This article has been written by Mansi Tyagi, a student at Symbiosis Law School, Pune. How spending almost all the time together now, is inversely proportional to the happy endings of marital couples is what the current lockdown has been portraying. Thus, in the article here she has tried to bring up the factors leading to divorces in couples amidst the lockdown.

Introduction

While most nations are busy talking and searching solutions for the consequential economic depression in the future as a result of lockdown and several other migrant problems, there are some problems which are taking toll almost everywhere. Amidst the worldwide lockdown, there are three things concerning the domestic limits which are expected to experience a surge in numbers: Baby boom, domestic violence and divorces. While states overpowering the novel coronavirus COVID-19 are showing these trends, the numbers are already shocking in states still going through strict lockdowns. While baby booms are expected to happen during the aftermath of the worldwide isolation, domestic violence cases are already getting registered with the state authorities at an unprecedented rate. However what is much surprising to the marital relations’ authorities is, the rates of divorces amidst this quarantine process. A more gigantic wave is yet to hit the domestic world once the lockdown is lifted. With elongated lockdowns, the rates of divorces are all set to take place. And there is just one central explanation to this: the restriction on movement and staying together has led the spouses to question their relationships.

Why is it becoming difficult to live with spouses?

There are several differences which were formerly non-existent that the mandatory lockdown has made irresistibly difficult to ignore now between the spouses leading to them agreeing to separate mutually. While the mandatory lockdown has become a blessing in disguise for couples otherwise not having much time to spend together owing to professional commitments,  on the other side of the reality it has made the spouses live under the same roof irrespective of their wishes, in most cases making a negative impact on the marriage. Man is a social animal. And unlike the general socializing process, when people are made to sit at homes, it is normal for them to be frustrated psychologically. However, this tendency of getting aggressive does not necessarily mean there should be a physical outburst of it on the fellow person staying with oneself. And between spouses, this somehow is leading to silent strains in marital relations. While in some cases the spouses are keeping themselves under immense pressure for the sake of their kids, in others it is taking the ugly shape of domestic violence. And the worrying issue is that despite the psychological congestion with the same person, a spouse cannot take a break by getting out of the household. The need for space is essential not just amongst spouses but any group of people irrespective of the relationship they share. And what the lockdown took away from the most intimate relationships, like those of spouses is their private spaces. Studies have shown that the absence of personal space often leads to relationships turning toxic. The inundation in the marital lives is making spouses despise each other’s presence for too long. But forced proximity is just one reason for such breakdowns of marriages. Apart from this lack of personal freedom and space, there are other factors too that are leading to the growing tensions between married couples during lockdowns. However, the problem is not the tension, it is the escalation of this despise which is leading the couples to adopt the legal way and ending their marital ties completely.

The home is a safe abode for people, but somehow is turning into a house of hell for the silent victims of patriarchal abuse, especially in a country like India which is notoriously famous for its gender inequalities. And the worst part about all this is, the mandatory lockdown has kept the victims confined behind the violent and abusive walls of their houses irrespective of their wishes. It will be incorrect to state that lockdown is the only factor leading to domestic violence since spouses are in more proximity than before. But at the same time, the numbers of such cases cannot be ignored. The national commission for women stated a rise of 94% in the crimes reported against women amidst the lockdown[1].  Females are made easy targets since now amidst the nationwide lockdown, they don’t even have a way out. And thus, somewhere these domestic violence cases are also taking the marital ties to the edge of a complete breakdown. Moreover, we still don’t know how many more are just silent under the threat of husbands and are unreported.

The unbalanced economy has also led to these unhealthy trends. There are salary cuts, there are delayed promotions, and in extreme yet common cases, there are layoffs. And the need for economic mitigation should not just be aimed to lift the economy, but also to save the domestic households from collapsing. In many cases, when one or both the spouses are losing their jobs, the monetary tension of the household is leading to another strain in the relationship. While in more other cases, the economic strain is seen on the sharing of household work. For women who lost their meagre jobs owing to the lockdown, and those who are completely dependent on the domestic income, they have no other option but to endure everything to make sure they have financial living support. However, the male being ignorant of any sharing of work despite being in the house, and even leaving the kids to their mothers, is making the women realize the patriarchal storms hitting them in the face more than ever in their lives. The division of labour is practised in less than 30% of households, and even lesser when it comes to quarantined houses. Thus, the latent tendencies of either spouse are now becoming clearer and non-negotiable when the couples are spending almost all their time together.

These trends will be more visible amongst the netizens, who are made to shift from their online communication to physical time-spending. The constant physical presence of their partners is making the netizens run out of communication despite the virtual barrier of language getting dragged down. Thus, even though they are together, couples are having communication gaps between them.

It cannot be denied that in many other cases, the continuous proximity has led to resolution of issues that existed earlier. Couples are getting the time and environment to sit and discuss the problems they never addressed. But, as of now, these cases are not as many as those of separations. The problem is not these tensions, these tensions existed earlier than the isolation phase too. The problem is the absence of a gap to leave either spouse, vent the pressure outside and outcast the tension. The lockdown has put the spouses under the same roof whatsoever. Thus, individuals are unable to escape valves which are necessary to preserve marriages.

Conclusion

Currently, the unavailability of courts for such domestic cases might look like the solution to restrict the separations and giving the couples time to judge such steps; however such prolonged delay is, in fact, leading to restlessness amongst the couples to break up from each other. The lifting of lockdown will therefore won’t make a better change. In fact, it will give the chance to the couples to file for separation unless they want to give their marriage a chance, which under the current circumstances is highly improbable. The lifting of lockdown won’t help in erasing the strains that it has already created in marriages. China, where the coronavirus situation is much to the relief now, is the first state to show the divorce trends on the real ground. The marital courts and the divorce lawyers have claimed to be approached twice the rate they were before the lockdown. India has a six-month cooling-off period before formalising the divorces, China has also come up with a three-month cooling-off period to give the estranged couples a chance to give another thought to separation procedures; however, in some first world countries like the USA, divorce procedures are speedier and easier and thus the upcoming divorce trends in such states is going to be worrisome. Therefore, it is important that before finalising the divorce, the state authorities shall mandatorily give a cooling-off period to the couples. Lifting of lockdown will give them an opportunity to think about separations in the absence of the lockdown leading them to it. After all, only if the marriage is beyond repair, divorce favourable. But, where mandatory lockdowns are the reason for it, a chance shall be given to rethink in the absence of such lockdowns as well.

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References

^[1] NCW Chief Rekha Sharma On Its Initiatives To Address Domestic Violence <https://www.shethepeople.tv/news/ncw-chief-rekha-sharma-domestic-violence>.

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This article has been authored by Ritesha Das, pursuing BBA LLB from Symbiosis Law School Hyderabad. It outlines the essential remedies for the breach of contract under the Indian Contract Act, 1872.

INTRODUCTION

It’s rightly said that there is a remedy of everything except death. The remedies for breach of contract are elucidated under section 73-75 of the Indian Contract Act of 1872. A breach of contract simply means that the defaulting party either fully suspends its obligations and liabilities under the contract or performs partly or simply refuses to meet such obligations in full or in part or renders the failure of performing its obligations through its own actions. Breach of the contract amounts to infringement of the rights and interests of the aggrieved party and the call for alternatives or remedies for the restoration of these infringed rights and interests is one of the essential elements of the Indian Contract Act. The Indian Contract Act lay down 5 remedies for the breach of contract: Suit for damages, Restitution, Specific Performance, Quantum merit and injunction. Under the category of remedies, damages are the primary remedy, while other remedies are discretionary remedies at Equity and are only granted where damages are not an adequate remedy.

SUIT FOR DAMAGES

The provisions relating to damages are defined under Section 73 of the Indian Contract Act of 1872 [i]according to which the defaulting party breaching the contract is liable to pay for the injuries or losses incurred by such breach of the contract to the aggrieved party.

 The essential elements of awarding damage under this section are: The damage should be a natural ramification of such breach of contract and such damage or injury must be reasonably anticipated by the parties to arise from such breach of contract. The burden of proof rests with the aggrieved party throughout the provision.

This section outlines that damages under this section are compensatory in nature and the parties suffering remote or indirect damages are not entitled for compensation. In addition, this section also specifies that, in calculating the injury or loss arising from the breach of contract, the actual costs of mitigating the inconvenience must be taken into consideration.

The principle concerning the remoteness of the damage were identified in Hadley vs. Bexendale

1. According to the first principle, money has the power to compensate the damages suffered hence the compensation must put the aggrieved party in the same position as would have been if the contract had been performed.
2. The second principle imposes a duty on the defaulting party to take appropriate action to alleviate the repercussions arising from the breach of contract.

