This article has been written by Ayush Tiwari, a student of Symbiosis Law School, NOIDA. This article aims to discuss the critical aspects of the Act, the major provisions and how to register under the Act.
It has been published by Rachit Garg.
Table of Contents
Introduction
The modern world economy is powered by trade and business. They are necessary not just for a society’s progress and prosperity, but also for its survival. These broad terms encompass anything from the neighbourhood kirana shop to a paan shop to governments negotiating free trade agreements. Businesses and merchants in Delhi confront a number of challenges that limit their economic freedom, make conducting business more difficult, and prevent them from growing their capacity. The government prioritises reforming India’s business climate to make it easier and more appealing for enterprises to operate here. It is critical that the country’s labour legislation be overhauled in order to achieve this. The Delhi Shops and Establishments Act, 1954 (hence referred to as “the Act”) was enacted in order to regulate the working conditions of people employed in such shops and establishments. Due to a lack of government oversight, the working conditions of many small businesses and commercial enterprises are prone to a variety of harmful practices such as child exploitation, inappropriate working hours, unreasonably low wages and salaries, a lack of healthy working conditions, and so on. The Act aims to create an authority to oversee these enterprises, improve working conditions for employees, and sanction companies that fail to comply with the Act.
What is the Shops and Establishments Act
The Shop and Establishment Act has been adopted by various state governments to regulate the working conditions of employees in shops, commercial undertakings, eateries, and so on. The Weekly Holiday Act of 1942, adopted by the Central Government, oversees the provision of holidays to all commercial establishments. However, there is no single central government Act that oversees working hours, salary payments, and health and safety in commercial organisations. State governments have established shop and establishment Acts to assist in controlling the behaviour of business enterprises within their jurisdictions in order to bridge this gap.
Shops and Establishments Act of Delhi
The Delhi Shops and Establishments Act, 1954 applies to all shops, establishments, and commercial establishments in Delhi.
Important terms
Shops
The Delhi Shops and Establishments Act, 1954 defines a shop as “any premises where products are sold either wholesale or retail or where services are provided to clients, and includes any offices, a storehouse, godown facility, warehouse, workhouse or place of work, either within the same property or elsewhere, used in or in association with such business or trade, but doesn’t include a factory or a commercial establishment.”
Commercial establishment
Any location where any trade, business, or profession is carried on, as well as any work incidental or ancillary thereto, is referred to as a “commercial establishment.” This definition also includes societies registered under the Societies Registration Act, 1860, as well as charitable or other trusts, whether registered or not, that carry on such businesses, trades, or professions, as well as work incidental or ancillary thereto, as well as journalistic and printing establishments, contractors and auditors’ establishments, quarries and mines not subject to the Mines Act of 1952, educational or other institutions operated for private gain, and locations where the business of banking, insurance, stocks and shares, brokerage, or product exchange is carried on; however, these entities do not include shops or factories registered under the Factory Act, 1948, theatres, movie theatres, restaurants, eateries, hotels, clubs, or other places of public amusement.
It must be actively engaged in a trade, business, or activity; and
Any job related to, incidental to, or ancillary thereto is conducted.
Employee
“Employee” refers to a person who is entirely or primarily employed, directly or indirectly, in connection with the operation of a business, whether for wages (payable on a permanent, periodical, contract, piece-rate, or commission basis) or other consideration. This definition includes an apprentice and any worker in a factory who is not covered by the Factories Act of 1948. It also includes a person who has been dismissed or discharged.
Employer
“Employer” refers to the owner of any business-related establishment where individuals are employed, or, if the owner does not personally manage the establishment’s business, to the manager, agent, or representative of that owner in that business;
Registration of the establishment
Every business owner is required to provide a statement to the Chief Inspector in the format specified, together with the required fees. The following information must be included in this declaration:
Name of the company, including any managers.
Name of the establishment, if one has been assigned.
Establishment’s postal address.
The type of business, such as a store, commercial building, hotel, theatre, or other entertainment, as well as a restaurant or other dining institution.
Number of individuals employed by the business.
