08 December, 2009

SC: Do Mont Blanc and Mahatma go together?

Can Mahatma Gandhi be the poster boy for driving home the message that a super-expensive Mont Blanc “pen is mightier than the sword?” To this question of a PIL petitioner, the Supreme Court on Monday sought responses of the Centre and the retail outlet of the pen-maker in Delhi.
Though a Bench comprising Chief Justice K G Balakrishnan and Justices A K Ganguly and B S Chauhan had some reservations in entertaining the PIL filed by Harsh Vardhan Surna and Sandeep Singh, it issued notices to the Centre and Mont Blanc Boutique after they pointed out that use of Mahatma Gandhi’s pictures was in violation of Emblem Act.
However, the Bench declined to issue notice to Mahatma Gandhi Foundation. The petitioners had alleged that Tushar Gandhi, the great-grandson of the Father of the Nation, had accepted a cheque of Rs 70-75 lakh to lend the name of the organisation to the pen brand.
“The foundation will further receive between $200 and $1,000 for each pen sold. The maker of Mont Blanc is offering the ‘Mahatma Gandhi Pens’ at an unbelievable price of approximately Rs 12 lakh per pen. Mahatma Gandhi’s images are being displayed in hoardings conveying messages that the pen is mightier than the sword,” the petitioners said.
Associating Mahatma Gandhi’s name with the expensive pen rebelled against the values and ideals in which the Father of the Nation believed in, the petitioners said. When this blatant commercial use of Mahtama Gandhi’s name and pictures in violation of the Emblems and Names (Prevention of Improper Use) Act, 1950, was taking place, “the government, the ruling political party and the Opposition are silent,” they said.
All That Glitters
‘Mont Blanc’s Limited Edition 241’ marks the 241 miles that the Mahatma Gandhi covered during the Dandi March in 1930
241 such pens on offer, with gold wire entwined, to signify the yarn Gandhi spun on a charkha
Rhodium plated 18-carat gold nib depicts Gandhiji holding a lathi, all in gold
Source:- The Times of India 8th December 2009 Page No:- 15 Delhi

02 December, 2009

ICL facing legal action over player dues: FICA

Indian Cricket League (ICL) might have started taking legal action against the ICC and BCCI but the ‘rebel’ entity itself is in danger of facing a court case from its disgruntled players who have not been paid their fees amounting to “millions of dollars”.
Federation of International Cricketers Associations (FICA) chief executive Tim May said sick and tired of being repeatedly informed that the outstanding dues would be given, the players, including eight from Australia, are mulling legal action against the ICL.
“For a number of months, FICA (on behalf of a number of players from numerous countries) has been in discussions with ICL in relation to outstanding payments to players, officials and support staff, relating as far back to 2008. These outstanding monies amount to millions of dollars,” May said.
“FICA and the players have constantly been informed by ICL that they will meet these obligations on specified dates. But these dates continually pass without any sign of payment.
“The players are sick and tired of the broken commitments from ICL and now they believe they have no other option than to contemplate legal action against ICL for the recovery of these payments,” May was quoted as saying in a website.
Eight Australians — Jason Gillespie, Damien Martyn, Jimmy Maher, Matthew Elliott, Michael Kasprowicz, Stuart Law, Ian Harvey and Ryan Campbell — are among more than 100 worldwide ICL players owed millions of dollars by the ICL.
There are also coaches from the eight teams, including Australians Michael Bevan and Steve Rixon, along with dozens of other support staff yet to be paid. Some of the Australians, including Kasprowicz, has severed ties with ICL to start commentating in official tournaments.
Set up in 2007, the ICL has not played a tournament since its second season was abandoned following the Mumbai terrorist attacks in November last year.
Source:- The Times of India 2 December 2009 Page No.26 Delhi
For any query:- deepakmiglani@hotmail.com

Supreme Court of India frowns on attempt to pick judge :Calls Move, Coming From A Sr Advocate, Unfortunate

It was done earlier by senior advocates Ram Jethmalani and Shanti Bhushan to get a case out of the docket of a Bench, but on Tuesday senior advocate A M Singhvi drew flak from the Supreme Court for seeking the inclusion of a particular judge on a Bench.
Recounting that Justice Aftab Alam had been part of the Bench which passed interim orders staying work at numerous projects by the Mayawati government for Dalit leaders including installation of their statues at Lucknow, Singhvi requested a Bench comprising Justices H S Bedi and T S Thakur for putting the case for hearing before a Bench that also had Justice Alam.
The Bench headed by Justice Bedi took strong exception to the request and said: “It is not for us to decide the composition of a Bench. And it is not for you to request for a particular composition of a Bench. To say the least, it is a very uncharitable request. It is very unkind of you to have made such a request.” Seizing the opportunity, UP government’s counsel — senior advocates S C Mishra and R N Trivedi — joined the Bench in expressing their deep distress at such an “intimidatory request” being made by a senior person. “The Bench should not succumb to such intimidatory tactics,” they suggested.
Quick to sense the Bench’s annoyance, Singhvi sought to smartly tweak his request and said: “I am sorry. I never made a request for change of Bench. Given the fact that Justice Alam had been part of the Bench that passed all the interim orders, my suggestion was to include him so as to make it a threejudge Bench. I can never suggest that the matter be not heard by this Bench.”
But, the arrow had already left the quiver and the Bench fired a riposte at him: “Can we pass an order directing inclusion of Justice Alam in the Bench? You are here in the Supreme Court for a long time and know the procedure how and where matters are fixed for hearing.
This request should never have been made in the first place. It is very, very unfortunate.”
On February 9 this year, former law minister and senior counsel Shanti Bhushan had virtually forced Justice Arijit Pasayat to recuse himself from hearing a case concerning former PM H D Deve Gowda saying he apprehended some bias as during an earlier hearing the judge had severely criticised Gowda for writing letters to judges in the Bangalore-Mysore expressway case.
On January 23, Ram Jethmalani, another ex-law minister and senior advocate, while appearing for the Ansals who wanted bail in the Uphaar fire case, had got Justice B N Agrawal to recuse himself from hearing the bail petition of Gopal Ansal and Sushil Ansal.
Source:- The Times of India 2 December 2009 Page No.17 Delhi
For any query:- deepakmiglani@hotmail.com

