Month: May 2020

Stridhan and Women’s Estate Under Hindu Law

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This article has been written by Ritesha Das, pursuing BBA LLB (1st year) from Symbiosis Law School Hyderabad. It analyses the spectrums of Stridhan with reference to the section 14 of The Hindu Succession Act, 1956.

INTRODUCTION

Ancient patriarchal India has witnessed the backlash of equality and empowerment over the course of several decades. ‘The Secret History of Wonder Woman’ by Jill Lepore has provided an insight into the miserable lives of the woman juggling the ingredients of marriage, family and education together. The ancient text of Manusmriti has elucidated the suppression and subjugation of women, who were often leashed by men in the ancient patriarchal society. In the text of Manusmriti, Manu wrote “Her father protects her in childhood, her husband protects her in youth and her sons protect her in old age; a woman is never fit for independence” highlighting the plights of every woman chained with dependence and repression. The tears for striving equality, empowerment and independence were finally wiped off and the shackles of dependence, suppression and subjugation of women were broken by the waves of feminism introducing the suffrage, equality movements and the legal rights of Hindu women to inherit property. One of the notable reforms on the field of the legal rights of Hindu women to inherit property was the enactment of Right to Property Act, which affects not only covers the laws related to the coparcenaries but also includes the laws of alienation, partition, inheritance and adoption under its sphere.[1] It allowed the widow to take a share equal to that of her son, however, it abstained her from being a coparcener, and thus the widows had only a minimal share in the property of her deceased husband with the right to apply for partition. Although the purpose of the Hindu Women’s Right to Property Act was to expand the property rights of all Hindu women in general, it was only content with widening and strengthening the rights of the widow and not the rights of women as a class.

Stridhan and Women’s Estate: Meaning

During ancient India, property rights of Hindu women have gone through the serious of alterations where in some cases the proportion of women’s share in the property was far less than that of their male counterparts. The properties given to the women were known as Stridhan, the source of which was the marriage gifts like clothes, jewellery and ancestral properties given to a woman during her marriage. However, the property rights of the women were dispossessed to ancestral or marital landed property with a limited share of the succession of landed family property.  The emergence of The Hindu Succession Act, 1956 has obliterated these patriarchal norms by granting absolute power to the ownership of property.

The ambit of the women’s estate or property deals with the concept of limited rights and ownership of the women over the property, which was prevailed till 1956 but was repealed by the section 14 of The Hindu Succession Act of 1956, by conferring the absolute ownership of rights and property to women. The section 14 (1) of The Hindu Succession Act, 1956 explicitly states that Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.[2] In simple terms, it deals with the right of women to claim their property at any time and to use or dispose of it according to their wish. In Punithavalli v. Ramalingam[3], The Supreme Court observed that the property held by a Hindu woman under clause 1 of section 14 of the Act is absolute and is not defensible, and that its scope cannot be limited by any text or inference or theory or rule under that statute. However, the court ruled that the property owned by the Hindu woman on the date on which the act had taken effect, whether obtained before or after the enactment of the act, the Hindu woman is deemed to be the sole owner of the property. In another case of Santhosh and Ors Vs. Saraswathibai and anr[4], the Supreme Court held that If a widow obtains a stake in the property under a preliminary declaration before or at the time that the 1956 act had been passed but had not been given real ownership under a final declaration, the estate would be considered to be owned by the widow and, by virtue of section 14(1), would have gained full or absolute rights over the property.

Sources of Stridhan

According to section 14 (1) of The Hindu Succession Act, 1956, the sources of stridhan include the following elements:

  • Gifts and bequeaths from relations.
  • Gifts and bequeaths from strangers during marriage.
  • Property obtained at partition or devise.
  • Property given in place of maintenance.
  • Property acquired by inheritance.
  • Property acquired by skill or exertion.
  • Property acquired by adverse possession.
  • Property purchased with the savings her income.

Kinds of Stridhan under Dayabhaga and Mitakshara

Dayabhaga

According to Dayabhaga, there are two kinds of Stridhan:

  • Yautaka

It means anything given at the time of marriage when the bride and groom are seated on the same seat. Thus, Yautaka means all the presents offered to the bride during the wedding ceremony, when she and her husband are seated together

  • Ayautaka

All gifts that are not Yautaka fall under the range of Ayautaka. It comprises not only gifts and legacies made by the father and other relatives before marriage, but also gifts and legacies given to a woman through relationships other than the father after marriage.

Mitakshara

According to Mitakshara, the property may be divided into two categories on the basis of the women’s independent power of disposal over it.

  • Saudayika Stridhan

Property acquired by a married or unmarried female, by her husband or mother, in the position of her husband or father, is called Saudayika. All kinds of Saudayika is completely at the discretion of the woman, she can invest, sell or give it to her own pleasure. Her husband has no power over the deals or use of Saudayika.

  • Non-Sauyadika Stridhan

All the remaining forms of Stridhan fall under this group. A woman does not have the right to dispose of the Stridhan property during the cover-up without the consent of her husband.

STRIDHAN Vs. DOWRY

Stridhan is a necessary ingredient in a country like India, where stringent legislation has failed to eradicate the peril of dowry from the society. In a narrow spectrum, Stridhan involves property and possessions of a woman given by her family, relatives or acquaintances during the time of her marriage. However, there is a widespread misconception prevalent in culture concerning the age-old practice where the bride’s family transfers the wealth or any property (including both tangible and intangible) to the groom or his family ostensibly for the bride, popularly known as dowry in the modern society. The key distinction amongst ‘dowry’ and ‘Stridhan’ is the ingredients of ‘demand, avarice and coercion, which is present in the former but absent in the latter. Stridhan is a gift offered freely to women and is not the outcome of the above ingredients. The Stridhan can be recovered if the marriage fails and breaks in future, but in the case of dowry, the wealth or property is retained by the groom or his family. The distinction between dowry and stridhan was drawn out in the case of Girish Chander Raina v. Sushma Sharma[5], where the Apex court held that the basic element of the dowry is that the property is transferred to the person to whom it was given. It is the case that the property is passed to the person who demanded the dowry. Stridhan means that the property is granted to the bride before her marriage or at the time of her marriage or at the time of her departure, or afterwards, is her full property with all the freedom to dispose of at her own discretion. It is a voluntary act on the part of the donor to give the property. In the case of a dowry, it is under duress or a condition that the property has to be passed to the person who demands the same. In the case of Pratibha Rani vs. Suraj Kumar, while hearing the appeal, the supreme court observed that the petitioner had been endured her in-laws as she was abused and denied the Stridhan by her husband’s family. Pratibha Rani was married to Suraj Kumar on 4 February 1972. Rani’s family gave Rs 60,000, gold ornaments, and other valuable objects to Kumar’s family on their request. But shortly after Rani had entered her marital home, she was begun to be abused for dowry by her in-laws. She was driven out of her in-law’s house with her two little children, and her plea for money and other necessities of life were rejected. She lodged two complaints against her husband and her in-laws under section 125 of the Criminal Code and breach of trust. The Supreme Court acknowledged that the case illustrates the plight of a miserable married woman. The court also noted her great deals of sufferings during the legal process. The lower court ruled in her favor, but sought a seatback from the Punjab & Haryana High Court, which was subsequently handed down in her favor by the Honorable Supreme Court.