Other further information may be required.
Within 90 days of this Act coming into effect, this statement and the pertinent information must be sent. If a new business is founded, the owner must send the statement starting on the first day the business is open for business.
Any decision made by the state government in addition to that shall be decisive for the purposes of this Act in the event that there is a disagreement between the Chief Inspector and the Proprietor about the category to which the establishment belongs.
After receiving the statement and confirming that its contents are accurate, the Chief Inspector must register the establishment with the Registrar of Establishments and give the establishment’s owner a registration certificate in the appropriate format.
The owner of the institution has a responsibility to inform the Chief Inspector of any modifications that may be made to the data provided to the Chief Inspector in the statement at the time of registration.
Within 15 days of closing, the owner has a responsibility to inform the Chief Inspector that his enterprise is closing. As a result, the Registrar would revoke the registration certificate and strike the name of the establishment from the list of establishments.
Important rules regarding work hours
Section 8 of the Act deals with the important rules regarding work hours. They are as follows:
There is no such thing as forcing an adult to work more than nine hours per day or 48 hours per week. Adults, however, may be required to work longer than the allotted hours when making accounts or for any other regulated task, as long as the total number of hours worked each week does not exceed 54. In addition, anyone required to work overtime is entitled to be compensated twice what he would receive for working during regular business hours.
No employee may be required to labour for more than five hours in a continuity without a break for at least 30 minutes of rest or a meal. The total amount of time worked per day, including rest and lunch breaks, shall not exceed 10 hours.
Regardless of whether a child is a part of the family that owns the business, employers are not allowed to hire children, or individuals under the age of 14.
No woman or young person under the age of 18 is permitted or required to work, either as an employee or in any other capacity, in any establishment between the hours of 9 p.m. and 7 a.m. during the summer and 8 p.m. and 8 a.m. during the winter.
By general or specific order, no store or business establishment shall open or close on any day before or after the hour established by the government in such regard.
Important holiday and leave provisions
According to Section 16 of the Act, on a closing day, all stores and other business establishments must be closed. The day of the week that the store or other commercial institution is closed is known as the “closed day.” There are various sorts of stores and establishments for which closed days might be specified.
Every store and business must be closed on three national holidays each year, in addition to the closed day.
According to Section 17 of the Act, every employee is entitled to at least twenty-four hours of uninterrupted rest (weekly holiday) each week.
According to Section 18, employees’ pay cannot be withheld for holidays taken on non-business days or on federal holidays. If an employee is paid a daily wage, he must still be paid that amount for the holiday; if he is paid on piece rates, he must be paid the average of his weekly wages.
After 12 months of continuous employment, each employee is entitled to privileged leave, which must last a minimum of 15 days.
Such an employee may inform his employer in writing of the time period from which he would like to take leave if he wishes to make use of privileged leave. Unless he has a good reason, the employer is required to abide by this request. An employer is required to respond to such a request within seven days of the request’s date.
A worker is also allowed to take up to 12 days of annual sick leave. Employers are not allowed to deny employees leave when they are unwell, their spouses or children are ill, they have been physically hurt in an accident, or a family member has passed away.
An employer cannot reject sick leave to any employee. However, if an employer has any doubts about an employee’s claim to be ill, he can either request that the employee provide a medical certificate from a licenced physician or arrange for the employee, his wife, or child, as the case may be, to be examined by a physician at the employer’s expense to confirm the details of the sick leave application.
If an employee has worked consistently for more than three months, the employer cannot fire them without providing at least one month’s written notice or pay in lieu of the notice period.
If an employee engages in deliberate misconduct, the employer has the right to terminate his or her job. However, before being fired, such an employee must be given a chance to explain his side.
Important provisions on wages
Wages are the most important part of the Act, and this part tells us how the employees receive wages and how the employer can make deductions from their salaries.
Employees must receive their pay on time and salaries cannot be withheld for more than one month.
Wages must be paid to employees without any deductions. However, an employer has the following options for withholding wages: –
Fines
deduction for missed days at work.
