Ms. Mehak Kalra is a partner in a full-service law firm Innov Legum. She has years of working experience in Criminal Corporate Litigation Firm. She is handling pan India Litigation for various corporate clients. She is an external member for Internal Complaints Committee of various Companies. She also has experience in Civil Litigation and has handled Labour Law, Matrimonial matters. 

Q: You are a first-generation young lawyer how would you describe your journey so far?

As far as my journey is concerned, it has been quite Great. I would say so because the moment I joined a reputed firm as a paralegal, I was given an opportunity right away to be an associate in the firm and thereafter the Senior associate and within two years I was made a partner of that firm. I worked there for about 3 to 5 year and then eventually decided to set up something of my own. So now, I am running a firm (Innov Legum)  with one of my partners, it is basically a full-service law firm which focusses on each and every field of law, however, our specialisation is in criminal law but we tend to take all the matters.  Apart from that, I am one of the External Member of Internal Committee which is now amended to internal complaint committee for sexual harassment issues.

Q. Students in law schools are more inclined towards getting good grades. Do Grades really matter in the long run?

I would say that I was myself the University topper so I would definitely not say that the grades don’t matter because whatever you study and whatever effort you put in the colleges, helps you in getting in-depth knowledge of the subject. However, it must also be noted that grades are not the sole criteria to adjudge the intelligence of students.

Q. Being a female associate did you ever face Gender Biasedness in the field of law?

When it comes to me,  I would say never. I would like to tell you that I have experience of working late till night (till 3 am). I had stayed at the police station for a good number of hours. Biasedness only comes in when you are not given opportunity. Females are coming forward and working in the field of law.

It is to be noted that we have a good number of female judges who have a much better understanding of the subject matter. I would not say that biasedness still exists and if it does I never experienced it, maybe I was too lucky in that case.

Q. In the wake of COVID-19 what is the problem faced by the lawyer Nowadays?

Financial turmoil is something that everybody is facing these days. Post- COVID situation is not going to be the same as it is today. After the assumption of the Social or economic orders, there would be a lot of burden on lawyers especially the young generation lawyers. The main thing they would have to focus on is the quality of the services that they would be offering to their clients. Young lawyers are majorly suffering from financial turmoil wherein they have no cases to handle, the urgent matters having been already allotted to the top-notch lawyers or law firms.

Q. Are Virtual Courts a better alternative to the traditional courts? 

Virtual Court is definitely a substitute for the physical court. It has its own advantages like:

1. Transparency in the system 

2. People would get more justice

3. There would be accountability 

4. There would be Intelligence 

5. It would be cheaper for a lot of litigants also

However, it must also be kept in mind that there are a lot of Lawyers who are not aware of how to make use of the technology. So, we have to plan accordingly, we need to train the lawyers about technological know-how. Moreover, there are lawyers who cannot afford the required technological gadgets. We need to find an alternative to it and assist them.

If there had been no virtual hearing then many people would not have been served with justice. The idea here is to give justice to all, including justice and not excluding justice. I feel the physical court is the spine of the constitution which cannot in any circumstance be ignored. Virtual courts can in no way displace the physical courts. However, it is certainly a substitute in the current pandemic.

Q. How to be a better litigator?

To be a good litigator you need to have good communication skills, it helps to engage with your clients and present the case. Apart from the Communication skills, drafting and analytical skills also play an important role. One needs to have a deep knowledge of the concerned subject and should possess great research skills.

8. You have been a non-NLU student, so did you face any problem being a non-NLU student?

There are many private collleges and universities recognised by the Bar Council of India which have left a mark in the legal field, matching the standard of NLU’s. If I talk about litigation, the college you belong to, hardly matters. It is the efforts you put in the case, the presentation of the case that helps you in winning the case. Being an NLU student might have an added advantage in the Corporate sector, but in the log run it’s the hardowrk that matters. 

Q. Do Participation In Extra-Curricular Activity in Law schools like Mooting, debating has any Impact on Carrier in the long-run?

The problems that are given by the colleges are more or less related to the practical situations, that we actually face in courts. In a way, they are making you prepare for the practical system apart from your theoretical system. Debates, Moot courts, Article writing, e.t.c boost up your self-confidence as well as the knowledge about the subject. Academics and Extracurricular activity play an Equal role in the setting of a good Carrier.

Q. What will be your Appeal to a Building Lawyer?

I would suggest the young lawyer’s needs to be clear what field they wish to pursue right after their career like they wish to go for litigation, judiciary or Corporate. They need to focus on drafting skills, your drafting skills really matters in litigation. They should be aware of what’s happening around the world. And last but not least, enjoy the field, the colleagues are really helpful to support you.

In this article, Sagnik Chatterjee who is currently in IInd Year pursuing BA.LL.B, from Symbiosis Law School, Pune, discusses about the Right to Equality in India.

Meaning of Right to Equality

The term Right to Equality is originally taken from the constitution of England and as explained in that test the term means;

I. First and foremost, this means that any person irrespective of gender, religion, caste, or creed will be treated equally in the eyes of law. The legal system will be completely blind and unbiased towards the person standing before it.

II. The legal system or any law will be equally applicable towards all the people entitled to it. That is to say, two persons will be similarly punished in the eyes of law for committing the crime of the same nature.

III. Last but not the least, no person will be above the legal system or the laws in force of the country. From the lawmakers to servants, from rich to poor everyone will be equally entitled to the law in force.

Equity and Equality

There is a thin line of difference between Equality and Equity. Equality means equal treatment to all the people irrespective of any other present factors. Whereas, Equity means treating different people differently based on the other factors present so that everyone can be at the same position at the end.

Illustration

A has Rs. 40, B has Rs. 30, C has Rs. 20

According to the principles of Equality, we will give them each the same amount of money for example Rs. 40.  Now A has Rs. 80, B has Rs. 70 and C has Rs.60.

According to the principle of Equity, we will give A Rs. 10, B Rs.20 and C Rs. 30, and now everyone has Rs. 50.

In reality and in the actual practice of the principle of equality does not mean a similar treatment to everybody. As no two individuals are equal in all regards, a similar treatment to them in each regard would bring about unequal treatment. As no two people are equivalent in all respects, a comparable treatment to them in each respect would achieve inconsistent treatment. For example, a comparative treatment in all views to an adolescent as an adult, or to an incapacitated or genuinely hindered individual with respect to an individual liberated from any medical issues, or to a princely individual as to poor, will realize inconsistent treatment or treatment which nobody will legitimize.

Thus, the essential standard of equality isn’t the consistency of treatment to everything thought about being equivalent, yet rather to give them a comparative treatment in such matters where they are similar and assorted treatment in such matters in which they are not the same. Essentially, it is communicated: Equals are to be managed along these lines while Unequal must be managed in an alternate manner. For genuine utilization of the rule of equity, taking everything into account, we should, thus, segregate between the people who are comparable and the people who are not comparable among each other based on the circumstances and other factors involved.