The above case of Pratibha Rani highlights the satire of modern society being rife and plagued with the clouds of various social evils. Among those, the dowry system continues to be at peak for not only extinguishing the flames of contentment and prosperity on the lives of the bride and her family, but also for overshadowing the true value of a life long bond referred as marriage, by smacking their demands at the bride’s family. The female victims of marriage and dowry have to let the darkness and domestic violence to consume her life or continue to suffer from the sluggish poison in their lifetimes. In the 21st century, on one hand, our country is on the verge of being a developed nation with advanced technologies and 2.72 lakh crores GDP, but on the other hand, it is still struggling to ward off the social evils consuming the lives of thousands of people.

RIGHTS OF WOMEN OVER HER STRIDHAN OR ESTATE

The bride enjoys absolute, complete power and ownership over her entire Streedhan earned during her marriage encompassing both movable and immovable property. She also has the power to dispose of, alienate or give away as per her own discretion during her entire life and thereafter. Her husband and the other family members including the Karta have no control over the Streedhan. In the case of Ashok Laxman Kale vs Ujwala Ashok Kale[6], the court noted that it is usually practical and advisable that any girl who is particularly educated today must maintain a list of her Streedhan and should also become capable to look after her own Streedhan in terms of safety and security such as opening a bank locker in their own names for the purpose of storing jewellery and money instruments, property, etc., or keeping it under their lock and key.

Some of the precautionary measures to keep a track on the Stridhan could include:

  • Maintaining a note of all the gifts and assets received from family, husband’s family, friends, and other relatives before, during and after the marriage.
  • Maintaining proof of all the gifts and assets such as digital evidence in the form of wedding pictures, keeping the bills and envelopes of the gifts etc.
  • Maintaining a separate salary account in her name for keeping the salary.
  • Maintaining a record of the bank accounts and investments after investing her Stridhan.
  •  Ensuring the status and title of the properties granted or acquired from her Stridhan must be on her behalf and must be transparent. The investment made from the assets of the stridhan must be in her name.

POWERS OF WOMAN OVER HER STRIDHAN OR ESTATE

  • Power of Management: Under this power, the powers and authority for managing the stridhan or woman’s estate is totally vested on that woman. Being the sole owner, she is deemed to be superior to the other members including the Karta of the Joint Hindu Family. She not only has an absolute entitlement to the possession, maintenance and income of her estate, but also the freedom to spend or invest her earnings (Stridhan) at her own discretion. The power to sue and to be sued on behalf of her estate is vested on her. The concerned woman remains the sole owner of her estate until her death, surrender, adoption or re-marriage.
  • . Power of Alienation – Under the power of alienation, the women can alienate her estate or property under the following circumstances: In regard to alienation, the women may, under the following circumstances, alienate their property –
  1. Legal necessity involving her own need or the need of dependents of the previous owner.
  2. For the benefit of the estate.
  3. To release the indispensable religious duties like the marriage of daughters, the funeral ceremony of husband, etc. She has the discretion to alienate for the benefits of the previous owner, rather than her own personal gain.

In the case of Ramappa v. Chandangouda, [7]one of the widows of Hanamgouda sold the property of her husband to the first defendant. She was remarried in 1948. The plaintiff’s reversioner then filed a claim for restitution of ownership. It was rejected by the Court of Justice, but it was decreed by the first appellate court, which noted a legal necessity.

  • Power to relinquish: Under the power to relinquish, relinquishment means the surrender of the estate by the female owner. It can either be undertaken on a voluntary basis by a woman during her lifetime or immediately by her death. The woman has the power to renounce her estate in favor of her closest heir, and the self renouncement on her part will obliterate all her rights over the property. The law under this context was drawn out by the Supreme Court in the case of Natvarlal Punjabhai and Another v Dadubhai Manubhai And Others, [8]which laid the following conditions for surrender:
  • It must be for the whole estate, although a small portion can remain for its upkeep or maintenance.
  • Surrender must be made in favor of reversionary.
  • Surrender must be bonafide and not a means of dividing the estate between the reversionary.

JUDICIAL TRENDS

  • In the case of Radha Rani v. Hanuman Prasad[9], it was noted that Section 14(1) of The Hindu Succession Act, 1956 deals with the rights of female Hindus both before and after the Act came into effect, and the significance of female Hindus prior to 1956 must be interpreted in the light of the Hindu Law as it then existed. The section expanded the estate to all female Hindus who would otherwise have limited ownership. This result flows from reading the first part with the last one, which uses the term ‘held by it as its full owner and not as a limited owner.’ A limited owner was a full owner, given that she was a Hindu woman who was in possession of every property acquired before the Act commenced.
  • In Eramma v. Verrupana, [10], the Apex Court observed that the object of section 14 of The Hindu Succession Act, 1956 is to extinguish the estate referred to in Hindu law as ‘limited estate’ or ‘widow estate,’ and to make a Hindu woman who, under the old law, would have been a limited owner, an absolute owner of the property with all powers of disposition, and to make the estate heritable by her own heirs rather than reverting it.
  • In Sukhram v. Gauri Shankar[11],  it was held that the widow was the full owner of joint Hindu family property as she became entitled to the interest her husband had under the Hindu Women’s Right to Property Act. The Court held that although a male was subject to restrictions on his interest in common Hindu family property, the widow, by virtue of the Act, was not subject to such restrictions.
  • To add to the rights of women, the Supreme Court in Cherotte Sugathan v. Cherotte Bharathi [12] held that on the death of the husband, his share of the ancestral property will devolve upon his wife and will not be subjected to disinvestment, except any statutory reason. It was also held that the mere remarriage of the wife will not disentitle her from receiving her deceased husband’s property.
  • In the case of Bai Vijia v. Thakorbhai Chelabhai, [13]the court observed that there must be two conditions for the applicability of the sub-section of section 14, namely,

(I ) The female Hindu concerned must be in possession of the property;

(ii) Such property must be owned by her as a limited owner.