Deduction for losses resulting from harm to items that were specifically entrusted to the employee’s care or for the theft of money for which the employee was accountable.
deductions made by employees for the purpose of paying their income taxes.
deductions that were imposed in this manner by a court order or another appropriate authority.
deductions for participation in the provident fund.
deductions for contributions paid to a registered cooperative organisation or deductions for an insurance plan that has received government approval.
deduction for any housing expenses the employer has covered.
deduction for any amenity or service that the employer provides that the government has authorised through a general or particular order to be charged.
deductions for any advances provided or changes made to wages that were paid in excess of the standard wage.
If an employer fines an employee, he or she must be informed of the fine’s amount as well as the reason why it was imposed. The worker must be given the chance to explain themselves in front of another person.
Compliance with regard to employee health
The Delhi Shops and Establishments Act compliance with regard to employee health is as follows.
During business hours, the occupier is responsible for making sure the space is appropriately lit and ventilated. If the chief officer believes that certain regulations are not being followed, he may issue an order outlining the steps that might be taken to ensure compliance.
The shop or business establishment must have a sufficient arrangement for the employees’ access to drinking water.
The property’s occupant is required to take reasonable precautions against fire.
Compliance with record-keeping and register-keeping requirements
The requirements for maintaining registers and records are:
The occupant is required to keep the record and register in the manner outlined below.
Register the employee’s employment and pay according to Form G.
When the starting and ending times of employment are set, the occupier might keep a register with the pertinent information in case the employer is called in advance or held after hours in accordance with Form H.
Wages and leave records according to Form I.
Closed days, working days, work hours, and intervals in Form K.
The documents must be kept safe until the end of the next year.
Every employee must get a letter of appointment from the employer, which must include the following details.
the employer’s name,
the establishment’s name, if any, and postal address,
the employee’s name, father’s name, and age,
the working hours,
The appointment’s date
Such documents must be produced by the occupier for the chief inspector’s inspection.
Penalties under the Delhi Shops and Establishment Act of 1954 for non-compliance
Penalties under this Act include:
A penalty of Rs. 25 that might go up to Rs. 250 would be imposed on any occupant who violates any Act provisions.
The violation of the record-keeping provision will result in a penalty of Rs. 5 per day if it continues.
A minimum penalty of Rs. 50 but not more than Rs. 250 will be imposed on anyone who tries to obstruct the inspector in the exercise of his authority or hides any employee from coming before the inspector.
Letter of appointment to employee
Every employer is required to issue a letter of appointment when a new employee is hired in the business. These details must be included in the document:
The pay or the hourly wage rate.
identification of the worker and the type of work performed, such as manual labour, clerical work, supervisory work, or any other.
If any concessions or benefits are granted to an employee that is unique to his position.
Establishments exempted from the Act
Numerous establishments are either entirely or partially exempt from the application of this Act. The list of exempted establishments and the scope of their exemption are provided by the definition clause and Schedule I taken together.
The following is a list of some examples of establishments that the Act exempts:
an establishment authorised by the Factories Act of 1948 ;
locations for public entertainment or amusement, such as theatres, movie theatres, restaurants, eating establishments, residential hotels, and clubs;
However, the Act partially exempts some establishments from its requirements. For instance, only Sections 15 (relating to establishment opening and closing hours) and 16 (relating to closing day) of the Act will provide an exception if the institution is that of an accountant or auditor.
Any occupier would be able to tell whether or not they fall under the Act’s scope after using these principles and the provisions of the Act.
Every owner of a shop or other establishment now has the responsibility of making sure that, within 90 days of the establishment’s formation, it is properly registered in the Chief Inspector’s Record of Registers.
The Registration process
If your business isn’t already registered, one can do so by taking these few simple steps:
Step 1
On the website of the Department of Labour, Government of Delhi, forms (Form A) are available for online registration of a store or establishment. The Delhi Shops and Establishments Rules, 1954 (hereinafter referred to as “the Rules”) displayed on the Internet should also be consulted when submitting the form. The following information must be included on the registration form:
The name of the establishment, if any.
The establishment’s postal address.
