July 2021 – Page 32

The court today has declined to stay the release of the film Nyaay: the justice which is based on the life of Sushant Singh Rajput. So the K.K Singh had made an Appeal that the movie has been released on a website and he sought to stay on its release on any other OTT Platform and in cinema halls.

The division bench of Justice Anup Jairam Bhambhani and Jasmeet Singh, while issuing a notice for July 14 to the respondents in the Appeal filed by Singh, said that there was nothing in this movie that would affect the investigation in the SSR case.

The court further said that you have not written a script or a story that has been used by the filmmaker. There is nothing that they have or they could have had. Expect what is available in the public domain. Therefore, the movie is something which the public is interested in and they have made just a movie. The court stated. The bench further added that there does not seem to be any interference in the investigation because of the production of movies on Rajput’s life. It further said that is it your case that life story of that celebrity is itself copyrightable which is nothing in material form asked the court.

Senior Advocate Harish Salve, representing K.K Singh, said that the Rajput was an extremely successful actor and the filmmakers were using his personal life story. There is a right of a father to protect the reputation of his son. So K.K Singh’s lawyer said this in front of the court. The Bench further said that we will have it on 14th July, while hearing the application of Rajput’s father Krishna Kishore Singh, in the appeal against the single judge order refusing to stay the release of the film. And also said that I’m not disposed at this stage.

-Report by RAVINUTHALA VAMSI KRISHNA

The Karnataka High Court ruling has drawn attention to companies that may pass on profits or losses from “non-business income” or from non-essential activities. The latest ruling stated that if a company classifies a certain amount as “other business income” when paying taxes or preparing financial statements, that amount can be used to carry over profits or losses.

According to accounting regulations, companies can in most cases record profits and losses in their annual financial statements for up to eight years. This accounting treatment has an impact on the company’s profitability, as well as its tax expense.

In the Karnataka High Court case, a steel company compared its transferred business loss to capital gains from the transfer of a business asset – land. The tax office had contradicted this treatment. The court ruled that any loss of business carried forward can be set off against profits or gains, if any, from any business conducted in a company. Tax laws use the phrase “income or profits, if any, from a business” and do not refer to the director of the income and earnings of the business or profession, the court found.

“According to the ruling, the appraiser (taxpayer) has the right to offset the expected loss with income that has the characteristics of business income, although this may be assessed under the heading other than business income,” said Yashash Ashar, partner at Bhuta Tax Consultancy Bhuta Shah and Co. According to the court ruling, many companies can now withdraw profits or losses from non-essential operations, including property sales or capital market gains, tax experts say. “This decision can be of great help to companies in obtaining compensation for income that could be treated as business income but is not taxed as primary and business income,” said Ashar.

-Report by MANASWA SHARMA

Introduction

Any civil wrong for which the law provides a remedy is referred to as a tort. Torts compensate people and property for injuries caused by someone else’s negligence. Essentially implying, a tort is a civil wrong independent of a contract where the only remedy available is in the form of compensation. A tort is the French version of the English word “wrong” as well as the Roman law term “delict.” The term tort comes from the Latin word “tortum,” which denotes “twisted, crooked, or incorrect.” plays a role in disciplining organizations and individuals who cause harm to others through reckless and negligent behavior. The fundamental principle of tort law is Ubi Jus Ibi Remedium. The objective of tort is to recompense the victim whose legal right has been infringed or violated by the person who caused the damages in the first place, as well as to deter them from repeating the same breach in the future. In India, tort law is a relatively young common law development reinforced by codifying statutes, including damages statutes. Tort first appeared in India, which is still a developing country, with the establishment of British India. Following independence, India embraced British laws, including the distorted idea of tort law. While India generally takes the same strategy as the United Kingdom approach, there are some variances that could show judicial intervention, causing controversy. Because of conflicts about who should carry the economic burden of an accident and what damage should be compensable, there has always been concern over whether tort law should be restricted. Although statutes such as the Motor Vehicles Act of 1988, the Consumer Protection Act of 1986, and the Environment Protection Act of 1986 were enacted to establish tort liability in India, there is no official codification or formal legislation of tort law in our country. It has also been held that section 9 of the Code of Civil Procedure, 1908, which allows the civil court to try all civil matters, implicitly confers jurisdiction to apply tort law as a matter of justice, equity, and good conscience. As a result, the court can use its inherent powers under section 9 to expand this area of liability.