Right to Equality under the Indian Constitution

Under the Constitution of India, the Right to Equality is embodied under article 14-18 and exactly what rights and liberties these articles provide is stated hereunder.

Under Article 14 of the constitution of India, it is stated that all people shall be equally treated under the law and shall be equally protected by the laws of the country. It means that the State will treat the citizens of this country or even otherwise any person subjected to the laws of this country in the same way if the circumstances and other determining factors are alike and they shall be treated differently if the circumstances and other determining factors are different.

Under Article 15 of the Constitution of India, it is stated that no citizen of India shall be subjected to any sort of discrimination upon their rights under the laws of this country based on religion, race, caste, sex or place of birth. However, this provision does not constrain the State to make any special provision for women or children or any socially or educationally backward class or scheduled castes or scheduled tribes for their own upliftment in the society.

Under Article 16 of the Constitution of India, it is laid down that the State cannot discriminate among the citizens of the country in the matters of employment in Public Sector. However again this provision does not constrain the State to make any special provision to reserve certain posts or job profiles or a certain percentage of jobs in the public sectors for women or children or any socially or educationally backward class or scheduled castes or scheduled tribes for their own upliftment in the society.

Under Article 17 of the constitution, it abolishes the practice of untouchability to be performed anywhere in this country by either the Citizen of this country or any people subjected to the laws of this country. The practise of untouchability is also an offence and anyone doing so is punishable by the provisions laid down under the Untouchability (Offences) Act, 1955.

Under Article 18 of the Constitution of India, it prohibits the State from conferring any titles. It states that Citizens of India cannot accept any titles such as Rai Bahadurs and Khan Bahadurs given by the British during their rule, from a foreign State. However, titles and awards to recognize the excellence in the field of Military force, Academic, Entertainment etc. can be conferred on the citizens of India.

Leading Case Laws

Here is a list of leading cases on the principle of Equality as embodied in the Constitution of India chronologically to also point out the changes happened to the applicability of such principle in modern times according to the changing people and their needs in the society.

In the case of P. Rajendan v. State of Madras[1], the district-wise distribution of seats in state medical colleges on the ground of proportion of the population of a district to the total population of the state was in question. Now any classification will be valid under article 14 if there is a relation between the classification and the object sought to be achieved from that classification. For any selection process of admission, the main goal should be that the best possible candidates get selected, but here due to this rule, a less deserving candidate from one district can get selected whereas a more deserving candidate from the other district will not which is unreasonable and not fair and hence it was declared to be violative of the principle of equality under Article 14.

In the case of Maneka Gandhi v. Union of India[2], Justice P.N.Bhagwati, pronounced the new concept relating to the principle of Equality which states;

“Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality, or non- arbitrariness pervades Article 14 like a brooding omnipresence.”

In Air India v. Nargesh Meerza[3] Regulation 46 of Indian Airlines regulations was in question. The said provision states that an air Hostess will be made to resign by the administration from her position after accomplishing the age of 35 years or on marriage inside 4 years of Service or on first pregnancy and otherwise they could continue their services till the age of 45 years if they are proved to be medically fit.

It was held by the court that compulsory resignation on the ground of pregnancy was totally arbitrary and unreasonable and discretionary, it was the infringement of article 14 under the Constitution of India.

In D.S Nakara v. Union of India[4], in this case, the supreme court said that Rule 34 of the central services( pension) rules, 1972 as unconstitutional on the ground that the classification made by it between pensioners retiring before a certain date and retiring after that date did not depend upon any rational principle it was arbitrary and the infringement of article 14 of Indian constitution law.

Conclusion

From the above-mentioned judgements passed by the Court, it is clear that Article 14 of the Constitution of India ensures equal rights without discrimination of any manner. It also makes sure that everyone is treated equally in the eyes of law and most importantly there is no discrimination on the basis of caste, religion, race or social status.  Being said that, right to equality is indeed one most indispensable rights among the fundamental rights prescribed in the Constitution and a part of the basic structure of the same.  

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[1] 1968 AIR 1012

[2] 1978 AIR 597

[3] 1981 AIR 1829

[4] 1983 AIR 130

This article is written by Gaurav Lall pursuing BBA LL.B. (Hons.) at United World School of Law. The article speaks about the concept and ideology of cyberbullying. The laws related to cyberbullying are also specified. 

INTRODUCTION

Cyberbullying is any form of bullying that takes place via internet-connected devices like smartphones, computers, or tablets. It can occur via social networking sites such as Instagram, Snapchat, and Facebook etc. and through email, messaging apps, text messages, forums, games, etc. Any online medium that allows for the sharing of information can become a platform for cyberbullying. Cyberbullying is the use of technology to intimidate, harass, threaten, torment, or humiliate a target person. Examples of cyberbullying include sending false or threat types of texts, posting false information about a person online, or sharing embarrassing photos or videos. It can be particularly damaging and upsetting because it’s usually anonymous or hard to trace the accused. It’s also hard to control, and the victim has no idea how many people have seen the messages or posts. People can be tormented non-stop whenever they check their devices or computers. Most of the times it becomes difficult for the parents and teachers to recognize apparently what the children and teenagers do online. Cyberbullying doesn’t require face-to-face contact and is not limited to just a handful of witnesses at a time. The physical power or strength in numbers is also not required for performing the crime. 

Reasons and Consequences of Cyberbullying

Cyberbullying has been around for a while currently, but people have just recently begun realizing that the problem needs to be addressed. There’s a typical misconception that it’s only children, who suffer from cyberbullying. Of course, the difficulty will affect them. It becomes hard for parents to cope up with what their children do online. However, cyberbullying is an issue that can affect anyone and does affect people of any age from all over the world. The reasons why people decide to bully others online are varied, but this article aims to identify some of the foremost common factors. (i) A lack of empathy the technology enables people to distance themselves from a situation of affairs even whereas they’re in it. Cyberbullies do not see the pain they cause and therefore cannot imagine the uncertainty they put to their victims. (ii) Cyberbullies cannot feel the pain they cause to their victim and thinks they deserve it and insecurities are the major factor in bullying whereas most of the people often try to put their peers down to feel superior. It’s common for people to try and discredit or bully others based on a difference of opinion or a sense of superiority. (iii) Another common cause is the desire for revenge which makes one person want to hurt the other. Because the online platform is easier and more accessible, cyber-bullying often is easier than real-life bullying, making it a common tool in the hands of bullies. 

Cyberbullying can make the persons or children feel overwhelmed which can result in feeling embarrassed that they are going through such a devastating time, and not knowing what support is available to them. Many children feel unable to reveal in an adult because they feel ashamed and wonder whether they will be judged, told to ignore it or close their account. For many cyber bullying effects, their everyday lives become a constant source of distress and worry. With mobile technology being so freely available it is an ongoing issue and which is persistent. It does not only go on after school, college or work, but mostly carries through into the next day and the cycle continues. It has been well documented that cyberbullying has resulted in painful events including suicide and self-harm and clearly, more needs to be done to protect the vulnerable population captured in the zone of cyberbullying.

