PROCEDURE FOR FAST TRACK MERGER UNDER SECTION 233 OF THE COMPANIES ACT, 2013 (“ACT”) READ THE COMPANIES (COMPROMISES, ARRANGEMENTS AND AMALGAMATIONS) RULES, 2016 (“RULES”)

By

-

March 3, 2017

This article on the procedure for fast track merger under Section 233 of the Companies Act, 2013 is written by Anisha Kumar, a lawyer, currently working with DSK Legal, Mumbai.

Continue

All You Need To Know About Cyber Laws In India

By

Ajay Thakur

-

March 3, 2017

1

This article is co-authored by Yashraj Bais and Raghav Vaid.

Introduction

The computer-generated world of internet is known as cyberspace and the laws prevailing this area are known as Cyber laws and all the users of this space come under the ambit of these laws as it carries a kind of worldwide jurisdiction. Cyber law can also be described as that branch of law that deals with legal issues related to use of inter-networked information technology. In short, cyber law is the law governing computers and the internet.

The growth of Electronic Commerce has propelled the need for vibrant and effective regulatory mechanisms which would further strengthen the legal infrastructure, so crucial to the success of Electronic Commerce. All these governing mechanisms and legal structures come within the domain of Cyber law.

Cyber law is important because it touches almost all aspects of transactions and activities and on involving the internet, World Wide Web and cyberspace. Every action and reaction in cyberspace has some legal and cyber legal angles.

Cyber Crime is not defined in Information Technology Act 2000 nor in the National Cyber Security Policy 2013 nor in any other regulation in India. In fact, it cannot be too. Crime or offence has been dealt with elaborately listing various acts and the punishments for each, under the Indian Penal Code, 1860 and quite a few other legislations too. Hence, to define cyber-crime, one can say, it is just a combination of crime and computer. To put it in simple terms ‘any offence or crime in which a computer is used is a cyber-crime’. Interestingly even a petty offence like stealing or pick pocket can be brought within the broader purview of cybercrime if the basic data or aid to such an offence is a computer or an information stored in a computer used (or misused) by the fraudster. The I.T. Act defines a computer, computer network, data, information and all other necessary ingredients that form part of a cybercrime.

In a cyber-crime, computer or the data itself the target or the object of offence or a tool in committing some other offence, providing the necessary inputs for that offence. All such acts of crime will come under the broader definition of cyber-crime.

Cyber law encompasses laws relating to:

Cyber crimes
Electronic and digital signatures
Intellectual property
Data protection and privacy

History

The Internet is a global system of interconnected computer networks that use the standardized Internet Protocol Suite (TCP/IP). It is a network of networks that consists of millions of private and public, academic, business and government networks of local to global scope that are linked by copper wires, fiber optic cables, wireless connections and other technologies. The Internet carries a vast array of information resources and services, most notably the inter-linked hypertext documents of the World Wide Web (WWW) and the infrastructure to support electronic mail, in addition to popular services such as online chat, file transfer and file sharing, online gaming, and Voice over Internet Protocol (VoIP) person to person communication via voice and video. The origins of the Internet dates back to the 1960s when the United States funded research projects of its military agencies to build robust, fault tolerant and distributed computer networks. This research and a period of civilian funding of a new U.S. backbone by the National Science Foundation spawned worldwide participation in the development of new networking technologies and led to the commercialization of an international network in the mid-1990s, and resulted in the following popularization of countless applications in virtually every aspect of modern human life.

The terms ‘Internet’ and ‘World Wide Web’ are often used in everyday speech without much distinction. However, the Internet and the World Wide Web are not one and the same. The Internet is a global data communications system. It is a hardware and software infrastructure that provides connectivity between computers. In contrast, the Web is one of the services communicated via the Internet. It is a collection of interconnected documents and other resources, linked by hyperlinks and Uniform Resource Locator (URLs).

The World Wide Web was invented in 1989 by the English Physicist Tim Berners-Lee, now the Director of the World Wide Web Consortium, and later assisted by Robert Cailliau, a Belgian computer scientist, while both were working at CERN in Geneva, Switzerland. In 1990, they proposed building a “web of nodes” storing “hypertext pages” viewed by “browsers” on a network and released that web in December.

Overall the Internet usage saw a tremendous growth. From 2000 to 2009, the number of Internet users globally rose from 394 million to 1.858 billion. By 2010, 22 percent of the world’s population had access to computers with one billion Google searches every day, 300 million Internet users reading blogs and two billion videos viewed daily on YouTube.

After English (27%), the most requested languages on the World Wide Web are Chinese (23%), Spanish (8%), Japanese (5%), Portuguese and German (4% each), Arabic, French and Russian (3% each), and Korean (2%). Bu region, 42% of the world’s Internet users are based in Asia, 24% in Europe, 14% in North America, 10% in Latin America and the Caribbean taken together, 6% in Africa, 3% in the Middle East and 1% in Australia/Oceania.

https://lawsikho.com/course/diploma-cyber-law-fintech-technology-contracts — Click Above

Need for Cyber Law

In today’s techno-savvy environment, the world is becoming more and more digitally sophisticated and so are the crimes. Internet was initially developed as a research and information sharing tool and was in an unregulated manner. As the time passed by it became more transactional with e-business, e-commerce, e-governance and e-procurement etc. All legal issues related to internet crime are dealt with through cyber laws. As the number of internet users is on the rise, the need for cyber laws and their application has also gathered great momentum.

