remedy. If, however, consumers are not satisfied with their response, they can choose to approach the Consumer Court.

18. What is the procedure for the initiation of judicial proceedings and how much fee is to be paid?

Consumers can file complaints at District Forum, State Commission or National Commission. The suitable forum is decided on the basis of the value of the goods and/or services and the compensation claimed.

This procedure can be made easier with referral to the table given below:

Value of Goods or Services and				Amount of Fee payable (Pay by
the compensation claimed				Demand Draft drawn on a
				Nationalised Bank)

District Forum:
Upto Rs.1,00,000

For complaints who are under the				Nil
Below Poverty Line holding				( Produce an attested copy of
Antyodaya Anna Yojana cards.				Antyodaya Anna Yojana Card)
Antyodaya Anna Yojana cards.

For others				Rs.100.00

Above	Rs.1,00,000	and	upto	Rs.200.00
Rs.5,00,000.

Above	Rs.5,00,000	and	upto	Rs.400.00
Rs.10,00,000.

Above	Rs.10,00,000	and	upto	Rs.500.00
Rs.20,00,000.

State Commission:				Rs.2000.00

Above Rs.20,00,000 and	upto
Rs.50, 00,000

Above Rs.50,00,000 and upto		Rs.4000.00
Rs.100,00,000

National Commission:		Rs.5000.00
Above Rs.100,00,000

Once the level of the forum where the complaint has to be filed at has been decided, the place (which district, city etc.) where the complaint is to be filed has to be decided. The complaint is filed in that district forum where the cause of action arises. Cause of action refers to the facts which have caused one to file a complaint against the other party. One can also file the complaint at a place where the opposite party’s branch office is located.

For Example, Ramesh buys a bottle of cold drink in Udupi and finds a snail in it. The company also has a branch office at Bangalore. According to his convenience, Ramesh can file a complaint in either the Udupi or the Bangalore District Forum.

Similarly if a consumer is filing a complaint directly at the State Commission then he/she can do so at the respective State Commission. For filing a complaint at the National Commission, a consumer can do so either at the main office located in New Delhi or choose among the 11 circuit benches at various places according to consumers’ convenience.

19. What steps should be followed by a consumer while filing a complaint?

The Complaint is to be filed within two years from the date on which the cause of action has arisen. A complaint should contain the following information:-

a.The name, description and address of the complainant and the opposite parties.

b.The facts relating to complaint and when and where it arose.

c.Documents, if there are any, in support of the complaint.

d.The relief which the complainant is seeking.

The complaint should be signed by the complainant or his authorized agent and the complaint affidavit must be notarized.

One needs to make 4 copies for the court, and 1 copy for each opposite party. It is necessary to keep a copy of one’s complaint and all furnished documents for their own record.

The complaint copies are then to be submitted along with the court fee to the clerk in the Consumer Court. A date will then be assigned by the clerk, along with a reference number.

On that given date, the court will decide whether or not the aggrieved will be permitted to continue with the case (admission). If admitted, the consumer will be given another date, and the other party will be asked by the court to reply to the consumer’s complaint in 30 days.

In Consumer Protection disputes, one does not need a lawyer at any stage of the proceedings. Once the 30 days are over, the aggrieved party will be permitted to present their case before the Commission, and the other party will be permitted to present their defense.

At each hearing, the complainant will be told what to expect the next time. It is important to attend all hearings, as otherwise, the court will decide the matter by itself (ex-parte), and will not always take into account the consumer’s version of events.

The hearings will continue until the court gives its decision. Consumer shall receive a copy of the order.

If one is unhappy with the decision, he/she may appeal. An order from the District Forum is appealed to the State Commission (within 30 days), and an order from the State Commission is appealed to the National Commission. One must submit an ‘appeal memorandum’ outlining the reasons why they disagree with the order of the forum. There should be a certified copy of the order with the memorandum to be submitted while appealing in a higher bench.

If the opposite party does not comply with the order, one still has the option of filing an ‘Execution Petition’.

20. What services are covered under Consumer Protection act, 1986?

Section 2(1)(o) in the act defines service, the section includes services made available to potential users and mentions providing facilities in connection with banking, financing, insurance, transport,

processing, supply of electrical or other energy, board or loading or both, housing construction, entertainment, amusement or the purveying of news or other information as covered under the definition of service. What the section doesn’t cover is the services which are hired under a contract of personal service, this could for example include and the section further excludes services rendered free of charge, an example for this could be a case where medical service is rendered without any charge to all patients by a doctor.

While the section does mention a list of services it is not in any way exhaustive, examples could be Airlines, Chartered Accountants, Courier, Medical Services, Postal services, Telephone services, and an activity can be regarded as a service as long as three conditions are met:

a.The service should be made available to potential users: The word ‘any’ has been used in a wide context and the term ‘potential users’ indicate not only actual users but also those who are capable of using or availing the service in future.

b.As already mentioned the service should not be free of charge. The position is that where services are rendered free of charge to ‘everyone’, the Act does not apply. But if the fees are required to be paid by everybody, then the Act will apply.

c. It should not be under a contract of personal service. Generally, the expression ‘contract of personal service’ means a contract to render services in private capacity to individuals. In a situation like this, if an individual finds that the service rendered is deficient/not up to the mark then he has an option to discontinue services at any point and there is no need for resolving disputes. Also, under a contract of personal service the user of services can order what is to be done and how it is to be done very clearly.

NOTE: It does not make a difference if the service is provided by Government body or a Private Body.

21.Who is a consumer of services?

The term hire used in the act in this respect is generally understood to mean “procuring the use of” a service. An example could be a doctor prescribing medicines.

Not only this it includes beneficiaries of a service, i.e. to say people who might not have directly hired the service in question but are the ones using it/ benefiting from it given that they are doing so with the consent of the original hirer of service. There can be cases where the person might hire/ avail services for someone else. For example when a parent books air tickets for his kid, in case of a deficiency with regard to the service, the kid will be treated as a consumer.

22.What is deficiency in service?

Deficiency as stated in the act stands for fault, imperfection, shortcoming or inadequacy in the quality, nature or manner of performance that is required to be maintained.

If an individual books a vehicle and it has been promised to be delivered within a certain period of time and if it has not been delivered within that period, it is a deficiency of service, as it is a shortcoming, fault or inadequacy.

Also suppose for example if a builder contracts with a supplier for certain materials of a certain quality then any deficiency with that respect would come under the scope of the act.

Also the deficiency will have to be with regards to a service, that is the activity claimed to be deficient must come under the definition of service as mentioned already.

23.What kinds of medical services are covered under the act?

Not all kinds of medical services come under the scope of the act and there have been conditions laid down by the court with respect to this.

Firstly the service should not be free of charge for everyone. The moment a service is made free of charge for “everyone” it is excluded. The only difficulty that arises here is when a medical service, for example treatment in a hospital is made free for some while others are charged for the very same. This has been resolved by the court and it has held that where even few people who can afford to pay are charged for the services rendered such medical services would come under the act, notwithstanding that fact that

there are people to whom it is provided free of cost. This is not to say that the people availing it free in this case are not covered if there is a deficiency, such people are covered for it is deemed that the costs charged out of a set of people are used to provide services to even those who do not pay for it.

Secondly, contract of personal service includes employment of a medical practitioner and is outside the purview of ‘service’ as defined under the Act.

In the medical sector, a medical practitioner is expected to have a reasonable degree of skill and knowledge and a duty of reasonable care is owed to the patient. Since negligence cases are high in this sector, the patient, if he is a victim of negligence will have to prove beyond reasonable doubt. Mere allegations of negligence will not suffice.

24.Are banking services are covered under the act?

A bank customer is also regarded as consumer and can prefer complaints under the Act for any deficiency in service. A bank renders service by providing facilities to a consumer and charges interest and other charges for the same. Therefore, such facilities are regarded as service as per the Act.

25.Are insurance services are covered under the act?

In the Insurance sector, high levels of lack of consumer satisfaction are witnessed. This has come about because consumers make claims and the insurance company refuses them.

But because of the complexity of such matters consumer courts alone are not sufficient to handle such cases, so along with the consumer courts, Insurance Regulatory and Development Authority (IRDA) grievance cell, ombudsman and civil courts.

26.Do Railway services come under the act?

Railway services include providing facilities to the passengers for a smooth journey. Deficiency of Services in railways include: When goods and other valuable items are stolen, seats are not proper and cause discomfort to the traveling passengers, failure to provide water in the toilet etc.

Though Railways are guided by their own laws, the essential services that are provided fall under the Consumer Protection Act.

27.What is the position of the act on Legal services?

Hiring a lawyer to represent a person is not a service under the Consumer Protection Act, 1986 as lawyers render legal assistance and not service which in a case of default can be dealt by the Bar Council.

28.What are misleading advertisements?

Through advertisements, companies sometimes propagate false claims, characteristics or standards. Thereon, simply put, misleading advertisements are those which give ‘false’ or ‘deceptive’ information to the consumers.

Some examples would be: Puffery: Exaggeration through use of superlative or subjective words such as ‘best’, ‘favourite’, ‘trusted’, ‘Biggest’ etc., is allowed. But puffery at the at the cost of causing

loss or injury to the customers or other manufactures is not allowed, False claims and guarantees such as increase in height within 2 weeks, colleges misrepresenting to be affiliated to a particular university, claiming to give 25% extra buy reducing the initial quantity of the product, making claims based on false comparisons or tests etc.

29. Are misleading advertisements an unfair practice under the Act?

Misleading advertisements violate certain consumer rights like Right to safety, Right to information and Right to choice.

This is the reason that misleading advertisements are generally included under unfair practices in the Consumer Protection Act. The section speaks broadly of four categories:

a.False representation of facts about the product

b.False representation of warranty

c.False representation of price and

d.False or misleading facts about goods of another person

As already explained through its characteristics, a misleading ad would squarely fall within the scope of the act.

30.Does the Act protect consumers from misleading ads?

The Act protects consumers from misleading ads. Firstly, it is one of the objects of the act under Section 6 to protect consumers’ right to information and protect them against unfair trade practices. Further,

a consumer has the right to seek redressal against unfair trade practices by filling a complaint.

31. What are reliefs available against misleading ads to the consumer under the act?

The usual process and rules pertaining to a consumer complaint being filed under the Consumer Protection Act applies here as well. If after the proceedings have been carried out, it has been established that the advertisement was deceptive, then the consumer will be offered in form of relief, a refund of the price paid and award of compensation for loss or injury suffered by him. The opposite party may also be ordered to withdraw the goods from the market, to cease manufacture of such goods, to discontinue such unfair trade practice, or to refund litigation cost to the consumer.

Most importantly, under the act the Court has the power to order

“corrective advertisement to neutralize the effect of misleading advertisement at the cost of opposite party responsible for issuing such misleading advertisement” which means that the manufacturer might be asked to run corrective advertisements so that the consumers get to know the correct position and not the falsified one as claimed by a misleading advertisement.

For example, if the court finds that a shampoo that claims to prevent hair fall does not actually do so, it may order the manufacturer to run advertisements clarifying to the public that the shampoo does not prevent falling of hair, and that the earlier advertisement made a false claim. Thus, the Consumer Protection Act has redressal

mechanisms that can serve to have a deterrent effect on erring manufacturers.

32. How beneficial are the online website of state commissions etc.?

Some consumer forums like the Karnataka State Consumer Disputes Redressal Commission have a good online website which provides a whole lot of information about the rules, daily list of the court along with a provision to track the status of the case very easily. The only information required is the case number and the year of filing.

Also it provides a detailed list of the various District Forum with addresses and hence making the website a beneficial tool for consumers.

Sample Draft Complain Form

BEFORE THE HON’BLE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM AT……………..

BEFORE THE HON’BLE STTE CONSUMER DISPUTES REDRESSAL COMMISSION AT……………….

BEFORE THE HON’BLE NATONAL CONSUMER

DISPUTES REDRESSAL COMMISSION

AT NEW DELHI

IN RE: CONPLAINT NO……OF 20…….

IN THE MATTER OF:

(Full Name) (Description) (Complete Address)

……………Complainant

-Vs.-

(Full Name) (Description) (Complete Address)

…………….Opposite party/parties

Complaint under Section 12/Section 17/Section 21 of the consumer protection Act, 1986:

Respectfully showeth:

1.Introduction: In this opening paragraph, you should give your introduction as well as that of the opposite parties.

2.Transaction: In this paragraph, you should describe the transaction i.e. particulars and details of goods/services availed: items of goods/kind and nature of service, date of purchase of goods/availing of service, amount paid as price/ consideration, full of in part towards the goods/services, photocopies of the /cash memo/vouchers or receipt should be attached and properly marked as Annexure A, B, C AND/ or 1, 2, 3 and so forth.

3.Defect/Deficiency: In this paragraph, you should explain the grievance i.e. whether the loss or damage has been caused by some unfair trade practice or restrictive trade practice adopted by any trader or there is some defect in the goods or there has been deficiency in service or excessive pricing for the goods . One should bring out the nature of unfair trade practice adopted by the trader, i.e. relating to the quality of goods/services, sponsorship, warranty or guarantee for such period promised and so on. The nature and extent of defects in goods should be explained and you should specify the details of actual price fixed by or under any law in force at that point of time or as set out on goods and their packing vis-à-vis the price charged by the trader. The complaint can also be filed against offer for sale of goods hazardous to life and safety when used.

4.Rectification: In this paragraph, you should highlight what attempts you have made to set the things right i.e. personal visits or negotiations, communication in writing if any, whether any legal notice was served and/or whether you have approached any other agency for redressed like MRTP Commission, Civil or Criminal Court of competent jurisdiction. Mention the stages of

its proceedings and its outcome, along with copies (preferably certified) of such proceeding. The nature of response you got from the trader when irregularities were brought to his notice should also be disclosed here.

5.Evidence: In this paragraph, you should give details of documents and/ or witnesses you will rely upon to substantiate your case. The documents attached as annexure as stated above may be incorporated in a proper list and a list of witnesses (if any) may be filed. Each of the annexure should be attested as ‘true copy’.

6.Other provision: In this paragraph, you should make reference to any other law or rule regulation of a particular procedure which are applicable to the case and /or which the trader has violated and consumer’s rights under the same. There are incidental statutory obligations which the traders have to fulfill and in case of any failure to do so, the case in prime facie is made out and the forum takes cognizance.

7.Jurisdiction: In this paragraph , you should liquidate the claim in the complaint, i.e. state what amount you expect to recieve and set out the pecuniary jurisdiction of the Forum/state Commission/National Commission, as the case may be. The territorial jurisdiction should be highlighted to obviate any formal objection.

8.Limitation: You must mention the present complaint is being filed within the period prescribed under Section 24A of the Act.

9.Relief claimed: In this paragraph, you should describe the nature of relief you want to claim be it for removal of defects in goods

or deficiency in services, replacement with new goods, return of the price or charges, etc. paid and /or compensation on account of financial loss or injury detrimental to your interest occasioned by negligence of the opposite party and explain how you have calculated the amount of the compensation claimed.

