About GullySales

GullySales offers software for designing sales and marketing processes – plus the consulting, training and support – to scale businesses growth.

Location

Remote (Work from Home)

Compensation

Stipend – 5000/month
Internship Duration – 3 months

Responsibilties

Content Writer responsibilities include:
● Researching industry-related topics (combining online sources, interviews and studies)
● Writing clear marketing copy to promote our products/services
● Preparing well-structured drafts using Content Management Systems

Job brief

We are looking for a Legal Content Writer to join our editorial team and enrich our websites with new blog posts, guides and marketing copy. Content Writer responsibilities include conducting thorough research on industry-related topics, generating ideas for new content types and proofreading articles before publication. If you’re familiar with producing online content and have an eye for detail, we’d like to meet you. Feel free to share samples of your work or portfolio of your published articles, along with your application. Ultimately, you’ll deliver quality writing pieces that appeal to our audiences, attract customers and boost brand awareness.

Responsibilities

● Research industry-related topics (combining online sources, interviews and studies)
● Write clear marketing copy to promote our products/services
● Prepare well-structured drafts using Content Management Systems
● Proofread and edit blog posts before publication
● Submit work to editors for input and approval
● Coordinate with marketing and design teams to illustrate articles
● Conduct simple keyword research and use SEO guidelines to increase web traffic
● Promote content on social media
● Identify customers’ needs and gaps in our content and recommend new topics
● Ensure all-around consistency (style, fonts, images and tone)
● Update website content as needed

Requirements

● Portfolio of published articles
● Experience doing research using multiple sources
● Familiarity with web publications
● Excellent writing and editing skills in English
● Hands-on experience with Content Management Systems (e.g. WordPress)
● Ability to meet deadlines

How to Apply

Interested candidates please share the resume to careers@gullysales.com

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INTRODUCTION

“After I die if I am buried I will rot. If I am burnt I will become ash but if my body is donated I will live to give life and happiness to man”

Organ donation is donating a donor’s organ for the purpose of transplanting them into another person who is in need of that organ. According to the survey In India, approximately five lakh people die due to lack of organs, every year. The organ donor plays a big role in saving the life of others. In India every year, 13^th  of August is celebrated as Organ Donation day  to motivate human beings to pledge to donate organs after death and spread awareness about the importance of organ donation.

Types of Donation

Two types of donations – namely Organ donation and Tissue Donation

Organ Donation

In Organ Donation, donated organs from a living or deceased person, called a donor, transplanted  into a recipient, a patient suffering from organ failure and will not survive unless he receives an organ replacement. There are two types of organ donations – Living organ donation and Deceased organ donation. 

1. Living organ donation

Organ donation from near relatives or distant relatives/ friends of a recipient are living donors. 

2. Deceased organ donation

 organ donation from a person has been declared brain stem dead by an authorized doctor at a hospital.

Tissue Donation

Tissue Donation is a practice in which donated tissues from a living or a deceased person referred to as a donor transplanted into the recipient who needs it.

Organs that can be donated 

Eight organs can be donated by the person while still alive and a person after death.

• Kidneys 

The demand for kidneys is the highest of all organs. The deceased donor can donate both kidneys.  A living donor can donate one kidney and function well for the rest of their lives.

• Liver

Bile production and excretion is primary function of the liver. It can regenerate by itself. A donated liver from a deceased donor can additionally be split into two pieces and transplanted into two different people. However, a living donor can remove a portion of his liver to donate to the recipient, and the remaining portions will regenerate.

• Heart

It pumps blood through the human body. After the heart recovered from its donor, survived 4-6 hours only.

• Lungs

Deceased donors can donate single or double-lung. Living donors can donate a single lobe from the lungs, although it will not regenerate.

• Pancreas

A living donor can donate a portion of the pancreas. Still, his pancreas can function properly. A deceased donor’s pancreas can be transplanted into recipients.

• Intestine 

Quite rarely, a living donor can donate a portion of the intestine. Although, a deceased donor can donate their intestine.

Tissue that can be donated

You can also donate tissues like corneas, skin, bones, ligaments, heart valves, etc. In less than 6 hours of the donor’s death, tissues must be donated.

Legal Aspect of Organ Transplantation in India

The main objective of the Transplantation of Human Organs Act, 1964, is to regulate the removal, storage, and transplantation of human organs and prevent them from commercial dealings. Maharashtra, Himachal Pradesh, and Goa requested the act, and was initiated and was adopted by all the states except Andhra Pradesh and J&K.