Law of Torts in Present Scenerio

A Brief Outline

COVID-19’s spread has clearly been one of the most challenging moments for the judiciary all over the world for administering justice. The judiciary in India, the world’s largest democracy, has always been challenged by the huge amount of litigation cases that come before courts every day. An Indian court can assume jurisdiction by being the site where the cause of action, the tort; occurred, according to India’s conflict of law provisions, which are yet uncodified. Analyzing the situation in other nations, India considered its own capacity to avert a pandemic, taking into account the limited resources available in a country with an inadequate health infrastructure.

With the current persistent provisions, the plaintiff(s) filing a lawsuit in an Indian court would have the onus of responsibility to prove that the Chinese government’s concealment of the virus’s nature and failure to take appropriate measures to contain it, creating an actionable act under both Chinese and Indian law, and thus the suit will be governed concurrently by both the Chinese and Indian tort law.

According to the House of Lords’ interpretation of common law principles, negligence is defined as a failure to exert the degree of care that should have been undertaken by the doer. As stated in Rajkot Municipal Corpn. vs. Manjulben Jayantilal Nakum, (1992 ACJ 792), Indian tort law is based on common law principles as;

that the defendant owed the plaintiff a “legal” obligation of duty and care
that the defendant breached this duty
the plaintiff suffered harm as a result of the defendant’s breach

The Liability of Spread of Virus

China’s ‘responsibility of care’ to India and its residents can be traced back to the relevant sections of the International Covenant on Economic, Social, and Cultural Rights and the International Health Regulations, 2005. This legal obligation to non-nationals can be extended to include a duty to other countries and their citizens. China has breached its duty of care to the countries by failing to notify the World Health Organization in accordance with the International Health Regulations of 2005 in a timely manner despite the given signs of a public health issue and the whistleblower being subjected to traumatic measures for threatening the name of the country in an international context.

“Using a constructive knowledge criterion holds liable individuals who actively avoid knowledge of infection even when suffering apparent indications of a disease,” it was determined in the case of Endres v. Endres. California’s courts had imposed culpability in another case, Doe v. Roe, even when the person spreading the disease believed they were not infected.

Although it has not been resolved whether a cause of action for negligently disseminating COVID-19 can exist, it appears that the individuals should be held accountable because they knew or should have known that they were carriers of the virus; those people had an obligation to avoid COVID-19 transmission and thus contain the spread ensuring the right to live of other individuals.

The Liability to ensure the public health

Suits have already been brought against cruise ship operators, nursing homes, and entertainment venues, alleging that someone wrongfully exposed me/my loved ones to COVID-19, and we/they became infected/died as a result. It may be simple to demonstrate causation in some cases (for example, some who are infected by the virus were in very closed locations such as nursing homes given the knowledge about incubation periods, it is reasonable to infer that they caught the coronavirus in that location). While causation may be simple to establish, for example, prisoners with coronavirus definitely caught the disease inside prisons, there may be no negligence with the institutions’ poor health and medical infrastructure.

Doctors who prescribe drugs to COVID-19 patients that the Regulatory Authority has approved for other applications should be insulated from liability by legislation if the drugs don’t work, as long as scientific evidence supports their usage for this purpose. Liability considerations have delayed the development of new vaccinations in the past, as seen by outbreaks of smallpox and other influenzas. In 1976, when President Gerald Ford launched an ambitious effort to immunize millions of people against a swine flu outbreak, insurers and manufacturers refused. Liability shields have allowed businesses to manufacture effective therapies swiftly while avoiding legal repercussions. However, taking complete responsibility for highly new items that are developed and licensed at breakneck speed is a dangerous endeavor for countries.

