Firstly we will start by going through the definition of Costs, strangely enough, this has not been defined anywhere in the Civil Procedure Code, 1908. So we refer to Halsbury’s laws of England 4th Edn., Vol 12, P 414 which defines it as “the sum of money which the court orders one party to pay to another party in respect of the expenses of litigation incurred.” The Civil Procedure Code 1908, was drafted more than a century ago and with that Section 35 (1) came into force which tells us that the courts shall have full power and discretion to whom and to what extent the costs are to be paid. The drafters of the Code even went so far to state that even the absence of jurisdiction does not deprive the court to exercise the power of costs. This makes abundantly clear the importance of costs that the drafters had in mind. The intention of the drafters and the purpose of cost was to -:
Compensate the successful party at the behest of the unsuccessful one.
To avoid and more importantly, discourage unnecessary and frivolous proceedings.
As both parties had incurred expenses in contesting the proceeding, the successful party shall be compensated for expenses incurred by him.
This article is dedicated towards discussing costs with respect to the Civil Procedure Code, 1908 thereby highlighting on the different aspects of the subject-matter to its readers.
Principle behind the imposition of costs
The principle behind the imposition of costs was that the defeated party should bear the burden of the winning party’s case. The purpose of this section was amongst many other things to discourage frivolous litigation. But more than a century after coming into the force, this section has been rendered worthless. It is also worthwhile to note that the Apex Court has taken notice of this fact time and again and has rendered numerous judgments to the effect and purpose of the cost, one of which was in the Salem Advocate Bar Association v. Union of India (2005) wherein the Supreme Court observed that there was an unfortunate practice by the judiciary directing the parties to bear their own costs, which furthers that many unscrupulous parties could take advantage at the behest of the successful and ethical parties.
Even after more than two decades since this momentous judgment by the Hon’ble Apex Court, the trend of civil courts neither passing directions on costs or assigning reasons for the denial of the same has hardly changed. This clearly contravenes and defeats the purpose of costs and virtually renders Section 35 of the Code toothless. This has the direct effect of numerous litigants filing frivolous suits, applications and appeals without any fear of being penalized and has the ripple effect of increasing pendency of unnecessary litigation in addition to the constant harassment of rightful litigants.
Other provisions relating to costs
Now that we have gone through the definition, purpose and effect of costs, let us have a look at other provisions of law relating to costs.
Section 35 (2) – This puts a mandate on the courts to record reasons when costs are not awarded thereby binding the courts to always award costs or record comprehensive reasons for denying them. There can be realistic situations where the court may not award cost, for example, in cases where it finds that both the parties are at fault even though the suit goes in favour of one, or when the successful party incurred the expenses because of its fault or delay. Or when the party does not come to the court with clean hands.
Order XXA: The Order begins with the phrase “without prejudice to the generality of the provisions of the Code relating to costs”. Then, it proceeds to set out when the court may award costs. These are the factors to be taken into consideration while awarding costs and are the expenditures incurred before the institution of the suit, at the time of institution of the suit and during the trial as well.
Section 35A: This provision of the Code was inserted by the Act of 1922 which gave the power to the Courts to impose costs on the parties which raise claims or defences that are false or vexatious. These costs are related to the false and frivolous nature of the plea raised in the proceeding by a party. In effect, it penalizes the conduct of the party who has set up a false or frivolous claim/plea and awards an additional amount under the head of costs.
The only limitation being that a proviso was added to Section 35A (2) as well wherein the upper limit of Rs. 3,000/- (which was only increased with the Act of 1976, being Rs. 1,000/- earlier) was decided. Whatever the position in 1976 was, almost five decades since then, Section 35A with its ceiling limit of three thousand rupees can no longer be considered as a deterrent against frivolous or vexatious claims or defences. The amount that could be awarded to a party to the litigation under Section 35A has no relation to the actual expenses incurred by that party. The expression “compensatory” is not, in fact, appropriate.
Section 95 – Section 95 of the Code provides that where, the court is of the opinion that either an arrest, attachment or injunction has been made unjustly or there was no probable cause for instituting a suit. In these cases the defendant is entitled to apply to the court and the court can grant a compensation of an amount not exceeding Rs. 50,000/-.
Section 35B of the Code inserted by Act of 1976: The ambit of Section 35B is to include costs for obtaining adjournment for any reason. It empowers the court to make an order requiring a party who is causing delay in the proceedings to pay to the opposite party the cost, which in court’s opinion is sufficient for their reimbursement.
Section 35B which is indeed narrower than that of the scope of Section 35A covers two situations:
Firstly, where a party to the suit fails to take a step required by him on the date of hearing.
Secondly is obtaining an adjournment for producing evidence or “on any other ground”. In either event, costs can be ordered by the court. Section 35B requires reasons to be recorded for making.
Present situation
The 48th Chief Justice of India, NV Ramana, at a judicial conference showed concern for the grave situation of the pendency of cases in India and further stated that one of the primary reasons for huge backlogs “is a specific type of litigation wherein parties with resources attempt to frustrate the judicial process and delay it by filing numerous proceedings across the judicial system”. Further classification of the pendency of cases make it explicitly clear that 87.6 % of these cases are pending in the subordinate courts whereas the 12.3% are pending in the high courts.
Currently the Indian judiciary is heavily burdened with litigation and one of the primary reasons that is always swept under the radar is the reluctance of courts to order costs which is contrary to the mandate of the civil procedure and the numerous judgments of the Apex Court. It was held in SALEM ADVOCATE {supra} that to prevent frivolous and vexatious suits in addition to preventing unreasonable delay costs must be imposed and the practice of awarding realistic costs shall be adopted instead of awarding nominal costs.
The Supreme Court in Ashok Kumar Mittal vs. Ram Kumar Gupta (2008) held that currently the system followed by the courts whereby meagre or no costs are awarded is far from a deterrent and not at all satisfactory and it is a need of the hour that a more realistic approach should be followed.
Additionally, Supreme Court in Manindra Chandra Nandi vs. Aswini Kumar Acharjya (1921) was of the opinion that the most important factor at the time of awarding cost must be to compensate the successful party instead of punishing the unsuccessful one.
Research in a certain demographic
The following findings were made out after around thirty judgments of the various district courts in Delhi (additional district judges) were gone through:. Out of the 30 civil suits judgments observed in Delhi District Courts it was found that only in two judgments the court had awarded nominal costs and in five judgments the costs of the suit was awarded for the plaintiff . Whereas in the rest of judgments there was either no comment upon the cost or parties to bear their own costs was mentioned by the trial courts. Again, This is against the mandate and in complete contravention to S.35 of The Code.
The category wise breakdown of all the judgments concerning costs is mentioned hereinbelow – : Parties to bear their own costs – 12 No order as to costs – 8 No mention of costs – 3 Nominal costs awarded – 2 Costs of the suit is also awarded for the plaintiff – 5
Majority of the cases are disposed of either by stating “no order as to costs” or “parties to bear their own costs.” In addition going through these judgments it has also been quite apparent that reasons are seldom recorded for not awarding the costs.
Suggestion to further solidify law of costs
The 240th Law Commission Report by Justice P V Reddi titled “Costs In Civil Litigation” was released on 9th May 2012 under the observations made by the Supreme Court in three cases – Ashok Kumar Mittal (2009),Vinod Seth (2010) and Sanjeev Kumar Jain (2011). The threefold goal of the commission was to provide realistic costs to the successful parties, curb frivolous and vexatious litigations and to discourage unnecessary adjournments. Some of the most important recommendations made by the commission are enlisted herewith – :
Concerning Section 35A of the Code the ceiling limit of Rs. 3,000/- needs to be enhanced to Rs. 1,00,000/-. In addition “exemplary” shall be substituted with “compensatory”.
Further Section 95 of the Code needs to be amended in order to raise the ceiling from Rs.50,000/- to Rs. 1,00,000/-.
The costs for seeking an adjournment must be high and in addition, a uniform approach shall be developed for trial courts.
The principle of costs shall follow the event and must be followed by courts more seriously.
Costs awarded to a successful party shall be realistic and reasonable.
Factors to be taken into consideration while awarding costs
Finally coming to what the court has to consider when deciding on the quantum of costs, some of the factors are mentioned hereinbelow -:
Time spent by the successful party in the proceeding – Civil litigations take a long time and therefore this time has to be compensated for, the longer the trial is delayed should be reflected on the costs awarded by the courts to the successful litigants.
Court fees – Litigants spend a huge amount on the court fees and it is only just that the same should also be taken into account during the decision on costs.
Lawyers’ fees – The most substantial part of an expense incurred by the litigant is towards the professional fees of a lawyer, now even though there is no standard expense for this criteria but nevertheless a realistic cost must be awarded in this front as well.
Typing and documentation costs – Even though this does not form as a substantial part of the expense, it should be taken into consideration as well.
Costs of transportation and lodging – In cases relating to more than one jurisdiction this factor can come into the picture as well, although a rarity but this should be taken cognizance of in certain cases as well.
Expenses incurred on the witness – No trial is complete without witnesses being examined therefore any costs incurred on or on behalf of the witness must be accounted for as well.
Any other incidental cost as well.
Conclusion
After 115 years of the inception of the Code of Civil Procedure, 1908, the time is long overdue to make the necessary amendments to the law of costs taking into consideration the recommendations of the Law Commission and numerous judgments by the Hon’ble Supreme Court. If the changes are not made, this will unfortunately result in rendering the law related to costs toothless with an increased timeline for pendency and the further increase in the pendency of civil litigation.
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The hallmark of a good settlement is the decision made in a timely and consensual manner, but the litigation appears to fall short of giving judgement on the matters in a timely manner, and thus there has been an increase in demand from parties opting for alternate dispute resolution (ADR) for speedy settlement of disputes. For instance, the maximum time an arbitration matter can go on is 18 months as the Arbitration and Conciliation Act, 1996 prohibits for the matter to go longer than that, and the arbitrator has to pass an award within the speculated time. ADR encompasses arbitration, conciliation, mediation, negotiation, and Lok Adalat, all of which share a similar goal that is to give speedy settlement to disputes in an agreeable way. The main objective of this article is to discuss Section 81 of the Part III of the Arbitration and Conciliation Act, 1996, which focuses on conciliation.
What is conciliation
Conciliation means settling disputes without litigation. There is no specific definition of “conciliation” mentioned in the Arbitration and Conciliation Act, 1996. However, Article 1(2) of the UNCITRAL Model Law on International Commercial Arbitration (2002) defines “conciliation” as a process, whether referred to by the expression conciliation, mediation or an expression of similar import, whereby parties request a third person or persons (“the conciliator”) to assist them in their attempt to reach an amicable settlement of their dispute arising out of or relating to a contractual or other legal relationship. The conciliator does not have the authority to impose upon the parties a solution to the dispute.
Like an arbitrator, even a conciliator is supposed to be an impartial party, this will help the parties be able to trust them and fully get involved in the process of conciliation for the resolution of their dispute. The conciliator may conduct conciliation proceedings in such a manner as they consider appropriate, taking into account the circumstances of the case and the wishes of the parties and the desirability of a speedy settlement of the dispute. The conciliator has wide procedural discretion in arriving at a settlement, for instance, the conciliator is not bound by the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872 but he or she can use them at their discretion if they deem it necessary.
For selecting the mode of the conciliation it is not necessary to enter into a formal agreement. Because where arbitration clause is included in the agreement it is implied that the matter would be referred for conciliation first & if amicable settlement fails then only, it is referred to the arbitration. Once the parties start with the conciliation proceedings, the conciliator may invite them to communicate either orally or written. It’s the decision of the parties and if neither of the parties are able to decide then the conciliator shall decide. Parties to a dispute might agree to resolve their dispute through conciliation under Section 61 of the Act. If the parties have agreed to conciliation but are unable to achieve an agreement, they may proceed to arbitration. The proposal made during the conciliation proceedings cannot be disclosed in any other proceedings (in arbitration also). This protection has been provided by the Arbitration & Conciliation Act, 1996 itself. Therefore parties can attempt conciliation without any risk. The provision that makes sure that either of the parties cannot use any evidence of conciliation proceeding is under Section 81.
Section 81 : admissibility of evidence in other proceedings
On plain reading of the section, one can understand that this section of admissibility of evidence is related to when the parties are not able to come up with an amicable settlement in a conciliation proceeding and wish to proceed either with arbitration or judicial proceeding, in that case the parties cannot use these evidences in the subsequent proceedings –
Any views or opinions that either of the parties made in regards with the possibility of a settlement.
Any submissions made by the parties during the conciliation proceedings.
Any proposals made by the conciliator.
The fact that any of the party showed any willingness to accept the conciliator’s settlement proposal of settlement during the proceeding.
It may be just a small section in the whole Part III but it’s of great importance as it not only validates the use of conciliation proceeding as an ADR but also confirms that the matters which are taken in conciliation are of utmost importance. If the parties have agreed to conciliation but are unable to reach an agreement, they may proceed to arbitration.
Section 81 guarantees confidentiality in the conciliation process, allowing parties to freely discuss their disagreements as they explore possible solutions without danger of their remarks being used against them in any subsequent legal proceedings. The purpose of maintaining confidentiality is to encourage parties to speak freely during the conciliation process and facilitate an amicable settlement. If parties fear that their statements or offers made during conciliation may be used against them in any subsequent proceedings, they may not be willing to engage in the process fully or be forthcoming with information. Thus, confidentiality encourages parties to negotiate in good faith and reach a settlement in a timely and efficient manner. Moreover, Section 80(2) makes it clear that the conciliator cannot be presented by the parties as a witness in any of the arbitration or judicial proceedings.
Parties obligation to maintain confidentiality
Section 75 of the Arbitration and Conciliation Act, 1996 deals with the confidentiality of the conciliation proceedings. This section imposes an obligation on the parties to maintain confidentiality of all matters relating to the conciliation proceedings. This means that any information or documents shared during the conciliation process cannot be disclosed to any third party, including courts and arbitral tribunals, unless required by law. The section also extends this obligation of confidentiality to any settlement agreement arising out of the conciliation process. This means that any settlement agreement reached by the parties during the conciliation process is also confidential and cannot be disclosed without the consent of all parties.
Section 75 corresponds with the Section 42A which was inserted during the 2019 Amendment of the Act, which says that notwithstanding anything contained in any other law for the time being in force, the arbitrator, the arbitral institution and the parties to the arbitration agreement shall maintain confidentiality of all the arbitral proceedings except award where its disclosure is necessary for the purpose of implementation and enforcement of the award. A carveout was made in respect of the arbitral award where such disclosure was necessary for the purpose of implementation and enforcement of the award.
Although Section 75 and Section 42A deal with confidentiality in different contexts but both emphasise on the importance of confidentiality in the ADR proceedings. The obligation of confidentiality ensures the opportunity for parties to speak freely and openly during the proceedings without the fear of any information being used against them incase of any subsequent proceedings. It also helps in maintaining the integrity of the process and encourages parties to reach a settlement without the fear of their disputes being made public.
Evidentiary revelation in subsequent proceedings
There are provisions available in the Act that clearly mention that if either Sections 81 or 75 are violated or the award has been induced by fraud or corruption then the award in arbitration can be challenged to be set aside with proper evidence. And incase the setting aside of the award or the arbitral award under Section 34 has expired or has been refused, then within 3 months limitation the enforcement of the award can be suspended within Section 36 of the Act and thereafter it can be enforced under the Code of Civil Procedure (CPC), 1908 as if it were a decree of the court. However, in the case of International Aluminium Co. Ltd v. Pressteel & Fabrications(2005), the Supreme Court suggested that it is the need of time to provide for no automatic suspension/ stay of enforcement of award on filing of an application under Section 34.
To ensure that mere filing of an application under Section 34 does not operate as an automatic stay on the enforcement of award, this amendment has been made. In a nutshell, they become petitions in the end which are pending in the court waiting to be enforced. The arduous path to the arbitral tribunal then remains only for those residual disputes that the parties were unable to resolve at the preliminary levels of the escalation sequence.
Drawback of keeping the evidence under Section 81 confidential
The principle of confidentiality in arbitration and litigation is often considered essential to protect the interests of the parties involved. It allows for candid and open communication between the parties, promotes settlement, and ensures that sensitive information does not become public. However, this principle can also have its downsides. The strict confidentiality of evidence can sometimes lead to injustice, abuse of power, and even misconduct. This in turn can have an impact on the fairness and transparency of the proceedings.
As per Section 81, any views, suggestions, admissions, proposals made by the parties during conciliation proceedings cannot be relied upon or introduced as evidence in any arbitral or judicial proceedings. This may result in parties being unable to use important evidence to support their case in other legal proceedings.
Furthermore, the confidential nature of the evidence may also limit the ability of parties to negotiate and reach a settlement outside the conciliation proceedings. Since the evidence cannot be used in other legal proceedings, parties may feel hesitant to make admissions or propose settlement terms during conciliation, as they may not have the same protection or leverage in subsequent proceedings.
In some cases, the confidentiality of the evidence may also give rise to concerns about fairness and transparency, particularly if the evidence relates to issues of public interest or safety. For example, if the evidence pertains to a dispute involving consumer safety or environmental protection, keeping such evidence confidential may prevent the public from being fully informed about potential risks or hazards. Therefore, while the confidentiality of evidence under Section 81 can be beneficial in promoting open and frank discussions during conciliation proceedings, it may also have some drawbacks that need to be considered by parties and legal practitioners.
Conclusion
To summarise, the admissibility of evidence under Part III of the Arbitration and Conciliation Act of 1996 is a critical component of the dispute resolution process. Section 81 of the Act establishes the basic rule of evidentiary inadmissibility in arbitral proceedings subsequent to the conciliation process. There are, however, several exceptions to this norm that have been recognised by the courts. Section 75 of the Act strengthens the confidentiality of the conciliation process by imposing penalties for disclosing confidential information. While this encourages the parties of free expression, it may also happen that parties may admit something during those proceedings which can be strong evidence in the subsequent proceedings to prove their case, this section puts a limit on them from using those evidences. Overall, before choosing this type of ADR proceeding, parties ought to carefully assess the complications and benefits in regards with their contract so as to not implicate the rule of inadmissibility of evidence and/or confidentiality of the conciliation process; this might help them avoid any unexpected consequences.
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This article has been written by Vaishali.N, a student at the School of Excellence in Law, Chennai. This article aims to provide an overview of intellectual property theft. It elucidates different kinds of IP theft, their causes, and prevention methods. It also discusses the scenario of IP theft in different countries and recent cases in India.
It has been published by Rachit Garg.
Table of Contents
Introduction
If you’ve ever written articles or research papers, you know the trouble of getting your content checked for plagiarism. Plagiarism is the act of using content or ideas from another person’s work as your own without giving credit or acknowledgement. It is highly undesirable and considered unethical in academic and creative writing as it is a form of intellectual property theft.
Intellectual property theft occurs when a person uses someone else’s creation without their permission. Intellectual property theft can happen in various ways for various reasons, including infringement of the creator’s rights. However, all kinds of infringement of IPR do not amount to IP theft. It occurs when the rights of the owner are infringed on deliberately by the perpetrator with an intent to deceive, not due to a lack of awareness or negligence.
What is intellectual property theft
Intellectual property is intangible, which means it does not have a physical existence but still has material value and legal protection. Intellectual property constitutes the ideas and mental creations of a person or group of persons. For example, musical pieces, art works, novels, poetry, trade-secrets, trademarks, scientific inventions, etc.
The laws created around intellectual property provide legal protection by establishing rights and liabilities for the persons involved in ownership, use, and transfer of the intellectual property. These rights give control of the intellectual property to its creator or owner, who decides who can use his creations and who cannot. So, if a person uses someone’s creation without their authorization, that will amount to intellectual property theft. For example, if A is the creator of a certain popular song and B wishes to use A’s song for his short film, he must seek permission from A to use his song, and A shall let him do so for a certain payment in the form of royalties.
Intellectual property laws protect the owner of a copyright, trademark, or patent from misuse by a third party. Intellectual property theft infringes the rights of the owner, which, though does not cause physical injury to constitute a criminal offence, consequently impacts their business negatively.
Kinds of intellectual property theft
Intellectual property theft takes place in various ways and for various motives. The following are the common causes for intellectual property theft-
Copyright infringement
Copyright means ‘the right to copy’. It is a right possessed by an owner of intellectual property that enables him to make copies of his work and sell them or authorise a third party to use them. Under Section 13 of the Copyright Act, 1957, copyright exists for literary work, including computer data, dramatic, musical, artistic work, cinematograph films, and sound recordings. When any such copyrighted material is used without the permission or authorization of the owner, infringement of copyrights takes place, and this is a kind of intellectual property theft.
Trademark infringement
A trademark can be a word, symbol, designs, logo, etc. The purpose of a trademark is to help people identify and differentiate one’s product or service from the rest. When a third- party uses the registered trademark belonging to a legal entity without its knowledge or permission, it amounts to trademark infringement under Section 29 of the Indian Trade Marks Act, 1999.
For example, Starbucks Corporation is a well known coffeehouse. The right to use its trademark logo solely exists with Starbucks and its franchised shops. If any third-party opens their own independent coffee shop and uses the trademark logo of Starbucks to market themselves without the authorization of Starbucks Corporation, then that leads to trademark infringement.
Patent infringement
A patent is a legal certification issued by the government to the inventor to protect his rights over his inventions. A patent is provided for inventions that are novel, non-obvious and have some utility. It provides exclusive rights to the inventor under Section 48 of the Patents Act, 1970, to make, use, and sell his invention. The inventor alone has the right to license a third-party to use his invention. When a person violates these rights of the patent-holder, it amounts to patent infringement. If he uses a patented invention without the knowledge or permission of the patent-holder, it amounts to patent theft.