10.Prayer clause: It is therefore, most respectfully prayed that this Hon’ble Forum/Commission may kindly be pleased to……………

(Details of relief’s which you want court to grant)

Place ………………….

Date…………………… Complainant (Signature)

Through (Advocate or Consumer

Association, etc.)

Verification

I, …………………….., the complainant above named , do hereby solemnly verify that the contents of my above complaint are true and correct to my knowledge . No part of it is false and nothing material has

been	concealed	therein.
Verified this	on………… day of ………..20……………at…………..

Complainant (Signature)

Note: Although it is not compulsory, you may file an affidavit in support of the complaint, which adds to the truth and veracity of allegations and gives credibility to the cause. You need not do it on a stamp paper but should get it attested from an Oath Commissioner appointed by a High Court. The format is simple.

----x----

FREQUENTLY ASKED QUESTIONS

BANKING

1.What is Banking, who is a Banker and who is a Customer?

Under the Banking Regulation Act of 1949, Banking refers to the accepting of money deposits from the public, repayable when demanded and withdrawals through cheques, Demand drafts, etc., for the purpose of lending and/or investment.

While not defined in any statute, it has been understood that a banker is one who indulges in and carries out the banking business, while the customer has been recognized as one who regularly deals in transactions with the bankers. This means that one who makes singular transactions with a bank may not be considered a customer.

2.What are the different types of banking services in India?

Firstly, Financial services can be divided into two types, namely Banking and Non-Banking services. Of these, the banking services offered in India can be categorized broadly as Central Banking Services, Commercial Banking Services, and Specialized Banking Services.

Central Banking Services are those which are provided by the Central Bank in the country, which is the Reserve Bank of India. It issues all currency and bank notes, performs the role of the treasury to the Government, manages all matters

relating to money and finances in the country, and essentially acts like the bank to the Government as well as every other bank in the country.

Commercial Banking Services are provided by most commercial banks, and include receiving deposits, giving loans, locker facilities, making direct payments like house rent, electricity bill, etc., for the customers, providing advice on investments or transfer of funds. Examples include ICICI, HDFC, etc.

Specialized Banking Services are provided by specific institutions defined for certain purposes. Examples include Industrial Banks which give long term industrial loans like SIDBI, Rural Credit Banks which grant rural credits like NABARD, Developmental Banks for Developmental purposes

like IDBI, etc.

These examples may not be limited to any particular functions, and many banks may overlap the categories.

3.What is an investment back?

An investment bank is one that creates capital for other companies. It gives advice on issue and allotment of securities to the issuers. It further assists in the sale of securities in certain circumstances. Investment banks also underwrite new debt and equity securities for various corporations.

4.What is a retail bank?

It is one that deals directly with retail customers, or more commonly known as consumers. The services provided include personal loans, mortgages, credit and debit cards as well as opening of accounts.

5.What are the general transactions that maybe entered into between banks and customers?

The main transactions can be broadly divided into three types – deposits, loans, and other services.

Deposits are where the public uses banks as a repository, or a way to store their excess/surplus funds and savings. Commercially, this is known as Personal (P) Segment or otherwise Savings Bank Accounts. Other than personal savings, there are also Fixed or Term Deposits and current accounts. Here, the bank is the debtor and the customer is the creditor.

Loans are also provided by banks for a variety of purposes such as housing, education, automobiles, business, etc. on fixed or fluctuating interests depending on the rates as set by the RBI, reserve situations, cash flow, etc. Here the customer is the debtor and the bank is the creditor.

Other miscellaneous services include collecting cheques and bills, both domestic and international, transferring of money or funds from one place to another both within the country and abroad, facilitating investments, stocks, trading, insurance facilities, credit & debit card facilities, locker facilities, etc.

6.What are the different types of bank accounts?

Fixed deposit account – this is a type of account wherein the depositor is expected to deposit a fixed sum of money in the account for a specific period of time which is determined by the depositor. However, in case of urgency the depositor can withdraw the money earlier on payment of a penalty.

Current account – these are mostly used by businessmen. The deposits in this account are the most liquid and any number of transactions can take place in a day. No interest is paid by banks on this account however banks levy service charges on such accounts.

Recurring deposit account – these are suitable for people who do not have lump sum savings but save a small amount every month. A person is expected to make a deposit every month and earns interest on the money deposited. Such accounts have a maturity date, a date after which the amount can be withdrawn. Penalties can be imposed for non-payment of a monthly deposit or early withdrawal of money.

Savings account – this is the most widely used type of account. The objective of such accounts is to promote savings; the withdrawals from the account are restricted. The bank pays the holder interest on his deposits.

7.What are the restrictions on possessing a savings bank account?

A customer can have a maximum of one savings bank account with each bank as per RBI rules. But he/she may have other deposits such as current accounts, fixed deposits, etc., with the bank. But the bank

cannot place other restrictions such as age limitations, place of residence, etc., since this would amount to unfair discrimination.

8.What is the interest given to the amount in your account?

The interest rate given by banks on the deposit differs from account to account and hence the interest rates depend on the kind of account opened.

9.How do you open an account?

As banks are required to follow the KYC (Know Your Customer) Norms, in addition to the account opening form available at the bank, interested persons are required to also provide details such as address proof, photo ID proof, an introduction of the person as well as 2 photographs.

10.What are joint accounts?

A joint account is a type of bank account that is held by more than one person. Each of the individuals sharing the joint account has the right to deposit as well as withdraw funds from the joint account.

11.What is a passbook?

It is a book issued by a bank to an account holder which shows the records of money deposited as well as withdrawn from the account along with the dates.

12.What are Pre-2005 currency notes? Why has the RBI decided to withdraw these notes?

The RBI issued currency notes in 2005 of different denominations which contain additional security features. All currency notes which were issued before 2005 are known as Pre-2005 notes. The RBI has decided to withdraw these notes from circulation in order to reduce

counterfeits (fake currency), which were mostly based on the Pre-2005 notes. Banks have also been barred from circulating these notes through ATMs or other withdrawals. But you can continue to exchange these notes till January 1, 2015. The RBI will be issuing guidelines for procedures to be followed after that.

13.What is a locker facility?

Lockers are a safety deposit facility provided by banks. Here, the belongings of persons are held safe keeping. Lockers can be hired by individuals, limited companies, associations and trusts. Lockers are available in various sizes and across different locations. They often have survivor/nomination clauses regarding who will have access to the locker upon death of the locker holder.

14.How do you subscribe to a locker facility?

Locker facility depends on the availability of lockers. If there are vacant lockers, a form needs to be filled in for the same along with a safety deposit to be paid by the interested person in addition to yearly rent. Further, the person wishing to open a locker facility is required to have a bank account in that bank.

15.Who is a nominee and why is he/she appointed?

All banks offer the facility of nomination. Any account/locker holder can apply for this benefit. A nominee is one who is appointed by the account/locker holder, as the person who can validly claim the proceeds of the deposit or the contents of a locker, after the death of the original account/locker holder. Generally anyone can be nominated as per the choice of the holder. In most cases, only one nominee can be appointed per account. All you need to do to appoint a nominee is to fill out a

form readily available at the respective banks, which will necessarily provide assistance from thereon.

16.What is a negotiable instrument?

It is a document which guarantees the payment of a sum of money either on demand or a specified time. The holder of the instrument will get paid by the payer on the instrument. Negotiable instruments include promissory notes, bills of exchange and cheques.

17.What is a demand draft?

It is a method used by persons to transfer money from one bank account to another. A demand draft is an instrument wherein the bank by whom the demand draft is made undertakes to make payment wherever the instrument is presented for payment. However, it is not mandatory that you should have a bank account in the bank from where you are preparing the demand draft.

18.What is a cheque?

A cheque is a document which provides for the payment of money from a bank account. The person writing the cheque, the drawer, has an account where the money is kept. The drawer writes the amount to be paid, the person to be paid, date and signs the cheque and orders his bank to pay the person named in the cheque.

19.What is an outstation cheque?

An outstation cheque is one which has been drawn on a non-local branch (branch not within the registered city of the customer). The process of collecting an outstation cheque through local clearing is

called Speed Clearing. Till recently, once they were deposited by the customer to the local branch called the presenting branch these cheques had to be sent back to the city where the cheque is payable called the collecting branch after which the amount would be authorised and remitted to the presenting branch and credited to the customer’s account. This used to take up a lot of time, which is why the RBI came up with the process of speed clearing. Through this method, banks have implemented the CBS – Core Banking Solutions System which allows for easy payment of cheques at any location without having to be physically moved back and forth different branches.

20.What is the difference between a credit and debit card?

When you use a credit card, you ask the bank to lend you the money needed but promise to repay in a month when you receive your credit card bill. However, you can also enter into a standard instructions agreement with the bank wherein you can permit the bank to deduct the credit card amount from your account directly at the end of every month. Whereas in a debit card, the money is withdrawn directly from your bank account from your existing funds.

21.How do you get a debit card?

You can get a debit card when you open an account with the bank and opt for a debit card. You can also subsequently apply for a debit card whenever required.

22.What is an ATM? What are its uses?

An ATM, or an Automated Teller Machine, is a computerized machine which enables customers to easily access their deposits whenever necessary without actually going to a bank. Any sort of card can be

used at an ATM, including Debit Cards, Prepaid Cards and Credit Cards (in certain cases where they are permitted). The basic function of any ATM is to make cash readily available to the customer. Other services include providing account information including balance statement, payment of bills, loan enquiries, etc.

23.How does one make a transaction at an ATM?

In order to use an ATM, you need to insert/swipe your card in the specified slot and enter your Personal Identification Number (PIN), which will initially be provided by the bank and will have to be changed on the first use. Most banks set a limit on how much you can withdraw in one day, which will be informed to you when the card is issued. Your card can be used at any an ATM of any bank (not necessarily the same as that of your account) without charges applicable because of RBI’s ‘Free ATM Access Policy’. But some banks may set a maximum number of transactions (5) beyond which charges up to Rs. 20/- may be applicable.

24.What are the different safety measures to be implemented while making an ATM transaction?

If your card gets lost/sucked into the ATM or you forget your PIN, you can contact the bank branch which issued your card and apply for retrieving the PIN or for a new card.

Memorize your PIN and never written it down especially on your card because it can be misused if it gets lost.

Don’t let anyone peep into your counter while making the transaction and cover the keyboard while typing your PIN.

Make sure to inform the branch which issued your card as soon as you notice its loss, so that the bank can block it immediately.

In case you are unable to get the cash out of the ATM but the account has bee debited for that amount, a complaint must be lodged immediately. The bank should re-credit the amount within a maximum period of 12 working days as per RBI rules beyond which customers can claim compensation.

25.What is net banking?

Net banking is a system which permits the customers of a financial institution to make financial transactions on a secured website which is operated by the financial institution.

26.Who is the Banking Ombudsman?

The Banking Ombudsman scheme was introduced by the RBI under Sec.35A of the Banking Regulation Act, 1949, for the purpose of creating speedy and inexpensive forum (a quasi judicial authority) where bank customers can file complaints with respect to services rendered by the bank. The Banking Ombudsman is a senior official appointed by the RBI for the purposes of redressing complaints of deficiency in banking services. As on date 15 ombudsmen have been appointed located mostly at state capitals. All commercial banks, regional rural banks, cooperative banks, etc., are covered under this scheme.

27.On what grounds can a customer file complaints before the Banking Ombudsman?

The following complaints may be received and considered by the ombudsman relating to deficiencies in Banking services:

non-payment or inordinate delay in the payment or collection of cheques, drafts, bills etc.;

non-acceptance, without sufficient cause, of small denomination notes tendered for any purpose, and for charging of commission in respect thereof;

non-acceptance, without sufficient cause, of coins tendered and for charging of commission in respect thereof;

non-payment or delay in payment of inward remittances ;

failure to issue or delay in issue of drafts, pay orders or bankers’ cheques;

non-adherence to prescribed working hours ;

failure to provide or delay in providing a banking facility (other than loans and advances) promised in writing by a bank or its direct selling agents;

delays, non-credit of proceeds to parties accounts, non- payment of deposit or non-observance of the Reserve Bank directives, if any, applicable to rate of interest on deposits in any savings, current or other accounts maintained with a bank ;

complaints from Non-Resident Indians having accounts in India in relation to their remittances from abroad, deposits and other bank-related matters;

refusal to open deposit accounts without any valid reason for refusal;

levying of charges without adequate prior notice to the customer;

non-adherence by the bank or its subsidiaries to the instructions of Reserve Bank on ATM/Debit card operations or credit card operations;

non-disbursement or delay in disbursement of pension (to the extent the grievance can be attributed to the action on the part of the bank concerned, but not with regard to its employees);

refusal to accept or delay in accepting payment towards taxes, as required by Reserve Bank/Government;

refusal to issue or delay in issuing, or failure to service or delay in servicing or redemption of Government securities;

forced closure of deposit accounts without due notice or without sufficient reason;

refusal to close or delay in closing the accounts;

non-adherence to the fair practices code as adopted by the bank or non-adherence to the provisions of the Code of Bank s Commitments to Customers issued by Banking Codes and Standards Board of India and as adopted by the bank ;

non-observance of Reserve Bank guidelines on engagement of recovery agents by banks; and

any other matter relating to the violation of the directives issued by the Reserve Bank in relation to banking or other services.

A customer can also lodge a complaint on the following grounds of deficiency in service with respect to loans and advances

non-observance of Reserve Bank Directives on interest rates;

delays in sanction, disbursement or non-observance of prescribed time schedule for disposal of loan applications;

non-acceptance of application for loans without furnishing valid reasons to the applicant; and

non-adherence to the provisions of the fair practices code for lenders as adopted by the bank or Code of Bank’s Commitment to Customers, as the case may be;

non-observance of any other direction or instruction of the Reserve Bank as may be specified by the Reserve Bank for

this purpose from time to time.

The Banking Ombudsman may also deal with such other matter as may be specified by the Reserve Bank from time to time.

28.When can a complaint be filed before the Ombudsman? Does it have to be necessarily considered?

A complaint can be filed only if no reply has been received from the bank within one month from the date of representation firstly made by the customer to the bank, or if the bank rejects the said representation. The Ombudsman need not accept a complaint if:

You have not approached your bank for redressal of your grievance first.

You have not made the complaint within one year from

the date of reply/rejection by your bank or one and half years

from the date of representation to the bank if you have not received any reply.

The subject matter of the complaint is pending for disposal / has already been dealt with at any other forum like court of law, consumer court etc.

If your complaint is frivolous or vexatious.

The institution complained against is not covered under the scheme that is in dispute.

The subject matter of the complaint is not within the ambit of the Banking Ombudsman.

If the complaint is for the same subject matter that was settled through the office of the Banking Ombudsman in any previous proceedings.

29.What is the procedure for lodging a complaint before the Ombudsman?

A complaint can be filed before the ombudsman simply by writing it out on plain paper. It then needs to be lodged at the office of the ombudsman under whose jurisdiction the concerned bank branch is locate details of which have been provided in the website. It can also be filed online on

http://rbi.org.in/commonman/English/Scripts/AgainstBank.aspx or by sending an email to the banking ombudsman in the format given in the website but it is not compulsory to file it in that method.

