Saturday, May 25, 2013
Tuesday, May 21, 2013
In today’s Indian society dowry is like a norm, we see that people spend lavishly on marriages. The root cause of the problem starts from here, The parents of the bride fulfill all the wishes of groom’s family like spending lavishly on wedding, gifting cars etc. when the bride reaches her matrimonial home, The selfishness of groom’s family grows .Now they demand more things like household items, property etc. Not in the condition to fulfill the infinite demands of groom family, The Groom family starts to harass the newly wedded wife so much and so grave that she thinks it’s better to end the life than to live it. In the end the lavishly solemnized wedding ends into tragic death of the bride. The cause of death is not natural that is for sure, it may be due to poison, suicide, even hanging on the ceiling, burns.
This the most common story of all the dowry related deaths .For this common story there must be a common Law on different footing as that of murder and culpable homicide as the cases of murder and culpable homicide demands much greater evidence and are much complicated. The dowry death is covered in sec 304 B IPC which is:
(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called" dowry death", and such husband or relative shall be deemed to have caused her death. Explanation.- For the purposes of this sub- section," dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
1. There must be a death of the woman.
2. The death of the woman must be in un natural circumstances.
3. And there must be evidence that she was subjected to cruelty due to demand of dowry.
So there is a stark difference between section 299/300 and 304B as 299/300 has much wider scope and covers many motives, But sec 304B the main motive is Dowry due to which cruelty and harassment is performed on the bride and due to which she died.
Evidence in 304 B-
For the protection of harassed party the evidence act comes to rescue for a crime to come under the 4 corners of evidence act, The material evidence is cruelty and harassment on the bride.
113B. Presumption as to dowry death.- When the question is whether a person has committed the dowry death of a women and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry; the court shall presume that such person had caused the dowry death.
Now due to this section the burden of proof shifts to defendants, now they have to show that they have not done cruelty and harassment in order to evade this section.
Unlike in murder cases there is always presumption of innocence, The section of murder has to pass through quite stringent tests than that of dowry death. In dowry related death those people who are involved in cruelty (relatives) are held to be liable for the dowry death.
Source: Nitish Banka
Monday, May 20, 2013
Since this is an area of profound concern these days, and I’ve been facing endless queries on this, here is a basic & overly simplistic layman’s view on the law as it was before 2005 and after it vis-a-vis daughter’s right in joint family/coparcenary/ancestral properties among Hindus in India.
Concept of Joint Family in a nutshell
We all are aware of the concept of a Joint Family – wherein people related by blood/marriage descending from a common ancestor form a unit, live, work, worship together. This includes all sorts of people, sons/daughters (married, widowed or otherwise), mother, widows of sons etc. All these people have right to maintenance out of joint family properties and assets.
Within this group there is a narrower group called the coparcenaory, with it’s constituents being referred to as the coparcenars have birth rights (ownership) in the joint family/ancestral properties, which they can get culled out anytime by a partition, they have the right to sell/gift/will away their share of the property, they also have the power to assail any wrongful transfer of property made by Karta (Karta, for those who arrived late is the eldest lineal member of the family, entrusted with task of managing the property, Karta has the power to even alienate the whole of property in certain circumstantial compulsions).
Now before 2005 only son, son’s son, son’s son’s son were coparcenars, with the daughters only having a right to reside in the property and get their marriage expenses defrayed out of the same. A son would acquire proportionate ownership in the property moment of it’s conception, but not the girls.
Post 2005 – now a daughter also would acquire ownership rights on the property from the time of her conception (provided of course she is born alive). She has the same rights of partition and power to deal with the property as she pleases, this right extends to seeking a partition and sale of the family home as well. Hence there is a complete parity in terms of rights. However it would be profitable to remind ourselves that these rights extend to only ancestral properties (or joint family properties – are properties which people inherit from their paternal ancestors/property through into common hotch potch/property acquired by joint family efforts/accretions etc) and not separate properties (which include property earned by gift/will/acquired through purchase from own funds/acquisitions from own skill etc.)
But there is a rider - The right to get your equivalent share of the property can be exercised only in cases where there has been no formal partition (partition either through court final decree or through a registered partition deed) before 20.12.2004. In case a partition has already been finalized before the said date, the right collapses.
HOW TO ASSERT YOUR RIGHT ? FILING A SUIT FOR PARTITION
The Daughters (married, widowed or unmarried) now can approach the civil court for seeking a partition from their brothers/family/father etc. Their right is equal. Once acquired a lady is free to deal with the property the way she likes and it becomes her absolute property and her children have no right during her lifetime.
A Daughter can file a suit for partition, on which certain court fees is payable. This court fee depends on the value of her share in the property and has to be calculated as per court fee chart.