For example, if A had invented a hydrogen-powered vehicle and obtained a patent over his invention, any vehicle manufacturing company wanting to mass-produce and sell his hydrogen-powered vehicle must either get licensed or buy the patent over the product from A in order to do so.
Trade – secret theft
Many companies and businesses thrive by protecting confidential information, which makes their business stand out in the market. This information is called a ‘trade-secret’, and it can be a formula or recipe, business or marketing strategy, unique manufacturing process, their clients and leads, etc. The secret spice recipe of KFC and the formula of Coca-Cola are famous examples.
Since trade-secrets of a company are what become a major reason for the company’s competitive sustenance and are unique to the company, they are also protected as intellectual property.
If a third-party unethically acquires the trade-secrets of a company and establishes a competing business of his own, it amounts to trade-secret theft.
Counterfeiting
Counterfeiting is a form of intellectual property infringement. It involves imitating a particular genuine product using a trademark to make it look like the original, and selling it to the customers, mostly at a cheaper price. Often, when you browse for clothes online or even in local bazaars, you could find knock-off outfits and accessories that look very similar to the originals that are exclusive to a branded clothing line and are available at a much cheaper price. These are examples of counterfeit products. Counterfeiting is illegal and unethical, as it leads to a loss of sales for the owners of the original products. In India, Section 103 of the Trade Marks Act, 1999, provides for penalties in counterfeiting cases, which might be imprisonment up to three years, a fine up to two lakhs, or both.
Piracy
When a party engages in the unauthorised use, duplication, reproduction, and distribution of someone else’s copyrighted work without their knowledge or consent, it amounts to piracy. These days, if one wishes to buy a book for a cheaper price, they might find themselves at a grey-market that sells low quality copies of the original book or even download the digital version of the book from illegal sites free-of-cost! Another familiar example would be the illegal copying and selling of CDs and DVDs of movies or music albums.
Piracy is highly unethical and prohibited by law, as it leads to loss of business for the owners of products since they’ll receive no royalties for the pirated copies sold.
The Copyright Act of 1975 protects intellectual property from piracy. The act of piracy comes within the ambit of cheating under Section 415 of the Indian Penal Code, 1860, which imposes a penalty of one year’s imprisonment, a fine, or both. Section 65A of the Copyright Act focuses on controlling digital piracy. However, the penalty for digital piracy is provided by Section 66 of the Information Technology Act 2000, which punishes the infringer with imprisonment up to 3 years, fines up to 2 lakhs, or both.
Geographical Indication (GI) theft
Geographical indications, as defined by the World Intellectual Property Organization (WIPO), “is a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin”. Internationally, it is governed by the WTO’s (World Trade Organization) TRIPS (Trade-Related Aspects of Intellectual Property Rights) agreement, while in India, it is governed by the Geographical Indication of Goods (Registration and Protection) Act, 1999.
A GI theft occurs when the producers of a product falsely claim their products to have originated from the specific geographical location they belong to, but in actuality they are produced elsewhere. This misleads consumers, makes the customers doubt the authenticity and quality of the product, and also causes huge losses to legitimate producers.
Causes of IP theft
Intellectual property thefts can happen for the following reasons –
Economic gains
One of the primary reasons for intellectual property theft is personal gain. It is easier and cheaper to imitate or duplicate a successful product or service and make money out of it than to invest in the research, development, and production of one’s own ideas or innovations.
Globalisation
With markets expanding above and beyond borders, international trade and the interconnectedness of various businesses have changed the nature of trade and commerce. With no such international law existing to regulate intellectual property rights, it has become easier for one country to steal the intellectual property of another country that has weak laws protecting its innovations. For example, turmeric, neem, and basmati rice are indigenous to India, and they’ve been cultivated and used for centuries by Indians, who are well aware of their properties and utility. But most of the patent rights owing to the discovery of these items are registered in European countries and the United States due to the lack of strong intellectual property laws in India.
Cybercrimes and hackers
Heavy reliance on cyberspace is another reason for intellectual property theft. Committing cyber-theft is cheap, quick, and effective. With all the important data and documents being stored digitally, it has become easy for hackers and other cybercriminals to break into computer systems and steal valuable information through phishing, online scams, malware, etc.
Lack of ethics and integrity in business
Employees, contractors, or freelance workers often have access to confidential information about a company or their employer, which they might use for personal gain. The employee might turn rouge or otherwise be lured by the competitors or any other third-party through bribery or coercion to work for them as insiders to steal and provide them with sensitive information or trade-secrets of the company.
Organised criminal groups
Organised criminal groups like cyber terrorists, spies or other threat actors target business, organisations, governments or important individuals and directly steal information through phishing, vulnerability exploitation, spreading malware, etc.
Prevention of IP theft
IP theft can leave the owner or the original creator with huge financial losses and damage to their reputation. Hence, protecting one’s IP from such dangers should be the top priority of IP owners and creators. The following measures can be taken to prevent IP theft-
Register intellectual property – Even though it is not mandatory to register one’s IP, it is still an essential step to follow because registration provides legal protection to the owner. Without registering one’s IP, one cannot enforce his legal rights or claim damages in the event of infringement of his IP rights.
Education and awareness- Creating awareness among the employees, partners, and related parties about IP rights, liability, and the consequences of theft is another way. Educating and training employees on the best practices to secure sensitive information and predict potential threats is a way to prevent IP theft.
Strengthen company policy – Creation of strict regulations around the protection of IP and impose stringent actions against perpetrators. Limit access to confidential data to only a few authorised personnel.
Non-disclosure agreement (NDA)- Preparing an NDA is extremely essential, as it creates a legal obligation on the parties to the agreement to keep confidential sensitive information and trade-secrets.
Monitoring competitors- Keep a close watch on your competitors to look out for potential infringements of your IP rights. In cases of suspicion, engage in negotiations and legal proceedings to deter theft.
Conduct intellectual property audits – Conduct regular audits to evaluate existing security measures and discover potential vulnerabilities and threats.
Strengthening cyber security- Protect digital systems and networks with professional cybersecurity software to prevent hacking and other cyber-attacks.
Stay updated on trends in IP thefts, potential threats, and vulnerabilities, and take measures to reform your security strategy accordingly.
Recent case laws
Mondelez India Pvt. Ltd. v. Neeraj Food Products (2022)
This case involves a dispute between Mondelez India Pvt. Ltd. (Cadbury) and Neeraj Food Products. Cadbury sells a well known product, button chocolates covered in colourful candy shells, under the trademark “GEMS”. It is the owner of the registered trademarks “GEMS” and “GEMS BOND”, which it previously used to market its product in the 1970s. Neeraj Food Products launched a chocolate product similar to that of Cadbury’s Gems under the trademarks “JAMES” or “JAMES BOND” or “JAMMY BOND”, using similar packaging and cover styles to Cadbury’s product. Cadbury thus filed a suit against Neeraj Food Products, claiming that they’ve caused trademark and copyright infringement as their design is very similar to that of Cadbury’s, and this can easily confuse customers.
The Delhi High Court ruled in favour of Cadbury. The Court observed that Cadbury’s GEMS is widely known to the public. Its pillow packaging, colour scheme, and trademark logo are very well known to its consumers. The defendant’s product has many elements that are very similar to those of the plaintiff’s, and hence, the acts of the defendant constitute infringement and passing off of the plaintiff’s trademarks. The Court also used the principle of res ipsa loquitur (the thing speaks for itself) owing to the similarities between both products, releasing the plaintiff from the burden of proving the same.
Therefore, the Court granted a permanent injunction in favour of the plaintiff and ordered the defendant to pay Rs. 15.86 lakh in compensation.
The issue in this case revolves around the liability of the intermediary (telegram, in this case) with regards to copyright infringement.
Neetu Singh, the plaintiff, is the author of popular competitive examination books. K.D. Campus is a coaching institute that turned to taking online classes during the pandemic. They started circulating the plaintiff’s copyrighted books on a messaging app called “Telegram” without any authorization. The plaintiff claims that telegram hosting channels that disseminate her copyrighted works have infringed on her rights. The Court thus had to decide whether or not Telegram should be held liable for hosting channels that infringe Neetu Singh’s copyrights.
Firstly, the Court asserted jurisdiction over the case due to the infringement having occurred in Delhi. It was decided that the plaintiff’s video evidence qualified as “literary work” and “cinematograph films” under the Copyrights Act. It dismissed the defendant’s defence of privacy, stating that privacy cannot be a ground for non-disclosure and that the right to seize infringing copies under the Copyrights Act overrides privacy concerns.
Therefore, the Court ruled that under Section 79(3)(b) of the Information Technology Act, 2000, Telegram was obliged to take down such channels that circulate unlawful materials. Further, Rule 3 of the IT guidelines was cited, stating that intermediaries are prohibited from hosting, displaying, modifying, uploading, or sharing information that infringes copyright.
Yahoo!, Inc. v. Akash Arora & Anr. (2022)
In this case, the plaintiff (Yahoo! Inc.) filed a suit seeking a permanent injunction against the defendants for naming their service ‘YahooIndia’ and using a domain name of Yahooindia.com, both of which are very similar to the trademark and domain name of the plaintiff. The plaintiffs argued that the domain name and trademarks are not mutually exclusive and accused the defendants of passing off by taking up the name of ‘YahooIndia’. The defendants contended that the plaintiffs cannot plead action as the provisions of the Trademarks Act do not apply to online services and the trademark of Yahoo! Is not registered in India.
The Court remarked that actions passing off are governed by common law; hence, it applies to services also. It was noted that the plaintiff’s business is well known and reputed. The defendant provides the same service as the plaintiff, and hence the similarity between the trademark and domain name is a deliberate attempt to confuse and deceive people. Therefore, the court granted the injunction to make the defendant’s name commercially useless and prevent passing it off.
ISKCON v. ISKCON Apparel Pvt. Ltd. & Anr. (2020)
In this case, the plaintiff, the International Society for Krishna Consciousness, is a popular organisation whose acronym “ISKCON” is their trademark registered under the trademarks act of 1999. ISKCON owns several temples and restaurants and also sells various goods like books and clothes under its trademark to its devotees. The defendant, ISKCON Apparel Pvt. Ltd., a separate company, started selling clothes online using the trademark of ISKCON unauthorizedly, violating the rights of the plaintiff. The plaintiff had issued various summons to the defendants, after which the defendant changed the name of their company to ‘Alcis Sports Pvt. Ltd.’ but continued to sell their products under the trademark ‘ISKCON’.
After evaluating the evidence submitted by the plaintiff, the court acknowledged the worldwide popularity and faith of people in the organisation. It was determined that the plaintiff’s trademark fulfilled the requirements of a ‘well-known trademark’ under Sections 11(6), 11(7), and 2(1)(zg) of the Trademarks Act, 1999. It was clear that, given the popularity of the trademark, the defendant’s action of adopting it was motivated to deceive people and gain profit. Hence, the Court ruled in favour of the plaintiff and banned the defendant from using their trademark.
IP theft in different countries
China
China is accused of being the proprietor involved in IP theft from several countries. It is known for counterfeiting goods across the globe. Being the top manufacturing hub of the world, Chinese companies conveniently started imitating and reproducing lookalike products of the original brands and selling them to Chinese markets. According to a report, China is believed to maintain its economic competitiveness in the international arena by stealing intellectual property from other countries. China is reported to cause over 50-80% of IP theft from the United States annually. It is said to have been responsible for the theft of trade secrets of several US companies, amounting to 180 billion – 540 billion dollars per year, through espionage, forced technology transfer, or mandatory joint venture deals.
It is one of the blacklisted countries in the USTR’s (United States Trade Representative Office) Special 301 report. The European Union and Japan too have reported the majority of their IP thefts being traced to Chinese groups. Indian companies, being the backend technology of various IT companies, are also engaged in improving their infrastructure to protect themselves from Chinese intrusion.
India
As of the 2023 IP Index published by the U.S. Chambers of Commerce, India ranks 42nd out of 55 countries. India has a lot of deficiencies in its Intellectual property laws. The U.S. has accused India of being its second biggest threat to it’s Intellectual property and has been blacklisted by the USTR.
India also suffers from intellectual property theft, especially in the entertainment industry. According to a news report, there has been a surge in piracy during the pandemic period. Music piracy in India is higher than the global average, and the loopholes and ambiguity in the Copyrights Act have led to theft, misuse, and infringement of copyrights. According to a research conducted by the U.S- India Business Council, piracy alone has caused over 11% of the loss of employment in the film industry. This is one of the reasons for India’s poor ranking and global recognition.
Further, India’s failure to protect indigenous inventions has led to various U.S. and European countries claiming patents on Indian discoveries and inventions. This includes the U.S. company RiceTech claiming patents for Basmati rice in 1997. Later in 2011, India won a patent rights battle against RiceTech, claiming three basmati rice varieties, but the patent for many of the modified basmati rice varieties still remains with the U.S. Moreover, a news article explains that many ayurvedic products belonging to India are being used to make medicines and sold in the U.S. and other countries.
United States
Has one of the highest numbers of IP thefts in the world. The U.S. loses over 225-600 billion dollars in IP theft by China, India, and other countries annually. The USTR publishes an annual report called “Special 301”, in which the U.S. has blacklisted eleven countries: Argentina, Algeria, Kuwait, Saudi Arabia, Ukraine, India, China, Chile, Russia, Venezuela, and Indonesia, for their poor enforcement of IP rights and being a threat to the IP of the American companies.
The U.S. loses billions of dollars due to intellectual property theft, which heavily impacts employment. To battle this issue, the U.S. has been planning to adopt “strong deterrence measures that would make IP theft unprofitable, such as imposing banking sanctions and investment and import curbs for companies failing to protect IP”.
European Union
The EU suffers a great deal due to IP thefts too. A 2019 report published by the European Union Intellectual Property Office (EUIPO) estimates that the EU loses over 60 billion Euros annually from IP theft in goods and services alone. Counterfeiting and piracy are major challenges the EU has been struggling to deal with. The EUIPO identified ten countries it accuses of being responsible for counterfeits in the EU. They are China, Hong Kong, Turkey, the UAE, India, Morocco, Benin, Gambia, Malaysia, and Panama.
Many Chinese companies have been sued by several car brands for producing and selling copycat vehicles and designs. Apart from luxury brands, counterfeiting has also expanded to products like pharmaceuticals, pesticides, cosmetics, food and beverages, toys, spare parts, electrical components, gadgets and even daily products like soaps, shampoos, and toothpaste etc. Online platforms are widely used to sell counterfeit goods and pirated digital content like films, music, e-books etc.
The EU has been making efforts to combat this challenge by working closely with Europol, making financial contributions to its IP Crime unit, and taking initiatives to establish an IP Enforcement Portal.
Conclusion
With the shift of trade and business to cyberspace, IP thefts have become quite common all around the world these days. Creating and enforcing strong IP laws has been quite challenging due to constant technological evolution, globalisation and the difficulty of balancing the interests of creators, investors, and the public. India, particularly, has not been faring well in the intellectual property index. The IP laws of India are quite weak due to existing loopholes, ambiguities, and poor enforcement.
The Indian government has taken several policy initiatives to improve the position of IP laws in India. However, it is necessary that the emphasis remain on strengthening enforcement, establishing separate IP tribunals, improving international cooperation, encouraging innovation, and promoting education and awareness to strengthen IP laws in India.
Frequently Asked Questions (FAQs)
What is the difference between piracy and counterfeiting?
Piracy is the reproduction or duplication of original works that are protected by copyright, like music, artistic works, books, etc., while counterfeiting involves infringing the trademark of an authentic product by imitating its logo, symbol, or any distinctive sign or style that is unique to that original product with a motive to deceive consumers.
What should one do if their IP is stolen?
In the case of an IP theft, firstly, evidence regarding the theft should be collected and legal advice should be sought. A cease and desist letter can be issued to the infringer. In many cases, mediation and negotiation are done with the infringing party with the help of a lawyer. If the mediation fails, a complaint can be filed at the intellectual property appellate board or at a relevant High Court.
Can owners of unregistered IP get legal protection from IP theft?
In the case of a copyright Infringement, registration is not mandatory to enforce your legal rights. A proceeding can be instituted against the perpetrator, but the plaintiff must prove his or her ownership over the IP. In the case of patents and trademarks, however, no legal action can be claimed as an effect of non-registration.
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In today’s world where time is precious for a common man it is also very precious for the companies however big or small they are. The problem with regular courts is that they are overburdened with a truckload of cases so it is practically not feasible to resort to courts for cases where time is a crucial factor. In order to remedy this situation, the Alternative Dispute Resolution (ADR) method is adopted internationally as well as domestically. Arbitration is a type of ADR method where the parties to a private dispute choose a neutral person as an arbitrator who decides the dispute by passing an arbitral award which is binding on the parties. Parties can specifically mention in their agreement a dispute resolution clause which is a boilerplate clause in the agreement or they can separately sign an arbitration agreement under Section 7 of Arbitration and Conciliation Act,1996. Arbitral Tribunals are quite effective compared to the regular courts as they can effectively decide the dispute between the parties within a very less time and are very cost effective.
What is the need for arbitration
The question which normally arises in our mind is why we choose arbitration when we already have a well organised system of courts which are entrusted with a task of delivering justice to everybody. The answer to this question is that the procedure followed by Indian courts is highly technical and formal thereby making room for a speedy and less formal mechanism to resolve the private disputes between the parties. Some of the main characteristics of the arbitration are–
Arbitration is the mutual agreement between the parties
When the parties make an agreement then they mention that in case of any future dispute they will resort to the arbitration. Arbitration happens only when both the parties to the agreement agree to it. No one party cannot withdraw unilaterally from the arbitration agreement.
The parties can choose their arbitrators
Both the parties can choose either a sole arbitrator or they can choose their own arbitrator, these arbitrators then choose a third arbitrator who will act as a presiding arbitrator. The number of arbitrators cannot be even. These arbitrators are highly specialised practitioners in the legal field.
The arbitrators are neutral
The parties can choose arbitrators of any nationality. This is to ensure the impartiality of the arbitration proceedings. In addition to this, parties can also choose the place of conduction of arbitral proceedings, the language to be followed in the proceedings and the law which will be applicable to the parties.
Arbitration proceedings are confidential
Unlike courts where the case proceedings happen in the open court, arbitration proceedings happen in secrecy. The disclosure of trade secrets between the parties, the venue of arbitration as well as the arbitral award all factors are kept secret.
Arbitral awards are final
Since the parties themselves consented to move to the arbitral tribunals, the award passed by it is final and binding on the parties. According to the New York Convention,1958 the award passed by the International arbitral award is enforced by the domestic courts with certain exceptions.
UNCITRAL model of arbitration
UNCITRAL Model law on International Commercial Arbitration (1985) is formed to assist states to reform and modernise their arbitration laws to take into account the need of international arbitration laws. Model law consists of thirty six (36) articles covered in eight (8) chapters covering the entire range of arbitration agreement, composition and jurisdiction of the arbitral tribunal, duties and obligations of the arbitrators to the court’s intervention on recognition and enforcement of arbitral awards. This model law signifies the willingness between the majority of the nations to follow the international arbitration procedure to amicably settle their disputes.
Arbitral agreement
Before explaining the powers and functions of Arbitral Tribunal let us first explain in which sections of Arbitration and Conciliation Act,1996. The Arbitral agreement between the parties is defined under Section 7 of the Act of 1996. Parties according to the Section 7 of the Act can either make a mention of the arbitration agreement in the contract as a separate agreement or a clause in the agreement in case of any future dispute. This agreement shall be in writing if it is contained in documents signed by the parties or any other mode of communication between the parties.
If parties approach before any judicial authority regarding their disputes a judicial authority under Section 8 of the Act can refer the parties to an arbitral tribunal if parties have specifically mentioned in their agreement about arbitration. Party before, at the time or after passing of arbitral award but before its enforcement can approach the court under Section 9 of the Act for interim measures regarding custody of minor or persons of unsound mind by a guardian, the detention, preservation and inspection of the any property or things which are the subject matter of the arbitration agreement, receiving the amount in dispute in arbitration, interim injunction, appointment of receiver or any other matter as the court thinks proper.
Composition of Arbitral Tribunal
What is an Arbitral Tribunal
Arbitral Tribunal is a panel of judges called arbitrators which are responsible for adjudicating disputes between the parties in contract. Chapter 03 of the Act deals with the composition of the arbitral tribunal.
Appointment, Number and Termination of the Arbitrator
Section 10 of the Act says that parties are free to determine the number of arbitrators provided that number shall not be even failing which arbitral tribunal consists of sole arbitrator. Section 11 of the Act says that a person of any nationality can be an arbitrator, unless otherwise agreed by the parties. The parties are free to agree on a procedure of appointing arbitrator or arbitrators failing which in an arbitration consisting three arbitrators each party shall appoint one arbitrator and these appointed arbitrators shall appoint the third arbitrator who shall be the presiding arbitrator. The appointment of an arbitrator can be challenged if there are justifiable doubts about his independence or impartiality or he does not possess the qualifications agreed to by the parties. Section 15 of the Act says that arbitrator can be terminated if–
(a) He withdraws from office for any reason
(b) By or pursuant to agreement of the parties and
(c) Where his mandate terminates and a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced.
Powers and Functions of Arbitral Tribunal
Power to rule on its own jurisdiction
The authority of an arbitral tribunal to adjudicate on any challenge to the existence and legality of the arbitration agreement is addressed in Section 16 of the Act. The arbitration clause, which is to be regarded as a separate agreement from the other conditions of the contract, is unaffected by the arbitral tribunal’s ruling that the contract is void and unenforceable.