Full name of the employee or employer, including the name of his father.
The Manager’s full name, if any and including the name of his father.
The establishment’s type, such as whether it is a shop, a business, a hotel, a restaurant, a bar, a theatre, or another facility for public enjoyment.
The type of business.
The names of the employer’s family members who are employed by the business (state separately the names of young persons, if any).
The names of other people holding management positions or working in confidential roles.
The overall number of staff (men and women separately).
The day the establishment started operating.
Step 2
The occupier of the establishment must provide a statement on Form “A” and the required fee, which must be paid in cash, to the Chief Inspector within 90 days of:
The Act’s (or notification’s) effective date (for establishments that already existed at the time the Act was passed.) and
For new establishments, the day they start operations.
Step 3
The number of employees at the establishment will determine the registration and renewal fees (or renewal of registration fees).
Step 4
After receiving the statement and the required fees, the Chief Inspector, after confirming that the statement is true, will register the establishment in the appropriate section of the Register of Establishments on Form “B” and will provide the establishment’s occupier with a registration certificate on Form “C.”
Step 5
The Registration Certificate must be renewed every year by paying the required cost.
Step 6
Within fifteen days of the alteration taking place, the occupier must notify the Chief Inspector of any changes to any information in his statement required by Rule 3. The Chief Inspector must receive the notice on Form “D” along with the fee listed in Schedule II.
Why is shop and establishment registration necessary in the State of Delhi
One should register their shop or firm in Delhi right away because the unorganised sector’s businesses have become stagnant over time. The primary cause of this is that most businesses lack legal status, which limits their access to opportunities that encourage growth.
Within 30 days of opening for business, every store and establishment in India must register under the Shops and Establishments Act. This registration certificate also acts as evidence of a business establishment when applying for any other licences or registrations. Below is a detailed explanation of the advantages of registering:
Opening a current account becomes simple
A Shops and Establishments Act licence is sufficient documentation for business entities choosing to register under this Act, which makes it simple to open a current account in a bank. Due to the ability to set up a separate financial account for the business, corporations can prevent individual accounts from interfering with business transactions.
Ensures the employee’s and employer’s peace of mind
It involves corporate operations that protect the rights and well-being of employees as well as their physical and financial security. It deters unethical behaviour and fosters a supportive workplace culture for the workers.
Strengthens the management of pay and holidays
In order to be more open to its employees and auditing authorities, it pays special attention to significant regulations governing wages and holidays.
Steer clear of unscrupulous business conduct
The entities registered under this Act are not permitted to employ a minor to carry out their duties, and it contains strict prohibitions against child labour.
Encourage growth
By giving the entity legal recognition and enabling businesses to gradually get better exposure to a previously untapped market, it strengthens the business’s foundations.
Strengthens the position of the organisation in the market
It changes entities into legal ones, which strengthens its status as a trustworthy competitor, which in turn helps it gain the trust of its target customers and maintain its market share.
Conclusion
All commercial enterprises that sell goods or services are obliged to get a licence from their municipality under the Shops and Establishments Act. The Delhi Shops and Establishment Act of 1954 should be enforced for a number of reasons, including improved working conditions for employees, peace and harmony between employers and employees, and improved operation of the shops and other commercial establishments. Therefore, complying with regulations must be seen as both a responsibility and a chance for a corporation to flourish unrestrictedly. For the vast majority of firms, this Act won’t pose any major obstacles. One will have to handle things a little differently if they operate an exempted business, though, either because there aren’t any retail stores or for some other reason. This is a general overview of the laws and rules that apply in Delhi. Consult with your local tax advisor as soon as possible if you own an exempt business and are unsure how to handle these situations.
Frequently asked questions (FAQs)
Which businesses are covered by the Shop Act’s jurisdiction?
The Act covers shops, restaurants, residential hotels, commercial establishments, clubs, eating establishments, theatres, and other similar locations for public entertainment or amusement.
Are there any establishments run by the Indian Central Government and State Governments to which the Act applies?
No. The Shops and Commercial Establishments Act does not apply to any properties managed by the government of India or state governments.