Main provisions of the THO Act (including the rules of 2014 and amendments)

• Under form 10, as a form of death, brain death is recognized. The criteria and process for brain death certification is also defined
• The Act allows the transplantation of human organs and tissues from living and deceased donors to the recipient.
• It setups regulatory and advisory bodies to monitor transplanting activities.

1. Appropriate Authority 

They have the authority to grant and inspect registration to hospitals for transplantations that enforce required standards for hospitals and conducts regular inspections to check the quality of transplantations. They also have the authority to conduct investigations regarding breach of provisions under the Act.

2. Advisory Committee

It consists of experts who shall advise the appropriate authority.

3. Authorization Committee

It prevents commercial dealings in transplantations and ensures that the living donor is not exploited for monetary considerations. All the proceedings are to be video recorded and decisions must be notified within 24 hours. Appeals against the committee’s decision may to the state or central government.

4. Medical Board

It includes a panel of doctors who are responsible for certification of brain death.

• Act states that living donors include a close relative of the recipient or a non-related donor. An authorization committee established by the state government permits the non-related donor to donate their organs.
• Act provides that who has Authorization for organ donation after brain death

1. The deceased person is given authority before his death. 
2. The person in Legal possession of the body has the authorization for organ donation.
3. Act also outlined the authorization process for organ or donation from unclaimed bodies.

• It states that organ retrieval from any hospital having an ICU facility once registered with the appropriate authority is permitted.
• It states that cost of donor management, retrieval, transportation, and preservation to be endured by the recipient, government, and not by the donor family.
• It provides procedure for organ donation in medico-legal cases defined to avoid delay in retrieval of organs and determination of the cause of death
• It outlines the infrastructure, equipment requirements, guidelines, and standard operating procedures for tissue donation banks.
• It defined the qualifications of transplant surgeons, cornea, and tissue retrieval technicians.
• Under the Act, the appointment of transplant coordinators was made compulsory in all transplant centers.
• It states that the registration is required for the Ngo, registered societies and trusts, working in organ or tissue removal, storage, or transplantation field.
• The central government must maintain a record of the donors and recipients of human organs and tissues
• Act, at last, provides penalties for 

1. removal of organs without authority authorization,  
2. receiving or making payments for the supply of human organs,
3. the Act which contravenes any other provisions.

Ethical Aspect of Organ Donation in India

The growing gap between the poor and rich and the lack of an implementation of a national health scheme, to some extent, the presence of modern technology in the country makes the process of retrieval of organs a simple, attractive, and quick business proposition for some people and a solution for others. Organ trade in India comprises a societal issue. Rich people allured poverty-stricken people with financial gains that at times can be a large amount and can meet their immediate short-term financial needs. Making human organs a commodity is not an alternative that can be acceptable to overcome organ shortages in a civilized society. It erodes moral, social, and ethical values. The ethics of organ transplantations in India has always been on a slippery slope.

Certain Myths and Facts about Organ Donation in India

• Myth– what if a person recovers from brain death?

Fact– It is impossible to recover from brain death as many tests to establish brain death are done.

• Myth – the donor’s family will have to pay additional charges for organ donation to the hospital.

Fact- the donor’s family will not have to pay extra money to the hospital for organ donation. 

• Myth– if a person donates organs, he will be born without them in the next birth.

Fact– when the deceased person is cremated, his organs are destroyed anyway. Since the physical body does not survive death,  organs hold no relevance, even if you believe in rebirth.

• Myth – organ donation and transplantation is forbidden under religions.

Facts – all religions have the concept of giving and helping others. So religion never forbids organ donation and transplantation.

• Myth- once a person became an organ donor, he can never change his min. 

Fact- At any time, you can withdraw your registration and tear up your organ donor card and change your mind.

Conclusion

There is high demand and a low supply of organs led to its commodification. The only solution to this problem is by creating awareness about organ donation. Organ donation from one person can save up to 9 lives and improve many others’ lives. Due to the lack of awareness about the topic in India and the prevalence of myths about organ donation, a majority of people do not take up this noble cause. There are lots of loopholes in the THO Act. To a large extent,  the Act failed because of the way authorities and hospitals interpreted and implemented it.