InWellington Associates Ltd. vs Mr. Kirit Mehta (2000), the Supreme Court ruled that Section 33 of the Arbitration Act, 1996 makes it clear that any dispute regarding the “existence” of the arbitration agreement may only be resolved by application to the Court and not by the arbitrator. Section 16 of the Arbitration and Conciliation Act of 1996 has since eliminated the arbitrator’s incapacity. A decision about the “existence” of an arbitration clause in a contract can now be therefore made by the arbitral tribunal under Section 16.
Power to make interim measures
Section 17 states the power of the arbitral tribunal to order interim measures if–
(a) a party during the arbitral proceedings apply to the arbitral tribunal for the appointment of guardian for minor and person of unsound mind for arbitration proceedings; or
(b) interim measures for preservation, interim custody or sale of any goods which are the subject matter of the arbitration agreement; or
(c) securing the amount in dispute or appointment of receiver and interim injunction.
Power to hold oral hearing
According to Section 24 of the Act, the arbitral tribunal may determine whether to conduct the proceedings solely on the basis of papers and other material or whether to have oral hearings for the presenting of evidence or for oral argument. The parties must be informed in advance of the hearing, and any comments or materials submitted to the arbitral tribunal by one side must be shared with the other party.
Power to proceed ex-parte
Where without stating sufficient cause, under Section 25 of the Act, the claimant or respondent fails to communicate his statement of claim or defence under sub-section (1) of Section 23 of the Act the arbitral tribunal shall proceed ex-parte.
Power to appoint an expert
Section 26 of the Act says that the arbitral tribunal may appoint one or more experts to report to it on specific issues to be determined by the arbitral tribunal. The expert shall, after submitting his oral or written report, participate in an oral hearing where parties will put questions to him. The expert also on the request of a party presents all documents, goods or other property, which are in his possession, placed before that party for examination.
Power to make Arbitral Award
Sections 28 to 33 in Chapter 06 of the Arbitration and Conciliation Act, 1996 deals specifically about the arbitral awards. Which regulations apply in the event of a dispute between the parties is a crucial point to make here. The answer to this question is that if the arbitration takes place in India, the arbitral tribunal will decide the dispute in accordance with Indian substantive law in all other arbitrations other than international commercial arbitrations, but it will decide the dispute in accordance with the rules established by the parties in international commercial arbitrations.
The majority of the arbitrator’s members must agree on the decision in an arbitral process. In cases other than those involving international commercial arbitration, the arbitral tribunal must issue the award within a year of the filing date of the initial complaint. If parties reach a settlement during the arbitration process, the arbitral tribunal must end the proceedings and record the agreement in the form of an arbitration award.
The arbitral tribunal’s members must all sign an arbitral award before it may be considered final. The basis for the arbitral award must be stated in the award itself. A signed copy of the arbitral award must be given to each party after it is made.
In relation to the arbitration proceeding the arbitral tribunal shall have a discretion to determine whether the costs are payable by one party to another, the amount of such costs and when such costs are to be paid. The arbitral proceedings shall be terminated by the pronouncement of final arbitral award or by the order of the arbitral tribunal when the claimant withdraws his claim, parties agree on the termination of the proceedings or tribunal finds that continuation of the proceedings become unnecessary or impossible.
Duties of Arbitral Tribunal
Apart from powers given to the arbitral tribunals under Arbitration and Conciliation Act, 1996 these tribunals also have certain obligations to perform towards the parties. These duties are enumerated below:
Duty to be impartial
Section 18 of the arbitration and conciliation act says that it is the duty of an arbitral tribunal to be impartial, that means the arbitral tribunal shall treat each party equally and each party shall be given full opportunity to present his case.
Duty to choose time, place and language of arbitration
Section 20 of the Act says that parties are free to choose the place of arbitration according to their convenience but if they fail to do so then it is the duty of the arbitral tribunal to determine such place regarding circumstances of the case. InSanshin Chemicals Industry vs Orientals Carbons And Chemicals( 2001), the Supreme Court ruled that a joint reading of Section 2(6) and Section 20 leads to the conclusion that, even though the parties were free to choose the location of the arbitration, they had the right to authorise anyone, including an institution, to make that decision. In the case at hand, the Joint Committee is such an institution, and its decision will not be subject to appeal. According to Section 22, the arbitral tribunal will choose the language or languages to be utilised in the arbitration if the parties are unable to agree on one or more of them.
Duty to disclose relevant facts required to be known by the parties
When an arbitrator is appointed in such a manner then it is his duty that he shall disclose, under Section 12 of the Act, in writing all past and present connections whether direct or indirect with the parties or the subject matter in dispute which shall affect his ability to devote sufficient time to the arbitration proceedings.
InSteel Authority Of India Ltd vs British Marine Plc (2016), the Delhi High Court evaluated whether the AT members’ argument that they were not obligated to make a disclosure other than the one they had already made was valid or not. In other words, the Court decided whether the arbitrators were required to follow the Fifth Schedule’s criteria, namely Item 24 of that Schedule or not. The Court had taken into account Explanation 2 to Section 12 (1), which allows for potential exceptions in situations where parties typically choose the same arbitrators for various instances.
Duty to correct the award
Section 33 says that if the a party within thirty (30) days from the receipt of the arbitral award, with a notice to other party, request the arbitral tribunal to correct any computational, clerical or typographical error in the award or request the arbitral tribunal to give an interpretation of a specific point of the award then it is the duty of the arbitral tribunal to make the correction or give the interpretation which shall form the part of the arbitral award.
Duty to avoid misconduct
It is the duty of the arbitral tribunal to avoid passing any award which is opposed to public policy. It must not engage in bribery and corruption also it must not break the rule of natural justice.
Conclusion
In the modern times where disputes between the parties are complex the arbitral tribunals are helping regular courts in its task of dispensation of justice. Arbitral tribunals are vested with powers in order to achieve the desired outcome of the parties besides these tribunals have duties also that have to be complied with. Various international laws and conventions made between various countries make this area evolving from the past to the present and it will keep on evolving.
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This article is written by Diksha Paliwal. The article begins with a brief introduction of the term ‘abortion’, followed by a detailed study of various provisions relating to abortion and the separate Act, i.e., the Medical Termination of Pregnancy (MTP) Act, 1971, along with important case laws and recent developments.
It has been published by Rachit Garg.
Table of Contents
Introduction
The term ‘abortion’, also called ‘induced abortion’, refers to the medical procedure to end a pregnancy. The practice of abortion and the laws pursuant to it have always been a topic of debate based on various customs, traditions, moral beliefs, etc. While some people consider the termination of pregnancy an intrinsic right in a woman’s life, others view it as the killing of the fetus, saying that as soon as the fetus develops in the body of a woman, it is capable of feeling pain.
According to a survey conducted by the Guttmacher Institute in an ongoing global study of unintended pregnancy and abortion, India noted approximately 48,500,000 pregnancies every year from 2015 to 2019. Out of this statistic, 21,500,000 were unintended pregnancies, resulting in a total of 16,600,000 abortions. More than half of the unintended pregnancies led to abortion. The number of unintended pregnancies leading to abortion has increased significantly in the past few years. Out of the total deaths during pregnancy, 5-13% are caused by unsafe abortion, i.e., 22,800- 59,280 deaths every year. This alarming rate reflects the need for proper laws and regulations to ensure safe abortions, thereby protecting the health of women undergoing abortions.
The article focuses on the various abortion laws in India, including a brief history that led to the enactment of a separate abortion law in India, i.e., the Medical Termination of Pregnancy (MTP) Act, 1971. The article further includes various landmark cases pertaining to abortion and the judicial interpretation of the abortion laws in India.
Meaning of abortion and miscarriage
In layman’s language, the term ‘abortion’ connotes the procedure for termination of pregnancy resulting in the death of the embryo or fetus. It is the removal of the fetus from the uterus. The legal definition of the term ‘induced abortion’ or ‘abortion’ is “untimely delivery voluntarily done to destroy the fetus.” P. Ramanatha Aiyer, in his book ‘The Law Lexicon’, defines abortion as the premature delivery or expulsion of the human fetus, i.e., before it is capable of sustaining life. It is the emptying of the pregnant uterus before it is viable.
The term ‘miscarriage’ means the expulsion of the contents of the womb (embryo or fetus) before the period of gestation is complete. Put simply, it means giving birth to a baby before it is fully developed or viable, thus, resulting in its death. It is the spontaneous loss of pregnancy. In the medical sense, the term means the expulsion of a fetus from the uterus within six weeks after conception.
Medically, there exist three different terms, namely abortion, miscarriage, and premature labour, that denote the expulsion of a fetus based on the different stages of gestation at which the expulsion or termination of pregnancy is carried out. The term abortion is used when the termination of pregnancy is carried out before the placenta is formed, i.e., within the first three months of pregnancy, whereas miscarriage denotes the expulsion of the fetus within the first fourth-seventh month of gestation before it is viable or developed. The third term, i.e., ‘premature labour’ means delivery of a premature baby possibly capable of sustaining life.
Both of the above terms are often regarded as synonymous with each other. Taylor, in his Principle and Practice of Medical Jurisprudence (13th edition), states that the terms ‘miscarriage’ and ‘abortion’ is legally synonymous since the fetus is regarded as human life from the moment of fertilization. In the case of Jacob George v. State of Kerala (1994), the Apex Court, while dealing with these two terms, i.e., abortion and miscarriage, held that ‘miscarriage’ connotes ‘spontaneous abortion’ whereas ‘abortion’ is said to be ‘miscarriage produced by unlawful means’. The Court further opined that the destruction of the life of a fetus is abortion or miscarriage.
Abortion in India: legal or not
The landmark case of Roe v. Wade (1973), relating to women’s rights to abortion, persuaded many countries to enact a law allowing women to terminate pregnancy on the premise that women are entitled to the individual right of bodily autonomy. In the above-mentioned case, the US Supreme Court opined that a woman has the right to make decisions about her pregnancy and that it deserves the highest level of constitutional protection. The Court further stated that the state has the power to make certain restrictions or bans to protect maternal health, thus declaring that this constitutional right is not absolute. The case has been an influential factor with a global impact, and since then, many countries have legalized abortion.
As far as India is concerned, it enacted a law just a few months before the pronouncement of the judgment in Roe’s case. The Parliament enacted the Medical Termination of Pregnancy (MTP) Act in 1971, which came into force on April 1, 1972. Thus, abortion in India is legal, although it is allowed under certain specific conditions only as prescribed under the MTP Act.
The question that arises is that despite there being a law that allows women to terminate a pregnancy, are these provisions fulfilling the purpose of its enactment? Are the women out there able to use these provisions and get an abortion? The answer to these questions lies in various real-life instances of women who, due to some or other legal procedures, could not get an abortion done. The Centre for Enquiry into Health and Allied Themes (CEHAT), a Mumbai-based research institute, conducted research into this and interviewed women from different regions to find out the prevalent scenarios relating to abortion. One such woman shared her experience. She was stuck in an abusive marriage and found out that she was 8 weeks pregnant with an unwanted pregnancy, so she wanted to go for an abortion. However, the hospital staff insisted that she must get consent from her husband and a no-objection certificate from the police. Surprisingly, the law concerning abortion nowhere requires such permission, and sadly, this is not the story of just one woman but of most of them.
Such scenarios point out the petty conditions of these women and how, even after the enactment of laws for the termination of pregnancy, the state and the inefficient system stand in the way of the rights of a woman. Despite there being a legal framework and a set of rules and regulations, the present scenarios and the studies conducted by various national and international institutes show that abortion is still a frantic and challenging experience.
The Supreme Court in the case of Suchita Srivastava & Anr v. Chandigarh Administration (2009)held that a woman has the right to make reproductive choices and that it comes under the ambit of Article 21 of the Indian Constitution. The Court further opined that this right to make reproductive choices includes both procreation and abstaining from procreation. However, while considering the situation of a lady when she is pregnant, the Court opined that such conditions are to be viewed in terms of the MTP Act, 1971, and that the conditions mentioned in the Act are to be treated as reasonable restrictions.
The Apex Court in the case of Justice K. Puttaswamy v. Union of India and others (2017), opined that a woman has the right to make choices relating to her reproductive health and related matters. Emphasizing this, the Court stated that this is a constitutional right since it relates to the right to privacy, dignity, and bodily integrity, which is covered under Article 21 of the Indian Constitution. However, despite the prevalent laws relating to abortion and the judicial precedents, the present scenarios reflect the inefficiency of the authorities in the proper implementation of these laws and precedents. Effectively implementing these provisions and a right-based approach to the abortion laws is crucial so that they become easy to access, thereby saving the lives of several women.
Abortion laws in India
The practice of abortion is as old as human civilization, however, despite being a prevalent practice for centuries, it is still considered taboo. Society, the government, and the other authorities in power have always tried to regulate and control it.
The termination of pregnancy was illegal in India before the 1970s, it was only after the enactment of the MTP Act, 1971, that the medical termination of pregnancy was allowed, although under certain specific conditions expressly mentioned in the Act. Apart from this, the earliest legislation that contains provisions for abortion is the Indian Penal Code, 1860.
With the advancement of time and the development of judicial precedents, abortion is now also considered a constitutional right guaranteed under Article 21 of the Constitution. Also, various judicial decisions show that the right to deny forceful abortion has also been dealt with under Article 14 of the Indian Constitution.
Let’s have an overview of the laws prevalent in India that deal with abortion.
Indian Penal Code, 1860
The provisions enacted under the IPC were in conformity with the English law prevalent at the time. Abortion, as per the provisions of the Code, was declared a crime except when done to save the life of a mother. In pursuance of the act of abortion, both the mother and the abortionist were made guilty of the aforesaid offence, except when done in good faith. Sections 312-316 of the Code declare the practice of abortion an offence, except when done to save the life of the pregnant woman.
Section 312 of the IPC states that whoever voluntarily causes miscarriage (spontaneous abortion) shall be held guilty of the offence of causing miscarriage. The Section comes with the exception that a person causing a miscarriage will not be held guilty if the act is done to save the life of a woman who is pregnant. The above-said provision deals with two kinds of miscarriage, namely, when miscarriage is caused by a woman bearing a child and when a woman is quick with a child. The second situation is when the movement of the fetus can be felt (mostly after 15-16 weeks of conception). In the case of the first kind of miscarriage, the accused will be punished for a term which may extend up to three years with a fine, and in the second situation, the imprisonment will be for a period which may extend up to seven years with a fine. The provision also includes the woman herself, who is responsible if she is the one who caused the miscarriage.
Section 313 of the IPC deals with the causing of miscarriage without the consent of the woman. Under this Section, it is immaterial whether the pregnant woman was quick with a child or not, the punishment will be for a period of 10 years, which may extend to imprisonment for life with a fine.
Section 314 talks about the situation wherein the act of miscarriage causes the death of a woman. It makes the person guilty of an offence who does any act with the intention of causing miscarriage, which in turn results in the death of the woman. The person guilty of the above-said offence is liable for punishment, which may extend up to 10 years along with a fine. The provision further provides that if the act is done without the consent of the woman, then the person behind the act shall be punished with imprisonment for either up to 10 years or imprisonment for life. It also states that the knowledge of the offender that his or her actions may cause the death of the pregnant woman is not an essential ingredient to prove him guilty under this provision.
Section 315 of the IPC deals with the act done by a person to prevent the birth of a child (preventing the child from being born alive/stillbirth) or the act done which leads to the death of the child immediately after being born. Such an act is punishable with imprisonment, which can extend up to 10 years with or without fault. The provision makes an exception for the act done in good faith to save the life of the pregnant woman.
The next provision, i.e., Section 316, deals with the act amounting to culpable homicide. A person who does any act under such circumstances to cause the death of the quick child and thereby causes the death of the child will be held liable under this offence. The provision provides for imprisonment, which may extend up to 10 years with a fine.
Constitutional provisions
Although no provision under the Indian Constitution expressly talks about abortion or miscarriage, the country’s courts have time and again held that the right to abortion is safeguarded under the Constitution of India. Article 21 of the Constitution states that no person shall be deprived of his right to life and personal liberty, as interpreted by the Apex Court and the High Courts in a plethora of judgments, including a woman’s right to reproductive choices, i.e., to procreate and to abstain herself from procreating. As discussed in the earlier paragraphs, two of these judgments that held that Article 21 includes a woman’s right to abortion are Suchita Srivastava & Anr v. Chandigarh Administration (2009) and Justice K. Puttaswamy v. Union of India and others. (2017).
In pursuance to Article 14 of the Constitution, the Apex Court has held that forcible sterilization or abortion of a mentally retarded person is a violation of the right to equality (Suchita Srivastava case).
Preconception and Prenatal Diagnostic Technique Act, 1994
The primary objective of the enactment of the Act was to restrict prenatal diagnostic techniques to control the rising issue of female foeticide and other issues related to such prenatal diagnostics. However, the Act also ensures the practice of safe abortion, though it does not expressly deal with the provisions relating to the same.
Medical Termination of Pregnancy (MTP) Act, 1971
Before the enactment of this Act, abortion was illegal in India and was an offence under the Indian Penal Code, 1860 except when done in good faith to save the life of a pregnant woman. The name of this Act was chosen deliberately as what it is rather than giving it a name that reflects abortion in it to avoid hurting any religious sentiments and moral beliefs. The nomenclature was also done in a way to reflect the medical reasoning behind permitting such practices. The Act came into force in 1973.
History of the enactment
To formulate proper laws relating to abortion, a committee named the Shantilal Shah Committee was established by the Central Family Planning Board of India in 1964. The government appointed the aforesaid committee under the leadership of a medical professional. It was formed to look at the issues and concerns relating to abortion and determine whether the present conditions demand that a law be enacted to make abortion legal or not. The committee prepared its report after a careful overview of all the socio-cultural, medical, and legal aspects. In the report, it was suggested that abortion must be legalized in India, and it also suggested the enactment of a comprehensive law relating to abortion care and other related issues. The recommendations were mainly made after looking into the high maternal mortality rates and rising cases of unsafe abortions.
A medical termination bill was placed before the Lok Sabha and Rajya Sabha based on the recommendations of the Shantilal committee. The bill was passed in Parliament in August 1971 and received presidential assent on 10 August 1971.
Objective and applicability
The Act was primarily enacted to reduce unsafe abortions and establish a proper procedure for the regulation of abortion across the country. The Act was initially not applicable to Jammu and Kashmir. However, after the repealing of Article 370 of the Indian Constitution, it now applies to the whole of India. It was enacted to provide a separate law for the termination of pregnancies under certain specific conditions by registered medical practitioners and all the other matters related to it. It thereby legalized abortion and promoted safe abortion. It also aims to prevent abortion by untrained persons. Apart from this, it also aims to curb the issue of increasing maternal mortality and maternal morbidity rates.
Section 3 of the Act talks about the specific conditions under which a woman can undergo abortion by a registered medical practitioner.
Clause (1) of the Section starts with a non-obstante clause in relation to the Indian Penal Code, thus having an overriding effect on the provisions pertaining to abortion or marriage in the Code. It states that a registered medical practitioner will not be held guilty under the IPC or any other law prevalent at that time if any pregnancy is terminated by him as per the provisions of the MTP Act, 1971.
Clause (2) specifies the conditions under which the medical termination of pregnancy is allowed by a registered medical practitioner. However, these provisions are subject to sub-section 4 of Section 3. The termination of a pregnancy that does not exceed more than twelve weeks is provided under Section 3(2)(a) of the Act, whereas the termination of a pregnancy up to 20 weeks is dealt with under Clause (2)(b). It is important to note that for termination of pregnancy up to 12 weeks, an opinion by one registered medical practitioner that the same was done in good faith is necessary. In cases of termination up to 20 weeks, the opinion of at least two registered medical practitioners is required.
The act done in good faith involves when there is a risk to the life of a pregnant woman, as provided under Section 3(2)(b)(i). The second instance of good faith is enunciated under Section 3(2)(b)(ii) of the MTP Act. It states that there is a substantial risk of any physical or mental abnormality to the child if he is born (if such a pregnancy is not terminated). The explanation I provided under this clause says that if a child is born out of rape, then such a situation will be considered a grave injury to the mental health of the pregnant woman. The II explanation provided under the Clause is that if there arises a situation in which a married woman becomes pregnant due to failure of the contraceptive method, then the anguish caused by such unwanted pregnancy will amount to grave injury to the mental health of the woman.
Section 3(3) of the Act provides that to determine whether the continuation of the pregnancy would involve a risk of injury to the woman or not, an account of her actual or reasonably foreseeable future should be considered.
Clause (4)(a) of Section 3 provides for the provision of termination of pregnancy of a mentally ill person or a woman who has not attained the age of majority (18 years), which should not be done without the consent of her guardian. Section 3(4)(b) of the Act provides that the above-mentioned should not be done without the consent of the pregnant woman.
Authorized place where abortion can be done
Section 4 of the Act provides for the places where a medical termination of pregnancy as provided under this Act can be done. Clause (a) provides that it can be conducted in a hospital established or maintained by the government. Clause (b) provides that for the MTP Act, termination of pregnancy can also be conducted at a place specifically approved for this purpose by the government or a district-level committee constituted by that government with the Chief Medical Officer or District Health Officer as the Chairperson of the said committee.
Non-applicability of Sections 3 & 4
Section 5 of the Act specifies that certain conditions under Sections 3 & 4 of the MTP Act will not apply.
Section 5(1) provides for the condition that when the termination is immediately necessary, then under such circumstances, provisions of Sections 4 and 3(2) will not apply. Section 5(2) prescribes the punishment for conducting a termination of pregnancy by anyone other than a registered medical practitioner. It prescribes rigorous imprisonment, which shall not be less than 2 years but can extend up to 7 years. A punishment for a period which shall not be less than years of rigorous imprisonment but which may extend up to 7 years is provided under Section 5(3) for terminating a pregnancy in a place other than the place prescribed under Section 4. The owner of a place wherein such termination of pregnancy is carried out, which violates the provision under Section 4, shall be punished with rigorous imprisonment for a term which shall not be less than 2 years but which may extend to 7 years as per Section 5(4).
