Basic Guidelines to prohibit Sexual Harassment against women in Working Place(Defined in Vishaka & Ors vs State Of Rajasthan & Ors on 13 August, 1997)

Each such incident results in violation of the fundamental rights of 'Gender Equality' and the 'Right of Life and Liberty'. It is clear violation of the rights under Articles 14, 15 and 21 of Constitution. One of the logical consequences of such an incident is also the violation of the victim's fundamental right under Article 19(1)(g) 'to practice any profession or to carry out any occupation, trade or business'. Such violations, therefore, attract the remedy under Article 32 for the enforcement of these fundamental rights of women. This class action under Article 32 of the Constitution is for this reason. A writ of mandamus in such a siltation, if it is to be effective, needs to be accompanied by directions for prevention; as the violation of fundamental rights of this kind is a recurring phenomenon. The fundamental right to carry on any occupation, trade or profession depends on the availability of a "safe" working environment. Right to life means life with dignity. The primary responsibility for ensuring such safety and dignity through suitable legislation, and the creation of a mechanism for its enforcement, is of the legislature and the executive. When, however, instances of sexual harassment resulting in violation of fundamental rights of women workers under Articles 14, 19 and 21 are brought before us for redress under Article 32, an effective redressal requires that some guidelines should be laid down for the protection of these rights to fill the legislative vacuum.

WHAT IS THE RIGHT OF A MARRIED DAUGHTER? – HIGH COURT’S WIDE INTERPRETATION IN PUSHPALATHA CASE OF REGULAR FIRST APPEAL NO. 326 OF 2004.

The bill prepared by the Law Commission contained a provision making the amended provision under Hindu Succession Amendment Act not applicable to married daughters. That is precisely what is contained in the amendments carried out to the Act by the legislatures of Karnataka, Andhra Pradesh, Maharashtra and Tamil Nadu. However, in the bill passed by the Parliament we do not find the said provision. Rightly the said provision did not find favour with the representatives of the people and is deleted from the original bill even before it is presented to the Parliament. Therefore, the intention of the Parliament is clearly manifest from this Act. Secondly, the marriage, has no relevance to the succession or inheritance of the property. When a male Hindu marries, his right to succeed to a property or inherit a property is in no way affected by the act of marriage. However, in the case of a daughter in a Hindu Family, a distinction was sought to be made. After her marriage as she ceased to be a member of the Hindu Undivided Family and becomes a member of the Hindu Undivided Family of her husband, she was denied the right in the undivided family of her father. If she did not marry, her right was intact. The marriage had the effect of denuding her right to property in the family by birth. It stands to no reason. Therefore, the Parliament consciously has not used the word 'married daughter' in the entire Section as the case in the earlier State Amendment where they added an explanation, to exclude the married daughter. It is yet another indication and manifestation of legislative intent that they did not make any distinction between a married daughter and an unmarried daughter in respect to their rights to the properties of her father who is a coparcener in a Hindu Undivided Family governed by Mitakshara Law. It is settled law that the intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also what has not been said. It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. Similarly, it is wrong and dangerous to proceed by substituting some other words for words of the statute. Therefore, we cannot import by an interpretive process the word 'married daughters' in any form and in any context to defeat her rights conferred under amended Section 6, when the legislative intention is expressed clearly and unambiguously without leaving any scope for interpretation. Thirdly, the language employed and the declaration made in Section 6 makes the legislative intent explicit and clear, i.e., the daughter of a coparcener shall by birth become a coparcenar in her own right in the same manner as the son and have the same rights in the coparcenary property as she would have it if she had been a son. It means whatever right the son possesses in a coparcenary property is sought to be conferred on the daughter. The son would not lose his right in a coparcenary property because of his marriage. It is that right which is conferred on the daughter and, therefore, when by birth son acquires an interest in coparcenary property and retains the same, notwithstanding his marriage, when the daughter is also conferred the same right, it means she acquires a right by birth in the coparcenary property and she continues to hold the said right notwithstanding her marriage. The daughter's marriage will not put an end to the right of the daughter to a coparcenary property which she acquired by birth. If this is not the interpretation to be given to those words, then the Section would be violative of Section 14 of the Constitution which declares that there cannot be any discrimination between person and person on the basis of s*x. There cannot be a distinction between a son and a daughter under the constitutional scheme. Further, any other interpretation would mean there will be a further discrimination between a married daughter and an unmarried daughter, which is again opposed to the equality clause found in Article 14 of the Constitution. Then the whole object of bringing about this amendment, by substituting the provision in the existing Act and declaring that the daughter would get a right by birth in the same manner as son, would be defeated, if any interpretation is to be placed making a distinction between a married daughter and an unmarried daughter or a married son and a married daughter.