Bibliography

• https://www.organdonor.gov/learn/process
• https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2779960/
• https://www.organindia.org/organ-transplant-laws-made-easy/
• https://www.organindia.org/myths-and-facts/

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

We are governed by the constitution, but the constitution is what the judges say it is, and the judiciary is the tool to safeguard our liberty, and our property under the constitution- says Charles Evans Huges. The quote connotes to us the importance of the Judiciary and the judges in upholding constitutional values.  The concept of judicial review is not a new concept to India and the doctrine of judicial review prevails in every written constitution. The Superior courts have exclusive power of judicial review. In general, Judicial review is used as a tool to prevent the gross violations of the legislative and executive actions and to avoid violation of the constitution and its principles.  

Ambit and existing constitutional provisions of Judicial Review

The ambit of the judicial review in India extends to three branches of government:

1. Judicial review  on the Legislative Action
2. Judicial review on the executive actions 
3. Judicial review of the judicial decisions.

Seervai had noted in his book titled Constitutional Law of India that “It is a familiar feature of the constitutional design of Canada, Australia and India, although the doctrine of Separation of Powers is absent from the Indian constitution in a strict sense, but the government of India has differentiated its functions sufficiently so that one organ could not usurp that of another”. Judicial review is incorporated into a number of statutes and constitutional provisions. Article 13 of the Indian Constitution provides expressly for judicial review of all Indian legislation, both prospectively and retrospectively. High courts are empowered to review decisions under articles 226 and 277, while the Supreme Court is empowered under articles 32 and 133,134 and 136.  Yet the judicial review had its own limitations.

History and Development of Judicial Review

Judicial review is one of the most significant contributions of the American constitution to India. Chief Justice Marshall noted in Marbury v. Madison what the Court’s duty would be in cases of conflict between ordinary law and the Constitution, where the Constitution would prevail. According to another observation, “the constitution is either a supreme law that cannot be altered by ordinary means or it is on the same level as ordinary legislative acts and can be altered when the legislature deems it appropriate”.  Later India had been developed from this stage of observations through various precedents.  A concept of judicial review already existed In India before the constitution was framed.  In 1935, the government of India act created the Federal Court as a means of arbitrating center-state disputes and for maintaining a vigil over constitutional violations.  Before the Supreme Court of India replaced the federal courts, they vigorously worked on maintaining constitutionality. Until the emergency, the Supreme Court of India had adopted a limited tradition of applying for limited judicial review. The courts have always been pro-legislative, which is obvious from their decisions in A.K. Gopalan’s case. Further, the doctrine of separation had a considerable impact on this concept.  During 1950-1975 there was no much influence of judicial review, but soon thereafter, the Supreme Court of India delivered a number of judgments that helped enshrine judicial review.

 Judicial review and precedents:

The foundation of the judicial review is that any law of the land should not be in violation of the Supreme law of the land that is “constitution”. This was held by the court  in Shankari Prasad vs. UOI it was stated that the judicial review power is limited to Ordinary law and not to Amendments to the Constitution.  While the judgment was reversed in the Golak Nath case and there comes a remarkable judgment Kesavananda Bharati v. State of Kerala. The Supreme Court prevailed by asserting its institutional role vis-à-vis Parliament and enhancing judicial review of its decisions through the Basic Features doctrine. There are numerous cases including Sampath Kumar vs. Union of India , Coelho vs. State of Tamil Nadu, Hollohan vs. Zachillhur, and even the recent case of Navjot Singh Joher vs. Union of India.  Over the years, the doctrine of basic feature has become the bedrock of constitutional interpretation in India. As the result of these precedents, the power of judicial review had become part of the basic structure doctrine of the constitution, and it remains permanent even after the constitutional amendment. Now, judicial review was established through the basic feature doctrine.

Limitations to Judicial Review 

Judicial review is still subject to limitations even after it is invoked through the vast interpretation. Constitutional approval of emergency rules at times when national security is undermined is another obstacle to the intensity of the Supreme Court. Under emergency rule, the powers of the national government, and specifically of the chief executive, overstate governments are enhanced. As noted in Article 358, the opportunities set out in Article 19 are suspended during the declaration of Emergency and will continue to be so long as the Emergency is declared. With Article 19 rights adjourned in this manner, no law-based limitations on judicial or legislative power are retained by the constitutional provision. If a State makes a law during this time period, it can’t be tested on the criteria that the law does not conflict with the rights guaranteed by Article 19.

