POWER OF ATTORNEY: HOW TO AVOID MISUSE

By observing certain safeguards, one can safely grant a power of attorney without having to worry about it being used.
There are many cases where a power of attorney (POA) is granted with a specific intent but with passage of time the attorney holder assumes much more control due to liberal or sometimes even deficient drafting of the POA.
To ensure you power of attorney is not misused or it does not become a source of concern or a loss for you, the following factors should be remembered:
1. Ensure you know the attorney holder personally and do not issue a POA to person you are not confident about. Identification details of the attorney holder such as a passport number, PAN or election card should be available with you.
2. A POA should never be irrevocable unless you are selling a property. Always ensure the POA is revocable so that you can cancel it any time.
3. The POA should always be registered. This way it is easy to cancel or revoke it at the appropriate time.
4. You should not give open ended and sweeping powers in the POA. Avoid the use of words such as “all rights,” “and right”, “any action that the attorney holder deems fit”.
You should identify to the purpose for which the POA is needed and draft a POA conforming to the duties and rights needed.
5. Always ensure that the photograph of the executives and the attorney is fixed on the POA.
6. In case the powers to the attorney are needed only for a limited period then you should prepare the POA for a fixed period only.
7. A general POA should be avoided unless absolutely necessary. You should grant a specific POA at all times.
How to revoke a power of attorney
Revocation of a power of attorney is a necessary when the purpose of which the POA is granted is no longer required or when the executants finds that the attorney is either misusing the powers under the POA or is acting against the interest of the executant.
No reasons need to be assigned in case a POA needs to be revoked. A POA is operational during the pleasure and consent of the executants. It can be revoked at any point.
The procedure usually followed when revoking a POA is as follows:
1. A notice of stop of use and cancelling of powers under the POA so granted to the attorney has to be issued. This needs to be done by recorded delivery so that a valid date of cessation of powers is recorded.
2. Further the POA has to be cancelled at the registrar’s office where it was originally registered at the time of issue.
3. In case the POA had been in widespread use then it is always advisable to publish a public notice in a newspaper which has reasonable circulation in the city where the POA was issued.
4. A POA can also be cancelled by destruction of the original document.
A POA is difficult to cancel in the following cases:
a) When the attorney holder and the original POA document is not traceable. Hence is advisable that the attorney is known to you.
b) When the POA is not registered. This creates a lot of hassle in making the POA non-operative.
c) A POA which is irrevocable cannot be revoked unless there are suitable and justified grounds that the irrevocable POA was issued fraudulently.
The key to having a control over the POA you issue and revoking it at your convenience is, to follow all procedure and precautions at the time of issue of POA.
[Source: Consumer Voice, July 2009]

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When Lordships admit they crossed the line

If you as a litigant or government servant ever wondered why you got a raw deal from the courts, then here is the Supreme Court’s candid admission about the injustice inflicted through judicial frailties.

“Courts should avoid the temptation to become authoritarian,” said a Bench comprising Justices R V Raveendran and P Sathasivam as it listed out three common areas where the courts have generally gone overboard.

“We have been coming across several instances, where in their anxiety to do justice, courts have gone overboard, which results in injustice, rather than justice,” said Justice Raveendran, writing the judgment for the Bench in a land acquisition matter involving Tirunelveli district collector in Tamil Nadu. It listed the well-known instances where authoritarian practices by courts had led to hardship and prejudice to litigants and even those who were not parties in the case. They are passing adverse remarks against government officers or others who are not parties to the case, without giving an opportunity to them to show cause or justify their action; directing the state to recover losses or damages or costs from a particular officer, who is not a party, by holding him personally liable for some alleged act or omission, without giving him an opportunity to explain his position, conduct or action directing prosecution of parties and/or non-parties, in cases which merely warrant levy of costs or admonition.

The Bench said the power vested in the courts to order prosecution had to be exercised sparingly and in exceptional circumstances, either to maintain the majesty of law or to ensure that the guilty did not escape punishment.

“Ordering prosecution in a casual manner while reversing the decision of a single judge in a writ petition, without any investigation or inquiry either by itself or by an independent investigation agency, is to be deprecated. Criminal law cannot be set into motion against a litigant as a matter of course,” it said.
Source:- The Times of India 28 August 2009 Page 13 Delhi

SC gives 35 years in jail for twin murders

In A First, Court Quantifies Life Term, Normally Up For Parole In 14 Yrs

The Supreme Court has sent a man convicted for a double murder to an unprecedented 35 years in prison, with the caveat that he could not be set free after the mandatory 14 years. Aware that the state government has power to grant parole to a lifer after he serves a minimum of 14 years, the apex court said in this case the convict would serve a minimum of 35 years behind bars.

The court, in an earlier judgment in the Swamy Shradhanand case, had leaned in favour of life term to the accused Shradhanand alias Murli Manohar Mishra instead of death penalty and clarified that the accused would never be released from prison, that is he would remain in prison for the rest of his life.

However, this is the first case where the apex court has quantified the prison term and pegged it at a much higher 35 years than the conventional belief that a lifer was entitled to be released on parole or commutation of sentence after serving 14 years in jail.

A Bench comprising Justices V S Sirpurkar and Deepak Verma said though it was tempted to send the convict Haru Ghosh to prison for the rest of his life like in the Shardhanad case, it was not doing so keeping in mind the fact that he had two minor children.

“We observe that life imprisonment in case of the accused shall not be less than 35 years of actual jail sentence, meaning thereby, the accused will have to remain in jail for a minimum of 35 years,” the Bench said.

The Calcutta High Court had confirmed the trial court verdict awarding death penalty to Ghosh. Ghosh had killed 30-year-old Amina Pramanik and her 12-year-old son Subhankar on May 7, 2005, enraged by her husband’s repeated protests asking him not to consume country liquor in a locality at Nawadeep in West Bengal. Ghosh was already sentenced to life imprisonment in another matter and had come to the locality from prison on bail.
Source:- The Times of India 28 August 2009 Page 13 Delhi

Ruling class is protecting builders: SC

Stalling of the demolition and sealing drive against illegal buildings and encroachments in Delhi by a Parliament enacted law came in for sharp criticism from the Supreme Court, which said the protection given to wrong doers by the ruling class has irreparably harmed planned development.

Because of the encouragement and support from the state apparatus, the powerful construction lobby has shown scant regard to repeated anti-encroachment orders of the Supreme Court and the High Courts and also to the master plans and zonal development plans, said a Bench of Justices B N Agrawal and G S Singhvi.

‘‘As when the courts have passed orders or the officers of the local and other bodies have taken action for ensuring rigorous compliance of laws relating to planned development of the cities and urban areas and issued directions for demolition of illegal/unauthorized constructions, those in power have come forward to protect the wrong doers by issuing administrative orders or enacting laws for regularization of illegal and unauthorized constructions in the name of compassion and hardship,’’ the Bench said.

Writing for the Bench, Justice Singhvi said such protection has irreparably harmed the concept of planned development of cities and urban areas.

‘‘It is high time that the executive and political apparatus of the State take serious view of the menace of illegal and unauthorized constructions and stop their support to the lobbies of affluent builders and others, else even the rural areas of the country will soon witness similar chaotic situation,’’ the Bench said.

The Bench’s anguish brimmed over in its judgment dismissing an appeal by Shanti Sports Club, which had sought legalization of a vast expanse of government land in south Delhi’s posh Vasant Kunj area which it had encroached upon and set up several sports and club facilities.

The SC did not miss then urban development minister Ram Jethamalani’s soft approach towards the encroachment. ‘‘The then minister, who recorded a note dated June 8, 1999, was extremely magnanimous to the Shanti Sports Club when he wrote that the extensive construction must have been made with full cooperation of public servants concerned,’’ it said. Jethamlani had advocated no demolition and favoured ‘‘negotiations’’ for regularization.