The exceptional circumstances that are completely unknown to the party breaching the contract, the defaulting party can only be supposed to have had in his contemplation the amount of injury which would arise generally and in a great multitude of cases not affected by any special circumstances from such breach of contract.[ii]

In the case of Union of India vs. Raman Iron Foundry[iii], it was held that the damages are compensation which the aggrieved party may be entitled to obtain at the court of law, but it does not seek them by virtue of any contractual responsibility or liability on the part of the party, in breach of the contract, who has no monetary duty until the court has decided the infringement and the value of the settlement. The court will not ascertain any pre-existing liability. Furthermore, because the breach of the contract does not give rise to any existing duty or obligation on the defaulting party, the right to seek damages is not an actionable claim and cannot be granted.

Types of damages

• Ordinary damages

The damages emerging from the ordinary, natural and foreseeable sequences of actions resulting in the breach of contract are known as ordinary damages.  For example, W agreed to sell bags of rice at Rs 40 per bag to X, on the basis of payment on delivery but by the time of delivery, the market suddenly price spiked to Rs 50 per bag and as a result, W refused to sell it less than Rs 50 per bag. In this case, X can then claim damages of Rs 10 per bag.

• Liquidation damages

Liquidation damages are penalties which are specified explicitly in the contract agreed upon both the parties. They are generally specified in those contracts where the anticipation and estimates of the damages are difficult to foresee. However, the courts have the discretion to minimize the amount of penalty if an excessive amount is stipulated.

For instance, W contracts X to build a new house by a certain date mentioning a clause where he is entitled to claim Rs 2000 per day if the house is not built by the stipulated date. In such a case, W will be entitled to claim Rs 2000 per day if X fails to build the house as per the due date of the contract.

Section-74 of the Act concerns the scenario where the contracting parties agree to the imposition of penalty (liquidation damage) for the breach of the contract. The main principle underpinning this section is the assurance of certainty in commercial contracts. Section-74 stipulates that, in breach of the contract, the amount of damage granted to the aggrieved party can’t exceed the amount stipulated as the penalty in the contract and such damage shall be awarded regardless of the proof of damage or loss by the aggrieved party. Drawing distinction between the estimated damages and penalty is a significant element while interpreting both section-73 and -74 of the Indian Contract Act, 1872. The former doesn’t have any pre stipulated amount as ‘penalty’ to be awarded to the aggrieved party in case of breach of contract. In the latter, the courts have the discretion to minimize the amount of penalty if an excessive amount is stipulated. Nevertheless, it is important to note that no lawsuits for liquidated losses will be made until the contract has been proven to have suffered a loss due to the defaulting party.

• Punitive damages

Punitive damages generally aim to punish and deter the defaulting parties from committing wrongs. They are rarely awarded for contract breaches however; they may be awarded in some tort or fraud cases that overlap contract cases.

• Compensatory damages

Compensatory damages are the monetary damages that are awarded with the purpose of reimbursing the aggrieved party for the injuries incurred as a result of the breach of contract. The primary aim of awarding compensatory damage is to put the aggrieved party in the same position as would have been if the contract had been performed.

The spectrum of compensatory damages is further divided into two categories:

1. Expectation damages: These are intended to cover whatever the aggrieved party would expect from the contract calculated on the basis of terms of contract or market value.

• Consequential damages. They are intended to reimburse the aggrieved party for any indirect damages other than those covered by the contract. For example, a loss of company profits resulting from an undelivered piece of machinery. In order to receive consequential damages, the injury must arise either to a direct consequence of a breach of contract or to have been reasonably anticipated by both parties at the time of the contract.

In the case of Murlidhar v. Harishchandra[iv], the Apex Court stated that the party suffering from the breach of contract should take reasonable steps to mitigate the extent of damage caused by the breach. If, he fails to take such step then, he won’t be held entitled to claim compensation for such loss which could have been mitigated. While he could also get debarred from claiming any part of the damage which is due to his neglect to take such steps.

• Nominal damages

Nominal damages are the damages that are awarded if a legal right has been infringed even if there is no actual damage. If the defaulting is held liable for breach of contract, the plaintiff is entitled to claim nominal damages even though no real injury is proved. Nominal damages were described as an amount of money that can be spoken of but that does not exist in quantity terms as the degree of injury is very minimal.

In the following circumstances, nominal damages are awarded to the plaintiff:

• The aggrieved party did not wish to carry out the contract himself due to a minor technical fault committed by the defaulting party.
• The aggrieved party fails to establish the damage or loss incurred as a result of the breach of contract.
• The real injury sustained by the aggrieved party was not because of the wrongful act of the defendant but because of his own actions or any outside event.

SPECIFIC PERFORMANCE OF THE CONTRACT

Specific performance is an equitable remedy, provided by the court to impose the duties and obligations on the defaulting party to perform its promises under the contract. The remedy of specific performance is totally in contrary to the remedy of damages as it includes pecuniary redress for the breach of the contract, whereas, in specific performance, no such monetary compensation is awarded. The aggrieved party while seeking this remedy must convince the court that awarding usual remedy of damages is insufficient to compensate the degree of injury especially in the cases of contracts for the transfer of immovable property; awarding damages would not be adequate. Even after the continuous pleas before the court, specific performance is not always provided as it is a discretionary remedy. The relief has to be claimed specifically. If the plaintiff argues specific performance of any particular clause in the contract or any agreement, the lawsuit could be asserted for specific performance of only that clause or agreement.

The period of limitation for a suit of specific performance is three years from the date fixed for performance, or in absence of any date, the period when the aggrieved party noticed that performance has been refused.

Contracts exempted from specific enforcement

According to Section 14 of the Specific Relief Act 1963[v], there are certain cases where contracts are exempted from specific enforcement:

• Pecuniary or monetary compensation is an adequate relief: Under this exception, the court does not grant specific performance of a contract as it is presumed that the aggrieved party relies upon the standard recourse for infringement of contract i.e. remedy of compensation. For example contract of mortgage of immovable property, contract of sale of goods, contract of repair of premises etc. In the case of Adcon Electronics Pvt. Ltd vs Daulat And Anr,[vi] the court held that in case of breach of contract to transfer immovable property, the court would presume, unless the contrary is proved, that such breach cannot be adequately relieved by monetary compensation, whereas the principle is quite opposite for movable property (except with two exceptions carved out in Explanation-(ii) of Section 10) that the court is to presume, unless the contrary is proved, that the breach of contract to transfer movable property can be relieved by monetary compensation.

Unless the contradiction is proven, the court shall assume:

1. The infringement or breach of a contract for the transfer of immovable property cannot be sufficiently relieved by awarding pecuniary compensation.
2.  The breach of a contract for the transfer of movable property may be presumed to be relieved, except in the following cases:
3. If the property is not an ordinary item of trade or is of exceptional interest or consists of goods which are not easily accessible in the market;
4. If the property is owned by the defendant as the agent or trustee of the aggrieved party.

• Contracts stemming from the element of personal skills: This exception encompasses the contracts that stem on the personal competence or skills of any party. The court cannot impose specific performance of the contract if the defaulting party or the promisor or any third party possessing that skill suffers ailment or death or any other serious issues. In the case of Robinson Davison, it was established by the court that the arrangement to play in concert relies upon the personal skill of defendant’s wife, and the contract cannot be specifically imposed owing to her sickness.

• Determinable Contracts: Determinable contract means a contract that can be determined or revoked or terminated by a party to the contract. For example: In the case of a partnership business, each partner may withdraw by giving written notice to other partners and may dissolve the firm.

• Contracts involving the performance of continuous duty which cannot be supervised by the court: Earlier under the Specific Relief Act, 1877, a continuous duty which cannot be supervised by the court shall be considered for a period of 3 years which has been omitted under the Specific Relief Act, 1963. The Specific Relief Act, 1963 is not refrained by any time limit for the execution of a continuous duty. Contract of execution of a sale deed is an example of the contract involving the performance of continuous duty.

RESTITUTION

Restitution is a category of remedy available in both several civil and criminal cases in which the evaluation of remedy is done on the basis of the defendant’s benefits or profits, rather than losses suffered by the aggrieved party. Restitution drives the defendant to surrender the benefits that they have unlawfully gained from the aggrieved party. The remedy of restitution is mostly used under the contract law. Restitution in contract law is structured to revert to the same position as the injured person before sustaining damages prior to the existence of the contract. The aggrieved party must make this claim in the initial lawsuit in order to seek restitution.