CONCLUSION

The implementation of the Hindu Succession Act is a significant step towards strengthening the property rights of Hindu women. As a part of this Act, women are given certain privileges that have deprived them for decades. This is also a monumental step in the defending the women’s rights, as it has excluded a woman’s inability to possess the assets or property as a sole owner. The rights of a woman to dispossess her Saudayika property historically was always limited,  but her right of disposal of non-Saudayika property remained in the hands of her husband. However The Hindu Succession Act, 1956 has obliterated all those restrictions imposed by the ancient laws. The Hindu Succession Act, 1956 specifies that irrespective of the commencement of the act, the woman is the absolute owner of her Stridhan (including both movable and immovable property) and a standard order of succession shall be complied in the event of her death in the estate.

[1] Suman Gupta, ‘Status of Women under The Hindu Succession Act, 1956’, AIR, vol. V, May, (New Delhi: 2007)

[2] The Hindu Succession Act, 1956,

[3] AIR 1970, SC 1730

[4] AIR 2008 SC 500

[5] LQ 2008 HC 19363

[6] AIR 2007 (NOC) 1093 (Bom)

[7] 1960 Mys 260

[8] AIR 1954 SC 61

[9] AIR 1966 SC 216

[10] AIR 1966 SC 1789

[11]  [1968] 1 SCR 476

[12] AIR 2008 SC 1467

[13]  AIR 1979 SC 993

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Memorial Writing & Drafting Competition

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About the Competition

In these tough times of the COVID-19 Pandemic when most of the mooting activities have stood cancelled we decided to take the initiative to ensure that the process of learning does not stop. In order to maintain continuous learning for all the law students across India and to ensure development of all we have come up with Memorial Drafting Competition, 2020. Memorial drafting is one of the most important skills that a law student must possess and further it also enhances the research skills of a law student and also improves the skills of drafting. We have chosen the topic of criminal law for this moot as this pandemic has brought forward many questions and we believe that it is important to find answers to all of these. With this idea S&M Partners assembled a team of avid mooters and came up with this endeavor. Mr. Saunak Rajguru, Attorney, J. Sagar and Associates and an avid mooter of his time has drafted the moot problem.

About S&M Partners

S&M Partners is a platform run by professionals towards contributing to Legal Education and Practices. We have a proficient team of Advocates, Legal Academicians, Legal luminaries and Law students who are committed for the law student’s welfare by empowering them with Knowledge, Experience and Wisdom. We offer wide range of Certified Online Courses which anyone can access anywhere with best learning experience. S&M Partners is a platform created for the purpose to foster the interest of law students and strategies of our professionals will help you solve very Legal Issues. We aim to expand to serve the need of law students who are the very foundation of legal fraternity.

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Integrated Course on Banking/Project Finance and Insolvency Law Practice by S&M Partners

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Offer and Invitation to Offer

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This article has been written by Yash Dodani, a second-year at NALSAR University of Law. He has tried to set a distinction between ‘Offer’ and ‘Invitation to offer’.

Introduction

Contract is an area where the parties bargain with each other on terms and conditions and then have an obligation to work according to the conditions in the contract. It’s a private law where the role of the judiciary is very limited, not a law like Criminal law or taxation, where the role of State is very high. But still, the role of the state is there, as always will be in any law.

There was a confusion with regards to what is an offer and what exactly is ‘invitation to offer. And as always, the judiciary is called the interpreter of the law for some very important reason and that reason is to clarify the things as and when required. To this also the courts have given a very beautiful difference through many case laws on this front. Let me first get through the individual meaning of these terms and then set a distinction.

Offer/ Proposal

Offer or as it is said proposal has been defined in section 2[a] of the Indian Contract Act1 as under:

“When one person signifies to another his willingness to do or abstain from doing something with a view to obtaining the assent of the other to such an act or abstinence, he is said to make a proposal”.

It means that when a person says something to another that he would do something or not do something, with a view to get an assent from the other person, he is said to make an offer to the other person. For instance, A, a party says to another person X that “I would buy your cycle for a sum of 6000 rupees”. If after negotiation, both the parties agree on the sale and the price, this would become an agreement and I made an offer by saying the above line quoted.

When an offer is accepted, it becomes an agreement. In an agreement, there is an intention to create legal obligations generally. But this is not always true [see Balfour v Balfour 2] due to the nature of the relationship between the parties. If the nature of the relationship between the parties is such that the agreement would not be intended anywhere to be legally binding, that it will not be legally asked to complete. However, this position is not followed in the Indian Context. If there is an agreement which is not unlawful or illegal, the agreement will be enforced even if there was no intention to create a legal obligation. [See CWT v/s Abdul Hussain Mulla Muhammad Ali 3]

There are other conditions of an offer and in what cases the offer can become an agreement like knowledge of offer and other such things but I will not go into the details of these things in this article. It will focus more on the distinction between an ‘offer’ and ‘invitation to offer’.

General and Specific Offers

Offer can be ‘general’ or ‘specific’. In an earlier judgment, the English courts have said that the offer can not be ‘general’ [See Weeks v/s Tybald 4 ]. But after a century or so, the courts said that the offer can be in ‘general’. In Carlill v/s Carbolic Smoke Ball Co 5, the court recognized that ‘an offer can be made to world at large as well. Whereas ‘specific offer’ means that an offer which is made to a specific person(s). There can be more than one specific person involved in a contract.

Invitation to Offer

When it comes to ‘Invitation to offer’, it is not necessary that parties do have an intention to enter into an agreement. It’s upon them whether to enter or not into an agreement. It can be said as a pre-negotiation stage before an actual offer. The best example to explain it in the shop. The goods displayed in a shop might not be on a sale, but as they are on display, it doesn’t mean that they are up for sale. The shopkeeper invites the customer to offer that good for sale. It completely depends on the shopkeeper that if they are willing to sell it or not. They are not bound to sell the product at the given price tag. It’s because they have the power to reject the sale, and it is called as ‘invitation to offer’. The buyer will select the best invitation and try to further negotiate on it. In a market condition, an invitation is made by the seller and offer is made by the buyer, if the seller accepts the offer, it becomes an agreement. Intention to enter into a legal obligation is nowhere seen in an invitation, but intention generally matters in an offer.