The Bench agreed with the reason behind the encroachment but refused to accept the regularization suggestion. It said: ‘‘Having carefully examined the entire record, we have no hesitation to observe that the construction of this magnitude could not have been possible, but for the active connivance of the concerned public servants who turned a blind eye to the huge structure being built on the acquired land without any sanctioned plan.’’
Source:- The Times of India 28 August 2009 Page 4 Delhi

‘SMS can be divorce evidence’ --FRENCH RULING

Unfaithful spouses in France beware: Passionate text messages sent to mistresses and lovers can now be used as evidence against you in a divorce. Experts say the ruling by France’s supreme court to accept phone exchanges as legitimate proof of adultery will make it easier for the French to get divorced. Previously, French spouses often had to wait for years to escape a marriage if they could not prove their spouse was misbehaving or mistreating them.

Text messages have long been accepted as official proof in murder and other criminal trials in France, and the new decision extends such practice into family law. E-mails are also accepted as evidence in trials.

Getting a divorce can be a lengthy and painful procedure in France.
Source:- The Times of India 25 August 2009 Page 20 Delhi
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CJI constitutes committee of judges to simplify laws :It will identify subjects for preparation of Restatements of Law

Chief Justice of India K.G. Balakrishnan has constituted a Committee of Judges to bring out an authoritative series of ‘Restatements of Law’ on about 100 topics to remove ambiguities surrounding the legal principles and their applicability; clarification and simplification of laws for their better adaptation to social needs.
In the first stage the committee will identify the subjects suitable for preparation of Restatements of Law (RoL). It is proposed to have two parallel projects — long-term and short-term, having regard to the nature of topic, current relevance and need for re-statement.
The objective of the project undertaken in association with the Indian Law Institute is to identify uncertainties in law in basic legal subjects; extensive examination and analysis of legal areas requiring reform and statement of current law of the land by considering both statutory provisions and judicial interpretations.
The committee, comprising a few Supreme Court and High Court judges, eminent jurists, academicians, and scholars, has initially embarked upon a pilot project (to create standards as models) in three areas: legislative privileges, contempt of court and public interest litigation. The other short-term subjects are: corrupt practices in elections; treaty-making power of the state; preventive detention and adoption.
The long-term projects would be in administrative law; arbitration; partnership; succession; damages and compensation; interpretation of statutes and deeds and consumer protection. There will be periodical addition of subjects, revisions and updates of existing re-instatements.
Reinstatements unlike text books and treaties are not opinion-based; they are authoritative pronouncements of the law on a subject at a particular time exploring principles, interpretations, practices and impact. It avoids ambiguities and complexities as far as practicable by simple language, illustrations, comparative insights and incisive probes on fundamentals. They can be selective on issues and topics and need not be comprehensive on all aspects of a given theme.
The CJI is of the view that an authoritative series of RoL will be of enormous help to lawyers, judges, academicians, civil servants and general public as it is formulated with extensive inputs from various sources. When properly drafted RoL would reflect the consensus of the legal community as to what the law is and what it should become.
RoL on a subject will also restrict the practice of citing a string of old cases, every time a principle had to be stated.
For the three areas already selected, the committee will invite academicians, lawyers, judges and other scholars to act as authors, editors, advisers/consultants. They will prepare a draft report in each topic by the end of December this year. It will be considered by a sub-committee and after revision, wherever necessary, will be published by the ILI in a month’s time inviting comments, debate and discussions from the legal world.
Thereafter the relevant suggestions and comments received from the public would be placed before a full committee of judges for incorporating them in the draft report and the final report is expected to be published as a book before the retirement of Mr. Balakrishnan in May 2010.
Source:- Aug 23, 2009

http://www.hindu.com/2009/08/23/stories/2009082354950800.htm

Bid to trademark "tweet" fails:Other companies file for trademarks of similar words

NEW YORK: The word ``tweet'' may have entered the international lexicon thanks to an explosion in 140-word microblogging messages, but an attempt by Twitter's founders to trademark it has been rejected.
Twitter applied to the U.S. patent and trademark office last month for ownership of the word but the request was provisionally denied on the grounds that other companies had filed for trademarks of very similar words.
The authority cited three applications by firms called TweetMarks, Cotweet and Tweetphoto, and said there was a ``likelihood of confusion'' between the various marks.
The ruling is a setback to Twitter's co-founder Biz Stone, who is keen to protect the rapidly growing language surrounding the service.
In a blog last month, Mr. Stone told users that Twitter-related applications that included the word tweet, such as Tweetdeck, Tweetboard and Tweetie, were not a problem.
``We have applied to trademark tweet because it is clearly attached to Twitter from a brand perspective but we have no intention of `going after' the wonderful applications and services that use the word in their name when associated with Twitter,'' he said.
Since Twitter's launch three years ago, the word tweet has achieved a degree of respectability.
To tweet was recently added to the Associated Press's style guide as a verb. Australia's Macquarie dictionary added tweeting to its latest edition. - c Guardian Newspapers Limited, 2009
Source:- Sunday, Aug 23, 2009
http://www.hindu.com/2009/08/23/stories/2009082355711500.htm

'Docs not liable for death if patient conceals case history'—National Consumer Dispute Redressal Commission

Doctors can escape liability for death due to alleged medical negligence if the patient had concealed his previous medical history, the National Consumer Commission has ruled.
"Withholding and suppressing the material facts of the case history of the patient to the doctor is unpardonable conduct of patient or relatives," the Commission comprising members K S Gupta and Rajyalakshmi Rao said.
The apex consumer body passed the order on a plea of the parents of a 16-year-old, Manujesh Mukherjee, who was suffering from a genetic disorder and died in 1996 even after due medication was administered by the doctors of the West Bengal-based Sanctoria Hospital.
His parents approached the Commission seeking a compensation of Rs 35.7 lakh from the doctors for their alleged negligence which led to their son's death.
It was alleged that the parents had withheld the medical history of the patient which proved fatal for him as doctors did not know of his previous illness and line of treatment administered to him in a hospital at Vellore.
"Doctors can not be expected to know the medical history of the patient on their own, unless it is brought to their notice by the patient and their relatives," the Commission noted.
Non-disclosure of material facts to the doctors while seeking their medical service, in our view, is atrocious, the Commission said.
It expressed dismay over demands of exaggerated compensation from doctors by unfair means and advised consumers to come to the consumer fora with clean hands.
"Doctors are subjected to mental agony when their professional conduct is being questioned by unreasonable demands made by complainants only to extract exaggerated compensation through undue means. Previous medical history of the patient is a "must" to be produced before the doctor while availing their service," the Commission said.
"The doctors suffered in the hands of such insensitive, irresponsible and greedy complainants and we have scant regard for such citizens of this country," it said.
Patients or complainants should come to the consumer fora only with clean hands for availing the mechanism available under the Consumer Protection Act, the Commission said.
The apex consumer body while referring to the case said that the complaint of medical negligence is merely based on surmises and there is no prima facie evidence to establish any case of negligence.
The Commission observed that if the previous history of the patient was not concealed, the doctors could have definitely addressed to the case and would have treated the patient accordingly.
It held that the doctors have considered all the clinical aspects which they had seen at the time of diagnosing the disease of the patient and absolved them from any medical negligence.

Source:- 23 August 2009

http://timesofindia.indiatimes.com/news/india/Docs-not-liable-for-death-if-patient-conceals-case-history/articleshow/4924316.cms

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UP accounts for 20% of 3cr pending court cases

If the PM’s proposed war against the scourge of a three crore pendency in courts were to begin somewhere, Uttar Pradesh should be the place. For it accounts for 61 lakh pending cases, that is 20% of the cases pending in high courts and trial courts across the states.

