As painful and stressful as it is to go through a divorce, it is as much important to know the rights that revolve round such an unwanted situation. Particularly in the modern times, when divorces are becoming so common, you need to know about the alimony terms and conditions irrespective of if you are a husband or a wife.
Alimony is derived from the latin word ‘alimonia’ meaning sustenance. India is a land of different religions and hence they also have their own religious customs, traditions and scriptures. The majority population in India being the Hindus, here we shall talk about the Hindu divorce law around alimony. As per the Hindu marriage act of 1955, both husband and wife are eligible to get permanent alimony but if the marriage has been undertaken as per Special Marriage act of 1954, only the wife is eligible to get a maintenance or alimony.
The alimony can be decided by the couple in case where divorce happens under mutual consent. While in case of contesting matters the court takes centre stage and works out the alimony or maintenance. There is no limitation of getting an alimony only if decree is obtained. Even if decree is not obtained by the wife, the court can order the husband to pay the wife an alimony. Though, there is a possibility of no alimony or maintenance as well depending upon the circumstances.
The points that the courts takes into consideration while granting alimony includes the income, assets as well as lifestyle of the husband. Income and financial status take the front seat while taking a decision on the amount of maintenance to be given. Here are some of the factors that lead the way to the decision of the alimony.
The first and foremost point is to check whether the claims of alimony are reasonable enough. The claims that are not reasonable enough cannot be considered by the court. When the wife is taking care of the child, the requirements of the child are also considered and so is the financial condition of the husband and even the duration of the marriage.
Even the financial condition of the wife is taken into account and if the wife is working and earning well then besides his income even her income is considered while deciding on the maintenance.
Further, if the wife remarries, the husband does not have to pay any further alimony to the wife, though he would have to pay for the children staying with the wife. Also, if the future for some reasons the husband is not able to pay the wife, while the wife is doing well financially, the husband can put a petition to the court to ask for changed circumstances. Even if the husband gets rich and his financial condition improves drastically, the wife can file a plea to the court for revision of the alimony.
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Recently, there have been many cases related Triple Talaq law in India, many of which have also been the talk of the town due to the media spotlight provided to some of them. As we all know that Islam is one of the oldest religions of the world and majority of the world population follows Islam after Christianity. The laws around kinship, succession, marriage or divorce are all prescribed under the Holy book of Muslims, the Kuran as well as the various volumes of Hadees. Though, the laws mentioned in the book is misinterpreted by many Muslim scholars today and hence has become a topic of criticism mainly due to the custom of polygamy and Triple Talaq. Even though, the holy book has clearly mentioned that Talaq or divorce should be avoided until and unless it is impossible to stay in the bond of marriage or take it forward. The mean of Talaq is dismissal. But, literally it means setting free, or breaking ties or restraint or letting loose. In the law of Sharia, it means freedom from bondage of marriage only and not any other bondage. Well., legally it means marriage dissolution using appropriate words as per the Islamic law. In Islam there talaq has two forms –
a. Talaq – ul – Ahsan
The is by far the most relevant form of dissolution of marriage because there is a waiting period called Iddat that is provided to the couple wherein they can revoke the announcement within the expiry date and the word Talaq being considered an evil one has to be uttered only once.
b. Talaq – ul- Hasan
This procedure of dissolution of marriage is done as per the holy Quran and Hadees laid down by Prophet Mohammad. As per this mode, the couple can revoke marriage before the end of three Tuhrs, viz time period between two menstrual cycles. The man has to pronounce the word Talaq at the end of every Tuhr and hence, they do get time for revoking their decision.