Coming, a law which gives directors film copyright :1957 Act Only Recognizes A Producer’s Ownership

Call it the director’s cut. The HRD ministry has come up with a bill which confers copyright of a film not just upon the producer, but also on the director. For films made after the proposed law comes into force, the producer and director will be ‘‘treated jointly as the first owner of copyright’’. Thus, the director is finally getting his due as the creator.
The joint ownership redresses an anomaly in the Copyright Act 1957, which in the case of books, confers copyright on the author leaving out the publisher but in the case of films, on the producer leaving out the director. The existing law treats a director as an employee of the producer and consequently denies him any intellectual right over the film he creates. Since the proposed clause equating the director with the producer will apply prospectively (from the day the law is enacted), the directors of films already produced will not get the full benefit of this reform. The bill seeks to compensate them by extending the copyright term for such films from 60 years to 70 years after the death of their first copyright owners.
The additional copyright term of 10 years is however ‘‘subject to the principal director entering into a written agreement with the owner of the copyright in the film during the subsistence of copyright’’. The accompanying note explains that this is meant ‘‘to extend the copyright term for the producer for another 10 years if he enters into an agreement with the director’’.
The implication is that for the additional term of 10 years, the producer and director will jointly enjoy copyright on films already made. The intention, clearly, is to confer some benefit on the director even in the case of films made before the commencement of the proposed law.
The proposed Copyright Act Amendment Bill 2009 is now being vetted by law ministry. Later, after Cabinet clearance, it will be introduced in Parliament. Law ministry is now examining the bill to see if is valid to increase the copyright term by 10 years only for films, discriminating against other artistic and literary works.
The note prepared by the HRD ministry justifies the preferential treatment arguing that ‘‘old Indian classical films, especially Bollywood films, are falling into public domain and these are being exploited by TV channels’’. This is part of a slew of amendments being made to the 1957 act affecting the business of films, music, radio and TV.
While much as its attempt to give the director his due is laudable, the bill is not clear on how the term of the copyright for the new films will be computed when both the director and producer are the ‘‘first owners’’. It is not clear whether it will be 60 years after the death of the director or the producer, or whoever dies last.
Source:- The Times of India 2 December 2009 Page No.15 Delhi

17 November, 2009

Microsoft violated IP rights: Court

A Chinese court has ruled Microsoft Corp. infringed a Chinese company's intellectual property rights by including certain fonts in its operating systems, the companies confirmed Tuesday.
Beijing's No.1 Intermediate People's Court found Microsoft had exceeded the scope of a previous agreement to use and sell fonts owned by Zhongyi Electronic Ltd, Lan Fei, a spokeswoman of Beijing-based company told AFP.
The decision came during US President Barack Obama's visit to China and at a sensitive time in the trade relationship between the two countries. The US has been pressing China for tougher intellectual property law enforcement.
However, Microsoft said in a statement that it disagreed with the Monday-dated court ruling.
"We plan to appeal the decision for the Zhongyi fonts case," Microsoft said.
"Microsoft respects intellectual property rights... We believe our license agreements with the plaintiff cover our use of the fonts."
Zhongyi said the court agreed Microsoft installed and used the fonts in eight of its operating systems without its express permission and had ordered the US company to stop selling those operating systems in China.
The spokeswoman said the company was studying the ruling and could seek compensation from Microsoft for damages.
"The case dragged on for a long time and the scale and impact of the case was very large. It involves a large figure. We are still checking and studying the form and amount (of the compensation)," Lan said.
The case, which was filed in April 2007, does not appear to affect Microsoft's latest operating systems, including Windows 7, which went on sale last month.
The court rejected Zhongyi's claim that Microsoft's use of Zhengma software, which enables computer users to type Chinese characters using Western keyboards, also violated its intellectual property rights.
Source:-http://infotech.indiatimes.com/news/software-services/Microsoft-violated-IP-rights-Court-/articleshow/5239636.cms