Cyber Bullying Related Laws in India

Unfortunately, in India, there is no specific law which addresses cyber-bullying. Therefore, we have to rely on the Indian Penal Code (IPC) with particular reference to the following Sections:

i) Section 499: Defamation

ii) Section 292A: Printing, etc. of grossly indecent or scurrilous matter or matter intended for blackmail

iii) Section 354A: Making sexually coloured remarks, guilty of the offence of sexual harassment

iv) Section 354D: Stalking

v) Section 507: Criminal intimidation by an anonymous communication

vi) Section 509: Word, gesture, or act intended to insult the modesty of a woman.

The above provisions of the Indian Penal Code are not considering all aspects, but cyber-bullying can be brought under these provisions of law. Even under the Information Technology Act, 2000, there exists no specific provision concerning cyber-bullying, but the following Sections would be attracted in the event of cyber-bullying:

i) Section 67: Publishing or transmitting obscene material in electronic form

ii) Section 67A: Publishing or transmitting of material containing the sexually explicit act, etc.in electronic form

iii) Section 66E: Punishment for violation of privacy.

In the year 2012, “The Protection of Children from Sexual Offences Act (POCSO)” was enacted protecting the children below the age of 18 years from any form of sexual harassment, sexual assault, and pornography which would include any form of sexual cyber-bullying which would be punishable under the provisions of this Act. 

After examining the laws to address this increasing crime of cyberbullying, there exists a very serious need to have specific legislation. In this regard, it is relevant to mention that the Ministry of Human Resources, have realized the gravity of cyber-bullying and directed all schools and colleges to form Anti-Ragging Committees. Further, the guidelines also specify that educational institutions are indeed to put a check and prevent harassment by cyber-bullies.

CONCLUSION

Cyberbullying is a problem in societies that are advanced enough to have the technology to connect with other people online and is not easily fixable. It can affect anyone but is most prominent in today’s youth. People mainly, teenagers have trouble with cyberbullying and find it hard to communicate with others about the problem they are facing. The people are facing trouble and lives are being lost through long term effects such as depression and anxiety. The elimination of cyberbullying will take a combined effort and won’t be eliminated overnight. The government should accept that cyberbullying is a challenge to be accepted and put some laws for this to help discourage this activity. So schools and parents should be aware of what kids are doing on the internet and their phones and act if they are doing something wrong. 

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“Impact of COVID-19 on Patent Laws in India and the Trade-Related Aspects on Potential Drugs”

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This article is written by Mohit Bhardwaj. A 2nd year Law student, currently pursuing BBA-LL.B(Hons.) from Unitedworld School of Law, Karnavati University. In this article, the author discusses the offence of Mischief as mentioned under IPC. To substantiate the concept, reference is made to all the Sections covered by the topic, with relevant illustrations and case laws

INTRODUCTION

According to section 425 of IPC Mischief- Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the general public or to a person, causes the destruction of any property, or any such change in any property or within the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits “mischief”  

Explanation 1.—It isn’t essential to the offence of mischief that the offender shall intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not. 

Explanation 2.—Mischief could also be committed by an act affecting property belonging to the one that commits the act, or to that person and others jointly.

ILLUSTRATIONS

(a) B voluntarily burns a valuable security belonging to C in­tending to cause wrongful loss to C. B has committed mischief.

(b) B introduces water into an ice-house belonging to C and thus causes the ice to melt, intending wrongful loss to C. B has committed mischief.

(c) B has committed mischief if B voluntarily throws into a river a ring that belongs to C, with the intention of thereby causing wrongful loss to C. 

(d) B has committed mischief if B, knowing that his effects are about to be taken in execution in order to satisfy a debt due from him to C, destroys those effects, with the intention of thereby preventing C from obtaining satisfaction of the debt, and of thus causing damage to C. 

(e) B has committed mischief if B, having insured a ship, voluntarily causes the same to be destroyed, with the intention of causing damage to the under-writers.

(f) B has committed mischief if B causes a ship to be cast away, intending thereby to cause damage to C who has lent money on bottomry on the ship.

(g) B has committed mischief if B, having joint property with C which is a horse and B shoots the horse, intending thereby to cause wrongful loss to C.

(h) B has committed mischief if B causes his/her cattle to enter upon a field belonging to C, intending to cause and knowing that he is likely to cause damage to C’s crop.

Scope of Mischief 

Mischief under Section 425 of IPC covers all those acts that cause any damage or destruction to the property resulting in any wrongful loss or damage. The scope of this section is wide and it applies in the case of both public as well as private damages.

However, the most important point is that it will not have any application in the cases where the element of intention is absent which is further elaborated in this article under the heading of Ingredients of mischief. It is also not essential that the person accused had some valid motive behind or must have been benefited from the act of “mischief”. 

But some other significant questions of consideration are whether this act can be applied in the cases when the accused has damaged his/her own property? Or will it cover situations when the damage caused to the property is a consequence of an illegal act or default in payment?

When accused is the owner of the damaged property 

In the case of Indian Oil Corporation v. NEPC India Ltd. and Ors., the Court held that ownership or possession of the property is not a deciding factor in the matter of the application of section 425 of IPC. Thus, mischief is said to be committed even in cases when the accused is the owner of the property provided all the other essential ingredients mentioned are satisfied.

This is further evident from the illustrations (d) and (e) to Section 425. According to the facts of the above case, the petitioner alleged that the respondent removed the engines of the aircraft diminishing their value and utility. Since the appellants had the right to possess the aircraft it resulted in wrongful loss or injury Hence the Supreme held that the allegations amounted to the offence of mischief as all the essential ingredients of mischief had been satisfied.

Default of Payment or Illegal Act 

In case of disconnection of water supply, sewerage supply, electricity supply, telephone connection, etc., by the concerned departments resulting from the default in payment or an illegal act after following a due process will not come under the ambit of “Mischief”.

Ingredients of Mischief

Essentially there are three key elements to establish Mischief as per the definition laid down in section 425 of IPC which are as follows:

Intention or the knowledge of the act (mens rea);

The act resulting in destruction, damage or change in the property or situation thereof; and (actus rea)

The change must lead to diminishing the value or utility.

Intention or the knowledge of the act may result in wrongful loss or damage (mens rea)

One of the most essential elements of all offences under IPC is that any crime is composed of two parts- Mens Rea & Actus rea. Similarly, “Mens rea” is required to be present in order to establish the offence of Mischief.