That is not the legislative intent and purpose. On the contrary, when such an attempt was made by the State Legislatures and the interpretation placed on the aforesaid provision resulted in heart burning and also contrary to the constitutional mandate contained in Article 14 of the Constitution, the Parliament taking note of these deficiencies and restrictions on the right of a married daughter advisedly has framed this provision putting an end to any such controversies and conferring the benefit of the amendment on the married daughters also.

Therefore, when the Parliamentary legislation which was subsequent in the Karnataka Amendment conferred the status of a coparcenar on the daughter of a coparcenar and gave right by birth in the coparcenary property and did not exclude the married daughters from such status and right expressly or by necessary implication, the Central Act to that extent is repugnant to the State law. Similarly, the word partition used in the State Law is too wide and the Central law defines the word partition and giving it a narrow meaning for the purpose of Section 6. Again the said definition runs repugnant to the State law. As the amended law is passed by the Parliament it prevails over the State law and the law passed by the State stands impliedly repealed to the extent of repugnancy. As such, the married daughter cannot be deprived of her right to a share in the coparcenary property by birth. With the passing of the Amendment Act Section 6A(d) stands repealed. Married daughter is entitled to equal share with the son in the coparcenary properties.

Therefore, a married daughter is also a coparcener and is entitled to equal share with the son in the coparcenary properties and her marriage in no way affects her right to equal share in the coparcenary property. Even after marriage she continues to have the same right which she had before marriage, as her right to coparcenary property flows from her birth as that of the son. To find out what is the right of a daughter in a coparcenary property, find out what is the right of the son. Whatever rights the son has in the coparcenary property, by virtue of the amendment the daughter also has such right. That is the object behind the legislation i.e., to achieve equality in the right of inheritance.

Therefore, it is clear that if on the date, i.e., 20th December, 2004, there is no partition effected by decree of the court thereby meaning a final decree for partition has not reached finality, then, the daughter of a coparcener is entitled to equal share in the coparcenary property as that of a son and Section 6 is applicable to such property. The legislative intention is clear. They wanted to give the benefit of this section to a daughter. Such a right, they did not wanted it to be defeated by mere plea of partition as well understood under Hindu law or merely because a suit for partition is filed or a decree for partition has already been passed by a trial Court. On those grounds they did not want to deny the daughter her legitimate share in the coparcenary property which ought to have been granted to her on the day the Act came into force namely 17th June 1956.

However, the recent Supreme Court Judgement unequivocally clinched that no right conferred to women over the ancestral property if the father died before 2005. But it shall not deprive her right to claim over the father self-acquired property if he died intestate. 

RASH AND NEGLIGENCE DRIVING’S LEGAL CONSEQUENCES IN INDIA

Don’t ignore others life because of that life may bread and butters of Particular Family“Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, criminal courts cannot treat the nature of the offence under Section 304A IPC as attracting the benevolent provisions of Section 4 of the PO Act. While considering the quantum of sentence, to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence.” (Dalbir Singh v. State of Haryana [(2000) 5 SCC 82).