30.What can you claim from the ombudsman? Is the decision of the Ombudsman final?

You can claim compensation for your grievances. But there is a limit on the amount, which must not exceed Rs. 10 lakhs or the amount directly arising out of the act or omission of the bank whichever is lower. Compensation up to Rs. 1 Lakh may be claimed for mental agony and harassment as well.

Generally the ombudsman uses out of court settlement including mediation and negotiation to arrive at an agreement between the parties. But if agreement is not achieved the ombudsman may pass a further award. It is up to the customer to accept this award or to reject it. If not satisfied, you can approach the appellate authority against the Banking Ombudsmen’s decision, who is the Deputy Governor of the RBI. This appeal must be filed within 30 days of receiving the award. If this period is extended, sufficient reasons must be provided to the ombudsman explaining this delay. You can also explore any other recourse available to you as per the law such as the Consumer Courts, civil suits, etc.

31.How can a company get a loan?

An already existing company can get a loan from the bank upon the satisfaction of the bank on seeing the company’s balance sheet, the type of company and the directors. A new company which is yet to be established can get a loan from the bank depending on who the directors of the company are.

32.What is the procedure for an education loan?

In order to get an education loan you must show proof of the admission confirmation as well as the fee structure of the course. Further, you can only get an education loan from your place of domicile. Up to an amount of rupees four lakhs no collateral is required, however if the education loan amount is above rupees four lakhs, a collateral is required.

33. What is the procedure for a house loan?

IN ORDER TO GET A HOUSE LOAN, YOU NEED TO SHOW A COPY OF THE LAND RECORDS, YOUR INCOME TAX RETURNS FOR THE PAST THREE YEARS AND YOUR SALARY CERTIFICATE FOR THE PAST SIX MONTHS. FURTHER, IF YOU ARE A BUSINESSMAN YOU ARE REQUIRED TO PRODUCE A COPY OF YOUR BALANCE SHEET.

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FREQUENTLY ASKED QUESTIONS

PROPERTY

1.What is a Joint Hindu Family/Hindu Undivided Family as per

the law?

A join Hindu Family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters.

2.The Joint Hindu Family Property?

Property inherited by a Hindu from his father, father’s father or father’s father’s father is Joint Hindu Family Property. If the property is self-acquired or inherited from any other relative, it is no more Joint Family Property.

3.What is a Coparcenary? and who all are Coparceners ?

A co-parcenary is one who acquires an interest in Hindu Joint Family property by birth. These are sons, grandsons and great grandsons of the holder of the property. From 2005 onwards, daughters of co-parceners were also included to be co-parceners along with the sons of the co-parceners.

4. What do we mean by daughters being coparceners as well ?

According to the 2005 law, daughters are also made co-parcener, which means that they also have an interest in the Hindu Joint Family property by birth. She is treated on par with sons when it comes to interest in Joint Family property.

5.Who can seek a partition ?

Any co-parcener can, at any time, ask for partition. However, if only one of the co-parcener wants partition, the other members continue being a join Hindu family.

6.What is the difference between self-acquired & ancestral properties ?

Property inherited by a Hindu from his father, father’s father or father’s father’s father, is ancestral property. Property inherited from any other relative or self-acquired property is called separate property. The essential feature of ancestral property is that if the person inheriting it has sons, grandsons or great grandsons, they become co-parceners with him by birth.

7.Who is a karta ? What are his rights & obligations ?

The senior most male member is called Karta. Karta His function is to manage the joint family property. Karta has many powers and obligations with respect to management and representation of the Joint Family property. Karta can also alienate the property if there is any legal necessity or for the benefit of estate.

8.What is sale of property?

Sale of property is when the ownership of the property is transferred in return of a price. Price may be paid or promised to be paid in entirety or partly.

The property is said to be delivered only when the seller gives the possession of the said property to the buyer or any other person specified by the buyer.

9.What do you mean by conveyance?

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The legal process of transferring property from one person to another is conveyance.

10.Is it necessary to get the sale of any immovable property registered?

In case of tangible immovable property, if a sale is worth more than hundred rupees, it must be registered by following the right procedure and if it is worth less than hundred rupees, registration is left to the discretion of the parties. In case it is an intangible property, registration is a must.

11.What is meant by contract for sale?

A contract for sale is an agreement where the parties agree that the sale of any property shall take place in accordance with the terms and conditions of that contract.

12.What is encumbrance on a property?

An encumbrance is a right to,	interest in, or legal liability on real
property that does not prohibit	passing title to the property but it
diminishes its value.

13.What are the rights of a buyer?

The buyer has a right to examine and therefore MUST examine all the documents of title relating to the property which the seller possesses. The buyer can also seek answers to all the relevant questions with respect to the property in question.

14.What if there are material defects in the property which the buyer could not have discovered with ordinary care?

As per the law of property, the seller is bound to disclose any material defect in the property or title that the buyer is not aware of

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or cannot discover with ordinary care. The seller must however himself be informed of such defect in the property or title of such property.

15.When can the buyer claim the possession of property?

Once the buyer makes payment as per the price fixed or fulfills the obligation as stipulated in the sale contract, the buyer can tender a request for possession and the seller must execute a proper conveyance at a proper time and place. The seller has to also provide the buyer with the documents relating to title of property that he within his powers to provide. If the whole of property is sold to many buyers, then the buyer that has the greatest value in the property gets to keep such documents. The seller/buyer having greatest value is expected to keep the documents safe and uncancelled and furnish the same on a reasonable request from other buyers. The seller/buyer having the greatest value in the property will be exempted of liability if the said documents are destroyed due to fire or any inevitable accident.

16.What are the duties of the seller from the date of contract for sale and before the delivery of property?

The seller must between the date of the contract of sale and the delivery of the property, take as much care of the property and all documents of title relating thereto which are in his possession as an owner of ordinary prudence would take of such property and documents. The seller is also bound to pay all the rent and other charges of any kind like encumbrances on such property up to the date of the sale. However, if the property is sold subject to encumbrances then the seller is bound to discharge the same.

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17.What rights is the seller deemed to have when the seller professes to transfer the property to the buyer?

The seller is deemed to have accepted the fact that the interest which the seller professes to transfer actually subsists and he has the power to transfer that interest. However, if the property is transferred to the buyer not by the seller but by a person in whom the seller has placed complete confidence with regards the transaction (fiduciary relationship), then that person is deemed to have contracted with the buyer that the seller has not done any act to stop him from making such a transfer and that the property is not encumbered.

18.What are the most important things a buyer must carefully examine while purchasing a property?

The buyer must examine the original documents of the property in question. The buyer must ensure that the property is free from all encumbrances and get a certificate registered in this regard from the office of the sub-registry. The buyer must examine the documents related to power of attorney (POA) if applicable and ensure that the POA was in force during the signing of the sale deed. The buyer must ensure that the seller actually has the right to transfer the property and therefore must figure out the means by which the seller has acquired the property. The said transaction of sale must not be against public policy. It is mentioned under Section 22A of the Registration Act, 1908. If it is so, the document would not be registered. The buyer must ensure that the property is free from all kinds of disputes and litigations. If the property to be purchased was declared to be Scheduled area then the requisite permission from the

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government authorities must be obtained before any sale deed is executed.

19.What is property registration?

Property registration refers to registration for the purpose of documenting changes in ownership and transactions regarding immovable property with the appropriate authority.

20.Why should property be registered?

Registration of property results in you becoming the lawful owner of the property, with complete responsibility of it. It helps in dispute redressal and mitigation of any chances of fraud. Further, registration of property is compulsory under section 17 of the Indian Registration Act, 1908.

21.Who can submit the document for registration?

A deed can be submitted for registration by any of the parties, claiming or executing. However, the executing party must be present at the time of the signing or execution of the deed.

22.Who should be contacted for property registration?

The Sub-Registrar’s office, which has jurisdiction over the property, should be contacted. Otherwise the District Registrar of your district can also be approached. In Bangalore Urban district, you can get in touch with the Office of the Inspector General of Registration.

23. What are the timings during which registration can be done?

Registration can be done at all times when the office of the Registrars and Sub-registrars is open. Sub-Registrars can stop accepting the documents one hour before closing time if he has sufficient work with the documents already submitted. In cases of

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emergency, documents can be submitted on the payment of a fee one hour before sunrise, one hour after sunset and on holidays.

24.Apart from documents, what else is required?

Two passport-sized photographs of the person submitting the document are required.

25.What is the time period, if any, within which registration must be done?

Documents must be registered within a period of four months after execution (signatures) is done. If the signing or execution is done outside India, the four months are counted from the date the receipt reaches India.

Registration can be done even after four months by paying a penalty equal to maximum ten times the registration fees but only if the District Registrar gives permission. Sub- Registrar can accept the document within eight months. But it cannot be submitted for registration after that. This is explained in Section 52 of the Karnataka Registration Rules, 1965.

26.Which language is deemed as commonly used in Bangalore registration office?

Kannada and English.

27.What if the document is in a language that the Registering Officer can’t understand?

In such a case, you are required to sign and submit a translated copy along with the original document. The translated copy should be in Kannada or English.

28.Which stamp should be attached?

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If the executant, that is the person signing, is in doubt about which stamp to attach, he can consult the Registering Officer but authentic opinion can be acquired by applying to the Deputy Commissioner under section 31 of the Indian Stamp Act, 1899 or the Karnataka Stamp Act, 1957.

29.Who all are exempt from appearing personally in Court?

Section 59 of the Karnataka Registration Rules deals with this issue. Women who cannot be made to appear in public according to the customs and manners of India and persons of rank especially exempted by the Government.

30.Can a submitted document be withdrawn?

It is upon the discretion of the registering officer to permit for withdrawal of the document before the completion of the registration process. A written request has to be made by the party, which had submitted the document. A maximum amount equal to fifty percent of the registration fee is refundable, depending on other expenses like stamp duty, etc.

31.How can property be registered online?

An application needs to be downloaded online or obtained from the concerned authority, usually the Sub- Registrar of the area. After verification of details, the deed gets drawn and registration is done. This is called the computerized Land and Property Registration system.

32. SWhatECTIONif49the OFpropertyTHE INDIANis not, RregisteredEGISTRATIONatAall?CT STATES, THAT IF THE PROPERTY IS NOT REGISTERED THEN ACCORDING TO LAW YOU DO NOT HAVE

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ANY TRANSACTION RIGHTS.OVER IT. YOU WILL NOT BE RECOGNIZED EVEN AS THE OWNER OF THE PROPERTY

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FREQUENTLY ASKED QUESTIONS

RIGHT TO EDUCATION

1.What is the Right to Education Act?

The Right to Education Act, passed Sin 2009, mandates free and compulsory elementary education for all the children between the ages of 6 to 14.

2.When did the Act come into effect and how will it be implemented

States?

The Act has come into effect from 1st of April, 2010 across India except in the state of Jammu & Kashmir. All states and Union Territories have notified their RTE Rules.

3.How is child defined in the Act?

The term ‘child’ in the Act means a child in the age group of 6-14 years.

4.What is meant by ‘Free and Compulsory Elementary Education’?

The Act provides that all children between the age of 6-14 shall have the right to free and compulsory elementary education at a neighbourhood school.

It lies down that there must be no direct costs (eg” school fees) or indirect costs (eg: textbook, uniform etc.) that hindering the child from obtaining elementary education. Free-of-cost schooling must be provided by the government till the child completes her elementary education up till the age of 14 years of age.

5.Is the RTE applicable to all schools?

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The Right to Education (RTE) Act applies to schools as defined in Section 2(n) of the Act, which includes schools established by government or under government ownership or control, wholly or partly government aided schools, schools belonging to specified categories or completely unaided schools.

There are two exceptions to the above definition of a ‘school’ under the Act. First, the Act does not apply to ‘Madrasas, Vedic Pathsalas and education institutions primarily imparting religious instruction’. Second, the Supreme Court, in Society for Unaided Private Schools in Rajasthan v. Union of India, has clearly ruled that in addition to the above category of institutions, the RTE does not apply to unaided minority schools, which are protected by the fundamental right to establish and administer educational institution of their choice.

6.What is a minority educational institution for the purpose of the RTE?

The National Commission for Minority Educational Institutions (NCMEI) Act, 2004 defines ‘minority’, for the purposes of the Act, as a community notified as such by the Central Government and ‘minority educational institution’ as a college or educational institution established and administered by a minority or minorities. A minority educational institution may be granted such a status and a minority status certificate by an authority under either a state government or the Central Government, depending on the nature of the statute under which it was established or recognised or in which state’s jurisdiction it was set up.

Thus, a minority community is granted such a status by the Central Government, and a minority educational institution receives recognition

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as such by either a state or the Central government, as appropriate. The parameters for recognising minority educational institutions may vary. The Karnataka government, by Circular dated 24 July 2012, notified that for an educational institution to be recognised as a minority institution, the management board of the institution is to be registered under the Societies Registration Act, and at least 75% students in the academic year are required to be from the same minority community.

7.What is a minority for the purpose of a minority educational institution under the RTE?

As understood from the above, the recognition of minority educational institutions hinges on the understanding of a minority community. There is no clear legal definition of ‘minority’, though several court decisions have interpreted the term and laid down parameters for determining if a community is a minority, entitled to the fundamental right to establish educational institutions.

The Supreme Court has held that to claim the right under Article 30, a community must show that it is a religious or linguistic minority and that it established the educational institution. The minority community must both establish and administer the institution. Quantitatively, the minority status of a community is decided with reference to a particular state. Classifying certain communities as minorities is essentially a political act; the legal interpretation on this issue is fairly literal rather than purposive, emphasising largely on non-quantitative factors such as religion and language.

Undoubtedly, several schools in the country recognised as minority educational institutions today, would fail the test for recognition set out

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by the government of Karnataka. However, some criteria are certainly necessary to check misuse and abuse of the rights accorded to unaided minority educational institutions. It is difficult to assert whether such criteria for recognising an unaided minority educational institution are the most legally viable options, or in fact, what are indeed the best legal options, while trying to balance successful implementation of the RTE Act with protection of fundamental rights of minorities as enshrined in the Constitution.

8.What are the four types of schools that the RTE is applicable to?

The RTE is applicable to four types of schools, namely a government school that is established, owned or controlled by appropriate government or a local authority, a school aided by the appropriate government or local authority to meet whole or part of its expenses, a school belonging to a specified category and a private unaided school that receives no aid whatsoever to meet its expenses from the appropriate government or local authority.

9.What is understood by a government school that is established, owned or controlled by appropriate government or a local authority?

A government school that is established, owned or controlled by appropriate government or a local authority is completely dependent on the state or the agencies of the state. An appropriate government is the Central government for a school established, owned or controlled by the same or the administrator of the Union territory having no legislature, the State Government for a school established within the territory of a State and the Government of the Union territory within whose territory the school is established. A local authority is an

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authority having administrative control over the school. The state government designates an appropriate body or authority as "local authority" through notifications.

10.What are the duties of an appropriate government?