Specifically, article 34 of the Constitution of India empowers the Parliament to reimburse any member of the government or any other individual, for any demonstrations they make in any place within the domain of India where martial law is in force with regards to maintaining or restoring order. Furthermore, it can approve any sentence passed, dispensed, relinquishment order, or other act done under Martial Law.

Discretionary power or Delegated legislation: If judicial review is sought of administrative action, there is a weaker presumption of validity than if judicial review of statutes is sought Even so when the legislature explicitly leaves a matter to the discretion of an administrative authority, the courts have adopted a restrained attitude. It has been said that we can’t question the legality of the exercise of discretionary power unless and until it has been abused.

Conclusion

There are a number of counterclaims against the judicial review turned down as judicial overreach. There are claims that the Supreme Court’s new role violates the doctrine of separation of powers; it is claimed that by formulating policy and issuing directions concerning various aspects of the country’s administration, it has intruded into the realm of the executive and legislature. In the end, the judicial review confirms the justice and creates further judicial activism, but at the same time, there is a risk that it trespasses into legislative and executive powers. These limitations were brought with intent in creating balance and harmony between the judicial review and overreach. 

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This article is written by Bharatee Preeya A.K. a budding lawyer pursuing B.B.A.LL.B (hons) from Alliance University Bangalore.

INTRODUCTION

In this everchanging world, all the technological advancements are happening at a very fast pace, that has revolutionized certain aspects of our lives. During the last few decades, globalization has affected certain aspects of our social lives too, like relationships, marriage, family structure, etc. Marriage is the socially and legally accepted form of relationship between couples. Two people of the opposite sex living together, without marrying is not a common thing in India and is considered to be taboo. At present, few people prefer to commit to a live-in relationship, where two people enter into a relationship and cohabitate for a significant amount of time, without getting married. This would mean that the couple could live together as a married couple without the hustle of actually getting married, and if at any point of time, of they want to get separated, they can do so without going through the process of divorce, but it is not sure of the women and the children will get the same rights as those in legally recognized marriage. But the live-in relationship is not recognized by the legislation and they are governed by the guidelines given by the judiciary. This article will look into the legal status of the women in a live-in relationship and the children born out of a live-in relationship.

Judicial Precedents

The first case in which the Indian Supreme Court recognized a live-in relationship and said that it is a valid marriage was in the case of Badri Prasad v. Director of Consolidation. In this case, the Court gave validity to the live-in relationship which lasted for fifty years. It was held that a strong opinion would be there in favor of the wedlock when the partners have lived as husband and wife for a long time. further, the court held that the burden to rebut this opinion lies on the person who wants to remove the relationship of its legal origin. In the case of S. Khushboo vs. Kanniammal, the Supreme Court held that living together is not illegal according to law, despite it being considered to be immoral by the Indian society. The court went on to say that living together is a right to life and so it is not illegal.

In the judgment of Indra Sarma v. VKV Sarma, where the issue was of domestic violence in a live-in relationship, the court said that the live-in relationships will fall under the expression of ‘relationship in the nature of marriage’ under section 2(f) of the Domestic Violence Act of 2005. In deciding this case, the court said the current relationship in question is not a ‘relationship in the nature of marriage’ because it does not have the essential characters of a marriage and it also doesn’t fall under the definition of domestic relationship under section 2(f) of the Domestic Violence Act of 2005. In this case, the appellant committee into a relationship with the respondent despite knowing that he is married with two children, who opposed this relationship right from the beginning. The court further said that, if they were to validate the relationship between the appellate and the respondent, it would amount to a huge injustice to the legally wedded wife and the children of the respondent. Finally, the court held that the Domestic Violence Act does not look into relationships of this nature.

In the case of Tulsa vs. Durghatiya, which was regarding the legal status of the children born from a live-in relationship, the court held that since the parent of the child has co-habited for a long time for the society to recognize them as a husband and wife, the child should be considered to be a legitimate child and further said that a child born out of a live-in relationship should have the property right.

Status of Women

• Domestic violence:

In a relationship, women can claim protection under the Domestic Violence Act of 2005. The status of a woman in a live-in relationship is not equivalent to a wife but it is close to it, provided the couple has lived together for a considerable amount of time and their relationship is in the nature of marriage. This was applied by the Punjab and Haryana High Court in the case of Ajay Bhardwaj v. Jyotsna, where the court awarded the woman of a live-in relationship a sum of Rs. 40 lakhs as maintenance and the court also referred to the 2003 report of the Malimath Committee, ‘Reforms in the Criminal Justice System’, which recommended that the term wife’ in section 125CrPC should be replaced with a woman, who is living with a man like a wife for a considerable amount of time.