In State of Karnataka v. Krishna alias Raju [(1987) 1 SCC 538], while dealing with the concept of adequate punishment in relation to an offence under Section 304-A of the IPC, the Court stated that considerations of undue sympathy in such cases will not only lead to miscarriage of justice but will also undermine the confidence of the public in the efficacy of the criminal justice dispensation system. It need be hardly pointed out that the imposition of a sentence of fine of Rs. 250 on the driver of a Motor Vehicle for an offence under Section 304-A of the IPC and that too without any extenuating or mitigating circumstance is bound to shock the conscience of any one and will unmistakably leave the impression that the trial was a mockery of justice. Thereafter, this Court enhanced the sentence to six months rigorous imprisonment with fine of Rs. 1000 and, in default, to undergo rigorous imprisonment for two months.

“Law demands that the offender should be adequately punished for the crime, so that it can deter the offender and other persons from committing similar offences. Nature and circumstances of the offence; the need for the sentence imposed to reflect the seriousness of the offence; to afford adequate deterrence to the conduct and to protect the public from such crimes are certain factors to be considered while imposing the sentence.” (State TR. P.S. Lodhi Colony, New Delhi v. Sanjeev Nanda [2012 (7) SCALE 120)

INTERPRETATION OF MESNE PROFIT

As per the Code of Civil Procedure Section 2 (12) read as follows"mesne profits" of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received there from, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession;

A Division Bench of Hon’ble High Court of Karnataka in Thammegowda V/s Siddegowda (ILR 1991 KAR 4506) held that “In a suit for partition and separate possession, the question of mesne profits does not arise. The coparcener who will be in possession of the joint family property will be liable to account for the profits derived from the joint family property in excess of his share. The possession of a coparcener of the joint family property is not unlawful because his right extends over the entire joint family property until it is divided by metes and bounds. The possession of a coparcener of the joint family property until it is divided by metes and bounds does not become unlawful so as to make him liable for mesne profits. Therefore, the question of mesne profits does not arise. Of course, he has to account for the income of the share of the plaintiff from the date of the suit till the date of delivery of possession. Therefore, the trial court is not justified in directing that the plaintiff is entitled to future mesne profits from the date of suit. It ought to have directed that the plaintiff is entitled to accounts of the profits of his share from the date of the suit tilt the date of delivery of possession.”.

Mesne profit shall be awarded from the date of institution of the suit till delivery of possession as held by Hon’ble Supreme Court in AIR 1977 SC 223 between Dalhousie Properties Limited V/s Surajmull Nagarmull. The rate of interest shall be reasonable. To that purpose, Section 34 of the Code of Civil Procedure is applicable. The interest shall be awarded on lump sum amount on mesne profit amount. The interest shall not be exceed @ 6% per annum (AIR 1965 SC 1231 (Mahanth V/s TT Devastanam).  

PROSTITUTION SHOULD BE LEGALIZED IN INDIA AS A PROFESSION UNDER THE 19(1)(g) OF THE INDIAN CONSTITUTION.

Every Women has right to choose any profession as her wish which is guaranteed by the Indian Constitution under the  Article 19(1)(g) by following reasonable restrictions, she could participate any profession by using her personal knowledge, intellectual capacity and personal physical body through protecting moral values which have been notified in the laws. As you aware, now a days innumerable crimes ratio increased related to women even though rigid laws enacted by the Central Government. In such being, the prostitution profession still treated as vulgar and immoral profession and it has been kept under the eagle eyes. As per the reliable sources, majority of the people would like to watch the porn movies but not in the public places which means private places. Hence, Government pondering over sexual education introduce in the School Education.

Prostitution is one of the world’s oldest trades.  When the human being incarnated in the society that this profession was getting new origin in different manner in the different countries. In olden days, under the principles of “King can do no wrong”, young girls were had been used for dance and sexual satisfaction by the King dynasty in different manner without any legal hassles due to king was the law maker. Now, the politicial doing the same as king. However, there have been innumerable debates happenings on its legalization in India because due to women status are treating very lowest grade who have entered this trade find it very hard to report abuse, which is very common practice.

According to reliable sources, there are more than 2.9 million prostitutes in the country.

There are three Acts have been established for this trade, Suppression of Immoral Traffic in Women and Girl Act -1956, Prevention of Immoral Traffic Act-1956 and the Immoral Traffic (Prevention) Act-1956.