Power to make rules
Section 6 of the Act gives the government the power to make rules for the implementation of this Act. The state governments have been empowered to make regulations to carry out the provisions of this Act under Section 7 of the Act. Section 7(3) of the Act provides for punishment in the event of non-compliance with the regulations made by the state government.
Protection provided under the MTP Act
Section 8 of the Act provides that no person shall be held liable or that no proceedings shall lie against any registered medical practitioner whose act has caused any damage in pursuance of anything done as per the provisions of this Act, provided the act is done in good faith.
Constitutionality of Sections 3(2), Explanation 2 of Section 3(2), Section 3(4) & Section 5
The constitutional validity of the above-said section has been challenged by filing a Writ before the Apex Court under Article 32 of the Indian Constitution. The petitioners contend that the aforesaid Sections are violative of the fundamental rights enshrined under Articles 14 and 21. The constitutional validity was challenged in the case of Swati Agarwal & Ors. v. Union of India (2019). However, it has yet to be decided and is thus pending adjudication before the court.
The constitutionality of Clause (2)(a) of Section 3 is challenged as it puts restrictions on the reproductive choice of the woman since it mandates the opinion of a registered medical practitioner. This mandate of compulsory opinion puts an undue burden on the woman who wishes to terminate her pregnancy. Clause (2)(b) of Section 3 is challenged based on the permissible time it provides for the termination of pregnancy. The petitioner side contended that abortion, even at the later stages, has become possible due to the advancement of technology and science. The petitioners contended that the restriction of 20 weeks is very unfair and harsh.
The validity of Explanation 2 of Section 3(2) of the Act is challenged on the premise that it violates the provision of equality enshrined under Article 14 of the Constitution. The aforesaid explanation clarifies its applicability only to married women and thus amounts to hostile discrimination against single women out there. It fails to take into account the object of terminating an unwanted pregnancy. In fact, the consequences of an unwanted pregnancy in the case of unmarried women are even more grave than those of married women.
The validity of Section 3(4) of the Act is challenged on the premise that it is violative of Article 21 as it mandates the consent of a guardian in the cases of termination of pregnancy of mentally ill persons and minors.
Section 5 of the Act provides for permission to terminate the pregnancy beyond the period of 20 weeks, but only on the ground of an immediate risk to the life of the woman. Thus, its validity was challenged, stating that it is violative of Articles 14 and 21 of the Constitution. It was contended by the petitioners that the provision is arbitrary and restricts a woman’s right to reproductive choices. It also states that it fails to consider various health-related aspects that may be developed at later stages and that it also fails to meet the tests of reasonableness and proportionality.
Important amendments and rules in the MTP Act, 1971
Theoretically, the laws of our country relating to abortion are said to have a liberalized approach, but reality reflects several instances that contradict the same. Women who opt for such medical procedures have to go through so many difficulties. Also, it is important that the laws of a country relating to such issues be dynamic to cooperate with changing scenarios. Static laws tend to erode the objectives for which these laws were initially enacted. Hence, the Parliament, when the need arises, amends the laws, and the important amendments pertaining to this Act are discussed below.
The Medical Termination Of Pregnancy (Amendment) Act, 2002
The Amendment Act, 2002, replaced the word ‘lunatic’ with ‘mentally ill person’ in Clauses (a) and (b) of Section 2 of the MTP Act. The word ‘mentally ill person’ was also substituted in Section 3(4)(a) of the Act.
The Amendment of 2002 also inserted a new provision, i.e., Section 4, which lays down the places wherein termination of pregnancy for the purposes of this Act may be carried out.
It also inserted sub-sections 5(2)-(4) and two explanations, which laid down punishments for non-compliance with certain provisions of the Act and the meaning of the term ‘owner’ (explanation 1), along with an exception (explanation 2), respectively.
Medical Termination of Pregnancy Rules, 2003
The 2003 Rules were published to further ensure the effective implementation of the Act and to cope with some lacunas that could not be filled in the previous amendments. The rules provided for the composition and tenure of the District level committees (Rule 3). As per it, the committee shall include a Gynaecologist/ Surgeon/Anaesthetist and other members from the local medical profession, NGO, and Panchayati- Raj institution. It also mandated the presence of a woman on the committee. Also, the rules provided for the provision of experience, training, and practice for medical practitioners under Section 2(d).
Rule 3B mentions the categories of women that are permitted to terminate their pregnancies exceeding 24 weeks. The following categories of women are permitted;
sexual assault or rape or incest survivors;
minors;
physically disabled women;
substantial risk to the fetus;
mentally retarded women; a child who may have the risk of physical or mental abnormalities if the pregnancy is allowed;
a woman who is pregnant in a period of disasters, emergencies, or humanitarian settings as declared by the government for the time being.
It further provided for a mandatory inquiry and investigation in the places where such operations were carried out. This inquiry/ investigation was to be conducted by the Chief Medical Officer (Rule 4). Apart from these provisions pertaining to approval of a place (Rule 5), cancellation or suspension of the approval certificate of the place (Rule 7), and the provision of review by the owner of the suspension or cancellation order by the government (Rule 8).
Medical Termination of Pregnancy (Amendment) Act, 2021
Due to the insufficiency of the prevalent provision pertaining to abortion due to the advancement of science and technology, this new Amendment Act of 2021 was enacted by the Parliament. The new amendment has brought some important changes in the abortion laws, like exceeding 20 weeks in certain cases, the opinion of the registered medical practitioner, the formation of a medical board for these matters, etc. The aforesaid amendment is discussed in detail in the paragraph below.
New abortion law in India
The Amendment of 2021 was done to carry out certain important changes in the then MTP Act of 1971. From the issue of the intrinsic right of a woman to reproductive choice to deal with the illegal use of these procedures and many more, the new Act aims to cover a wide range of issues. The Act has expanded its scope, thereby providing easy access up to a certain level on therapeutic, eugenic, humanitarian, or social grounds. The amendment is a ray of hope and an attempt to secure the safety and well-being of women.
Historical background of the Act of 2021
The Medical Termination of Pregnancy Bill was presented by Dr Harshwardhan Goyal, the then Union Minister for Health and Family Welfare, in the Lok Sabha on March 2, 2020. The Bill received presidential assent on March 25, 2021, and thus, the Medical Termination of Pregnancy (Amendment) Act of 2021 was enacted.
Highlights of the amendment
The Act of 2021 inserted two new definitions under Section 2, namely, ‘medical board’ in Section 2(aa) and ‘termination of pregnancy’ in Clause (e). The term ‘medical board’ connotes the committee or board constituted under Section 3(2C), and ‘termination of pregnancy’ means the surgical procedure or medical procedure used to terminate the pregnancy.
The norms or qualifications required by a registered medical practitioner as per Clause (2A) of Section 3 will be as per the rules made under this Act.
It further provides for the establishment and composition of a medical board under Section 3(2C) of the Act. The board is to be constituted by the State or Central Government, as the case may be. The board shall exercise the functions and powers bestowed upon by the MTP Act or the rules formed under the Act.
Section 3(2B) was inserted, which states that the provision of the limit on termination of pregnancy will not apply if the fetus is suffering from some substantial fetal abnormalities, as advised by the medical board.
The composition of the medical board as per Section 3(2D) will be such that it consists of a gynaecologist, paediatrician, radiologist, or sonologist; and such other members as the government may by notification prescribe.
A new provision, i.e., Section 5A, was inserted, which makes it mandatory that the registered medical practitioner not disclose the information of the woman who is undergoing the abortion. The exception is also provided under the Section, which states that the information can be provided to a person authorized under any law for the time being in force, if necessary.
Drawbacks of the new abortion law in India
The medical boards were primarily established to check whether the pre-conditions established under the Act were satisfied or not. However, several recent incidents show that these boards are often seen interfering in issues of the viability of the fetus, the possibility of corrective surgery, judging on social stigmas and taboos, moral policing, etc. Thus, in certain cases, these boards have proven to be a hindrance to women wanting to terminate their pregnancies.
The Act further provides the right to abortion only to certain women falling into the categories mentioned under the Act. Thus, discriminating against other women who do not fall under this category. It fails to have a right-based approach but rather has a restrictive approach. The right to abortion is an intrinsic right of a woman, and thus, this Act infringes the same and fails to provide complete autonomy to the women who choose to terminate their pregnancy.
Case laws involving abortion
The High Courts and the Supreme Court have time and again adjudicated various matters pertaining to a woman’s right to abortion in pursuance of the prevalent laws at that time. Below are some important judgments by the Indian courts in cases involving abortion.
Nand Kishore Sharma and Ors. v. Union of India (2005)
Facts of the case
The petitioners in the above-said case filed a PIL before the High Court of Rajasthan challenging Sections 3(2)(a) and (b) of the MTP Act, along with Explanations I and II provided in Section 3. The petitioners contended that these provisions infringe on the fundamental right of a woman protected under Article 21 of the Indian Constitution.
Issue before the Court
The Rajasthan High Court had to decide whether these provisions under challenge were inconsistent with Article 21 of the Indian Constitution.
Judgment of the Court
The Court, while dismissing the petition, held the sections under challenge to be valid. It emphasized the object of the MTP Act and opined that this law was enacted to make provisions relating to abortion as stringent and effective as possible. In no way were these provisions enacted to allow the blatant termination of pregnancy.
Suchita Srivastava and anr. v. Chandigarh Administration (2009)
Facts of the case
In the present case, a Special Leave Petition was filed challenging the order passed by the Division Bench of the Punjab and Haryana High Court, wherein it was ordered that it is in the interest of a mentally ill or retarded person to undergo an abortion. In the present case, the pregnant woman was a victim of rape and an inmate of a government-run orphanage. The respondent herein approached the Punjab and Haryana High Court for approval of the termination of the victim’s pregnancy, contending that she is mentally retarded and that it would be better for her to undergo an abortion. Usually, in such cases, the courts appoint an expert body that inquires into the matter, considering all the relevant medical and other factors. Also, due weightage is given to the reports suggested by these bodies when dealing with cases of abortion. In the present case, the expert committee’s report reflected that the woman was willing to continue with the pregnancy. Despite the woman’s consent, the Court ordered the termination of the pregnancy. Being aggrieved by this, the present petition was filed before the Hon’ble Apex Court.
Issue before the Court
Whether the High Court rightly ordered the termination of the pregnancy of the mentally retarded woman despite her willingness to continue the pregnancy?
Judgment of the Court
The Supreme Court reversed the decision of the High Court and ordered that since Section 3 of the MTP Act mandates the consent of the pregnant woman, it would be wrong to forcibly order the termination of pregnancy. The Court further opined that such forcible termination of pregnancy would be violative of Article 21, especially when the woman has clearly shown her willingness to continue with her pregnancy. The Court, while considering various previous judicial decisions, stated that a woman has a right to make reproductive choices and that this includes both procreation and abstaining from procreation, though the state has a reasonable say in the matter, and these work as reasonable restrictions.
Devika Biswas v. Union of India (2016)
Facts of the case
In the present case, a PIL was filed by the social activist against various practices adopted by the state governments pertaining to the mass sterilization of both males and females. It was found that in various cases, even the consent of the patient undergoing sterilization was absent. It was also found that these procedures were being conducted in dangerous and unsanitary sterilization camps.
Issue before the Court
The issue before the court was to decide the validity and rightfulness of this practice of the government in pursuance of the fundamental rights enshrined in the Constitution.
Judgment of the Court
The Apex Court, while adjudicating and considering all the facts, held that such a practice of sterilization is violative of Article 21, thereby stating that a person has a right to reproductive choice and that it falls within the ambit of Article 21.
Meera Santosh Pal v. Union of India (2017)
Facts of the case
In this case, the petitioner approached the Apex Court under Article 32 of the Constitution, thereby seeking permission from the Court to allow her to terminate her pregnancy. It was discovered in the tests that her fetus was diagnosed with anencephaly (a severe medical congenital condition in which a large part of the brain is absent). A direction was issued by the court to the respondents for the examination of the petitioner’s condition by the medical board. At this time, the petitioner was 24 weeks pregnant.
Issue before the Court
The issue before the Court was to determine whether the pregnant woman should be allowed to terminate her pregnancy or not after the inspection by the board.
Judgment of the Court
The Supreme Court ruled in favour of the petitioner while placing reliance on the Suchita Shrivasta case (discussed in the above paragraphs) that this choice of a woman falls under the protection guaranteed by Article 21 of the Constitution. The Court also emphasized the point of the consent of a woman in both termination and continuation of pregnancy.
Mrs X and Ors. v. Union of India (2017)
Facts of the case
In the present case, the petitioner was a 22-year-old woman who was around 22 weeks pregnant. The petition was filed under Article 32, thereby asking for allowing her to terminate her pregnancy. The petitioner contended that she was diagnosed with a condition known as bilateral renal agenesis and anhydramnios. It was also placed on record by her that the continuation of this pregnancy may endanger her life and that the fetus has no chance of survival.
Issue before the court
The issue before the court was to decide whether the petitioner should be allowed to terminate her pregnancy or not.
Judgment of the Court
The Supreme Court, after receiving the report from the medical board, allowed her petition, thereby permitting her to terminate the pregnancy. Reliance was placed on the Suchita Shrivastava case, wherein it was held that the right to terminate pregnancy comes under the ambit of Article 21.
Minor R Thr Mother H v. State Of Nct Of Delhi & Anr. (2023)
Facts of the case
In the present case, the petitioner, a minor, has filed a writ petition before the Delhi High Court under Article 226, seeking issuance of a writ of mandamus, thereby directing the medical board to carry out the termination of her pregnancy under the new amendment to the MTP Act of 2021. The minor was about 14 and was raped by the accused, against whom an FIR was also lodged. Initially, the minor, in fear, did not tell her mother about the fact that she had missed her periods for the past four months. However, when the mother noticed certain changes, she took her to the hospital, where the pregnancy test was found positive, and after undergoing the pre-natal diagnostic tests, it was found that she was 24 weeks and 5 days pregnant. When they approached the medical board via the procedure prescribed, the board denied carrying out the abortion since it exceeded the maximum limit of 24 weeks. The board then asked the mother to approach the Hon’ble High Court, and so this petition was filed.
Issue before the Court
Whether the victim should be permitted to carry out the abortion exceeding the time of 24 weeks of pregnancy?
Judgment of the Court
The Delhi High Court allowed the minor’s plea for termination of pregnancy. It also issued certain guidelines that are to be followed in rape and sexual assault cases where the victim’s pregnancy exceeds 24 weeks. The following guidelines were issued by the Court:
Mandatory ‘urine pregnancy test’ of the victim of sexual assault or rape at the time of medical examination.
In case of a major victim, if found pregnant due to sexual assault or rape, expresses her will to abort the pregnancy, she has to be produced before the medical board on the same day by the investigating officer.
The Court further directed the government to ensure that the provisions of the MTP Act are implemented effectively and that medical boards must be constituted in all government hospitals to ensure the proper functioning of MTP centres.
In the case of a minor victim who is pregnant, must be produced before the medical board, upon the consent given by her legal guardian for the same and for the abortion as well.
Abc v. State Of Maharashtra (2023)
Facts of the case
In the present case, the petitioner approached the court to direct the medical board to carry out the termination of her pregnancy, which is around 33 weeks. The case of the petitioner is that initially when she went for sonography at 14 weeks of pregnancy and a fetal anomaly test, the results were normal. Later on, when she went again for the tests in the 29th week of pregnancy, certain fetal anomalies were discovered. The fetus was diagnosed with microcephaly and lissencephaly. Following this, the petitioner was admitted to a hospital, and after a few days, a medical board was constituted. The board, in its report, confirmed the fetal abnormalities. However, it stated that there was no such substantial risk to her life and hence denied the petitioner’s request for termination of her pregnancy. The petitioner stated that since they are not financially sound and various difficulties may arise in taking care of the child if he is born, she may be allowed to undergo an abortion. The board advised not to, and so the petitioner sought the judicial intervention of the Hon’ble High Court of Bombay.
Issues before the Court
The issue before the court was whether to allow such abortion or not after asking the board to look into the factors like whether an infant born with such abnormalities will require extensive care, continued medical care, expenses for the same, etc.
Judgment of the Court
The Bombay High Court allowed the request of the petitioner to undergo an abortion while she was 33 weeks pregnant. It also quashed the recommendations of the medical board, wherein the board advised not to terminate her pregnancy because of the length of the pregnancy.
Conclusion
Abortion in India was made legal after the enactment of the MTP Act, 1971. Before this, it was a punishable offence under Sections 312-316 of the IPC. The 1971 Act allowed termination of pregnancy under certain specific conditions specified under the Act. Recognizing a woman’s right to reproductive choices is an essential part of a free country, and thus, providing laws and regulations in favour of the same is very important. A woman’s right to safe abortion is desirable, and it is of utmost importance that the state must not interfere in the same, except in exceptional cases. The progressive approach taken by India in issues relating to abortion is commendable since we have much more liberal laws than most countries, yet we have miles to go. It is seen that in several incidents, easy access to abortion has just been a privilege that women in urban areas enjoy. Women in rural areas still do not have access to better facilities for the termination of unwanted pregnancies. Even the new amendment fails to consider certain important aspects of the laws that must be inserted or amended, as discussed in the article. Making safe abortion easily accessible to every woman, irrespective of any factor like her marital status, background, etc., is of paramount necessity.
FAQs
What are some difficulties that arise in the effective implementation of various policies pertaining to the availability, accessibility, and safety of induced abortion services?
The uneven expansion of abortion services in the lower level or the rural areas, the unavailability of qualified doctors in the small districts and villages, the taboo of abortion, and the clashes of the provisions of the POSCO and PCPNDT Act with the MTP Act, i.e., the barrier of age in different Acts and the conditions attached with it are some apparent difficulties that have dampened the proper and effective implementation of various government abortion policies.
Which department of the government ensures access to safe abortion in India?
The National Health Mission ensures access to safe abortion, thereby attempting to reduce the maternal mortality rate in the country.
What are the provisions that talk about forced abortions?
The Indian Penal Code, 1860, as discussed in detail in the above paragraphs, deals with provisions pertaining to forced abortions in Section 313, i.e., miscarriage without a woman’s consent, and in Section 314, i.e., death of a woman caused due to intent to cause miscarriage.
What is the legal age for women for abortion in India?
According to the laws prevalent in India pertaining to abortion, the legal age for abortion is 18 years and for this purpose marital status of the woman is immaterial. In the case of a minor, the permission or written consent of her legal guardian is necessary
Whether father’s consent is important for abortion?
The prevalent laws in India, concerning abortion nowhere expressly mention the weight given to a father’s consent while her spouse undergoes an abortion. Section 3(4)(b) of the MTP Act, lays down that the only person’s consent required is the woman who is undergoing termination of pregnancy. It is noteworthy that it is for the woman who has attained the majority. The Apex Court recently in the case of Anil Kumar Malhotra v. Ajay Pasricha (2017) has categorically held that a woman does not need her husband’s consent while undergoing abortion. The Apex Court in the aforesaid case upheld the judgment given by the Punjab and Haryana High Court. It is clear that a husband cannot force his wife to continue with the pregnancy.
In a few recent verdicts, how has the Apex Court expanded the scope of abortion rights in India?
The Supreme Court recently in the case of X v. The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr. (2022) has held that women irrespective of their marital status, i.e., both single and unmarried women can opt for safe and legal abortion same as a married woman is entitled to. In the present case, while interpreting certain rules framed under the MTP Act, 1971 the court opined that reproductive autonomy, dignity, and privacy come under the purview of the right to choose, even for an unmarried woman. In the present case, the unmarried woman aged about 25 years knocked on the doors of the Supreme Court after her plea for allowing her to terminate her pregnancy of 24 weeks approximately was rejected by the Delhi High Court.
What are certain unintended barriers to safe abortion for adolescent girls in India due to the prevalent conflicting laws on the same subject matter?
The present law requires the consent of a legal guardian for adolescent girls along with a mandatory reporting requirement to the police which hampers the fundamental rights of that individual. This reporting requirement often results in the unwillingness of adolescent girls to approach health providers. This blanket requirement, i.e., the mandatory guardian’s consent is unrealistic and thus, becomes a problematic one. Also, such barriers are a sheer example of the violation of the reproductive autonomy of the girl. The POSCO as well as the MTP Act makes the guardian’s consent compulsory, and hence medical providers due to the fear of prosecution often decline the adolescent girl for abortion in cases of absence of such consent, however urgent the situation may be. Apart from this, other legal ambiguities that are discussed in the article often hamper medical practitioners from performing abortions for fear that they might violate any law.
Does the woman’s decision to undergo an abortion amount to cruelty toward her husband?
Recently, the Supreme Court in the case of Samar Ghosh v. Jaya Ghosh (2011)held that a wife’s unilateral decision of undergoing vasectomy or abortion, especially without any medical reason, may amount to mental cruelty.
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The Central Goods and Services Act was enforced on July 1, 2017. It is a tax levied on the supply of goods and services. GST absorbed central taxes (customs, excise, central sales tax, and services tax) as CGST and state taxes (VAT, purchase tax, entertainment tax, entry tax, and Octroi) as SGST/ UTGST, and the share of both Central and state governments (CST, CVD, and SAD) as IGST. It is an indirect tax that has replaced many indirect taxes in India. This is a single domestic indirect tax law for the entire country.