A party breaching a valid contract may be required to pay restitution. The amount should be determined on the basis of the value have been earned from the violation, which is generally the sum specified in the contract. In addition, restitution may not be granted if the amount cannot be computed with certainty. Parties seeking to restitution may not claim the loss of profits or revenues incurred by the breach. In the event of a breach of contract, restitution damages are limited to the amount specified in the contract. For example, W offers a contract to sell his bike only to X for Rs 40000. If W sells the bike to another entity, he will be obliged to pay the restitution for a sum of Rs 40000 to X as this was the price specified in the contract. Thus, even if the bike was sold for more than Rs 40000, X can only collect on the contract price of Rs 40000.

The remedy of restitution under Contract law is mainly granted for two primary reasons:

• Mould the victim as a whole and reinstate them to their financial status before the event of a breach.  
• To prevent the unjust enrichment of the defendant.

The distinction between restitution and compensation is drawn on the manner of computation of the monetary reward. In the former, the amount of reward is computed on the basis of the unjust enrichment of the defendant, whereas in the latter, the amount is evaluated on the basis of the monetary loss suffered by the plaintiff.

INJUNCTION

Injunction can be defined as an equitable remedy under which the court either orders or restricts the parties to perform certain actions. There are mainly three kinds of injunctions granted as a remedy for breach of contract: Interlocutory injunction, Mandatory injunction and Prohibitory injunction. The aim of the interlocutory injunction is to preserve the status quo of something in an ongoing suit. In simple words, the interlocutory injunction means stopping the occurrence of any action. Interlocutory injunction is applied in before the beginning of something, or stops something from being continued. For example, an interlocutory injunction can be applied in the case where two people are fighting over the ownership of a land.

Mandatory injunction refers to the enforcement of some action by the court. In other words, if the defaulting party back off from fulfilling his promises set out in the contract, the aggrieved party can claim the remedy of the mandatory injunction on the defaulting party before the court to perform the promised action. For example, if the contractor fails to end the construction of a new property by the due date, the court may impose a mandatory injunction for finishing the work.

The term prohibitory injunction means to prohibit conducting some particular act. If two parties had been in a contractual relationship and one of them had decided to sign the same contract with any third party, the court may impose a prohibitory injunction to refrain the defaulting party signing the same contract with the third party.

QUANTUM MERUIT

Quantum meruit is a legal recourse based on fair compensation. It is a potential alternative redress for the partial execution of the contract. A claim can at reasonably be defined as residual equity in quantum meruit.  Quantum meruit is the name of a legal action brought against the accomplishment of work and performance of labour without an agreement on price.  The concept of quantum merit is outlined as the legal formula of appropriate compensation and restitution. It must be noted that this remedy is only available for the part of the accomplished work by any third party other than the defaulting party making a breach of contract. While, if the defaulting party breaching the contract has done the part of the work, the aggrieved party cannot claim anything in respect of it.

In the case of Parshad and Sons Ltd. v. Union of India, [vii] Supreme Court held that Compensation under quantum meruit shall be granted for work performed or services rendered, if the price of such work is fixed by contract. In the case of work performed or services rendered in accordance with the provisions to the terms of the contract, compensation for quantum meruit may not be granted where the contract provides for consideration payable in that behalf.

CONCLUSION

A contract is the source of a specific compendium of rights and duties of the parties that would be of no benefit if there is no contractual provision for redress for damages or injuries suffered by the aggrieved party. Chapter VI of the Indian Contract Act, 1872 allows for the recourse to be rendered to the aggrieved party by means of restitution for damages or injuries suffered by the breach of the contract by the other party. It also allows for compensation for actual damages or injuries suffered by the party in infringement of the contract. Reasonable liquidated damages shall be compensated without evidence of loss. It also provides that in the event of a breach, the contracting parties must agree that the defaulting party shall pay the agreed amount to the other party or may agree that, in the event of a breach by one party, any sum paid to that party shall be relinquished. If it is not a valid pre-estimation of the loss, but a sum expected to ensure the execution of the contract can be considered ‘penalty.’ However, the simple stipulation does not grant the right to compensate through penalty, evidence must be provided for injuries or damages incurred by a breach of contract. Apart from damages, there are several other equitable remedies available in case of breach of a contract but these involve overcoming an abundance of challenges and rebuttals to prove a case of breach of contract.

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REFERENCES

1. [i] S. 73, Indian Contract Act of 1872
2. [ii] (1854) 9 Exch 341
3. [iii] 1974 (2) SC 231
4. [iv] A.I.R. 1962 S.C. 366
5. [v] S.14,  Specific Relief Act 1963
6. [vi] (2001) 7 SCC 698
7. [vii] 1960 AIR (SC) 588

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My name is Anurag Maharaj and I am from Bokaro, Jharkhand. I am a student of law at Lloyd Law School, Greater Noida. I have tried to define the “Position and the Nature/Effect of Minor’s Agreements under the Indian Contract Act” in this article.

Introduction

A contract is a legally binding agreement that acknowledges and administers the rights and duties of the contracting parties. A contract is enforceable if it meets the conditions and the approval of the law. “Section 10 of the Indian Contract Act states that” all agreements shall be contracts if they are concluded by free consent for a legitimate reason and with a lawful intent of the parties competent to contract, and are not explicitly declared void” and Section 11 of Indian Contract Act 1872 defines “Who is competent to contract” .Everyone is competent to contract who is of the majority age in accordance with the law to which he is subject and who has a sound mind and is not disqualified by any law to which he is subject. Before entering into a contract, it can be said that the majority is necessary.

For the purpose of making a contract, a person is said to have a sound mind if, at the time he makes it, he is able to understand it and form a fair opinion about its impact on his interest.

Two conditions prevail here:-

1. He had to be able to grasp the deal,
2. He should be able to make a reasoned decision about the contract’s effect on his interest.

Age of majority:- Section 3 of the Indian Majority Act declares that every person is of majority age who has reached the age of 18. However, when a guardian is assigned to a minor or his property, at the age of 21, he obtains a majority. By looking at Indian law, the agreement of the minor is null and void, meaning that it has no value in the eye of the law, and is null and void as it can not be enforced by either party to the contract. And even though he secured a majority, he did not ratify the same agreement.

Illustration:- This case is the best example on the matter. In this case, a minor mortgaged his house to secure a Rs. 20,000 loan in favour of a moneylender and obtained Rs. 8,000 from the mortgagee. In case of default, the mortgagee filed a claim for his mortgage money to be recovered and for property sales. The Privy Council held that an agreement by a minor against him was completely null and therefore the mortgagee could not recover the mortgage money.

Nature/effect of minor’s agreement:-

1) The agreement of a minor on reaching a majority can not be ratified by a minor:

Ratification means consent or confirmation. A minor can not confirm an agreement after attaining majority that he actually made during his/her minority. This is because ratification relates to the date of the contract and therefore a contract that was null and void from the outset can not be validated by subsequent ratification.

A famous case in this respect is Suraj Narain v Sukhu Aheer. In this case, when he was a minor, a person borrowed money and then made a fresh pledge after gaining a majority to pay back the amount along with interest. The problem to be understood was whether the consideration obtained during minority could constitute a good consideration after majority attainment. The Allahabad High Court held that, after reaching the age of majority, consideration obtained by a person during minority can not be a legitimate consideration and can not be made legitimate for a fresh pledge. The Promiser was found not to be responsible for such a contract that would constitute a void deal

2) A minor’s agreement is void ab initio:-

A contractual agreement in India dealing with a person below the age of 18 is deemed void from the outset in the same way that a minor can not enter into a contract. This can be better understood with the above example.

3) Rule of estoppel:

If one person has intentionally induced or encouraged another person to assume by his act that something is real, he or his members will not be able to dispute the very reality in the future. It determines the Estoppel Principle. Nevertheless, minors are an exception to this law, and they can bargain with a minority, even if they misrepresented their age at the time of agreement.

4) No restitution:

When a contract is void, any person who receives any benefit under the contract must restore the same to the other party or render due compensation. Minors, however, are an exception to this doctrine. They are removed from the other party’s repayment of benefits.

5) Minor’s responsibility in tort:

The word ‘tort’ implies a legal error for which the party concerned can file a lawsuit. “If a minor signs an arrangement by misrepresenting his age, he can not be liable for damages for breach or in the form of damages for wrongdoing” (i.e., deceit) because this would be indirectly enforcing the agreement which is void. However, if a minor ‘s wrongful act (i.e., torture) is independent of the contract, then minor shall be liable in tort for damages. Example-  A, a minor borrowed a mare from B for riding only under instructions to take care of it. B loaned his friend the horse, the horse got out of control of A and jumped and badly injured someone. Therefore, A has been held liable for misconduct.

6) Minor agent:

A minor can act as an agent, but he will not be responsible personally for any of his acts. In the usual course of business, the principal would be liable to third parties for the actions of the minor agent that he does.