In my opinion, prostitution profession must be legalize in India by clinching right under the Indian Constitution's Article 19(1)(g) to avoid sexual harassment and rape in the society. By doing so, people will get their sexual fulfillment by easy method without legal hassles and it will be helpful to reduce their temptation level whenever the people gets the motivation from the any porn videos, picture or girl’s peculiar dress code.  

The Right to Live with dignity has been recognized as a part of Article 21 and the matter has been dealt with in Francis Coralie Mullin v. Administrator, Union Territory of Delhi and Ors. (1981) 1 SCC 608 wherein the Court observed:

But the question which arises is whether the right to life is limited only to protection of limb or faculty or does it go further and embrace something more. We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing one-self in diverse forms, freely moving about and mixing and commingling with fellow human beings. Of course, the magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must, in any view of the matter, include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human-self. Every act which offends against or impairs human dignity would constitute deprivation pro tanto of this right to live and it would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights. Now obviously, any form of torture or cruel, inhuman or degrading treatment would be offensive to human dignity and constitute an inroad into this right to live and it would, on this view, be prohibited by Article 21 unless it is in accordance with procedure prescribed by law, but no law which authorises and no procedure which leads to such torture or cruel, inhuman or degrading treatment can ever stand the test of reasonableness and non-arbitrariness: it would plainly be unconstitutional and void as being violative of Articles 14 and 21.”

SUPREME COURT CONFIRMED WHICH TYPE OF SALE TRANSACTION THROUGH GENERAL POWER OF ATTORNEY IS VALID?

The Hon’ble Supreme Court made it clear that in M/s. Suraj Lamp Industries Pvt. Ltd Vs State of Haryana & others vide Special Leave Petition No.13917 OF 2009, Court observations are not intended to in any way affect the validity of sale agreements and powers of attorney executed in genuine transactions. For example, a person may give a power of attorney to his spouse, son, daughter, brother, sister or a relative to manage his affairs or to execute a deed of conveyance. A person may enter into a development agreement with a land developer or builder for developing the land either by forming plots or by constructing apartment buildings and in that behalf execute an agreement of sale and grant a Power of Attorney empowering the developer to execute agreements of sale or conveyances in regard to individual plots of land or undivided shares in the land relating to apartments in favour of prospective purchasers. In several States, the execution of such development agreements and powers of attorney are already regulated by law and subjected to specific stamp duty. Our observations regarding ‘SA/GPA/WILL transactions’ are not intended to apply to such bonafide/genuine transactions.  

MEDICAL NEGLIGENCE AND MALPRACTICE

2012 (6) CTC 739 

Dr. J.S. Rajkumar and Anr Vs Assistant Commissioner of Police, cyber Crime Cell, Central Crime Branch, Egmore, Chennai-8 and Anr 

Torts – Medical Negligence  – Gross Negligence – Doctor conducting bariatric surgery on patient aged 20 years – Post-operation patient complaining of abdominal pain on fluid collection in abdominal cavity – Doctor performing second surgery and claimed to clean cavity, drain collection and close seat of perforation – Patient, however, even after second surgery became critical – Drainage tube recklessly removed by within three days of operation – Food fed, leaking through perforation, could not be drained on account of removal of drainage tube - Infection of patient progressing severely – Said acts of Doctor, held, constitute gross negligence. 

Code of Criminal Procedure, 1973 (2 of 1974), Section 482 – Documents to be considered by Court – Court to only look into documents filed by Police and relied upon by them under Section 207 – Documents produced by Accused not to be considered, unless same is impeccable in nature – Statements recorded by witnesses under Section 161 not to be relied upon by Court.

Code of criminal Procedure, 1973 (2 of 1974), Section 482 – Medical Negligence – Conflicting opinion of Doctors – Approach of Court – Petition to quash Criminal proceedings initiated on account of alleged gross negligence by Petitioner-Doctor – Two out of three Doctors opining that Petitioner was guilty of gross negligence whereas other three Doctors offering opinion favouring Petitioner – Held, in Petition under Section 482, Court not to make roving enquiry to determine which opinion is acceptable – Duty of Trial Court to test acceptability of said opinions.