The Act prescribes the following duties for the Appropriate Government:

1.To provide free and compulsory elementary education to all children in the age group of 6-14 years;

2.To ensure availability of a neighbourhood school with requisite infrastructure, teachers, and learning equipment as specified in the Act;

3.To ensure admission, attendance and completion of elementary education for every child;

4.To ensure that children belonging to disadvantaged or weaker section are not discriminated against and prevented from pursuing or completing elementary education on any ground;

5.To provide special training facilities to out-of-school children admitted to age appropriate class;

6.To provide training facility for teachers;

7.To ensure timely prescribing of curriculum and course of studies;

8.To ensure quality education conforming to standards specified in the Schedule of the Act

11.What is a specified category school?

A specified category school refers to schools that are Kendriya Vidyalayas, Navodaya Vidyalayas, Sainik Schools or any other school having a distinct character which may be specified, by notification, by the appropriate Government.

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12.How does the RTE mandate for free and compulsory elementary education for all children between the age of 6-14 years of age in a completely aided government school?

The RTE provides that all completely aided government schools are to provide free and compulsory education to all children between the ages of 6-14 years of age.

13.How does the RTE mandate for free and compulsory elementary education for all children between the age of 6-14 years of age in a partially aided government school?

The RTE provides that all partially aided government schools are responsible provide free and compulsory education to the proportion of students admitted that is equivalent to the proportion of the annual aid or grants form a part of its annual expenses with a minimum of 25%.

14.How does the RTE mandate for free and compulsory elementary education for all children between the age of 6-14 years of age in a specified category school and in a private unaided school?

The RTE provides that all specified category schools and all private unaided schools are to provide free and compulsory elementary education to a minimum of 25% of students belonging to the weaker section or the disadvantaged group in the neighbourhood in each class admitted at the entry level, and to continue to extend this education until its completion.

15.Which children are eligible to apply for the 25% reservation seats?

A student belonging to a weaker section or a disadvantaged group can apply for the 25 reservation in seats. A child belonging to disadvantaged group refers to a child belonging to the Scheduled caste, the Scheduled Tribe, the socially and educationally backward class or such other

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group having disadvantage owing to social, cultural, economic, and geographical, linguistic, gender or such other factor, as may be specified by the appropriate Government, by notification. However, a child belonging to weaker section refers to a child belonging to such parent or guardian whose annual income is lower than the minimum limit specified by the appropriate Government, by notification.

16.What is meant by a neighbourhood school?

A ‘neighbourhood school’ refers to the nearest primary/upper primary school within walking distance from the child’s residence.

The Act provides that all children between the age of 6-14 years should receive free and compulsory elementary education at a neighbourhood school. The Model Right to Education Act Rules 2010, define the limits of neighbourhood schools as a 1 km walking distance from the habitation of a child at the primary level (class 1 to 5) and within a 3km walking distance for the upper primary level (class 6 to 8). It is the duty of the Government to ensure availability of a neighbourhood school for all children within 3 years of the implementation of the Act.

17.Would special schools that are run by NGOs qualify as legal schools under the Act?

Yes, provided that they attain the norms and standards as defined in the Act, within three years of notification of the Act.

18.How will the 25% quota for EWS/Disadvantaged be administered? How will the private schools be paid by the Governments?

All the states have to determine the per-child cost and notify the same to the government. All the private schools will reimburse the fees by the state government on a per-child basis. However, the schools will not

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receive any reimbursement if it already obliged by a separate Memorandum of Understanding to give admission to a pre-determined number of children. No reimbursement will be provided for the percentage of children covered under that MoU.

19.Does the Act imply that private schools cannot charge fees?

No. Private schools and schools in the specified category can continue to charge fees as before. However, they are required to admit in their incoming class, at least 25% children from disadvantaged and weaker sections of the society, without charging any fees.

20.Who prescribes and supervises the curriculum and evaluation systems at the state level?

The state governments shall have to specify academic authorities that will lay down curriculum and evaluation procedures at the state level. These could be SCERTs or other academic institutions of the state. The state curriculums must however be prepared according to certain common principles of content and process described in Section 29(2) of the Act and should encompass the all-round development of the child, conform with values enshrined in the Constitution and build up the child’s physical and mental abilities, as well as talent, knowledge and potentiality.

21.Does the Act mandate a national curriculum framework?

Yes, under Section 7(6a) of the Act, the central government has to develop a framework of national curriculum with the help of academic authorities of state governments. Moreover, the Central Government also has to develop and enforce standards for training of teachers and provide technical support and resources to the State Governments.

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22.If a 13 year old child wants to join a school, will she be asked to leave in one year when she attains 14 years of age?

No, the aim of the Ac is to guarantee the completion of elementary education. Therefore, even if the child has attained 14 years of age but has still not completed class 8, she can study till she completes class 8, irrespective of her age

23.How will a child, who was previously out of school, but now enrolled in one, cope up with the studies?

It is the responsibility of the school to provide the child with special remedial classes after enrolling her in an age-appropriate class. The remedial classes could continue from 3 months to 2 years.

24.Is it true that no child can be expelled or failed?

No school, governmental or private, can detain (fail) or expel any child at the elementary stage i.e. upto class 8.

25.If the village school goes only upto the primary level, what happens to education beyond that?

According to the Act, a child has the right to seek transfer to any school (apart from private unaided schools and the special category schools mentioned in the Act) for completing elementary education. It is the responsibility of the local authority to ensure that the child (and in fact all children of the primary school) is seamlessly transferred to the nearest upper primary school in time. Alternatively, the primary school can upgrade its facilities to the upper primary level.

26.What is the remedy available if the teacher remains absent or does

not teach properly?

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Section 24(2) provides for disciplinary action that can be taken against the teacher. Before taking any such action the opportunity to a hearing must be provided to the teacher. Moreover, section 18 (2) of the Model Rules provides for the accountability of teachers to the School Management Committees.

27.Is private tuition banned for all teachers?

Yes, the Act bans private tuition for teachers working in government or private elementary schools. However, the ban under the Act doesn’t apply to teachers in secondary school. Nevertheless, there are generally laws and service conditions at the state level which disallow private tuitions for secondary school teachers that will continue to be valid.

28.How are School Management Committees formed?

The detailed procedure for the formation of SMCs is outlined in respective State RTE Rules. Broadly, 75% members of the SMC shall be parents of children studying in the school, 50% of the total members women and that the Chair and Vice Chairpersons should be from amongst the parents. Also, it should meet at least once a month; the minutes of its meetings should be made public and so on

29.Are all schools required to have a School Management Committee?

Yes, all schools-government, government-aided and special category, must constitutive a School Management Committee, according to Section 21 of the Act/ However, private schools are excluded from Section 21 as it is already compulsory for them to have a management committee on the basis of trust/society registrations.

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30.What is a teacher under the Act?

The definition of a teacher is given in Section 23(1).

An academic institution of the central government shall prescribe teacher qualifications that all teachers of the country must have within five years. This will include both the academic and professional qualifications. The central government has already notified that the National Council for Teacher Education shall prescribe teacher qualifications. A broader committee under MHRD has already sent its suggestions to the NCTE regarding the new teacher qualifications.

31.Is it permissible for the teachers to engage in non-academic work, according to the Act?

The Act has banned all non-academic work by teachers, except those related to elections, decennial census and disaster related tasks as per the notification by the Central Government. Since decennial census and disaster-related tasks are not so frequent, the Ministry of Human Resource Development (MHRD), Govt. of India has notified guidelines for the deployment of teachers for the purpose of elections and mentions the following duties of teachers relating to the conduct of

election.

- Deployment on the days of poll and counting.

-Attending the training and collection of election materials for such deployment

The guidelines mention that all other duties relating to electoral roll revision will be undertaken during holidays or during non-teaching hours or non-teaching days.

32. Is the ‘screening’ procedure banned by the Act?

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Screening process is the name given to any test/interview/interaction of either the children or parents to determine the admission of one child over another. It is prohibited by Section 2(o) along with Section 13(2)

(b) of the Act, even at the elementary level. It provides for using only random procedures to admit a child. This applies to all schools, private or special category schools like Navodaya schools too. A random procedure implies the use of open lottery.

33.What is the redressal mechanism available if RTE is violated?

The National Commission for the Protection of Child Rights has the authority to evaluate the safeguards for rights that have been provided by the Act. It is also vested with the power to investigate complaints and act like a civil court to try cases.

The States were required to constitute a State Commission for the Protection of Child Rights (SCPCR) or the Right to Education Protection Authority (REPA) within six months of 1 April, 2010. Any grievances have to be submitted to these local authorities. The SCPR/REPA has the power to decide on appeals. However, the prosecution of offences can take place after it has been sanctioned by an officer authorised by either State or Central Government.

34.Is the state government exempted from reimbursing private unaided schools that provide for a reservation quota at the pre- primary stage as well?

Under Sec. 12(1)(c) of the RTE, private unaided institutions are mandated to provide free and compulsory education to children that belong to weaker sections ( as under Sec. 2(e) of the Act) and to

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disadvantaged groups (as under Sec. 2(d) of the Act) where they must comprise of the 25% of the class when given admission at the entry level i.e. Class 1. The proviso to Sec. 12(1)(4) stipulates that the aforementioned arrangement has to be implemented for pre-primary education where the school ordinarily provides the same. It is contended that free and compulsory education provided at the pre- primary level by private unaided educational institutions are not to be reimbursed under the Act. However, under Sec. 12(2), it can be said that the Act does intend to reimburse schools at the pre-primary level as well. Sec. 12(2) stipulates that any private unaided the school that provides for free and compulsory elementary education as specified in clause c) of sub-section (1) shall be reimbursed. Any private unaided institution that begins at the pre-elementary stage is mandated to impart free and compulsory education under the Act under the proviso to Sec. 12(1)(c) at the pre-elementary level as well. This provision of education at the pre-primary stage constitutes the provision of free and compulsory elementary education as provided for in Sec. 12(1)(c) thus, satisfying the criteria for reimbursement under Sec. 12(2). This leads to the conclusion that private unaided institutions that provide for free and compulsory education at the pre-primary stage must be reimbursed for the same as well.

However, a 2013 judgment of the Delhi High Court, Social Jurist & Anr. v. Government of NCT, Delhi & Anr., has pronounced that the provisions of the Act are not applicable to education imparted at the pre-primary level by private unaided institutions as under Sec. 2(n)(iv) except for the proviso to Sec. 12(1)(4). The Court held that the Act was

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only applicable to elementary education for children only between the ages of 6 and 14 years of age. This would suggest that the judicial interpretation of the Act tends to exclude pre-elementary education from the ambit of Sec. 12(2).

35.Is it permissible for a private unaided institution to ask a student enrolled under the RTE as part of the 25% under the weaker section category, to leave or to pay the required fee in the event that the annual income of the parents/guardian has gone beyond the prescribed minimum limit?

Under Sec. 12(1)(c), all private unaided institutions must enroll students at the entry level from the weaker section category or the disadvantaged category as laid out in Sec. 2(e) and Sec. 2(d) of the Act where such students must necessarily constitute 25 % of the strength of the class. The weaker section category under Sec. 2(e) of the Act requires the parent or the guardian to have a minimum prescribed income limit as notified by the state government and example of which would be 1 lakh rupees as notified by the State of UP. However, there is no mechanism post admissions that directs such schools to carry out annual audits of the annual income of the parents of such children enrolled under the RTE. The Act does not specify so anywhere and neither do the model rules. Therefore, one can safely say that it is not permissible for schools under Sec. 2(n)(iv) to ask a student enrolled under the RTE as a part of the 25% under the weaker section category to leave the school or to pay the required fee in the event that the annual income of the parents/guardian goes beyond the prescribed minimum limit.

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36.Can parents or guardians admit their children in any school, as provided under the RTE, of their choice?

The Right to education act has provided for Sec. 12 to allow underprivileged children, the access to education imparted in private unaided schools. The Act is oriented towards the fulfillment of the larger goal of social justice. It can never intend to implement the same through free and compulsory education imparted in government or government aided schools only. The purpose is to bring about social justice through such private unaided schools where in fact the requirement is more so. The purpose is to ensure that economically weaker and disadvantaged groups are not denied quality education if they wish to attend private unaided schools. The scheme under the RTE provides for four kinds of schools under Sec. 2(n) in order to allow access to free and compulsory education. However, in questions where the court has been asked to adjudicate upon whether the parents' plea to seek admission in a particular school even though there exist several others in the neighbourhood as prescribed by the Act and the Rules, the court has not decided upon such matters suspending them in great ambiguity. They have held that under the RTE Act, it is highly unclear as to whether parents of children belonging to weaker sections will have any right to admit their children in a school of their choice which they believe can impart quality education to their children.

37.What kind of a school has to be provided to children and when?

The Act lays down minimum norms and standards for all schools, government and private, through a mandatory schedule. This includes number of teaching days per year, number of teaching hours per day,

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number of rooms, availability of teaching learning materials, library, toilets, safe drinking water, playground, kitchen for mid-day meals, Pupil Teacher Ratio, subject teachers in classes 6 to 8, part time art, work and physical instructors and so on. Governments and private managements have three years to upgrade their existing schools to these minimum norms, barring which they will not be allowed to operate. Governments have to provide such a neighbourhood school to all children within three years, i.e. by March 31, 2013. The prescribed norms are minimum, which implies that nothing stops state governments/managements to have higher norms than those listed in the schedule. In particular, if some schools already have higher norms, it does not imply that they reduce those norms to match the schedule.

38.What about schools that do provide facilities in accordance with the Act?

The schools have been given 3 years to upgrade their standards and bring them at par with the norms specified in the Act. After that action can be taken against them for not meeting the standards.

39.By when does the pupil-teacher ratio have to come into place?

The pupil-teacher ratio has to be in place within 6 months of the Act coming into force. The other norms have to be in place within 3 years.

40.What if there are not enough teachers to meet the norms of the pupil-teacher ratio?

The number of vacancies in a school cannot exceed 10% of the sanctioned strength following the pupil teacher norms. If the requisite number of qualified teachers cannot be found in a particular area, the

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qualification norms may be modified to suit the purpose, but only for a period not exceeding 5 years.

41.Are norms and standards of a school only applicable to private schools?

No, these norms and standards are applicable to all schools. As per section 19 (1), no school shall be established (by the government), or recognized (private), if it does not fulfil the norms and standards prescribed by the Act.

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FREQUENTLY ASKED QUESTIONS

JUVENILE JUSTICE

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1.Who is a juvenile or child?

A person who has not completed 18 years i.e. is not 18 years old.

2.What if a person is 17 years and 11 months old or just has a few days left to turn 18 years old, will he still be considered a child?

Yes, till the day the person completes his eighteenth year of age, he will be considered as a child

3.What if the child displays maturity and understanding of an adult, will he still be treated as a child?

This fact may be considered by the board while giving its decision. The law does not consider emotional maturity of the child while determining the application of this the JJ Act. He will be considered a child till he completes 18 years.

4.Who is a child in need of care and protection?