Finally, when it comes to the difference between, it is very important to discuss the very important case law named Carlill v/s Carbolic Smoke Ball Co. A company made an advertisement in a leading newspaper that it has made a product, the consumption of which will keep away disease such as a cold. If someone after consumption of it as prescribed, will attract those disease, will get a Compensation of 100 Euros. It has also said that to show that confidence, it also deposited the said amount in a bank account. The product was purchased by the plaintiff. After consumption in the said prescribed manner, he suffered from cold and filed a suit for recovery. The company contended that it was an invitation to offer and not offer. They also contended that it was a puff advertisement. But the courts rejected the contention saying that the advertisement is not an invitation to offer but an offer itself because they have deposited the amount in a bank, they do have intention here and hence the offer was accepted when the buyer consumed the product in the said manner. The plaintiff was allowed to get the compensation of 100 Euros.

Conclusion

Thus, it is essential to understand the difference between an ‘offer’ and ‘invitation to offer’. ‘Invitation to offer’ is a step before making an ‘offer’. ‘Invitation to offer’ is given by one party, then on reaction to the invitation, the another party makes an ‘offer’, then it is upon the previous party to either accept or reject it. The person inviting an offer is not bound by any condition which he has specified at the invitation stage.

References

  1. The Indian Contract Act, 1872 [Act 9 of 2873]
  2. (1919) 2 KB 571
  3. (1988) AIR 1417
  4. 74 ER 982.
  5. [1892]

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Offer and Invitation to Offer

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This article has been written by Yash Dodani, a second-year at NALSAR University of Law. He has tried to set a distinction between ‘offer’ and ‘invitation to offer’.

Introduction

Contract is an area where the parties bargain with each other on terms and conditions and then have an obligation to work according to the conditions in the contract. It’s a private law where the role of the judiciary is very limited, not a law like Criminal law or taxation, where the role of State is very high. But still, the role of the state is there, as always will be in any law.

There was a confusion with regards to what is an offer and what exactly is an ‘invitation to offer. And as always, the judiciary is called the interpreter of the law for some very important reason and that reason is to clarify the things as and when required. To this also the courts have given a very beautiful difference through many case laws on this front. Let me first get through the individual meaning of these terms and then set a distinction.

Offer/ Proposal

Offer or as it is said proposal has been defined in section 2[a] of the Indian Contract Act 1 as under:

“When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal.”

It means that when a person says something to another that he would do something or not do something, with a view to get an assent from the other person, he is said to make an offer to the other person. For instance, when A, a party says to another person X that “I would buy your cycle for a sum of 6000 rupees” if after negotiation, both the parties agree on the sale and the price, this would become an agreement and I made an offer by saying the above line quoted.

When an offer is accepted, it becomes an agreement. In an agreement, there is an intention to create legal obligations generally. But this is not always true [see Balfour v/s Balfour] 2 due to the nature of the relationship between the parties. If the nature of the relationship between the parties is such that the agreement would not be intended anywhere to be legally binding, and similarly will not be legally asked to complete. However, this position is not followed in the Indian Context. If there is an agreement which is not unlawful or illegal, the agreement will be enforced even if there was no intention to create a legal obligation. [See CWT v/s Abdul Hussain Mulla Muhammad Ali] 3

There are other conditions of an offer and in what cases the offer can become an agreement like knowledge of offer and other such things but I will not go into the details of these things in this article. It will more focus on the distinction between an offer and an invitation to offer or as we say it ‘invitation to offer’.

General and Specific Offers

Offer can be General or Specific. In an earlier judgment, the English courts have said that the offer can not be general (See Weeks v Tybald 4). But after a century or so, the courts said that the offer can be General. In [Carlil v Carbolic Smoke Ball Co] 5. the courts recognized that the offer can be made to world at large as well. Whereas specific offer means that offer where it is made to a specific person(s). There can be more than one specific person involved in a contract.

Invitation to Offer

When it comes to an invitation to offer, is not necessary that parties do have an intention to enter into an agreement. It’s the choice of him to enter or not into an agreement. It can be said as a pre-negotiation stage before the actual offer. The best example to explain it in the shop. The goods displayed in a shop might not be on a sale, but as they are on display, it doesn’t mean that they are up for sale. The shopkeeper invites the customer to offer that good for sale. It completely depends on the shopkeeper that if they are willing to sell it or not. They are not bound to sell the product at the given price tag. It’s because they have the power to reject the sale, and it is called as an invitation to offer. The buyer will select the best invitation and try to further negotiate on it. In a market condition, an invitation is made by the seller and offer is made by a buyer, if the seller accepts the offer, it becomes an agreement. Intention to enter into a legal obligation is nowhere seen in an invitation, but intention generally matters in an offer. Finally, when it comes to the difference between, it is very important to discuss the very important case law named Carlill v Carbolic Smoke Ball Co. A company made an advertisement in a leading newspaper that it has made a product, the consumption of which will keep away disease such as a cold. If someone after consumption of it as prescribed, will attract those disease, will get a Compensation of 100 Euros. It has also said that to show that confidence, it also deposited the said amount in a bank account. The product was purchased by the plaintiff. After consumption in the said prescribed manner, he suffered from cold and filed a suit for recovery. The company contended that it was an invitation to offer and not offer. They also contended that it was a puff advertisement. But the courts rejected the contention saying that the advertisement is not an invitation to offer but an offer itself because they have deposited the amount in a bank, they do have intention here and hence the offer was accepted when the buyer consumed the product in the said manner. The plaintiff was allowed to get the compensation of 100 Euros.

Conclusion

Thus it is essential to understand the difference between an invitation to offer and an offer. An invitation to offer is a step before making an offer.

Invitation to offer is given by one party, thus, it is essential to understand the difference between an invitation to offer and an offer. An invitation to offer is a step before making an offer. Invitation to offer is given by one party.

References

  1. The Indian Contract Act, 1872 [Act 9 of 2873]
  2. 1919 2 KB 571
  3. 1988 AIR 1417
  4. 74 ER 982
  5. [1892]

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BOIS LOCKER ROOM- #ITSNOTOK

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The article has been written by Nikhilesh Koundinya a student of Symbiosis Law School, Pune. In this article he has described the “bois locker room” incident. He has spoken about the events and has mentioned the charges that can be levied on the perpetrators. Lastly, he has discussed whether the change is necessary in certain provisions of the law to tackle the online world in the 21st century.