Medical Negligence – Factors necessary to prosecute Doctor – Doctor to be guilty of gross negligence and not merely ordinary negligence – Obtaining of independent opinion from unbiased Doctors by Investigating Officer pre-requisite for prosecuting a Doctor – Doctors, dedicated to serving society, ought to be protected from unscrupulous prosecution – Police and Courts to be guarded from being swayed by ill-founded allegations against Doctors.

Criminal Jurisprudence – Medical Negligence – Conflicting opinion of two set of Doctors – In case of conflicting opinion given by Doctors, Police not to close case by accepting opinion favouring Accused – Police bound to file Final Report leaving it to decision of Court as to acceptability of said opinions. 

Indian Penal Code, 1860 (45 of 1860), Section 304-A – Code of Criminal Procedure, 1973 (2 of 1974), Section 482 – Medical Negligence – Gross Negligence, whether attributable to Hospital, where Doctor was working? – Offence registered against Doctor for negligently causing death of patient – Hospital, where Doctor was working also arrayed as Accused – No material available on record to maintain prosecution against Hospital – Criminal proceedings against hospital, quashed.

Sources and compiled by;Tamil Nadu State Judicial Academy 

OCCUPANCY CERTIFICATE FOR FLAT

Occupancy Certificate and Completion Certificate is mandatory documents before entering into flats. But now a days, the flat buyers have no patience to wait to receive the Occupancy Certificate due to avoid rent and fed up with the builder towards the delay in delivery of Possession. For more details see this pic.

Sources: www.kaanoon.com 

If you would like to know more information with respect to any legal issue visit the said website

Indian Laws related to Women The Crimes notified Under the Indian Penal Code (IPC) Rape (Sec. 376 IPC) Kidnapping & Abduction for different purposes ( Sec. 363-373) Homicide for Dowry, Dowry Deaths or their attempts (Sec. 302/304-B IPC) Torture, both mental and physical (Sec. 498-A IPC) Molestation (Sec. 354 IPC) Sexual Harassment (Sec. 509 IPC) Importation of girls (up to 21 years of age)

• WOMEN-SPECIFIC LEGISLATIONS
1. The Immoral Traffic (Prevention) Act, 1956
2. The Dowry Prohibition Act, 1961 (28 of 1961) (Amended in 1986)
3. The Indecent Representation of Women (Prohibition) Act, 1986
4. The Commission of Sati (Prevention) Act, 1987 (3 of 1988)
5. Protection of Women from Domestic Violence Act, 2005
6. The Sexual Harassment of Women at Workplace (PREVENTION, PROHIBITION and REDRESSAL) Act, 2013
7. The Criminal Law (Amendment) Act, 2013

• WOMEN-RELATED LEGISLATIONS
1. The Indian Penal Code,1860
2. The Indian Evidence Act, 1872
3. The Indian Christian Marriage Act, 1872 (15 of 1872)
4. The Married Women's Property Act, 1874 (3 of 1874)
5. The Guardians and Wards Act,1890
6. The Workmen's Compensation Act, 1923
7. The Trade Unions Act 1926
8. The Child Marriage Restraint Act, 1929 (19 of 1929)
9. The Payments of Wages Act, 1936
10. The Payments of Wages (Procedure) Act, 1937
11. The Muslim Personal Law (Shariat) Application Act, 1937
12. Employers Liabilities Act 1938
13. The Minimum Wages Act, 1948
14. The Employees' State Insurance Act,1948
15. The Factories Act, 1948
16. The Minimum Wages Act, 1950
17. The Plantation Labour Act, 1951 (amended by Acts Nos. 42 of 1953, 34 of 1960, 53 of1961, 58 of 1981 and 61 of 1986)
18. The Cinematograph Act, 1952
19. The Mines Act 1952 
20. The Special Marriage Act, 1954
21. The Protection of Civil Rights Act 1955
22. The Hindu Marriage Act, 1955 (28 of 1989)
23. The Hindu Adoptions & Maintenance Act, 1956
24. The Hindu Minority & Guardianship Act, 1956
25. The Hindu Succession Act, 1956
26. The Maternity Benefit Act, 1961 (53 of 1961)
27. The Beedi & Cigar Workers (Conditions of Employment) Act, 1966
28. The Foreign Marriage Act, 1969 (33 of 1969)
29. The Indian Divorce Act, 1969 (4 of 1969)
30. The Contract Labour (Regulation & Abolition) Act, 1970
31. The Medical Termination of Pregnancy Act, 1971 (34 of 1971)
32. Code of Criminal Procedure, 1973
33. The Equal Remuneration Act, 1976
34. The Bonded Labour System (Abolition) Act, 1979
35. The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979
36. The Family Courts Act, 1984
37. The Muslim women (Protection of Rights on Divorce) Act, 1986
38. Mental Health Act, 1987
39. National Commission for Women Act, 1990 (20 of 1990)
40. The Protection of Human Rights Act, 1993 [As amended by the Protection of Human Rights (Amendment) Act, 2006 - No. 43 of 2006] 
41. Juvenile Justice (Care and Protection of Children) Act, 2000
42. The Child Labour (Prohibition & Regulation) Act
43. The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994
44. The Prohibition of Child Marriage Act, 2006