Turnover limit for GST registration
On supply of goods
Mizoram, Nagaland, Tripura and Manipur
Rs. 10 Lakhs
Uttarakhand, Meghalaya, Sikkim, and Arunachal Pradesh
Rs. 20 Lakhs
Himachal Pradesh and Assam
Rs. 40 Lakhs
Telangana and Puducherry
Rs. 20 Lakhs
All other states
Rs. 40 Lakhs
On supply of services
Mizoram, Nagaland, Tripura and Manipur
Rs. 10 Lakhs
Uttarakhand, Meghalaya, Sikkim, Arunachal Pradesh, Himachal Pradesh and Assam
Rs. 20 Lakhs
All other states
Rs. 20 Lakhs
What is the Composition Scheme of GST
Every small business cannot afford to follow all GST compliance requirements, which include monthly returns, monthly payment of GST, maintaining complex records each month, and approximately 37 annual returns. In order to provide relief to small taxpayers, on April 1, 2019, the 2019 Composition Scheme under GST was introduced, wherein complying with the process of tax filing is not only less hectic but also allows them to pay GST at a comparatively lower and fixed rate.
How to file a Composition Scheme return
Under the Composition Scheme of the Goods and Services Tax (GST), a registered dealer needs to file a simplified quarterly return known as Form CMP 08. The deadline to file this return is the 18th of the month following the end of the quarter (i.e., the 18th of July, the 18th of October, the 18th of January, and the 18th of April). Additionally, an annual return called Form GSTR-9A must be filed by the 31st of December of the following financial year.
To comply with GST regulations, a dealer who has opted for the composition scheme is not obligated to keep extensive records for the purpose of filing returns.
Difference between regular scheme and composition scheme
Regular scheme
Composition scheme
Monthly payment of tax
Quarterly payment of tax
More records to maintain
Less records to maintain
The input tax credit is available
The input tax credit is not available
This scheme is beneficial for large scale business houses as it gives them flexibility to operate businesses interstate.
This scheme is beneficial for small scale business houses, as they operate businesses in the local area.
Eligibility for composition scheme
To be eligible for the composition scheme of GST, a taxpayer should meet the following parameters:
They should fall under the turnover threshold limit as prescribed by law.
You should fall under particular type of dealer or supplier as prescribed by law
Turnover threshold limit
Normal states
Normal states include all the states, excluding special states. Businesses with a turnover threshold limit under 1.5 crore in the preceding year are subject to the eligibility criteria of composition schemes.
Special states
The following are the special states:
Arunachal Pradesh
Manipur
Meghalaya
Mizoram
Nagaland
Sikkim Tripura
Uttarakhand
Businesses having a turnover threshold limit under 0.75 crore in the preceding year are subject to the eligibility criteria of composition schemes.
Types of dealers/suppliers
Manufacturers
Clause 72, Section 2, of The Central Goods and Services Tax Act, 2017 defines “manufacture” as “the processing of raw materials or inputs in any manner that results in the emergence of a new product having a distinct name, character, and use,” and the term “manufacturer” shall be construed accordingly. So, a manufacturer is one who manufactures.
The Oxford dictionary defines manufacturer as “a person or company that produces goods in large quantities.”
Manufacturers can avail themselves of the benefits of the Composition Scheme of GST if their turnover is less than 1.5 crore in the case of normal states and 0.75 crore in the case of special states, and the rate of tax is 0.5% CGST and 0.5% SGST for a total of 1% GST.
Traders
The word “trader” is not defined under the Central Goods and Services Tax Act, 2017, but according to the Oxford Dictionary, a trader can be defined as “a person who buys and sells things as a job.”
Traders can avail themselves of the benefits of the Composition Scheme of GST if their turnover is less than 1.5 crore in the case of normal states and 0.75 crore in the case of special states, and the rate of tax is 0.5% CGST and 0.5% SGST for a total of 1% GST.
Restaurant services
Restaurant owners can also avail themselves of the benefits of the Composition Scheme of GST if their turnover is less than 1.5 crore in the case of normal states and 0.75 crore in the case of special states, and the rate of tax is 2.5% CGST and 2.5% SGST for a total of 5% GST.
Other services
During the 32nd GST Council Meeting held on January 10th, 2019, the Indian Government announced that service providers would now have the option to enrol in the Composition Tax Scheme.
To be eligible for the Composition Tax Scheme, the government set a threshold turnover of Rs. 50 lakh for service providers. This means that if a service provider’s annual turnover is below Rs. 50 lakh and they are not covered under Section 10(1), they can opt for the Composition Tax Scheme and pay a fixed tax rate of 6% (3% CGST + 3% SGST)
Who cannot go for the Composition Scheme
Some businesses are not eligible to opt for the Composition Scheme regardless of their turnover or the type of dealers/suppliers they are:
Manufacturer of ice cream, pan masala, and tobacco;
A person making inter-state supplies;
A casual taxable person or non-resident taxable person; and
Businesses that supply goods through an e-commerce operator.
How to apply for the Composition Scheme
If you are already registered as a regular taxpayer under GST and want to apply for the Composition Scheme, you can follow these steps:
Log in to the GST Portal using your registered username and password.
Go to the ‘Services’ tab and select the ‘Registration’ option from the drop-down menu.
Click on the ‘Application to opt for the Composition Scheme’ option.
Fill in the required details, including your GSTIN, legal name, and the date from which you want to opt for the Composition Scheme.
Select the appropriate reason for opting for the Composition Scheme from the drop-down menu.
Upload the necessary documents, including a declaration form, bank account details, and other relevant documents.
Submit the application.
Once you submit the application, it will be verified by the GST department, and if there are no issues, your registration will be converted to the Composition Scheme. You will receive an intimation in this regard, and your GST rates will be reduced accordingly.
Important points
Advantages of the Composition Scheme
These are the advantages that can help small businesses thrive and grow without the burden of complicated tax rules and high tax bills:
Reduced compliance activities;
Limited tax liabilities; and
Can have more cash on hand since the Composition Scheme’s GST rates are lower than the usual rates.
Disadvantages of the Composition Scheme
Before making a decision to opt for the Composition Scheme, small businesses should consider some potential drawbacks, such as:
Ineligibility to conduct e-commerce business;
Inability to conduct transactions across different states;
Inability to charge customers any tax or claim input tax credit; and
Ineligibility to supply exempt goods.
Although the Composition Scheme has its advantages, it’s important for businesses to understand these limitations and assess whether they can work around them to make the best decision for their unique circumstances.
How to convert from Composition Scheme to regular scheme
To stop paying tax under the Composition Scheme and switch to the regular scheme, a composition taxpayer must do two things.
First, they need to fill out a form called GST CMP-04 to let the authorities know that they want to withdraw from the Composition Scheme. If they’re withdrawing because their turnover has gone above the limit, they have to submit the form within 7 days of becoming eligible to register as a regular dealer. It’s important to note that this withdrawal will apply to all of the person’s business locations registered under the same PAN.
Secondly, the person moving to the regular scheme has to provide a stock statement in GST ITC-01. This statement should include details about the stock of inputs, semi-finished or finished goods they held on the day before becoming liable to be a regular dealer. Providing this statement allows the dealer to claim the input tax credit on their stock of inputs, semi-finished or finished goods, and capital goods when they become a regular dealer. They have to submit this form within 30 days of filing GST CMP-04.
Conclusion
Based on the advantages and disadvantages of the Composition Scheme, I can provide some general guidance on who may be advised to opt for it:
Businesses with a turnover of up to Rs. 1.5 crore that operate within a single state may find the Composition Scheme beneficial. It can simplify their tax compliance requirements and help them manage their cash flow more effectively. However, businesses that operate across multiple states face restrictions.
It’s important to keep in mind the potential disadvantages of the Composition Scheme, such as limitations on inter-state transactions and the inability to claim the input tax credit. Businesses that can work around these limitations and still benefit from the scheme may be advised to opt for it.
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This article has been written by Vaishali. N, a student at the School of Excellence in Law, Chennai. This article attempts to discuss contested divorce in detail while providing relevant and important case laws. It briefly introduces the readers to the concept of divorce and then proceeds to explain the grounds for contested divorce under different personal laws, the procedure to be followed, and the requirements and documents necessary for filing a contested divorce.
It has been published by Rachit Garg.
Table of Contents
Introduction
Marriage is an essential social institution which maintains cohesion and solidarity of the society we live in. It is a social and legal union of two individuals who commit to spending the rest of their lives together by sharing feelings of trust and love for each other. But sometimes it becomes difficult to continue a marital relationship if it evolves into an unhealthy or harmful relationship for the individuals bound to it. There are a variety of reasons for a marriage to go bitter, and this pushes unhappy couples to relieve themselves from the marriage by getting a divorce. Divorce is the legal termination of a marriage between two individuals.
In India, divorce is governed by different personal laws based on one’s religion; however, the grounds for obtaining a divorce under these laws vary only to a slight extent. Divorce can either be sought mutually or it can be contested. This article focuses on the laws and procedures related to contested divorce in India while discussing relevant case laws for the same.
What is a divorce
A divorce is sought when two parties in a marriage no longer wish to continue their matrimonial bond due to some or other reason that cannot be resolved and there is no scope of reconciliation. It can be simply defined as a legal dissolution of marriage, which can be initiated by filing a petition for divorce in court.
There are ways of getting a divorce: divorce by mutual consent and contested divorce. In the first case, both partners recognise their differences and mutually decide and agree upon getting divorced. There is consent and mutual agreement from both sides seeking a divorce. However, in a contested divorce, there is a disagreement between the parties, where one spouse initiates the divorce on legal grounds while the other attempts to oppose it, leading to prolonged legal battles to settle the dispute and obtain a divorce.
Divorce is not only about the dissolution of the matrimonial alliance; it also involves the issue of division of property, issue of payment of alimony to the spouse and the custody of children. It is also important to note that divorce can be granted only if there is “an irrevertible breakdown of marriage” where the parties should have such allegations levelled against each other that the marriage appears to be practically dead or irreparable.
What is a contested divorce
In a contested divorce, either one of the parties file a petition seeking divorce on certain grounds when the other has not consented to it. Unlike mutual divorce, the parties here are in a disagreement, so, the parties seeking divorce appoint separate lawyers to represent their individual interests and engage against each other in the legal proceedings. While mutual divorces take only a few months, contested divorces can take up to 2-3 years or even longer and are a relatively more expensive process as well.
There are certain grounds on which a contested divorce can be sought. The party filing for divorce must prove the grounds satisfactorily. Though there are separate personal laws governing marriage and divorce for people belonging to different religions, the grounds for a contested divorce are more or less similar for all. These grounds under Hindu, Christian, Muslim, and Parsi laws will be covered in greater detail in the upcoming section.
Grounds for filing a contested divorce
There are various grounds on which a divorce can be contested. These grounds, which are discussed in different personal laws, bear only slight differences but are similar in most aspects. The grounds on which the petitioner seeks divorce must be satisfactory for the court to grant a divorce.
Grounds under Hindu Marriage Act, 1955
Under Section 13 of the Hindu Marriage Act, 1955, a divorce can be contested on the grounds of adultery, cruelty, desertion, religious conversion, leprosy, communicable diseases, renunciation, mental instability, or presumption of death.
Adultery
In a subsisting marriage, when one partner has sexual intercourse with another married or unmarried person consensually, then he/she is said to have committed adultery which was a criminal offence under Section 497 of the Indian Penal Code, 1860. Adultery was later decriminalised in 2019 in the case of Joseph Shine v. Union of India. Though it is no longer a criminal offence, it is considered to cause a serious and damaging lapse in marital relationships and thus forms a valid ground for obtaining a divorce under Section 13(1)(i).
The petition for divorce can be filed by the affected party, and the burden of proof lies on the party alleging the same.
It is necessary that the ground of adultery be proved beyond a reasonable doubt, and mere gossip does not prove adultery.
In the case of Dhedu Sheoram v. Mst. Malhanbai (1965), the husband, informed that there is a custom in their family where the married couple can have no sexual relationships until a specific ceremony is performed. But the wife had conceived before the ceremony was performed. The court held that the ceremony not being performed and the wife and husband living in separate homes alone cannot be proof of non-access. The child was born during the continuance of marriage, and the husband failed to submit sufficient evidence of ‘non-access’ during the period when the child could have been conceived. Thus, the decree of divorce at the instance of the husband was rejected.
Cruelty
Cruelty is also one of the common grounds for seeking matrimonial relief under all personal laws. Initially, it was not a ground under the Hindu Marriage Act, 1955; it was added after an amendment to the Act in 1976. Cruelty can be both mental and physical. However, there is no specific definition or categorisation of what cruelty can be, as the parameters to decide that are endless.
Section 13(1)(i)(ia) establishes that if a person has a well-founded fear and a reason to believe that the conduct of their spouse is likely to be harmful, then that can be a reasonable ground to seek divorce.
The concept of cruelty changes and evolves over a period of time. What was once considered to be an acceptable practice decades ago might not be acceptable now. It is not necessary to prove mens rea (a wrongful intention) for establishing a case under cruelty, any conduct that inflicts pain or produces a strong negative impact on the petitioning party is cruelty.
In the case ofBajrang Gangadhar Revdekar v. Pooja Bajrang Revdekar (2010), the High Court of Bombay dismissed the husband’s plea for divorce because the allegations against his wife to establish cruelty were merely the day to day quarrels they had over trivial matters and that the wife made her grievances in a loud voice, which cannot be considered instances of mental cruelty.
Desertion
If a person abandons their spouse for at least 2 years continuously, without any reasonable cause, then the spouse can file for divorce under Section 13(1)(i)(ib). It is important that the person seeking divorce on this ground be able to establish that his/her spouse had the intention to desert them and not return again. The intention to permanently put an end to cohabitation is termed as animus deserendi.
InOm Prakash v. Madhu (1997), the husband sent his wife away to live separately to complete his studies. The husband filed against her for divorce on the grounds of desertion but the trial court rejected the petition. So he appealed to the High Court contending that they had been living separately for 16 years, and the wife’s refusal to receive the notices for return amounts to desertion. But, the court upheld the trial court’s decision and rejected the husband’s plea. It was held that there was no desertion on part of the wife. The court observed that the reason for living separately was for the sake of the husband’s studies. Even though he had visited her frequently during the separation, he did not have the courage to bring her back home against his family’s wishes. The wife was even ready to rejoin him during the proceedings, but his unwillingness has made her lose faith in their marriage. He had thought making her live separately would thrust upon her animus deserendi (intention to end cohabitation permanently), but that is not the case as there was no intention on the part of the wife to abandon him. Therefore, the claims of the husband were rejected. Further, the court cited that the couple had previously expressed their desire to live together in the local council proceeding. Hence, the petition was dismissed.
Conversion
Under Section 13(1)(ii) of the Hindu Marriage Act, 1955, if either spouse converts to another religion, then a divorce petition can be filed. Because change in one’s religion alters their way of life, this can eventually lead to fallouts between the partners; hence, it forms a valid ground for divorce.
However, the spouse who converted to another religion cannot apply for divorce on this ground. In the case of Madanam Seetha Ramalu v. Madanam Vimala (2014), the husband was granted a divorce he filed against his wife for converting to Christianity. The court noted that conversion alone does not affect the marriage tie and that it is only the right of the non-convert spouse to apply for a divorce under this ground. The spouse who gives up Hinduism is the one who has wronged or caused disability in their marriage and hence cannot be the one to seek relief on this ground.
Leprosy and communicable venereal diseases
Under the amended Hindu Marriage Act, 1976, divorce can be sought by a person if their spouse suffers from a “virulent or incurable form of leprosy” under Section 13(1)(iv) or from any incurable communicable venereal disease under Section 13(1)(v). Prior to the 1976 amendment, it was required that the party against whom the petition was filed should have suffered for at least three years. This time period requirement was later removed after the amendment.
It is absolutely necessary that only the party suffering from their spouse’s disability should be the one filing for a divorce. In Triveni Singh v. State of U.P. (2008), the father-in-law after the death of his son, petitioned against his daughter-in-law to annul the marriage of his deceased son. He alleged that the wife was suffering from HIV, and this fact was concealed from his son. But there was no evidence submitted that the wife had suffered from HIV nor that the consent of the son was obtained fraudulently. The Court observed that the marriage cannot be annulled as it did not involve the affected spouse seeking relief, and thus the basis of the suit was extraneous and not an inter-spousal issue.
Renunciation
When a person renounces the worldly way of living and enters into a religious order, it becomes a ground for dissolution of the marriage under Section 13(1)(vi) as renunciation of the world is considered holy.
Mental instability
Lunacy or any other form of mental instability were not considered as a ground for annulling marriage but this position changed with the establishment of the Hindu Marriage Act, 1955. under Section 13(1)(iii) of the Act relief can be provided if the spouse –
Is incapable of giving valid consent to marriage due to his/her mental state
Though capable of giving consent, she is unfit for marriage and procreation of children
Has been subject to recurrent attacks of insanity
In R. Lakshmi Narayan v. Santhi (2001), the marriage was arranged and the couple had been together for 25 days, after which the husband sought a divorce to dissolve their marriage on the grounds that his wife was suffering from a chronic and incurable mental disorder. The husband submitted that on the night of their marriage, she was drowsy and refused cohabitation. She said that she had suffered from mental disorders since childhood and was not ready for any relationship, as she gave in to the marriage out of family pressure. The High Court rejected the petition on the basis that it was not established that the wife was unable to give valid consent due to unsoundness of mind during marriage and that judging her mental state merely due to her refusal to cohabitate is unreasonable, especially when the couple has lived together for a very short period of time.
The High Court held that it was necessary to establish that the mental ailment suffered should be to such an extent that it should be impossible for the person to lead a normal married life. Further appeal on the case was dismissed by the Supreme Court.
Presumption of death
If the spouse is presumed dead due to his/ her whereabouts being unknown to family or friends for a period of 7 years, then it forms a valid ground for divorce under Section 13(1)(vii).
Grounds under Muslim Law
There are two ways to dissolve a marriage under Muslim law:
Extra-judicial process: It involves dissolving the marriage either mutually or by the will of either of the spouses through the customary and religious practices in Sharia Law.
Judicial process
Divorce under Muslim law is governed by the Dissolution of Muslim Marriages Act,1939, where grounds for divorce available to a Muslim woman are listed under Section 2 of the Act. A Muslim man does not need any grounds to divorce his wife. A married Muslim woman can seek to dissolve her marriage on the following grounds:
The husband’s whereabouts have been unknown for a period of four years.
He failed to provide maintenance for a period of two years.
He has been sentenced to imprisonment for 7 years or more.
The husband failed to perform his marital obligations for 3 years.
Husband was impotent during the time of marriage and continues to be so.
The husband has been mentally unstable for two years or suffers from leprosy or virulent venereal disease.
The woman was given in marriage before she attained the age of 15 years by her father or guardian and was repudiated before she attained the age of 18. Divorce can be sought on this ground, provided that the marriage has not been consummated.
If the husband treats her cruelly. Cruelty here includes assault, ill-treatment,associating with women of evil repute, forcing the wife to lead an immoral life, disposing of her property or restricting her legal rights over it, obstructing her observance of religious practice, having more than one wife, and not treating her equitably in accordance with the injunctions in the Quran.
Extra-judicial process
Divorce under an extra-judicial process can be classified on the basis of which party wishes to nullify the marriage.
Divorce by husband
Talaq
Ila
Zihar
Divorce by wife
Talaq-i-tawfeez
Lian
Mutual divorce
Khula
Mubarat
Divorce by husband
Talaq
Talaq translates to “setting free” or “letting loose”. The pronouncement of talaq breaks one’s marriage and sets them free from its bondage. There are two types of talaq: talaq-e-sunnat and talaq-e-biddat.
Talaq-e-sunnat is considered to be in conformity with the tenets of the Prophet Mohammed, and it is further subdivided into: talaq-i-ahsaan and talaq-i-hasan.
Talaq-i-ahsaan is considered to be the most ideal way of divorce, the practice of which involves the husband pronouncing divorce just once during the period of tuhr (when the wife is not menstruating). This form of divorce can be revoked if the couple resumes cohabitation in the period of iddat.
Talaq-i-hasan is considered a proper way to divorce, where the husband pronounces divorce three times over three consecutive tuhrs while abstaining from having sexual intercourse during this period. The divorce can be revoked if the couple resumes cohabitation within one month of the first pronouncement.
Talaq-e-biddat, also known as “triple talaq”, is a process of divorce that involves pronouncing ‘talaq’ three times in a single sitting, which ends the marriage instantly. It is irrevocable and is considered an undesirable and sinful practice in Islam.
This practice was later banned by way of the Supreme Court’s landmark decision in the case of Shayara Bano v. Union of India (2017). The Court remarked that the practice of triple talaq is not protected under Article 25 of the Constitution of India as it is not an essential part of the religion and is condemned by the practitioners of Islam itself. It was held to be unconstitutional as it violates the fundamental rights of women under Article 13(1) and 14 and declared the Muslim Personal Law (Shariat) Application Act, 1937 to be void as it upheld the practice of talaq-i-biddat and was thus, in conflict with the aforementioned fundamental rights.
Ila
The husband vows to abstain from sexual intercourse for a period of four months, after which the marriage is dissolved irrevocably. However, if the husband breaks his vow and indulges in intercourse, then the marriage cannot be dissolved.
Zihar
The husband places his wife in the position of his mother or sister and compares her to them. With such a view in mind, he refrains from cohabitation for a period of four months, after which the marriage stands dissolved.
Divorce by wife
Talaq-i-Tafweez
The husband delegates the power to pronounce divorce onto his wife, giving her the authority to dissolve the marriage. The delegation of the authority to divorce can be absolute or conditional, temporary or permanent. Permanent delegation is revocable, but temporary delegation is not.
Lian
The wife can seek a divorce if the husband falsely accuses her of adultery.