The Allahabad high court, the largest in the country with a sanctioned strength of 160 judges, faces a piquant situation. Nearly 45% of judges posts, that is 72, are vacant even though the HC accounts for 9,35,425 pending cases out of an all-India total of 39,55,224 pending in all HCs, which is 23.65%.

Latest statistics released by the Supreme Court on Thursday with a cover note from the Chief Justice of India K G Balakrishnan saying, “Filling up of more vacancies in HCs and subordinate courts will go a long way in reducing the pendency in these courts”, presents an equally pitiable condition in the trial courts in the BSP-ruled state.

The state has sanctioned 2,181 judicial officers’ posts for the trial courts, but 25%, that is 538 posts, are lying vacant. Not surprisingly, these courts account for 19.57%, that is 52.36 lakh, of the country-wide pendency of 2.67 crore civil and criminal cases pending in the subordinate judiciary. Though the CJI has hoped that filling up of vacancies would go a long way in reducing the pendency, it is the collegium headed by him which alone can initiate the process for appointment of HC judges.
Source:- The Times of India 21 August 2009 P.15 Delhi
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Why is a man who has raped his wife treated leniently even though rape laws for others lay down stringent punishment?

Even as Delhi High Court is yet to take a stand on the issue of contradictory child marriage law making an underaged pregnant teenager languish in a Nari Niketan for months, the girl’s father is waiting for the court to hear his petition against some archaic provisions under Section 375 (definition of rape) and 376 (punishment for rape) of the IPC that provide for lesser punishment for marital rape of a minor.

Mahadev, father of Anamika (name changed), had filed a writ petition in 2008 seeking striking down of the sub-sections of Section 375 and 376 which do not consider rape of a woman by her husband as a crime. He had also challenged Section 6 (C) of Hindu Minority and Guardian Act and Section 198(6) of CrPC stating they were unconstitutional and violative of his and his daughter’s fundamental rights. which will hear the matter on Friday. On earlier hearings, the two-judge bench had decided to wait for the full bench order on the child marriage laws before dealing with the issue. However, with the passing time, the HC also issued notice to the union of India, which also failed to file a reply on three occasions. On the last hearing, the Union of India finally came up with a reply. The government contended that the law commission of India had already examined the matter in its 172nd report and recommended for exhaustive changes in the rape laws. On Mahadev’s contention, the commission rubbished it by saying that excessive interference in the marital life would lead to discord in the social harmony in society.

Counsel Arvind Jain said that instead of relying on law commissions 205th report on the basis of which PCMA was amended, UOI has taken notes from the old 172nd report. In the 205th report, the consent age has been raised till 18 and exception to section 375 has also been recommended to be deleted.

THE CURRENT PROVISIONS

Section 375 of the IPC states that a man has committed ‘rape’ If he has sexual intercourse with a woman without her consent

With or without her consent when she is under 16 years of age Exception Sexual intercourse by a man with his wife who is not under 15 years of age

PUNISHMENT

Not less than 7 years but which may be for life or for a term which may extend to 10 years along with fine

Exception If the victim is wife of the accused and is not under 12 years of age, he will be punished with imprisonment of not more than two years or fine or with both

Feeling aggrieved as the provisions under the changed Prevention of Child Marriage Act (PCMA) led to ambiguities as the government failed to amend other related laws, Mahadev had challenged the legality of an exception provided in Section 375 in keeping with the old notion that all child marriages were not necessarily void. The exception grants immunity against a rape charge to husbands of underaged girls between 15 and 18. In the petition filed through counsel Arvind Jain, it was stated that under Section 376, a man raping his own wife was no offence, whereas, if the wife is between 12-15 years of age, the husband is entitled to a special discount and will only be punished for maximum of two years punishment. Mahadev asked the HC to strike down the general exception as under the new PCMA, a child marriage based on kidnapping was invalid from the very beginning.

The matter has now been referred to a full bench
Source:- The Times of India 21 August 2009 P.7 Delhi
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A court hearing a domestic violence case need not wait for a report filed by the protection officer before awarding interim compensation

In a major relief to battered women, Bombay High Court on Monday ruled that a court hearing a domestic violence case need not wait for a report filed by the protection officer before awarding interim compensation. Justice R Y Ganoo said courts that deal with domestic violence cases can take a decision on the basis of records filed before it.

‘‘If the trial court, which is required to pass an order, keeps on waiting for the report of the protection officer, it would entail delay and the idea of considering the case of a needy person at the interim stage will be actually defeated,’’ said Justice Ganoo, while dismissing an application filed by an Amravati resident who claimed that the report was mandatory. The court upheld an order of the trial court asking him to pay Rs 1,800 to his wife and child every month as interim maintenance.

Under the Domestic Violence Act, 2005, a woman or a protection officer or a third party can file a complaint alleging abuse before the magistrate. The magistrate after hearing the parties can pass an interim order asking the man to pay compensation or monthly maintenance for the injuries caused to the woman.

The act has a clause which says that the magistrate shall before passing such an order take into consideration ‘‘any domestic incident report received from the protection officer’’. ‘‘Report from the protection officer has to be gathered and it would assist the court for the purposes of doing complete justice in the matter. At the same time, it is expected that the trial court has to pass an interim order early,’’ said Justice Ganoo.
Source:- The Times of India 18 August Page 17 Delhi

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Once an employer suspends an employee, subsistence allowance will be payable

Contributed by Deepak Miglani

A suspension is an action which places an employee for disciplinary reasons in a temporary status without duties and pay. A suspension, regardless of duration, is a significant action and considered a severe disciplinary action.

Subsistence allowance forms the terms of employment and close as not contingent on actual work but during pendency of enquiry even through the worker is not working, he gets the allowance. Subsistence allowance is , in fact, nick name for “ reduced wages or reduced salary”. Consequently, the subsistence allowance is part of wages under clause (vi) of Section 2 of the Payment of Wages Act.

It does not amount to deduction of wages hence the claim for deduction of wages would not be maintainable under Section 15 of the Payment of Wages Act. Once an employer suspends an employee, it becomes his duty to pay subsistence allowance and under Model Standing Orders, there is express provision which entitles the workman for the subsistence allowance.

When an employee is suspended , his contract of service is not rescinded and the relationship of employer and employee subsists.The Suspension of an employee merely prohibits an employer from giving any work to the employee during the disciplinary proceedings.

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ORDERS TO PAY $290 MILLION IN DAMAGES :Court bars Microsoft from selling ‘Word’ in US

An American court has asked Microsoft to pay damages worth $290 million to Canadian entity i4i for patent infringement related to Microsoft Word and has restrained the software giant from selling the product in the United States.

The litigation is related to patent infringement of Extensible Markup Language (XML) used in Microsoft Word. Canada-based technology firm i4i claimed that it had the patent for ‘custom XML’ used in Word.

‘‘The final judgement is an award in excess of $290 million and includes a permanent injunction against Microsoft Corporation for custom XML in Word 2003 and Word 2007,’’ i4i said in a statement. An XML is a mark-up language XML, which offers editing capabilities and formatting of text, among others.

The verdict on the case was given by the US district court for the eastern district of Texas. This follows a decision by the jury in May which said Microsoft infringed on the patent.

Moreover, the court has restrained Microsoft from ‘‘selling, offering to sell and/or importing in or into the US any infringing and future Word products that have the capability of opening a .XML, .DOCX or .DOCM file containing custom XML,’’ the statement said.

The restrain would be effective after 60 days of the verdict, which was given on August 11. Microsoft said that it was disappointed with the verdict and would appeal against the same. ‘‘We are disappointed by the court’s ruling. We believe the evidence clearly demonstrated that we do not infringe and that the i4i patent is invalid. We will appeal the verdict,’’ Microsoft spokesperson Kevin Kurtz said.