04 November, 2009

Most SC judges bank on shares as investment

Justice Raveendran Holds 19,773 Shares In 57 Firms

Justice R V Raveendran, who had offered to recuse himself from hearing the RIL-RNRL dispute saying he held equal number of shares in each, appears to be among Supreme Court judges who favour the stock market as an investment option. He could also be among judges with the maximum number of shares, 19,773 to be precise, in as many as 57 companies. Though he does not specify the market value of these shares which seem to have been purchased long back given the ancient names of the companies he has mentioned, it appears that he would be neck and neck with Justice S H Kapadia who estimated the market value of shares held by him at Rs 20 lakh.
Their spouses also appear to have invested in the stock market in equal measure. While Justice Kapadia’s wife holds shares worth Rs 19 lakh, Justice Raveendran’s wife holds as many as 10,616 shares in 43 companies. Of the 19,773 shares held by Justice Raveendran, 772 were in Mukesh Ambani’s RIL and 783 in Anil Ambani’s RNRL. He also holds shares in Reliance Communication Ventures Ltd (783), Reliance Energy Ltd, now bifurcated to Reliance Infrastructure and Reliance Power Ltd, (840) and Reliance Capital Ltd (821).
Interestingly, Justice Raveendran’s wife holds 314 shares each in RIL and RNRL in addition to shares in Reliance Capital (15), Reliance Energy (22) and Reliance Communication Ventures Ltd (314). While Chief Justice of India K G Balakrishnan, Justice B Sudershan Reddy, Justice Cyriac Joseph and Justice H L Dattu have not invested in shares, others have done so. Justice Markandey Katju even stated that some of his shares in different companies were not traceable. Almost all judges bought these shares as lawyers, before their appointment as judges. Justice D K Jain also holds a large number of shares — 6,812 in 37 companies. His wife holds 3,333 shares in 31 companies. Justice V S Sirpurkar holds 3,693 shares in 20 companies while his wife holds 1,617 shares in eight companies.
Justice G S Singhvi has stated that his investment in mutual funds was to the tune of Rs 7.2 lakh, while that of his wife was Rs 8.5 lakh. CJI owns 12 Ares of land: Chief Justice K G Balakrishnan owns a little more than 12 Ares of land, which is less than one acre. It was inadvertently referred to as 12 acres on Tuesday. Justice Tarun Chatterjee does not own an entire building in Kolkata but a 2/3rd share in it, which is an ancestral property used fully as dwelling house, the SC Registry clarified.

Source:- Source:- The Times of India 4 November 2009 P. 15 Delhi

‘Battered’ child’s parents face charges

Four years after Delhi High Court ordered an investigation into the role of an exarmy major and his second wife in allegedly beating his four-yearold child from his earlier marriage — which is said to have led to several physical and mental deformities in the kid — the police have filed a chargesheet against the duo for ‘‘attempt to murder’’. They have, however, failed to arrest the two.
Getting justice for Shaurya (10) has been a long battle for his maternal grandparents. In 2005, Shaurya’s grandparents had moved HC seeking custody of the child, alleging that his father, Lalit Balhara, and his wife, Preeti, were beating the child after his mother expired. The child was produced before the court on February 20, 2005. The court was taken aback to see the physical and mental condition of Shaurya.
The HC then asked doctors to file a medical report. The report disclosed that a psychiatric consultation for Major Lalit Balhara and Preeti Balhara was done at the Base Hospital, Delhi Cantontment. It stated that the ‘‘parents were not able to give a convincing explanation about the incident in which the child sustained injuries’’ and concluded that the child was suffering from ‘‘battered baby syndrome’’. After going through the reports, a division bench on February 28, 2005, handed over custody of the child to the maternal grandfather and said, ‘‘investigation is required to be carried out to ascertain the manner in which injuries have been caused to Shaurya and the treatment meted out at him’’ by his parents.
After a gap of four years, the police on October 31 this year filed a chargesheet against Balhara and his wife before a trial court under Section 307 (attempt to murder), 34 (common intention) of the IPC and Section 23 of Juvenile Justice (Care and Protection of Child) Act 2000. Filing the chargesheet, the investigating officer submitted before metropolitan magistrate Sumit Dass that the accused could not be arrested during the course of the investigation and he had to file the final report without arresting them. According to the chargesheet, the accused have changed their addresses often and were untraceable.
The court then sought Shaurya’s maternal uncle, Lt Col Devender Kumar’s help in tracing the victims. At the last hearing, Kumar submitted that he had managed to trace the present address of the accused and also expressed his apprehension that the couple would run away if not summoned immediately.
After hearing his plea, MM Dass issued summons against Balhara and his wife for November 4, saying that ‘‘Considering the facts, IO is directed to take action in accordance with law....SHO Delhi Cantt is directed to comply with the order and take steps as per law in the case.’’ Shaurya, who now lives with his maternal grandparents in Jaipur, is yet to record his statement before the Metropolitan Magistrate. Speaking to Timescity, Devender Kumar said, ‘‘The child’s statement has been recorded with the police. The police has managed to find the couple on the address given provided by me and they are required to appear before the court on Wednesday.’’
Doctor who was the real healer
It has been seven years but Shaurya’s case still stands out in the memory of Colonel (retd) R G Holla. Now retired from the Army, he has vivid memories of how when Shaurya was brought to him for the second time with an intracranial injury — the first just some time earlier when he had been brought to the Army Research and Referral Hospital for poisoning — he went out of his way to get a full body X-ray done. ‘‘The X-rays showed perfectly normal bones and I extensively counselled the parents thinking that it was some help at home who was battering him. They heard me out and did not come back for about a year. When they did, Shaurya had some 16 fractures all over his body. Bones that were perfect a year back had suffered injuries of all kinds. And his parents could not give any credible explanation,’’ Col (retd) Holla recollected while talking to Times City.
His whistleblower’s act notwithstanding — he had at one point refused to let the child go from the Army hospital with his parents — his diagnosis had to stand the test of an AIIMS medical board but was upheld. Holla was instrumental in the ‘‘rehabilitation’’ of Shaurya, going to the extent of setting pre-conditions like he should not be allowed to go back to live with his parents which he says resulted in his staying with his stepmother’s family for some time. ‘‘His health improved there. But after a while he was back with his parents. ‘‘All this while I had been trying desperately to get in touch with his grandparents in Jaipur but it happened after a long time,’’ he added. '
Even as the case drags on, Holla has the satisfaction of seeing Shaurya as a happy healthy child. ‘‘I talk to him often, wish him on his birthdays and recently his maternal uncle had mailed me some of his pictures where he looked perfect,’’ he said.