1. The Hon’ble Supreme Court in the landmark judgment in ‘Mardia Chemicals’ case, while upholding the constitutional validity of Securitization, Reconstruction of Financial Assets & Enforcement of Security Interest Act 2002 (for brevity the Act) had held that secured creditor has to take higher degree of caution in exercising any of the rights under the Act in view of stringent nature of the provisions of the Act. The Action taken should be bona fide and transparent. Sec.32 of the Act provides for immunity to secured creditor or any of its officers against prosecution or other legal proceedings for bona fide action taken by him under the Act. Bona fide action means action taken in good faith and in consonance to the provisions of the Act and Security Interest (Enforcement) Rules 2002 (for brevity “the Rules”) framed thereunder. However any negligent or fraudulent act of secured creditor cannot be said to be bona fide act and therefore is not covered by Sec.32 of the Act.
2. Sec.32 of the Act reads thus: “No suit, prosecution or other legal proceedings shall lie against any secured creditor or any of his officers or manager exercising any of the rights of the secured creditor or borrower for anything done or omitted to be done in good faith under this Act”.
3. An authority clothed with statutory power cannot seek excuse for negligent acts as the borrower may suffer irreparable loss which cannot be compensated even in terms of money. Where something has gone seriously wrong, it is both inconvenience and distress. Distress includes embarrassment, anxiety, disappointment and loss of expectation. The degree of distress involved can vary widely which can be little more than a relatively minor annoyance. Distress and inconvenience often go hand in hand. Inconvenience includes incurring of any unwarranted expenditure of time and money to protect against wrongful action. Pain and suffering are considered as more extreme forms of distress and inconvenience. Compensation is meant to make good the loss by awarding damages to the party who suffered distress in an illegal action. These damages are meant specifically to compensate a person against negligent action or a deliberate act, of a statutory duty.
4. For that reason, Sec.19 is embodied in the Act as a safe guard against such harsh and unsavoury action. Perhaps for this reason, the Hon’ble Supreme Court in ‘Mardia Chemicals’ case also observed that there is no need for framing another law for fixing “Lender’s liability”. Sec.19 of the Act is extracted and reproduced hereunder:
“19. Right of borrower to receive compensation and costs in certain cases: If the Debts Recovery Tribunal or the Court of District Judge, on an application made under section 17 or section 17A or the Appellate Tribunal or the High Court on an appeal preferred under section 18 or section 18A, holds that the possession of secured assets by the secured creditor is not in accordance with the provisions of this Act and rules made thereunder and directs the secured creditors to return such secured assets to the concerned borrowers, such borrower shall be entitled to the payment of such compensation and costs as may be determined by such Tribunal or Court of District Judge or Appellate Tribunal or the High Court referred to in section 18B.”
5. Sec.19 creates a statutory right in favour of borrower to receive compensation provided the following two conditions are fulfilled:
i). if DRT/Dist.Court/DRAT/High Court under Secs.17/17A/18/18A holds that possession of secured assets by the secured creditor is not in accordance with the provisions of the Act and the Rules made thereunder and
ii). directs the secured creditor to return the secured assets to the concerned borrowers.
6. The theory of damages is that a compensation is given in satisfaction for the injury sustained, in terms of money for reparation of the damages suffered which one would not have sustained but for the wrong done by the other party.Section 73 of the Contract Act is the general law governing all cases, resulting in loss or damage to the party who suffered damages.
7. The expression ‘compensation’ is not ordinarily used as an equivalent to damages, although compensation may often have to be measured by the same rule for breach of a contract. The word ‘Compensation’ is usually used interalia with ‘damages’, however the word ‘Compensation’ denotes a sum of money payable to a person on account of the loss or damage caused to him by the breach of a statutory duty. The damages on the other hand, mean the estimate of some loss and injury actually sustained. The expression ‘compensation’ is not ordinarily used as an equivalent to damages, although compensation may often have to be measured, by the same rule as damages are measured in action for a breach of contract.
8. The compensation is given only when actual loss or injury is suffered by the Claimant. The fundamental principle of law of damages is that the person injured shall have fair and just compensation commensurate with loss sustained in consequence of anything done wrong. “Punitive or exemplary damages” also can be awarded by DRT where a respondent acted in a reckless or violent manner.
9. Entitlement of compensation and costs may be decided by DRT/Dist.Court/DRAT/High Court under Secs.17/17A/18/18A. This Section does not impose any mandatory duty to DRT to award compensation in each and every case. This is obvious from the word “may” appearing in the language of the section. Therefore it is advisable that, borrower seeks for this relief specifically and invariably in the Sec.17 application itself and produce evidence or rely on evidence to prove the damages suffered. There is no need to file any separate application under Sec.19 of the Act. It is settled law that if no relief is claimed, the authority has no power to grant relief.
10. Sec.19 of the Act is ambiguous as to whether this right is available to aggrieved person (eg. third party or bona fide tenant) also or not. In many cases third parties also face crucial position at the time of forceful / physical dispossession under Sec.14 of the Act. Of course the aggrieved persons are entitled to costs of the application under Sec.17 of the Act but entitlement to compensation is not obvious from the reading of the Section. DRT has no power as it cannot supplement law in this regard as a legislator (casus omissus= When a statute or an instrument of writing undertakes to foresee and to provide for certain contingencies, and through mistake, or some other cause, a case remains to be provided for, it is said to be a casus omissus)