Section 2(d) of the Juvenile Justice (Care and protection of children) Act, 2000, lists out the terms for a child to be considered as one in need of care and protection. A child, who does not have a home or parent/guardian or is being abused/exploited/ tortured or is likely to be abused for unconscionable gains, is a child in need of care and protection. A child in need of care and protection is one

i.who is found without any home or settled place or abode and without any means of subsistence,

ii.who is found begging, or who is either a street child or a working child,

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iii. who resides with a person (whether a guardian of the child or not) and such person-

(a)has threatened to kill or injure the child and there is a reasonable likelihood of the threat being carried out, or

(b)Has killed, abused or neglected some other child or children and there is a reasonable likelihood of the child in question being killed, abused or neglected by that person.

ii.who is mentally or physically challenged or ill children or children suffering from terminal diseases or incurable diseases having no one to support or look after,

iii.who has a parent or guardian and such parent or guardian is unfit or incapacitated to exercise control over the child,

iv.who does not have parent and no one is willing to take care of or whose parents have abandoned or surrendered him or who is missing and run away child and whose parents cannot be found after reasonable inquiry,

v.who is being or is likely to be grossly abused, tortured or exploited for the purpose of sexual abuse or illegal acts,

vi.who is found vulnerable and is likely to be inducted into drug abuse or trafficking,

vii.Who is being or is likely to be abused for unconscionable gains.

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viii. who is victim of any armed conflict civil commotion or natural calamity;

5.Who is a juvenile in conflict with law?

A person, under 18 years, who is alleged to have committed an offence.

6.What happens to juvenile conflict with law?

When a complaint is filed against a juvenile, he is apprehended by the police. His parents/guardians are informed. The child is placed under special juvenile police unit. The matter is immediately reported to the Juvenile Justice Board, which later inquiry and passes appropriate order.

7.Is a juvenile delinquent arrested and put behind bars?

No the Juvenile is not put behind bars. He is taken to the police station and is handed over to the special juvenile unit. Further for the duration of the trial he may be sent to an observation home or released on bail.

8.What about the parents being informed about the child’s actions?

Under Section 13, the parents are to be informed as soon as or after the arrest is made. So it is the duty of the police officer of the police station to ensure that the information reaches the parents.

9.What if the child has no parents or guardians?

In cases where the child does not have parents or guardians under Section 8 of the JJ Act, he is sent to an observation home.

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10. Are juvenile justice proceedings same as any other criminal proceedings?

No, the proceedings under the JJ Act are before the Juvenile Justice Board. The board is constituted as per provisions laid down in Section 4 of the JJ Act, it consists of a Magistrate and two social workers. The core idea behind juvenile justice proceedings is not punish the child rather reform him.

11.Can a juvenile in conflict with law be granted bail?

Under Section 12 of the JJ Act, while the proceedings are underway, a bail application can be made and it would be then considered by the Juvenile board.

12. What if the juvenile in conflict with law is unable to get the money or surety for the bail?

Under Section 12, availability of a surety is not compulsory. Bail maybe granted without it.

13.What are observation homes?

As per Section 8 of the Juvenile Justice Act, 2000, observation homes are established and maintained by the State government. These act as temporary reception homes for juveniles in conflict with law. Juveniles without parents or guardians are kept in observation homes during the pendency of the investigation. They are segregated according to their age, gender, mental capacity and the offence committed.

14.What are special homes?

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As per Section 9 of the JJ Act, 2000, special homes are established and maintained by the State governments. They act as homes for reception and rehabilitation of juveniles in conflict with law. These homes aim at reforming and re-socializing juveniles in conflict with law.

15.What about segregating boys and girls at such homes?

At observation homes and special homes, there is segregation among children on the basis of age, gender, nature of offences committed and physical and mental status.

16.How are proceedings conducted under the JJ Act?

Section 5 lays outlines the procedure before the Juvenile Justice board. Once the case is placed before the Juvenile justice Board an enquiry is conducted. The board has to complete the inquiry within a period of four months from the date of commencement of proceedings. During the enquiry the board may grant bail and later dispose the matter as it sees fit.

17.What orders maybe passed by the Juvenile Justice board?

If the board finds that the juvenile has in fact committed the offence, then the court may if it deems fit, pass the following orders outlined in Section 15 :-

(a)Allow the juvenile to go home after advice or admonition following appropriate inquiry against and counseling to the parent or the guardian and the juvenile;

(b)Direct the juvenile to participate in group counseling and similar activities;

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(c)Order the juvenile to perform community service;

(d)Order the parent of the juvenile or the juvenile himself to pay a fine, if he is over fourteen years of age and earns money;

(e)direct the juvenile to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person, on such parent, guardian or other fit person executing a bond, with or without surety, as the Board may require, for the good behaviour and well-being of the juvenile for any period not exceeding three years;

(f)direct the juvenile to be released on probation of good conduct and placed under the care of any fit institution for the good behaviour and well-being of the juvenile for any period not exceeding three years;

(g)Make an order directing the juvenile to be sent to a special home,-

i.in the case of juvenile, over seventeen years but less than eighteen years of age for a period of not less than two years;

ii.in case of any other juvenile for the period until he ceases to be a juvenile

Provided that the Board thinks fit, while considering various factors and reasons which are to be recorded. It can reduce the period of stay to such period as it thinks fit

18. Will the details of a juvenile involved in proceedings be published? This will certainly harm the child’s future prospects?

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Under Section 20 of the JJ Act, the law clearly prohibits the publication of name and other details of a juvenile in conflict with law. It is punishable with fine up to one thousand rupees. Unless the authority conducting the enquiry, i.e. the Juvenile justice board, allows such publication for the benefit of the juvenile.

19. Does juvenile justice act merely talk about prosecuting children? Does it take any measures for protecting children?

The JJ Act not only talks about proceedings against juveniles in conflict with law, but also lays down provisions aimed at protecting a child such as preventing cruelty against a child, prohibiting employment in hazardous industries and bonded labour; protecting a child from being exploited etc.

20. What is cruelty to juvenile or child? Can a person be punished for being cruel to a child?

Cruelty to a child can be understood as the act of assaulting, abandoning, exposing or willfully neglecting a child in a manner that may result in causing the child unnecessary physical or mental suffering. Law prohibits persons who have actual control or charge over a child from engaging in the aforesaid acts. A person can be punished not just for directly indulging in acts of cruelty but also for allied acts like causing the child to suffer cruelty or procuring a child knowing that it would be subjected to cruelty. The sentence so imposed may include an imprisonment up to six months or fine or both.

21. Is employing children for begging an offence? What about all the children we see on roads begging?

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In India, engaging children in beggary is strictly prohibited. The JJ Act imposes an imprisonment of three years on any person who employs or uses a child in beggary. The Act also punishes the person who has actual control or charge over the child who is used in beggary if he/she abets or is involved in such activities.

22.What about children who are exploited by their employers?

The Constitution of India specifically prohibits the employment of children who are below the age of fourteen in hazardous industries. Furthermore, Sec. 26 of the JJ Act imposes a sentence of three years on any person who procures a child for the purpose of hazardous employment, keeps the child in bondage and withholds the child’s earnings or uses the earnings for their own purposes.

23.Are juvenile delinquents who are found guilty sent to jail?

No the intention of the legislature while framing the act was to differentiate between the treatment of juvenile delinquents and adult offenders. As mentioned in Question 17, the Board may pass an order asking the juvenile in conflict with law to be sent to a special homes and not prisons.

24.What is a Child Welfare Committee?

A Child Welfare Committee is responsible for placing children in need of care and protection in safe custody in each district.

25.How does the Committee assist the children in need of care and protection? Committee is responsible for disposing of cases for the care, protection, treatment, development and rehabilitation of the

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children as well as providing for their basic needs and protection of human rights.

26.Does a child receive help when the Child Welfare Committee is not in session?

Yes. A child in need of care and protection may be produced before an individual member for being placed in safe custody or otherwise when the Committee is not in session.

27.How can a child be produced before the Committee?

Any child in need of care and protection may be produced before the Committee by one of the following persons -

i.any police officer or special juvenile police unit or a designated police officer;

ii.any public servant;

iii.child line, a registered voluntary organization or by such other voluntary organization or an agency as may be recognized by the State Government.

iv.any social worker or a public spirited citizen or

v.by the child himself.

Provided that the child shall be produced before the Committee without any loss of time but within a period of twenty-four hours excluding the time necessary for the journey.

28. If the Committee, on inquiry finds that the child is in need of care and protection, what remedies can it take?

After the completion of the inquiry, if, the Committee is of the opinion that the child has no family or ostensible support or is in continued need of care and protection, it may allow the child to remain in the children's

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home or shelter home till suitable rehabilitation is found for him or till he attains the age of eighteen years.

29.What is the function of a children’s home?

Children’s home is responsible for the reception of children in need of care and protection during the pendency of any inquiry and subsequently for their care, treatment, education, training, development and rehabilitation.

30.How is a children’s home established? And by whom?

The State Government may establish and maintain either by itself or in association with the voluntary organizations, children's homes, in every district or group of districts.

31.Are the conditions in the homes evaluated by the Government?

Yes. The State and Central Governments both ensure conditions in homes are ideal through social auditing and inspections.

32.What is a shelter home?

The State Government may recognize, reputed and capable voluntary organizations and provide them assistance to setup shelter homes. The shelter homes function as drop-in-centres for the children in the need of urgent support.

33.What is the difference between shelter homes and children’s homes?

Shelter homes are merely for children in need of urgent care while children’s homes are for children who are undergoing enquiry or on enquiry are found to be in need of support and care.

34.What is the main/eventual objective of these homes?

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Restoration of and protection to a child is the prime objective of any children's home or the shelter home. Here, restoration refers to restoration of the child to-

i.Parents;

ii.adopted parents;

iii.foster parents;

iv.guardian;

v.fit person;

vi.fit institution.

35.How is a child re-integrated into society after being in a children’s home?

The rehabilitation and social reintegration of a child shall begin during the stay of the child in a children's home or special home and the rehabilitation and social reintegration of children shall be carried out alternatively by (i) adoption, (ii) foster care, (iii) sponsorship, and (iv) sending the child to an after-care organization.

36.How can a child be adopted?

A child may be adopted in keeping with the provisions of the various guidelines for adoption issued from time to time by the State Government.

37.Who can adopt?

The Board may allow a child to be given in adoption-

(a)To a single parent, and

(b)To parents to adopt a child of it sex irrespective of the number of living biological sons or daughters.

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(C)to childless couples.

38.In which cases, can a child be adopted?

No child shall be offered for adoption-

(a)Until two members of the Committee declare the child legally free for placement in the case of abandoned children,

(b)Till the two months period for reconsideration by the parent is over in the case of surrendered children, and

(c)Without his consent in the case of a child who can understand and express his consent.

39.What is foster care?

The foster care may be used for temporary placement of those infants who are to be given for adoption.

Also, in foster care, the child may be placed in another family for a short or extended period of time, depending upon the circumstances, where the child's own parent usually visit regularly and, eventually after the rehabilitation, where the children may return to their own homes.

40.Does the Act make provision for sponsorship?

Yes. The Act allows for sponsorship to families, to children's homes and to special homes to meet medical, nutritional, educational and other needs of the children with a view to improving their quality of life.

41. What are after care organizations and what is their function?

The Act allows for organizations called after care organizations for children after leaving homes. A scheme of after-care Programme is to be followed by after-care organizations for the purpose of taking care of juveniles or the children after they leave special homes, children homes and for the purpose of enabling them to lead an honest, industrious and useful life. Children over seventeen years of age but less than eighteen

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years of age would stay in the after-care organization till he/she attains the age of twenty years.

42. Can parents attend proceedings under any of the provisions of the Act?

It is up to the discretion of the presiding authority.

43. Is the attendance/ presence of the child essential for the proceedings?

If the competent authority believes that the attendance is not essential for the enquiry, it may be dispensed with.

44. How is the age of a child or juvenile determined?

Where it appears to the competent authority that the person presented before it is a juvenile or child, the competent authority shall make due inquiry so as to the age of that person and for that purpose shall take such evidence as may be necessary. However, an affidavit is not considered sufficient proof.

45.Are the reports disclosed or confidential?

The report of the probation officer or social worker considered by the competent authority shall be treated as confidential. However, the competent authority may, if it so thinks fit, communicate the substance thereof to the juvenile or the child or his parent or guardian and may give such juvenile or the child, parent or guardian an opportunity or producing such evidence as may be relevant to the matter stated in the report.

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FREQUENTLY ASKED QUESTIONS

RIGHT TO INFORMATION

1. What is the objective of the Right to Information Act?

The object is to promote transparency and accountability in the working of every public authority and to set up a practical regime for giving citizens access to information that is under the control of public authorities.

2. Who can seek information under the RTI Act, 2005?

Any citizen of India may request for information under the RTI Act.

3. What is the nature and extent of right conferred by the RTI Act, 2005?

Under the RTI Act, 2005, a citizen of India has a right to seek information from a public authority which is held by the public authority or is under its control. The Act does not make any provision for giving information to Corporations, Associations, Companies, which are legal entities but not citizens. However, if an application is made by an employee or officer bearer of such Corporation, NGO, Association, Company indicating his name and if such employee or office bearer is a citizen of India, information may be supplied.

The RTI Act, 2005 is applicable to all states of India except the State of Jammu and Kashmir.

The right of the citizens is at par with the Members of Parliament (MPs) and the Members of the State Legislatures and therefore, information, which cannot be denied to the Parliament or a State Legislature cannot be denied to a citizen seeking information. It extends to inspection of work, documents and records; taking notes, extracts or certified copies of

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documents or records; and taking certified samples of material held or under the control by the public authority.

4. What is a ‘public authority’ under the RTI Act, 2005?

Under the RTI Act, 2005, the following authorities or bodies are considered as ‘public authorities’:

1.any authority or body or institution of self- government established or constituted by or under the Constitution; or by any other law made by the Parliament or a State Legislature; or by notification issued or order made by the Central Government or a State Government;

2.the bodies owned, controlled or substantially financed by the Central Government or a State Government;

the non-governmental organizations substantially financed (either directly or indirectly) by the Central Government or a State Government.

5.Who provides information under this Act?

Every public authority has an official designated as the ‘Public Information Officer’ who is entrusted with the responsibility of providing information under the Act.

6. Who is a ‘public information officer (PIO)’?

The officers designated by the public authorities to provide information under the RTI Act, 2005 are called the PIOs. Any officer whose assistance is sought by the PIO for the proper discharge of his or her duties is required to render his/her assistance and for the purpose of the contraventions of the provisions of the Act, such other officer is treated as the PIO.

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7. Who is an ‘Assistant Public Information Officer (APIO)’?

APIOs are officers at the sub-divisional level or sub-district level to who an information seeker can give his/her RTI application or appeal. A Central/State APIO may be designated at places where a public authority may not have an office/administrative unit. Their obligations are confined to forwarding the applications or appeal to the concerned PIO or appellate authority within 5 days.

The APIOs appointed by the Department of Posts in various post offices are working as APIOs for all public authorities under the Government of India.