Meanwhile, Michel Vulpe who is the founder of i4i said the company was ‘‘very pleased with the terms of the final judgment’’.

‘‘The financial award due to i4i is now over $290 million and a permanent injunction has also been issued against Microsoft... We feel vindicated with the result,’’ i4i founder Vulpe noted
Source:- The Times of India 15 Aug. 09 Page No. 28 Delhi
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SC issued notice to Moser Baer on income tax liability to the tune of Rs 2,978 crore

The Supreme Court has issued a notice to Moser Baer India Ltd on why it should not be asked to pay income tax to the tune of Rs 2,978 crore.A Bench headed by Justice S H Kapadia sought the reply from the manufacturer of computer-related products, including floppies and compact discs, on the income tax department’s plea alleging that the company had evaded tax in 2000-01.

The department said the company was not entitled to deduction even though the value of export of CDs was less than 75 per cent of the total sales made during 2000-01.

It said the Delhi High Court should have appreciated that the assessing officer was right in observing that Moser Baer under its export obligations under the EXIM policy was treating the stock transfer as export and FOB invoice value as sales, whereas the stock transferred to its Rotterdam branch remained part of its closing stock, thus increasing its gross profit.

Additional Solicitor General Mohan Parasaran and Gaurav Dhingra said the High Court was wrong in holding that the stock transfer to the company’s Rotterdam unit was to be treated as deemed export sales out of India. According to both, there was no actual sale and no realisation in convertible foreign exchange during the year took place.

Citing Moser Baer’s profit and loss statement account, the government said if there was a sale to a foreign branch, then why was the stock transferred entry reversed in the books of account at the end of the financial year. “This doubt was supported by the fact that the assessee had deliberately furnished the information regarding the amount of remittance received in foreign exchange.

“This logically leads to the conclusion that no actual sales have been made by the company to its Rotterdam unit and the assessee was wrongly claiming exemption under Section 10A/10B merely on the basis of entries of stock transfer,” the petition stated.

Moser Baer had claimed deduction under Section 10B of the Income Tax Act in all its three units.Out of total sales of Rs 148.75 crore, the assessee had claimed export sales amounting to Rs 73.45 crore and the entries in respect of stocks export transferred to Rotterdam office were shown reversed in its books.

Thus, Moser’s direct export sales were only Rs 73.45 crore and the remaining sales of the exempted units were only on account of stock transfer to a foreign unit.

While the assessing officer had disallowed the claim of the transfer of the stock from one branch to another on the ground that no actual sales were made for this amount, the Commissioner of Income Tax (Appeals) had held in favour of the assessee, holding that deduction should be given if the stock transfer was made by one branch to another and should be treated as export sales.

The Income Tax Appellate Tribunal had upheld the Commissioner’ s order holding that the goods transferred by the Indian branch to its foreign branch was a transfer to a separate entity and hence eligible for exemption.Source:- http://www.taxguru.in/income-tax/sc-issued-notice-to-moser-baer-on-income-tax-liability-to-the-tune-of-rs-2978-crore.html

Sentences of former UCO Bank Chairman and close associates of Harshad Mehta confirmed by Apex Court

THE key accused of 1992 Stock market scam, Harshad Shantilal Mehta, is no more, but many other accused closely associated with his firms and co-conspirators from PSU banks are very much alive and their sentences given by the Special Court have been confirmed by the Apex Court in its latest ruling. True, Harshad Mehta and others were guilty of defrauding public banks for personal gains but the offence committed by the then UCO Bank Chairman has been found to be more serious as he despite being a public servant, conspired against the interests of the Bank.While pronouncing the order the Supreme Court has noted that since the CBI has not preferred any appeals for enhancement of punishment rendered by the Special Court, the Apex Court therefore cannot impose a higher sentence. The Bench preferred not to interfere with the punishment given to K Margabandhu who was sentenced to undergo RI for a period of six months and to pay a fine of Rs one lakh in default to undergo SI for two months.
Similarly, one of the senior bank officials Ramaiya Venkatkrishnan had been sentenced to undergo rigorous imprisonment (RI) for three months and to pay a fine of Rs. 50,000/- in default simple imprisonment (SI) for 15 days, by the Special Judge. The SC set aside the sentence of the special judge and sentence him to imprisonment for a period of one month of RI and to pay a fine of Rs.1,00,000/ – and in default thereof Simple Imprisonment for 15 days.
Harshad Mehta’s close associate Ashwin Mehta is sentenced to undergo RI for a period of one month and to pay a fine of Rs.1,00,000/ – in default Simple Imprisonment for 15 days.
Sudhir Mehta is sentenced to undergo Rigorous Imprisonment for a period of one month and to pay a fine of Rs.1,00,000/ – in default Simple Imprisonment for 15 days.
The SC has also held that all the accused will be entitled to set off for the period of imprisonment undergone by them in this case. In other words, since all these accused have already suffered incarceration in the beginning of the scam, they are going to claim set off for the same against the sentences given and will not require to go behind the bars.
Source:- http://www.taxguru.in/general-info/sentences-of-former-uco-bank-chairman-and-close-associates-of-harshad-mehta-confirmed-by-apex-court.html 13 August 2009
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Cash reward scheme for Income Tax officers is bad in law and unconstitutional

The cash reward scheme for officers of the Investigating Wing of the Income Tax Department is bad in law and ultra vires the Constitution, the Kolkata Bench of the Central Administrative Tribunal has held.
A Bench consisting of K.V. Sachidanandan, Vice-Chairman, and Champak Chatterjee, Administrative Member, quashed the scheme introduced by a Central Board of Direct Taxes Circular, dated November 6, 1985, to the officers per case of detection of tax evasion.
The Tribunal said: “Tax evasion is not a new phenomenon, and the propensity to evade payment or under-payment of tax is common all over the world. It has existed since the taxing system was introduced in our country long long ago. For detection of any unaccounted money which is commonly known as ‘black money,’ the Income Tax Department is equipped with competent officers, who undertake search and seizure operations either on their own initiative or on receipt of information or tip-offs from informers or sources.”
The Bench said: “Such government officials are performing their official duties, for which they are paid an appropriate pay and allowances as prescribed under the rules, and such duties are also conditions of their service. In such circumstances, payment of reward per case of detection of unlawful evasion of tax is wholly unwarranted and uncalled for.
“Payment of reward to outsiders who act as a source or informer can be understood, as they stand on a different pedestal, but it is not understood why payment of reward/commission is to be made to the government officials over and above their monthly salary for performing their prescribed statutory duties? That too without liability to pay income tax, though it is their income. Why this benevolence?”
In the instant case, Samir K. Ghosh, who retired as Additional Commissioner of Income Tax, Kolkata, claimed Rs.7,46,320 as a cash reward during 1992-96 with respect to six cases, as against Rs. 2,80,244 paid to him.
The Tribunal rejected the plea, saying it would be open to the government if it so desired to explore an alternative means of recognising commendable work done by officials.
Source:- http://www.taxguru.in/income-tax/cash-reward-scheme-for-income-tax-officers-is-bad-in-law-and-unconstitutional.html Aug 12, 2009

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SC accepts CIC order to disclose info under RTI

To Reveal Action Against HC Judge

The Supreme Court on Tuesday agreed before the Delhi high court to disclose information on the action taken by the Chief Justice of India on a complaint filed against a sitting Allahabad high court judge. Taking a U-turn from its earlier stand that no information with the CJI could be revealed under RTI Act, Attorney General G E Vahanvati, appearing for Supreme Court registry, said although he does not accept the ‘‘correctness’’ of Central Information Commission’s judgment, the information would be provided under the transparency act.

He also informed the court that no action had been taken on the complaint against Allahabad high court sitting judge.