 Sources: Internet, Google

HIGH COURT CLARIFICATION OVER THE NEW BBMP CIRCULAR ON DETERMINATION OF ROAD WIDTH AND FAR CALCULATION DURING THE PLAN APPROVAL.

On 11.09.2015 the BBMP had issued a Circular No.739/2015-16 with respect to Parameter for Road width determination and Floor Area Ratio while sanctioning Plans.

The said circular was been issued due to the Land Owner used to mention road width measurement as Sq.Meeter instead of Sq.Feet. By doing so, confusion is going on while determination of FAR.

Hence, the BBMP issued this parameter Circular for their internal officer’s information as portrayed in Writ Petition.

By dint of this circular, M/s. Confederation of Real Estate Developers Association of India has filed a Writ Petition by challenging this circular before the Hon’ble High Court of Karntaka in WP No.48948/2015.

Subsequently, the Hon’ble Mr. Justice H.G. Ramesh has orally passed order which is recorded that Mr. Nanjunda Reddy, who is designate learned senior counsel for Petitioner has argued that this circular is contrary to the Zoning of Land use & Regulation Revised Master Plan 2015 and Learned Advocate General submitted that the State Government has received suggestion from the BBMP with respect to the same and the same process is under process to bring about uniformity all over the State.

Finally, Advocate of the BBMP submitted that the impugned Circular is only for internal guidance of officers of the BBMP and while considering the applications for sanction of building plans, the BBMP will follow the Zoning of Land use & Regulation Revised Master Plan 2015 for the Bangalore Metropolitan Area. His submission is placed on Court Records.

Hence, as per the BBMP learned Counsel request, the Hon’ble Court did not pass any order in this Writ Petition and this petition accordingly disposed off.

Therefore, don’t worry about this circular and all previous existed zonal regulations are still applicable while determination of Road width and FAR calculation.

EXCEPTION FOR CONVERSION OF LAND WITHIN MUNCIPALITY LIMITS

In M Muninarayana Swamy, vs State Of Karnataka

DIVISION BENCH OF KARNATAKA HIGH COURT consisting of THE HON'BLE MR.JUSTICE K.L.MANJUNATH AND THE HON'BLE MR.JUSTICE V.SURI APPA RAO in the case of M Muninarayana Swamy, vs State Of Karnataka reported in ILR 2012 KAR 3428, held that ……………….. when the property situated within the Town Municipal Council area when Town Municipal Council has collected development charges from the appellants and granted plan for construction of the compound and in the planning area if it has lost the character of agriculture, the Dy. Commissioner will not get any right to cancel the khata on the ground that the appellants have not obtained an order of conversion. …………… Therefore, we are of the opinion that there is no necessity for the appellants to obtain conversion from agriculture to non-agriculture, if the area comes within the Town Municipal council limits and in the background of Town Municipal Council collecting the developmental charges and treated as Municipal property.

Sources: Sridhar Babu, Advocate