The definition of the law of mischief makes it very clear that the only way to prove the act of mischief does not essentially mean that it has to be proved that the accused essentially had any deliberate intention to cause unjustified damage to the property. But rather what can also serve as sufficient proof is the fact that the individual had the knowledge that such action of his/her can result in damage or degradation of the property, causing wrongful loss or damage. 

This can also be understood with a real-life example that if some children while playing street cricket break-up a glass window, it will not amount to mischief but will rather constitute negligence. But if those children deliberately throw the ball to aim at the window resulting in breaking up the glass and causing loss to the owner, then it will amount to mischief.

Similar was the judgement pronounced in the case of Nagendranath Roy v. Dr. Bijoy Kumar Dasburma where the court observed that mere negligence does not constitute mischief. However in certain situations when facts indicate that intention to cause wrongful loss was present along with the negligence causing damage will amount to mischief. 

In the case of Krishna Gopal Singh And Ors. v. the State Of U.P., it was stipulated that if the accused has committed an act without any intent or knowledge that the act in question is likely to cause wrongful loss or damage to any person or the public at large, it will not fall under the ambit of mischief as the element of “Mens rea” is absent. Similarly, if an act is committed without free consent i.e.under some pressure or duress it will also not amount to mischief.

In Arjun Singh v. The State (AIR 1958 Raj 347) it has been observed by this Court:”In order to establish the offence of mischief, it is essential for the prosecution to establish that the accused must have an intention or knowledge of likelihood to cause wrongful loss or damage to the public or any person.”

Punishment for Mischief

The punishment for Mischief is prescribed under Section 426 which states that it attracts imprisonment of a term which may extend up to three months, or with fine, or with both, as the court may deem fit.

Nature of offence: The offence under this Section is non-cognizable, bailable, compoundable, and triable by any Magistrate.

Aggravated forms of Mischief

Though the punishment for the offence of mischief has been laid down as imprisonment until 3 months, or fine, or both in Section 426 of the Indian Penal Code. However, the IPC recognizes and lists down certain aggravated forms of mischief which have been described under Sections 427 to Section 440, IPC.

CONCLUSION

As society advances, new situations also emerge, and new issues are encountered. Similarly, though the offence of Mischief appears to be very exhaustive and inclusive taking up the whole fifteen sections of IPC. It tries to cover all the possible forms of mischief laying down different punishments for each depending on the gravity of the offence.

But despite this, it still fails to lay down proper punishment for many other kinds of mischief that are very common. Further, it does not lay down various situations that may also fall under the ambit of mischief hence leaving this solely to the discretion of Judges to identify and classify it as an act of mischief and to declare the punishment for the same. Due to this, there have been cases, where different levels of punishment can be witnessed in offences having similar nature & gravity.

Thus it is imperative to identify and implement appropriate punishment for the offence of mischief so that the offender can get due punishment and further, more deterrence can be ensured.

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This article has been written by Aaditya Kapoor, a law-aspiring student of Vivekananda Institute of Professional Studies. Through his research, Aaditya strived to shed light upon provisions and necessity of Motor Vehicles Act, 1988.

INTRODUCTION

The Motor Vehicles Act was passed by the Indian Parliament in 1988. The Act regulates nearly all aspects of road vehicles, along with providing detailed provisions on driver and driver licensing, motor vehicle registration, permit control provision, traffic regulation, associated insurance, liabilities, and penalties. This act focuses mainly on vulnerable pedestrians on the road who might be harmed by these motor vehicle drivers. The motor vehicle act provides a liability clause for those vulnerable individuals. They are referred to as “Third Party” and the motor vehicle act is about ensuring protection for such third-party persons.

The motor vehicle act makes it mandatory for a driver to hold a valid driving license and no motor vehicle can be driven without the motor vehicle act being licensed. This registration card is valid for the next fifteen years from the date of registration, which can be extended for the next five years.

Offences and their punishment as prescribed under the Motor Vehicles Act

• Under section 3 r/w 181 of the Motor Vehicles Act, a driver without a valid license is liable to pay a fine of INR 500/- and he or she can also face imprisonment of about three months.

• Under section 5 r/w 180 of the Motor Vehicles Act, if a person not having a valid license is found driving, the person authorizing such act shall be fined with a penalty of INR 1000/- with or without three months ‘ imprisonment.

• According to section 130(3) r/w 177 of the Motor Vehicles Act, a person not carrying all the required documents shall be liable to pay an INR 100/- penalty.

• According to section 130 r/w 177 of the Motor Vehicles Act, a person is liable to pay a fine of INR 1000/- if found driving without valid insurance with or without three-month imprisonment.

• According to section 130 r/w 177 of the Motor Vehicles Act, an individual shall be liable to pay a fine of  INR 5000/- if he/she is found without a valid license.

• According to section 39, r/w 192 of the Act, a person not having valid R.C. shall be liable to pay an INR 2000/- fine for his or her car.

• According to section 4 r/w 181 of Motor Vehicles Act, the owner of the vehicle is liable to pay a penalty of INR 500/- for driving of the vehicle by a minor.

• A penalty of INR 1000/- shall be levied According to section 5 r/w 180 Motor Vehicles Act to a person that allows an unauthorized person to drive.

• A person driving without a helmet shall be liable to pay a penalty of INR 100/- According to section 129 r / w 177 Motor Vehicles Act.

• Pursuant to section 138(3) CMVR 177 Motor Vehicles Act, a person driving without fastening his seat belt is liable to pay INR 100/- fine.

• According to section 184 of the Motor Vehicles Act, an individual found to be doing reckless driving shall be liable to pay INR 1000/- fine.

• According to section 112-183 of the Motor Vehicles Act, a rushed or dangerous driver is liable to pay a fine of INR 1000/- with or without imprisonment depending upon the extent of the violation.

• According to section 17(i) RRR 177 of Motor Vehicles Act, a driver shall be liable to pay a fine amounting to INR 100/- if found driving against the one way in one direction. 

Changes to the Motor Vehicles Act, 1988

The 2019 Motor Vehicles (Amendment) Bill is based on State Transport Ministers Committee recommendations. Since the Act wanted to deter individuals from breaking traffic rules, it introduced heavy fines for drunken driving, license-free driving, hazardous driving, over-speeding, etc. As notified by the central government, these penalties will increase by 10 per cent on April 1 each year. The new Act also extended the renewal period from one month to one year after the expiry date for driving licenses. In case the extension is expired by longer than a year, the applicant would be forced to take a skill test. The Act also promises to protect from any civil or criminal liability those persons who render medical or non-medical emergency assistance to a victim of an accident. The limited death or grievous damage insurance due to hit and fall was significantly pushed up.

According to data from the Ministry of Road Transport and Highways, 4.64 lakh accidents occurred in 2017 which claimed the lives of 1.47 lakh people. More than a third of all road accidents involved two-wheelers. Little by little, as all States begin to implement the provisions of the Act with heavier fines and imprisonment for drunken driving, driving without a license and insurance and juvenile offences, people can begin to follow rules and road accidents can actually reduce. It is necessary to have legitimate auto insurance so that the aggrieved parties get coverage in a road accident.