In today’s highly digitalized world, almost everyone is affected by cyber law. For example:

Almost all transactions in shares are in demat form.
Almost all companies extensively depend upon their computer networks and keep their valuable data in electronic form.
Government forms including income tax returns, company law forms etc. are now filled in electronic form.
Consumers are increasingly using credit/debit cards for shopping.
Most people are using email, phones and SMS messages for communication.
Even in “non-cyber crime” cases, important evidence is found in computers/cell phones eg: in cases of murder, divorce, kidnapping, tax evasion, organized crime, terrorist operations, counterfeit currency etc.
Cybercrime cases such as online banking frauds, online share trading fraud, source code theft, credit card fraud, tax evasion, virus attacks, cyber sabotage, phishing attacks, email hijacking, denial of service, hacking, pornography etc. are becoming common.
Digital signatures and e-contracts are fast replacing conventional method of transacting business.

Technology per se is never a disputed issue but for whom and at what cost has been the issue in the ambit of governance. The cyber revolution holds the promise of quickly reaching the masses as opposed to the earlier technologies, which had a trickle-down effect. Such a promise and potential can only be realized with an appropriate legal regime based on a given socio-economic matrix.

The rising Cyber Crime

As per the cybercrime data maintained by National Crime Records Bureau (NCRB), a total of 217, 288, 420 and 966 Cyber Crime cases were registered under the Information Technology Act, 2000 during 2007, 2008, 2009 and 2010 respectively. Also, a total of 328, 176, 276 and 356 cases were registered under Cyber Crime related Sections of Indian Penal Code (IPC) during 2007, 2008, 2009 and 2010 respectively. A total of 154, 178, 288, 799 persons were arrested under Information Technology Act 2000 during 2007-2010. A total number of 429, 195, 263 and 294 persons were arrested under Cyber Crime related Sections of Indian Penal Code (IPC) during 2007-2010.

As per 2011 NCRB figures, there were 1791 cases registered under the IT Act during the year 2011 as compared to 966 cases during the previous year (2010) thereby reporting an increase of 854% in 2011 over 2010.

Of this, 19.5% cases (349 out of 1791 cases) were reported from Andhra Pradesh followed by Maharashtra (306), Kerala (227), Karnataka (151) and Rajasthan (122). And 46.1% (826 cases) of the total 1791 cases registered under IT Act, 2000 were related to loss/damage to computer resource/utility reported under hacking with computer systems.

According to NCRB, the police have recorded less than 5000; only 4829 cases and made fewer arrests (3187) between 2007 2011, under both the Information Technology (IT) Act as well as the Indian Penal Code (IPC).

And convictions remain in single digits, according to lawyers. Only 487 persons were arrested for committing such offences during the year 2011. There were 496 cases of obscene publications/transmission in electronic form during the year 2011 wherein 443 persons were arrested.

A major program has been initiated on development of cyber forensics specifically cyber forensic tools, setting up of infrastructure for investigation and training of the users, particularly police and judicial officers in use of this tool to collect and analyse the digital evidence and present them in Court.

Indian Computer Emergency Response Team (CERT-In) and Centre for Development of Advanced Computing (CDAC) are involved in providing basic and advanced training of Law Enforcement Agencies, Forensic labs and judiciary on the procedures and methodology of collecting, analysing and presenting digital evidence.

Cyber forensic training lab has been set up at Training Academy of Central Bureau of Investigation (CBI) to impart basic and advanced training in Cyber Forensics and Investigation of Cyber Crimes to Police Officers associated with CBI. In addition, Government has set up cyber forensic training and investigation labs in Kerala, Assam, Mizoram, Nagaland, Arunachal Pradesh, Tripura, Meghalaya, Manipur and Jammu and Kashmir.

In collaboration with Data Security Council of India (DSCI), NASSCOM, Cyber Forensic Labs have been set up at Mumbai, Bengaluru, Pune and Kolkata. DSCI has organized 112 training programmes on Cyber Crime Investigation and awareness and a total of 3680 Police officials, judiciary and Public prosecutors have been trained through these programmes.

Indian Computer Emergency Response Team (CERT-In) issues alerts, advisories and guidelines regarding cyber security threats and measures to be taken to prevent cyber incidents and enhance security of Information Technology systems.

Types of Cyber Crimes in India

Ordinarily Cyber Crimes can be classified into several types having regard to its nature and quantum of damage caused to the victim, but the main Cyber Crimes which are presently prevailing in India, and is on its peak are:

Hacking: The Most common and popular type of cyber crime that we might have heard since our childhood. Hacking is the most prevalent cyber crime in almost every part of the World, were technology is being rapidly used by the Human Race. It’s the un-authorized access and use of the victim’s computer by a Hacker to take all the sensitive information like data and images from the target device, who is a learnt person in Cyber Programming. The hacker mis-uses the information being obtained by him via the un-authorized access against the Victim, in order to blackmail or defame him.

Matrimonial Frauds: The most prevailing and latest cyber crime these days is the Matrimonial Frauds. As today’s young generation believes in the instant and rapid results for arranged marriages, that’s the reason for the grand and huge success of dating and matrimonial sites in India. The fraudsters impersonates of being a NRI, Doctor or businessmen only via online mode and after involving some innocent victim in their web, sends a proposal of marriage before them, when the proposal is accepted and a reasonable trust is established between both of them, they demands money by making fake stories and asks the victim to transfer them the money online in the account, as soon as it happens the spouse becomes the prey of the criminals.