The CIC had on July 16 held that the Chief Justice of India and the registry are one and the same institution and information available with the CJI would be deemed to be available with the Supreme Court of India and that the matter fell within the purview of the RTI Act.

The commission passed the order on the plea of a 77-yearold RTI applicant P K Dalmia who sought to know the fate of his complaint, filed with the CJI, regarding some alleged malpractices by a sitting judge in the liquidation case of UP State Cement Corporation Limited.
Source:- The Times of India 12 Aug. 09 Page No.16 Delhi

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No extradition of NRIs in kidnap cases in Matrimonial Dispute

One has heard this too often. An NRI father or mother accusing the other partner of kidnapping their children back to India in breach of a foreign decree and cocking a snook around the consequent Red Corner Notice issued by Interpol.

Is not the CBI, the Interpol partner in India, obliged to act upon such a Red Corner Notice (RCN), arrest the offending parent and extradite him/her to the foreign country to face trial there?

No, says the Supreme Court which would appear as a virtual thumbs up for the parent who slips out of the foreign country with the child and lands in familiar shores where the litigation takes years before being finally adjudicated.

Reversing the Bombay High Court's arrest order on the basis of an Interpol RCN issued against one B J Lakhani who allegedly came to India from US with his daughter despite a restrain order from a Clayton County Magistrate Court in Georgia, a Bench comprising Justices S B Sinha and M K Sharma on Friday said an Interpol RCN could not be a ground for arrest.

In the absence of an extradition request from the US or a foreign country, there could be no arrest merely on the basis of an Interpol RCN, the Bench said accepting a clear stand from the ministry of external affairs (MEA).

The chances of extradition of the kidnapping parent is slimmer even when the foreign country places such a request as the SC recorded the MEA's stand that "kidnapping in case of matrimonial dispute per se is not considered to be an extraditable offence". Thus, the aggrieved parent has to come to India to pursue her remedies before the judiciary.

Coming to Lakhani's rescue, MEA said, "Even violation of an order passed by the court of competent jurisdiction in US being punishable for six months only, Lakhani could not be extradited for commission of the said offence."

MEA said that on receipt of an RCN, it was not the practice to arrest the person immediately but only to trace him. "The consideration of the question of arrest and extradition would be within the framework of domestic law including the Indian Extradition Act and the Extradition Treaty with the requesting country," it said.

Lakhani had married H Thakker on April 6, 2002 at Mumbai. After marriage, they moved to California where their daughter was born in April 2003. Alleging matrimonial harassment, Thakker moved courts in USA and sought divorce. During the pendency of the proceedings, the family court at Massachusetts passed an order of temporary custody of the child, restrain and abuse prevention order in her favour.

In April 2006, Lakhani allegedly forged Thakker's consent to take the daughter back to India. After he left, she complained to the police alleging abduction and an arrest warrant was issued. The trial court also passed a decree of divorce and custody of the child in her favour in May 2006.

She also moved a family court in Mumbai in May 2007, which allowed her custody of the child. Lakhani appealed in the HC which stayed the trial court order.

Meanwhile, the Atlanta city police and American court issued warrant of arrest against Lakhani, which was transmitted through Interpol to the Indian government. Lakhani moved the Bombay HC challenging the legality of the arrest warrant and sought stay of the RCN. The HC refused to tinker with the RCN. Lakhani then appealed against the HC order in SC.

After deciding that the RCN could not be a ground for Lakhani's arrest, the SC left the adjudication of the dispute between the husband and wife over the custody of their daughter to the Bombay HC, where the appeal is pending.
Source:- http://timesofindia.indiatimes.com/news/india/No-extradition-of-NRIs-in-kidnap-cases/articleshow/4871937.cms 9 August 2009

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SEBI decided to facilitate setting up of Separate stock exchange for Small and Medium Enterprises (SMEs)

Securities and Exchange Board of India (SEBI) which recognises and regulates Stock Exchanges, has decided to facilitate the setting up of separate stock exchanges or a platform in the existing stock exchanges dedicated to the Small and Medium Enterprises (SMEs).

The objective is to make available equity capital at lower cost for small and medium scale industries. SEBI has already put in public domain the framework for recognition and supervision of stock exchanges/platforms of stock exchanges for small and medium enterprises. Pursuant to this, applications have been received by SEBI.
This information was given by Minister of State for Finance, Shri Namo Narain Meena in written reply to a question raised in Lok Sabha today.
Source:-http://www.taxguru.in/sebi/sebi-decided-to-facilitate-setting-up-of-separate-stock-exchange-for-small-and-medium-enterprises-smes.html
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SEBI asked finance ministry to revoke rule that bars SEBI officials sitting as members at the SAT

Capital market regulator Securities and Exchange Board of India (Sebi) has asked the finance ministry to revoke a rule that bars Sebi officials sitting as members at the Securities Appellate Tribunal (SAT), which hears appeals against Sebi orders, a Sebi official said.
“There is no such bar on officials of other regulators like the Insurance Regulatory and Development Authority and Pension Fund Regulatory Development Authority, but Sebi officials are not allowed to become SAT members on grounds of conflict of interest,” said another Sebi official, who did not want to be named because this involves a regulatory issue.
“Among various other proposals, there is a proposal with the Central government to allow appointment of SAT members from Sebi,” said the official mentioned first, who also requested anonymity. “This could be a long-term process and may take some time.”
“If the proposal is accepted by the government, a separate Bill will be introduced in Parliament in order to make related amendments to the Securities Laws,” the first Sebi official said. “This Bill is yet to be prepared.”
A finance ministry official confirmed that a Bill on the proposal is yet to be drafted. He, too, declined to be named.
SAT comprises one presiding officer and two judicial members. All three members, appointed by the Union government, must give their consent to any decision. Only a sitting or retired judge of the Supreme Court or a sitting or retired chief justice of a high court can become a presiding officer.
To improve the functioning of SAT, Sebi has also proposed that the number of SAT members be increased to seven from two. The regulator has suggested that two members out of these seven could be appointed as judicial members, while the rest could be given the role of regulatory members under the presiding officer.
According to the Sebi proposal, since SAT hears appeals against the regulator, it would be useful to have members with experience of the markets. However, to allow Sebi members to join SAT, the government will have to change parts of the Securities and Exchange Board of India Act, 1992, to avoid any potential conflict of interest arising from their Sebi tenure.
“The basic presumption is when you are in an organization and then go to an appellate body, there will be a bias. But there is a counter-argument for this,” said C. Achutan, a former presiding officer of SAT.
The Sebi Act bars all senior Sebi officials—of the rank of executive director and above—from becoming SAT members. The moratorium extends to two years after a board member ceases to hold office.
Appointment norms are less stringent for other tribunals than they are for SAT. “If you look at the structure of ITAT (Income Tax Appellate Tribunal), commissioners are appointed as ITAT members, or at CAT (Central Administrative Tribunal), retired government secretaries are appointed. If that can be done then why not SAT?” asked Achutan. “So the proposal needs to be examined carefully. In all fairness, there is enough to discuss.”
Following an earlier Sebi proposal, draft legislation was introduced in the Lok Sabha on Monday to increase the upper age limit for SAT members to 65 from 62. The Securities and Exchange Board of India (Amendment) Bill, 2009, if passed in Parliament, will supersede the Sebi Act of 1992.
Source:-http://www.taxguru.in/sebi/sebi-asked-finance-ministry-to-revoke-rule-that-bars-sebi-officials-sitting-as-members-at-the-sat.html

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Company Secretary may be allowed to issue certificate validating compliance with the numerous employment laws