Mutual divorce
Khula
The wife agrees to pay some compensation, usually in the form of property, to her husband, and he accepts it. The marriage is thus dissolved mutually, in exchange for some consideration on the part of the wife.
Mubarat
Both the husband and the wife no longer wish to continue their marriage, and thus either of the spouses puts forward a proposal for divorce and the other accepts it. Hence, the marriage is dissolved irrevocably.
Grounds under Christian Law
Divorce for Christians is governed by the Indian Divorce Act, 1869. But due to being outdated and discriminatory in many aspects, the act was substantially amended in 2001. Section 10 of The Indian Divorce (Amendment) Act, 2001, provides grounds for the dissolution of a Christian marriage that has been solemnised.
A divorce can be sought on any of the grounds mentioned under sub-clauses (i) – (x) under Section 10(1) against one’s spouse if he/she –
has committed adultery;
converts to another religion and ceases to be a Christian;
has been mentally unsound for a period of at least two years;
suffers from virulent and incurable leprosy for a period not less than two years;
has been suffering from communicable venereal disease for a period of not less than two years;
has not been heard from for a period of seven years;
has willfully refused to consummate the marriage;
failed to comply with the restitution of conjugal rights for a period of two years since the issue of decree against the respondent;
deserted their spouse for a period of two years;
treated their spouse with such cruelty, giving the petitioner enough reason to believe that it would be harmful or injurious to live with the respondent.
In addition to the aforementioned grounds, Section 10(2) provides a ground exclusively for women to file for divorce if the husband, since the solemnization of marriage, has been guilty of rape, sodomy, or bestiality.
Section 10(2) was challenged in the case of Anil Kumar Mahsi v. Union Of India (1994), on the grounds that the exclusivity given to women under this clause violates the right to equality under Article 14. But the court dismissed the petition, keeping in view women’s general physical and social vulnerability in our country.
Grounds under Parsi Law
The grounds for divorce in Parsi law are contained in Section 32 of the Parsi Marriage and Divorce Act, 1936. A person married under the Act may sue for divorce on the following grounds:
If the marriage has not been consummated within one year of marriage and there is willful refusal to consummate the marriage from the defendant.
The defendant was mentally unsound at the time of marriage or had been so for two years up to the date of the suit.
The wife was pregnant with another person’s child at the time of marriage, provided that the plaintiff was ignorant of the fact. The suit should have been filed within two years of marriage.
The defendant has committed adultery, fornication, rape, bigamy or any other unnatural offence
Defendant has caused voluntary grievous hurt to the plaintiff, has infected the plaintiff with venereal disease, or if the defendant as the husband has forced his wife to submit herself to prostitution.
The defendant has been sentenced to imprisonment for seven years and upwards
The defendant had deserted the plaintiff for at least two years
The defendant has failed to comply with the decree passed by the magistrate against the defendant and provide separate maintenance to the plaintiff, and no marital intercourse has taken place between the parties for a year or more since the decree was passed.
The defendant ceased to be a Parsi (by converting to another religion).
Grounds under the Special Marriage Act, 1954
The grounds for divorce and separation under the Special Marriage Act, 1954 are similar to the grounds provided under the Hindu Marriage Act, 1955. The provisions for divorce are contained under Section 27 of the Special Marriage Act, 1954, where either spouse may file a petition for divorce on the following grounds-
Adultery: If the respondent, after the solemnization of marriage, has had sexual intercourse with another person voluntarily.
Desertion: If the petitioner was deserted for a continuous period of at least 2 years. Desertion here means that the respondent has engaged in ‘wilful neglect’ of the petitioner by abandoning him or her without any reasonable cause or consent.
If the respondent has been convicted of an offence under the Indian Penal Code,1860 and is serving a sentence of imprisonment for seven years or more for the same.
Cruelty: The respondent has treated the petitioner with cruelty since the solemnisation of the marriage.
Mental instability: The respondent has an unsound mind or has been suffering from a mental disorder, continuously or intermittently, to the extent that it is not possible for the petitioner to continue to live with the respondent anymore. ‘Mental disorder’ includes mental illness, arrested development of the mind, psychopathic disorders like schizophrenia, or any such similar disorder that induces the respondent to act in an abnormally aggressive or reckless manner.
The respondent is suffering from a communicable venereal disease.
The respondent has been suffering from leprosy or any other serious disease (provided that it was not contracted from the petitioner).
Presumption of death: The respondent’s whereabouts have not been known or have not been known to be alive for a period of at least 7 years or more.
Requirements to consider a contested divorce
There are certain requirements that need to be considered before filing for a contested divorce. The court could reject the petition if these basic requirements are not met.
Evidence to prove grounds
In a contested divorce, one party files a divorce petition on specific grounds against the other party. So in order to win the case, it is essential to have sufficient documents and evidence to support the allegation on the basis of which the divorce is sought. If the petitioner lacks the necessary evidence to prove the allegation or if the court finds that the documents and evidence submitted are fabricated, then the petition will be dismissed.
Proper filing of the petition
It is absolutely important to strictly adhere to the procedural codes that courts follow. It is necessary to keep a check on filing procedures and look out for procedural errors like missing stamps or essential documents. In cases of such errors or improper filing, the petition could be rejected by the court.
Reasonable exceptional hardship or depravity
The law establishes that a person can claim a divorce only in cases where he or she faces exceptional hardship or depravity. The petitioner should be facing exceptional hardship or depravity to the point where it’s almost impossible to live any longer with the spouse.
Procedure for a contested divorce in India
The person willing to file for a contested divorce must first seek an attorney that specialises in this field of work to fight for their case. The process of getting a contested divorce can be very long and tedious, and it involves various legal complexities.
The steps for obtaining a contested divorce are as follows:
Step 1
Firstly, necessary information like facts, grounds, and supporting documents related to the case should be gathered. Then a well-drafted petition should be prepared and filed before the district family court where the couple last resided, the place where the marriage was solemnised or where the spouse currently resides.
Step 2
The petition is scrutinised by the court. If the court is satisfied, it serves a notice to the spouse against whom the petition is filed to appear in court with an attorney on a fixed date. The general response period ranges from 21 – 30 days from the issue of the notice.
Step 3
The court will suggest that the parties take up mediation to resolve the issue. If mediation fails, then the court will continue with the divorce proceedings.
Step 4
At the trial, parties from both sides will present facts, evidence, and witnesses to the judge. The court frames the issues. Cross-examinations will be conducted, and the submission of arguments will be made by the counsels of both parties.
Step 5
The court, after listening to the final arguments of both parties and resolving the issue, delivers the verdict and may allow or deny the divorce decree.
Step 6
The aggrieved party can appeal to the High Court with jurisdiction over the family court and then later to the Supreme Court within 3 months of passing the verdict.
Documents required for filing a contested divorce
The documents that are to be produced while filing for a contested divorce are as follows:
Proof of marriage: marriage certificates issued by the registrar and photographs of marriage, invitation cards, etc. are to be produced as evidence.
Residential address proof of both the husband and the wife
Information regarding the parties’ family background, occupation and source of income
Particulars of moveable, immovable properties and other assets owned by the parties
Income tax return statements for the previous two financial years at least
Documents providing information on the grounds on which the suit is filed.
There is evidence to establish that the parties have been living separately for more than a year and that all attempts to reconcile have been unsuccessful.
In the event that divorce is sought on the grounds of cruelty, or on the grounds that the spouse suffers from communicable venereal disease or leprosy, then the necessary medical reports in support of such allegation are to be produced.
Important case laws
Shobha Rani v. Madhukar Reddy (1988)
This case establishes that dowry demand per se is cruelty under Section 13(1)(ia) of the HMA, 1955.
Facts
The appellant, wife and the respondent, husband were both educated and financially well off. The wife alleged that her in-laws were constantly demanding money from her every day, and the husband too had supported his parents and conveyed to her in one of the letters that there was nothing wrong with his parents asking her for a few thousand rupees. The constant pestering for money had reached a point where the appellant was afraid to go back and live with her husband. She had also not disclosed the fact that she had property and some money in her account to her husband or in-laws as she had an apprehension that she might be ill-treated physically or mentally for more money. The couple had initially tried to part ways mutually, but it was not granted. Thus, the appellant filed for divorce on the grounds of cruelty.
Issue
Whether the demand for dowry per se would amount to cruelty?
Judgement
The Apex Court remarked that intention to harm is not an essential ingredient to prove matrimonial cruelty. Even though there had been no deliberate or wilful ill-treatment of the appellant, the demand for dowry is prohibited by law. The conduct of the in-laws and the husband in demanding dowry from the appellant constitutes cruelty. Thus, the wife’s appeal was granted, and a decree to dissolve the marriage was passed in her favour on the grounds of cruelty.
Shashi Bala v. Rajiv Arora (2012)
Conjugal relationships are an essential part of marriage. This case deals with whether a spouse’s non – cooperation in conjugal relations includes cruelty under Section 13(1)(ia) of the Hindu Marriage Act, 1955.
Facts
The husband had petitioned for divorce on the grounds of cruelty, and the wife had filed a counter-claim for restitution of conjugal rights. The husband alleged that the wife did not cooperate in having sexual relations with him and did not participate in any traditional ceremony after the marriage, which caused him humiliation and embarrassment, and contended that this amounts to cruelty. The trial court dismissed the wife’s claim and held in favour of the husband. Hence, the wife filed an appeal to the High Court of Delhi.
Issue
Whether a non-responsive and non-cooperative attitude of the wife in sexual relations entitles the husband to obtain a divorce decree ?
Judgement
The High Court upheld the order of the trial court. It was observed that a healthy sexual relationship plays an important role in building a healthy marriage. The court remarked that “sex starved marriages are becoming an epidemic,” that denial of sexual relationships is a grave act of cruelty, and that a healthy sexual relationship is necessary for a happy marriage. Thus, on the ground of the wife’s non-cooperation in the conjugal relationship and her act of filing baseless criminal complaints against the husband, it amounts to cruelty and entitles the husband to a decree of divorce.
Naveen Kohli v. Neelu Kohli (2006)
Irreversible breakdown is an essential element in deciding the state of one’s marriage and checking if the marriage is broken to an extent where the couple can no longer live together. But “irrevertible breakdown” is an essential ingredient rather than a ‘ground’. The court in this case decides whether irrevertible breakdown can be considered the sole ground for divorce.
Facts
The appellant-husband and the respondent wife were married in 1975 and had three sons out of wedlock. The appellant alleged that his wife had a bad temperament and rude behaviour. After the marriage, the respondent ill-treated him and his family, due to which they had to move to a rental property. During their trip to Bombay to attend the appellant’s parent’s silver jubilee wedding anniversary, the respondent was alleged to have engaged in indecent and impermissible behaviour and was found in a compromising position with another man.
And since this incident, the appellant had been living separately and had endured severe mental and emotional abuse due to the conduct of the respondent.
Further, the appellant alleged that the respondent had drawn out Rs. 9,50,000/- from the appellant’s bank account and deposited the amount into her account. She had also lodged a number of false first information reports against him, which ruined his reputation and caused mental cruelty. The appellant filed a civil suit against the respondent. He claimed that he was manhandled at the behest of the respondent and that it was on her instruction that the eldest son had filed a complaint against the appellant, alleging that he had physically beaten their son, Nitin Kohli.
Issue
Whether irreversible breakdown of a marriage can alone be used as a ground to grant a divorce decree?
Judgement
In this case, even though the divorce petition was not filed on any specific ground mentioned under the Hindu Marriage Act,1955, the court observed that the marriage had broken down beyond repair. It was remarked that it is injurious to the interests of the parties to keep a practically dead marriage legally alive. The court observed that “once the marriage has been broken down beyond repair, it would be unrealistic for the law to not take notice of the fact, and it would be harmful to the society and injurious to the parties”. After evaluating the evidence and analysing the facts, the court came to the conclusion that it was obvious that the respondent wanted to live in agony and make the appellant’s life miserable. It was clear that the marriage had been broken down to such an extent that there was no way the damage could be reversed and the couple could live together again. Even after this observation, if the decree were not to be granted, this would induce perpetual bitterness in their lives and may lead to immorality, which is more concerning to the interest of the public.
Thus, the Apex Court allowed the decree and made a strong suggestion to include “irreversible breakdown of marriage” as a ground for divorce.
C. Solomon v. Josephine (1958)
In this case, the court decides whether the mere absence of a happy marriage can be considered a reasonable basis to grant divorce over the allegations made under a specific ground for divorce (which in this case is mental illness) under the Indian Divorce Act, 1869.
Facts
The husband filed a petition under Section 18 of the Indian Divorce Act, 1869, to declare his marriage null and void on the grounds that his wife was a lunatic and an idiot. He said she had been this way even before their marriage, but it was concealed from him, and he was told that she was just suffering from mental illness and that she would be alright after the marriage. However, the wife alleged that she was being ill-treated by her husband; hence, she ran away out of fear. The district judge ruled that the circumstances in the case are such that they would support the continuation of a happy married life; thus, the suit of the husband was decreed. But a confirmation proceeding before the high court reversed the decision.
Issue
Where allegations of mental illness or abnormality are made, can the court take mere incompatibility and the absence of prospects of a happy marriage to grant relief?
Judgement
The High Court ruled out the District Court’s order. It noted that the husband had failed to establish that his wife was suffering from mental abnormalities. On the basis of the provisions under the Indian Divorce Act, 1869, if the ground is not proved, divorce or the declaration of marriage as null and void cannot be granted merely on the basis of the incompatibility of the spouses or on the prospect of leading an unhappy married life.
Abdurahiman v. Khairunnessa (2010)
Polygamy is not an illegal practice under Islamic laws. However, there are certain conditions under which a Muslim woman can seek divorce on the grounds of her husband’s second marriage. In this case, the court looks into the conditions under which such a petition under the Dissolution of Muslim Marriages Act, 1939, can be entertained.
Facts
The wife filed for the dissolution of marriage under Section 2(viii)(f) of the Dissolution of Muslim Marriages Act, 1939. The woman had four children with her husband, who later married another woman and entered into a polygamous relationship. After the second marriage, the husband started treating her differently and in a discriminatory manner. He usurped her property, jewellery and cash and treated her with cruelty. Thus, the petitioner has filed for divorce on the grounds of not being treated in an equitable manner according to the injunctions of the Quran.
Issue
Can a Muslim woman seek divorce on the grounds of her husband’s polygamous marriage when polygamy is not illegal under Islamic law?
Judgement
The Court decreed the divorce and ruled in favour of the petitioner. The court remarked that the accepted modern concept of marriage holds space only for two people to be a part of it. If a third person intrudes between them, then the one who is unwilling to accommodate must be given the choice to walk out of the marriage. And Section 2 (viii)(f) serves as an escape route out of a polygamous marriage for Muslim women. Further, the court invoked the provisions of Article 21 of the Constitution and noted that the right to life also includes the right to live in a healthy and harmonious relationship. It added that marriage as an institution becomes meaningless if it is not enjoyed, and though the right to opt out of an emotionally dead marriage might raise concerns of morality and public order, it will eventually be accepted as it is essentially a matter of the right to life.
Therefore, the court held that though polygamy is not condemned under Islamic law, it is the duty of the husband to treat all his wives in an equitable manner in accordance with the tenets of Islam, which the respondent has failed to do. Thus, the petitioner was granted the decree to dissolve the marriage under Section 2 (viii) (f) of the act.
Conclusion
Divorce can be a difficult and emotionally challenging process to go through. In India, divorce still remains quite stigmatised and it particularly affects the women of our society as they tend to get ostracised for getting divorced. Divorce even negatively impacts the children of the divorcees, their families, and their communities. Despite this, divorce rates have been increasing over the years as both men and women have become economically and socially independent. Back in time, men alone were considered to be the providers in a family, and hence women had to stay in a marriage to sustain themselves and their children, even if they were unhappy with their marital lives. Men too feared getting a divorce, as it was considered humiliating for a man to not be able to protect his marriage. But in the contemporary world, social stigmas have relatively eased down, and both men and women are able to sustain themselves and their children either by way of their own financial independence or by way of the protection of matrimonial laws, which mandate the maintenance of the divorcee. Thus, neither men nor women these days wish to reluctantly continue the institution of marriage if it is not working. Moreover, after several enactments and amendments to the personal laws, the grounds for contesting a divorce have been widened, and this has provided a way out for the individuals suffering in an abusive marriage.
Even though getting divorced can be a painful experience, it often becomes a necessary process to go through so that individuals can walk out of a toxic relationship and find happiness and greater fulfilment by starting a new chapter in their lives.
Frequently asked Questions (FAQs)
What is the difference between a contested divorce and judicial separation?
Judicial separation is a temporary suspension of conjugal rights and marital obligations, while contested divorce is a legal remedy that can bring about the permanent dissolution of marriage. A suit for judicial separation can be filed at any time after marriage, but for a divorce, there are time restrictions. Either of the spouses can file for a judicial separation, but only the aggrieved/suffering party can file for a contested divorce.
Who gets custody of a child or children in a contested divorce?
The court decides the matter regarding custody of children in a contested divorce. The court takes into consideration many factors to examine the character and capacity of the mother or father before granting custody of the children. If the minor children are mature enough to make a well-informed decision, their preference will usually be considered.
When is a notice for a contested divorce given to the spouse?
The party who plans to file for a contested divorce must send a divorce notice to their spouse before filing a petition for divorce at the court.
References
Family Law – I (4th edition) by Prof. Kusum
Cases and materials on Family Law (4th edition) by Prof. Kusum
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It has been written by Ragini Sehgaland Sanuj Kanwar, students at UILS, Panjab University, Chandigarh.
It has been published by Rachit Garg.
Table of Contents
Introduction
Daniel Ellsberg was a world-renounced whistle-blower and a military analyst, responsible for leaking the ‘Pentagon Papers’ in the year 1971 which led to the end of the Vietnam War, has recently passed away on June 16, 2023, at the age of 92, due to pancreatic cancer, sparking the discussions on the concept of ‘whistle-blowing’ all around the world. Whistle-blowers are those individuals who disclose certain secret public information, that had been concealed by the public authorities to bluff the general public. The concept of whistleblowing and the protection of whistleblowers in India, with a special reference to the real-life case of Satyendra Dubey, has been intricately discussed in this blog post.
The concept of whistle-blowing
A whistleblower is a person who reports or exposes illegal, unethical, or fraudulent activities happening within a public organization or Government, by risking their own job security and facing retaliation for bringing out the malpractices and corruption. Whistleblowers play an important role in holding powerful organizations and individuals accountable for their actions and helping to prevent harm to the public and the environment. The main advantage of whistle-blowing is that it can provide a detailed account of the manner of corruption, which might not be possible through the annual internal reports by investigating authorities. Also, the missing links of such reports of corruption and maladministration can be provided by these whistleblowers, which might also possess sufficient proof regarding the same.
Satyendra Dubey: the unsung whistle-blower of India
Satyendra Dubey was one of the first whistleblowers of India, his major role being highlighted in bringing out the corruption in the functioning of the INR 600 billion ‘Golden Quadrilateral Highway Construction Project’, initiated in 2001 by then Prime Minister Atal Bihari Vajpayee. It was the largest highway project in India and 5th longest highway construction in the world.
From the very beginning, Satyendra Dubey was brilliant in studies. He did his bachelors in civil engineering from IIT Kanpur and completed his master’s from Banaras Hindu University. After his master’s, he went ahead to join the Indian Engineering Service. Thereafter, he got deputed to NHAI in July 2002, where he became project director in the construction of certain sections of NH-2, which was a part of the Golden Quadrilateral Project. During his period of deputation in this project, he revealed the corrupt practices carried out by the engineers, the financial irregularities by the construction authorities, the low quality of construction material, etc., about which he complained to his senior and in return got a transfer letter by which he was transferred to Gaya, Bihar. Again, he observed the same sort of maladministration and corruption in the construction, he got 3 engineers suspended and re-constructed 3 km of under-quality road. Thereafter, he wrote a letter to the Prime Minister about the continuous maladministration of funds provided for construction purposes, The Prime Minister further wrote a letter to the Ministry of Road Transport and Highway in which his identity was revealed.
One day, while returning to his place after attending a wedding, Satyendra Dubey got mysteriously murdered, and the matter was sent to the CBI for further investigation The CBI’s report revealed that it was a robbery-murder case, but what made the matter mysterious is the murder of many eye-witnesses of the case, and the main accused also escaped away from the jail.
This led to widespread outcry in the public, which pressurized the Government to implement the Information Act of 2005, followed by the Whistleblower’s Protection Act of 2014, for the protection of the whistle-blowers and for protecting the anonymity of their identity.
Sparks for protection of whistleblowers
The Right to Information Act, 2005 was not the first time when a need was felt for the protection of whistleblowers in India. There were many other proposals prior to the RTI, for such purpose.
In 2001, the Law Commission of India proposed provisions for the creation of an authority to monitor and prevent corruption in the Public Departments.
Further, in 2004, Public Interest Disclosure and Protection of the Informer (PIDPI), was brought as a resolution by the Government of India to lay down guidelines for the protection of those who disclose information (regarding maladministration and corruption) in the public interest. This resolution was provided to make Central Vigilance Commission a monitoring body to receive such complaints and allot the cases to respective departments for further investigation. This Commission was made responsible for keeping the anonymity of the identity of the discloser.
Also, in 2005, UN Convention against Corruption was signed by India, which bestowed a greater responsibility upon the Government of India to take steps towards the protection of whistleblowers. In the same year, RTI Act was brought in light, as discussed in the following section.
RTI, 2005: a weapon of self-defence for the whistle-blowers
The Right to Information Act of 2005 is also known as the ‘twin sister of whistle-blowing’, because it has helped whistleblowers to collect the relevant data, in order to support their allegations against public departments, under the veil of being called as the ‘RTI Activists’. By seeking the information relevant to their demand, they have brought out a certain degree of transparency in the system and tried to bring the corrupt practices out for the public to criticize.