The Supreme Court has also recognized dowry as violence committed against the woman in a live-in relationship. In the case of Koppisetti Subbarao Subramanian vs. State of Andhra Pradesh, the court rejects the defendant’s claim that a live-in relationship does not apply to Section 498A of IPC because he was not married to the woman.

• Maintenance:

Section 125 of the CrPC provides the legal right to maintenance to wives. The Malimath Committee Report and the 8^th Law Commission recommended the inclusion of women in a live-in relationship within the purview of this section, under wives. The courts have also come up with the concept of palimony, which is similar to alimony but was give during the separation of unmarried couples. This concept was derived from the landmark judgment of the California Supreme Court in Marvin v. Marvin. The Supreme Court of India recognized this in the case of Velusamy v. Patchaiammal. In this case, the right to palimony was awarded in a live-in relationship as an equivalent to alimony.

• Inheritance:

Since there is no legislation recognizes live-in relationship, simply co-habiting does not give people the right to inherit from each other. Hence, in case of the death of one person in a live-in relationship, the other person has no right for their property, unless there is a will that states the contrary.

Status of Children

• Legitimacy:

The Courts of India have time and again talked about the legitimacy of the child in a live-in relationship. Recently in the case of Xxxxxxxxxx vs State Of Kerala, the Kerala High Court referred to the Indian Constitution and said that every person has the right to live with dignity and on the basis of Article 14 and 21, the High Court said that, a child born in a live-in relationship will be considered as legitimate child and they would also have the property right, right to maintenance, and so on. Section 16 of the Hindu Marriage Act of 1955 and Section 26 of the Special Marriage Act, say that children born out of the void and voidable marriages were considered to be legitimate or deemed to be legitimate, respectively.

• Inheritance:

In the above-mentioned case of Tulsa v. Durghatiya, the Supreme Court granted the property right to a child born out of a live-in relationship. According to subsection (3) of Section 16 of the Hindu Marriage Act of 1955 and Section 26 of the Special Marriage Act, these children have the right to the inherent property of their parents. In the case of a Hindu Undivided Family, the child cannot be a coparcener and do not have rights over the family properties, 

CONCLUSION

If a person wants to pursue a live-in relationship or get married is their own decision and the government should support it. The judiciary has supported it, and this is evident by all the judgments that the judiciary has given. As with the changing times, everything around us should also change to stay relevant. There is not yet single legislation that looks into the rights of the people involved in a live-in relationship. Hence, the legislation should look into the creation of the same.

This article is written by Santhiya V, pursuing BBA LLB (Hons.) at Alliance University.

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Introduction

The Constitution of India secures to citizens including disabled, right of justice, freedom of speech & expression, worship, equal status & opportunity. Article 15(1) & 15(2) of the Constitution states that the state & government cannot discriminate against any citizen of India including disabled people on the basis of caste, race, religion or on the basis of any disability. According to 2011 census in India 2.68 Crores persons are disabled (8 types of disability) which constitute 2.21% of the total population of India. Majority are present in the rural areas i.e. 69%. In order to protect the PWDs from alienation various legislation were enacted even though it was seen that the legislations were lacking short in the present times as various disabilities were not listed in the legislations so, the RPWD Act, 2016 was legislated.

Analysis of the Act

The RPWD Act, 2016 attempts to bring the domestic disability legislation in line with the CRPD. The Act was enacted on 28th December 2016, came into force on 19 April 2017. The Act defines disability on the basis of its dynamic & evolving concept rather than limiting the disability unlike the PWD Act, 1995 which it replaced. Thus, the Act has provisions that are rights based rather than the charity or social model of disability. 

The Act has elaborated definitions of concepts like barriers (Section 2 (c)), discrimination (Section 2 (h)), Government establishment (Section 2(k)), Private establishment (Section 2(v)), reasonable accommodation (Section 2(y)) and Special Employment Exchange (Section 2(zb)). Chapter II of the RPWD Act, 2016 deals with the Rights & Entitlements, include the right to equality and non-discrimination (Section 4), rights against exploitation and abuse (Section 7), access to justice (Section 12) etc. Section 5 of the Act makes specific provisions for the women and children with disabilities. A Special provisions have been made in Section 24(3)(d) of the Act which includes schemes for the livelihood for women for the upbringing of their children.