7) Minor Partner:

Section 30 of the Partnership Act provides that, with the consent of all other Partners, a minor may be admitted to partnership benefits. His liability is limited to partner shares. He can’t get involved in the management

8) Necessities down to minor

Minor is liable to pay for the necessaries supplied to him by the other out of his property. “Necessaries” means things that are important to a person’s life intent and to his real requirements, and that are sold to him. For example, a house given to a minor on rent for his studies can be recovered from minor ‘s property in a requirement and rent

9. Minor Shareholder:

A minor in a corporation can not become a shareholder because he is incapable of entering into a contract. A business can also refuse to record, pass or forward shares in favour of a minor unless the shares are paid out in full. In the event that a minor inherits such securities, it may become a shareholder working through its legal guardian.

Exceptions to the general rule of minor’s agreement:-

1.Obligation by a Minor

A minor can be a promisee in a contract, but not a promisor and if he has fulfilled his promise portion, he can impose the obligation on another party.

2. A contract entered into for the benefit of the minor by his guardian:

In this case, if a party fails to fulfil its promise, the minor may sue the non-performing party.

3) Apprenticeship Contract

A minor shall only be engaged as an apprentice when his guardian has concluded a contract with the employer on his behalf. Such contracts would be binding on minors

CONCLUSION

A minor’s contract is void from the beginning except in cases of obligation by a minor, guardian’s agreement and apprenticeship. All the agreements are contracts if they are concluded for a lawful reason and with a lawful intent by the free consent of the parties competent to contract, and are not explicitly declared void. Now, every person is competent to contract who is of the majority age according to the law to which he is subject and who is of sound mind, and is not disqualified under any law to which he is subject from contracting.

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The article has been written by Nikhilesh Koundinya a student of Symbiosis Law School, Pune. In this article, he has spoken about the concept of euthanasia. Furthermore, he has discussed the decisions taken by the Indian judiciary with regards to this practice. He has gone onto to the law commission report and provides suggestions for the practice. He would like to thank Grishma Mahatme for her support on this article. 

INTRODUCTION 

Every human being has a right to live a desirous and happy healthy life until he dies. This is a fundamental right that is even guaranteed by the constitution in Article 21. But sometimes the person may not want to live the years granted to him/her and would want to end his life voluntarily. This way of ending life is considered to be unnatural and the person committing the act is termed as someone who has a mental problem or abnormality. There are two ways in which a person can end his/her life. One way is by killing oneself by committing acts which will lead to death eventually. There are many ways such as shooting yourself, hanging yourself or consuming substances which may cause death and many others. This action of a person is predominantly categorised as “suicide”. 

But there is another way by which a person can end his life which is requesting someone else to take his life. This under the law is categorised as “Euthanasia” or in layman’s term as “mercy killing”. The context of how India and other countries have dealt with this phenomenon will be addressed in the paper but first, we must observe the origins of this practice. 

The term euthanasia was derived from the Greek word “eu” and “Thanatos” which means “good death” or “easy death”. Euthanasia or mercy killing is an act of painlessly putting one’s life to death who is suffering from extreme pain and incurable disease by withholding treatment or withdrawing artificial life support measures. Euthanasia was first legalized in Holland, Netherlands in the year 2008.

According to the Black’s Law Dictionary (8^th edition), euthanasia means the act or practise of killing or bringing about the death of a person who suffers from an incurable disease or condition, esp. a painful one, for reasons of mercy. 

The understanding of the definition provides us with the rationale of committing the act of euthanasia. The practice is limited to doctors taking their patient’s life when requested to avoid the irresistible pain and terminal illness. Therefore, the rationale is that a patient can be killed today rather than having ongoing pain for years to come. 

TYPES OF EUTHANASIA

1. Active or Positive– In this kind of practice the person directs somebody else to take his life. This is essentially the patient making a request to be dead. Since the patient suffering makes the request for death from the doctor this is covered as active euthanasia as the patient plays an active role. 
2. Passive or Negative- Passive euthanasia as a practice differs from active euthanasia as this process is affected by omission of a person to do something. So the doctor may not administer certain medicines he should have or will remove the support which he should have which will lead to the person’s death. Hence in this practice the result of death is not promulgated by the patient but due to the intentional omission on part of the doctor or any other person. 
3. Voluntary– The most important term under this ambit would refer to willingness to die and consenting to die. This means that a person who is conscious and can make a decision states that he wants to be killed and this will classify as active euthanasia. 
4. Involuntary– This kind of euthanasia may also amount to an offence under criminal law. If a doctor without taking consent of the patient who is fully conscious to take the decision kills him, it would classify as murder. But the offence would represent the concept of involuntary euthanasia. 
5. Non-voluntary– If a patient is fully incapacitated and isn’t conscious enough to tell his wish and is undergoing a lot of pain, a close family member can make the call to relieve that person from the pain and provide for euthanasia to be performed and this will also classify as passive euthanasia as even in this case the doctors may remove the life support which would lead the person to die. 

There are various ways for performing the practice of euthanasia and the most popular ones are: –

1. Lethal Injection– Injection of a lethal dose of a drug, such as a known poison, KCl, etc.
2. Asphyxiation– The most popular gas used is Carbon monoxide (CO). Nerve gases like sarin & tabun etc. are also added in small amounts to fully ensure death.

EUTHANASIA IN INDIA

The practice of euthanasia was not recognised for a long time in the Indian scenario. But then the landmark judgement of the supreme court came about which was called “Aruna Shanbuag v Union of India”. The facts of the case are as follows: 

1. The Aruna Shanbuag was a nurse in King Edward Memorial Hospital located in Mumbai in the Parel area. On 27^th November 1973 when she was changing clothes in the basement a sweeper named Sohanlal tries to molest and sexually assault her but when he failed to do so he strangled her with a chain and sodomized. 
2. The perpetrator was later tracked and was sentenced to jail but the case of rape was never filed due to the lack of police investigation. Thus, the mention of sexual assault and anal rape wasn’t presented in the court. 
3. When the incident took place, the court observed that due to strangling of the neck with a metallic chain the oxygen to the body did not pass and thus she was left in a vegetative state ever since. After the incident she was taken to KEM hospital for treatment and was kept alive using a feeding tube. 
4. Pinky Virani who was a social activist wanted to help her and thus instituted a case in the Supreme court to end the life of Aruna because she was in a vegetative state and this violated her fundamental right to live a life with dignity. The court rejected the petition as the court realised that the doctors and the staff working with Aruna did not want to take her life. Thus, the court while rejecting the petition allowed the practice of passive euthanasia in India. 
5. Aruna died of pneumonia in 2015 being in a coma and vegetative state for the past 42 years. 
6. The judgement was considered to be against the fundamental right under article 21 which is right to life and thus in a case in 2014 the court directed the decision of passive euthanasia to be reheard under a constitution bench. 
7. The government in the same year on 23^rd December 2014 the government stated that it agrees with the decision of the Supreme court with regards to passive euthanasia and because the guidelines have already been issued by the Supreme court they would be followed.

LEGAL ASPECTS OF EUTHANASIA IN INDIA

Euthanasia has not been completely legalized in the Indian subcontinent. Only the concept of passive euthanasia has found support from the court and from the law makers. There have been various decisions passed in relation to euthanasia under Indian law: 

1. State of Maharashtra v Maruty Shripati Dubal– In this case, the main contention raised was the fact section 309 of the Indian Penal Code (IPC) is violative of articles 19 and 21 of the constitution. The court held that this section would be scrapped and held that there is nothing illegal in trying to end one’s life. In fact, when article 21 of the constitution gives a right to live it must also give a right to die. The court held that though it is abnormal to end one’s life yet it is not illegal to do it. 
2. Gian Kaur v State of Punjab– In this case, the court held that a person who is terminally ill or is in a constant vegetative state is not being killed and nobody is infringing on his right to life whereas we are only accelerating the process of death so that the person doesn’t undergo untoward pain. 
3. In the case of Airedale NHS Trust v Bland for the first time right to die was allowed in English law system where life support services were cut out for the patient. This case was a landmark case because it gave powers to the judiciary to decide what to do and when to allow passive euthanasia after judging and coming to a conclusion on the patient’s state. 
4. In the case of Mckay v Bergsted the court for the patient and state interest removed the breathing system from the patient’s mouth. Thus, even in this case, the patient’s interest was taken into consideration. 