However, State governments are free to make their own laws and regulations, provided that it is just a model statute. Success depends on how well they are following the act’s provisions.

Necessity of Motor Vehicles Act

Not following the rules of traffic and road safety as provided for in the Act can lead to severe monetary compensation. The fine has increased to ₹1,000 for not wearing a helmet, and the liability can also be subject to a three-month license disqualification. The fine is currently around ₹1,000 for not wearing a seatbelt. The penalty has risen from ₹ 500 to ₹5,000 for pace or speeding and from ₹2,000 to ₹10,000 for drunken driving. The new Act also requires incarceration for serious offences, in addition to greater fines. Speed racing can attract three months in prison (with or without a fine); if caught for the second time, this will extend to a period of one year. For minor-related crimes, the vehicle’s parent or owner shall be judged guilty and disciplined with an estimated 25,000-fine and three-year jail sentence. The juvenile would be tried under the Juvenile Justice Act, 2000 and motor vehicle registration will be cancelled for a 12 month period. The owner of a motor vehicle who changes it by retrofitting sections of a motor vehicle in a way not allowed by the Act shall be disciplined with incarceration for a period of up to six months (and/or a fine of up to ₹5,000 for such alteration).

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ACT OF GOD ( VIS MAJOR) AS A DEFENCE UNDER TORT LAW

This article is written by Preeti Bafna from Unitedworld School of Law, Karnavati University. Black’s Law Dictionary defines an act of God as “An act occasioned exclusively by the violence of nature without the interference of any human agency.” A natural necessity proceeding from physical causes alone without the intervention of man. It is an accident which could not have been occasioned by the human agency but preceded from physical causes alone.”

INTRODUCTION

An act of God is a general defence used in cases of torts when an event over which the defendant has no control over occurs and the damage is caused by the forces of nature. In those cases, the defendant will not be liable in the law of tort for such inadvertent damage. Act of God defined as circumstances which no human foresight can provide against any of which human prudence is not bound to recognize the possibility, and which when they do occur, thus the calamities that do not involve the obligation of paying for the consequences that result from them.

Act of God or Vis Major

The ‘act of God’ defence is based on the tort law principle that liability must be founded on a fault and that a person cannot be penalized where the fault is that of a ‘vis major’ where all precautions were taken, and a casualty still occurred.

Vis major is defined, as “A loss that results immediately from a natural cause without the intervention of man, and could not have been prevented by the exercise of prudence, diligence, and care.”

According to Salmond “an act of God” includes those acts which a man cannot avoid by taking reasonable care. Such accidents are the result of natural forces and are incoherent with the agency of man.

Thus it is an act which “ is due to natural causes directly and exclusively without human intervention, and that it could not have been prevented by any amount of foresight and pains and care reasonably to have been expected from him i.e. the defendant. According to Lord Mansfield, an act of god is defined as “it is something in opposition to the act of man”.

Elements of Act of God

NATURAL CAUSES: An act of God is an uncommon, extraordinary and unforeseen manifestation of the forces of nature, or misfortune or accident arising from inevitable necessity. An act of God cannot prevent by reasonable human foresight and care.

The effect of ordinary causes may be foreseen and avoided by the exercise of human care. For example, the fact that rain will leak through a defective roof is foreseeable by an ordinary man. In the case of foreseeable causes, failure to take the necessary precautions constitutes negligence, and the party injured in the accident may be entitled to damages. An act of God, therefore, is so extraordinary and devoid of human agency that reasonable care would not avoid the consequences. Therefore in such cases, the injured party has no right to damages.

1. An Occurrence not Reasonably Foreseeable

The basic and prime element of an “act of God” is the happening of an unforeseeable event. For this, if the harm or loss was caused by a foreseeable accident that could have been prevented, the party who suffered the injury has the right to compensation. However, the damage caused by an unforeseen and uncontrollable natural event is not compensable as it could not have been prevented or avoided by foresight or prudence of man.

Moreover, courts are of the opinion that the “act of God” defence exists only if the event is so exceptional and could not have been anticipated or expected by the long history of climate variations in the locality. It is constructed by only the memory of man i.e. recorded history. The courts may demand expert testimonies to prove that an event was unforeseeable.

2. Impossible to Prevent by any Reasonable Precautions and Absence of Human Agency Causing the Alleged Damage

It means practically impossible to resist. Negligence constitutes a failure to take the necessary precautions. In an incident where a human factor was present, even though the harm could not be prevented, the fact that the human factor exercised reasonable care and precautions to prevent the harm has to be proved if the defence of “act of God” has to prevail. If negligence is alleged and proved, then the defence of “act of God” will fail. If an owner was negligent in properly maintaining a tree that fell on a passerby, he cannot be exempted from liability by “act of God” principle.

Case Laws

1. In the case of Nichols v. Marshland [1]the defendant has a number of artificial lakes on his land. Extraordinary rain such as had never been witnessed in living memory caused the banks of the lakes to burst and the escaping water carried away four bridges belonging to the plaintiff. It was held that the plaintiff’s bridges were swept by an act of God and the defendant was not liable.
2. In the case of Blyth v. Birmingham Water Works Co[2]the defendants had constructed water pipes which were reasonably strong enough to withstand severe frost. There was an unprecedented severe frost that year causing the pipes to burst to result in severe damage to the plaintiff’s property. It was held that though frost is a natural phenomenon, the occurrence of an unforeseen severe frost can be attributed to an act of God, thus the relieving the defendants of any liability.
3. In the case of Ramalinga Nadar v. Narayana Reddiar[3] the plaintiff had booked goods with the defendant for transportation. The goods were looted by a mob, the prevention of which was beyond the control of the defendant. It was held that event beyond the control of the defendant cannot be said Act of God. It was held that the destructive acts of an unruly mob cannot be considered an Act of God.

CONCLUSION

Although the act of God defence – that a defendant is insulated from liability for personal injury or property damages caused by a natural cause – is rarely used, it may become more common and general in the future if predictions of disastrous weather events caused by global warming prove true. One prediction related to global warming is that catastrophic weather events such as hurricanes, tornados, and torrential rains will occur more often. All of these have the potential for causing extensive personal injury and property damage and consequently mental trauma.

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[1] [(1876) 2 ExD1 ]

[2] (1856) 11 Ex Ch 781

[3]  (AIR 1971 Ker 197)

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This article is written by Darshika Lodha, a BBA.LLB(Hons.) student of Unitedworld School of Law, Karnavati University. This article deals with Domestic violence which is a crime that is often overlooked.

INTRODUCTION

Domestic abuse is not just physical violence. Domestic violence is any action that is intended to obtain power and influence over a spouse, girlfriend, girl/ boy, or an intimate family member. Abuse is a learned behaviour; it is not induced by rage, psychiatric illness, drugs or alcohol, or other traditional excuses.