Salami Attacks: The newly discovered cyber attack in India, which is on its peak these days, is the salami attack. For Example: A Bank Employee inserts a software in the server of the bank, to deduct a insignificant amount of Rs. 5/- from the Account of each customer and credit it into the Account of the Employee. Such small amount will never be noticed by any customer, but when it seen or analyzed from the viewpoint of thousands of customers as a whole than under such circumstances the amount goes in Crores.

Cyber Stalking: The most common cyber crime these days, stalking simply means constantly following any person, usually females and threatening or messaging them repeatedly even after their objection on the same. Cyber Stalking is punishable u/s.66-A, 67 of Information and Technology Act, 2000 and Section 354-D of IPC, 1860.

Cyber Defamation: Publication or posting any material on social media or other online platforms against a respected citizen of the Country which lowers his integrity and image in the eyes of others, without any evidence with a malafide intension is a Crime in India, which along with the I.T. Act, 2000 is also punishable under Section 499 and Section 500 of Indian Penal Code, 1860.

Banking Fraud: The Banking Fraud is on its peak these, especially in the admist of nation-wide lockdown due to Covid-19. The fraudsters impersonates as representatives of bank, and extorts the crucial and sensitive information like CVV Number, OTP, etc. from the innocent customers by fraudulently deceiving them and making false stories, resulting into credit card and banking fraud. Even some fraudsters installs the skimmer in the ATM Machines, which clones the credit or debit card of the customers, ultimately causing financial losses to them.
Cyber Terrorism: This is the most grave and serious type of cyber crime prevailing in India. In this, tools are used to interrupt in National Infrastructure and Defense by shutting down the energy, transportation and communication facilities. In simple words the Government Websites are being hacked by the criminals and is mis-used in order to damage the Defense and Infrastructure of that particular nation. Ex- Online Threatening Emails to various Government Officials or Ministers, Bomb threats, etc.

Laws for Cyber Crime in India

After the adoption of Policy of LPG in 1991, the Indian has grown tremendously in the field or Import-Export and other related ancillary business activities, including the IT Sector. Owing to the need and seriousness of the Cyber Crimes, Hon’ble Parliament of India enacted Information and Technology Act, 2000 which was notified on 17 October, 2000. As from the name itself it can be widely inferred that the Act was having it’s purview and ambit only in the cases dealing with Cyber Crime and Crimes related to the Electronic Commerce.

The Information and Technology Act, 2000 explicitly provides the legal framework for the electronic governance by giving identification to the electronic records and digital signatures, it also expressly defines penalties for culprits after commitment of the cyber crime. It statutorily had also established a Cyber Appellate Tribunal to resolve the disputes especially related to Cyber Crimes and Online Frauds.

Apart from it some of the statutory provisions of Indian Penal Code, 1860 especially in the crime of Fraud, Criminal Intimidation, Cheating, Breach of Trust, Abetment of Suicide via Blackmailing, etc. may be charged on accused having regard to the circumstances, and discretionary powers of the Court, however it must be noted that a person cannot be punished twice for the same offence, as it will violates his Fundamental Right ensured under Article 20 (2) of the Indian Constitution i.e. Double Jeopardy.

Remedies in India

Everyone today must be aware about some very basic provisions of the two Acts which are hereby used as a tool by the Courts for providing remedy to the victims of Cyber Crime. They are as follows:

Information and Technology Act, 2000

Section 65: Tampering with the Computer Source Documents- If a person knowingly or intentionally conceals, destroys or mis-uses any computer source code or software, then he will be punished with an imprisonment which may extend up to three years or fine up to Rs. 20,000/-.

Section 66: Hacking the Computer System- If any individual knowingly with a criminal mind accesses any computer resource in an un-authorized way which causes wrongful injuries to that person or public at large then such offender is likely to be punished with an imprisonment which may extend up to three years or fine up to Rs. 50,000/-.

Section 66-A: Sending of Offensive Messages- The provision was inserted via an Amendment in the IT Act in year 2008 which prevents the user of the computer or electronic device to send any kind of offensive messages, false messages which may likely to cause annoyance or inconvenience to the public at large. The accused is punishable with an imprisonment which may extend up to three years or fine.

Section 66-B: Receiving stolen computer or electronic device- If an individual receives a computer device or any electronic device which he knows to stolen or having a defective title, shall be punished with an imprisonment which may extend up to three years or fine up to Rs. 100000/-.

Section 66-C: Fraudulently using password of any another person: A person fraudulently using the electronic password, or Digital Signature which may be delegated to him for it’s lawful use in the capacity of servant or agent, is punishable with an imprisonment which may extend up to three years or fine up to Rs. 1 Lack.

Section 66-E: Publishing private images of other persons without consent- If any person captures or obtains the private images of any another person and publishes it on any social platform via an electronic medium without the consent of that person, is punishable with an imprisonment which may extend up to three years or a fine of Rs. 2 Lacks.

Section 66-F: Cyber Terrorism- If any individual who is denied to access any particular website of any Ministry or Government Department does so in an un-authorized way which may threaten or can cause detriment to the sovereignty or integrity of India, is punishable with imprisonment which may extend up to life.