What is the registration fee for businesses and shops?
Depending on the state’s legal system, different shops and establishments have different registration fees. At a national level, the registration rate is not set. The cost is based on the number of employees in the company or organisation.
Who is a Chief Inspector under the Act?
The Act also covers the responsibilities and authority of the Chief Inspector. In order to carry out the Act’s provisions, the Chief Inspector’s position is important. He is in charge of seeing that the Act’s guidelines are properly followed. The owner, employer, or manager of the shop or establishment, depending on the situation, shall be punished with a fine that shall not be less than twenty-five rupees and which may extend to two hundred and fifty rupees, or as may be prescribed under the Act, upon conviction for any violation of any provision of this Act, or any rule or order made thereunder.
What is a Commercial establishment under the Act?
A commercial establishment means any premises wherein any trade, business or profession or any work in connection with, or incidental or ancillary thereto, is carried on.
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This article is written by Adhila Muhammed Arif, a student at Government Law College, Thiruvananthapuram. This article elucidates the provisions in Order 8, Rule 10 of the Code of Civil Procedure, 1908, which is concerned with the consequences of not filing a written statement.
It has been publishedby Rachit Garg.
Table of Contents
Introduction
The Code of Civil Procedure, 1908, is the procedural law that governs how the civil courts of our country must function. It lays down the rules for civil proceedings. The Code also contains substantive law, as laid down in its 158 sections, and also comprises 51 orders, which constitute its true procedural aspects. Order VIII of the Code of Civil Procedure deals with written statements, set offs, and counterclaims. A written statement is an integral part of a civil suit. When a suit is commenced by a plaint, the defendant has to file a written statement as a reply. There are several rules in Order VIII that govern how and when the written statement should be filed, and also the consequences for not filing. This article discusses the procedure when a party fails to present a written statement called for by the court, and the same is discussed under Order 8 Rule 10 of the CPC.
First, let us start with understanding what a ‘written statement’ exactly is.
What is a written statement
The Code of Civil Procedure does not give a definition of a ‘written statement’. In general terms, it can be defined as the statement of defence in writing, filed by the defendant, and it deals with every material fact alleged by the plaintiff in the plaint. It contains objections to the plaintiff’s allegations as well as new facts, if any. It essentially refers to the pleading of the defendant, as a plaint is the pleading of the plaintiff. The provisions concerning the written statement are contained in Order VIII of the Code of Civil Procedure.
The matter in the written statement must be stated concisely. It must only contain the facts on which the defendant relies for his defence and not the evidence to prove such facts.
Pleading of new facts
As per Order VIII Rule 2, the defendant can also raise new facts that were not pleaded by the plaintiff in the plaint. He can raise any such facts or matters that show that the suit is not maintainable.
However, it must be specifically pleaded and not expressed in general or vague terms.
Such facts must be pleaded in the first instance itself. If it is not raised in the first instance when it was possible, it cannot be subsequently raised in an appeal.
Denial of facts
It must either deny or accept the allegations in the plaint. If an allegation is not denied, it is deemed to have been accepted.
According to Order VIII Rule 3 of CPC, it is important for the defendant to make an express and specific denial. The defendant cannot simply make a general denial of the plaintiff’s allegations.
As per Rule 4, evasive denial or denial that does not answer the substance does not qualify as a denial. For instance, if the defendant wants to deny the allegation of the plaintiff that he had received a certain sum of money, he has to expressly deny the receipt of the amount and also specifically state the amount alleged. Evasive denial is taken as admission unless the plaint is also vague and stated in general terms.
Who can file a written statement
A written statement, as stated earlier, is meant to be filed by the defendant.
However, the defendant may file it through an agent authorised by him. It cannot be filed by someone who is not a party to the dispute.
In the case of multiple defendants, there can be a common written statement signed by all, or at least verified by one of the defendants who is familiar with the facts.
When should a written statement be filed
Order VIII Rule 1 lays down the period within which the defendant must file a written statement.
The written statement should be filed by the defendant within thirty days from the day when the summons was served to him.