The RPWD Act unlike the PWD Act, 1995 does not define disabilities and limit the number of disabilities & increased the list of disabilities from 7 to 21. The RPWD Act follows the rules of CRPD & defines a person with disability (Section 2(s)) as an individual with long term physical, mental, intellectual or sensory impairment which in interaction with barrier hinders his complete and effective participation in society equally with others. A person with benchmark disability (for whom there are specific provisions and concessions in work and employment provided by the Act) is a person with disability who has 40% or more of a specified disability.

Other features of the RPWD Act, 2016 

• The term establishment by the Act includes a private establishment as mentioned by Section 2(i). Government Establishment is defined in Section 2(k) which means a corporation established by or under a Central Act or State Act or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined by section 2 of the Companies Act, 2013 and includes a Department of the Government. Private establishment according to Section 2(v) of the Act means and includes company, firm, cooperative or other society, associations, agency, institution, organization, union, factory etc., as the appropriate Government may, by notification or notice, specify this clearly means that the disability legislation applies with equal force to private establishments. 

• A public building includes a place of employment of the person. This would go long way thus, benefiting the lives of persons with disabilities easier as these buildings would have to be accessible to persons with disabilities.

• Reasonable Accommodations has been defined & government employers have to provide reasonable accommodation vide Section 20(2) of the Act. Reasonable Accommodation is defined in the same manner as in the rules of CRPD.

• There shall be no discrimination in employment by the Government for PWDs i.e. Section 20(1). Such a clear provision did not existed in the PWD Act, 1995.
• There shall be an Equal Opportunity Policy for every establishment vide Section 21 of the Act. Section 22 mandates maintenance of records and Section 23 has made provision for the appointment of a Grievance Redressal Officer (GRO) to address issues regarding problems in these matters.

• Vocational Training and Self-Employment have been given a push in Section 19 such that the appropriate Government shall formulate schemes & programmes including provision of loans at concessional rates to support & facilitate the employment of persons with disability.

• Provision for Social Security has been made under Section 24 of the Act. Under the PWD Act, 1995 no such provision was present.

• The provision retained from the PWD Act, 1995. Termination or reduction of rank in service of an employee who has acquired a disability is not possible. 

• There is a horizontal reservation provided by the Act of 4% of government jobs and incentive based reservation of jobs in the private sector. The percentage of reservation has gone up by 1%.

• Section 35 of the Act provides incentives to the private sector for employing persons with disabilities. The private sector is under obligation to employ 5% of its workforce consisting of persons with disabilities.

• The Provisions have been made for the setting up of special employment exchanges under Section 37 of the Act.

• Chapter XIII of the Act states that Special Courts & Public Prosecutor shall be provided by the State Governments with Concurrence of the CJ of the High Court vide Section 84 & 85 of the Act.

Citing of RPWD Act, 2016 by Judiciary  

In the case of Vikas v. State of Maharashtra, the Petitioner was a driver of Maharashtra State Road Transport Corporation (MSRTC) & the respondent no. 3 issued order directing petitioner routine check-up. In the check-up it was diagnosed that the petitioner had Colour Vision Defect (Colour Blindness) thus, terminating his services by MSRTC. The petitioner filed a writ petition pleading that the order of his services termination is the violation of Article 14, 15 & 21 of Constitution & ultra vires to the provision of Section 20 of RPWD Act, 2016. The question before Court was is the petitioner fit to continue his duties with MSRTC with colour blindness. The Court held that the disability viz. Colour Blindness was acquired during the course of his service thus he is entitled to an alternate job as “Reasonable Accommodation” of the provision of Section 20 of RPWD Act, 2016. Court also added as the petitioner services were terminated between the 2018, since then the petitioner is unemployment & nor did they receive any wages or compensation. MSRTC was directed to pay back wages to the petitioner from the date there terms of service was terminated.

In the case of Ebrahim M. M., petitioner attained serious disability during the course of his service & on account of injuries suffered he is entitled to be retained on light duty under Sec. 20 of RPWD Act, 2016 a writ petition was filed by the petitioner with pleading in prayer to issue a writ against the respondent to grant the petitioner equal posting of a conductor in compliance to the Act, 2016. The Court said the writ petition was disposed of but it was ordered accordingly by the Court directing the respondent, within two week on receipt of the judgment the option of petitioner shall be considered sympathetically & due accommodation shall be provided to the petitioner under Sec. 20(2) of the Act, 2016. 