Section 67: Publishing information which is obscene via electronic form- If any individual publishes or transmits any message or image which in itself is objectionable in nature, which may lower the image of the alleged person in the eyes of others, is a crime punishable with an imprisonment which may extend up to five years or fine up to Rs. 1 Lack.

Section 67-A: Publishing images or sexual content- If anyone publishes or transmit any image or video which contains serious or violent sexual content in it, then the publisher of such content shall be punished with an imprisonment which may extend up to seven years or fine up to Rs. 1 Lack. In such cases even the person accessing or forwarding such content may also be held liable or can be made a party to the crime, as he is also expressly participating in the offence by doing so.

Section 71: Mis-representation- If any individual makes any mis-representation before the Certifying Authority or conceals any material fact from them for obtaining any license, Digital Signature Certificate shall be punishable with an imprisonment which may extend up to two years or fine up to Rs. 10,000/-.

Jurisdiction

If a crime is committed on a computer or computer network in India by a person resident outside India, then can the offence be tried by the Courts in India?

According to Section 1(2) of Information Technology Act, 2000, the Act extends to the whole of India and also applies to any offence or contravention committed outside India by any person. Further Section 75 of the I.T. Act, 2000 also mentions about the applicability of the Act for any offence or contravention committed outside India. According to this section, the Act will apply to an offence contravention committed outside India by any person, if the act or conduct constituting the offence or contravention involves a computer, computer system or computer network located in India.

A Police officer not below the rank of Deputy Superintendent of Police should only investigate any offence under this Act. (Sec. 78 of I.T Act, 2000)

Without a duly signed extradition treaty or a multilateral cooperation arrangement, trial of such offences and conviction is a difficult proposition.

Intermediaries

Section 79 deals with the immunity available to intermediaries. The Information Technology (Intermediaries guidelines) Rules, 2011 governs the duties of the intermediaries.

“Intermediary” with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet device providers, web hosting service providers, search engines, online payment sites, online auction sites, online market places and cyber cafes.

Intermediary will not be liable for any third party information, data or communication link hosted by him. It will apply only if:

The function of the intermediary is limited to providing access to a communiqué system over which information made available by third parties is communicated or temporarily stored or hosted.
The intermediary does not initiate the transmission or select the receiver of the transmission and select or modify the information contained in the transmission.
The intermediary observes due diligence while discharging his duties.

The intermediary will be held liable if he collaborated or assisted or aided or persuaded whether by intimidations or promise or otherwise in the commission of the unlawful act. He will also be liable if upon receiving actual knowledge or on being notified that any information, data or communication link residing in or connected to a computer resource controlled by it is being used to commit an unlawful act and it fails to expeditiously remove or disable access to that material.

The intermediary should observe the following due diligence while discharging his duties:

The intermediary should publish the rules and regulations, privacy policy and user agreement for access or usage of the intermediary’s computer resource by any person.
Such rules and guidelines, terms and conditions or user agreement shall inform the users of computer resource not to host, display, upload, amend, publish, transmit, update or share any information.
The intermediary should not knowingly host or publish any information or should not initiate the transmission, select the receiver of transmission, and select or modify the information contained in the transmission.
The intermediary, on whose computer system information is stored or hosted or published, upon obtaining knowledge by itself or been brought to actual knowledge by an affected person in writing or through email signed with electronic signature about any such data should act within thirty six hours and where applicable, work with user or owner of such information to disable such information. Further the intermediary should preserve such information and associated records for at least ninety days for investigation purposes.
The Intermediary should inform its users that in case of non-compliance with rules and guidelines, user agreement and privacy policy for access or usage of intermediary computer resource, the Intermediary has the right to immediately dismiss the access or usage lights of the users to the computer resource of Intermediary and remove non-compliant information.
The intermediary should strictly follow the provisions of the Act or any other laws for the time being in force.
When required by lawful order, the intermediary should provide information or any such assistance to Government Agencies who are lawfully authorized for exploratory, shielding, cyber security activity.
The intermediary should take all rational measures to secure its computer resource and information contained therein.

Indian Penal Code, 1860

Section 354-D: Voyeurism- If a man watches a women engaging in a private act, were a reasonable assumption of privacy is expected by the women, captures her image and publishes it via an online medium shall be punished with imprisonment for minimum one year, which may however be extended to three years for the first conviction, in the second conviction it shall be minimum three years, which may extend to seven years and fine.

Section 354-D: Stalking- If a man constantly follows any women and tries to contact her or begin a personal interaction with her, despite of showing an utter dis-interest by the women to do so, or if a man monitors the women on internet or email and keeps a watch on her online activities without any justification or reasonable cause, causing annoyance to that women shall be punished with an imprisonment which may extend to three years for the first conviction, and for the second conviction it may extend to five years and fine.

Section 383: Punishment of Extortion- Whosoever intentionally and illegally puts a person in fear to deliver any property or valuables to him, otherwise he will defame that person by posting some defamatory statement or Article against the said person shall be punished with imprisonment which may extend to three years, or fine, or both.

Section 379: Punishment of Theft- Whosoever dishonestly take away the goods or any electronic record illegally from the possession of its rightful owner without his express consent shall be punished with imprisonment which may extend to three years or with fine or both.