Victims of Domestic Violence

Women make up the largest group of victims. However, men, children, and elderly people may also be victims of domestic violence. Domestic violence occurs at all levels of society and in all population groups.

Abuse is usually intentional, but not always. For example, often people can no longer cope with family care. The situation can then escalate and lead to abuse.

Facts of Domestic Violence in India

The issue of gender-based violence in India has been on the political agenda for many years. And with substantial data, one thing is clear: rampant domestic violence against women in India is a reality. Every third woman, since she was 15 years of age, has been confronted with domestic violence of various forms in the country, according to the National Family Health Survey (NHFS-4) released by the Union Ministry of Health. Thus, the incubation of a new round of debate on the cultural underpinnings of domestic violence.

According to the survey, 27 percent of women have experienced physical violence in India since the age of 15. This experience of physical violence between women is more common in rural areas than among women in urban areas. Domestic violence cases, where women reported physical abuse in rural and urban areas, were 29 percent and 23 percent respectively.

The Protection of Women from Domestic Violence Act 2005 (PWDVA) sets out a comprehensive definition of domestic violence that encompasses all forms of physical, emotional, verbal, sexual, and economic violence and covers both actual acts of violence and threats of violence. Also, the PWDVA recognizes marital rape and treats harassment in the form of unlawful dowry claims as a form of abuse.

Domestic Violence in COVID 19

Domestic violence has increased globally, driven by mandatory home-stay rules, physical distances, economic uncertainties, and pandemic anxieties. Across the world, countries including China, the United States, Brazil, Tunisia, France, Australia, and others have reported cases of increased domestic violence and intimate partner violence. India, infamous for gender-based violence (and ranked the fourth worst country in terms of gender equality, according to public perception), is showing similar trends.

Types of Abuses

• Physical abuse may include beating, biting, slapping, beating, shoving, punching, pulling hair, burning, cutting, pinching, etc. (any kind of violent behaviour inflicted on the victim). Physical abuse also includes denying someone medical treatment and forcing someone to use drugs/ alcohol.
• Sexual abuse occurs when the abuser forces or attempts to force the victim to have sexual contact or sexual behaviour without the consent of the victim. This often takes the form of marital rape, attacks on the sexual parts of the body, physical violence followed by sex, sexual demeaning of the victim, or even sexual jokes at the expense of the victim.
• Emotional abuse means invalidating or deflating the victim’s sense of self-esteem and/or self-esteem. Emotional abuse frequently takes the form of persistent criticism, name-calling, injury to the victim’s relationship with his / her children, or dissatisfaction with the victim’s abilities.
• Economic abuse occurs when the abuser makes or tries to make the victim financially dependent. Economic offenders also try to retain absolute leverage of financial resources, to restrict victims access to funds, or to discourage the victim from going to school or work.
• Psychological abuse is a catchall term for intimidating, threatening, or fear-causing behaviour. This conduct has to be consistent and meaningful. Generally, a one-time event will not be enough to bring domestic violence to bear. Like emotional abuse, psychological abuse may not, on its own, be enough to engage in domestic violence unless it is particularly serious.
• Technological abuse includes the use of technology to control and hold a partner. Technological abuse may happen to people of all ages, but it is more common among teenagers who use technology and social media to communicate in a way that is often unmonitored by adults.

Steps that Survivors of Domestic Violence should take

In addition to finding help and counselling from services such as Genesis Women’s Shelter and Help or a therapist, Aubrey urges victims and survivors of domestic abuse to take the following steps when they can do so:

1. Call the cops. If you are physically or sexually assaulted by your spouse, partner, or anyone else, call the police and ask for help immediately.
2. Take videos of the injuries. “It’s important to preserve any evidence of the assault,” 
3. Record your voice memo during the assault. “I’ve had clients grab a phone and hit a voice memo record during the assault,”.
4. Go to the doctor right now. Tell your doctor you were raped and have a rape kit prepared, just as if you were assaulted by a third party or not.
5. Create safety. Survivors of domestic violence should set up a safety plan for themselves and their children. A safety plan may involve stashing some money, clothing, phones, extra car keys, passports, I.D.s, and other essential documents in a safe place outside the house.

CONCLUSION

Domestic violence is one of the most egregious types of harassment suffered by women in our culture today. Statistics show that 85% of victims of domestic violence are female. Only 15% of the victims are men. Domestic violence can happen to anyone, regardless of race, creed, religion, or standing in the victim’s society. If the issue of domestic violence is not dealt with adequately, this type of abuse will continue to exist in all classes of society without an end. For us, as a society, to eradicate this horrible type of abuse, we need to stand together and make tougher laws to protect the victims of this abuse.

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This article is written by Pooja Lakshmi, studying BBA-LLB at Bennett University, Greater Noida. In a contract of sale, the parties may take certain statements about the course of trade and stipulation of these relations can either in the form of a warranty or a condition. This article speaks about the provisions of conditions and warranties which are provided in section 11-17 of the Contract Act. Section 12 of the sale of goods act goes on explaining the distinctions between warranties and condition. Moreover, when should a condition be treated as a warranty is also explained in the same.

Keywords: warranty, condition, Indian contract act, sale of goods act.

INTRODUCTION

As every contract of sale contains stimulations or number of terms that define the quality of goods and how well it can fulfil the purpose of the buyer. These terms are called as conditions, and warranty is a written guarantee. These conditions and warranties are put into place. The conditions are made to the product to make it fair for the buyer and seller to make their part clear and not perform any breach when the parties claim a mistake in any part. The whole contract is based upon the condition which is a fundamental precondition and on other hand, warranty is a written guarantee where the seller assures to repair or replace a product which in the case shows any fault in future until a certain period. Due to these reasons, conditions are considered as the foundation of the Indian contract as an integral part of performing the contract. If a seller fails to fulfil a condition, then the buyer has an option of refusing to accept the goods or reject the contract. But in case of an open market, the buyer is responsible for checking the quality and suitability of goods before making the purchase.[1]

History

The use of the word ‘condition’ appears to have originated in the 17^th century. The Sale of Goods Act, 1930 defines the term condition under section 12(2). According to it, a condition can be defined as a stipulation which is so Vital to the contract that its complete and exact performance by one party is a condition precedent to the obligation to the other party to perform his part. Opening para of Section 16 makes it clear that there is no implied warranty or condition as to the quality of fitness of goods for any particular purpose, except those specified in Sale of Goods Act or any other special law. This is the basic principle of caveat emptor i.e. Buyer be aware. However, there are certain stipulations which are essential for the main purpose of the contract of sale of goods, which go to the root of contract and non-fulfilment and these cause frustrations of contract. These are termed as conditions.