GUIDELINES REGARDING EUTHANASIA 

After the Aruna case there were several guidelines issued by the Supreme court in relation to what steps are to be followed to conduct the procedure of passive euthanasia:

1. First of all, for the process of euthanasia to be administered the high court must allow the practice only after observing that the due procedure has been followed. 
2. Whenever a petition is raised for the grant of passive euthanasia for a person who is terminally ill or in a vegetative state the chief justice of the high court will appoint two judges to loom into the matter presented before the court and then take a decision on whether to approve or disregard the petition. 
3. Before arriving at the decision, the two-judge bench must consult with at least three doctors to know the exact repercussions of their decision and also the patient’s present state and the hope for recovery. In the meantime, a letter will also be issued to the close relatives of the patient and a copy of the doctor’s report will be made available to them as soon as the report is completed. On the basis of all this the high court will make a decision regarding the person’s request. 

LAW COMMISSION OF INDIA AND ITS RECOMMENDATIONS

The law commission of India had recommended few changes with regards to the law related to suicide where suicide should not be looked like an offence but it should rather be defined as a disease and required treatment should be provided to the concerned person. Furthermore, it had also recommended repealing section 309 of the Indian Penal Code, 1860.

Accordingly, keeping these factors in mind, the Law Commission of India in one of its report has laid down certain necessary guidelines which should be considered.

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EVENT

Online Workshop on RTI on 31st MAY 2020

Organiser:-

RTI ONLINE SERVICES
(Name established in World Book of Records)

Speaker:-

Varun Bansal, Advocate (World Recordee & Gold Medalist)

Other Informations:-

Online Certificates will be issued to all the participants

Seats are limited (First Come First Serve Basis)

Contents:-

1. Background of RTI
2. Details of PIO, FAA, Public Authority, Fees, Commission
3. Practically Drafting of RTI application.

Batches:-

First batch:- 11AM
Second Batch:- 5PM
Dated:- 31st May 2020 (Sunday)

Registration fees:- Rs.300/-

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Disclaimer: Lexpeeps.in is acting as media partner for the event though the website is not concerned with the payment gateways being used.

The Centre is looking to engage a Research Associate to support the research and ancillary activities of the Committee.

DURATION:

The engagement shall be for a period of six months (extendable by another six months), starting immediately.

RESPONSIBILITY:

The Research Associate shall primarily be required to conduct research in the areas of
Criminal Law, including the Indian Penal Code 1860, the Code of Criminal Procedure 1973
and the Indian Evidence Act 1872

The Research Associate will additionally be required to carry out other activities of the
Committee including the organisation of consultations and meetings with various
stakeholders.

The Research Associate shall be assigned any other such responsibility as the Committee may deem fit.

ELIGIBILITY

B.A. LL.B. (Hons.) or LL.B. with a research experience of more than three years; or, LL.M., with a research experience of more than two years.

RENUMERATION:

The renumeration shall be commensurate to experience.

APPLICATION PROCESS:

All Applicants are required to apply by 24th May 2020, 11.59 pm latest. Applications beyond this date and time will not be considered.
The applicants are required to submit their CV, a Statement of Purpose (maximum 300 words) and a writing sample (published/unpublished, sole authorship, preferably on Criminal Law) to ccv@nludelhi.ac.in with the subject ‘Committee for Reforms in Criminal
Law: Application for the Post of Research Associate’.
The selected candidates shall be required to appear for an interview.

This post is written by Anushree Tadge, 3rd-year law student of ILS Law College, Pune, she tries to explain briefly what the concept of Alternative Dispute Resolution is? Its meaning, nature and genesis.

Introduction

Indian judiciary is one of the few very old judiciaries throughout the globe and is a carefully designated one under the Constitution of India. Even after being efficient enough, the Indian courts are known worldwide for their slow judicial procedure. More than 43 lakh cases are pending in the high courts all over the country and it was reported to the Rajya Sabha in 2019 that over 8 lakh of these cases are over a decade old. This is a big problem and the major reason for it is the increasing population and with it the ‘unsatisfactory’ proportion of judges to citizens.

Long unsettled cases disturb the mental as well as the financial health of both the parties. This problem persists long after establishing more than a thousand fast track Courts but the filing of a case requires a day, but disposal of cases take months. So, Courts alone efficiently handling pending cases while disposing of new ones is possible only in a Utopian country.

What is ADR?

Hence, dealing with such problems requires external help other than Judicial setups and in such Alternative Dispute Resolution (ADR) can be a helpful one, it is an umbrella term for various methods that resolve conflict in a peaceful manner acceptable to both the parties. ADR as a concept can be substituted to the conventional methods in order to resolve disputes. ADR as a process can efficiently resolve all type of matters – civil, commercial, family, companies etc. ADR uses the assistance of a neutral third party who helps both the parties to communicate as well as discuss the differences in order to reach a settlement that will take into consideration the arguments of both the parties. This includes Arbitration, Mediation, Negotiation as well as Conciliation (the most popular ADR methods).

Arbitration

Arbitration is a substitute to court trials, it cannot exist without a valid arbitration agreement clause, inserted before the dispute emerges. In this kind of ADR system, the proceedings shall be with arbitrators (substitute to judges in Court), they can be one or two in number. The decision of an arbitrator is binding on the parties (just like Court proceedings) and the decision is called ‘Award’. The sole object of Arbitration proceedings instead of conventional one is to obtain a just and fair settlement of disputes outside court without necessary delay and expense that is expected out of Court trials.

Either of the parties (in a contract with arbitration clause) can invoke the clause either himself or by way of an authorized agent. Here, the arbitration clause is a clause that mentions the course of actions in case a party wants to go for arbitration, language involved, number of arbitrators to be seated, and place where the arbitration is to be conducted.

Mediation

Mediation is another form of Alternative Dispute resolution where a third neutral party aims to resolve disputes between the parties and assist them in reaching an agreement. It is an easy and uncomplicated process, extremely party centred. A third party is appointed as a mediator to resolve the dispute amicably by using appropriate communication and negotiation techniques. Mediator’s sole objective to help parties reach a common point, he doesn’t impose his views and make no such decision imposing on the parties, what a fair settlement should be. Four stages of mediation are- Opening statement, Joint session, Separate session and finally Closing.

Conciliation

Conciliation can be called as another form of arbitration but it is comparatively less formal in nature. It is different because ‘clause’ for conciliation to be invoked by either of the parties is not a mandate of this ADR, but since a conciliator does a similar job to an arbitrator, the proceedings work on similar lines. Also, it is actually not possible for the parties to have a conciliation agreement before the dispute. It is stated in Section 62 of The Arbitration and Conciliation Act, 1996 that,

• If a party wishes to initiate conciliation, it shall send to the other party a written invitation to offer the same, along with a brief introduction of the subject of the dispute.
• The proceedings shall commence only when the other party accepts the same
• If the other party wishes to reject the invitation, there will be no question of conciliation proceedings.

Nature of ADR: Explained-

‘Alternative dispute resolution’ as a word literally means to solve the dispute by alternative mechanisms. As mentioned above, these are techniques of dispute settlement outside of the government judicial process and solve disputes by mutual understanding. ADR is extra supports the judicial system by easing the burden on the same. It is less expensive and time-efficient. According to Justice Mustafa Kamal, “it is a non-formal settlement of legal and judicial dispute as a means of disposing of cases quickly and inexpensively”

ADR process are-
• Settled with the assistance of a neutral third person
• the third person is familiar with the nature of the dispute
• involved with proceedings that are informal,
• consumed with lesser procedural technicalities
• cost and time-efficient
• efficient because the confidentiality of the subject matter (related to the dispute) is maintained to a great extent

Genesis of ADR: Explained-

Alternate Dispute Resolution System is not a new experience for the people in our country. It has been prevalent for a long time. System of Dispute Resolution, anciently, made a significant contribution in matters related to family, social groups, and trade and property. Disputes were also resolved at village level where elders comprised the ‘Panchayat’ and performed the informal ‘mediation’. More such institutions like Kulas, Srenis and Parishads adjudicated disputes before ‘kings’. Further with the entry of East India Company, Modern Arbitration Law was introduced by way of Bengal Regulation of 1772, 1780 and 1781 In the common law countries, ADR has its roots in the English legal development. Charters and documents reveal that some respected male members in the community often resolved disputes as extended legal authorities of kings, creating one of the first forms of arbitration. In the modern times, dispute resolution refers to both Alternate Dispute Resolution subsequent to which is the Online Dispute Resolution. ADR system includes the mechanism, short of litigation, rather with the help of a third party. This may refer to Arbitration, Mediation, and Negotiation and Conciliation, sometimes. With technology seeping into this whole arena of ADR, Online dispute resolution is the new face of Dispute Resolution.