2. Talaq – ul – Biddat
The holy Quran and Prophet Mohammad have hold marriage as a sacred union and the parties have to undergo reconciliation before divorce. Apparently, as per the holy book and Prophet Mohammad one of three things important for happiness is a righteous wife and also that the bond of marriage and that the bond with wife should be kept intact. While Biddat means innovation, Prophet Mohammad has also said that innovation that is not in agreement of Islam or holly Quran is not permissible. However, the worst part of Talaq-ul-biddat is that it allows a person to dissolve his marriage just by uttering the word Talaq three times. This is also against the Holy Quran statement which says that Men would have to wait till Iddat or period of waiting was completed hence not approve worthy. Well, Talaq-ul-Biddat came into existence during the reign of Caliph Umar in the second century of Islamic Era. He enforce the Triple Talaq mode that too in order to avoid hassles as it was the need of those times. The practice of it had started as a form of convenience by the Arabs who were on the world conquering spree during the era of Caliph Umar. After conquering parts of the Gulf, the Arabs would bring along male and female slaves to Mecca and Madina. The females were very attractive and the Arabs wanted to marry them but the law did not allow irreconcilable divorce. Hence, in order to satisfy their own wants the law of triple alaq at one go was enforced so that they could remarry. This law is said to come into practice from these times.
Recently there was a historic hearing for around six petitions as well as a suo motto PIL that challenged the validity of nikahhalala as well as triple Talaq in Muslims. The Supreme court state during the hearing that it would primarily find out whether the practice was Islam fundamental. If it is then, they would not interfere there. Secondly, if triple Talaq was sacramental and can be enforced as a fundamental right was the other aspect which they would look into.
They also stated that the law was not on any side. It was meant for the equality of the genders as they were on the side of gender justice and women equality. As they believed that Triple Talaq was definitely against the dignity of women, irrespective of religion, they would include triple Talaq in the gender justice issue.
*Source from the Internet
Ask some of the greatest entrepreneurs of today or some of the biggest brands of the world about employees and they all would have one unanimous voice that employees are their biggest assets. It is a fact that people power drives a brand northward. At present many companies offer their employees different benefits and incentives when it comes to employee care. Having said that, there are firms who might not be as concerned about employee rights and might not even follow the rules and regulation around employee hiring, retention, termination or more. But, not all of us are aware of our rights. So, let us take a quick glance through five of the most important rights an employee should be aware off.
1. Minimum Wages Act – All of us might just not be aware of the minimum wages act that is applicable to employees of different categories in India including unskilled and skilled ones and varies across the country. The wage deciding factors are region, type of work, working hours, cost of living and the employer capacity to pay. You can get detailed information by checking the employee wages act.
2. Sexual Harassment Protection – We are not new to sexual harassment cases that have time and again become topics of discussion. For those who are not aware, there is already a sexual harassment act in place for women for prevention, prohibition and redressal brought into effect since 2013. It is a punishable offense and carries imprisonment of upto 3 year and might include fine too. The offenses listed under it include Passing Sexual comments, showing porn, demanding sexual favors, physical advances or contact and other verbal, non verbal or physical and unwelcome conduct or sexual nature.
3. Public Holiday List – The government of India has declared Independence Day, Republic Day and Gandhi Jayanti as the mandatory three national holidays. For any working on this day, prior permission from authorities needs to be taken. The employer needs to provide a compensatory leave or double wages to the employee if made to work on these days.
4. Pregnancy & Parental Leave – Maternity leave is available to all female employees undergoing pregnancy. It is recently increase from 12 weeks to 26 weeks. You may avail the 8 weeks as pre-natal as well. This facility is available to women getting pregnant naturally, through surrogacy or even women opting for adoption. The leave days do vary though depending upon the type of maternity. As for paternal leave, there is no legal obligation and is solely the decision of the employer.
5. Probation rights – The probation period for an employee is kept as 6 months. It could be extended to 3 months more as well but cannot extend more than 2 years. Employers can terminate the employee if the work is found unsatisfactory. In cases otherwise the employee has the right to request an enquiry into the matter of termination.
There are many more laws for employees and its always advisable that you are aware of all of them, so that when the need be you know what your rights are and can use them to the optimum.