INTRODUCTION

“Let’s gang rape her”. This was one of the casual statements made by a group of boys on a chat forum where they had accumulated pictures of girls and were seen passing obscene comments on a private group named below. This shook the conscience of the Indian public and the news of such a chat group spread like wild fire. In minutes the country responded in absolute shock and immediately demanded for action to be taken. As a country had we given too much freedom to express that people took advantage of this provision and posted whatever they wanted? Had we become so weak as a justice system that we let these boys not fear punishment and make such comments? These are some of the points discussed below to investigate the recent discovery of a group on Instagram which was a congregation of men who spoke, but spoke too much. #itsoktorape #Iwasjokingaboutrape

SEQUENCE OF EVENTS

On 3rd May, 2020 there was a group identified on the popular social media application known as Instagram. The group as indicated above was named Bois locker room. The group had several male participants who were observed making obscene comments against girls and women. The group also contained a series of photographs picked up from different profiles which the boys were commenting on. The comments revolved around how the boys would like to rape these girls and how rape is justified for these girls. The sentiment was not limited to one boy but many were in consonance that they would get together and rape these girls which in simple terms referred to gang rape. The boys who were making these comments were aged anywhere between 15-18. The texts and screenshots recorded from this group were widely circulated on media which led to an outpour of support for women and disgust towards the conversations being permitted on that group.

When the screenshots recovered from this group started spreading like wildfire the boys expecting action started deactivating from the group as members but alas it was too late as the screenshots had already spread all over the world and were being broadcasted on every news channel to indicate that patriarchy, the gang-rape culture and cyber bullying were very much prevalent in India and the fact was that, these trends were increasing on a daily basis.

The next step was initiated by the Delhi Commission for Women (DCW) whereby they took Suo-moto cognizance of the matter and asked the Delhi police to immediately showcase the FIR registered in the said matter. The FIR was showcased to the commission which had already been recorded on 4th May, 2020 as per procedure laid down under section 154 of the Criminal procedure code[1]. The commission also asked Instagram to provide the information of the boys involved in the group along with their personal information by the 8th of May, 2020.

The police had arrested the admin of the group and realized that there were 27 members who were part of the group. Most of them when questioned had stated that they were added by their friends to the group. In those who have been questioned police noticed a presence of minors also and hence they will be tried under the Juvenile Justice Act, 2015. The police is still awaiting the court orders for producing the admin in court and for the Juvenile Justice Board to convene and decide on the fate of the juveniles involved.

LEGAL PROVISIONS APPLICABLE IN THE CURRENT SCENARIO

There are a number of legal provisions that may be applied to the accused in the present case which ranges from general provisions to specialized legislations:

Indian Penal Code, 1860

Forgery

Section 463- The section refers to the concept of forgery. The sections reads, whoever makes any false document or electronic record or part of a document or electronic record with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.[2]

With reference to the current scenario, the forgery will apply because certain images of girls were morphed by the admin and people involved in the group. Hence the pre-requisite of the document being false was present and was committed by the accused. The document injured the reputation of the girl in the eyes of the public and hence the provision for fraud will apply in the particular case. Section 469 of the code also talks about injuring reputation of the person and hence can be applied against the accused.

Criminal Intimidation

Section 503- This section makes a reference to the concept of criminal intimidation. The section under IPC reads Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.[3]

In the particular case the boys can be booked under this section as well because their act was to threaten these girls eventually and they were legally not allowed to post pictures of the girls online as it was against many provisions mentioned under law as indicated above. Section 506 will automatically come into play here as the section entails punishment for criminal intimidation.

Online Stalking

Under section 354 clause (1) sub-section (ii) the concept of stalking has been investigated. Any person who keeps pestering a girl or monitors her internet, email or any other online communication will be punishable under this provision. For this provision, we need to go back to before this group started. The admin and some other boys might have viewed profiles of various girls before posting their pictures. Hence, we can easily conclude that before the creation of the locker room the offence of online stalking was committed by some of the perpetrators. This clause was entered into the penal code to protect the interests of the users and easy detection and prevention of crime.

Outraging the Modesty of Woman

Section 509- This section makes a reference outraging the modesty of a woman. The section reads Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman.[4]

After much debate of the term modesty, the judiciary in the case of Bachan Singh v State of Punjab[5] had held that the word modesty refers to the sex. Thus, in the present case, the perpetrators were talking about violating the sex of a woman by discussing how to rape these girls. Hence this provision of the Indian Penal code will also apply.

Information Technology Act, 2008

The main provision under which the Delhi commission and the police acted was section 67 and 67A of the IT act, 2008. Section 66 of the act reads:

Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.[6]

The definition clearly proves that if the material that is transmitted involves prurient interest which in layman terms refers to sexual indicators the person will be held liable under this section. The boys in the present case were using social media as a way to exchange pictures between each other to make use of these pictures to identify girls and make comments which had a sexual tone. Hence these persons would be liable under this section of the act.

Section 67A makes a reference to punishing people who exchange sexually implicit material on an electronic platform. This section clearly nails the perpetrators as it the acts committed by these people fulfil all the pre-requisites under these two sections of the IT act.

INSTAGRAM AS AN INTERMEDIARY

There is a concept known as safe harbour networks where the companies or the individuals who provide the infrastructure for communication cannot be sued or held responsible for the acts committed by third parties on their platforms. Earlier in the IT act there was no mention of the word intermediaries. But later in the interpretation clause the term was added to protect network providers, internet service providers etc. from cases. The section reads:

“intermediary”, with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes[7]. But these powers come with certain responsibilities as laid down under the guidelines for intermediaries. In the particular case, the guideline to be observed was regarding the taking down of the group. The intermediaries have to take down any objectionable content within 36 hours of uploading and have to preserve the records for 90 days to facilitate the better investigation. In the following case Instagram can be held liable as the content existed on the platform beyond 24 hours when finally, media, people and the police started taking cognizance.

Instagram also has the responsibility under these guidelines to find the third party and provide relevant information to the investigation team upon request from the agency which has already been made by the Delhi Commission for Women (DCW).