Source:- The Times of India 4 November 2009 P. 4 Delhi
For any query:- deepakmiglani@hotmail.com

24 September, 2009

RBI against loan prepayment penalty

The Reserve Bank of India has frowned on the practice of banks slapping penalty charges on premature repayment of loans, saying it does not approve of such charges. But it stepped back from any role in enforcing its point of view.
Replying to an RTI query, the central bank said, “RBI does not approve of charging penalty or foreclosure charges. We have... advised banks to lay out appropriate internal principles and procedures so that usurious interest including processing and other charges are not levied by them on loans and advances.”
The RBI admitted it had received complaints on levy of prepayment penalty by banks who had been “suitably advised”. But it was silent on what action had been taken against banks who ignored the advice. The charges disadvantage those wanting to pay off a loan or move to one offering better terms.
Early Bird Fine Foreclosure:
Usually refers to a lender seizing a property when borrower is unable to repay loan. But in India, the term also refers to prepayment of loan before scheduled time
Most banks levy 2% penalty on capital left in case of prepayment
In case of HDFC and ICICI Bank, the penalty is 3%
Most banks waive penalty if repayment is made with borrower’s own money. But they charge it if borrower takes a loan from another bank to prepay existing one
Banks penalise early repayment
Even though most banks operating in India impose penalty charges on premature repayment of loans, RBI’s reply to a quer filed under RTI noted that, “In the context of granting greater functional autonomy to banks, operational freedom has been given to scheduled commercial banks on all matters pertaining to banking transactions, including foreclosure of loans.”
The applicant asked RBI if it was aware of private and multinational banks levying foreclosure charges or penalties for premature payment of loans and what steps had been taken in this matter. RTI activist Subhash Chandra Agarwal also asked what steps had been taken by RBI to ensure that uniform interest rates were charged by all banks.
For credit card operations, RBI has advised banks to formulate a well documented policy and a fair practice code that charges interest rates that could depend on the payment or the default history of the cardholder.
“There should be transparency in levying of such differential interest rates... banks should upfront indicate to the credit card holder, the methodology of calculation of finance charges with illustrative examples, particularly in situations where a part of the amount outstanding is paid by the customer,” RBI’s CPIO said.
The central bank said in order to ensure transparency, banks should use only external or market-based rupee benchmark interest rates for pricing of their floating rate loan products.
“Banks should not offer floating rate loans linked to their own internal benchmarks or any other derived rate,” it said.
Source:- The Times of India 22 September 2009 Page No.1 Delhi

Apollo gets stiff dose from HC

Hospital Told To Reserve 200 Beds For Free Treatment Of Poor

Declaring that healthcare is a fundamental right of every person, Delhi High Court on Tuesday directed Indraprastha Apollo Hospital to reserve at least 200 beds for the poor people and provide them free treatment.
Slamming Apollo for not providing free treatment to poor patients, a division bench of chief justice A P Shah and justice Manmohan directed the hospital to comply with its agreement with the state government under which the hospital had committed to provide free treatment to 40% poor patients in OPD and 33% poor patients in Indoor Patient Department.
‘‘The hospital has made a complete mockery (of agreement) by not providing free treatment to the poor people,’’ the HC said while slapping a fine of Rs 2 lakh on the hospital. The court’s order came on a PIL filed by NGO All India Lawyers Union through its counsel Ashok Aggarwal, alleging the hospital was violating court’s previous order on the matter.
‘‘Poor people have been deprived of their right to free treatment and right to health is a fundamental right of every citizen... not only the government but also individual, group of individuals and NGOs are obliged to ensure it,’’ the court said. The bench said patients belonging to BPL families, class III and IV government employees, poor professionals, self-employed and people recognized by the health secretary as the poor would be eligible for free treatment.
The HC asked Delhi government to direct all its hospitals to set up a referral centre for sending poor patients for free treatment at Apollo Hospital. For that, chief secretary of Delhi government has been asked to draw guidelines within four weeks. The state government has been told to set up a committee that will monitor whether the hospital is implementing the court direction or not.
Apollo, meanwhile, has been told to appoint a nodal officer to take care of the case referred by the government hospitals for free treatment. The bench also asked the hospital management to maintain record of patients treated for free and send it to the state government and Directorate of Delhi Health Services.
In September 1998, the HC had directed Apollo Hospital to follow its agreement with the city government, said the NGO. According to the NGO, Delhi government had spent Rs 16 crore on the construction of the hospital, apart from allotting 15 acre land at a token price of Re 1.
Source:- The Times of India 23 September 2009 Page No.11 Delhi