ADR in India

The ADR mechanism has proven to be one of the most effective mechanisms to resolve disputes of commercial matters. In India, laws relating to resolution of disputes are three in number. The Judiciary itself also encourages out-of-court settlements to meet with the pending cases in the courts. Few important provisions related to ADR in India-

• Section 89 of the Civil Procedure Code, 1908 – It provides the opportunity to people, to settle matters outside the court by way of Arbitration, Conciliation, Mediation or Lok Adalat.
• The Acts dealing with Alternative Dispute Resolution are Arbitration and Conciliation Act, 1996 and,
• The Legal Services Authority Act, 1987
• To effectively implement the ADR mechanisms throughout India, organisations like the Indian Council of Arbitration (ICA), The International Centre for Alternative Dispute Resolution (ICADR) were established in the year 1965 and 1993 respectively. The ICADR is an autonomous organisation, working to promote and develop ADR facilities and techniques throughout India. While the main objective of the Indian Council of Arbitration- ICA is to promote amicable and quick settlements of matters by arbitration. Arbitration and Conciliation Act, 1996, law, is based on the United Nations Commission on International Trade Law (UNCITRAL) model of the International Commercial Arbitration Council.

References

• Md. Aktaruzzaman, Concept and Law on ADR and Legal Aid, 2nd ed., (Dhaka, Shabdakoli Printers, 2008), p.9.

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This article is written by Samridhi Sachdeva pursuing BBA LLB from Gitarattan International Business School, GGSIPU. This article talks about the In vitro fertilisation, its advantages and disadvantages and the laws related to it in India.

INTRODUCTION

Any medical process that helps to produce babies or help in obtaining pregnancy by means other than by sexual intercourse is termed as Assisted Reproductive Technology(ART). This method helps to solve the problems faced by infertile couples.

Assisted Reproductive Technology includes Artificial Insemination, In-vitro Fertilisation(IVF), Embryo Transfer(ET), etc.

In Vitro Fertilisation(IVF)

The term “in vitro” means in Latin, “in glass”. It is used as early biological experiments involving the cultivation of tissues outside the living organism were carried out in glass containers such as beakers, test tubes or Petri dishes.

The babies conceived by this method are called “test-tube babies”.

IVF is a technique of producing babies by fertilising an egg with the sperm outside the body. The success rate for each IVF cycle is around 20-30%. Success rates are affected by many factors, including the age of the patients, quality of sperms and eggs, reproductive health, time period of infertility, medical expertise. The risk of multiple births is the major complication in IVF due to the transfer of multiple embryos.

History

• Walter Heape, in 1890, for the very first time performed the technique of in vitro by transferring in vivo fertilised eggs from one female rabbit to another.
• Later, in 1959 M.C. Chang, successfully conducted IVF in rabbits.
• Louise Brown, the first ‘test-tube baby’ was born out of the IVF technique on July 25, 1978, with lots of controversy over the safety and morality issues.
• In India, the first baby born out of this method is Durga, being the second baby produced through IVF in the world, was performed by a Calcutta based doctor, Dr Subhash Mukhopadhyay on October 3, 1978.
• Public debate and criticism aroused after the occurrence of these two events. These acted as obstacles for IVF, but besides these, the method survived and helped the couples suffering from infertility.

Advantages   

In vitro fertilisation offers the chance of producing babies to the ones who are not capable of conceiving naturally. It reduces the chances of surgery on the woman’s fallopian tube. It helps scientists to study fertilisation and early embryonic development in the similar environment outside the body of the woman. It gives a greater understanding of the reasons for birth defects.

Disadvantages

In India, some IVF clinics sell the eggs and the embryos through advertisements over the internet. Also, some eggs and embryos are stolen and given to researchers. Some fertility drugs have been sold illegally.

And sometimes, the surrogate mother refuses to get separated with the baby she was assisted for. This creates a big problem for the couple who actually wanted a baby through this technique.

IVF in India and Laws

After the birth of the first scientifically well-documented test-tube baby in 1986 in India, the IVF clinics across the country, emerged without supervisory and regulatory control of the Government. This propelled the Indian Council of Medical Research(ICMR) to develop National Guidelines for Assisted Reproductive Technology(ART) clinics in India in 2002. Later, the Ministry of Health and Family Welfare examined these guidelines and published National Guidelines of Government of India in 2005, with slight modifications.

Indian Council of Medical Research(ICMR) developed draft for Assisted Reproductive Technology (Regulation) Bill in 2008 and sent to Ministry of Health and Family Welfare, now known as Assisted Reproductive Technology (Regulation) Bill, 2017.

This act aims to prevent the misuse of ART techniques including safe and ethical practices. It specifies the duties and obligations of the ART clinics and banks and also of the egg donors, surrogate mothers and the couples/individual seeking ART.

This bill has made detailed provisions about research on human embryos, duties under Pre Implantation Genetic Diagnosis(PGD) and sex selection.

It also deals with sourcing, storage and handling of gametes and embryos, restrictions on the sale of gametes, zygotes and embryos.

However, in February 2020, the Union Cabinet approved the Assisted Reproductive Technology(Regulation) Bill-2020, that intends to regulate ART clinics and banks with the objective to provide ‘safe and ethical’ reproductive techniques to infertile couples.

The government called this bill ‘historic’ for the welfare and safety of women in the country. The bill also proposes stringent punishments for those who practice sex selection, sale of human eggs and embryos or any such rackets or organisation for unlawful practices. The bill also states that,

“The egg donor needs to be supported by an insurance cover, protected from multiple embryo implantation and children born out of ART should be provided all rights equivalent to biological children.”

This bill intends to safeguard the rights of women and children and tries to save them from exploitation.

The bill also intends to make it mandatory to conduct tests to help to identify genetic defects within embryos, for the benefit of children.

The legalities behind the cost of IVF treatment can sometimes be quite complex, but they will help to identify the best IVF clinics. According to the Indian Council of Medical Research, the criteria to be followed by fertility clinics are:-

1. Registration for all fertility clinics and banks dealing with infertility treatments and involved in the use and creation of embryos outside the body.
2. Code of practice to identify the qualification of the expertise.
3. Written consent of the couple, otherwise no operation will take place.
4. Counselling of the patient about the treatment, before and after the procedure.
5. Human embryo should not be placed in any non-human body.

Conclusion

While the guidelines attempt to incorporate some issues related to social justice and gender inequality, they still fall short on many fronts. These guidelines should go beyond technologies and provide effective measures so that the unequal power relationship between the providers and the users of the technology is minimised. The guidelines should also keep in mind, the unequal gender balance and ensure that the rights of women users are not compromised in any manner.

This article is written by Alok Kumar. He’s Currently pursuing Bachelor of laws from MAIMS, GGSIPU, Delhi. This basically deals with the topic of expert opinion under the Indian evidence act (section 45) and it includes the definition of experts, what type of opinion they can give and what is the importance of the expert opinion with their duties and the courts’ role regarding the expert opinion.

INTRODUCTION

The opinion of experts is given under Section 45 of INDIAN EVIDENCE ACT, 1872. These are the parties not legitimately or in a roundabout way associated in any way to the suit or proceeding which is pending in the court, however, they are called by the Court to help the Court, when the Court can’t shape the judgment himself.

Section-45 to 51 of the Indian Evidence Act 1872 sets out the arrangements identifying with “assessment of specialists/third individual when significant. Section 45 arrangements with realities heaps of specialists, Section 47 arrangements with supposition as to penmanship when important. Section 47A accommodates opinion as to digital signature, when pertinent. (It is embedded by IT Act 2000) Section 48 arrangements with supposition as to the presence of right or custom when important. Segment 49 arrangements with assessments as to utilizations, fundamentals and so on., when pertinent Section 50 arrangements with supposition on relationship, when important. what’s more, Section 50 accommodates grounds of supposition, when pertinent?

WHO IS AN EXPERT?

An expert is a person who is a skilful competent in some proficient field fit for having specified knowledge concerning the matter in issue, which a typical man can’t have.

According to section-45, Opinion of experts is “When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting (or finger impressions), the opinions upon that point of persons specially skilled in such foreign law, science or art,  [or in questions as to identity of handwriting]  [or finger impressions] are relevant facts. Such persons are called experts.“

IMPORTANCE OF EXPERT OPINION

The Supreme Court in the case of State of H.P. v. Jai Lal and Ors. clarified the substance of expert opinion conclusion by expressing that Section 45 of the Evidence Act which makes the opinion of expert allowable sets out, that, when the court needs to frame an opinion upon a state of outside law, or of science, or craftsmanship, or as to identifying of hand wringing or finger impressions, the suppositions upon that purpose of people uncommonly gifted in such remote law, science or workmanship, or in inquiries as to the character of penmanship, or finger impressions are pertinent realities. In this manner, so as to bring the proof of a witness as that of an expert it must be demonstrated that he has made an exceptional investigation of the subject or procured an extraordinary encounter in that or as it were that he is talented and has sufficient information regarding the matter.

DUTY OF THE EXPERT?