CHANGE REQUIRED

  1. There needs to an urgent change in the laws regarding juveniles. Even in the Nirbhaya case, the court had sent the juvenile offender who had inflicted the maximum injuries to the victim to a correction home from where he was released after a few years. The law for juveniles was made with the rationale that during the olden times most people who committed the acts didn’t realise what they were doing and hence did not fulfil a crucial element of crime which is Mens Rea. But in today’s modern justice system the culprits know what they are acting on (which is that they have the mental capacity to understand the nature and consequences of their actions) and also physically commit the act. This suffices both principles of Actus Reus and Mens Rea. Hence the justice system must punish juveniles for heinous acts such as rape, sexual harassment, acid attack and dacoity amounting to murder the same way as they would punish a major. Obviously, this principle will be evaluated for application on a case to case basis.
  2. Considering the spread of digital media and artificial intelligence, the future is going to see legal battles mainly in the virtual world. Considering this as the premise as a country we need to make laws that are specific to the digital transformation occurring all around us. Questions like “what is data?” needs to be answered so that specific legislations can be made to ascertain the guilt of the accused. Under the same legislation we need extended rules of procedure for cyber bullying or extortion online which the population seems to be threatened in the present day and age.
  3. To protect women in a better manner we need to come up with the idea of a virtual court whereby certain judges will be appointed for looking into online cases and will dispose of the case within a short span of time. This will raise confidence in women to come forward and report the crime.
  4. The nature of punishments committed against women online has a meagre sentence. In light of the growing cases, the jail time for acts committed to injure a women’s modesty or character must carry with it a substantial jail time like 10 years rigorous imprisonment. This will help to not only make women feel secure but will deter males from resorting to committing criminal acts online.

[1] Information in cognizable cases (CRPC)

[2] Indian penal Code, 1860, section 463

[3] Indian Penal Code, 1860, section 503

[4] Indian Penal Code, 1860, section 509

[5] 2 SCC 684

[6] Information Technology Act, 2008, section 67

[7] Information Technology Act, 2008, section 2 sub-clause (W)

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Types of Companies under Companies Act, 2013

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This article is written by Aaditya Kapoor, a law-aspiring student of Vivekananda Institute of Professional Studies. Through his research, Aaditya strived to shed light on the various types of companies that have been prescribed under the Companies Act, 2013, along with their functioning that has also been laid down within the act.

INTRODUCTION

In a world that swiftly nudges itself further and further towards industrialization, the corporate sector is perhaps the most vital element of what holds together a nation’s economy – and India is no exception. According to the Indian Companies Act, 2013, a company has been defined as an association registered with the Registrar of Companies, in which the association itself is an artificial legal person possessing an independent, legal entity and a common capital containing transferable shares.
A company can be more vividly described as a business entity acting as a legal person, formed by a single or a group of legal persons to felicitate business. It isn’t a requirement of necessity for there to be a group of persons involved in the formation of a company, as it is possible and plausible now for one person to do the same – as long as the aforementioned legal person is recognized by law as someone with certain legal rights and obligations.

To avoid and derail an illegal entity from forming a company, the Companies Act, 2013 has also prescribed the various types of companies that can be formed, with certain guidelines attached to the formation of each. This article shall reflect light on each type of company, by segregating them into four major sub-categories:

  • Companies on the basis of Incorporation
  • Companies formed on the basis of sharing of liability
  • Companies formed on the basis of exercising control
  • Companies formed on the basis of number of members(or transferability of shares)
  • Other classifications

While each classification is different in itself, there are a few factors that remain constant while scrutinizing the company’s applicability within the Companies Act, 2013. 

1. CLASSIFICATION BY MODE OF INCORPORATION 

On the basis of incorporation, companies are categorized into:
i) Registered Companies: Such companies only come into existence after they register themselves under the act, followed by the Registrar of Companies passing the Certificate of Incorporation. This process is to formally induct them into registrants within the Companies Act, as per government regulations. 


ii) Statutory Companies: The companies in this category are formed by the passing of a special act, by either the Parliament itself, or by Central or State Legislation.  A company formed under the aforementioned classification is independent and administers control over a specified are. The reason for its formation is to carry out the business of national importance. An example of this is the Reserve Bank of India that was formed under the RBI Act of 1934. 


iii) Royal-Chartered Company – While such classification of companies is scarce within the present scenario, a royal-chartered company is formed by special order of a monarch. A prime example of such a company is the East India Company.

2. CLASSIFICATION BASED ON LIABILITY OF THE MEMBERS


i) Companies Limited by Shares: A company within this category has a defined share capital with its members sharing limited liability to the value of shares subscribed by them. This essentially means that the individual liability of members is limited to the value of shares held by them. 

ii) Companies Limited by Guarantee: Such a company is one that has the liability of its members limited by the memorandum to any amount of money that the members may have to pay in return of the assets of the company, in the event of it being wound up. It’s arbitrary for these companies to have or not have a share capital.

iii) Companies with unlimited liability: Such A company which does not have any limit on the liability of its members can be considered as a company with unlimited liability. Therefore, the company is not restricted to the amount of money that members or shareholders have to pay in the event of liquidation. 

3. CLASSIFICATION BASED ON CONTROL

i) Holding and Subsidiary Companies: A company shall be deemed to be a holding company of another, if that other company is a subsidiary of the prior company; whereas a company shall be considered as a subsidiary of another company if the other company issues control to its Board of Directors, holds more than half of nominal value of equity share capital and if it holds more than 50% of the total voting rights of the company. 

ii) Associate Companies: If a company happens to be influenced by non-subsidiary companies, and has control over the total share capital of at least 20%, it can be classified as an associate company.

4. CLASSIFICATION BASED ON THE NUMBER OF MEMBERS


i) Public Company: A company with its ownership open to the public can be classified as a public company. There are no restrictions to the number of members or to the transferability of shares of a public company. However, in India, a public company is required to have at least 7 members and 3 directors and must issue prospectus with the Registrar of Companies before selling its shares. 

ii) Private Company: Contrary to the aforementioned classification of company, a private company cannot be owned by the public and has a restricted number of members; therefore, the right to transfer its shares is also limited.
In India, a Private Company has a legal identity of its own, and possesses a company name, an address, with at least two directors, amongst which one has to be an Indian Resident. 

ii) One-person Company: As the name suggests, a company having only one founder/promoter can be categorized as a one-person company.
Such type of company still has all provisions of a legal company and the owner can run the company on his own as long as all legal requirements are fulfilled. The founder has to be a natural person residing within the country that governs provisions related to his company.

5. OTHER CLASSIFICATIONS


i) Non-profit Companies: A company that establishes itself for non-profit, charitable objectives can be classified as a non-profit company. As per section 8 of the Companies Act, these companies are registered as limited companies and intend to use profits or any other income for the benefit of people. The dividend is not paid to any of the members of the company but the company still enjoys all benefits and provisions of a limited company.

ii) Government Company: Such companies are those in which at least 51% of the share capital is held by either the Central or the State government.

iii) Foreign Companies: Any company that has been incorporated outside India, but has established business in India can be categorized as a Foreign Company. 