8. What is meant by ‘information’ under the Act?

Information as defined under Sec. 2 (f) of the RTI Act, 2005 means any material in any form, including records, documents, memos, emails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force. As per the decision of the CIC in 1CPB/A-1/CIC/2006, information includes file notings as well.

9. Are any types of information are ‘exempted from disclosure’?

Yes. Sometimes information can be denied for certain reasons like national security. The information exempted from disclosure are enumerated under Section 8 (1) and Section 9 of the RTI Act, 2005. Information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party,

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is exempt from disclosure. However, Section 8 (2) provides that information exempted under Section 8 (1) or the Official Secrets Act, 1923 can be disclosed if the public interest outweighs the harm to the protected interest.

Normally, at the lapse of 20 years from the occurrence of the incident to which the information relates, the information would cease to be exempted under Section 8 (1) of the Act. However, the following types of information would continue to be exempt:

information disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interest of the State, relation with foreign state or lead to incitement of an offence;

information the disclosure of which would cause a breach of privilege of Parliament or State Legislature; or

cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other Officers

10.Are the officials required to furnish personal or private information about themselves or about their families?

No. However, if public interest is served by disclosing such information, then it may be given.

11.If information has been proactively disclosed, can a PIO refuse to accept the request?

No. The RTI Act does not provide that information disclosed proactively should not be provided to a citizen on request.

12.Can the government employees access their Annual Confidential Reports (ACRs) under the Act?

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As per the decision of the CIC (18/IC (A)/2006), the assessment reports or ACRs prepared by the superior officers are personal and confidential information and therefore, exempted under Sec. 8 (1) (j) of the Act.

13.Within how much time is information provided in normal cases?

30 days. In case the application is sent through the APIO or the wrong public authority, a further period of 5 days is added to the aforementioned periods.

14.In cases of life and death within what time should information be provided?

Forty-eight hours.

15.What can one do if information sought for is denied or not provided?

Approach the Appellate Authority.

16.Is one required to provide reasons while asking for information?

No.

17.If the Appellate Authority does not respond/denies information, what can one do?

Approach the Information Commission.

18.Can information be requested on more than one subject in a single application?

Yes.

19.Can a Government employee seek information from his own department?

Yes.

20.Does the RTI cover the High Courts and Supreme Court?

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Yes.

21.Can the students inspect or procure copies of answer sheets if they are not satisfied with the marks awarded by the examiner in a public examination?

No, the CIC has held that (No. 22/ICPB/2006) that students cannot have access to answer scripts or supplements.

22.Is the PIO bound to furnish replies to the hypothetical questions or problems raised by the applicants?

No, the PIOs are not supposed to create information or deduce some conclusion from the information or solve problems raised by the applicants or furnish replies to hypothetical questions. Their duty to provide information is with respect information already in existence and which is held or under the control of the public authority.

23.Can information be obtained from the public authorities in electronic mode?

A citizen can obtain the information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through print outs provided the information sought is already stored in a computer or any other device.

24.Is the PIO required to furnish information in the particular form devised by the information seeker?

Ordinarily, the information should be provided in the form in which it is sought (Sec. 7 (9) of the Act). However, the PIO must not re-shape information and if the information in a particular is likely to disproportionately diver the resources of the public authority or cause harm to the safety or preservation of records, the information may not

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be supplied in the particular proforma devised by the information seeker.

25. Can the information be sought in respect of many subjects by way of one application? Can the PIO deny a request if it is too big?

Yes, information can be sought in respect of many subjects by way of one application and the PIO cannot deny such a request or ask the information seeker to apply afresh. However, such a practice creates problem for the PIO as well as the applicant and therefore, it is advisable that the applicant must ensure that by way of one application, s/he seeks information in respect of one subject only.

PROCEDURE

26. Is there a prescribed format of application for seeking information?

No, there is no prescribed format of application for seeking information and the application can be made on plain paper. The application must be made in writing in English or Hindi or in the official language of the area in which the application is made. It should be precise and specific and must be accompanied by the prescribed fee.

The application, even in cases where the information is sought electronically, must have the name and complete postal address of the application.

It can be delivered in person to the office of the concerned public authority or APIO or by post or through electronic means. Care must be taken in ascertaining the public authority concerned with the information sought.

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27. What is the fee charged for seeking information? Is there a fee chargeable for inspection of records?

The information seeker is required to send a demand draft or banker’s cheque or an Indian Postal Order of Rs. 10/- payable to the Accounts Officer of the public authority as fee prescribed for seeking information. The payment can also be made by way of cash to the Accounts Officer of the public authority or to the APIO against proper receipt.

The information seeker may be required to pay additional fee towards the cost of providing information, which would be intimated by to him/her by the PIO as per the rates prescribed under the RTI (Regulation of Fee and Cost) Rules, 2005. The PIO will not be bound to provide information within 30 days if the information seeker does not pay the requisite additional fee. The 30 day period stops upon dispatch of intimation letter for further fees by the PIO and restarts upon payment of the same by the applicant.

The rate of fee prescribed in the Rules are as follows:

(a)rupees two (Rs. 2/-) for each page ( in A-4 or A-3 size paper) created or copied;

(b)actual charge or cost price of a copy in larger size paper;

(c)actual cost or price for samples or models;

(d)for information provided in diskette or floppy, rupees fifty (Rs. 50/-) per diskette or floppy; and

(e)For information provided in printed form, at the price fixed for such publication or rupees two per page of photocopy for extracts from the publication.

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No fee is charged for inspection of records during the first hour. For every subsequent hour, fee of Rs. 5 is applicable.

28.Is the information seeker who belongs to below poverty line required to pay the fees?

No. However, the person must submit a proof in support of his/her claim to belong to the below poverty line. An application not accompanied by the prescribed application fee or proof of BPL category, shall not be a valid application.

29.What is the mechanism of appeal provided under the RTI Act, 2005?

1.First Appeal lies to the officer senior in rank to the PIO in the concerned public authority. It must be filed within 30 days from the date on which the limit of supply of information expires or from the date on which the information or decision of the PIO is received. The appellate authority may condone the delay if sufficient cause is shown. The appellate authority is required to dispose of the appeal within a period of 30 days or 45 days (in exceptional cases) of the receipt of the appeal.

2.Second Appeal lies to the Central Information Commission (CIC) or the State Information Commission, as the case may be if the first appellate authority fails to pass an order on the appeal or if the appellant is not satisfied with its order. The appeal must be preferred within 90 days from the date on which the decision should have been made by the first appellate authority or was actually received by the appellant. On showing sufficient cause, the delay may be condoned by the Commission. No time limit has been prescribed under the Act for

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deciding second appeals. The Commission may decide the appeal by hearing the parties or upon perusal of the records furnished by the appellant, PIO or the first appellate authority.

The appeal made to the CIC must contain the following information:

(i)name and address of the appellant;

(ii)name and address of the Public Information Officer against the decision of whom the appeal is preferred;

(iii)particulars of the order including number, if any, against which the appeal is preferred;

(iv)brief facts leading to the appeal;

(v)if the appeal is preferred against deemed refusal, particulars of the application, including number and date and name and address of the Public Information Officer to whom the application was made;

(vi)prayer or relief sought;

(v)grounds for prayer or relief;

(vi)verification by the appellant; and

(vii)any other information, which the Commission may deem necessary for deciding the appeal.

The appeal made should be accompanied by the following documents:

(i)self-attested copies of the orders or documents against which appeal is made;

(ii)copies of the documents relied upon by the appellant and referred to in the appeal; and

(iii)an index of the documents referred to in the appeal.

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30.On whom does the burden on proof lie in an Appeals Process?

Public Information Officer

31.What are the fees for filing an appeal?

No Fees.

32.What is the time limitation for filing a second appeal?

90 Days.

33.How can one pay for RTI request fees?

Cash, Demand Draft, Indian Postal Order, Banker’s Cheque.

34.What is the mechanism for filing complaints under the RTI Act, 2005?

Complaints can be filed to the Information Commission if a person is unable to submit a request to a PIO either by reason of non-appointment of a PIO by the concerned public authority or refusal by the APIO to accept the application and appeal of the applicant for forwarding it to the concerned PIO or appellate authority; or if s/he is denied access to any information under the Act requested by him/her; or if no response has been given to him/her within the specified time limit in the Act; or if s/he has been required to pay unreasonable amount of fee; or if in the opinion of the information seeker, the information given is incomplete, misleading or false.

35.What is the jurisdiction of courts?

While the writ jurisdiction of the Supreme Court and the High Courts under Article 32 and 226 of the Constitution remains unaffected, the lower courts are barred from entertaining suits, applications or other proceedings against any order made under the Act.

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FREQUENTLY ASKED QUESTIONS

CRIMINAL LAW

1.What is an offence/crime?

The Indian Penal Code (IPC), 1860 defines offence as any act punishable by the Code. This means whatever has been made punishable by various sections of the IPC fall under the definition of an offence.

2.What are the elements of an offence?

The two elements (both elements must be generally present) of an offence are:

Actus Reus: This is the physical element involved in the crime. It literally means a ‘guilty act’. In order to prove a crime, it is necessary to show that the accused committed the act/omission that has been made punishable.

Mens Rea: This is the mental element of the crime. It literally means ‘guilty mind’. The accused must have intended the act. In order to prove a crime, it is necessary to prove the guilty intent of the accused at the time of commission of the offence. It is also enough to show that the offender had knowledge of the nature of the act itself and its consequences.

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3.Can there be an offence without mens rea?

Usually, there can be no offence without mens rea. In most cases, both actus reus and mens rea must be proved to constitute a crime. A person cannot be held guilty, unless his guilt is proved beyond reasonable doubt. Hence, it is important to show that the accused committed the act with full intention or knowledge. However, there are some offences which do not require any mental element – they are usually regulatory offences such as violation of environmental standards by corporations, non-payment of taxes etc. There are offences without actus reus, such as conspiracy.

4.Where are offences listed?

There are many legislations that list offences in India. The general legislation in this regard is Indian Penal Code, 1860. There are other special legislations such as Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, Prevention of Corruption Act, 1988, Dowry Prohibition Act, 1961 that deal with crimes in a specific subject matter. The Criminal Procedure Code, 1973 that governs the process by which crime can be dealt with.

5.How can offences be classified?

The Indian Penal Code classifies the offences into the following categories:

Cognizable and Non-Cognizable offences

Bailable and Non-Bailable offences

Compoundable and Non-Compoundable offences

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6.What is the difference between cognizable and non-cognizable offences?

A cognizable offence is one in which the police can arrest without a warrant and start the investigation without permission from the magistrate. For instance, murder, dowry death and criminal breach of trust.

On the other hand, non-cognizable offences are less serious in nature. The police need a warrant from the court to arrest the accused and they need permission from the magistrate to investigate. For instance, forgery, cheating and adultery.

7.What is the difference between bailable and non-bailable offences?

In bailable offences, the accused has the right of get bail. The court has no discretion and bail must be granted. For instance, attempt to commit suicide, bribery. The punishment given in such offences is less, generally imprisonment for less than 3 years and/or fine.

Bail in non-bailable offences is guaranteed at the discretion of the court, depending on the circumstances of the case. For instance, murder, kidnapping and rape. The punishment for these is severe.

8.What is the difference between compoundable and non- compoundable offences?

Compoundable offences are those in which the complainant can enter into a compromise with the accused, and agrees to drop the charges against him/her. This compromise must be "bonafide". For instance,

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assault or criminal force to woman with intent to outrage her modesty and dishonest misappropriation of property.

Non-compoundable offences cannot be compounded. They can only be quashed by the court.

9.Who prosecutes the offences?

A crime is considered to be a wrong against the society. Hence, State prosecutes them. A public prosecutor is appointed who argues the case on behalf of the complainant. State takes cognizance of the offences as soon as the FIR is filed.

10.What are the defences available to the accused?

There are many defences available to the accused. Some of the general defences available under IPC include

Insanity

Intoxication

Infancy

Private Defence They are elaborated as below.

11.What is the defence of insanity?

Insanity is the defence available when the accused is of unsound mind due to which he/she does not know the nature of his act or does not know that the act he/she is committing is against the law. In such cases, the element of mens rea is not present.

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Legal insanity is different from medical insanity. It is necessary to prove that the accused was legally insane at the time of the crime.

12. What is the defence of intoxication?

Involuntary intoxication is a defence under IPC. This means that if the intoxicating substance is administered without the knowledge of the accused or against his will, he will not be punished. It is presumed that he does not know the nature of his act.

Voluntary drunkenness is not an absolute defence. A voluntarily drunk person is given only slightly lesser punishment than what he would have received had he been sober.

13.What is right to private defence?

A crime committed in exercise of the right to private defence, it is not treated as an offence. Every person is given the right to protect his or her body and property and the body and property of some other person, against any offence or any attempt to commit offence.

This defence is available only when there is paucity of time, the person does not have enough time to approach the public authorities. There must be a reasonable and sensible apprehension of danger in the mind of the person exercising this right. It must be exercised in proportional manner – one cannot use more force than required to defend oneself. The right of private defence extends to causing death of another in some circumstances.

14. Does the right to private defence extend to causing the death of a person?

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Yes, the right to private defence includes the right to cause death of a person, but only if there is apprehension of certain severe offences like rape, death, grievous hurt, kidnapping and wrongful confinement.

15. What are the different stages of a crime?

There are 4 stages of a crime are:

Intention to commit the crime

Preparation for the commission of the offence.

Attempt: The essentials of attempt to commit an offence are:

Intention to commit the crime

Some act done towards commission of the crime

The act falls short of the completed offence

Accomplishment: This is the final stage when the crime has actually occurred.

16.Is the intention to commit an offence punishable?

Intention to commit a crime is not punishable.

17.Is the preparation for a crime punishable?

Mere preparation to commit an offense is punishable under IPC in the following offenses:

Waging War

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Preparation to commit a dacoity

Preparation for counterfeiting coins and Government stamps

Possessing counterfeit coins, false weight or measurement and forged documents.

18.Is attempt to commit an offence criminalized?

Attempt to commit a crime has been criminalized by IPC in the following cases:

When the crime attempted is serious in nature. For instance, attempting to wage a war against the Government of India, rescuing a prisoner, promoting class hatred, etc.

Attempt to murder, culpable homicide or robbery

Attempt to commit suicide

19.Is abetment of a crime criminalized?

Yes, abetment is criminalized under IPC. The punishment for abetment of a crime is equal to that given for actual commission of the crime.

20. What is felony and misdemeanor? Is it relevant in India?

Felony and misdemeanour are terms used in the United States to signify the degree of crime. While a misdemeanour refers to a minor offence, a felony concerns a heinous act. This distinction does not apply in India and is irrelevant here.

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21.What are ‘white collar crimes’?

White collar crimes are crimes committed for financial gain, or ones of a commercial nature. They are not defined in the IPC, however those offences understood to be white collar crimes are criminalized under the provisions of fraud, cheating, criminal breach of trust, etc, as well as the provisions of the Negotiable Instruments Act , 1881, and the Information Technology Act, 2000.

22.What are the various offences against property?