HC poser on space sale in Gurgaon societies

There is good news for people living in highrises and apartments in Haryana who have been fighting builders over control of common properties. In a recent judgment defining the status of common properties in group housing complexes in Haryana, the Punjab and Haryana High Court has asked director town and country planning (DTCP) to look into the objections filed by Silver Oaks Society (SOS) against builder DLF for selling off such facilities commercially.
SOS had objected to the sale of shops, community centre and club, parking places and nursery school on the grounds that such properties belonged to the apartment owners collectively and DLF could not have sold them off or retained them as its own property.
The DTCP has been given six months to decide on SOS objections on the basis of the criteria laid down by the court. The latter also ordered that owners in Silver Oaks Colony, which has 749 apartments, who were denied membership of the condominium association, be permitted to join the same and fresh elections be held within two months under supervision of the DTCP.
Complexes such as Heritage City, Garden Estate, Silver Oaks and Central Park in the Millennium City, where thousands of people reside, are or have been involved in disputes with the builders over this matter.
The Punjab and Haryana High Court has asked DTCP to examine afresh the declaration filed by DLF under the Haryana Apartment Ownership Act while transferring properties to the buyers saying, “the competent authority is to be guided by the provisions, objects and spirit of the Act in this matter.” The court said in the decision that all properties in such condominiums in Haryana are either apartments or limited areas and facilities or common areas and facilities. Anything not covered by the definition of apartment had to fall into either categories, leaving no scope for outside ownership.
The judgment was delivered on a petition filed by SOS in 2003 and covers an issue of vital interest to dozens of group housing societies in Gurgaon and the rest of the state. The order was passed by a bench comprising Justice Adarsh Kumar Goel and Justice Daya Chaudhary.
Said Col B K Dhawan, president of Apartment Owners Association (Haryana), “This will bring relief to all multistoreyed complexes in Haryana, especially in Gurgaon and Faridabad.”
Source:- The Times of India 23 September 2009 Page No.6 Delhi

14 September, 2009

SC to Kerala: Pay teachers or will review ministers' expenses

Rejecting the argument that it was facing cash crunch, the Supreme Court on Monday warned the Kerala government that it would review the expenses incurred on ministers and MLAs if the state failed to pay arrears for 17 years to part-time teachers.
In a lighter vein, a bench of Justices B N Aggrawal and G S Singhvi also asked the state government counsel "Your Chief Minister travels by which class, economy or business?"
The remarks come in the backdrop of the austerity measures suggested by the UPA government to all its ministers and government functionaries.
"We can't go by your claims. If you do not comply with the order by September 30, we will have to review the expenses incurred on your ministers and MLAs," the bench sternly told the counsel who agreed to abide by the direction.
The apex court made the remarks while dealing with a Special Leave Petition (SLP) filed by the Aided Higher Secondary Teachers Association challenging the reluctance of the state to pay arrears to part-time teachers in state government and aided schools.
During the argument, the state government has taken the stance that due to financial crunch it was not able to implement a government order issued on August 19, 2008, relating to payment of arrears to part-time teachers with retrospective effect from 1992.

Bar makes out a case against Queen’s English, wants Hindi

Hindi may be the national language, but the judiciary still swears by the Queen’s English. Now, language is the bone of contention between lawyers and judges with a section of lawyers alleging that Delhi’s judges prefer English-speaking lawyers to Hindi-speaking ones.
Alleging discrimination by judges, the lawyers now want to be allowed to argue cases in Hindi. Launching a “signature campaign” last week, a group of lawyers from Delhi High Court and the five district courts made a petition to the effect. Spearheading the campaign, Ashok Aggarwal, president of the Delhi unit of the lawyers’ association, said use of Hindi in courts will not only help lawyers present their cases in a better way, it will also benefit the litigants. “Most litigants are not well versed in English. For the better understanding of the litigants and that of their counsels, it is important for the courts to encourage using Hindi,” Aggarwal said.
Sharing an anecdote, Aggarwal said once a lawyer was asked to sit down by a HC judge and was stopped in the middle of arguments for using Hindi. “The judge told him that Hindi was not the language to be used in courts,” he said, adding that the Delhi High Court Act does not allow lawyers to argue in Hindi.
So far, the petition has managed to get the support of 3000 lawyers. “We have received a huge response and collected over 3,000 signatures so far to support our campaign,” Aggarwal informed. The association’s aim is to collect 5000 signatures and then the petition will be sent to Chief Justice of Delhi High Court.
Many trial court judges appreciated the move stating that it will help the judiciary in getting over the “British hangover”. “It is a great attempt on the part of the lawyers. Our constitution provides for equality and everyone should be allowed to use the national language in courts. In trial courts, using hindi is still allowed but one cannot argue in English in HC. It’s high time things change,” a metropolitan magistrate said.
Source:- The Times of India 14 Sep. 09 Page No. 3 Delhi
For any query:- deepakmiglani@hotmail.com