Although governments’ tortious culpability should be assimilated to that of citizens, ‘there are limits to the extent to which that is achievable because governments’ character and functions differ from those of individuals. Assessing the reasonableness or unreasonableness of government policy decisions is an unsuitable matter for judicial consideration in determining government tort liability. Considerations in the context of the COVID-19 pandemic and government culpability in negligence might include the potential of harm being caused to the public and the economic loss sustained as a result of putting in place contagion-control procedures.

Medical Negligence

The Hon’ble Supreme Court in Jacob Mathew vs. State of Punjab Appeal (Crl.) 144-145 of 2004 opined that;

Negligence is defined as a breach of duty caused by the failure to do something that a prudent and reasonable person would do, or by doing something that a prudent and reasonable person would not do, based on the principles that normally govern the conduct of human affairs.

Mismanagement, denial of proper care and medical help to patients, non-observance of safety rules have all been reported, putting the lives of both healthcare personnel and patients in jeopardy. These difficulties raise the issue of medical negligence reflecting the tortious liability. In light of the harsh conditions in which doctors work, there are suggestions that medical practitioners be temporarily exempt from liability for medical malpractice. Another intriguing viewpoint is to look into alternative dispute resolution processes in which the patient can be reimbursed financially to the degree possible.

Conclusion

Rather than basing our judicial thought on English laws, we need to develop new principles and norms that effectively address the difficulties of India thus indicating a need for our own jurisprudence. The spread of COVID-19 has undoubtedly been one of the most difficult times for humanity to accept, and because the number of cases is alarmingly high with various mutant variants taking a spread, it is the responsibility of each and every individual to act responsibly with the negligent people, as well as the ruling machinery, who must be held accountable for their actions. With one recent instance of the case of Johnsons & Johnsons Talc Powder Cancer Case in tort law where 22 women in the US state of Mississippi claimed to have developed ovarian cancer after using Johnson’s talcum powder, and the firm granted them $3.6 billion amplifies the importance of tort jurisprudential evolution in India where the aggrieved would have a justified resort to resolve the grievances.

This article is authored by Aathira Pillai a 5th year BLS LLB student of Dr. D. Y. Patil College of Law.

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Introduction

A formal written order issued by the judicial authority is known as writ. Mandamus means “We Command” Mandamus is among the prerogative writs in English law. It is an order from a superior court to an inferior government official to properly fulfill their official duties. The court can order either to do something or not to do something. High court or apex court has original jurisdiction to the issue writs. And it can also be issued for keeping the public authorities within their jurisdiction while performing their public functions. A mandamus writ is unique because it can be an issue before a case has concluded.

How Mandamus Writ regulates before the Constitution of India

By the letters of patent, The Mandamus came to India creating the apex court in Calcutta in 1773. The writ of the Mandamus can issue under the Specific Relief Act, 1877. But under the Specific Relief Act, 1963. this provision is omitted from the Act because such provision becomes redundant. The Constitution of India had a similar Provision in it. Constitution has given powers to the apex court and all high courts to issue the writ to enforce fundamental rights.

Who Can File Writ Petition of Mandamus

The person who files the Mandamus writ petition must fill it in good faith and have the legal right to do so. He must have demanded the performance of the duty from the respected public authority, And if that public authority refused to do so. Then the only petitioner can file a Mandamus writ petition under articles 32 and 226 of The Constitution.

Against Whom It Can Issue

It can issue against a public corporation, public officials, inferior courts, tribunals, or the government.

Against Whom Mandamus Writ Petition Cannot Be Issued

Under Article 361, a mandamus ought not to issue against the president or governor of a state. This writ cannot grant against the private body, except in the case where the state in connivance with the particular party defies a provision of the Constitution or a statute or acting chief justices.

Against What Circumstances It Cannot Issue

When duty commanded is indiscretion.
When the court directs to perform particular authority does not have sovereign powers to do so.
When the court directs to perform the duty of purely private nature, to whose performance the applicant of the writ has a legal right.
When the remedy is in any act or code, the matter is of enforcing fundamental rights. The argument of alternative does not stand here since it is the duty of Apex and the high court to enforce fundamental rights.
When the court directs to perform a duty and duty is violating the law.