In V. Suresh case, the petitioner while working as a Conductor acquired Coronary Artery Disease (CAD) which disabled him to resume his service as conductor. The petitioner contended to seek assignment of light duty under same pay scale on ground of Sec 20(4) of RPWD Act, 2016 as he acquired the disability during the employment. The Court took reference of the Case of Sajimon K.B., that held that such protection under Sec 20(4) of the Act, 2016 is to be granted & the Corporation cannot contract out of the Statutory Right of the employee thus, stating the petitioner is entitled to be assigned on light duty with protection of pay scale & service benefits.    

Conclusion

The taboo relating to Disability is still very much prevalent in our country, people still treat them as an object of pity and sympathy and treat them as third-class citizens and considers them as a liability which makes the person with disability vulnerable to discrimination like harassment, bullying, mental torture and isolating etc. Therefore, this Act can prove to be a turning point for the PWDs & change the mentality of the society towards disabled persons.

This article is written by Ajay Kataria, from Dr. B.R. Ambedkar National Law University, Sonepat, Haryana.

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Case Number

CRIMINAL APPEAL NO. 2009 OF 2013

Equivalent Citation

AIR 2014 SC 309

Bench

K.S. Radhakrishnan, Pinaki Chandra Ghose

Author of the Judgement-

K.S. Radhakrishnan, J.

Decided on

26 November 2013

 Relevant Act/ Section

Section 2, 3, 12, 18, 19, 20, 22, 23 of Protection of Women from Domestic Violence Act, 2005 (DV Act)

Brief Facts and Procedural History

Appellant(unmarried) and Respondent(married and having two kids) were in a live-in relationship for about 18 years. Respondent quit his job and they were earning from the business they set up in her name. Later, R moved work to his home and depriving her of working and earning. He took money from her on various occasions that were never returned, forced her to take contraceptive methods to avoid pregnancy, harassed her by not allowing her to suffix his name, have joint bank accounts, or never even took her to meet his friends or relatives.

Contentions of the Appellant

• Contended that the relationship between them constituted a relationship in the nature of marriage within the meaning of Section 2(f) of the DV Act. 
• Avoided her without providing maintenance.
• She claimed various reliefs under DV Act: –

• Protection Order under Section 18 of the DV Act
• Residence order under Section 19 of the DV Act
• Monetary order under Section 20 of the DV Act
• compensation order under Section 22 of the DV Act to a sum of Rs.3,50,000/- towards damages for misusing the funds of the sister of the appellant, mental torture, and emotional feelings;
• an ex-parte interim order under Section 23 of the DV Act towards medical expenses and a fixed sum as maintenance charges every month.

Contentions of the Respondent

• He denied all the allegations made by the appellant
• He contended that the tests laid down in  D. Velusamy v. D. Patchaiammal (2010) were not satisfied as the parties were not qualified to enter into a legal marriage. Also, the appellant knew that the respondent was a married person.

Trial Court-  Took the view that plea of domestic violence was established ( because of considerable time living together and leaving the appellant without maintaining her) and directed the respondent to pay maintenance of a fixed amount every month to the appellant.

Sessions Court- Confirmed the order passed by the learned Magistrate.

High Court- Held that relationship between the parties was not that of relationship in nature of marriage and the tests laid down in D Velusamy case was not satisfied. Hence, the judgments of the lower Courts were set aside. 

Issues before the Supreme Court

1. Whether a live-in relationship would amount to a relationship in nature of marriage within the definition of domestic relationship under Section 2(f) of the Protection of Women from Domestic Violence Act, 2005.

2. Whether disruption of such a relationship by failure to maintain woman involved in such a relationship amounts to domestic violence under the Act.

Ratio of the Case

1. Sec 2(f) of the DV Act defines domestic relationship as a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.

2. A relationship in nature of marriage means a relationship that has some inherent, essential characteristics of marriage but is not legally recognized as one. Some of the key differences between marriage and a relationship in nature of marriage are that marriage continues even when the parties are not sharing a household or even when there is a difference of opinion or marital unrest, being based on law but in the other category, the relationship comes to an end when one of the parties determines that he/she does not want to be a part of it anymore. In a relationship in the nature of marriage, the party asserting the existence needs to positively prove the existence by identifying characteristics.