13 September, 2009

BIGAMY: AN ISSUE OF ONE TOO MANY

More Hindus take two wives than Muslims, according to a survey. Surprised? It’s been that way for more than 30 years
The Law Commission recently recommended a good way to prevent a married Hindu man from taking another wife: Deeming such a marriage illegal even if he converted to Islam before he wed a second time.
That Law Commission report, ‘Preventing Bigamy via Conversion to Islam’, essentially highlighted an important and little-known truth — namely that more Hindus than Muslims commit bigamy.
This has been true for more than a quarter of a century. In 1974, a government survey found Muslims to account for 5.6% of all bigamous marriages and upper-caste Hindus accounting for 5.8%. The difference may appear to be small but it is big, in real terms. The 1971 census records 45.3 crore Hindus and six crore Muslims. Allowing for women and children to make up 65% of each group, as many as one crore Hindu men had more than one wife in 1971, compared to 12 lakh Muslim men.
The trend continues, says sociologist Asghar Ali Engineer, head of Mumbai’s Institute of Islamic Studies. “The survey was conducted on a large sample in all parts of India and the report wasn’t made public. Further, polygamy was higher in South India than in the north, and more so among rich and middle-class Hindus than the poorer sections.”
Go back still further – to 1961 – and the census records polygamy to be highest among adivasis, Buddhists, Jains, and Hindus, with Muslims right at the end. Engineer says the law matters only up to a point. “With both survey results coming out after the Hindu Marriage Act was passed in 1955, it shows that bigamy is basically a problem of a male-dominant culture than religion.”
Bigamy disadvantages Hindu women more than Muslim, says Chandigarh sociologist Nirmal Sharma. This, because a Hindu man will desert his lawfully wedded wife to live with another, while the multiple wives of Muslim men are entitled to equal legal and social rights. “Closet bigamy in Hindus is worse than open polygamy among Muslims,” he says.
Fiza alias Anuradha Bali, who married Haryana’s deputy CM after the pair converted to Islam, says, “Our laws were far more liberal in ancient times. Most kings and many of our mythological figures had more than one wife.” Though Chand has converted back to Hinduism, Fiza insists she remains his “customary wife while the first one remains the legally-wedded one. There is no way to get out of a dual marriage in spite of a legal ban.”
Supreme Court lawyer Praveen Agarwal cautions that Hindu bigamists often go scot free because “the courts can do little until there’s a formal complaint.” And this is not always possible because in many cases, the two wives don’t even know of each other’s existence, says Agarwal. He adds that it is relatively easy for a Hindu man to remarry because temples don’t hold records. “However, if the matter goes to court, the second marriage is declared null and void.”
Take the case of K Suryanarayana, the Indian engineer killed in Afghanistan, who left behind a second wife and daughter. Though she laid claim to compensation from the government, the court ruled in favour of the first wife.
Agarwal suggests that stringent and time-consuming Hindu divorce may force many men to resort to bigamy. “Instead of going in for longdrawn-out and financially debilitating divorce procedures, men simply desert the first wife and marry again.”
Engineer says that bigamy is not as rampant among Muslims as believed. The Quran only offers conditional permission for a man to take four wives: in times of war or a crisis that sees women outnumber men. “The 2001 census found 935 females for every 1000 males in India. Among Muslims, it was 930: 1000. So it would be difficult to find even one wife for every man,” he says. Engineer says polygamy will never cease to exist. Perhaps it’s better to regulate it, he says.
Source:- The Times of India 13 September 2009 Page No. 17 Delhi

Bombay HC against child custody on rotation formula

A sessions court’s prescription to keep a set of warring parents happy giving them custody of their children in rotation every alternate month was shot down by the Bombay HC. Calling the formula ‘peculiar’ and ‘shocking’, Justice Abhay Oka said shunting the three children between the homes every month would be too ‘traumatic’.
Justice Oka said the sessions judge did not seem to have considered the effect this arrangement will have on the children. The judge added, “The children have already suffered because of the attitude adopted by parents of not settling the disputes at least for the sake of children.’’ The court said where a couple was fighting over the custody of their children, it was better to grant custody to one parent.
In this case, Janice had married Mark Pereir in 1989. They have two daughters, aged 16 years and 14 years, and a 12-year-old son. Janice moved the magistrate’s court in 2007 under the Domestic Violence Act and sought custody of the children. The court directed Mark to desist from causing domestic violence and handed over temporary custody of the children to Janice. Mark then filed an appeal in the sessions court, which granted the mother and father custody of the children every alternate month.
The judges had interviewed the children, who said they wanted to celebrate Christmas and New year together. Meanwhile, pending the verdict the custody will remain with the father, and mother will have visitation rights. (The names of the couple have been changed)
Source:- The Times of India 13 September 2009 Page No. 9 Delhi

12 September, 2009

Delhi High Court slams elderly duo seeking 24X7 serving of booze

Two senior citizens have earned the wrath of Delhi High Court for filing a public interest litigation (PIL) that sought permission for restaurants and bars in the city to serve liquor 24x7.
Calling the petition meritless, the HC said that PIL is being misused. Stressing the need to curb it, the court on Wednesday imposed a fine of Rs 20,000 on the petitioners. ‘‘It is shocking that such petitions are being filed in the name of public interest. PIL was made for a different purpose,’’ a bench comprising chief justice A P Shah and Justice Manmohan said.
Petitioners Shirish Gupta and Jagdish Lal had filed the petition through their advocate Shikha Singh seeking an amendment to the Delhi Police Act, which would have allowed bars to serve liquor 24X7. ‘‘The government has allowed eateries to remain open till 1am but the state excise department has issued licence to only bars and restaurants located within 5-star hotels to serve liquor 24 hours.’’
The petition also said that globalisation and increasing influence of western culture are promoting the culture of night life and Indians are now not averse to going to pubs and bars for socializing and unwinding themselves.
Source:- The Times of India 10 Sep. 09 Page No.6 Delhi

Delhi High Court:Experience over degree for school job:Ex-IAF Instructor Gets Sports Teacher’s Post