1. An expert isn’t an observer of reality.
2. His evidence is of an advisory character.
3. An expert ousts and doesn’t decide.
4. An expert witness is to outfit the appointed authority essential logical standards for testing the exactness of the end to empower the adjudicator to frame his free judgment by use of the rules to the fact demonstrated by the evidence.

WHAT IS THE EVIDENTIARY VALUE OF EXPERT OPINION?

A Court isn’t limited by the evidence of the specialists which is to a huge degree advisory in nature. The Court must determine its own decision after considering the opinion of the expert which might be illustrated by the two sides, carefully, and after mulling over the experts on the point on which he deposes.

The estimation of expert opinion lay on the facts on which it is based and his competency for framing a dependable opinion. The evidentiary value of expert opinion based upon the facts whereupon it is based and furthermore the legitimacy of the procedure by which the end is reached. Where the specialists give no genuine information on the side of their supposition, the evidence despite the fact that allowable, might be rejected from thought as managing no help with showing up at the right value.

The Allahabad Court in one of the cases relating to the issue being referred to expressed that the value of expert evidence relies to a great extent upon the cogency of the reasons on which it is based. All in all, it can’t be the base of conviction except if it is supported by other evidence.

SUBJECT ON WHICH EXPERT CAN TESTIFY

If we look in section-45 we will find the subjects on which experts can testify and they are science and art, foreign law, handwriting and foreign impressions.

FOREIGN LAW

Foreign law implies any law which isn’t in power in India the courts of the nation may not be in a situation to value the standards of foreign law and consequently at whatever point a Court needs to choose an issue of foreign law the court can look for the assistance of the individuals who are experts on the specific foreign law. In England, it tends to be demonstrated by leading expert evidence.

SCIENCE OR ART

Expert opinion is applicable to all inquiries on purposes of science or art. Science or art remembers all subjects for which a course of uncommon investigation or experience is important to the arrangement of an opinion. Field has cited “These words are to be extensively interpreted, the term science not being restricted to higher Sciences and the term art not being constrained to expressive arts yet having its unique sense of handiwork trade profession and expertise work which with the development of culture has been conveyed past the circle of the regular motivation behind life into that of artistic and logical activity.” To decide if a specific issue is of a scientific sort or not the test to be applied is whether the topic of enquiry is to such an extent that experienced people are probably not going to demonstrate fit for framing a right judgment without the help of experts.

HANDWRITING AND FINGER IMPRESSION

Under section 45 of the Indian Evidence Act, an expert can dismiss to the character of handwriting between the addressed document and the archive conceded or demonstrated. Contested handwriting might be demonstrated either by calling an expert or by analyzing an individual familiar with the handwriting of the individual by whom the inquiries report is claimed to have been composed or an examination of the two under section-73. At the point when the court needs to settle on the character of the handwriting of someone in particular or The Identity of someone in particular’s finger impression, the court may get the evidence of an individual who has gained a skill on the issue. About from people having proficient capability regarding the matter the court may get the evidence of an individual who is in any case familiar with the subject. In R v. Silverlock, 1894 2 QB 766, the court saw that a solicitor may be treated as a specialist in handwriting regardless of whether he had gained his insight as a beginner. with regards to the dependability of such evidence the Supreme Court has set down and many cases that the evidence of a specialist as to handwriting is just in the idea of an assessment and can once in a while replace meaningful evidence. It ought to be confirmed either by clear direct evidence or by fortuitous proof.

The assessment of thumb impression expert is qualified for more noteworthy weightage than that of a handwriting expert.

In R v Oakley, (1979) Crim LR 657 CA, a cop who had gone to a course, breezed through a test as an accident expert and went to in excess of 400 accident was qualified for giving master proof with respect to the reason for an accident.

The Supreme Court in the case of State of H.P. v. Jai Lal and Ors.,(1999) 7 SCC 280, clarified the substance of expert opinion by expressing that Section 45 of the Evidence Act which makes the opinion of expert permissible sets out, that, when the court needs to frame a conclusion upon a state or foreign law, or of science, or art, or as to the character of handwriting or finger impressions, the feelings upon that purpose of people extraordinarily gifted in such foreign law, science or art, or in inquiries as to the personality of penmanship, or finger impressions are significant realities. Along these lines, so as to bring the evidence of a witness as that of a specialist, it must be indicated that he has made an exceptional investigation of the subject or obtained a unique experience in that or as it were that he is skilled and has sufficient information regarding the matter.

Conclusion

Without an independent and reliable confirmation, the expert opinion may have no value in the eye of law. Once the court accepts an opinion of an expert, it ceases to be the opinion of the expert and becomes the opinion of the court.

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This article is written by Pranit Bhagat. He’s currently pursuing his bachelor in laws from ILS, Pune. In this article, he has discussed the terms ‘Murder’ and ‘Attempt to Murder’, and along with this, he has also tried to distinguish between these two terms.

Introduction to ‘Murder’ and ‘Attempt to Murder’

The term ‘Murder’ has been derived from a German word which means ‘secret killing.’ It is defined under section 300 of the Indian Penal Code, 1860. In a layman’s language, murder will be killing a person without the intention of getting caught for the same while an attempt to kill someone (not resulting in the death of that individual) will be considered as an ‘attempt to murder’. The Indian Criminal law- IPC, 1860 looks at the crime of murder as a very heinous one and sets up punishment like a death sentence or life imprisonment by proper discretion of the court. The article has content aimed at briefly explaining the two and the legislations associated with it.

Murder or Culpable Homicide?

Now to understand the concept of murder, first ‘Culpable Homicide’ should be explained. “Homicide” has been derived from Latin where “homo” means “man” and “cide” means “I cut.” Thus, homicide can be explained as a man killing another man. It can be lawful or unlawful. Thus, culpable homicide means causing death through a human agency which is punishable by law. We can say that Culpable homicide is the genus and murder would be its specie. To understand better, Murder as an offence is the aggravated form of Culpable Homicide. Criminal intention or knowledge of the person is an essential element for committing either of the offences, be it Murder or culpable homicide. There is a very thin line of difference between the two offences which is based on the intention and knowledge involved in it. The basic difference lies in the degree of the commission of the said offence. The person will be held accountable according to the degree of the offence that one has committed. Thus, we can say that all murders are culpable homicide but not all culpable homicides are murders. Section 300 of IPC clearly states the difference of when the act committed will fall under culpable homicide and when the act committed will amount to murder. So, a person throwing a knife at any other individual in a feat of anger resulting into death of the person due to stab would be a culpable homicide because even if there were no dark criminal intentions, the ‘person has blood on his hands’ whereas if a person with gun repeatedly shoots some other aiming at chest has a criminal intent of taking his life and it’s a clear case of murder

Provisions governing-

The Indian Penal Code , 1860

Section 299 of IPC:

• A person is said to commit culpable homicide if he has done an act through which a death is caused.
• The person had an intention to cause death.
• Or the intention to cause such a bodily injury which is likely to cause death.
• Or the knowledge, that the act is likely to cause death.

For example, a person A has been hiding behind a bush and the fact is known to person B, who induces fire deliberately knowing that it may kill A, A even dies due to it, in that case, B has committed an act of culpable homicide and is guilty of it.

Section 300 of IPC and it’s exceptions-

• With respect to the exceptions, culpable homicide can be considered as murder, if the act through which death is caused is completed.
• The person had an intention to cause death.
• The person with an intention to cause such bodily injury to another person, which he knows can cause the death of that person.
• The person with the intention of causing such bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.
• The person with the knowledge that the act committed was so dangerous that it in all probability will cause death, or such bodily injury, which may cause death.

For example, a person A shoots another person, B repeatedly in the chest, causing the death of A, such act would be considered as ‘murder’ and will be charged under S. 300 of the Indian Penal Code. 

Explanation- Sec. 299 and Sec. 300

Moreover, both S. 299 and 300 are provisions related to deliberate death of an individual by some other individual but since they are so closely related, to understand them better individually, the difference between two must be noted. The degree of intention or the knowledge to cause the death of a person determines the nature of the offence, whether it would fall under the purview of murder or culpable homicide. The Supreme Court has also expressed its regret that any distinction made between murder and culpable homicide not amounting to murder is often lost sight of because a thin line difference makes it very difficult to differentiate and even prove the same. The more the intention considered as grave and indicating confirmation to kill, more becomes an act heinous and considered as murder. Slow poison administered by an individual requires medical knowledge, which also confirms that the person had a whole-hearted intention with a plan to kill. This will be considered as murder but only beating up a person aimlessly resulting in death would be a culpable homicide. Interestingly even in cases where a person is exercising his/her right to private defence against any other attack, while doing so causes the death of the attacker, it will still be a case of culpable homicide and not murder.