But the major drawback of this Act has been the lack of availability of information and the delay in processing of RTI Applications by the relevant public authorities. RTI Act brought about a ray of hope among the whistle-blowers, but their protection was put at even a greater degree of risk, as is evident from the increasing number of the killing and threats to the RTI activists and their families, Bihar and Maharashtra being a testimony of the same, as the states have witnessed the greatest number of deaths of RTI Activists. This is done by the people having power and authority in the Government, who use such power in order to curb any such source of information that can bring out their corrupt practices to the public.
Due to such a deplorable state of the whistle-blowers, even after the implementation of the RTI Act, the public pressurized the Government to work in a better way and bring further reforms to protect the whistle-blowers from such a danger-prone situation.
Furthermore, the Companies Act of 2013 contained certain provisions for the creation of an anti-corruption body/wing for every public office which would receive information regarding corruption in the department and would protect the life and tenure of such employees who disclose this information for the greater interest of the department.
But still, an Act targeting particularly the problems of whistleblowers was required, which led the Government to implement the Whistleblowers Protection Act of 2014.
Propelling through the Whistleblower’s Protection Act, 2014
The Whistleblowers Protection Act (as a bill) was passed in the year 2011 and was later implemented in 2014. It provides a mechanism for receiving complaints against corrupt public servants, those who are indulged in gross and willful misuse of their public post, and complaints against maladministration in certain public departments The Act further provides the procedure for enquiring into such a matter after the receipt of a complaint. This Act aims to keep the identity of such whistle-blowers anonymous, so as to prevent their victimization by the powerful public authority holders. It further aims to create such a system so as to encourage the whistleblowers to disclose such information in the public interest without any fear as to pressurize the corrupt public servants to work in the prescribed bona fide manner.
The Act attempts to organize the process of whistle-blowing by specifying the authority to which a complaint can be made while complaining about a certain post-holder, for instance, any complaint about the corrupt practices of a Union Minister has to be made to the Prime Minister, which can be done even through a letter or an E-mail. Also, the Act has set a limitation period for a complaint to be filed, i.e., 7 years from the date of the event or action of the public servant, which is complained of.
Also, certain provision has been made to check the misuse of power by the whistleblower. If after the inquiry, the complaint is found perverse or baseless, then the whistleblower can be charged with a fine up to INR 30,000 or imprisonment up to 2 years, or both. But this provision has been criticized at large because it contradicts the provision that the identity of the whistle-blower would be kept anonymous.
Also, anonymous complaints are not accepted under this Act and the complainant has to specify his identity and contact details to the authority receiving the complaint, and it is the duty of the receiving authority to keep the whistleblower’s identity anonymous. Also, the identity of the public servant being complained of is to be made clear by specifying who is the public servant referred to in the complaint, what post he is holding or has held, when did the cause of action arise, what exactly was the corrupt act, what are the allegations against him\her and what all proofs are available with the complainant, etc. Further, the complainant has to give a personal declaration in bona fide faith, declaring that the information given by him is believed to be true and correct, and not in a mala fide manner.
But this Act yet again has proved to be a failure as the number of whistleblowers being victimized is still continuously increasing, and their identity is not kept anonymous by the authorities receiving the complaints, as the receiver and the authority being complained of, are both public authorities, and both are in contact with each other, which leads to manipulation and mishandling of the complaints, resulting in the whistleblower becoming the target of such public authority.
Also, in 2019, SEBI published another regulation under SEBI(Listing Obligations and Disclosure Requirements) Regulation, 2015, to prevent ‘Insider-Trading’ and made provisions to reward those whistleblowers who disclose the employees/persons indulged in the practice of insider trading in the Government Companies. All these steps proved to be a success to a limited extent and yet left a huge void to be filled by further actions of the Government for the protection of the whistleblowers.
What can be the way forward?
The Parliament, by law, or otherwise, should constitute such an independent body, to look into the complaints by the whistleblowers, and that body should further ask the relevant authority to conduct an inquiry in the concerned department, without revealing the identity of the whistleblower to that public authority. Also, this independent authority should be bestowed with judicial powers so as to penalize any such person who is found responsible for leaking the identity of the whistle-blower.
The scope of this Act had been limited to the Public offices, and the internal systems of the private companies are not sufficient to combat the corruption in these offices, hence, certain provisions should be made to regulate and protect whistleblowing in the private sector especially because of the lack of job-security in this sector.
The whistle-blower is penalized for making false complaints under the 2014’s Act. In a similar manner, certain penal consequences should be imposed on those, who are found responsible for hampering the anonymity of the identity of the whistle-blowers. Further, a proper and unbiased investigation should be carried out by the relevant authorities in the cases of mysterious deaths of the RTI activists and the whistle-blowers, in order to punish the actual criminals.
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This article is written by Pujari Dharani, a student at Pendekanti Law College, affiliated with Osmania University, Hyderabad. The article explains the offence under Section 494 of the Indian Penal Code, 1980, including its essential elements and nature, and, more importantly, the punishment for its commission in detail. The article further provided various defences and important case laws.
It has been published by Rachit Garg.
Table of Contents
Introduction
From ancient times till 1955, polygyny and polyandry were practised by people, though the latter is less common. Polygyny is a practice that allows a man to have more than one wife at a time, while polyandry allows a woman to have two or more husbands simultaneously. Polygyny is well-recognised in Hindu law as well as Muslim law, whereas polyandry is considered immoral and not recognised in Hindu law, whose occurrences are very rare, besides the fact that polyandry is customary practice in very few areas like Lahaul Valley in Himachal Pradesh and among Thiyyas of South Malabar as recognised in Dr. M. Satyanarayana Reddy v. Rukma Bai and Ors. (2002).
However, in recent times, this practice of bigamy, which comprises both polygyny and polyandry, has caused many hardships to the spouses of those who are committing it. Maintaining many marriages at the same time also increases one’s marital responsibilities, which will become such a burden that failing to perform them would be inevitable. As a result, social institutions like marriage, which regulate and propagate an essential unit for any society, i.e., the family, are being damaged. Besides this, the other detriment associated with bigamous marriages is the suffering of the women and children involved in them. Even the United Nations Organisation (UNO) is against the practice of polygamous marriage, which violates the rights of women and their well-being.
Hence, the framers of the Indian Penal Code, 1860 (hereinafter mentioned as IPC), made the act of bigamy a serious punishable crime under Section 494 to protect the sanctity of marriage by abolishing bigamy and establishing monogamy as a rule for all Indians.
Crime defined under Section 494 IPC
Section 494 of the IPC defines and explains a crime, namely, marrying again during the lifetime of a husband or wife. This offence can, shortly, be termed “bigamy” under English law. Because this crime is closely associated with the institution of marriage, it was inserted under Chapter XX of the IPC which deals with the offences relating to marriage.
This provision makes a person liable to undergo the punishment prescribed under it because of marrying again despite having a legally wedded spouse, wife, or husband, as the case may be, and that subsequent marriage is considered to be void on the ground of infringing the statutory rule of monogamy. This provision also includes a description of the punishment for the offence of performing a void second marriage. The Section further provides exceptions to this punishment, which are explained in the later part of this article.
Illustrations
Let us take an illustration where a male and female legally solemnised their marriage a few years ago. Due to dissatisfaction with his wife, the husband leaves her without giving a divorce or dissolving the first marriage and marries again to another person, other than the present wife, during the persistence of the marriage with her. In this case, the husband is the offender due to his commission of the crime of bigamy, and the wife is an aggrieved party who is entitled to sue him.
Essential elements of bigamy under Section 494 IPC
The Indian Judiciary, including the Supreme Court of India, frequently repeats the significance of proving essential elements of bigamy to punish the criminal under Section 494 of the IPC. Those essential elements to convict a person of bigamy are as follows:
The accused have already married in the past and that marriage should be a valid marriage that fulfils all essential elements, including the performance of required ceremonies, as per the personal laws of the parties to the marriage. If the first marriage is invalid, then the second marriage is not a bigamy. Thus, the validity of the first marriage is very significant and, hence, shall refer to the following statutory enactment.
The Hindu Marriage Act, 1955 applies to those who belong to Hinduism, Buddhism, Sikhism, and Jainism.
All relevant religious customs and usages of the Mohammedan and Jewish communities, in the case where parties to the marriage are Muslims or Jews, respectively.
If a marriage is solemnised under the Special Marriage Act, 1954, the provisions of this Act are referred to determine the validity of the wedding.
Even if the first marriage is voidable, the subsequent marriage by the accused amounts to the crime of bigamy because a marriage shall always be valid until the person who was conferred with the right to repudiate it has not rescinded the marriage.
The marriage in dispute, which was performed by the accused, should be second in order. The mere performance of the second marriage is not sufficient; it shall also be performed in conformity with every essential for a valid marriage, including important ceremonies and rites, according to the law to which they are governed. Additionally, the alleged second marriage of the accused shall be void on the ground of violating the monogamy rule.
The subsistence of the first marriage of the accused is mandatory. Subsistence means the marriage is continuing and has not come to an end by a judicial decree like a grant of divorce or by any other means of repudiation of marriage.
Besides divorce, if the spouse, wife, or husband of the accused has passed away, then the marriage between them is considered to be dissolved. Hence, when it is said subsistence of the marriage, it means marriage is continuing with both spouses living together as husband and wife, and no dissolution of the marriage took place. This essential element is highlighted in the case ofPashaura Singh v. State of Punjab and Anr. (2010).
All the above essential elements are relevant considerations to constitute an offence of bigamy in a criminal court. Special emphasis is given to the important ceremonies that are mandatory to perform in a caste or community to solemnise a marriage. If either of these essential elements is failed to be proved by the complainant, although the accused intentionally married a person other than his or her spouse and performed a few religious ceremonies believing that such performance would confer a marital status on them, then the case of bigamy is not established. Thus, the mere intentions of the parties to the marriage are immaterial in establishing a case of bigamy.
Who can file a complaint
A complaint can be filed against a person who committed the punishable offence under Section 494 of the IPC, by his or her legal spouse, wife, or husband, as the case may be. There are no discriminatory restrictions that the victim or aggrieved party shall be only a wife. If a wife commits such a serious offence, her husband can file a complaint with an appropriate authority and succeed in punishing her by proving all the essentials of Section 494 of the IPC in a court of competent jurisdiction.
Complaint by the legal wife
If the aggrieved party in the case of bigamy is a legal wife, then Section 198(1)(c) of the CrPC allows either the wife or any of the following persons to file a complaint.
Her parents, either father or mother;
Her siblings, either brother or sister;
Her children, either son or daughter;
Her aunt or uncle, either paternal or maternal; or
Any person who was related to her, either by blood, adoption, or marriage.
Complaint by the Armed Forces personnel
If the aggrieved party in a bigamous marriage is a legal husband, he is the competent person to lodge a complaint against the accused wife, not others. However, if he is an Armed Forces personnel who cannot obtain leave for this purpose, then any other person can file a complaint on his behalf in accordance with the procedure mentioned under Section 198(1)(b) of the CrPC.
Complaint by the second wife
To achieve the object of Section 494 of the IPC, the term “aggrieved party” shall be construed liberally and broadly by the courts in such a way as to include the second wife of the accused, even if such a marriage is void and she is not a legal spouse in the eyes of the law. Because the accused’s act of bigamy not only causes suffering to the first wife but also puts the social life of the second wife of the offender in danger. Therefore, the Supreme Court ruled in A. Subash Babu v. State of Andhra Pradesh and Anr. (2011) that the second wife of the accused is also considered to be a “wife” under the ambit of Section 494 of the IPC as well as an “aggrieved party” by competent authorities so that she is permitted to file a complaint against the offender, unless the second marriage is declared to be void by a decree as per Section 11 of the Hindu Marriage Act, 1955.
Jurisdiction of the court to try the case of bigamy
The jurisdiction of the court to conduct criminal proceedings for bigamy cases is provided under Section 182(2) of the Criminal Procedure Code, 1973 (hereinafter referred to as the “CrPC”). This provision states that a case of bigamy can be tried only by those courts that have local jurisdiction in either of the following places.
Where the alleged crime is committed;
Where the accused last resides with the other spouse of the first marriage;
Where the first wife is permanently residing after the alleged commission of the offence of bigamy.
Nature of the offence under Section 494 IPC
The nature of the offence specified under Section 494 of the IPC is non-cognizable, bailable, compoundable, and triable by the magistrate of the first class.
Non-cognizable
The framers of the Indian Penal Code meant the offence of marrying again during the lifetime of the husband or wife was a very serious offence due to its adverse effect on the roots of the marriage institution. But it was made non-cognizable under the First Schedule of the CrPC, due to which the police officer who is charged with such a bigamy case is not empowered to arrest the accused and conduct any kind of investigation into the case unless the court grants permission for such functions of the police.
Here, it is worth considering that the bigamy case is related to the institution of marriage and, therefore, Section 198 of the CrPC shall be followed. According to this provision, the Court is also not authorised to take cognizance of any offence mentioned under Chapter XX of the IPC, i.e., those offences relating to marriage. Thus, in cases under Section 494, which is included in Chapter XX of the IPC, no court shall take cognizance of the offence of bigamy. But there are two exceptions to this rule, as stated in Section 198 of the CrPC. Those are:
When a victim of bigamy lodges a complaint.
When the police officer in charge filed a charge sheet.
In either of the above cases, the court can take cognizance of the offence even if it is a marriage-related offence. In the case of Ushaben v. Kishorbhai Chunilal Talpada and Ors. (2012), the Supreme Court held that, if a complainant alleges the commission of the offence under both Section 494 and 498A of the IPC, the court can take cognizance of that mentioned in a police report by virtue of Section 155(4) of the CrPC.
To learn about Section 198 of the IPC in detail, click here.
Bailable
Commonly, almost all non-cognizable offences are bailable, just like in the case of Section 494 of the IPC. Hence, the accused of bigamy can receive bail from a court as a matter of right. However, one has to submit bail bonds, and other requirements to avail of bail must be fulfilled to obtain bail.
Compoundable
The offence under Section 494 of the IPC is compoundable. According to Section 320 of the CrPC, the accused and his or her spouse can compound and settle the disputed matter. Furthermore, to enforce the settlement made by the parties to the suit, the permission of the court is mandatory.
Triable by the magistrate of first class
The First Schedule of the CrPC stipulates that the offence under Section 494 of the IPC shall be triable by the magistrate of the first class, who is eligible to pass a decree that punishes the convict for up to three years.
State Amendment in Andhra Pradesh state
Through the Code of Criminal Procedure (Andhra Pradesh State Amendment) Act, 1992, the state of Andhra Pradesh altered the nature of the offence of marrying again during the lifetime of a spouse to cognisable, non-bailable and non-compoundable, which applies only to the extent of Andhra Pradesh territories. This conveys that the government of Andhra Pradesh felt that the gravity of the crime’s consequences in the state was so horrible. Thus, the police can arrest the accused, register the case, and start investigating without the court’s permission. Also, the accused cannot obtain bail as a matter of right, and compounding the case is not allowed.
It is appreciated that the then Andhra Pradesh government rightly made an amendment to the First Schedule of the CrPC and made the serious offence of bigamy cognisable so that the police officer in charge of a particular case can immediately take action without any warrant if the case is against the accused. In accordance with this State amendment, the Sub-Inspector of Police, in D. Vijayalakshmi v. D. Sanjeeva Reddy (2001), took cognizance of a bigamy case by filing a charge sheet after knowing that the initial investigation proved the allegations of the complainant. The Andhra Pradesh High Court held that the said police officer was empowered to investigate without any warrant and did not violate any law because the President approved the said state amendment and, further, decided that State law would prevail over the central law in respect of the present case concerned since this subject is on the Concurrent list. However, the Court cautioned that Section 198 of the IPC is intact and unamended and, therefore, should be followed in cases related to the institution of marriage.
Punishment under Section 494 IPC
Marrying for the second time during the subsistence of the first marriage with the spouse living is a punishable offence under Section 494 of the IPC. In this provision, the maximum punishment for such an offence is prescribed, that is, imprisonment for a period of seven years. The Penal Code did not mention any minimum punishment for the convict. But it is for the appropriate court to decide upon this matter by examining the facts and circumstances of each case. Additionally, the Court will decide upon the merits of the case whether to order rigorous imprisonment or simple imprisonment.
Not only is the offender jailed, but he is also liable to pay a fine. However, the minimum and maximum fines payable are not stipulated by the Code. It differs from case to case.
Scope of the punishment
Though the Indian Penal Code is a secular and general code that applies to every Indian irrespective of the religion to which the accused belongs, Section 494 of the IPC does not apply to male members of the Muslim community. This exclusion is due to the provision in Muslim marriage laws, including the Muslim Personal Law (Shariat) Application Act, 1937, that permits a Muslim man to marry another woman even when his wife is alive and is not divorced. Mohammedan laws allow Muslim men to marry up to four women under certain conditions. (To know more about the legality of polygamy in India, click here). Except for Muslim men, the provisions of Section 494 of the IPC apply to every person in India, including Muslim women. Therefore, a Muslim man can escape punishment even if he practices bigamy.
Nevertheless, if a four-time married Muslim man marries again for the fifth time during the subsistence of his stated four marriages, then it shall be considered that he committed the crime of bigamy, and Section 494 of the IPC applies to him. In the case of Dr. Surajmani Stella Kujur v. Durga Charan Hansdah and Anr. (2001), the Supreme Court ruled that the fifth marriage of a Muslim man would be deemed void because Muslim personal laws allow a Muslim man to have only four wives at a time, not more than four. Further, the Court held that the Muslim man who married for the fifth time would be punished under Section 494 of the IPC.
Evidence by the prosecution
Firstly, the prosecution shall establish all the essential elements of the commission of bigamy, which are discussed above, before the criminal courts to punish the wrongdoer. Every essential element should be backed up with some evidence to prove it. The belief in being married and its subsistence among the couple are not enough. Even if society assumes and treats them as husband and wife, the relationship between them cannot be regarded as a valid marriage by the court. Rather, if the performance of the marriage is made valid and the same has been proved with evidence, then the court can regard it as a valid marriage.
Initially, the courts were strict in imposing the prosecution’s burden of proving the ceremonies that were performed while solemnizing the marriage. However, the courts have been changing their position in this respect. A similar position was taken by the Bombay High Court in a leading authority, Smt. Indu Bhagya Natekar v. Bhagya Pandurang Natekar (1992), where it was held that the courts should adopt a practical approach while examining the evidence, either oral, direct, or circumstantial, that proves the charge of bigamy. And the evidence does not always necessarily prove the ceremonies for solemnizing the second marriage. From this, we can conclude that for proving the performance of marriage, it is not strictly mandatory to prove all requisite religious ceremonies, but the submission of any other reliable evidence that establishes the offence of bigamy by the accused is sufficient to punish him.
The major drawback concerning the submission of evidence by the prosecution is that neither the Supreme Court nor the High Courts laid down guidelines or modes of proof in the bigamy cases.
How to defend against a charge under Section 494 IPC
The following defences can be used by the accused, who was innocent in his or her acts, to defend themselves legitimately and evade punishment under Section 494 of the IPC.
No subsistence of the first marriage
The subsistence of a marriage means the marriage is continuing without being dissolved. The concept of divorce, or dissolution of marriage, is part of every personal law in India. In bigamy, a person who marries again shall be punished for his commission, which causes mental trauma to the first spouse. On the other hand, if the first marriage is not subsisting and was dissolved in whichever manner, then the parties are said to have moved on and attained the freedom to marry again.
A marriage shall be dissolved only by the decree of the court, not otherwise. Thus, the court of competent jurisdiction shall pass a declaration that the first marriage is void, and only then is that marriage considered to not be subsisting.
To learn about the concept of dissolution of marriage and its methods under various personal laws, click here and here.
In the case of parties being members of the Muslim community, to decide whether a first marriage is subsisting or not, Mohammedan law should be referred to. This Muslim personal law allows a Muslim girl who was married to a Mulsim male before her puberty by her father or grandfather to do the following regarding the subsistence of the marriage.
To ratify the marriage if the girl belongs to Shia; or
To cancel the marriage if the girl belongs to Sunni.
Desertion by the first spouse
Suppose the first spouse has continually absent or deserted the accused for more than seven years, and this information is conveyed to the second spouse before marriage. In that case, the performance of the second marriage, even if the first marriage is subsisting, shall not be construed as an offence of bigamy.
If the accused wants to avail this defence, he or she has a burden of proving things, namely:
Either of the parties to the first marriage disappeared continuously for seven years or more. That is, one spouse neither physically met the other nor communicated through any mode of telecommunications.
Such a spouse who was absent for so many years is alive after those seven years. If he or she is dead, then this defence cannot be pleaded.
The accused should inform the other party of this fact about the second marriage. If he or she has no knowledge of this fact because of the accused’s concealment, then this defence would not work.
If all the above is proved by the accused during trial, he or she shall not be guilty of the crime of bigamy.
Either the first or second marriage is invalid
If the first marriage is not valid, then the second marriage shall not be void and would not amount to the offence of bigamy, and vice versa. By proving either marriage invalid, the accused can escape conviction under Section 494 of the IPC.
Let us take the first scenario where the first marriage is void because of the non-fulfilment of either of the essential elements mentioned in the personal laws to which the parties are subject. In this case, if the first marriage is proved to be invalid, then the parties to that marriage are not legally married, and, hence, the law permits them to marry again. In M.M. Malhotra v. Union of India and Ors. (2006), the Supreme Court decided that a subsequent marriage by the husband during the subsistence of the first marriage would not make him guilty of the offence of bigamy if the said first marriage is proved to be void. In this way, the accused can escape the charges under Section 494 of the IPC by defending himself by proving that one or more of the essential elements of a valid marriage were not fulfilled during the performance of the first marriage.