3. Unlike many other countries, live-in relationships have not been socially accepted in India but in Lata Singh v. State of U.P. (2006), it was observed that a live-in relationship between two consenting adults of heterosexual sex is not an offence though may be considered immoral. Also to provide a remedy in civil law for the women aggrieved in this relationship and to prevent domestic violence, for the first time, DV Act was enacted to cover relationships like the ones in the nature of marriage, by consanguinity, etc.

4. To examine whether a relationship is of the category-a relationship in the nature of marriage is a question of fact and degree and for that, all facets of the interpersonal relation need to be examined. No individual factor can be isolated as there is endless scope for variation in human attitudes and there can be a variety of combinations of factors to be taken into consideration. 

5. Some guidelines (not exhaustive) were laid down to determine whether a live-in relationship falls within the category: –  

• Duration of period of relationship
• Shared household- Defined in Section 2(s) of the DV Act
• Having/planning children- A very strong indicator
• Pooling of Resources and Financial Arrangements Supporting each other, or any one of them
• Sexual relationship- Not just for pleasure but for an emotional and intimate relationship
• Socialization in public- Holding out to the public and socialising with friends and families.
• Intention and conduct of the parties- Common intention of the parties as to what their relationship is to be
• Domestic arrangements entrusting the responsibility- Women to run home and do household chores

6. In the present case, the appellant was aware of the marriage of respondent, hence were living in an adulterous, bigamous relationship, hence they can’t enter into a legal marriage or have a relationship in the nature of marriage. They had no intention to rear kids (3 abortions). No material was adduced to show that they projected themselves as husband-wife in public, or that there were a pooling of resources or financial arrangement between them, or even that they had mutual support and companionship. No evidence that the respondent caused any physical, sexual abuse or endangered her except that of avoiding her without providing maintenance.

Decision of the Court

Since the appellant knew of the respondent’s marriage makes her his mistress and a mistress cannot maintain a relationship in the nature of marriage because such a relationship will not have exclusivity and will not be monogamous in character. If their relationship is to be held as in the nature of marriage then it would be an injustice to the legally wedded wife and their children (they have a cause of action against her for alienating the affection and companionship of parent/husband being an intentional tort). Hence, any conduct, act or omission of the respondent towards the appellant would not amount to domestic violence under Section 3 of the DV Act.

Judgment by the High Court was upheld and the appeal was dismissed.

This case analysis is done by Munmun Kaur, a Law student at Law Centre-I, Faculty of Law, Delhi University.

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CASE NUMBER

Writ Petition (L) No. 1688 of 2015

BENCH

Justice V.M. Kanade and Justice B.P. Colabawalla

CITATIONS 

2015 SCC ONLINE BOM 8526. 2015 RCR CIVIL 5 156

DECIDED ON

12 June 2015 

RELEVANT ACT/ SECTION

Food Safety and Standards Act, 2006. 

BRIEF FACTS 

The company was a subsidiary of the Swiss company NESTLE and was engaged in the manufacturing of food goods. For the past 30 years, the Petitioner had been manufacturing and marketing MAGGI, a food product. Certain samples of food goods that were being marketed were examined sometime in May of 2015, first in Utter Pradesh and then in Calcutta when the Petitioner filed an appeal. 

ISSUES BEFORE THE COURT

The order dated 05/06/2015 issued by the Food Safety and Standards Authority of India, as well as the order dated 06/06/2015 issued by the Commissioner of Food Safety, State of Maharashtra, are being challenged by the petitioner. The petitioner raised contention against respondent’s claim that the products were not standardized and had misleading information. 

RATIO OF THE CASE

The judges said that since the products were being removed from the market and were no longer being marketed, it was not recommended that the procedure for cancelling the production approval that had already been prolonged until the next hearing date. The contested orders were issued without a formal notice of show cause. It was also argued that the abovementioned order was issued by officials that lacked the authority to issue such orders. However, the respondents argued that they had the liberty of taking immediate action against the company in case of any emergency in the form of threat to public, health, etc. 

DECISION OF THE COURT

The topic of granting a stay to the impugned orders did not arise at that time because the Petitioner had stated that the Petitioner – Company had already decided to remove its product from the market despite their statement that the product was safe for human consumption.  Respondents, on the other hand, were free to take any legal action they saw fit against the Petitioner if they believed the aforementioned statement had not been followed. They will do so after giving the Petitioner 72 hours’ notice. If the Maggi product is discovered with shops or others, they had the right to take it.

This case analysis is authored by Vanshika Samir, a first-year student at the Rajiv Gandhi National University of Law, Patiala, Punjab. 

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