While it is the duty of the police to ensure law and order in the society, we all have heard of instances where police have crossed their lines and invaded our human rights. But, many of us due to ignorance are not able to take suitable measures to use our rights when the time comes. So, here is a brief overview about police powers related to search and seizures in India.
Police Interrogation – While there is no law where you can skip police interrogation when normally fit and stopped for one, its only good for you to answer them like a lawful citizen. If you do not cooperate with interrogation they do have the powers to arrest you.
Eg. You are driving on the road in the wee hours of the night and the police stop you. They might want to check your car for any illegal weapons or if its a dry area for unauthorized alcohol. At such a point you need to stop and cooperate further.
Search – Usually a search warrant is required as per the 1973 Criminal Procedure Code of India when it comes to searching your house or offices, but if there is no time to attain the warrant and an immediate search is important they can do so. But, the search has to be carried out in presence of the owners and the seized items if any need to be listed. Two witnesses have to be present alongside as well. Police can carry out a search in your house or office without a warrant if they suspect that you have been hiding a criminal of stuff that is considered unlawful like drugs , etc. As for shared house, in case you are not present, shared areas can be searched by police without warrant but not your private stuff. Police can also search without permission a towed or seized car.
So, it’s advisable for you to cooperate with them and be aware of the law. Having said that if you find any misbehavior or unnecessary harassment from the police, you might as well file your complaint with the human rights commission.
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Pregnancy is the herald of new birth and new life but it is not always a good news for the mother or parents. Sometimes it is unplanned or unwanted. Sometimes it is wrapped up in complications that could be life threatening. So, the Indian Government has listed out some laws related to pregnancy decisions that benefit women because they are the ones who carry the fetus for nine long months and give birth as well.
Child birth is associated with many aspects be it social or financial and an unwanted pregnancy could lead to repercussions of still more serious kind. So, as per section 3(2)b(i) the law mentions these words with respect to pregnancy of a women – ‘grave injury to mental health’. A women owns her body and she has right over it. It emerges from the fundamental rights under article 21 of the Indian Constitution where a woman has every right to live with dignity in the society as a human being. She can terminate her pregnancy under the Pregnancy termination act of 1971. Hence, even a practitioner has to ensure that there is no injury possibility physically or mentally to the pregnant women when terminating the pregnancy.
Termination of pregnancy is a difficult situation for the women and could be the result of considering the growing financial requirements and limitations to sustain the needs of the new born. Also, as per the law, human rights are applicable only on birth and not before that, hence, an unborn fetus does not have the rights to take any decision and only the mother can do so as the pregnancy takes place within her.
The law also indicates the all pregnant women need to be given equal treatment even if they are prisoners. As for prisoner women, they have to be kept under observation as well even if under prison by the medical officer of the prison. Termination of pregnancy by women could be a result of a lot of reasons like working mother, complications, financial issues to name a few. A prisoner needs to be sent to the civil hospital for termination in case she wants to on an immediate basis.
Before talking about the concepts of crime, lets just define crime first. Crime by definition means an act that is capable of being followed by criminal proceedings. Sir William Blackstone defines crime in two ways. One, as an act committed or omitted in violation of public law commanding or forbidding it. Though the definition is limited in the sense that it is only applicable to bulk of criminal law segment that covers political offenses and was modified later. Though the definition of concept of crimes showcases traceable difficulties with respect to the concept, it can still be defined or rather can make sense based on four different frame works.
Social construction is one of them. As culture varies across the length and breadth of the country, it is difficult to create a standard definition of crime as it could vary from culture to culture.
Religious authority is another. Now, there is this huge conflict across religions when it comes to considering something as crime. While it may be a crime in one religion, it may not be in another. Example – women in middle east are not allowed to drive as per the Sharia law of Saudi Arabia. It is considered to be a crime even today, however absurd it may sound in other part of the world. Another example is honor killings and domestic violence which is allowed in certain religions while in certain it is considered as crime as per the basic state law.
