27 May, 2010

Surrogacy still not an option for Indian gay, lesbian couples

Gay and lesbian couples, Indian or foreign, can't have children born with the help of an Indian surrogate mother.
According to the draft `Assisted Reproductive Technology Regulation Bill 2010' prepared by a 12-member committee headed by Dr P M Bhargava under the Indian Council of Medical Research (ICMR), which was submitted to the health ministry recently, till gay and lesbian relationships are legalised in India, gay couples would not be allowed to have children through a surrogate.
Ministry officials told TOI that India was seeing a growing number of male couples from foreign countries hiring surrogates to bear children. This is mainly because assisted reproductive technology (ART) is not regulated here at present.
"However, once this bill is endorsed by the law ministry and becomes an Act, such couples will not be allowed to have surrogate children in India," said member secretary of the committee Dr R S Sharma.
According to Dr Sharma, under present laws, the definition of a couple is "persons living together and having a sexual relation that is legal in India".
"But though homosexuality has been decriminalised in India, it has not been made legal. Till gay and lesbian couples get legal status in India, they can't avail surrogacy," Dr Sharma said.
Some time back, a gay Israeli was prevented by a Jerusalem judge from taking his twins, born with the help of a surrogate mother in Mumbai, back to his home town.
The draft bill also says that foreigners or NRIs coming to India to rent a womb will have to submit two documents -- one confirming that their country of residence recognises surrogacy as legal and second that it will give citizenship to the child born through the agreement from an Indian mother.
As reported by TOI earlier, the draft bill also includes a provision which says that foreign couple will have to identify a local guardian in India to take care of the surrogate mother during her gestation period as well as after the delivery, till the child is handed over to the commissioning parents. However, if the foreign parents fail to take delivery of the child born to the surrogate mother within one month of the child's birth, the surrogate mother and the local guardian will be legally obliged to hand over the child to an adoption agency.
Only in such a case will the baby get an Indian citizenship, says the bill.
So what makes India an attractive destination for surrogacy? Experts cite two reasons. In the US, surrogacy costs up to $120,000 while in India, couples pay only a fourth or so of that amount. Having a child could cost anything between Rs 10 lakh and Rs 25 lakh here. The second reason is lack of regulation of the ART sector making India an easy place to have a surrogate baby.
The Law Commission, however, strongly pitched for legalising surrogacy in India last year and recommended several steps to protect the interests of the surrogate mother and also the baby. In its 228th report submitted to law minister Veerappa Moily, the commission recommended banning of sex-selective surrogacy, financial support for surrogate child in the event of death of commissioning parents or unwillingness to take the child later and providing life insurance cover for surrogate mother.
Source:- May 27, 2010
For any query:- deepakmiglani@hotmail.com

Dowry law applies to live-in relationships-Supreme Court of India

If you thought that being in a live-in relationship would save you from being punished for demanding dowry, think again. In an order that can expand the rights of women in live-in alliances, the Supreme Court has turned down the plea of Koppisetti Subbarao who had disputed the dowry charge pressed by his live-in partner on the ground that they were not married.
The court also brushed aside another argument put forward by Subbarao that the anti-dowry law could not apply to him since he was married to someone else in what should serve as a cautionary tale for those who prefer live-in relationships to dodge responsibilities that come with marriage.
This ruling came from a Supreme Court Bench comprising Justices Arijit Pasayat and A K Ganguly in an interesting case where Subbarao, faced with a dowry harassment case, said that he was not liable to be prosecuted under anti-dowry provisions -- section 498A of the IPC-- since there was no valid marriage between him and the complainant.
The Bench did not agree at all. "Can a person who enters into a marital agreement be allowed to take shelter behind a smokescreen to contend that since there was no valid marriage, the question of dowry does not arise," the Bench asked.
It elaborated on the reasoning, saying, "Such legal niceties would destroy the purpose of the provisions. Such hairsplitting legalistic approach would encourage harassment of a woman over demand of money."
Writing the judgment for the Bench, Justice Pasayat made it clear that the court would not let a narrow interpretation of dowry come in the way of women's rights. "The nomenclature `dowry' does not have any magic charm written over it. It is just a label given to demand of money in relation to marital relationship."
The Bench gave the example of the law recognising rights of children born out of void and voidable marriages, to explain its stand why it was defining dowry in a broad way. "Can it be said that legislature, which was conscious of the social stigma attached to children of void and voidable marriages, closed its eyes to plight of a woman who unknowingly or unconscious of the legal consequences entered into marital relationship," the Bench said.
If such restricted meaning was given, it would not further the legislative intent, the Bench said, adding, "On the contrary, it would be against the concern shown by the legislature for avoiding harassment of a woman over demand of money in relation to marriages."
Source:-May 2, 2009
For any Query:- deepakmiglani@hotmail.com