Section 406: Punishment of Criminal Breach of Trust- Whosoever mis-appropriates any movable property like computer device or any electronic device which was entrusted to him for a lawful purpose, causing wrongful damages to its owner shall be punished with imprisonment which may extend to three years or with fine or both.

Section 417: Punishment of Cheating- Whosoever impersonates some other person which he is not or knowingly substitutes such person, and causes wrongful losses to the innocent victim shall be punished with imprisonment which may extend to one year, or fine or both.

Section 471: Using as genuine a forged document or electronic record- Whosoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows to be forged shall be punished with an imprisonment which may extend to two years or fine, or with both.

Section 500: Punishment of Defamation- Whosoever knowingly publishes without any justification or reasonable cause any statement, image or document on social platforms, believing and knowing it to be false against any person, firm, company were such imputation will definitely lower the image and intellect of him in front of the general public, shall be punished with simple imprisonment which may extend to two years or fine or with both.
Section 506: Punishment of Criminal Intimidation- Where a persons threatens other person to harm his reputation, life or property via an electronic means which induces that person to commit an illegal act or prevent him doing an act which is legally obligatory on him shall be punished with imprisonment which may extend to two years, or fine or both.

Applicability of IT Act and IPC both in Cybercrime

Now, the greatest ambiguity ever relating to the applicability of both Information and Technology Act, 2000 and Indian Penal Code, 1860 simultaneously in the Cyber Crimes is prevalent these days also in front of Hon’ble Judiciary. I just want my able readers to wonder for a minute that is applying provisions of both the acts on the culprit of the Cyber Crime, as some on the provisions of IT Act are considerably lenient as compared to the harsh provisions of Indian Penal Code, is justifiable?

The ambiguity was resolved by Hon’ble High Court of Bombay on 6 Nov, 2018 which explicitly delivered it’s Judgement, in the case of Data Theft been lodged by a Kolhapur based Company that develops software for the hospital management against its employees alleging data theft resulting into wrongful looses to the Company. The provisions of IPC for the crime of cheating, breach of trust and theft were invoked, even when it was in purview and were also tried under Section 43 and Section 66 of the IT Act. The High Court highly relied on the decision of Hon’ble Supreme Court of India in the famous case of Sharat Babu Digumar v. NCT of Delhi, and said that “Prosecuting the petitioners under the both IPC and IT Act would be a brazen violation of protection against the double jeopardy, and we are also having a special law in the form of IT Act for specifically curbing and preventing the cyber crimes, in such circumstances prosecution under both the laws for the same offence is un-constitutional.”

Even on 24 March, 2015 the Hon’ble Supreme Court of India, gave a verdict striking-off Section 66-A of the Information and Technology Act, 2000 as un-constitutional in its entirety. It was done due to its massive misuse by the Investigating Authorities against the innocent individuals.

Recently Hon’ble High Court of Bombay also ruled that the Admins of the Whatsapp Groups cannot be held liable for posting any fake or obscene messages by the members in the group under Section 66-A of the IT Act, 2000 as they cannot be punished for the offence which they haven’t committed, however giving instant reaction or removing the member immediately from the Group, or enable only admin can post feature is obligatory on the Admin to justify his bona-fide intension in the eyes of law.

Conclusion

To sum up, though a crime free society is perfect and exists only in illusion, it should be constant attempt of rules to keep the criminalities lowest. Especially in a society that is dependent more and more on technology, crime based on electronic law-breaking are bound to increase and the law makers have to go the extra mile compared to the impostors, to keep them at bay. Technology is always a double-edged sword and can be used for both the purposes – good or bad. Steganography, Trojan Horse, Scavenging (and even Dos or DDos) are all technologies and per se not crimes, but falling into the wrong hands with an illicit intent who are out to exploit them or misuse them, they come into the array of cyber-crime and become punishable offences. Hence, it should be the tenacious efforts of rulers and law makers to ensure that technology grows in a healthy manner and is used for legal and ethical business growth and not for committing crimes.

It should be the duty of the three stake holders viz. i) the rulers, regulators, law makers and agents ii) Internet or Network Service Suppliers or banks and other intercessors and iii) the users to take care of information security playing their respective role within the permitted limitations and ensuring obedience with the law of the land.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

Can a Son Be Disowned? If Disowned, What Are His Rights In The Ancestral Property

By

sunipun

-

March 3, 2017

10

This article is written by Rishabh Pandey from Guru Gobind Singh Indraprastha University, New Delhi.

Introduction

Despite how pious the relationship between parents and their child is, challenging circumstances may arise leading to disputes. Even if after several attempts of resolving the conflict, it does not seem to be an option to carry on the relationship, you may feel the need to sever your ties with your once very beloved son. This article discusses whether you can disown your son or not, and if you can, what rights will he still have in the ancestral property.

Disowning a Son

● Disowning in General:

‘Disowning’ a son is not recognized per se by the Indian legal system. In fact, the term in itself has a very wide scope. Disowning may be in respect to not having any moral relationship with the son; it may have to do with not wanting to maintain the child anymore; it may be done to safeguard oneself from the creditors of the son; or it may be to disinherit the son from your property.

As far as moral obligations are concerned, you may or may not feel the necessity to be obliged to perform them. However, legal obligations towards your son are must to be abided by. For example, you cannot disown a minor child and escape from paying him maintenance under Section 125 of the Code of Criminal Procedure, 1973.