Types of Conditions

Express condition as a legal agreement states that something must exist in the contract or must be done. They are the conditions which are imperative to the functioning of the contract and are inserted into a contract at the will of both the parties. On the other hand, implied conditions are of many types. They are described in section 14 to 17 of the Sale of Goods Act 1930. Implied contracts are not particular rather they are mere assumptions made by the parties as if they are incorporated in the contract itself.

 For every contract of sale, there is a basic essential implied condition on the part of the seller. The first condition under section 14 is that one must have the title to sell the goods. If he/she has the title to sell the good, then in case of any agreement to sell, he or she will have the right to sell the goods at the time of performing a contract. Whereas, if the seller has no title to sell the given goods then the buyer may refuse or reject those goods and he or she is also entitled to recover the full price paid by him or her. In the case of thievery, the aggrieved party is entitled to recover the money as the seller has no title to sell the stolen object.[2]

Section 15 describes condition based on the description. The section says that the goods should always have a description confirming their various features. A buyer has an option either to accept or to reject a good which do not conform with its description. Section 16(2) of the Sale of Goods Act says that the goods must be of merchantable quality, that is a quality which can be accepted by a reasonable person. According to this section, a buyer has the right to examine the goods before accepting it and also if, during the examination, the defect is not revealed but within a reasonable time if the goods are found to be defective, the buyer can reject the contract even if he or she has approved the goods earlier. Implied conditions in the case of eatables must be wholesome, sound, and reasonably fit for the purpose of which they were purchased and if any problems arise after consuming the purchased item, the person can claim damages. Section 17 of the Sale of Goods Act is about a contract of sale by sample. According to this section, natural products should correspond with the sample with respect to the quality, colour, size, etc. Here the buyer is given a reasonable opportunity to compare the goods with the sample. The goods must be free from any defect rendering them and should be merchantable[3]. The goods which are supplied must always be in accordance with the description as well as the sample they provide.

Types of Warranty

A Written guarantee that is collateral to the main purpose of the contract is called a warranty. This is an additional stipulation. If a warranty is breached, the aggrieved party cannot reject the whole contract, but it can claim for damages that have happened. Whereas in the case of breach of a condition buyer can reject or return good or but in the breach of warranty the buyer cannot reject a good. These types of warranties are called expressed warranty.

Implied warranties are those warranties which are not specifically included in a contract but are assumed to be incorporated with the contract of sale. Some types of implied warranty are warranty to undisturbed possession, freedom from encumbrances, or to disclose the dangerous nature of goods sold. Section 14(2) describes the undisturbed possession that a buyer can enjoy and if later disturb at any point, can sue the seller for the breach of warranty. Freedom from encumbrance is mentioned in section 14(3), it states that the goods are free from any charge or encumbrance that are with favour to any third party which is not in the knowledge of the buyer. And if the buyer knows the fact at the time of entering the contract, he will not be entitled to any claim. Similarly, if the goods sold are inherently dangerous or are likely to be dangerous to the buyer or anyone and if the buyer was not aware of the danger associated with the product, it is the duty of the seller to warn and make the buyer aware of the danger. Any breach regarding this will only make the seller liable for danger.

In a warranty, damages can only be claimed in a case of a breach but in a condition, the whole contract may be treated as rejected. A condition is supposed to be a stipulation forming basis of the contract whereas warranty is an additional stipulation complementary to the main purpose of the contract.

Condition is basic for the formulation of a contract, but a warranty is a written guarantee for sharing the information regarding the clauses in the contract with a party.

Similarities which can be Found

Section 13 states how the breach of condition will become similar to the level of breach of warranty. A condition can be considered as a warranty only if the condition is considered as a warranty by the buyer or the buyer on his will treat the breach of the condition as a breach of warranty. In both cases, the contract cannot be rejected but the damages can be claimed only in the case of warranty.

CONCLUSION

At the time of purchasing or selling a good, seller and buyer must put forward the conditions and the method of payment, quality delivered, and the quantity of the item. This information is necessary and can provide warranty and terms and conditions based on the same. In a warranty only damages can be claimed in case of a breach but in a condition the whole contract may be treated as rejected. A condition is supposed to be a stipulation forming basis of contract whereas warranty is an additional stipulation complementary to the main purpose of the contract. These stipulations are considered as conditions or warranty based on the various cases and their facts. It protects the right of the parties in a case of breach of any contract and it prevents a breach of contract.

BIBLIOGRAPHY

• J W Carter, C Hodgekiss. Conditions and Warranties: Forebears and Descendants Sydney L. Rev, volume 35, issue 8
• The Sale of Goods Act
• The Indian Contract Act
• Avtar Singh, Law of Sale of Goods
• Morley v. Attenborough, (1849) 3 Exch 511.
• Rowland v Divall [1923] 2 KB 500
• Mark R. Bandsuch, Warranty. Britannica

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[1] Morley v. Attenborough, (1849) 3 Exch 511.

[2] Rowland v Divall [1923] 2 KB 500

[3] Mark R. Bandsuch, Warranty. Britannica, <www.britannica.com/topic/warranty> n

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This article has been written by Parul Sharma, pursuing BBA LLB from Centre for legal studies Gitarattan International Business School GGSIPU. In this article, she has tried to explain Divorce by Mutual Consent under the Hindu Marriage Act. 

INTRODUCTION

Marriages are considered a sacred alliance for life; it is not just a union between two persons but between two families. Nonetheless, it is a relation between two people and since no human is perfect it is highly probable that two people do not feel compatible with each other so as to live together for a whole life. Therefore, it can be seen that the cases of divorce are fast-rising even in countries like India where marriages are considered to be made in heaven. In these circumstances, it is always better that the couple take divorce by mutual consent so as to avoid further disputes, time and money.

This article will entirely focus on the idea of divorce on grounds of mutual consent. There are provisions of divorce on the grounds of mutual consent in Hindu Marriage Act as well as in Special Marriage Act, but in this article, we will only deal with Hindu Marriage Act and analyse the provisions.

Hindu Marriage Act

Section 13 B of the Hindu Marriage Act, 1955 tells the ground of divorce by mutual consent which was inserted in 1976 by an amendment and this was done by adding Section 13B. It states that if the parties decide they do not want to remain married to each other or cannot live with one another they can seek divorce by mutual consent. 

Requirements of divorce by mutual consent

The requirements for divorce by mutual consent under Hindu Marriage Act are as follows:

1. Parties should be living separately

Section 13(B) of the Act prescribes that in order to mutually dissolve a marriage, the spouses should be living separately for a period of at least 1 year before filing the petition. This period of one year where the parties have lived separately must be immediately before the filing of the petition. The phrase “Living Separately” as given under Sec 13B doesn’t mean that the two parties are physically living in distant places. The parties could be living in the same house, sharing the same roof but there can still be a distance between the two. If that is the case then they are not considered to be living as husband and wife, which qualifies as living separately.