While the Manmohan Singh government’s Left-free second innings is expected to usher in changes to India’s archaic labour laws, the labour ministry is working on a quick-fix solution to help drop the country’s notorious ‘inspector raj’ tag. If all goes to plan, India Inc would no longer have to deal with labour inspectors turning up at their premises to check compliance with 43 central and myriad state labour legislations. Instead, firms can submit a certificate from a company secretary that validates their compliance with the numerous employment laws.
“Currently, inspectors go on-site to verify compliance with labour laws. We are talking to the Institute of Companies Secretaries of India (ICSI) to permit company secretaries to file compliance reports for labour laws, just like they give compliance reports for other laws. Officials can then selectively pick up firms for inspections. So, the inspector raj per se will go down dramatically,” Union labour secretary Sudha Pillai told FE.
To entrust the responsibility of submitting labour law compliance reports to companies secretaries, the ministry is working out the amendments required to the relevant laws. “We have discussed the idea with the Cabinet Secretariat and the government is enthusiastic about it. A Cabinet note to this effect will be submitted very quickly and we hope to get it cleared soon,” she said.
Company secretaries are now responsible for certifying a firm’s compliance with various statutes, including the Companies Act, 1956 and the listing agreement with stock exchanges. Recently, the Reserve Bank of India has mandated firms with multiple bankers and credit limits of over Rs 5 crore to get due diligence done by company secretaries.
While ICSI’s governing council refused to comment, a senior official at the body said the proposed change is a win-win for industry, employers and regulators. “If we find gaps in compliance with labour laws, we will bring it to the notice of the management and the board of directors for action. So workers will be protected and authorities’ can focus on bigger labour issues,” a senior ICSI member said.
The new regime is expected to boost India’s global perception too. “At most international fora, the pathetic compliance levels of Indian labour laws, especially in small and medium enterprises and the services sector. Our labour laws were made purely for industry, but services now contribute over 55% of GDP and operate under a vague Shops & Establishments Act. Many countries are using labour issues to put up non-tariff barriers against Indian imports,” the member stressed.
Source:- http://www.taxguru.in/icsi/company-secretary-may-be-allowed-to-issue-certificate-validating-compliance-with-the-numerous-employment-laws.html

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Armed Forces Tribunal inauguration tomorrow

Set up to provide a judicial forum to armed forces personnel to redress their grievances the tribunal will be inaugurated formally on Saturday
President Pratibha Patil will on Saturday inaugurate the Armed Forces Tribunal, providing a judicial forum to about 2.5 million armed forces personnel and ex-servicemen to redress their grievances, thus lessening the burden on various courts.

"The president will inaugurate the tribunal tomorrow. Aggrieved armed forces personnel will now be able to appeal against sentences handed down by the court-martial. The tribunal will also have powers to grant bail to any person in military custody," a Defence Ministry official said here on Friday.

The tribunal will be functional once the government issues the notification in this regard.

Set up by an Act of Parliament in December 2007, the tribunal will have its principal bench in New Delhi and eight regional benches across the country.

It will have 15 courts in all — three each in New Delhi, Chandigarh and Lucknow and one each in Jaipur, Mumbai, Kolkata, Guwahati, Chennai and Kochi.

The tribunal will provide a judicial forum for redressal of grievances of about 1.3 million strong armed forces personnel and another 1.2 million ex-servicemen, reports IANS.

At present about 9,800 such cases are pending before various courts across the country, most of them with the High Courts.

"The tribunal will not only result in speedy and affordable justice to the men in uniform but also save the armed forces' resources in terms of manpower, material and time. The decisions of the tribunal can be challenged only in the Supreme Court," the official said.

The tribunal's Chairperson will be a retired or serving judge of the Supreme Court or Chief Justice of a High Court.

Justice AK Mathur, former Judge of the Supreme Court, has been appointed the tribunal's first Chairperson and has assumed charge on September 1last year.

Besides, each court will have a judicial member and an administrative member. The judicial member must be, or have been, a judge of a High Court while the administrative member would be officers of the rank of Major General or equivalent in either of the three services or an officer not lower than the rank of a Brigadier or equivalent who has rendered not less than one year of service as the Judge Advocate General of the army, navy or air force.

The government has already appointed eight judicial members and 15 administrative members, while seven judicial members are yet to be named.
Source:- http://www.igovernment.in/site/Armed-Forces-Tribunal-inauguration-tomorrow/

Please save me from my wife.........मुझे मेरी बीवी से बचाओ...