There is a very slight difference between the act of committing murder and culpable homicide. Culpable homicide basically means the killing of a human being by another person. There are five exceptions provided in Sec 300 of Indian Penal Code. 

These are the exceptions where death will not amount to murder-

Exception-1: Sudden and grave provocation

Sometimes a person may commit an act which leads to the death of another person due to grave and sudden provocation. Then such a person will be held for culpable homicide not amounting to murder. In such a case the person loses his self-control for a moment and commits such an act. The Essentials for this exception to be valid are: 

1. There must be a provocation 
2. The provocation must be grave and sudden 
3. By reason of such grave and sudden provocation, the offender must have been deprived power of self-control. 
4. The death of the person who gave the provocation or of any other person by mistake or accident must have been caused.

For example, A is informed that his wife has been cheating on him, on the enquiry of the same, A himself catches her in compromising position due to which A suddenly goes and shoots his wife in anger. It will be a case of culpable homicide not amounting to murder.

Exception- 2: Exceeding the right of private defence

The law contained in this exception is based on the rule that in a case in which law itself empowers an individual to inflict any harm short of death, it ought hardly to visit him with the highest punishment if he inflicts death. The Essentials for this exception to be valid are:

1. An act must be done in exercise of the right to private defence of person or property 
2. The Act must have carried out in good faith. 
3. The person doing the act must have exceeded his right given to him by law and have already caused the death. 
4.  The act must have been done with premeditation and without any intention of causing more harm than was necessary for self-defence.

For example, in a case of sexual assault faced by a girl, the girl hits the assaulter with a sharp object to protect herself. While doing so, she kills the person. It will be a case of culpable homicide and not murder.

Exception-3: Offence committed by a public servant

This exception shall not apply where the act of a public servant is illegal and unauthorised by law or if he glaringly exceeds the powers entrusted to him by law. The Essentials for this exception to be valid are:

1. Offence committed by a public servant or by some other person acting in the aid of such public servant, in the advancement of public justice.
2. Public servant or such other person exceeds the powers given to him by law. 
3. Death is caused by doing an act which he in good faith believes to be lawful and necessary for the discharge of his duty as such public servant. 
4.  The act must have been done without any ill-will towards the person whose death is caused.

While handling protests, a police officer is allowed to throw water at the people in order to control them, while doing so a woman continuously walking ahead gets hit with the water pressure, feels terrified and dies on the spot, the officer had no intentions of killing her but it will be the case of culpable homicide and not murder.

Exception- 4: Death caused in sudden fight

By fight here we mean something more than a verbal quarrel. A fight is a combat between two or more person whether with or without weapons. Fight per se is not a palliating circumstance; it must be sudden, nor pre-arranged. Therefore the time gap between the quarrel and fight is very important. The Essentials for this exception are:

1. Death must be caused in a sudden fight 
2. Sudden fight must be without any premeditation.
3. It must occur in the heat of passion upon a sudden quarrel. 
4. The offender must have not taken undue advantage or must have not acted in a cruel or unusual manner. 
5. It is immaterial as to which party offered the provocation or committed the first assault.
6. The fight must be with the person killed.

For example, two young men get into a fight as one accuses the other of robbing his car. Completely enraged by the accusation, one starts beating the other and the other replies violently, while doing so one of them is killed, it will be a case of culpable homicide and not murder

Exception-5: Death caused of person consenting to it

Culpable homicide is not considered as murder if the death of a person above the age of eighteen is caused and the risk of death is with his own consent. Then, culpable homicide is not considered murder. The Essentials for this exception are:

1. The death was caused with the consent of the deceased. 
2. The deceased was then above 18 years of age  
3. That such consent was free and voluntary and not given through fear or misconception of facts.

For example, the best example to understand this exception is that of arrow shooting the apple on one’s head. If a person stands with an apple on his head and consents to the other to shoot at the apple, putting his own life at risk, in case dies, shall not be called murder but rather culpable homicide, because the person ( more than 18 years) consented to such risk.

Murder is a Cognizable and Non-bailable offence, triable by Court of Sessions.

Caselaw Reference –

Reg. Vs Govinda (1877) ILR 1 Bom 342: 

In the case of Reg. v. Govinda, a clear distinction was seen between culpable homicide and murder. 

Facts of this case :

According to the facts, there was a fight between the husband and wife and in a fit of anger, the husband knocked his wife. Later, she became unconscious and in order to wake up the wife, he punched her with closed palms but unfortunately, the wife died because of internal bleeding in her brain. Herein, the court held that the man was liable under Section 299 of IPC and not under Section 300 because clearly there was no intention to cause the death of his wife and the act was not grave enough to cause the death of the person on the spot. The accused was liable for culpable homicide not amounting to murder.

Difference Between Culpable Homicide and Murder

It is extremely difficult to distinguish between Culpable Homicide and Murder as the end result of both is death but there is a presence of difference to a very subtle distinction of intention and knowledge involved in both the crimes. The main differences between culpable homicide and murder were laid out and principles were held and formed as: 

1. Culpable homicide is wider than the term murder. Culpable homicide is therefore considered as the genus while as murder is regarded as a species. All murders are culpable homicide but all culpable homicides are not regarded as murder. 

2. Murder is an aggravated form of culpable homicide.

 3. In murder, the offender has a definite knowledge that the act would result in the death while as in culpable homicide the knowledge is not so definite. 

4. The probability of causing death is higher in murder than culpable homicide.  

Attempt to Murder

The second part of this article deals with Section 307 of the Indian Penal Code, 1860 which talks about attempt to murder. Attempt to murder is a failed shot of a person to kill some other individual and therefore a lot of what is explained in this section depends on the intention and knowledge of the accused and also, the preparation that he takes before committing the crime.

Provisions governing-

Indian Penal Code, 1860

An offence under IPC section 307 must have these two ingredients:

(a) An intention of or knowledge related to the commission of murder;

There are three considerations which appear to be essential to determine whether an act is done within the ambit of section 307- the nature of the act done, the intention or knowledge of accused and the circumstances under which the act is done. The intention or knowledge of the accused is taken into consideration and not the consequences of the actual act done for the purpose of carrying out the intention. The court has to decide on the basis whether the act was done with the intention or knowledge. The accused must have the intention or knowledge and it is a necessary condition to constitute murder. If this ingredient is not established, there can be no offence of “attempt to murder”. The intention has to be gathered from all circumstances of the case like the nature of the weapon used, the manner in which it is used, the motive of the crime, the body part where the injury is inflicted to determine the intention or knowledge (i.e. Mens Rea ) of the accused and not merely from the consequences that have been followed.

(b) The doing of an act towards it.

Only wrong and evil intent is not sufficient to constitute a crime. Some voluntary act or omission must be shown by a man in order to be punishable. An act should be committed which is capable of causing death in the natural and ordinary course of things to commit an offence of “attempt to murder.” 

Illustration: Mixing of poison in food with intent to cause death will be an offence under this section even though if no death occurs.

If the act which is complained of is not capable of causing death then the accused cannot be convicted under this section. For example, the act of pulling an unloaded gun cannot constitute the offence no matter what the accused intention or belief is.

Note-The attempt to murder under section 307 IPC has a lot of similarities with section 324 IPC, which talks about voluntarily causing hurt using dangerous weapons. The offence of attempt to murder is a very grave offence because it is not very different from the offence of murder itself. These two offences have only one major difference that is the death of the victim which is not present under section 307.

Caselaw Reference

Vasan Jadhav vs. State of Maharashtra, 2004 

The Supreme Court held that to justify any conviction under section 307, it is not essential that bodily injury capable of causing death should have been inflicted. The nature of injury caused can often give considerable assistance in coming to a finding as to the intention of the accused but such intention can also be deducted from other circumstances. The court has to see whether the act was committed with the intention or knowledge under circumstances mentioned in this section irrespective of its result. If the accused had the intention to commit murder and in the pursuance of that intention he does an act towards its commission irrespective of the fact that the act is penultimate or not, the offence is under section 307 of IPC. An attempt in order to be criminal does not need to be the penultimate act. It is sufficient in law, if there is an intention with some act in execution of it.  

Attempt to murder is a Cognizable and Non-bailable offence, triable by Court of Sessions.

Conclusion

It is extremely artistic how two terms explained in the above article are so similar and yet so different, the judicial process due to this thin line difference in crimes given in laws makes it a tedious process to prove the convict as guilty. Perceived knowledge of the perpetrators of crime, their professionalism behind such acts, and surprising glitches in the laws put forth by advocates make their positions far ahead of the judiciary. Judiciary often paves the way for landmark judgements when such close call crimes are committed. In any case, the better understanding of laws of such commonly heard crimes is essential and their difference should be noted by people who wish to understand the criminal laws better.

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