No statute in India makes parents liable to pay the debt incurred by their son who has attained the age of majority. Therefore, you don’t need to take any ‘legal’ step to protect yourself. It is however prevalent and advised that you publish, in two local newspapers which are widely distributed in your area, that you are severing your ties with your son.

Such proclamation in the newspaper doesn’t have a dispositive legal effect, breaking all legally relevant familial ties.^[1]This is a mere gesture to make the public aware of your intentions and sometimes to also warn them from giving any loan to the son.

● Disowning With Respect to Property:

The real legal question here is, whether you can disown your son from your property or not. A person may have two kinds of property:

Ancestral Property: Property inherited by a Hindu from his father, father’s father or father’s father’s father, is ancestral property.^[2] In the words of the Hon’ble Supreme Court of India, “Ancestral property means, as regards sons, property inherited from a direct male lineal ancestor, and as regards collaterals, property inherited from a common ancestor.”^[3]

Self Acquired Property: Any property that is acquired by a person himself, either by the means of his own resources, or through a division of ancestral property, or what he acquires as a legal heir, or through a gift deed or a testamentary document such as ‘will’ etc. is his self acquired property. A property inherited by a person from a brother, uncle, etc. is also a self acquired property.

Right of a son in both the kinds of properties are discussed below.

Right of the Son in the Father’s Self Acquired Property

Defining what self acquisition is, Yagnavalkya says that “whatever is acquired by the coparcener himself without detriment to the father’s estate as present from a friend or a gift at nuptials, does not appertain to the co-heirs.“

If the property is self acquired by the parents, a son has no legal claim in it. You can bequeath your property to anyone you wish to, by the means of will, or you may gift it to any person by a gift deed.

In a recent judgement of Delhi High Court, Justice Pratibha Rani has stated that a son has no legal right in the self-acquired property of his parents, unless he has a proof of his contribution towards the acquisition of the property.

He may be allowed to use the property on permission from his parents, but they are not obligated to allow him to live there.^[4]

She further added, “Where the house is a self-acquired house of the parents, a son, whether married or unmarried, has no legal right to live in that house and he can live in that house only at the mercy of his parents up to the time the parents allow.”

Therefore, you may not only not leave your property to your son, but you can also disallow him from residing at your self acquired house.

It should be noted that if parents die intestate, the son, no matter how poor his relationship was with the parents, will have succession rights in the self acquired property of the parents.^[5]

Right of the Son in the Ancestral Property

Each son, right from his birth, gets an interest in the ancestral property equal to and independent of his father.^[6] The son can assert this equal right with the father only when the grandfather’s property has devolved upon his father and has become ancestral property in his hands^[7].

https://lawsikho.com/course/certificate-criminal-litigation-trial-advocacy — click above

Therefore, any will disposing of the ancestral property along with self acquired property is invalid. In simple terms, a son cannot be excluded from the ancestral property. The intention of the father to disown his son is immaterial.

To find out whether a property is or is not ancestral in the hands of a particular person, not merely the relationship between the original and the present holder but the mode of transmission also must be looked to; and the property can ordinarily be reckoned as ancestral only if the present holder has got it by virtue of his being a son or descendant of the original owner.^[8]

A grandson doesn’t have any claim on the grandfather’s self acquired property. If the grandfather executes a gift deed to transfer the property to his son, the grandson cannot claim the property by contending it to be an ancestral property. Here the son doesn’t receive the property by virtue of his being a son, but because the father wants to give him a gift. The property no longer remains to be an ancestral property merely because it was obtained from the grandfather.^[9]

Moreover, a son not only has an equal right as the father on the ancestral property, but the coparcenary property as a whole.

Coparcenary property means and includes:

Ancestral property
Acquisitions made by the coparceners with the help of ancestral property
Joint acquisition of the coparceners even without such help provided there was no proof of intention on their part that the property should not be treated as joint family property
Separate property of the coparceners thrown into the common stock^[10]

He cannot be excluded from it, regardless of the father’s wishes.

Conclusion

There is no concept of disowning a son in Indian legal system. It is immaterial, whether a father wants to or not, he has to maintain his child until he reaches the age of majority. With respect to the property law, a son may be disinherited from the self acquired property of the father, but he will still have equal rights as the father over the ancestral or the coparcenary property of the Hindu Undivided Family.

What are your views on this? Feel free to comment below & share the article.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content

Reference:

^[1] Preeti Satija vs. Raj Kumari and Anr C.M. APPL.4236/2012, 4237/2012 & 5451/2013

^[2] U.R.Virupakshaiah vs Sarvamma & Anr, Civil Appeal No. 7346 OF 2008, Arising out of SLP (C) No. 11785 OF 2007

^[3] Maktul vs Mst. Manbhari & Others, 1958 AIR 918, 1959 SCR 1099

^[4] Sachin & Anr v. Jhabbu Lal & Anr RSA 136/2016 & CM No. 19123/2016

^[5] Supra Note. 1

^[6] Madanlal Phulchand Jain vs State Of Maharashtra And Ors, 1992 AIR 1254, 1992 SCR (2) 479

^[7] C. N. Arunachala Mudaliar vs C. A. Muruganatha Mudaliar 1953 AIR 495, 1954 SCR 243

^[8] Ibid.

^[9] Ibid.