ऐसा नहीं है कि दहेज के लिए लड़कियों को सताने के मामले कम हो गए हैं। अब भी हर रोज कहीं न कहीं से दहेज उत्पीड़न की खबरें आती रहती हैं। दहेज हत्याओं का सिलसिला भी जारी है। हालांकि दहेज प्रताड़ना और घरेलू हिंसा का दूसरा पहलू भी कम चिंताजनक नहीं है। यह है दहेज कानून की आड़ में लड़के और उसके परिवारवालों को तंग करना , दहेज के झूठे मामले दर्ज कराना। महिलाओं की सुरक्षा के लिए बने कानूनों का धड़ल्ले से गलत इस्तेमाल हो रहा है। इसी का नतीजा है कि महिला मुक्ति की तर्ज पर पुरुष भी अपने हकों के लिए एकजुट होने लगे हैं। मंडे स्कैन में इसी के अलग - अलग पहलुओं को टटोल रही है पूनम पाण्डे की स्पेशल रिपोर्ट -
मजाक के लिए तराशे गए जुमले ' मुझे मेरी बीवी से बचाओ ' अब हकीकत बन चुके हैं। बीवियों के सताए पति त्रस्त होकर ऐसी गुहार लगा रहे हैं। ' दहेज और घरेलू हिंसा कानून की आड़ में अगर बीवी सताए तो हमें बताएं ' लिखे पोस्टर मेट्रो सिटीज में आम हो गए हैं। कुछ लोग पहचान छुपाकर अत्याचार का शिकार पुरुषों की मदद कर रहे हैं , तो कुछ सड़कों से लेकर कोर्ट तक और मीडिया से लेकर इंटरनेट तक के जरिए अपनी आवाज बुलंद कर रहे हैं।
2005 में तीन ऐसे ही लोगों से शुरू हुए ग्रुप के साथ अब दुनिया भर में एक लाख से ज्यादा ऐक्टिव मेंबर जुड़ चुके हैं। पढ़े लिखे , मैनिजमंट , आईटी , टेलिकॉम , बैंकिंग , सर्विस इंडस्ट्री , ब्यूरोक्रेट्स सरीखे सभी फील्ड के प्रफेशनल्स ने मिलकर ' सेव फैमिली फाउंडेशन ' बनाई है। इनका दावा है कि दिल्ली - एनसीआर में 5 लाख ऐसे लोग हैं , जो कथित तौर पर पत्नियों के पक्ष में बने एकतरफा कानून (498 ए और घरेलू हिंसा कानून ) से पीड़ित हैं या इसे झेल चुके हैं।
अत्याचार के शिकार पति इस बार स्वतंत्रता दिवस पारंपरिक तरीके से नहीं मनाने वाले हैं। देश भर से करीब 30 हजार लोगों के प्रतिनिधि के तौर पर अलग - अलग शहरों से सैकड़ों पति 15 अगस्त को शिमला में इकट्ठे हो रहे हैं। ये अत्याचार से आजादी के लिए रणनीति तैयार करेंगे। इनका मानना है कि ये स्त्री केंद्रित समाज में लगातार जकड़ते जा रहे हैं। इन्होंने ऐलान किया है कि ये तब तक स्वतंत्रता दिवस नहीं मनाएंगे , जब तक इनकी मांगें पूरी नहीं हो जातीं। इनकी मांगे हैं - महिला और बाल कल्याण मंत्रालय की तर्ज पर पुरुष कल्याण मंत्रालय बनाया जाए , घरेलू हिंसा एक्ट में बदलाव किया जाए और तलाकशुदा जोड़े के बच्चों की जॉइंट कस्टडी दी जाए।
मर्द को भी होता है दर्द
पुरुष घरेलू हिंसा के शिकार होते हैं या नहीं , इसे लेकर अब तक कोई सरकारी स्टडी नहीं हुई है , लेकिन ' सेव इंडियन फैमिली फाउंडेशन ' और ' माई नेशन ' की एक स्टडी के मुताबिक 98 फीसदी भारतीय पति तीन साल की रिलेशनशिप में कम से कम एक बार इसका सामना कर चुके हैं। इस ऑनलाइन स्टडी में शामिल 25.21 फीसदी शारीरिक , 22.18 फीसदी मौखिक और भावनात्मक , 32.79 फीसदी आर्थिक हिंसा के शिकार बने जबकि 17.82 फीसदी पतियों को ' सेक्सुअल अब्यूज ' झेलना पड़ा।
स्टडी रिपोर्ट में कहा गया कि जब पुरुषों ने अपनी समस्या , पत्नी द्वारा अपने और परिवार वालों के शोषण के बारे में बताना चाहा तो कोई सुनने को ही तैयार नहीं हुआ। उल्टा सब उन पर हंसे। कई ने स्वीकारा कि उन्हें किसी को यह बताने में शर्म आती है कि उनकी पत्नी उन्हें पीटती है। स्टडी में विभिन्न सामाजिक और आर्थिक वर्ग के लोगों को शामिल किया गया था। इसमें ज्यादातर मिडल क्लास और अपर मिडल क्लास के थे। ऐसे में सवाल उठता है कि जब पुरुष भी घरेलू हिंसा का शिकार बनता है , तो कानून में उसे संरक्षण क्यों नहीं मिलता। विकसित देशों की तरह घरेलू हिंसा ऐक्ट महिला और पुरुष के लिए बराबर क्यों नहीं है ?
498 ए के बारे में कुछ फैक्ट
- गिरफ्तार किए गए लोगों में से 94 फीसदी लोग दोषी नहीं पाए गए। ( प्री और पोस्ट ट्रायल )
- ट्रायल पूरा होने के बाद 85 फीसदी दोषी नहीं पाए गए , लेकिन इन्हें भी बिना किसी जांच के गिरफ्तार किया गया।
- यूपी के खीरी जिले में ही सात सालों में 498 ए के तहत 1000 नाबालिग लड़कियां बिना किसी जांच के गिरफ्तार की गईं।
- क्रिमिनल जस्टिस सिस्टम में रिफॉर्म्स को लेकर बनी जस्टिस मलिमथ कमिटी ने भी 2005 में अपनी रिपोर्ट में 498 ए को जमानती और कंपाउंडेबल बनाने की सिफारिश की थी।
कानून , मिसयूज और सुझाव
आईपीसी 498 ए
क्या है कानून - अगर किसी महिला को उसका पति या पति के रिश्तेदार दहेज के लिए प्रताडि़त करते हैं तो इसके तहत उन्हें तीन साल की सजा हो सकती है। इसके दायरे में दूरदराज के रिश्तेदार जैसे शादीशुदा बहन का पति ( चाहे वह वहां रहता हो या नहीं ) भी शामिल हो सकता हैं। यह संज्ञेय अपराध है। मतलब बिना कोर्ट के आदेश के पुलिस उनको गिरफ्तार कर सकती है जिनका नाम एफआईआर में है। यह गैर - जमानती है। कोर्ट से ही जमानत ली जा सकती है और कोर्ट पर निर्भर है कि कितने दिन में जमानत दे।
कैसे होता है मिसयूज - पुलिस बिना किसी जांच और सबूत के एफआईआर में नामजद लोगों को गिरफ्तार करती है। ससुराल पक्ष के लोगों को परेशान करने की नीयत से सबका नाम एफआईआर में डलवाया जा रहा है। जिन्होंने एफआईआर करवाई है , वह जमानत के लिए विरोध न करने के नाम पर मनचाही रकम वसूल रहे हैं। उन राज्यों में जहां लॉ ऐंड ऑर्डर की हालात ज्यादा खस्ता है , इसका सबसे ज्यादा मिसयूज होता है। यूपी में तो स्टेट अमेंडमंट हैं कि अंतरिम जमानत नहीं मिल सकती।
कैसे रुके मिसयूज - 498 ए में कोई भी शिकायत आए तो गिरफ्तारी तब तक ना हो जब तक कोई सबूत या साक्ष्य उपलब्ध न हों। एफआईआर में जो आरोप हैं ( जैसे - लाखों रुपये शादी में खर्च किए ) उसे साबित करने के लिए दो विटनस या डॉक्युमंट एफआईआर करते वक्त ही मांगे जाएं। अभी सिर्फ आरोप लगाना काफी माना जाता है। हालांकि उत्तराखंड जैसे कुछ स्टेट में प्रशासनिक स्तर पर बिना किसी ऑर्डर या नोटिस के इसे फॉलो किया जा रहा है। एफआईआर करने वाले को एफआईआर में शामिल लोगों से कोई मोटी रकम ना दिलाई जाए। इससे लालच बढ़ता है और मिसयूज की संभावना भी। दिल्ली हाई कोर्ट के जस्टिस एस . एन . ढींगरा के एक जजमंट पर दिल्ली पुलिस कमिश्नर ने गाइडलाइंस जारी की है कि एफआईआर में लाखों रुपये दहेज में देने के आरोप की जांच करें। अरेस्ट करने के लिए सीनियर पुलिस ऑफिसर की रिकमंडेशन लें और एफआईआर भी करें तो सीनियर पुलिस ऑफिसर की रिकमंडेशन लें।
डोमेस्टिक वॉयलंस ऐक्ट 2005
क्या है कानून - इसमें महिला अपने साथ हुए फिजिकल , इमोशनल , इकॉनमिक , सेक्सुअल वॉयलंस की शिकायत कर सकती है। शिकायत करने वाली महिला कोर्ट से संरक्षण , रहने के अधिकार , बच्चे की कस्टडी और मेंटेनेंस को लेकर ऑर्डर मांग सकती है। यह संज्ञेय या असंज्ञेय के तहत नहीं आता। कोई भी महिला पुलिस से , कोर्ट से या प्रोटेक्शन ऑफिसर से शिकायत कर सकती है। इसमें स्पीडी ट्रायल होता है। कोर्ट 60 दिनों के भीतर केस खत्म करने की कोशिश करती है।
कैसे होता है मिसयूज - अगर कोई लड़की यह शिकायत करे कि उसे घर में मारापीटा जा रहा है और घर से निकाल दिया है , तो वह कोर्ट से इस कानून के तहत रेजिडंस राइट मांग सकती है। झूठे आरोप लगाकर कोई भी लड़की ससुरालवालों को घर से बाहर निकलवा सकती है। इमोशनल वॉयलंस का आरोप लगा सकती है , जिसका कोई पैमाना नहीं है।
कैसे रुके मिसयूज - यह कानून अमेरिका के कानून की तर्ज पर बनाया गया , लेकिन वहां यह कानून जेंडर न्यूट्रल है। वहां बिना जांच पड़ताल और बिना सबूत के कोई ऐक्शन नहीं लिया जाता। हमारे कानून में इसका जिक्र नहीं कि किस तरह इसकी जांच हो। मिसयूज रोकने के लिए जांच की एक प्रक्रिया बनाई जा सकती है और इसे महिला , पुरुष के लिए समान बनाया जा सकता है। ( सुप्रीम कोर्ट में एडवोकेट महेश तिवारी से बातचीत के आधार पर )
'498A.org' नाम से बने एक ग्रुप को ऑनलाइन मिलीं तीन शिकायतें
पीड़ित -1, नई दिल्ली मैं एक सरकारी कर्मचारी हूं। शादी के बाद मैं , मेरी पत्नी और मेरे पेरंट्स साथ रहते हैं। दिक्कत तब शुरू हुई जब मेरे भाई का यहां ट्रांसफर हो गया। तब पिता ने हमें एक दूसरा बड़ा कमरा देकर उस कमरे को छोटे भाई को दे दिया। तब मेरी पत्नी घर पर नहीं थी। जैसे ही वह आई तो मेरे पेरंट्स पर चिल्लाने लगी कि उसका कमरा क्यों चेंज कर दिया है। उसने बेहद गलत शब्दों का इस्तेमाल किया और अपने और मेरी मां के गहने , जो उसे पार्टी में पहनने के लिए दिए थे , लेकर अपने मायके चली गई। एक महीना हो चुका है। मैं जब भी उससे बात करता हूं तो वह कहती है , हम अकेले रहेंगे। मैं अपना परिवार नहीं छोड़ना चाहता। शादी के बाद से वह हर रोज अपनी मां से मिलने जाती थी। उनका घर हमारे घर से 5-6 किलोमीटर दूर है। जब कभी मैं उसे वहां न जाने को कहता तो वह मुझे खुदकुशी की धमकी देती। अभी वह प्रेग्नंट है और अब उसके घर वाले अफवाह फैला रहे हैं कि हम उसे मारते थे और हमने उसे घर से बाहर फेंक दिया। आप बताइये मैं क्या करूं ? बेहद परेशान हूं।
पीड़ित - 2, मुंबई शादी के बाद ही मेरी पत्नी ने मुझसे कहा , मैं हैंडसम नहीं हूं और वह मुझसे संतुष्ट नहीं है। उसने कहा कि उसने अपने भाइयों की डर से मेरे साथ शादी की क्योंकि उन्होंने मुझे चुना था , लेकिन यह बात वह अपने घर वालों के सामने नहीं कहती। उसने झूठा इल्जाम लगाकर मुझे 498 ए में फंसा दिया। मैं एक साल जेल में रहा। मैंने अपर कोर्ट में अप्लाई किया और हमारे बीच समझौता हो गया। अब मैं अपनी पत्नी और उसके पैरंट्स के साथ उनके घर पर रहता हूं। अब फिर वही हाल शुरू हो गया है। वह मुझ पर चिल्लाती है , गाली देती है और मेरी सारी सैलरी ले लेती है। मैं अपने मां - बाप का इकलौता बेटा हूं। वह मेरे साथ नहीं रहना चाहती। उसकी मां और भाई धमकाते हैं कि उसके साथ ही रहूं , नहीं तो वह फिर 498 ए के तहत शिकायत कर देंगे। मैं कैसे इससे बाहर निकलूं ?
पीड़ित - 3, मेंगलूर मैं एक कंस्ट्रक्शन कंपनी में काम करता हूं। कभी - कभी काम के सिलसिले में बाहर जाने पर पत्नी को अपने पेरंट्स के साथ छोड़ता हूं। लेकिन यह उसे अच्छा नहीं लगता। उसे लगता है कि मैं उसकी केयर नहीं करता। मैं अपने परिवार के साथ रहना चाहता हूं , लेकिन वह इसके लिए तैयार नहीं है। एक दिन वह पुलिस स्टेशन गई और शिकायत दर्ज करा दी कि मैं उसे पीटता हूं और मैं और मेरे परिवार वाले उसे दहेज के लिए परेशान करते हैं। हकीकत यह है कि मेरा काफी पैसा बहुत समय तक उसके पिता के पास था जो उन्होंने अपने बेटे की शादी में इस्तेमाल किया। पुलिस हमारे घर आई और हम सब को पुलिस स्टेशन ले गई , लेकिन हमारे कुछ कॉन्टेक्ट थे , इसलिए लंबी बहस के बाद केस रजिस्टर्ड नहीं हुआ। तब उसके पेरंट्स भी मौजूद थे। तब से मैं शर्मिन्दगी महसूस करता हूं। अपनी पत्नी से बात करने का मन नहीं करता , जबकि वह मेरे साथ ही रह रही है।
Source:-http://navbharattimes.indiatimes.com/articleshow/4851658.cms 3 Aug 2009
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Kicking daughter-in-law or divorce threat not cruelty: SC