Case Law Related To Mandamus Writ

Vemula Prabhakar v. Land Acquisition Officer, 2001– In this case, It was held by the three-judge bench of Andhra Pradesh that if a remedy is under the Code of Civil Procedure, then it cannot say that the remedy provided under the Act is not adequate. In these types of cases, there is a restriction on issuing Mandamus writ.
K. Roy v. Union of India, 1981 – In this case, the petitioner filed petitions in the apex court of India challenges the validity of the National Security Act. In petitions, the petitioner asks the court to issue a mandamus to the government to invoke section 3 of the Act. Court declined the petition by stating that if parliament gives up space to the executive to act, then the court has no power to issue a directive compelling the executive to perform otherwise.
Suganmal v. State of Madhya Pradesh – In this case, the petitioner filed a writ of mandamus to direct the respondent to refund tax. The apex court declined the petition by stating that proper remedy can claim only by filing a suit for the refund.
All India Tea Trading Co. v. Sub Divisional Officer – In this case, the land Acquisition Officer refused to pay the interest on the compensation award. The petitioner filed a mandamus writ petition. The apex court issued a writ against the land acquisition officer directing him to pay the interest.
Mohammed Sadique v. Union territory of Lakshadweep – In this case, the petitioner filed a writ of Mandamus before Kerala High Court directing the administrator of Lakshadweep to issue fresh notice to give 30 days to the public to submit their suggestions, comments on controversial draft Regulations. The court declined the petition and directed the petitioner to forward his suggestion within fourteen days onward to the central government. It is upon the central government to accept the submission or not.
Fida Ahmad v. Srinagar Development Authority– In this case, a mandamus writ has been issued against the respondent. He has to pay the amount deposited by the petitioner inclusive of 9% interest on it within the month.
Raman & Raman v. the State of Madras – In this case, the court held that departmental instructions and manuals do not give rise to any legal right to the court has no authority to issue mandamus on it.
Birendra Kumar v. Union of India – In this case, High Court directed the telephone authorities to restore the connection within a week because the respondent wrongfully disconnected the telephone in spite petitioner pays his dues regularly.
Internet Technology Commissioner v. the State of Madras – The court held that writ of mandamus must not be issued when the duty is private and arising out of a contract.
Shiv Shankar Dal Mills v. the State of Haryana – In this case, it was held that through mandamus court compel the authority to refund the fee amount it has collected under law.
Shivendra v. Nalanda College – In this case, the court held that if the governing body of a college appointed a new principal, then a Mandamus writ can not issue on him because he has no legal right to be appointed
Syndicate v. Union of India – In this case, the court held that issue mandamus writ against an administrative authority. When the affected individual demands justice before his right to approach the court denied by that authority.
S.P. Manocha v. the State of M.P. – In this case, the court refused to issue a Mandamus because the petitioner could not establish that he has the right to take admission in college.

Conclusion

A writ of mandamus is a unique remedy and used in exceptional circumstances only. The main motive of mandamus writ is to provide a remedy for injustices. It is the tool in the hands of people against Administrative and Executive bodies, who are misusing their power.

This article is written by Megha Patel, a 2^nd-year law student at The Mody University of Science and Technology, Laxmangarh, Rajasthan.

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Introduction

The word ‘Secular’ means that a person is separate from religion and has no religious basis. Secularism means that religion is kept unconnected with the social, political, cultural, and economic spheres of life. Religion is open to everyone and gives an individual his personal choice to accept and follow any religion without any discrimination.

Philosophy of Indian Secularism

The term ‘secularism’ is like the Vedic concept of ‘Dharma nirapekshata’ which means the State’s indifference to religion. It has two principles:

1) Religion should not interfere in the administration and policy-making of the state.

2) People of all religions are equal before the law, constitution, and government policy.

This model of secularism is adopted by some western societies where the govt. is completely unconnected with religion.

Indian philosophy of secularism is connected to “Sarva Dharma Sambhava” (it means to treat all the religions with the same emotions, same zeal and zest irrespective of the religion a person follows and more than that it gives the idea of mankind and humanity) which suggests the same context for all religions.

This concept was embraced and promoted by great personalities like Swami Vivekananda and Mohandas Karamchand Gandhi and they called it ‘Positive secularism’ that reflects the dominant ethos of Indian culture.