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FORCE MAJEURE AND COVID 19 – IMPACT ON CONTRACTUAL OBLIGATIONS

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ABSTRACT

The article is written by Naman Jain pursuing BBA-LLB from Bennett University, Greater Noida. This article endeavours to demystify the key concepts of force majeure and the repercussions of Covid-19 on contractual obligations. This article insights into the legal permissibility of this clause in the current scenario and highlights the elements to be considered before the invocation or while defending a force majeure claim.

“LAW AND ORDER ARE THE MEDICINE OF THE BODY POLITIC AND WHEN THE BODY POLITIC GETS SICK, MEDICINE MUST BE ADMINISTERED”
~ DR. B.R. AMBEDKAR

INTRODUCTION

The continuous spread of COVID-19 has forced the country into a conspicuous uncertainty. Global disruptions are evident in the business and commercial sector. A significant population of the world has been put under lockdown. Due to this, operations carried by various businesses have been hindered and fulfilment of contractual obligations has been greatly impacted. The disruptions in the supply chain will lead to delay, interruption, or even cancellation of many contracts. As businesses are making plans to address this international emergency, this article provides guidance to inform strategic decision making in accordance with the contractual relationships. To escape from the contractual penalties arising due to missing project deadlines, non-payment, etc as a result of the pandemic, parties to contracts are bringing word like “Force Majeure” in use.

WHAT IS ‘FORCE MAJEURE’ ?

The French phrase means a “superior force”, is a law U/S 32 and 56 of Indian Contract Act, 1872. Black Law Dictionary defines it as “In the law of insurance, superior or irresistible force. Such clause is common in construction contracts to protect the parties in the event that a part of the contract cannot be performed due to causes which are outside the control of the parties and could not be avoided by the exercise of due care”. It is a provision that protects a party in contractual agreement from liability for its failure to function the contractual obligations. It is an expressed provision in contract law which describes an extraordinary event involving circumstances beyond human control as an act of god or a superior force. Further, this clause frees both the parties from a contractual liability when some specified or uncertain events beyond human control obstruct the carrying of obligations under the contract.

As mentioned in the clause, this exhaustive list contains events like wars, riots, fire, flood natural calamities, lockouts, famines, and govt. action affecting any party to function or perform the pre-decided obligations under the contract cause its frustration or impossibility. The clause provides relaxations to perform the contractual obligations, but it does not entirely excuse a party from a contract. Moreover, it suspends the contract for the duration of that superior force. However, if this superior force continues to dominate for more than a specified period, the clause gives the power to both the parties to terminate the contract without any financial effects on either party.

Force Majeure principle is ruled by chapter 3 of the Indian Contract Act dealing with the contingent Contract. S. 32 of the act defines this Supreme power whereas S.56 is a rule of positive law which mentions about frustration. ‘Impossible’ or ‘Frustration’ is only confined to something which is beyond the control of both the parties and not to the literal impossibility to perform i.e. strikes or commercial hardships as held in the case of Satyabrata Ghose V. Mugneeram Bangur.

The Supreme Court in the case of Naihati Jute Mills Ltd. v. Hyaliram Jagannath held that “A contract is not frustrated merely because the circumstances in which it was made are altered. The Courts have no general power to absolve a party from the performance of its part of the contract merely because its performance has become onerous on account of an unforeseen turn of events.” The capacity to invoke the clause depends on the nature of the contract as well as the wordings of the contract. Therefore, with respect to the pandemic situations, implications of the above provisions would be dealt by the adjudicatory bodies on case to case basis.

FORCE MAJEURE AND COVID-19

The Ministry of Finance has clarified the doubt stating that disruption in supply and production chains due to the spread of coronavirus has to be considered as a case of natural calamity and Force Majeure clause may be invoked wherever appropriate according to the circumstance and nature of the contract. Many of the contracts are such in India that do not says explicitly to invoke the benefits of Force Majeure clause. Whether a contract on the account of Covid-19 has the capability to invoke the benefits of this clause is a fact-specific determination that totally depends on the nature of the obligations involved and the specific terms of the contracts. If in case the contract formed by the party does not involve ingredients of Force Majeure, then the party can claim under the “Doctrine of Frustration” U/s 56 of the Indian Contract Act, 1872. This doctrine makes the party excusable if the whole contract becomes impossible to perform. ‘Frustration’ and ‘impossible’ are often used interchangeably.

Force Majeure is an element of a contract being strict in nature while the doctrine of frustration is a common law concept.

In the light of the current situation, the lockdown has been imposed in India restricting the performance of some contracts. As the lockdown is imposed by the Govt. and is construed as an order of the Govt. Therefore, the party having the obligations to perform can issue a notice saying that such an event has occurred i.e. lockdown which is beyond its control and therefore, the provisions of Majeure clause can be triggered giving relaxation to the party by suspending the party till the supreme force i.e. lockdown gets over.
Further, the contracts made before lockdown between 2 parties involving advance payment and non-performed obligations which is impossible to execute at this time of lockdown in the purview of S. 56 of Indian Contract Act become void and the party who had paid advanced can claim for a refund as the one who received the payment in advance is bound to pay back the amount.

KEY ASPECTS WHILE INVOKING/DEFENDING FORCE MAJEURE

  • Keeping a track of the events that would be in accordance with the ingredients of the clause based on the contractual understanding of the parties and the nature of the contract. The list of the above events can be exhaustive or non-exhaustive in nature.
  • Actions that have to be taken to invoke the Force Majeure clause should be informed prior, with an issuance of notice to the opposite party.
  • Repercussions of the Force Majeure events, mitigation strategies, relaxations to be provided in performance and issues dealing with suspension or delay of standard quality performance should be analysed thoroughly.
  • Mindfulness of businesses in knowing that economic hardships i.e. higher cost of performing the obligations under a contract will not be a strong ground to assert Force Majeure clause or Frustration principle as a defence.

In the English case of Tsakiroglou & Co. Ltd. v. Noble Thorl GmbH, the facts comprise of a ship that needs to perform sale of coconuts by transporting it from one place to another. The contract was made but later at execution, it was found that the canal to be used on the customary route was closed. Despite knowing the fact, it was held that the above contract of sale of coconut cannot be considered impossible to perform and hence there was a way for the ship to travel from another passage being 3 times longer than the usual one. Economic hardship that was faced by the ship hence, failed to become a ground for frustration to contract. Therefore, the party failed to get the defence under this principle. The above view of the law was also stated in ‘Chitty on Contracts’, 31st edition. Further, the view of not to trigger Force Majeure clause unless an alternative way is available was evident in ‘Treitel on Frustration and Force Majeure’.