A husband and his relatives cannot be prosecuted for "cruelty" towards wife merely because the mother-in-law or other family members had kicked her or for that matter threatened her with divorce, the Supreme Court has held.
Similarly, if a mother-in-law gives constant sermons to the daughter-in-law or allegedly treated her shabbily by giving her used dress suits, it does not invite prosecution under Section 498A of the IPC, a bench of Justices S B Sinha and Cyriac Joseph said.
However, if the mother-in-law takes away the gifts given to the couple at the time of the marriage, it amounts to "breach of trust" as specified under Section 406 IPC, the apex court said while dealing with an appeal filed by South Africa-based NRI husband and in-laws in a matrimonial dispute case.
"Allegations that appellant No 2 (mother-in-law) kicked the respondent (daughter-in-law) with her leg and told her that her mother is a liar may make out some other offences but not the one punishable under Section 498A.
"Similarly her allegations that the appellant No 2 poisoned the ears of her son against the respondent; she gave two used lady suits of her daughter to the complainant (daughter-in-law) and has been giving perpetual sermons to the complainant could not be said to be offences punishable under Section 498 A", it said.
The bench said "even threatening that her son may be divorced for the second time could not bring out the offence under Section 498A of the IPC".
Under Section 498-A "Whoever, being the husband or the relative of the husband of a woman subject such a woman to cruelty shall be punished with imprisonment for a term which may extend to three-years and shall also be liable to fine."
In this case, the daughter-in-law Monica had filed cases of cruelty and breach of trust against her South-Africa based husband Vikas Sharma, his parents Bhaskarlal and Vimla. Monica was Vikas' second wife as he had divorced his first wife through whom he had two children.
Differences between Vikas and Monica surfaced and after several rounds of talks for reconciliation, she filed cases under Section 498-A(cruelty) and 406 (breach of trust)against the husband and in--law.
Among various allegations the woman had levelled were that her mother-in-law had kicked her, called her mother a liar and threatened her with a divorce from her son besides, taking away all the gifts, including cash, received at the time of the couple's marriage.
A Patiala trial court issued summons against the husband and in-laws. The Delhi High Court dismissed the appeal filed by the husband and in-laws challenging the trial court's decision to issue summons against them. Aggrieved, they moved the apex court.
The apex court, which went extensively into the details of the dispute between the couple and the complainant, said the allegations do not in any manner warrant prosecution of the accused under Section 498A.
On the contrary, the apex court said the daughter-in-law on the one hand was trying to coerce the accused and and on the other hand was trying for reconciliation with the family.
"These litigations, if a holistic view is taken, depict a sad state of affairs, namely, that the respondent(daughter-in-law), on the one hand, intends to take all coercive measures to secure the presence of her husband and the appellants in India in various cases filed by her, and on the other hand, she had been repeatedly making attempts of conciliation," the bench observed.
The apex court however, said the only allegation against the mother-in-law that can be taken cognizance of was that she had taken all the gifts/cash given by the invitees guests.
"Technically, this allegation would attract the definition of breach of trust within the meaning of Section 405 of the IPC," the bench said. While Section 405 defines "breach of trust", section 406 IPC prescribes the penalty prescribed for the offence.
Hence, it permitted prosecution of the mother-in-law while exonerating the husband and father-in-law.
Source:- http://timesofindia.indiatimes.com/news/india/Kicking-daughter-in-law-or-divorce-threat-not-cruelty-SC/articleshow/4858336.cms 5 August 2009, 09:52am IST

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