Offences against property are listed in Chapter XVII of the Indian Penal Code. The common offences against property include-

a)Theft, where a person takes another’s property dishonestly without that person’s consent,

b)Extortion, where a person induces another to deliver anything of value to him by putting that person or someone else in fear of injury

c)Robbery, where theft or extortion takes place with either a threat or fear of death.

Dacoity, where five or more persons attempt to commit robbery

23.What is sedition?

Section 124A of the IPC makes sedition an offence. Whoever shows ‘disaffection’ towards the Government through spoken or written words and images may be guilty of sedition.

Recently, there have been calls to strike down this section as it has been used to censor those who criticize the government and its policies.

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OFFENCES AGAINST HUMAN BODY

24.What is culpable homicide?

It is a crime against human body by causing death. Culpable homicide is said to occur, when a death is caused by an act done:

-With the intention of causing death

-With the intention of causing such bodily injury, as is likely to cause death

-With the knowledge that doing such an act is likely to cause death

A culpable homicide can become murder if some additional elements are present.

25.What is murder?

Section 300 of IPC defines murder. Culpable homicide is murder, when done with the intention of causing death, or:

-With the intention and special knowledge of the victim’s special condition

-With the intention and higher degree of probability of the bodily injury resulting in death

-Doing an act which is imminently dangerous and the person has the knowledge that it will in all probability cause death.

26.What is the difference between murder and culpable homicide?

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Every murder is culpable homicide but only those culpable homicides that fall within the provisions of Sec 300 of IPC are murders. The differentiation is made on the mental element of the person committing these crimes.

In case of murder, the person commits the act with the intention of causing death or with the knowledge that it is likely to cause death. However, in case of culpable homicide, the person intended the act, but not the consequence of that act.

27.What is meant by causing death by rash or negligent act?

Both culpable homicide and murder require the element of knowledge or intention, whereas if a person causes death of another by rash or negligent act, then he is guilty of this offence. For instance, drivers of vehicles who kill others in a road accident by rash driving or doctors who cause death by medical negligence are found guilty by this offence.

28.Is abetment to suicide a crime?

Yes, if a person has committed suicide, whoever abets the commission of such suicide can be imprisoned for a period of up to ten years. This is provided for under Section 306 IPC. Abetment to suicide means to instigate someone or to intentionally help someone to commit suicide.

29.Is attempt to suicide a crime?

Yes, attempt to commit suicide is a crime under Section 309 IPC. If one is found guilty under this provision, the punishment is imprisonment for up to a year, or fine, or both. Like any other crime, it is crucial to prove

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that the accused had the mens rea to kill himself. This is why fasts- unto-death do not amount to an offence under this section, as the intention in these cases is not to kill oneself, but to have certain demands met.

30.What are the various offences against the human body?

Apart from those discussed in this segment, the other offences against the human body include causing hurt, grievous hurt, causing miscarriage, wrongful confinement, wrongful restraint, etc. The scope of these offences and the punishment for them are found in Chapter XVI of the Indian Penal Code.

31.What is the difference between kidnapping and abduction?

Kidnapping from a lawful guardian can only be done of a male under sixteen years, and of a female under eighteen years. However, abduction can be committed with regard to a person of any age.

Consent of the person kidnapped is irrelevant to the offence in case of kidnapping from a lawful guardian. But if the person reported to be abducted gives consent, the offence of abduction is said to have not taken place.

32.What is Section 377?

Section 377 is a law criminalizing sexual acts ‘against the order of nature’. It has been read and interpreted to criminalize homosexual acts, even those that are private, between adults and consensual.

33.If I am openly homosexual, am I a criminal?

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Section 377 criminalizes homosexual acts and makes them punishable with fine and imprisonment for up to ten years.

While the number of convictions under this Section is low, it is used as a tool of harassment against members of the LGBT (Lesbian Gay Bisexual Transgender) community, and stands in the way of measures to implement HIV/AIDS prevention drives and helping the LGBT community access justice in cases of sexual harassment.

34.What is the discussion surrounding S. 377?

In 2009, a decision of the Delhi High Court, called Naz Foundation v. Government of NCT of Delhi held that Section 377 was unconstitutional, as far as its application to consenting adults was concerned. However, a 2013 decision of the Supreme Court called the Suresh Kumar Koushal case overturned this decision, stating it was not the role of judges to repeal a law. Currently, a curative petition has been admitted in the Supreme Court against the latter case. This means the case will be heard again in open court by the bench of judges who earlier heard it in the Supreme Court.

35.When is defamation criminalized?

Defamation is criminalized under Section 499 of the IPC. If a person either speaks, writes, publishes, or somehow visibly represents something which he knows will harm the reputation of another person, he is said to have defamed that person. The statement must be proven to directly refer to the person who has brought the charge. For example, the statement ‘lawyers are thieves’ is not defamation, while ‘X is a bad lawyer, as he is a thief’ will be defamation, if X can show that the

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person making the statement knew that his reputation would be affected by it.

Truth is not a complete exception to the criminal charge of defamation, as it must also be shown that the statement was made in public interest.

OFFENCES AGAINST WOMEN

36.What is dowry death?

Dowry death is covered by Section 304B of the IPC. If a woman dies in abnormal circumstances, or as a result of burns or physical injury, and it can be shown that she was suffering from harassment due to dowry demands from her husband and his family, it will be called ‘dowry death’. Dowry need not only be demands for money, but may include any property or other article of value as well, as defined by Section 2 of the Dowry Prohibition Act.

37.What does ‘outraging the modesty’ of a woman mean?

Section 354 IPC deals with the offence of assaulting or using criminal force against a woman intending to outrage her modesty. This section applies to those crimes against women that are of a non-penetrative nature.

The new Criminal Law amendment of 2013 also makes unwelcome physical contact, demanding sexual favours, or making sexual remarks an offence, that is punishable with rigorous imprisonment of up to five years under Section 354A. This provision lays down more clearly than Section 354 the exact acts that make up the offence of sexual harassment.

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38.Is acid attack criminalised?

Yes, until the 2013 Amendment was passed, acid attack was criminalized under the grievous hurt provision in the Indian Penal Code. As the scope of this section was very narrow, a separate provision (Section 326A) has been introduced that defines the offence more clearly, and criminalize attempt to throw acid as well (Section 326B). Anyone who maims, disfigures or causes hurt to someone by throwing acid at them can be punishable with imprisonment of at least 10 years, and fine.

39.Is stalking criminalised?

Yes, since the 2013 Amendment, stalking is an offence under Section 354D of the IPC. Stalking here means to follow or to try contacting a woman who has expressed disinterest. It also includes contact and monitoring on electronic devices and platforms, like email and other places on the internet.

It is punishable by imprisonment of one to three years and fine.

40.What is voyeurism under the IPC?

Voyeurism, according to Section 354C, is the act of capturing or viewing a woman in a ‘private act’. This means accessing a location or a situation where a woman might expect to have privacy. Examples would be when the person uses the lavatory, where her breasts, buttocks or genitals are exposed, or when she is performing a sexual act.

41. What is the legal recourse if I face sexual harassment at the workplace?

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While all the above provisions can be invoked in case sexual harassment takes place at work, there also exists an Act called the Sexual Harassment of Women (Prevention, Prohibition and Redressal) Act, 2013. This Act instructs all employers, even those who work outside of an office framework, to set up an Internal Complaints Committee which will conduct an inquiry in case a complaint of sexual harassment is received.

Also, the employer must report the offence, as sexual harassment is a crime.

42.What is rape?

Rape is defined in Section 375 of the Indian Penal Code. Rape is when a man has sexual intercourse with a woman against her will or without her consent. It is presumed that she has not given consent in the following circumstances:

If the consent is obtained by blackmail or threats

If the consent is obtained by putting her or anyone she knows in danger

If the consent is obtained and she is intoxicated, or under the influence of a substance whereby she does not know what she is consenting to or if she is mentally unsound at that time of giving such consent

If she gives the consent under the impression that the man is her husband when in fact he is actually not

If she is below the age of sixteen years

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There is martial rape exception in Indian law: That is after marriage, it is presumed that the wife gives consent and it can never be rape by a husband if the wife is over fifteen years of age. Until recently, only peno-vaginal penetration was considered to be rape. However, now recent amendments have included all types of penetration including oral and anal within this definition as ‘sexual assault’

43.What is the law for cruelty by in-laws? Or what is Section 498A?

Section 498A of the IPC states that if the husband or the relative of the husband of a woman subjects the woman to cruelty, they shall be punished with imprisonment for a term which may extend to three years.

44.What is the controversy surrounding Section 498A of IPC?

There is a lot of controversy surrounding Section 498A of the IPC. Many men and men’s rights activists allege that this Section is being misused by women to harass their husbands and in-laws. They claim that the mere threat of prosecution under Section 498A of the IPC always puts the other side on tenterhooks.

45. Are these laws that deal with offences against women gender- neutral?

The laws relating to rape, voyeurism, outraging modesty, sexual harassment, and stalking apply only if committed against women by men. The provisions relating to acid attack, and attempt to acid attack, are gender-neutral.

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BASIC CRIMINAL PROCEDURE

46.What is an FIR? Who can file it?

An FIR or “first information report” is nowhere defined in any statute. However, it commonly refers to the first information that is given to the police about the occurrence of any crime. It is generally a description in the nature of a complaint that is reduced into writing to get the police start investigation. Mere information given to the police during the course of investigation is not FIR, it must be the first information given. It is filed under Section 154 of the Criminal Procedure Code. Once an FIR is field, a copy of the FIR is given to the person filing it.

47.Should an FIR be filed immediately? What is the consequence of delay?

It is ideal if the FIR is filed immediately after the occurrence or knowledge of a crime. This way the person remembers many details regarding the crime, and it helps investigation. Not only that, since FIR has great evidentiary value, it helps in trial too. Further, a delay in filing FIR without a legitimate reason is generally looked at suspiciously by the court.

48.What should I do if the police refuse to register my FIR?

If an officer in charge of police station refuses to record the FIR, then the affected person may send this information to Superintendent of Police. If the SP is satisfied that this information discloses the

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commission of an offence, he may ether investigate the matter himself or direct another police officer subordinate to him to do the same.

49.Who can be arrested by the police and under what circumstances?

Arrest means the taking, seizing, or detaining of the person of another, either by touching, or putting hands on him, or by any act which indicates an intention to take him into custody. The First Schedule to the Code of Criminal Procedure classifies the various offences under the Indian Penal Code. It further provides the nature of the offence i.e. whether the offence is cognizable or not. If an offence is non- cognizable then the police officer cannot arrest a person unless a warrant has been issued by the competent authority

A police officer may arrest a person without any order from a Magistrate and without a warrant if a reasonable suspicion exists that the person has committed a cognisable offence. A police office may also arrest a person if

That person has in his possession of any implement/tool used for house breaking

That person has been proclaimed as an offender.

That person possesses something may reasonably be suspected to be stolen property

That person obstructs a police officer while in the execution of his duty,

That person has escaped from lawful custody.

That person is a deserter of the Armed Forces.

50.When is a warrant required for arrest?

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A warrant of arrest is required for arrest in cases of non-cognisable offences. A warrant in an instruction issued by a court, giving the police officer direction to arrest a particular person. The person who is arrested with a warrant has the right to inspect the warrant and obtain its copy.

51.What are the rights of the arrested person?

Arrested persons enjoy some rights under law which are designed to protect their basic human rights, dignity and prevent police atrocities. The rights are the following:

-The arrested person has right to be informed about the full particulars or grounds for the arrest.

-The arrested person has right to consult the legal practitioner of his/her choice and to be defended by him.

-The arrested person must be produced before the nearest magistrate within 24 hours of arrest (The time period excludes the time consumed in travel.)

-The arrested person has right to inform a friend or relative or any other person, who is known to him/her and is likely to take interest in his/her welfare, about his arrest and place where he is being detained.

-A woman cannot be arrested before sunrise or after sunset except with prior permission of a magistrate.

-A woman can only be taken into custody in presence of a woman police officer as far as practicable and the arrest must be effected with proper dignity.

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-No beatings or force can be administered while arresting a juvenile or a child.

-In case the offence is bailable, he shall be informed that he is entitled for bail as a matter of right and may even be released on his personal bond.

-The arrested person can undergo medical examination by two medical officers.

52.What happens upon completion of investigation?

Once the investigation by the police is completed, the police office prepares a report and the accused is taken to Court. The report is examined by the Magistrate to see if the report is complete. At this stage, the Magistrate takes “cognisance of offence”. After this stage., the trial begins. Cognisance is not concerned with the guilt of the accused.

53.What is bail and when can it be sought for?

Bail means an order of release of a person from prison. In case of bailable offences, bail is a matter of right. Therefore, if the accused produces proper surety, and fulfils other conditions, it is binding upon the Investigating officer to grant bail. On the other hand, in case of non- bailable offences, it is not a right, but depends on the discretion of the court. Therefore, a bail hearing is given to the accused. Usually, granting of bail is the norm except in cases where specific grounds are made out based on which the bail can be refused.

54. What is anticipatory bail and when can it sought for?

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Anticipatory bail is bail that is applied for prior to ones arrest or detention by an authority, but in anticipation of the same. Section 438 of the Criminal Procedure Code prescribes that a person may apply to an appropriate High Court or Court of Sessions for anticipatory bail when he has reason to believe that he may be arrested on accusation of having committed a non-bailable offence. The filing of an FIR is not a mandatory pre-condition for the filing of an application for anticipatory bail. When directing the grant of anticipatory bail, the Court may set such conditions as it deems fit. Anticipatory bail orders are usually time-bound and are not granted as a matter of right – they court must be satisfied that the person will not interfere with the investigation or hamper the inquiry into the crime and that the accused would be subjected to undue harassment or unjustified detention if the order were not to be granted.

55. On whom is the burden of proof in criminal cases? What is the standard of proof required?

In criminal law, the burden is upon the prosecution to establish that the accused has committed the crime. This means that the accused is presumed to be innocent unless proven guilty by the prosecution using the evidence collected by the police during investigation. This is usually true for all cases. However, there are some rare exceptions. In these exceptions, if some facts are proved, then the accused may have to prove that he has not committed the crime. For instance, in the case of Section 304-B of the IPC (Dowry death), if a woman dies an unnatural death within 7 years of marriage and she was subjected to

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some harassment (mental or physical torture for dowry) soon before the death, then the burden of showing innocence shifts to the husband/in- laws.

MISCELLANEOUS ISSUES

56. When is death penalty awarded?

A death penalty can be awarded only when the statute explicitly awards death sentence for a crime. A few heinous crimes (such as murder, waging war against state, gang rape etc.) have death penalty prescribed by it. It is awarded only in the rarest of rare cases. Due to its grave nature, a death penalty can be given only by a Sessions Court and must be confirmed by the High Court.

57. Do criminals also have the right to legal aid?

Yes. Even accused members have the right to legal aid. India is a country that believes in the rule of law and principles of natural justice. One such principle is that everyone should be accorded a right to a fair and effective hearing before they are condemned to some punishment. If the accused is not given free legal aid, merely because the accused cannot afford legal aid, he cannot be deprived of his right to effective hearing. Therefore, in such cases, the State appoints a public defender to appear for him.