Another example is holocaust of Germany wherein Hitler in Nazi Germany ordered a systematic slaughter of the Jewish race, which was not considered a crime then. But today when reviewed, the holocaust is known to be the greatest crime in history of Germany. Even when the trial was carried out only a few officers that were closed associated were held responsible. As for others they were not held responsible as they were only following orders of their seniors and did not commit crimes willingly. This again throws light on the definition of crime and its affects on not only the situation but people involved in the situation.
Thus, as we may see based on the four frameworks explained above including the examples of holocaust, Saudi Sharia law, domestic abuse and honor killings, it can be understood that the definition varies as per time and the ever changing needs of the society. There are more example which can prove that crime as an act is not the same everywhere. For example liquor sale and consumption is a crime in Gujarat but in many other states of India it is not.
Thus, we can clearly see that the definition and concept of crime ranges from individual and personal to historical and social circumstances and hence it is difficult to have one single definition for it.
Though if one has to wish for something related to court proceedings, one would rather wish of staying away from getting into the same, due to its time and money consuming repute. But, when you have to you have to, there is no way else where or out. So, why not be aware about the court and its hierarchy. The first step here begins at the judicial body, village courts, the district court, going up to the high and finally the supreme court.
Village Courts or Panchayats
Better known as gram, lok or nyay panchayats, these courts are set up at village level to resolve disputes arising in villages or rural areas.
These courts are for the urban populace. People at town or city levels can knock their door to seek justice or resolve their dispute. It has a district judge and is supported by many subordinate courts. Every district does have separate courts for labour and families as well as special courts that deal with narcotic drugs, substances act falling under essential commodities.
Every state has their own high court and its generally situated in the capital of the respective state. Many states also have bench courts which refers to high court branches. In the same way, union territories have high court benches of the nearby state. The high court comes into action only if the lower courts cannot hold a trial due to territorial and pecuniary jurisdiction issues.
This is the highest of all the courts in hierarchy and stands at the top. The powers it has form original advisory jurisdiction and appellate powers. There is also a facility for citizens to directly file a suit with the supreme court in case of fundamental rights violation. At times even the President of India asks advisory jurisdiction for advise on certain issues. Supreme court judgments and laws are to be abide by every court in the hierarchy of India.
Some of us aren’t aware about the difference between tribunals and courts. Tribunals and courts are totally different bodies though they work in parallel and tribunals are not a part of the court hierarchy. Apparently, the hierarchy is forms on the basis of the constitutional structure and the reason behind its formation is to ably handle the mammoth population of the country and its problems and issues in a streamlined manner.
While marriage is an auspicious and life changing event in one’s life, divorce is also life changing but heartbreaking. India is one country where most of the females change their surnames to that of their spouses post marriage. They even change it in their identity document like Voters ID, Pan card, Aadhar Card and more. Though, it is not mandatory to do so for a female and is done as a gesture of companionship, doing it and undoing it post a divorce is a matter of choice and involves a systematic legal procedure. Here is a sneak peek into the procedure to change name post a marriage and a divorce.
As a proof of your marriage you need to submit the marriage certificate along with the application to state government gazette office. You can get the form from the office or the online website of State government. It is chargeable and post verification of the proof attached, your name change appears in the published gazette. Copies of the same are couriered to you and you may use them as a legal proof. You also have to publish the name change news in the local newspapers, English and local language preferably.
Post divorce if you want to retain your earlier identity, you will have to apply for the same with a divorce order copy.
In India there is freedom of having any name of your choice and changing it while following legal procedures. You can not only change your name, surname, but a female can use two surnames as well one her maternal and one post marriage together as well. Furthermore, you can even change the surname of your child post divorce unless your husband approves of it.
Having said that, due care has to be taken to ensure the name change is applicable in all the legal and official documents.
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Many brands and companies protect their products with copyright, trademark or other intellectual property rights, the recent one being the Taj Mahal hotels. It is now protected with Trademark under private construction category. But, many of us are not aware of the twist to the law wherein once the property is sold, wherein the rights that it had prior to the sale are nullified.