The Delhi High Court has said that the experience of an applicant should be counted over qualification during selection as physical education teacher (PET).
The high court on Thursday directed the Centre to appoint a former Indian Air Force man for the post of physical education teacher in Kendriya Vidyalaya within a month after considering his 20 years experience in the force as equivalent qualification.
Giving preference to experience over qualification, a Division Bench of Justice Mukul Mudgal and Justice Reva Khetrapal set aside an order passed by the Central Administrative Tribunal (CAT) upholding the Kendriya Vidyalaya Sangathan’s decision rejecting the application filed by Girish Ahuja for the post of physical education teacher.
Girish Ahuja served as ground training instructor in the Indian Air Force for 20 years and obtained a certificate from the Central government in order to apply for the post in August 2007.
The Bench rejected the Kendriya Vidyalaya Sangathan’s argument that his experience in the Indian Air Force could not be considered as equivalent qualification for the post of physical education teacher since it was not equivalent to diploma in physical education or BPED.
After Girish Ahuja retired from the Indian Air Force, he later applied for the post of PET in Kendriya Vidyalaya, under the ministry of human resource development (HRD), in August 2007, but his application was rejected by the Kendriya Vidyalaya Sangathan that runs the schools on the ground that he was not holding a degree required to be a physical training teacher in a school.
Ahuja claimed his experience was certified by the ministry of labour as well as the ministry of personnel, public grievance and pension.
Source:- The Times of India 11 Sep. 09 Page No.5 Delhi
For any query:- deepakmiglani@hotmail.com

Ridiculous to expel student with beard: Supreme Court

The Supreme Court on Friday severely reprimanded a convent school in Vidisha in Madhya Pradesh for expelling a Muslim student for his refusal to shave his beard, an alleged disobedience which cost him an academic year.
Asking the principal of Nirmala Convent School to immediately take back the student, Mohammad Salim, a Bench comprising Justices B N Agrawal and G S Singhvi expressed its deep anguish at such ridiculous rules framed by schools.
Agreeing with Salim’s counsel senior advocate B A Khan, the Bench said: “How on earth could a school disentitle a student from pursuing studies just because he has kept a beard?”
“Then there will be no end to such prima facie ridiculous rules. Tomorrow the school authorities would say they would not allow entry to students who are not fair in complexion,” wondered the Bench. The Bench also appeared quite in sync with the present fashion trends. “These days it is a fashion for youngsters to sport an earring. Can these boys be denied admission to a school?” the Bench asked before issuing notice to the principal of the convent school and directing it to allow Salim to continue with his studies there.
The case had a roller coaster ride in the judiciary. His plea against the “ridiculous” nobeard rule of the school was dismissed by the MP High Court, against which he had appealed in the SC.
In the SC, he was in for a rude jolt as on April 30 this year a Bench comprising Justices R V Raveendran and Markandey Katju had not only dismissed his appeal, but peppered him with the now infamous “Talibanisation” comment. But, the Bench was quick to regret its comments and on July 6 it had recalled its order along with an apology for the unwarranted comment.

Source:- The Times of India 12 Sep. 09 Page No.9 Delhi

Supreme Court stays Gandhi Peace Foundation eviction

The Centre’s long standing row with NGO Gandhi Peace Foundation and its attempt to evict it from the official premises in Delhi was scotched by the Supreme Court, which not only stayed the eviction process but also gave the UPA government a lesson or two on Gandhian values.
The SC may have not have entertained a plea against UP chief minister Mayawati for her alleged ‘‘natakbaaz’’ comment against Gandhiji, but it was quite strong in its comments when the Centre accused the NGO of indulging in anti-government activities in its Deshbandhu Gupta Road government bungalow.
A Bench comprising Justices B N Agrawal and G S Singhvi was critical of the ministry of urban development’s notification asking the non-government organization, founded with the purpose of espousing the virtues professed by Gandhi, to vacate the premises. The ministry’s counsel A K Srivastava accused the foundation of not only carrying out anti-government activities by constructing staff quarters and servant quarters within the premises, but also sub-letting part of the premises to other NGOs and organizations in breach of the lease deed stipulations.
Violation of lease provisions was one thing, but was it anti-government activity? Puzzled by the nature of the accusation, the Bench came with a caustic observation — ‘‘There is no dearth of people in this country who will call Gandhi anti-national.’’
Smelling a rat in the hurried manner in which the Centre proceeded with the eviction case against the foundation, the Bench said: ‘‘These are sacred institutions. You can’t permit these institutions to be shut.’’ Srivastava, who had to play substitute for additional solicitor general Indira Jaising, laboured hard to save the day for the Centre by referring to the July 14, 2009 letter of the ministry to the officebearers of the foundation.
He said the NGO in response to the communication admitted to having sublet part of the premises to other institutions and organizations. Construction of staff quarters and servant quarters was also not denied, he added.
Objecting to the Centre’s hurry in proceeding with the eviction without giving the foundation a decent opportunity to defend its case, the Bench said the government had not been able to evict unauthorised occupants in bureaucrats and politicians from government bungalows despite repeated orders of the apex court.
‘‘Eminent government servants are qualified to be under unauthorized occupation for staying beyond the permissible period,’’ said the bench and added in a lighter vein that ‘‘if such a notification (to evict unauthorized occupants) is issued, 50% of occupants of government quarters will fall foul.’’
Inquiring into the genesis of the case, the court found that constructions were undertaken at the premises in the 1960s. It said: ‘‘Before passing an order, you (Centre) are required to consider their cause. And no order could be passed unless you are able to establish that the cause shown by them is of no use,’’ the bench said and dismissed the Centre’s petition.
Source:- The Times of India 12 Sep. 09 Page No.6 Delhi