26 May, 2010

Supreme Court refuses to stay IIT results

Slams petitioner for engaging in “publicity stunt”

The Supreme Court on Tuesday refused to entertain a public interest litigation petition seeking a stay on Wednesday's declaration of results of the IIT-Joint Entrance Examination for 2010-11 and slammed the petitioner NGO, Satya Foundation, for its “publicity stunt”.
Questioning the petitioner's locus standi and intention, the Court queried, “Did you ever bother to take up the cause of those killed in Dantewada (75 CRPF personnel) or those who lost their lives in the recent natural calamities?”
The petition had sought stay of the results on the ground that there were several errors in the instructions attached to the question paper and faulty marking system which it claimed undermined the prospects of over 3,000 students.
A Vacation Bench of Justices G. S. Singhvi and C. K. Prasad dismissing the PIL cautioned that any such stay would affect the career of over four lakh students and might lead to serious consequences including suicides by the aspirants.
The Bench rebuked Chetan Upadhyaya, secretary of the association, and said it would have imposed a huge cost on the petitioner but was refraining from doing so as he was a young man and appeared to have been misguided.
“Some students will even commit suicide. Who will be responsible for it if we stay the results? There are three types of PILs: Public Interest Litigation, Private Interest Litigation and Publicity Interest Litigation. This petition has been filed as a publicity stunt.” Senior counsel R. Venkatramani appeared for the Union Government.
The Delhi High Court had on May 19 dismissed the NGO's plea for staying the results but kept the petition pending with a direction to the IIT's organising committee for JEE to demonstrate before it on June 2 the software adopted for evaluation of answer sheets. It had also sought an affidavit from the committee about corrective measures taken to protect the aspirants from any disadvantage.
Even as the High Court was seized of the matter, the NGO sought to approach the apex court for stay of the results scheduled for Wednesday which evoked the Bench's ire and rebuff. - PTI

Source:- Wednesday, May 26, 2010

http://www.hindu.com/2010/05/26/stories/2010052659250400.htm

25 May, 2010

Apology in a contempt proceeding must be given at the earliest:Before accepting an apology, the court must find that it is bona fide

Contributed By Deepak Miglani Advocate
The Supreme Court has asked the High Courts to exercise contempt of court power in an appropriate case with utmost caution. The court cannot reject an apology just because it is qualified and conditional provided it finds it is bona fide.
A Bench of Justices G.S. Singhvi and A.K. Ganguly said that when the High Court exercised its contempt power under the Contempt of Courts Act, “it is virtually exercising the same as a guardian of the subordinate judiciary to protect its proceedings against an outrage and affront.”
The Bench said: “When contempt takes place in the face of the court, people's faith in the administration of justice receives a severe jolt and precious judicial time is wasted.”
At the same time, the Bench said: “An apology in a contempt proceeding must be offered at the earliest possible opportunity. A belated apology hardly shows the ‘contrition which is the essence of the purging of a contempt.”
Justice Ganguly writing the judgment, however, said: “It is not incumbent upon the court to accept the apology as soon as it is offered. Before an apology can be accepted, the court must find that it is bona fide and is to the satisfaction of the court. However, court cannot reject an apology just because it is qualified and conditional provided the court finds it is bona fide.”
Further “even if it is not belated where apology is without real contrition and remorse and was merely tendered as weapon of defence, the court may refuse to accept it.”
In the instant case, the appellant, Ranveer Yadav, challenged the Patna High Court order awarding two months' simple imprisonment to him and a fine of Rs. 2,000 for contempt of court for causing disturbance in a sessions court during the trial of a criminal case in which he was cited as a witness. The High Court took up contempt proceedings on a reference from the trial court against six contemnors, Bharat Yadav, Bimal Yadav, Ajay Yadav, Pandav Yadav and Madan Yadav, accused in the case and against the appellant.
While other five contemnors were let off with a reprimand, the appellant was punished.
The present appeal is directed against that order.
Appeal dismissed
Dismissing the appeal, the Bench said: “The offending acts of the appellant constitute contempt in the face of court. The offending acts of the appellant certainly come within the ambit of interference with the due course of judicial proceeding and are a clear case of criminal contempt. The High Court, in the impugned judgment, therefore was correct in holding the appellant guilty and also in punishing him with the sentence it has imposed.”
Source:- Wednesday, May 19, 2010

Justice Delayed is Justice Denied:She fought 25 years for Rs 84 for her bonus, will get Rs 2K