Here is a simple example to explain the law. For example a well known company sells house paints. Once the cans of the paint are purchased by customers, used and discarded, there’s this other company that collects to cans, refills them with a low quality of paint and resells them at a much lower rate. Now, the inventor of the paint or the authentic owner faces competition and is likely to come up with attractive offers and discount to fight the competition back as he cannot do anything about it. There are no repercussion on what happens once the product is sold. The patent rights extends only through production, creation, manufacture to sale. Once someone purchases the product, the patent is exhausted.
There has been a lot of misconception or confusion with the law of intellectual property rights and due to the same a lot of infringement cases wherein the exhaustion principle applied to products once they were sold become invalid. The supreme court has even re-explained the whole exhaustion principle in a short format that clearly states that the exhaustion principle is applicable to products that are purchased and resold later. But, they have to get into a contract with the customer under refill to do the same and comes with restrictions like one time use and no resell of container or sharing of the ink container, but to name a few.
To combat this issue many companies have adopted various methods like return policy’s around used products. In case of ink as a product, some companies have gone to the extent of installing a chip to track the location of the refilled ink container.
To fight an infringement case in a way that the outcome is positive the company or person filing the infringement needs to keep the design or the item and prove to the court that the design or the process was stolen, copied or reproduced. A legal counsel needs to be hired to litigate. The claim only proceeds after the litigation is attempted through a legal counsel and shows signs of clear violation of intellectual rights. Otherwise if is against to what the Supreme court has explained and re-explained, the case is rejected.
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With globalization at its peak, India is emerging as a global player internationally. So, getting a hang of laws related to enforcing foreign judgments in India is a good idea. Before we move on, let’s define some of the associated legal terms for clarity purpose. While decree means judgment a foreign court is a court that is located outside of India and not established or under the control of Central Government of India. Foreign judgments thus refer to judgments that are made in foreign courts viz courts outside India.
The recognition of a foreign judgment in India is based on certain agreements between countries, bilateral or multilateral understandings or unilaterally at times as well. The decision is said to be recognized only if a country’s jurisdiction accepts the decree/ judgment of another country’s court and passes the judgment on the same lines without asking for a re-hearing of the original lawsuit substance.
There are two ways in which a foreign judgment can be enforced in India.
1. File a petition for execution under section 44A of the CPC
2. File a suit upon the foreign decree/ judgment
Point 1 is only valid for reciprocating countries or territories as per the section 44A of CPC.
As per CPC section 44A, explanation 1, reciprocating territory is defines as any territory or country outside India, declared as a reciprocating territory by a notification in the official gazette.
Some of the countries that fall under the list of reciprocating territories are UK, Bangladesh, UAE, New Zealand, Hong Kong, to name a few. In all there are 12 territories under the category.
Point 2 is valid for non reciprocating territories like USA, where in a law suit has to be filed in an Indian court within a time limit of 3 years of the foreign judgment. The Indian judiciary considers the judgment as evidential.
Decree Execution for Reciprocating Territories
1. If a certified copy of the judgment from a reciprocating territory is provided to the court in India, the judgment is executed in India similar to any other judgment passed by Indian District Court.
2. A certificate from the superior court stating the extent to which the decree can be adjusted or satisfied as a conclusive proof for the same.
3. While executing a decree the proceedings of the district court will be subject to provisions of section 47 and if such a decree falls under any of the exceptions stated under its clauses (a) to (f) and satisfies the court, then the court would reject or refuse execution of the same.
Decree for Execution of Non Reciprocating Territories
If a decree does not pertain to the supreme court of a reciprocating country or a reciprocating territory for that matter, the decree cannot be executed in India directly and a fresh suit needs to be filed in the Indian court on the basis of the foreign courts decree. This decree would then be considered as evidential for the case.
Having said that, it is mandatory under both cases for the decree to clear the test of IPC section 13, which covers certain exceptions with regard to the conclusiveness of a foreign judgment.