Moreover, legal advisors should be contacted by the parties to have a clear view of the sector they are involved in and the specific events and provisions being invoked to avoid any ambiguity later. Some cases where negligence or malfeasance of a party is seen, those are intended to get the benefit of the above clause. Understanding of the loopholes in law enforcing Force Majeure provisions with the guidance of legal practitioners would help in serving the justice better minimising the misuse of such benefit providing provisions of the law.

OTHER FACTORS AFFECTING FORCE MAJEURE CLAUSE

It would be important to note that the burden to proof of special circumstances, the events under the list of Force Majeure or Frustration principle and the mitigation assurance to be provided is on the party asserting Force Majeure defence. The liability is on the asserting party to prove the existence of Force Majeure conditions. Such clauses are construed strictly by Courts. Force Majeure clause is expressly provided and not implied under the Indian Law. Expressly means that courts will apply usual principles of contractual interpretation as per the scope of the clause to make decisions regarding the protection to be provided to the parties of the contract.

Parties can also attempt to invoke other contractual clauses. For instance, Material adverse Change (MAC) clause, price adjustment clauses, limitation and exclusion clauses to limit or minimise the burden of non-performance. Moreover, the companies can also consider the ramification of non-performance clauses to clarify the liquidity of damages and the amount of compensation for non-performance of contract which is pre-determined and agreed between the parties before making a contract.

REMEDIES

Remedies to the clause depends on the nature of contracts. For instance, some contracts may provide immediate cancellation, or some may put the contract on hold. Some may give leniency in time or in standard quality of performance. In the verdict of Alopi Parshad & Sons Ltd. v. Union of India, it was ruled out that the Indian Contract act does not enable a party to a contract to disregard their expressed statements made earlier and to claim compensation for the non-performance of a contractual obligation which was made at rates different from stipulated rates, on an indeterminate plea of equity. Irrespective of any sudden price hikes or market inflation or deflation, the party to a contract does not itself get rid of the bargain they have made and is liable to perform the obligation until proven in the Court that the above performance is ‘impossible’ or ‘impracticable’.

MITIGATING THE CURRENT CIRCUMSTANCES

With COVID-19 effects all over the globe, Life Insurance companies also have the right to invoke Force Majeure clause and escape the liability of paying the claims to the clients.

TURNING POINT

Insurance companies being private or public, have stated that they will not invoke this clause in cases of COVID-19 related death claims and will process them as fast as possible. This step was taken to assure the premium payers, that the Life Insurance industry is taking every possible measure to mitigate the disruptions and the suffering being caused, due to the lockdown. Further, the company will be providing the clients with maximum digital support to honour COVID-19 death claims in accordance with the “social distancing” rules. A grace period of 30 days is bring provided by the company to pay their premiums. Relaxations in settlements of policy is being given due care and attention to keep the policyholders at ease. All the other special charges are exempted except the fund management charge. Options like partial withdrawal and switching of accounts will be restricted during the settlement period. Other insurance companies will be providing maximum support to cover the loss arising due to special unsure circumstances in the various businesses. Policyholders are falling largely on ‘Force Majeure’ and ‘Act of God clause’.

AROUND THE WORLD

COVID-19 virus arising from the Virus ology labs of China has already made the country to work on the problems arising due to non-performance of Contracts. China Council for The Promotion of International Trade (CCPIT) has already provided thousands of Force Majeure certificates to businesses, relaxing the difficulties in performing the specified obligations of their respective contracts. It is right to conclude that the invocation of the Force Majeure clause has been successful in China. If the clause is a failure to some of the businesses, then those companies can go for the provisions governing non-performance of contract due to impossibility or impracticability also known as ‘Frustration’ to contract as mentioned in the Uniform Commercial Code (UCC) of China.

In India, Department of Expenditure, Procurement Policy Division, Ministry of Finance discharged an Office Memorandum on February 19, 2020, with regard to the Government’s ‘Manual for Procurement of Goods, 2017, which sets out the direction for procurement by the government. Further, it states that COVID-19 could be brought under Force Majeure clause based on ‘Natural calamity’ providing that ‘due procedure’ has to be followed.

CONCLUSION

COVID-19 is having an unforeseeable impact on businesses and the companies. It has restricted the parties to perform their contractual obligations, leading to a decline in the economy. As discussed in detail, Force Majeure is an express provision and invoking it for the purpose of invocation or as a defence, depends on the nature of a contract, impossibility to perform, alternativity to perform and various other circumstances that are different in different cases and would be assessed by the Courts on a case by case basis. Contracting parties must go through the language of the contract so formed by them and the various provisions regarding them. This would help in determining the plausibility of their success. Presently, massive challenges are being faced by the society. The hope for everyone is that the wrecks of COVID-19 will go by swiftly.

REFERENCES

  • https://www.bloombergquint.com/opinion/coronavirus-key-legal-issues-for-india-inc-with-covid-19
  • https://www.wsgr.com/en/insights/covid-19-and-force-majeure-clauses.html
  • https://amlegals.com/covid-19-force-majeure/
  • https://www.mondaq.com/india/litigation-contracts-and-force-majeure/918092/time-it-or-time-out–force-majeure
  • https://www.business-standard.com/article/companies/life-insurers-will-not-invoke-force-majeure-clause-for-covid-19-claims-120040601452_1.html
  • https://www.lexology.com/library/detail.aspx?g=d63bbf8d-64ec-4595-ab87-633934115ab0

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Videaim IP:Internship Opportunity

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Virtual Dialogue Session :Bar Council of Punjab and Haryana

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EVENT: Virtual Dialogue Session
ORGANISER: Bar Council of Punjab and Haryana
DATE : May16th 2020
TIME: 4 p.m
TOPIC: challenging and Enforcing domestic arbitral award in India and International Arbitration during COVID-19
KEYNOTE SPEAKERS:
Mrs justice Indu Malhotra: judge Supreme Court of India
Dr Anmol Rattan Sidhu senior advocate and founding member of ICADR
Professor Lawrence boo: head the arbitration chamber and first CEO SIAC Singapore
Mr Rajeev Bhatnagar: business expert and manager managing committee PHDDCI

REGISTRATION click on the link

https://register.gotowebinar.com/webinarOver