HC acquits Pandher in one Nithari case : Confirms Death For His Servant, Koli

The Allahabad High Court on Friday acquitted Noida businessman Moninder Singh Pandher for want of evidence in one of the sensational Nithari serial murders, but upheld the death sentence of his domestic help, Surinder Koli.
The order by a division bench of Justice Imtiyaz Murtaza and Justice Kashi Nath Pandey came on an appeal filed by 52-year-old Pandher and 38-year-old Koli, challenging the death sentence awarded on February 13 by the Ghaziabad additional sessions judge for murder.
While allowing the appeal of Pandher and dismissing that of Koli, the bench made it clear that the ‘‘findings recorded by them were confined to the murder of 14-year-old Rimpa Haldar’’. The judgment should not, in any way, affect decisions in other Nithari cases by the trial court, the bench asserted.
‘‘The depraved and brutish acts of Surinder call for only one sentence and that is death. We agree with the reasoning of the sessions judge,’’ the bench said.
Pandher’s son Karandeep Singh, who was present in the high court, said: ‘‘Justice has happened. There is a God, and there is justice in the country. I am looking forward to justice in the remaining cases.’’
The high court, Karandeep said, had sustained CBI’s chargesheet and ‘‘we are moderately happy about that’’.
Pandher’s lawyer Monisha Bhandari said she would try to obtain bail for her client in the other cases.
While ordering, ‘‘Set Pandher at liberty forthwith unless he is wanted in any other case’’, the bench reasoned that the CBI had not filed any chargesheet against Pandher on the ground that there was no evidence against him for committing the murder of Rimpa and he was in Australia from January 30 to February 15, 2005, when she was murdered.
From Allegation To Acquittal
Dec 29, 2006 Nithari killings come to light with the discovery of skeletal remains of 8 children in the drain of a house in Nithari, Noida. House owner M S Pandher and his help Surinder Koli arrested
Dec 30 More skeletons tumble out of the drain
Jan 10, 2007 CBI takes over investigation
Feb 8 Special CBI court sends Pandher and Koli to 14 days in CBI custody
Mar 22 CBI files first chargesheet in Gzb court. Slaps lesser charges on Pandher. Koli charged with committing all 19 murders, rape and kidnap
May 1Parents of three victims move court against CBI for letting off Pandher on kidnap, murder charges
May 11 Court asks CBI to probe Pandher’s role
Nov 01SC issues notice to CBI on allegation by victim’s kin that agency is trying to shield Pandher
Feb 13, 2009 Gzb trial court pronounces Pandher and Koli guilty of rape and murder of
14-year-old Rimpa Haldar. Both file appeal
Koli’s confession saved Pandher
Servant Said There Was Nobody In The House When He Killed Rimpa
The Allahabad High Court on Friday acquitted Noida businessman Moninder Singh Pandher for want of evidence in one of the sensational Nithari serial murders, but upheld the death sentence of his domestic help Surinder Koli. The high court said the sessions judge had summoned Pandher mainly on the ground that a number of murders were committed in House D-5, Sector 3 of Noida owned by him and a saw was also recovered on his submission. But, the high court opined, summoning of Pandher under Section 319 of the CrPC was not correct as according to the prosecution, Rimpa was not killed by a saw but a knife to which Surinder had admitted in his confessional statement.
The sessions judge had considered four incriminating circumstances about involvement of Pandher in Rimpa murder case: first, Pandher was continuously living in Pandher’s house; second, dozens of murders were committed there; third, pieces of bodies wrapped in polythene bags were thrown in front and back of the house and lastly, the confessional statement of Koli.
The high court did not agree with the findings of the trial court mainly on the ground that there was no evidence of conspiracy by Pandher in Rimpa’s murder. The confessional statement of Koli, who admitted to the killing ‘‘when no one was present in the house’’, too, completely exonerated Pandher. From the prosecution’s evidence, it was proved that Pandher was in Australia from January 30 to February 15, 2005, while Rimpa was murdered on February 8.
In a terse comment on Koli, the bench observed: ‘‘The crime indulged in by Koli was not only gruesome, and cold but blood-curdling, heinous, atrocious and cruel and in the totality of circumstances, the court could not forbear from expressing that the accused Surinder Koli is a menace to the society.’’
‘The findings recorded are only confined to the murder of Rimpa Haldar and the lower court shall not import any observation/comments in the body of this judgment for being applied to the decision while hearing other cases relating to Nithari incident,’’ the bench observed
The Nithari murders had come to light in December 2006 when the police raided Pandher’s house following complaints by villagers that several of their children had disappeared. Pandher and Koli were arrested for the murder of a girl, Payal, and later a total of 19 cases were registered by the police after human skulls, bones and clothes belonging to young girls were recovered from the house.

Source:- The Times of India 12 Sep. 09 Page No.1 Delhi

30 August, 2009

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]
For any query:- deepakmiglani@hotmail.com

29 August, 2009

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

25 August, 2009

‘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
For any query:- deepakmiglani@hotmail.com

23 August, 2009

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

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
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21 August, 2009

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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18 August, 2009

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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15 August, 2009

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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14 August, 2009

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

12 August, 2009

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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09 August, 2009

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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