In the second scenario, where the second marriage is invalid, there will be no question of bigamy because an invalid marriage is no marriage according to Indian laws. If the accused wants to escape the charges of bigamy by taking this defence, he or she can prove that the second marriage is void due to non-conformity to the legal and customary requirements, which are essential to their caste or religion. Once the accused can prove this in a competent court with sufficient evidence, he can safely go unpunished. In this regard, the well-known decision given by the Supreme Court of India in the case of Bhaurao Shankar Lokhande and Anr. v. State of Maharashtra and Anr. (1965). In this case, the second marriage was performed without duly following the religious ceremonies as per the provisions of the Hindu Marriage Act, 1955, which was proved by the accused as a defence. The Supreme Court stated that even if society and the couple themselves believe that they are husband and wife, the Court still considers them a married couple only when their marriage fulfils all conditions under the Hindu Marriage Act, which was not done in the present case. Hence, the court acquitted the accused of the bigamy charges.
Here, we can understand that great importance is given to the conduct of ceremonies to establish the second marriage. It is well known that two people, despite intending to live as a couple, who did not perform the essential ceremonies, were not regarded as legally wedded husband and wife. Similarly, if the accused of bigamy omitted to conduct essential ceremonies while performing a bigamous marriage, either deliberately or inadvertently, he or she is not liable for the offence of bigamy. For instance, a husband left his wife and started cohabiting with another woman. Even if their live-in relationship is prolonged for a significant time and obtains the status of ‘relationship in the nature of marriage’, it still cannot be considered a bigamous marriage due to the non-conformity of the condition of performing essential ceremonies.
In addition to this, the confession of the accused regarding his second marriage shall not be taken as evidence to prove the case of bigamy. This was also ruled by the Supreme Court in the case of Kanwal Ram and Ors. v. the Himachal Pradesh Administration (1966). Also, the registration of the second marriage is not solemnisation of marriage, and, hence, the submission of the registration certificate pricing such a marriage is also not sound evidence to prove the validity of the second marriage. A similar decision was delivered by the Calcutta High Court in Sm. Baby Kar Roy v. Ram Rati Devi and Anr. (1975).
Immunity to Muslim men
As already stated, men from the Muslim community have special immunity from prosecution under Section 494 of the IPC, for up to four marriages, provided all conditions mentioned in the Mohammedan law have been followed. Thus, a Muslim man, who married again during the subsistence of his previous marriage or three marriages, can take the provisions of Mohammedan law as a defence to escape the punishment mentioned in Section 494 of the IPC.
It is very important to consider that there is an essential condition to submitting the said defence in a court of law. That condition is that the accused Muslim male should marry again only according to Mohammedan law and not under other personal laws. The relevant authority in this regard is the decision of the Allahabad High Court in the case Anwar Ahmad v, State of Uttar Pradesh and Anr. (1991). In this case, the accused, who belongs to the Muslim religion, married for the second time under the Special Marriage Act, 1954. Furthermore, in the affidavit concerning the second marriage, he also concealed the fact of his first marriage. The accused pleaded that his personal laws allowed him to marry a second time. In this case, the Allahabad High Court decided that the accused’s second marriage amounts to bigamy punishable under Section 494 of the IPC, not because the Mohammedan law will not allow multiple marriages but because he did not fulfil the condition of marrying under his personal law.
Second marriage after the grant of ex parte divorce
This defence can very well be explained with the help of case law, i.e., Krishna Gopal Divedi v. Prabha Divedi (2002). In this case, the accused contracted a second marriage after obtaining an ex parte decree of divorce from the competent court. Unexpectedly, after the second marriage, the first wife approached the court to set aside the stated decree and accomplished the same. Because the first marriage is not dissolved through a divorce decree, the first wife files a complaint against the accused under Section 494 of the IPC.
The Supreme Court held that the performance of a second marriage by the accused after attaining the ex parte decree is not an offence under Section 494 of the IPC because, during such a period, the first marriage is not subsisting. The Court cited the possibility that the case may be one of adultery if proven, but not bigamy, and termed the criminal proceedings against the innocent “an exercise of futility”.
Muslim women marrying during Iddat
As per Mohammedan law, Iddat (or Iddah) is a duration, that occurs after the death of a Muslim woman’s husband or after divorce between them. During this period of three months, such Muslim women are prohibited from contracting a marriage with another man. Suppose a divorced woman married another man by going against the concept of Iddat; such a marriage is termed void according to Mohammedan law. Nevertheless, Section 464 of the IPC is not applicable in this case, and such women are not punishable for bigamy.
In Abdul Gani and Ors. v. Azizul Haq (1911), a Muslim woman is charged under Section 494 of the IPC for marrying another man during her Iddat. She rightly defended herself, saying that her second marriage was considered void because she violated the Muslim doctrine of Iddat, which has no link with the Indian Penal Code. The Calcutta High Court approved her defence and held that a re-marriage by a Muslim woman during the period of Iddat is just a civil wrong that results in the nullity of the marriage but not a criminal offence of bigamy under the Indian Penal Code.
To learn about the concept of Iddat under Muslim personal law, click here.
Bad defences
The following may seem like defences to a layman, but the court would not regard them as defences.
Good faith and mistake of law are not defences for Section 494 IPC
In the case of Narantakath Avullah v. Parakkal Mammu And Ors. (1922), a woman is accused of committing the crime of bigamy. In this case, the accused took a plea of good faith as well as the absence of criminal intent. Because the lawyers to whom she consulted affirmed that she was entitled to remarry on the ground that her first husband was an apostate because of becoming an Ahmadee. The Madras High Court highlighted Section 79 of the IPC, which exempts those offenders who committed a crime by mistake of fact, not because of a mistake of law, in good faith, and discarded the pleas of good faith and mistake of law that were taken by the accused.
Permission of the first spouse for the second marriage is no defence for Section 494 IPC
Let us take a case where the first spouse of the accused allowed her husband to marry again and keep the second spouse. The first spouse’s permission is no exception to the application of Section 494 of the IPC, even if such permission is free and voluntary. Thus, permission given by the wife is not a defence for the accusation of the commission of a crime under Section 494 of the IPC. In a similar case, Smt. Santosh Kumari v. Surjit Singh (1990), the accused pleaded that his legally recognised first wife consented to his second marriage, which was contracted to fulfil his sexual desires that were not fulfilled by his first wife because of her physical weakness. The Himachal Pradesh High Court, in this case, affirmed that the offender violated Section 5(i) of the Hindu Marriage Act, 1955.
Important case laws on Section 494 IPC
Bhaurao Shankar Lokhande and Anr. v. State of Maharashtra and Anr. (1965)
The leading authority emphasising the importance of a second marriage being valid as an essential condition to establish the crime under Section 494 of the IPC is Bhaurao Shankar Lokhande and Anr. v. State of Maharashtra and Anr. (1965). It further states that the intentions of the parties are not significant considerations for proving bigamy. In this case, the accused performed the second marriage following the Gandharva form but did not solemnise it with the necessary ceremonies mandated by the Hindu Marriage Act, 1955. On this ground, the Supreme Court acquitted the accused of charges under Section 494 of the IPC.
Sarla Mudgal v. Union Of India and Ors. (1995)
Smt. Sarla Mudgal, President, Kalyani and Ors. v. Union of India and Ors.(1995) is a landmark judgement both in the case of bigamy laws as well as the Uniform Civil Code (UCC). The Supreme Court answered the controversial question of whether a Hindu married man can solemnize a second marriage during the persistence of his first marriage after converting to the Muslim religion, which allows bigamous marriage. The Court outrightly held the second marriage void and convicted the accused under Section 494 of the IPC due to the presence of all essential elements to constitute the case of bigamy.
Lily Thomas v. Union of India and Ors. (2000)
In the case of Lily Thomas v. Union of India and Ors. (2000), the Hindu married man had converted to the Muslim religion solely for marrying for the second time, not because he had genuine faith in that religion. This was established by providing evidence that the accused did not perform any Muslim religious ceremonies or change his name.
The court decided upon the merits of the case that the accused is guilty of bigamy, although he converted to Islam religion, under Section 17 of the Hindu Marriage Act, 1955, read with Section 494 of the IPC.
The Supreme Court finally quoted: “Freedom of religion is the core of our culture. Even the slightest deviation shakes the social fiber.”
Saraswathi v. Thirupathi (2014)
The respondent, in the case of Saraswathi v. Thirupathi(2014), committed the crime of bigamy and was convicted under Section 494 of the IPC by the trial court. On appeal, the matter went to the Madras High Court, which upheld the conviction made by the trial court. Thus, the respondent, for his act of bigamous marriage, is liable to undergo two years of rigorous punishment and one month of simple imprisonment with a fine of Rs. 1000.
Ravinder Kaur v. Anil Kumar (2015)
The best authority where the offence under Section 494 of the IPC was compounded is Ravinder Kaur v. Anil Kumar (2015). The respondent, in this case, was charged with bigamy by his wife, the appellant. For the reason that the respondent already consummated his second marriage and gave birth to two children, the appellant has no objection to compounding the offence. The Supreme Court accepted the request of the appellant, compounded her complaint, and ordered the respondent to pay compensation of Rs. 5 lakhs to the appellant.
Drawbacks of Section 494 IPC
The first major drawback of Section 494 of the IPC is the requirement to prove the validity of both marriages to establish the case of bigamy. It may be reasonable and logical in many aspects. But, in practical scenarios, especially where the accused is successful in proving the invalidity of either of the marriages he made and obtains acquittal from the court, it is causing injustice to the victims. For example, the accused took only six nuptial rounds, instead of seven nuptial rounds (saptapadi), while performing the second marriage, and by proving this, he can successfully get away with the conviction for bigamy due to the invalidity of the second marriage.
In this way, the accused who destroyed the lives of two persons may avoid punishment by using this loophole in Section 494 of the IPC, which ultimately results in injustice to those who suffered due to the attempt made by the accused. Bigamous and polygamous marriages are made illegal in India for a purpose, that is, to safeguard the interests of the spouses of the offender. To achieve this end, the legislature must amend Section 494 of the IPC due to the presence of various loopholes in the provision. Polygamy opponents advocate such an amendment, which treats all kinds of attempts at bigamy or polygamy as punishable crimes. They argue that those who attempt to marry another shall be punished, even though such a marriage is not valid in the eyes of the law. Because those persons have the intention to convict bigamy despite knowing it is a crime.
Apart from the steps that should be taken by the legislature, the Indian Judiciary should actively participate in solving this problem. To punish persons who committed serious marital crimes like bigamy, the courts should interpret the law constructively and liberally and broaden it to ensure the purpose is achieved.
The second major drawback of Section 494 of the IPC is the problem with the Uniform Civil Code. After reading this article, one can understand how a provision is differently applicable to various persons just because they belong to different religions. The Supreme Court observed this problem and requested the Indian government, in the Lily Thomas case, to enact a Uniform Civil Code (UCC) that applies to all religions and throughout India by exercising Article 44 of the Constitution of India. This Uniform Civil Code regarding offences relating to the institution of marriage aims to prevent the misuse of the right to convert to another religion by the offender for the purpose of having a second wife. Therefore, at present, a Uniform Civil Code is desirable for many reasons.
Conclusion
We can conclude that the crime under Section 494 of the IPC is a serious offence for which punishment goes up to seven years, along with a penalty of any amount. The Indian Judiciary, in various important cases, mandated the prosecution to prove essential elements to make the accused liable under this section. However, there are a few reasonable exceptions where the accused cannot be found guilty under Section 494 of the IPC. Furthermore, the section has been criticised due to its discrimination in the application of the provision, and, in this regard, even the Supreme Court urged the legislature to take steps for the Uniform Civil Code to solve various issues.
Frequently Asked Questions (FAQs)
Whether bigamy is allowed in India?
Bigamy, which means marrying a person other than his or her spouse during the persistence of the present marriage, is not just prohibited but also punishable under Section 494 of the IPC. The commission of this crime has a maximum punishment of seven years with a fine.
Which international organisations speak about polygamous marriage?
United Nations Organisation’s Committee on the Elimination of Discrimination against Women in its General Recommendations on Article 16 of the Convention on the Elimination of All Forms of Discrimination against Women urged the nations that allow any form of polygamy under customary law to abolish or discourage such practices that compel a woman to engage in them against her interests. It was also deeply worried about the women and their children, whose rights are violated due to these marriages.
Which Muslim nations prohibit the practice of polygamy?
Three Muslim nations recognised the heinous practice of polygamy, which makes women suffer throughout their lives, and abolished the same, despite the fact that they regard it as their custom. Among them, Turkey is the first Muslim nation to do so. Apart from Turkey, other Muslim nations include Tunisia and Israel. Various other nations, including India, did not ban polygamy among Muslim men but restricted it to some extent.
References
“The Indian Penal Code” authored by Ratanlal and Dhirajlal.
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In a competitive business environment, it is mandatory for a business entity to manage and evaluate its past performance and identify areas where it must improve in the future to meet its stated target. For ideal evaluation of the business, which involves assessment of effectiveness and efficiency, it requires the ability of the management to understand the key determining factors, which brings on the practical approach to execute processes, therefore optimising these determining factors. Once the evaluation process is over, the management now has to focus on implementing or making changes based on the recommendations received from the evaluation.
Why does corporate performance matter
A business entity cannot function properly without managing its corporate performance. Corporate performance management (CPM) refers to a set of methodologies, processes, and tools that organisations use to manage, monitor, and improve their overall performance. It involves the collection, analysis, and interpretation of data related to various aspects of a company’s operations to drive informed decision-making and achieve strategic objectives.
Components of corporate performance and Methods for its Improvement
Business planning
Building a business plan is the most important component, which helps in achieving its purpose through established procedures. A good business plan will formulate such activities through regular review of both strategic planning and financial planning in the business. Which we will be covering next.
Strategic planning
Strategic planning comes into play in determining the direction in which the management wants to take the business in the future. By means of strategic planning, it shall focus on making such regular improvements by which the business prospers but also help in addressing any negative effect on the business as the result of some wrong decision.
Methods to improve strategic planning
By identifying long-term objectives.
Recognising the resources and capabilities needed to achieve or identify objectives and gaps.
By addressing the critical performance issues that are against objectives.
Documenting activities required to achieve objectives within the limited time frame.
Objectives need to be monitored and measured so that they become clear, concise, and achievable.
Financial planning
Financial planning is the constant process of administering and allocating financial supplies or resources for the business to meet its goals. A regular review of the future financial position of the business provides clarity on its capability to meet its strategic direction. It also characterises how the management and employees of a business react to such challenges.
Methods to improve financial planning
At the beginning, the company should have a suitable business plan to accomplish its targets. This includes analysing whether there is a need to expand the business, whether the business needs more equipment, whether it needs to hire more staff, how the company’s plan will affect its cash flow, whether the company needs financing, and if yes, then how much?
Creating financial projections by analysing income with respect to predicted sales and expenses for labour, supplies, etc.
Strict monitoring is required by comparing the results with the financial projections to determine whether the business is on the right track to achieve its targets.
If the desired outcome is not achieved, then there should be some opportunity left to revise or modify the actions.
Hiring an expert is the best option to improve financial planning if management lacks the specific expertise.
Profitability
In simple terms, profitability is the ability of a business or company to generate revenue above its expenses with the expectation of earning a net profit margin. Increasing profitability also helps boost the ability to enhance business performance. Therefore, it becomes mandatory for business management not to ignore corporate performance to increase profitability. To increase profitability, sales and costs play an important role, which is discussed below-
Sales
Sales consist of three components:
Pricing,
volume, and
customers.
Improving these will increase profitability and performance.
Methods for improving pricing
Regularly reviewing prices and setting them accordingly by understanding how customers would react to changes in the price of the service.
Management should have proper knowledge of the effect of discounts on their products and services on their profits and customer demand.
Considering alternatives to discounts to maximise profits.
By analysing sales regularly, it will help identify which can provide a higher margin.
Methods for increasing volume
By understanding the purchasing style of the customers.
Focusing on building customer loyalty.
By setting sales targets at the team or individual level to motivate sales staff.
By regularly monitoring the sales personnel’s performance against targets.
Using visual displays by placing products in groups.
By undertaking regular research, which in consequence helps in entering new markets and building a customer base.
Methods for improving customer service
By developing easy and effortless customer service, which may result in helping businesses retain their customer base.
By using feedback and surveys for the company’s customers, entertaining complaints, and initiating and participating in the social media debate.
By including rewards for a customer loyalty programme, which can help in increasing sales and creating a new customer base.
Records from customer feedback should be stored, which may help in getting an idea of customer likes and dislikes while developing a new product or new offer for customers to gain market share.
Expenses
Methods for improving the management of fixed expenses
Regularly review all fixed costs and compare them against other suppliers’ pricing and industry benchmarks. This may help ensure that the business is asking for competitive prices, which helps in acquiring market share.
By reviewing the skill level of staff, it may help in ensuring that it is in line with business activity and technological advancement.
Methods for improving variable expenses
If profits are declining, then reducing expenses should be done with care by knowing the costs and identifying which one contributes to sales.
Variable expenses can be improved by conducting regular reviews of margins, mark-ups and break-even by the accountant and finance team of the company.
Variable expenses can be reduced by including the latest technologies in business processes, which may help in completing more value-added tasks.
Business efficiency
Business efficiency involves increasing the utilisation of company resources, which results in producing more, reducing costs, and increasing profits. Improving work conditions and customer satisfaction can be good for business efficiency and reduce the negative impact on business.
Methods for improving the performance of technology
Identifying areas where technology can streamline operations and implement software solutions for tasks such as project management, customer relationship management, or supply chain management. Automation and digitization can reduce errors, save time, and enhance productivity.
After introducing any new technology or machines in the business, proper training should be provided to the employees for the efficient operation of such technology.
Regularly reviewing technology used by competitors in your industry.
Take the right approach to adopting any new technology by ensuring that it is integrated with existing technology to save on any additional expenses.
Conduct a comprehensive cost-benefit analysis before introducing a new technology.
Methods for improving stock management
Understanding the stock of goods and services depends upon what moves quickly, what gives the highest gross margin, what is in excess, and what is seasonal. This evaluation will help in determining how much stock should be kept ready and how much to supply in case of re-order.
To improve stock management, the business owners have to think about and identify how much stock is needed, how much bulk stock should be ordered or kept, and whether to choose or change the supplier, which thus ensures that there is no overreliance on a particular supplier.
Implement and maintain optimum physical controls to minimise perished stock and/or the risk of theft.
A stock management record system should be present for a business that holds large quantities of stock.
Methods for improving debtor management
By including and establishing a credit control policy that may check credit limits, which means that the company will stop supplying a customer unless all their debts are cleared.
Payment terms are to be negotiated before an order is placed and documented on each such invoice.
A proper book of rules and regulations is to be handed over to salespeople, who agree to the terms when completing a sale.
Have standard procedures documented for debtor collection.
Methods for improving stakeholder engagement
Investor relations: Maintain regular communication with investors, providing updates on company performance, financials, and strategic initiatives. Address investor concerns promptly and transparently.
Supplier partnerships: Develop strong relationships with suppliers, collaborating on initiatives such as cost reduction, quality improvement, and supply chain optimisation. Seek mutually beneficial partnerships that drive value for both parties.
Community engagement: Engage with the local community through corporate social responsibility initiatives, volunteering programmes, or partnerships with nonprofit organisations. This fosters a positive brand image and strengthens community ties.
Methods to improve innovation and adaptability
Innovation culture: Foster a culture that encourages creativity, risk-taking, and innovation. Create platforms for employees to share ideas, collaborate on projects, and experiment with new approaches.
Agile workflows: Implement agile methodologies to promote adaptability and responsiveness. Break down large projects into smaller, manageable tasks, and empower teams to iterate and make course corrections as needed.
External partnerships: Explore partnerships with startups, research institutions, or industry experts to leverage external innovation. Collaborate with external entities to access new technologies, ideas, and market opportunities.
Risk management
Risk management has a major role in reviewing the performance of the business. Management has to make such risk management policies to reduce injury to business operations in case of certain events. Risks shall range from activities within the business to external business operations. There are two types of risk:
Internal risk
Internal risk exists within the business. Internal risk can be very injurious to businesses, as it is difficult to identify or manage as it exists within the business.
Methods for improving the management of internal risk
To improve the management of internal risk, the plans, internal processes, and control mechanisms should be shared with employees as a manual, which may include: those who have the responsibility to execute the procedures made by management.
How internal controls are enforced and the extent to which information regarding internal controls is communicated to employees or staff members.
Establish a framework within the business for employees to easily communicate a breach of internal controls.
To create a framework and establish a regular review mechanism to maintain the efficacy of such control.
External risk
Risk of damage to the company due to some certain event, either financially or strategically, on which management does not have the power to avoid or control it.
Methods for Improving the management of external risk
Improving the management of external risk involves identifying the risk, its impact, likelihood of a certain event, and its consequences
The company should possess a proper insurance policy to protect itself from such events involving external risk.
The company’s management has to regularly review the strategies to ensure they are suitable for current conditions.
Conclusion
Corporate performance has a deep impact on the overall aspects of the business. Corporate Performance management is essential for organisations to achieve their goals. By effectively managing various elements of corporate performance, businesses can enhance their decision-making ability, improve financial stability, increase profitability, optimise resource utilisation, enhance innovation, and reduce risks. There are even more noteworthy aspects on which action is required depending on the classification and type of business. Therefore, for improving business performance after all such regular evaluations of business operations, recommended improvements should be utilised efficiently and effectively at all times, resulting in good governance, growth, and more profits in the business.
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