^[10] Amit Johri vs Deepak Johri & Ors. DEL HC 2014, RFA (OS) No. 23 of 2013

Separation agreement between husband and wife in India

By

Anubhav Pandey

-

March 3, 2017

3

The present youth of India are well aware of their rights and duties. Keeping oneself on the safer side of the law is the demand of the hour. No matter the agreement is commercial or personal in nature, the ultimate motto is to play safe. The same goes with an institution of marriage. Matrimonial agreements such as prenuptial agreements, separation agreements are slowly setting its base in India. Nonetheless, there is much doubt on the enforceability of these marital agreements. Hence, it becomes necessary for us to go deeper into such agreements.

What is a separation agreement

A Separation Agreement is a post-matrimonial agreement. In a separation agreement, the couple mutually decides to separate their way without the help of any judicial intervention. Therefore, without any divorce petition or decree for judicial separation, the couple part their ways.
The most noteworthy point is, separation agreements is entered after getting into the union of marriage.
Consequently, in a separation agreement married couple decides on the issue of maintenance, child custody, property division without any judicial intervention.
In India, a separation agreement is considered against public policy. Hence, courts do not give emphasis to such agreement.

Validity of separation agreement in India

Simply put, a separation agreement does not hold a plausible ground regarding validity as well as enforceability under Indian legal system. The Indian Courts on various instances have ruled out the concept of the separation agreement between husband and wife.

You might get surprised to know that, In India, there exist customs such as chutti-chutta, which is a customary form of mutual divorce. the same as a separation agreement.
Hindu Marriage Act is silent on the issue of a separation agreement in India, The act neither allows nor negates the enforceability of a separation agreement.
In multiple cases, the courts have stated that a separation agreement has no legal sanctity. But this does not mean that it is altogether worthless. The separation agreement paints a picture of intention of the parties.
A significant percentage of cases in Indian court dealing with the issue of a separation agreement are cases where the Indian couples have lived for a considerable time in a foreign land.
Most part of the western world follows the concept of a separation agreement.
The Hindu law upon the subject of separation agreement still retains its archaic character. Marriage in that law is not merely a contract but also a sacrament, and the rights and duties of the married parties are determined solely by the law and are incapable of being varied by their agreement.

Concluding on the point of the validity of a separation agreement, the agreement is not legally binding. The court might use the clauses of a separation agreement for figuring out the intention of the couple seeking a divorce.

Clauses in a separation agreement

Introductory clauses

General clauses such as Date of the agreement, Name of husband and wife, property description. This will be the part of an introductory clause of the agreement.

Information about the parties’ occupations and incomes, and
details about the family property.
This includes everything the couple owns either individually or together. House, car, bank accounts, etc.

Maintenance clause

Most important clause. Maintenance clause in a separation agreement should be designed carefully. Things to consider in a maintenance clause are,

Who will be liable to pay the maintenance? It will be the husband who will provide the maintenance, or the wife is equally bound to pay it.
Be cautious while drafting the maintenance clause, or perhaps any other clause in a separation agreement. The clause should not go against any existing law on maintenance or any public policy.
The clause will address issues such as, what will be the amount of maintenance payable? Till how long will the maintenance be paid? Conditions when the flow of maintenance would stop?

Child custody

This clause will decide the issue relating to child care. The party who will keep the child or children after separation. This clause will solve the issue of financial upliftment of the child.

Division of property

The clause on division of property in a separation agreement divides the personal property of the parties that has not already been divided between them. This includes a wide range of things. Properties, both movable (vehicle, jewelry, etc.) and immovable property such as a house. Take the example of vehicle or retirement benefits.

Vehicle

The parties agree that each will retain the vehicles that are currently in their individual possession, including but not limited to automobiles, recreational vehicles, and that they will execute whatever documents are necessary to effectuate and reflect any changes in the record ownership of such vehicles.

Clause on Post retirement benefits

The couple agrees to waive any rights that each may have in the pension of the other. All other retirement accounts now individually held and maintained will be and remain the separate property of the spouse in whose name the asset is now held.

Full disclosure clause

An undertaking by both the husband and wife that they have not intentionally or unintentionally hidden any material facts on debts or any other asset. The clause on ‘Full-disclosure’ is a safeguard which exempts the parties to hide anything.

A sample template of a separation agreement between husband and wife in India is attached below.

Alternative to Separation Agreements in India

By now it is clear that the chances of enforceability of a separation agreement are seldom possible. When a piece of paper has no value in the eyes of law then why even to think of such agreement? This question might pop into your mind. Therefore, answering this is our duty.

A separation agreement lacks enforceability in the court of law. But this does not mean that its value is degraded all at once. As explained above, the court might find a separation agreement handy for carving the intention of the party. There are alternatives to a separation agreement in India. But these alternatives are not replica or mirror image of a separation agreement. Here are few alternatives to separation agreement.

Judicial Separation.

I need a break! How many times have you thought of it while in a relationship? The concept of Judicial separation is a legal break provided by the court on valid grounds. The court, when being approached by any of the married couple grants a judicial separation.

Judicial separation is an order by the court which permits the couples to live separately for a certain period. While in a judicial separation, the couples are still married. Judicial separation is a last resort before the divorce.
In a separation agreement, the parties do not need to appear in the court for seeking permission to live separately. While in a judicial separation, it is the court which permits the couple to live separately.
Here are the grounds on which one can seek judicial separation.