India has no official state religion. However, different personal laws are there on matters like marriage, divorce, inheritance, alimony, etc. which vary with a person’s religion.

Indian secularism isn’t an end in itself but a way to deal with religious plurality and to achieve the peaceful coexistence of various religions.

Secularism and the Indian Constitution

The core ethos of India has been a synthesis of fundamental unity, tolerance, and even faith. It’s an undebatable fact that thousands of Indians belonging to diverse religions lived together through the ages, marred through sometimes by religious revolts, economic exploitation, and social suppression being often at the rock bottom of it all.

India is the birthplace of 4 major world religions: Hinduism, Jainism, Buddhism, and Sikhism. Yet, India is one among the foremost diverse nation in terms of faith and religion. India is a country that is built on the foundations of a civilization that’s fundamentally non-religious.

The purpose of the Preamble of the Indian Constitution is to make India a Sovereign, Socialist, Democratic Republic. The 42^nd Amendment Act of the constitution added the terms such as socialist and secular. The entire constitution is summarized within the preamble. This mirrors the spirit of the Constitution. The arrangement of words in the preamble is also very important. Indian society is a multi-religious society, it is having different caste, religions alongside several religious diversifications. So, all of these are divisive features somehow and if not handled carefully then it can cause a threat to the unity and integrity of the state.

All the basic principles of secularism are included in the various provisions of the Constitution. The word ‘Secular’ was added to the preamble by the 42^nd Constitution Amendment Act of 1976. The Constitution emphasizes the fact that constitutionally, India is a secular country with no state religion and that the State shall recognize and accept all religions, shall not favor or protect any particular religion.

Article 14 guarantees equality before the law and equal protection of the laws to everyone, Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth.
Article 16 (1) guarantees equality of opportunity to all citizens in matters of public employment and appointment and that there would be no discrimination on the basis of religion, race, caste, sex, descent, place of birth and residence.
Article 25 gives freedom of conscience and of practicing any profession or religion.
Article 26 gives every religious group or individual the right to establish and maintain institutions for religious and charitable purposes and to manage its own affairs in matters of religion.
Article 27 says that no citizen shall be compelled by the state to pay any kind of taxes for the promotion or maintenance of any particular religion or religious institution.
Article 28 allows educational institutions maintained by different religious groups to impart religious instruction.
Article 29 talks about the protection of minorities’ interests.
Article 30 provides rights to minorities to administer and establish educational institutions.
Article 51A talks about Fundamental Duties that obliges all the citizens of India to abide by the constitution and respect its institutions, ideals, national anthem and the national flag and to promote harmony and the spirit of common brotherhood and therefore to value and preserve the rich heritage of our composite culture.

Threats to Secularism

Even though the Indian Constitution declares India to be absolutely neutral to all religions, our society is submerged in religion.

The union of religion and politics has threatened Indian secularism, which seeks to mobilize voters on the basis of fundamental identities such as religion, caste, and ethnicity.

Communal politics operates through the communalization of social space by spreading myths and stereotypes against minorities, attacking rational values, and practicing divisive ideological propaganda and politics.

The politicization of any one religious group leads to the competitive politicization of other groups, thereby leading to inter-religious conflict.

One of the manifestations of communalism is communal riots. In recent times also, communalism has proved to be a major threat to the secular fabric of Indian politics.

The rise of Hindu nationalism in recent years has resulted in mob lynchings simply because they suspect people of killing cows and eating beef.

In addition, forced closure of slaughterhouses, campaigns against ‘love jihad’, conversions or Ghar-wapsi (forcing Muslims to convert to Hinduism), etc. reinforces the communal tendency in the society.

Islamic fundamentalism or revivalism emphasizes the establishment of an Islamic State based on Sharia law which directly contradicts the notions of a secular and democratic state.

In recent years there have been sporadic incidents of Muslim youth being inspired and radicalized by groups like ISIS which is very unfortunate for both India and the world.

Conclusion

It needs to be understood that just by writing the term ‘secularism’ in the books, any state cannot be truly secular. Thus, the whole ideology should be recognized with grace and should be applied equally to all people. And there should be a check on the governmental bodies for propagating any unfair practice of religious groups to acquire power.