Contributed by Deepak Miglani Advocate
It took a woman over a quarter of a century to finally get a sum of Rs 84 as part of bonus from her employer.
In 1984, Padmawati was informed that a bonus of Rs 84 — promised to her by her employer M/s Superbazaar co-operative store — will not be given. Sixty-six other labourers also learned that they will get no bonus.
‘‘I worked in Superbazaar during 1983-1984 as a packer on piece-rate basis. The management declared a bonus for the duration we worked. However, when we asked for it the company refused,’’ recalled Padmawati, who is now 50 years old. All 67 employees then filed a case against the store through their counsel, Ashok Aggarwal.
Even as the hearing began in 1984, it took 15 years for the court to settle the case. While in December 1999, the labour court in Tis Hazari decided in favour of the labourers and directed the store to pay them within three months, the ordeal did not end there. The store moved Delhi high court in 2000 challenging the trial court’s order and managed to get a stay. Twenty-five years later — on May, 2010 — the petitioners finally got justice with the cooperative store agreeing before the HC to pay them their due on pro rata basis.
‘‘The respondent’s workmen are directed to appear before the registrar general of this court, along with documents in support of their identity, to get the payment,’’ the court said, expressing concern over the fact that the payments were delayed “by over 10 years”.
Padmawati will get over Rs 2000, including interest. But she is the least satisfied. ‘‘I never knew it would take a lifetime before we get our money. I had given up hope. I will get a lot more than Rs 84, but the battle was still not worth giving 25 years,’’ she said. Ashok Aggarwal said, ‘‘It took a long time but any order in favour of the workers is a landmark judgment.’’
Source:- The Times of India 24 May 2010 Delhi 7

14 May, 2010

Muslim man's wedding void if woman fails to convert-Allahabad High Court

Contributed by Deepak Miglani Advocate
The Allahabad High Court has held that a Muslim man's marriage to a woman of another religion shall be considered void and against the tenets of Islam if he fails to get her converted to the religion before wedlock.
In its order, a division bench comprising Justices Vinod Prasad and Rajesh Chandra also ruled that remarriage of a Muslim man shall be held void if he abandons his first wife without divorcing her and fails to treat children born of the marriage in a fair and just manner.
The order was passed on Monday when the bench dismissed a writ petition of one Dilbar Habib Siddiqui, a resident of Allahabad, who had married a Hindu girl named Khushboo on December 29, last year.
Siddiqui had moved the court with the plea to quash the FIR lodged against him by Khushboo's mother Sunita Jaiswal alleging that he had kidnapped her daughter, a minor at that time, and had compelled her to marry him.
Refuting the charges levelled against him in the FIR, Siddiqui produced a copy of Khushboo's high school certificate to prove that she was a major at the time of marriage and her (Khushboo's) representations to higher authorities, upon learning about the FIR, that the marriage was a result of mutual consent.
While holding that having more than one wife is permissible under Islam, the court, however, took strong note of the fact that before tying the knot with Khushboo, Siddiqui had not disclosed to her that he was already married and was the father of three children.
His first wife had appeared before the court during the course of the hearing and alleged that Siddiqui had abandoned her and their three children, compelling them to "live like destitutes".
The court noted that Siddiqui "albeit married, had deceived Khushboo Jaiswal, who did not intimate us that she was in the knowledge of the petitioner's first marriage".
"For a valid Muslim marriage, both the spouses have to be Muslim. In the present writ petition, this condition is not satisfied", the court remarked and quoted from a verse in the Holy Quran which says, "Do not marry unbelieving women until they believe...
Nor marry your girls to unbelievers until they believe". Besides, the petitioner's marriage to Khushboo without divorcing his first wife and not dealing with his three children in a fair and just manner was "against the tenets of the Holy Quran" and hence "cannot be legally sanctified", the court said.
The bench quoted the following verse from the holy book while making the above observation - "Marry woman of your choice, two, three or four; But if you fear that you shall not be able to deal justly (with them), then only one... that would be more suitable to prevent you from doing injustice".
Dismissing the petition, the court directed that investigations in the impugned FIR be conducted expeditiously and authorities of the Nari Niketan, where Khushboo is currently housed, hand her over to her parents.
May 11, 2010