In order to be eligible for legal aid, the person must meet the eligibility criteria. It is as follows:

Member of SC/ST

Victim of trafficking

Woman or child

Mentally ill or otherwise disabled person

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Victim of mass disaster, ethnic violence, caste atrocity, flood

etc.

Industrial workman

A person in custody

A person whose annual income is less than

58.What are the rights of the victim in criminal law?

After giving the complaint and during investigation, usually, the role of the victim is that of a prime witness. Thereafter, during trial the victim has limited rights as the state takes over the prosecution. However, some rights of the victims are recognised. They include:

Right to assist the prosecution

Right to compensation

Victim may file a criminal appeal against the judgment of acquittal and also against inadequate sentence or compensation

59.What is the hierarchy of criminal courts in India?

A case begins with the lowest Court that has the power to try the case and it goes on appeal to higher courts. At the trial stage, petty offences can be tried at lower courts, but more serious offences have their trial in higher courts. The lowest level is the Judicial Magistrate of Second Class, above him is Judicial Magistrate of First Class. Above these two is the Chief Judicial Magistrate. The highest Court that handles exclusively criminal law matters within the district is the Sessions Court. It is authorised to give all punishments and try all offences. In metropolitan cities, there are no judicial magistrates but only metropolitan magistrates.

The High Court and Supreme Court are courts of appeal. Within each state (or a group of state) is the High Court which is the highest court

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for that state (or group of states). In India, the Supreme Court is the final court of appeal. It sits at the top and for criminal matters; it entertains appeals from matters decided by the High Court.

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FREQUENTLY ASKED QUESTIONS

10.

CIVIL PROCEDURE

1.When do I have a case?

If any right of yours is substantially affected, you can take recourse to a court of law to file a suit. For e.g., if you have entered into a contract with my landlord which gives you the right to be a tenant in his apartment for 2 years, and he tries to forcibly throw you out after one year, you can go to court, because your right has been affected. You must have a cause of action, i.e. set of facts that you must prove in court to win a suit.

Further, there is a new trend of Public Interest Litigation which implies that if there is a matter of substantial public concern, such as the condition of pavements in Bangalore, garbage disposal, or manual scavenging, you can, as a public-spirited citizen, take it up in a court of law.

2.What is the first step I need to take?

You need to send a notice to the person/institution that you intend to take to court. Such a notice must contain the details of your complaint.

3.How does a suit begin?

Once you have sent a notice, and presumably the other side has sent their (presumably inadequate!) response, you will want to present a

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‘plaint’ before court. This can be done personally, or through a ‘pleader’(fancy term for lawyer). It is a written statement with the facts of your complaint on it. You must write the specific facts down clearly. There is no need for you to put down any proof (that’s for later, when the trial starts). You will be called the plaintiff and the other party will be called the defendant. You must serve summons upon the defendant.

4.Which court do I file the plaint before?

If related to immovable property (a house or land etc.), you file it in the civil court within whose jurisdiction the property is situated. If it is related to anything else, file it in a court where the defendant lives, or has business ties, or is employed, or where the cause of action arose.

5.What next, after the plaint?

The court will then frame issues on the basis of your plaint, and the other side’s reply to that (written statement: more on that later!). Issues are the main points of dispute. For e.g., take the above example of the fight between you and your landlord. Possible issues would be (a) whether you had a valid contract with him (b) whether the terms of the contract were clear about the two year clause (c) whether he had the right to evict you, and so on.

6.When do I bring in evidence?

Well, right after issues are framed. The court will take evidence produced by parties which are relevant to the issue. For e.g., your contract document with your landlord would be considered as evidence. Your witnesses, if any, will be examined first, and only then will the defendant’s witnesses be examined. After that, there are arguments

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presented on both sides, following which the court delivers the final judgement.

7.Is a lawyer absolutely necessary?

No, not really! You can appear in court and conduct your own case, if you are confident about it.

8.Wait, what am I to do if someone sends me a notice?

No worries. You need to send a reply to that particular notice, asserting why you think you did not commit any wrong.

9.What if she proceeds to file a plaint?

You then need to reply with a written statement within 30 days of receipt of the summons. Such a statement must deny all the allegations made in the plaint, so that the suit will not be taken up by the court.

10.How do I summon a witness?

Within 15 days of issues being framed, you must present a list of all the persons you intend to call as witnesses (for giving evidence, or for producing a document). You must pay to the court the sum of money required to cover the travel expenses etc. of the concerned witness.

11.What if the witness doesn’t come?

In such a case, the court can impose a fine of upto 5000 rupees, attach and sell his property, issue a warrant for his arrest(b) attach and sell his property, or order him to furnish security for his appearance and in default commit him to the civil prison.

12.What is an adjournment and how does it affect me?

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It means postponing proceedings to a later date. It is a matter of the court’s discretion, and is granted only upon there being reasonable grounds for the same. An adjournment will only imply a delay in the matter being heard.

13.What if the judgment is written without hearing arguments?

In such a case, it will be considered that there has been a gross irregularity in the proceeding, unless the case is as mentioned in (15) below. The court must hear the party.

14.What if I file a suit, and then am unable to turn up?

The court will dismiss your suit in case you are the plaintiff and do not show up for the first hearing. However, in case you can later show that there was some urgent cause which prevented you from turning up, the court will consider an application for restoring the suit.

15. What if a suit has been filed against me and I don’t show up in court?

In that case, the court will proceed to give an order against you in your absence (Called an ex-parte order). The burden will later be on you to show that there was some urgent cause that prevented you from appearing, so that the court can hear your arguments, set aside the ex- parte order, and give a fair judgment.

16.Can a judgment be oral?

No, it has to be in writing, with the reasons for the decision clearly outlined.

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17.How do I get hold of a copy of a judgment?

They are made available on the payment of whatever charges the respective High Courts prescribe.

18.How much will it cost me?

The major official expenses you incur are in court fees, which depend on the value of the suit you want to file. With respect to other expenses, your lawyer’s fees etc. differ from advocate to advocate.

19.What if I don’t pay court fee?

The court will then have enough grounds to dismiss the suit.

20.Once the judge gives a decision, what next?

In case the decision is in your favour, the next step you need to keep in mind is execution.

21.What’s execution?

It means enforcing the judgment of the court.

22.How does that work?

If the case involves immovable property, and the outcome is where you want property delivered to you, it is achieved by the court staff effecting delivery. If it is related to money, the property of the person who owes you money can be attached, and if he is unable to pay up or does not have property, he can be arrested. If it is a woman, she cannot, however, be arrested. For other remedies, different options such as sale of property, auctions etc. are available depending on the type of case.

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23.How much time will the whole enterprise take?

Well, that depends entirely on the court! Cases do tend to drag on for a while, and you had better prepare yourself for a lengthy trial

24.What if one of the parties dies during the suit?

His legal representative (like, maybe his son, or wife, or husband) must be brought on record, failing which the suit will terminate.

25.What if I want to withdraw a suit?

You may do so, but you cannot file a fresh suit on the same matter afterward.

26.What if I want to compromise?

You can, by mutual agreement, agree to settle the matter outside court, and reach an agreement. This will have the same effect as a judgment by the court, and the court will make a record of the same.

27. What if the court is yet to pass an order, but I am scared that the other party will do something to whatever is the matter of dispute?

In such a case, you can file to get an injunction before the court. This is a process where the court will order the other party to refrain from doing any particular act or thing. This is preventive relief, and may be temporary or permanent.

28.What if I am dissatisfied with the verdict of the court?

You have the right to appeal to the higher court, if you are dissatisfied. You can appeal on grounds of fact or law. If there is a ‘substantial question of law’, you can file an appeal to the High Court. In case you

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are still dissatisfied, you may file for an appeal to the Supreme Court, and the court will allow you appeal if the High Court certifies that there is a substantial question of law involved, or if there is interpretation of the constitution involved, or if the Supreme Court grants special leave to appeal.

29.Anything else I need to know?

Yes. Once a decision has been given, you cannot go back to the court with the same matter. In case the court chooses to dismiss your suit, you cannot take it up again. This principle is called res judicata.

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FREQUENTLY ASKED QUESTIONS

11.

LEGAL AID

1.What is legal aid?

Legal aid is the provision of assistance to people otherwise unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to counsel and the right to a fair trial.

2.What is pro bono?

Pro bono is a Latin word that stands for “public good”. It refers to free provision of services in order to safeguard public interest. In legal parlance it refers to discharge of free legal aid by legal practitioners.

3.Does our constitution provide for legal aid?

Yes. Article 39A of the Constitution of India provides that State shall secure that the operation of the legal system promotes justice on a basis of equal opportunity, and shall in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disability.

Articles 14 and 22(1) also make it obligatory for the State to ensure equality before law and a legal system which promotes justice on a basis of equal opportunity to all. Legal aid strives to ensure that constitutional pledge is fulfilled in its letter and spirit and equal justice

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is made available to the poor, downtrodden and weaker sections of the society.

4.Who is eligible for legal aid?

Section 12 of the legal services authorities act 1987 lays down certain criteria that needs to be met in order to be eligible for legal aid.

Every person who has to file or defend a case shall be entitled to legal services under this Act if that person is -

(a)a member of a Scheduled Caste or Scheduled Tribe;

(b)a victim of trafficking in human beings or beggar as referred in article 23 of the Constitution;

(c)a woman or a child;

(d)a person with disability as defined in clause (i) of section 2 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1 of 1996);

(e)a person under circumstances of undeserved want such as being a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; or

(f)an industrial workman; or

(g)in custody, including custody in a protective home within the meaning of clause (g) of section 2 of the Immoral Traffic (Prevention) Act, 1956, or in a Juvenile home within the meaning of clause (j) of section 2 of the Juvenile Justice Act, 1986, or in a psychiatric hospital or psychiatric nursing home within the meaning of clause (g) of section 2 of the Mental Health Act, 1987; or

(h)in receipt of annual income less than rupees nine thousand or such other higher amount as may be prescribed by the State

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Government, if the case is before a court other than the Supreme Court, and less than rupees twelve thousand or such other higher amount as may be prescribed by the Central Government, if the case is before the Supreme Court.

Article 13 further states, “13. Entitlement to legal services - (1) Persons who satisfy or any of the criteria specified in section 12 shall be entitled to receive legal services provided that the concerned Authority is satisfied that such person has a prima-facie case to prosecute or to defend.

5.What is NALSA?

NALSA is short for The National Legal Services Authority which has been constituted under the Legal Services Authorities Act, 1987.

6.What is the main purpose of NALSA?

The NALSA issues guidelines for the State Legal Services Authorities to implement the Legal Aid Programmes and schemes throughout the country.

Primarily, the State Legal Services Authorities, District Legal Services Authorities, Taluka Legal Services Committees, etc. have been asked to discharge the following two main functions on regular basis:

To Provide Free Legal Services to the eligible persons; and

To organize Lok Adalats for amicable settlement of disputes.

7.What is KSLSA?

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Karnataka State Legal Services Authority (KSLSA) is a Statutory Body constituted under a Central Legislation Legal Services Authorities Act, 1987.

8.What are law school based legal aid clinics?

The bar council of India mandates each legal education institution to establish and run a Legal Aid Clinic under the supervision of a Senior Faculty Member who may administer the Clinic run by the Final year students of the Institution in cooperation with the Legal Aid Authorities with list of voluntary lawyers and other Non-Government Organizations engaged in this regard in the locality generally from which the student community of the Institution, hail from.

9.Can a child/juvenile avail free legal aid?

Yes, as clearly mentioned in section 12 of the Legal Services Authorities Act, 1987.

10.What is a Lok Adalat?

A Court which has been organized by High Court Legal Services Committee or District Legal Services Authority or Taluk Legal Services Committee for the purpose of amicably settling a dispute between two parties by way of compromise is called lok adalat.

11.Who should I approach for legal advice?

For legal aid, if you satisfy the first eligibility criteria. You need to take the following steps.

1. Make an application for legal aid to the SCLSC. The forms for these can be obtained in person or through post or e-mail from the SCLSC at the address indicated below or from any of the nearest Taluk / District / State / High Court Legal Services Committee.

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2. You have to submit the completed application form to the SCLSC along with full documentation. For instance, if you seek to file an appeal against the order of a High Court, you are required to submit a copy (preferably certified) of the order of the High Court, copies of orders, if any, of the courts below the High Court, copies of all the papers filed in your case before the lower court and High Court, comments of the lawyer on the judgement. If these are in a language other than English, please try and send translated copies.

12.What is a district services legal authority?

In every District, District Legal Services Authority has been constituted to implement Legal Services Programmes in the District. The District Legal Services Authority is situated in the District Courts Complex in every District and chaired by the District Judge of the respective district.

13.What is a Taluk Legal Services Committee?

Taluk Legal Services Committees are constituted for each of the Taluk or Mandal or for group of Taluk or Mandals to coordinate the activities of legal services in the Taluk and to organise Lok Adalats. Every Taluk Legal Services Committee is headed by a senior Civil Judge operating within the jurisdiction of the Committee who is its ex-officio Chairman.

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We sincerely thank the following researchers:

1. FAMILY LAW:

GARGI ROHI, ANSHITA CHAUHAN, & KAVYA GUPTA.

2. DOMESTIC VIOLENCE:

JAHNAVI SINDHU, SUAMYA MAHESHWARI & APURVA RANJAN SHUKLA.

3. CONSUMER PROTECTION:

AKSHI RASTOGI & ISHITA KHOKHAR

4. BANKING:

SHRUTHI NAIK & MATHAVI S.

5. PROPERTY LAW:

ARADHYA SETHIA, PRACHI & PRATIKSHA BASARKAR

6. RIGHT TO EDUCATION:

SHIVANI MITTAL & SHAMBHAVI PANDEY

7. JUVENILE JUSTICE:

ZARA FATHIMA KAISER & GAURAV BHAWNANI

8. RIGHT TO INFORMATION:

SHREYASHREE, IPSHITA BHUVANIA & DHRUVA GANDHI

9. CRIMINAL LAW:

MANASA SUNDERRAMAN, ATULAA KRISHNAMURTHY & DEEPANSHI AHLAWAT

10. CIVIL LAW PROCEDURE:

PADMINI BARUAH

11. LEGALAID:

BASAVANAGOUDA PATIL & ASHRAYA SHARMA

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WRITE TO US!

If you have any suggestions, or improvements to be made on this FAQ Booklet, do send us on lsc@nls.ac.in or lsc.nlsiu@gmail.com or you can write to us here:

The Legal Services Clinic

National Law School of India University,

P.O. Bag 7201, Nagarbhavi,

Bangalore – 560072, Karnataka, India.

Website: www.nls-lsc.org

Thank you all!

Basavanagouda Patil

Convenor

Legal Services Clinic, NLSIU.

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Law book - Easy to Understand the Acts and be an Optimist in society

Friday, August 29, 2014

FAQ on Laws - Provided by National Law School of India University, Bangalore

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