Bibliography

Dr. J. N. Pandey, Constitutional Law of India.
Secularism, https://byjus.com/free-ias-prep/secularism/.
Secularism and Constitution of India: Unity in Diversity, http://www.legalservicesindia.com/article/1964/Secularism-and-Constitution-of-India.html.
Secularism, https://www.drishtiias.com/to-the-points/paper1/secularism-1.
What is secularism, https://www.secularism.org.uk/what-is-secularism.html.

This article is written by Priyanka Choudhary, currently pursuing BALLB from Mody University of Science and Technology, Lakshmangarh, Rajasthan.

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Marriage- an age-old institution that is considered as a sacramental union is infested with a tradition that took the color of greed over the years and has agonized many- Dowry.

What Is Dowry?

“Dowry” in simple terms means giving or agreeing to give any property (could be anything from gold, home appliances like fridge, etc., cash, to something as basic as utensils.) by one party to the marriage to another. This exchange could be made before, at, or even after the marriage. Sec-2 of The Dowry Prohibition Act, 1961, excludes dower or mahr from the ambit of dowry in the case of persons to whom Muslim Personal Law (Shariat) applies.

While the definition of dowry as given by The Dowry Prohibition Act, 1961, suggests dowry given by “one party to a marriage” (not specifying which), it is always the bride’s family who gives the dowry. This is a dominant example of the prevalent system of patriarchy. A girl child is considered a burden from her birth by her parents because they would have to give dowry in the future to make her somebody’s wife someday. Hence it is not far-fetched to say that dowry has led to offenses like female feticide, female child trafficking, etc.

The amount of dowry depends on multiple factors (likely to be offensive) like education of the groom, education of the bride, caste-subcaste, bride’s skills, her beauty, the family status of both the parties in the society, family’s negotiation skills, and the list is inexhaustive.

Current Status

It may come as a surprise to many, but in earlier times, dowry was given to the bride by her family as means to maintain her independence after marriage. Over the years, it developed as a means to satisfy the greed of her in-laws. Acknowledging the mounting cases of dowry harassment and death, the Indian Parliament enacted The Dowry Prohibition Act, 1961, declaring dowry illegal in India followed by Section 498A, 304B, Indian Penal Code-1860.

Statutory Provisions

THE DOWRY PROHIBITION ACT, 1961

This act aims at prohibiting giving and taking of dowry.

Section 3, states the penalty of giving or taking of dowry or abetting of giving and taking dowry.

Penalty- imprisonment for a term not less than 5 years and with a fine not less than 15,000/-, or the amount of the value of such dowry, whichever is more.

Proviso- For adequate and special reasons, to be recorded in the judgment, imprisonment for less than 5 years can be imposed.

{Before the 1984 amendment, the penalty under this section was- imprisonment which may extend to 6 months, OR with fine which may extend to 5000/- OR with both.}

EXCEPTIONS: – Presents, (given without any demand being made for them) at the time of marriage, to the bride or bridegroom. Conditioned on the fact that they are to be entered in a list maintained as per the rules made under this Act.

Provided such presents, when given from the bride’s side are customary and their value is not excessive having regard to the financial status of the person giving.

Section 4, states the penalty for demanding dowry. Demanding dowry-directly or indirectly, from parents/relatives/guardians of bride or bridegroom.

Penalty- Imprisonment for a term which shall not be less than six months, but which may extend to 2 years and with a fine which may extend to 10000/-

Proviso- For adequate and special reasons, to be recorded in the judgment, imprisonment for less than 6 months can be imposed.

Section 8 makes every offence under this Act, non-cognizable, non-bailable, and non-compoundable.

{Before the 1984 amendment, the offenses under this Act were non-cognizable, bailable, and non-compoundable.}

CRUELTY BY HUSBAND OR RELATIVE OF HUSBAND, SECTION 498A OF INDIAN PENAL CODE, 1860

In 1983, Chapter XXA was inserted that had only one section i.e., Section 498A.

Section 498A deals with all cases of cruelty towards and harassment of a woman by her husband or his relatives.