13 May, 2010

PARLIAMENT PASSES EMPLOYEES’ STATE INSURANCE (AMENDMENT BILL) 2009

Contributed by Deepak Miglani Advocate
The Parliament today passed the Employees’ State Insurance (Amendment) Bill, 2009. The Employees’ State Insurance Scheme is a welfare scheme framed for workers covered under the Employees’ State Insurance Act, 1948 providing for medical benefits for the employees and their families and payment of benefits to the employees in cases of sickness, maternity and employment injury. The Scheme is applicable to power-using factories employing 10 or more persons and non-power using factories and certain other establishments employing 20 or more persons.
Keeping in-view the changing economic scenario, the Act needed important amendments. The salient features of the amendments are as follows:—
  1. The age limit of the dependants has been enhanced from 18 to 25 for the purpose of dependants’ benefit. It will benefit large number of workers.
  2. It extended social security benefits to those apprentices who are covered by Standing Orders and also to those trainees whose training is extended to misuse exemption granted to apprentice from provisions of the ESI Act.
  3. The definition of “Factory” under Section 2(12) has been amended to facilitate coverage of smaller factories and cover all factories which employ 10 or more persons whether these are run by power or without power.
  4. DG-ESIC is being made Chairman of Medical Benefit Council to improve quality of medical benefits.
  5. It enabled ESIC to appoint consultants and specialists on contract basis for better delivery of super-speciality services.
  6. The post of Insurance Inspector is re-designated as Social Security Officer to give them the role of facilitator rather than to act as mere inspectors.
  7. The procedure for determination of contribution has been streamlined to avoid harassment of employers as the Inspectors now no more to inspect the books of accounts of the establishment beyond five years as under present system of unlimited period.
  8. It has added the benefit for workers for the accidents happening while commuting to the place of work and vice versa;
  9. State Governments are allowed to set up autonomous organisations to give ESI Scheme benefits.
  10. It extended medical treatment to those who retire under Voluntary Retirement Scheme or take premature retirement.
  11. It enabled ESIC to enter into agreement with any local autho-rity, private body or individual for commissioning and running ESI hospitals through third party participation wherever the hospitals are not fully utilised on account of closure of factories or Insured Persons not being available.
  12. It will improve the quality of its service delivery and raise infrastructural facilities by opening medical colleges and training facilities in order to increase its medical and Para- medical staff.
  13. It provided for grant of exemption by appropriate Government to factories/establishments only if the employees get substantially similar or superior benefits.
  14. The exemptions shall be granted only prospectively as the ESIC already has made provision of infrastructure to provide service to the IPs for the past period.
  15. A new Chapter V-A has been added to enable provision for extending medical care to non insured persons against payment of user charges to facilitate providing of medical care to the BPL families and other unorganised sector workers covered under the Rashtriya Swasthya Bima Yojana (RSBY).
    These amendments will ensure coverage of more workers under the ESI Scheme in the organised sector and will also enable the ESI Corporation to participate in schemes such as RSBY that may be framed for the workers in the unorganised sector. The amendments are also aimed at improving service delivery to the existing members of ESI Scheme as well as bringing the provisions of the Act in tune with the changing circumstances.

For any querry:- deepakmiglani@hotmail.com

02 May, 2010

Some Important points to prevent abuse of Section 498(A) and strengthen your case

  1. Always remember! No counseling is better than the couple and their kids thrash it out among themselves.
  2. To err is human! Mistakes can take place from both the sides. One should not misuse any law to cover one’s own mistake.
  3. Try counseling on both of you before you decide to knock the doors of police station.
  4. Never exaggerate what had happened to you. In other words, be clear, frank and specific about the issue.
  5. Never include the persons who are NOT connected with the harassment. Be honest.
  6. Always remember! 498A is not a law to take revenge but punish those responsible for harassment severely so that others learn a lesson.
  7. There are many vested interests around to take undue advantage of your helplessness. They might misguide you by exaggerating the facts, adding those who are unconnected with the harassment to the list of accused, exaggerating the amount of dowry etc.
  8. Should you need help in expressing your woes, please take the help of reputed voluntary organisations or help lines only. Avoid the unscrupulous persons who always promise you to get your dowry amount back and extort money from the accused side and dilute your case.
  9. Ensure your presence while someone drafts the complaint for you and ask him to read it out before you lodge it in the P.S
  10. Some victims are misguided to exaggerate the contents of the complaint in order to make it a STRONG case. The truth is entire strength of the case hinges on quality of evidence that is provided by the victim. If the contents of the complaint are not supported by the facts on the ground, cases become very weak and genuine victims suffer
  11. If any policeman or the officer concerned demands money for investigating the case and arrest the accused, do not give in. Bring it to the notice of his or her superiors.
  12. Never forget that both the daughter and daughter in law deserve similar affection and care.
  13. Remember! 498A is not a tool to force the other party for divorce. There are so many of other legal procedures to find solutions to the incompatibilities in the marriage.
  14. 498A is also not a tool to get the custody of children. There are other alternate legal methods for this.
  15. Never force the police to arrest the accused on same day of lodging complaint as gathering credible evidence takes some time. However, you can help the police expedite the investigation by providing most of the evidence at the time of lodging complaint itself.
  16. If you have the information that the accused are planning to leave the country, you can always bring it to the notice of the concerned investigating officer without delay. Police can alert all the international airports or sea ports for their detention, if needed.
  17. If you are a parent, lodge a complaint only after you ascertain the facts in detail from your daughter. Her statement is vital for the investigation.
  18. Conviction rate in 498A cases is very poor in the country as a whole. There are many reasons for this. You can help us improve this by NOT retracting during trial from what you have said during investigation.

Source:-http://www.hyderabadpolice.gov.in