Where the husband or the wife has deserted the other party in a marriage for more than two years continuously.
On the grounds of cruelty. Where it appears either to the husband or the wife that, it will be harmful or injurious for them to stay with their partner, the court might grant a judicial separation.
Adultery, Conversion of religion, Insanity, an incurable form of leprosy, renunciation of the world by entering into a religious order, not heard of being alive for seven years are few more to name.

Divorce by mutual consent

Divorce by mutual consent is a step further. The main motto of getting into a separation agreement is mostly non-compatibility between the couple. The last resort to get out of the marital bond without being caught into the procedure of court is divorce by mutual consent.

Here is a few know-how on divorce by mutual consent.

Procedure to be followed for filing a petition for divorce by mutual consent-

Both the parties need to file together with a petition seeking a divorce before the District Court.
Before the filing of the petition, married couple should make sure that they are living separately for one year or more. After the petition is allowed, parties are required for filing of the statement.

If any party is not available, any such family member of such party may file the statement on his behalf. Once this is done, ‘First Motion’ is established.

Couple seeking divorce by mutual consent will have to give the reason why they are not able to live together and mention in the petition that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
Court after a period of 6 months and not more than 18 months (cooling-off period) will give a date for listening to the parties.

To know more about divorce by mutual consent, click the following link iPleaders

Repercussions of a separation agreement

A Separation Agreement is easy to go solution. Beware, it has its repercussions too! There might be situations where a separation agreement can be used as a ground for cruelty. And Cruelty is in itself a ground for divorce.

The other party in a marriage might contend that the separation agreement was signed by them under undue influence or coercion. Therefore, watch out for these future repercussions too if you are planning to sign a separation agreement.

Here is a sample template of a separation agreement

This Agreement is entered into on _______________________________, 20________, by and between ____________________________________________ and ___________________________________________. The parties were married on _____________________________, _______.

As a result of disputes and serious differences, they have separated and are now living separate and apart, and wish to continue living apart. They intend to settle by this agreement their marital matters, including child custody, child support, division of property and debts, and their rights to alimony. For these reasons and in consideration of the mutual promises contained in this Agreement, Husband and Wife agree as follows:

LIVING SEPARATE. Husband and Wife will live separate and apart from each other as if they were single and unmarried.
NO HARASSMENT OR INTERFERENCE. Neither party will in any manner harass, annoy, or interfere with the other.
CHILD SUPPORT

The ________________ shall pay the sum of INR _______________ per _______________ as support and maintenance for the minor child (name) in the physical custody of the other parent.
The _______________ shall maintain health insurance coverage for the minor child (name) as long as such insurance is available at a reasonable group rate.
Other: ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________

DIVISION OF PROPERTY

The Husband transfers to the Wife as her sole and separate property: ______(Mention the details of the property, both movable and immovable)____________________________________________ ___________________________________________________________________
The Wife transfers to the Husband as his sole and separate property: (Mention the details of the property, both movable and immovable)___________________________________________________________________

DIVISION OF DEBTS The Husband shall pay, and will not at any time hold the Wife responsible for, the following debts: ______________________________________________________________________

The Wife shall pay, and will not at any time hold the Husband responsible for, the following debts: ______________________________________________________________________ _____________________________________________________________________

ALIMONY (This clause varies. It depends on whether the husband is earning or not. If wife is earning, what is the amount she earns. Social status of the couple.)

o Husband shall pay to the wife shall pay alimony in the sum of INR _____________ per ______________, for a period of _______________________; or until the Wife dies or remarries, whichever occurs first.

EFFECT OF DIVORCE OR DISSOLUTION OF MARRIAGE. In the event of a divorce or dissolution of marriage, this Separation Agreement shall, if the court approves, take its effect.
FINANCIAL DISCLOSURE. The parties have revealed to each other full financial information regarding their net worth, assets, holdings, income, and liabilities; not only by their discussions with each other, but also through copies of their current financial statements, copies of which are attached hereto as Exhibits A and B. Both parties acknowledge that they had sufficient time to review the others financial statement, are familiar with and understand the others financial statement, had any questions satisfactorily answered, and are satisfied that full and complete financial disclosure has been made by the other.

10.WAIVER OF ESTATE. Both parties to this agreement agree to waive any and all right to the estate of the other, including ____________. Each party shall be allowed to pass his or her property freely by will.

INDEPENDENT REPRESENTATION BY COUNSEL. Each party has the right to representation by independent counsel. Each party fully understands his or her rights and considers the terms of this agreement to be fair and reasonable.
EXECUTION OF NECESSARY INSTRUMENTS. The parties will execute and deliver any other instruments and documents that may be necessary and convenient to carry out all of the terms of this Agreement.
ENTIRE AGREEMENT. This instrument, including any attached exhibits, constitutes the entire agreement of the parties. No representations or promises have been made except those that are set out in this Agreement. This agreement may not be modified or terminated except in writing signed by the parties.
BINDING EFFECT. This agreement shall be binding upon the parties, and upon their heirs, executors, personal representatives, administrators, successors, and assigns.

_____________________ ______________________

Wife Husband

(Name, Signature) (Name, Signature)

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

References

[1988 SCCOnline Del 48 Swatantra Ved Shahni v. Santosh Kumari]

Mulla Hindu law 22nd edition.

The Constitution of India, MP JAIN