Essential ingredients of this section are: –

The victim was a married lady (may also be a widow)
She has been subjected to cruelty by her husband or the relatives of her husband.
That such cruelty consisted of either

– harassment of a woman to coerce her meeting demand of dowry, or

– willful conduct by the husband or the relative of her husband of such a nature is likely to lead the lady to commit suicide or cause grave injury to her life, limb, or health.

Such injury inflicted is either physical or mental.

DOWRY DEATH, SECTION 304B, INDIAN PENAL CODE, 1860

“Section 304B has been inserted in the IPC by Dowry Prohibition (Amendment) Act, 1986 to combat the increasing menace of dowry deaths.”

Essential ingredients of this section are: –

The death of a woman was caused by burns or bodily injury or otherwise than under normal circumstances
Such deaths must occur within a period of 7 years of marriage.
She must have been subjected to cruelty or harassment by her husband or any of his relatives.
Such cruelty should be for or in connection with demand of dowry; and
Such cruelty or harassment is shown to have been meted out to the woman soon before her death.

Punishment: – Imprisonment for a term which shall not be less than 7 years but which may extend to imprisonment for life.

Section 498A and Section 304B, Indian Penal Code, 1860 are not mutually exclusive. They deal with two distinct offenses. Even if cruelty defined in Section 498A will be the same for Section 304B, yet under 498A cruelty itself is punishable. But under 304B, Dowry Death is punishable that should have occurred within 7 years of marriage and no such period is mentioned in 498A.

Venugopal v. State of Karnataka (1999)- Constant demand of dowry leading to ill-treatment, harassment, and torture of the wife at the hands of the husband soon before her death, led her to take the extreme step of ending her life. The Supreme Court held the husband liable for dowry death u/s 304B, IPC for creating a situation whereby the wife committed suicide within 2 years of the marriage.

The state of Rajasthan v. Jaggu Ram (2009)- The death of the deceased wife took place after one and a half years of her marriage due to head injuries. Cruel treatment and harassment meted out to her immediately after her marriage till her death for bringing insufficient dowry. The Supreme Court held Section 304B to be applicable in the case.

SECTION 113B OF INDIAN EVIDENCE ACT,1872

To ascertain, whether a person has committed the dowry death of a woman, If soon before her death, she has been subjected to cruelty or harassment related to any dowry demand by that person, the Court will presume it to be a case of dowry death.

Also “dowry death” here has the same meaning as that given in Section 304B of the Indian Penal Code, 1860.

Kailash v. State of Madhya Pradesh (2007) SC- In this case, it was held that the words “soon before” in Section 113B cannot be limited by fixing time limit, it is to be determined by the Courts, depending upon the facts and circumstances of the case.

The combined effect of Section 304B of the Indian Penal Code, 1860 and Section 113B of Indian Evidence Act, 1872- If the prosecution proves the ingredients of Section 304B, then the presumption under Section 113B will operate. This is a rebuttable presumption and the onus to rebut shifts on the accused.

Misuse Of Dowry Law

Like there are two sides of a coin, law related to dowry has two facets too. On one hand, we advocate that even after so many years of dowry law coming to life, our system has failed to eradicate dowry. On the other hand, there are cases of capturing the soul of these laws in the wrong way.

Section 498A, Indian Penal Code, 1860 criminalizes cruelty towards a wife and makes it cognizable, non-bailable, and non-compoundable offenses. This section authorizes police to make an immediate arrest of the accused (husband and his relatives) based solely on the victim’s testimony and no other evidence. The flawed crafting of this section provides an opportunity for wrongful incarceration by vindictive women and at the same time makes this provision less effective for the ones actually in need.

Structuring of this section is such that almost in all cases all the accused (husband as well as his relatives) receive the punishment of life imprisonment, as a result of not taking account of factors like physical or relationship proximity to comprehend whether the accused could actually be a part of such a commission. Due to this lack of clarity, many are undergoing punishment even without having any role in the act in question.