The same was held by the Hon’ble Supreme Court in the case of Sureshta Devi v. Om Prakash ^[1]. Here, in this case, it was made clear that living separately does not necessarily mean living in different places. The parties can be living together but not as spouses.

2. Parties have not been able to live together

After proving the first requirement that the parties are living separately for one year or more, the second requirement that has to be established is that the parties haven’t been able to live together.

In Pradeep Pant & anr v. Govt of NCT Delhi ^[2], the parties were married and had a daughter from their wedlock. However, due to temperamental differences between them, they were not able to live together and decided to live separately. Despite putting their best efforts, they were unable to reconcile their marriage and could not see themselves living together as husband and wife ever again. A divorce petition was jointly filed and issues such as maintenance and custody of their child were decided and agreed upon by both.

The wife got the custody of their daughter and the husband would reserve visitation rights; it was mutually agreed by both of them and both the parties gave their free consent without any undue influence involved. The court observed that there was no scope of reconciliation and passed a decree of divorce.

After filing a petition for divorce by mutual consent, the parties are given a waiting period of six months, also called a cooling period and it may exceed up to eighteen months. During this time the parties must introspect and think about their decision.

If the parties are still not able to live together after the cooling period, then the divorce petition shall be passed by the district judge.

3. They have mutually agreed that marriage should be resolved

In some situations – the parties may decide to give their marriage one more chance and mutually resolve their marriage. During the waiting period, the parties may sometimes be able to reconcile and make their relationship work.

After the first motion has been passed, the parties have a total of 18 months to file for second motion and if they fail to do so within those 18 months, both parties are deemed to have withdrawn their consent mutually.

Is the six-month waiting period mandatory?

There have been conflicting judgements on this regard that whether the courts should mandatorily wait for a period of six months as given in the sub-section (2) of Section 13B. In the case of Grandhi Venkata Chitti Abbai ^[3], the court said that if Section 13-B (2) was read as mandatory, the very objective of liberalizing the policy of decree of divorce by mutual consent would be more frustrating if the parties started living separately for a considerable time. Thus, section 13B (2) though is mandatory in form is a directory in substance. Likewise, in the case of Dinesh Kumar Shukla v Neeta ^[4], it was held that the waiting period is a directory in nature and it can be brought down from 6 months (provided the mandatory requirements of section 13B (1) are fulfilled) when all efforts at reconciliation failed.

But, in the case of Hitesh Narendra Doshi v Jesal Hitesh Joshi ^[5], it was held that “the provision has a definite purpose and object, i.e. giving time to the parties for introspection and reconciliation. That purpose and object stare at us so clearly by the language expressed in s 13-B (2) of the Act robbing away the right of the court from considering the petition earlier than six months.”

In the case of Ashok Hurra v Rupa Ashok ^[6], it was held that “in the exercise of its extraordinary powers under Article 142 of the Constitution, the Supreme Court can grant relief to the parties without even waiting for the statutory period of six months stipulated in s. 13-B of the Act. This doctrine of irreversible break-down of marriage isn’t accessible even to the High Courts which don’t have any powers similar to those exercised by the Supreme Court under Article 142 of the Indian Constitution.”

Therefore, the courts have been inclined more towards waiving off this period if the circumstance of the case demands so and where there is no chance of reconciliation between the parties. Also, the Supreme Court by way of its extraordinary powers as provided under Article 142 of the Indian Constitution can grant a divorce without waiting for 6 months if it is satisfied that the marriage is irretrievably broken down. However, this power is restricted only to the Supreme Court. There is still uncertainty whether High Courts and Family Courts have to mandatorily wait for a period of 6 months. But as it is proved with the help of many cases, there is no possibility of reconciliation between the parties and the marriage has been broken down irretrievably, the courts should follow the essence of law more than the precise requirements of the section.

Whether consent can be unilaterally withdrawn?

There have been contrasting judgements on this issue. The controversy is that since under this section both parties have to file a joint petition for divorce how can one party unilaterally withdraw from it. Also, one of the purposes of giving a time period of six months is to allow parties to re-think their decision and if one of the parties decides to withdraw from it, why should it not be allowed to do so.

In Jayashree Ramesh Londhe v Ramesh Bhikaji ^[7], the court held that once a joint petition by mutual consent was filed, no party could withdraw from it without the consent of both the parties. Similarly, in the case Nachhattar Singh v Harcharan Kaur ^[8], it was held that- “If both the parties had voluntarily consented to file the petition for dissolving the marriage by mutual consent and all other conditions mentioned in sub-section (1) of section 13-B of the Act are fulfilled, it will not be open to a party to withdraw the consent.”

On the other hand, in Sureshta Devi v Om Prakash ^[9], the Court has held that petition of divorce can be withdrawn unilaterally. It was held in this case that if one of the parties revoke its consent the Court cannot pass a decree of divorce by mutual consent. The Court also held that if the decree is solely based on the primary petition it contradicts the whole idea of mutuality and consent for divorce. Mutual consent to the divorce is a sine qua non for passing a decree for divorce under Section 13-B. Mutual consent should continue until the divorce decree is passed.

However, in a recent judgement of Supreme Court in the case of Anil Kumar Jain v Maya Jain ^[10], it was held that- “Under the existing laws, the consent given by the parties during the time they are filing the joint petition for divorce by mutual consent has to subsist until the second stage when the petition comes up for orders and a decree for divorce is finally passed and it is only the Supreme Court, which, in the exercise of its extraordinary powers under Article 142 of the Constitution, can pass a decree to do complete justice to the parties.” The Supreme Court however certainly asserted that they can only use the power under Article 142 only in special circumstances, in normal circumstances the provisions of the statute have to be implemented. 

The law as explained in the Sushreta Devi’s case still holds good that is the parties can revoke the consent unilaterally. But Supreme Court uses its power which is provided under Article 142 of the Constitution and can grant a divorce even if the wife or husband revokes its consent during the proceedings in the lower court and before the passing of the decree.

Conclusion

Divorce is a serious issue and must be used only as a last resort, however, these days people do not think twice before getting divorced. It splits families and the child of the separating couple has to go through serious trauma growing up with separated parents but having higher divorce rates made higher standards of women empowerment. People get to exercise their right to choose to end the marriage if they are not happy. Divorce by mutual consent is the best way of divorce as the parties do not have to bad mouth each other in the courtroom and both parties can mutually settle on all issues and end their marriage.

Citations 

^[1] (1992) AIR SC 1904

^[2] 2009

^[3] AIR 1999 AP 91

^[4] AIR 2005 MP 106

^[5] AIR 2000 AP 364

^[6] AIR 1997 SC

^[7] AIR 1984 Bom 302

^[8] AIR 1986 P&H

^[9] AIR 1992 SC

^[10] AIR 2009 SC

References 

1. https://www.thehindu.com/

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