To overcome this shortcoming, in 2014, the Supreme Court in Arnesh Kumar v. the State of Bihar, ordered the police to follow a nine-point checklist before arresting anyone on a dowry complaint to avoid misuse of this section. This too faced backlash, one of the reasons being that it jeopardized the expediency in dowry cases.

Conclusion

Dowry is one of those social evils that has been fought against for a long time now, still, it persists. A problem was recognized and laws against it were drafted. But does it really matter if we have them written on paper only but not completely in practice? The biggest hurdle is the cases being unreported. From the very beginning, we as a society have motivated this tradition to prevail by giving, taking dowry, and watching others do the same. We have breathed life into this tradition time and time again. And today, when some of us advocate against it, most of us have accepted this as a totally normal act. Need of the hour is awareness & courage to put a stop to dahej pratha, acknowledge the anomalies in the laws drafted and look for their proper execution. One needs to realize the gravity of offenses committed in the name of this tradition and that it even leads to the death of the victim. Does it not make you wonder if it is dowry death or a well-thought dowry murder?

The article has been written by Munmun Kaur, a law student from Law Centre-I, Faculty of Law, Delhi University.

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EQUIVALENT CITATION

(1860) 8 HLC 268

BENCH

LORD CRANWORTH & LORD WENSLEYDALE

RELEVANT ACT/ SECTION

The Indian Partnership Act, 1932

BRIEF FACTS AND PROCEDURAL HISTORY

Under the name of B Smith & Son, Benjamin Smith and Josiah Timmis Smith carried on a business of iron and maize traders. They owed large amounts of money to the creditors of the company. A meeting was held between S & S and the creditors that included Cox and Wheatcroft. They executed a deed of arrangement in favor of the creditors. The party to the first part of the deed was S & S; to the second part were five creditors including Cox and Wheatcroft. The party to the third part of the deed were the general body creditors of S & S. The party to the second part was to carry the business under the name of The Stanton Iron Company as a trustee. This deed also contained a provision that stated that they would not sue Smiths for their debts. Cox never acted as a trustee; Wheatcroft had resigned six weeks later after the deed. No other trustees were appointed in place of Cox and Wheatcroft.

Hickman – a businessman, drew three bills of exchange for the goods supplied to him after Wheatcroft had resigned. These bills were received on behalf of the Stanton Iron Company by one of the three creditors. Hickman sued Cox and Wheatcroft and stated that they both were liable because they were the original parties to the second part of the deed.
The case was tried before Lord Jervis, who ruled it in favor of the defendants. The action went to the Exchequer Chamber, where three judges wanted to reverse the decision, whereas the other three judges asked to uphold the judgment.

ISSUES BEFORE THE COURT

Is there any partnership between the merchants who were in the essence of the creditors of the company?

RATIO OF THE CASE

The argument that mere sharing of the profits constitutes the partnership is a misconception. The right to share the profits does not cause liability for the debts of the business.
The fact that the business was carried on by the person acting on his behalf is the actual ground for the liability.

DECISION OF THE COURT

The execution of the deed did not make the creditors partners in the Stanton Iron Company. The deed is only an arrangement to pay debts out of the existing and future profits. The creditors were given special powers as per the deed. To make rules to carry out the trade and to decide whether to continue the business. The creditors let the trustees carry out the trade instead of them. This act of the creditors did not make them partners. The trustees would not have accepted the bills of exchange if the creditors had chosen to carry out the trade. The agreement did not constitute the relations of partners between the creditors and trustees. Therefore, the creditors are not liable because they are not the principals of the trustees. However, the trustees are liable because they are the agent of the contract.
Hence, the defendants are not held liable and overturned the decision of the Court of Common Pleas.

The case analysis has been done by Gracy Singh, a student of 2^nd Year BA.LLB (Hons.) from Mody University of Science and Technology, Lakshmangarh, Rajasthan.

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Kerala Law Academy Law College in association with the Centre for Advanced Legal Studies and Research (CALSAR) is organizing a One Day International Conference on Recent Trends in Human Rights and Changing Facets of Religious Freedom, via virtual mode on 7th August 2021 from Kerala Law Academy Campus, Peroorkada, Thiruvananthapuram, Kerala.

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The origin and development of religious law
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History and development of secularism.
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