However, this period can be extended up to ninety days from the date of service of summons by the court for reasons to be recorded in writing.
In the case of commercial disputes, the written statement must be filed within thirty days from the date of service of summons. However, it can be extended by the court up to one hundred and twenty days from the date of service of summons for reasons to be recorded in writing, for which the defendant must pay the costs that the court thinks are appropriate. The expiry of this period results in the forfeiture of the right of filing a written statement.
If the defendant does not file the written statement within the prescribed time period, he must file it as early as possible, along with a delay application, praying for the condonation of delay in filing the written statement. However, there has to be a sufficient cause that is outside the control of the party. If the reason satisfies the court, the court shall accept the application and proceed, and if not, the court shall reject it.
In the case of Mohammed Yusuf v. Faij Mohammad and Ors. (2009), the defendant had filed a written statement after three years, praying for the condonation of delay. The application was rejected. The Allahabad High Court allowed a writ petition filed by the defendant, that challenged the rejection. The Supreme Court held that the High Court must not have interfered as there was no failure of justice or error on the face of the record. The Court held that the grant of time beyond the thirty-day period is not automatic. While granting the extension, the court must be cautious and examine whether there are sufficient reasons that call for the extension. The extension shall not be granted indiscriminately as it would defeat justice.
In the case of Christian Broadcasting Network Inc. v. CBN News (P) Ltd. (2018), the Delhi High Court held that the Court can invoke Order VIII Rule 10 of CPC if the defendant fails to file a written statement. In this case, the plaintiff was involved in broadcasting services and came across the defendant’s YouTube channel ‘CBN NEWS’, which was identical to the plaintiff’s trademark. A cease and desist notice was served on the defendant but to no avail. So, the plaintiff filed a suit. The defendant had failed to file a written statement. The plaintiff prayed for a temporary injunction and the Court passed it.
Another case is Nagaratnam Pillai v. Kamlathammal A (1945), here, there was a question as to whether Order VIII Rule 10 applies to Order VIII Rule 9. Rule 9 states that the parties cannot file further pleadings after filing a written statement, other than by way of defense to set-off or counterclaim. It also states that the Court may at any time require a written statement or additional written statement from any of the parties and fix a time that is not beyond thirty days for presenting the same. The Court decided that it relates to Rule 9.
Now, let us get to the topic. What does Order VIII Rule 10 of the CPC say?
Consequences of not filing a written statement
As per Order VIII Rule 10, if any person who is required to file a written statement does not do so within the time period prescribed or permitted by the court, the court shall pronounce the judgement against him or issue an order, and a decree shall be drawn up on the pronouncement of the judgement. The time period prescribed for the filing of the written statement in Rule 1 shall not be extended by the court.
The court has two alternatives when a written statement has not been filed:
Granting of adjournment: The court can grant an adjournment to the defendant. This grants more time to the defendant to file a written statement. However, no more than three adjournments can be given to a party to the suit as per Order VII Rule 1 of the Code. If the party still fails to file the written statement, the court can move on to the next alternative, which is the ex parte decree.
Pass an ex parte decree: The court can pass an ex parte decree against the defendant. This is not mandatory but the court has the discretion to do so. This is usually avoided by the court in the first instance. However, if the party fails to file a written statement in spite of many adjournments, the court can resort to passing an ex parte decree against the defendant.
Now that we know the consequences of not filing the written statement during the prescribed time period, let us look at the provisions of appeal and revision.
Appeal and revision
Order VIII Rule 10 provides that a decree will be drawn upon such judgement. Following that, an appeal would lie under Section 96. As per Section 115, the High Court can adjudicate upon such a decree through revision. When a decree is appealable, the aggrieved party cannot apply for revision.
Now, let us look at the inherent powers of the court with regard to the same.
Inherent powers of the court
Section 151 of the CPC lays down the inherent powers of the court. As per this Section, no provision in the Code acts as a restriction on the power of the court to issue an order in the interest of justice or for the purpose of preventing the abuse of the power of the court.
This Section acts as a limitation to Order VIII Rule 10 of the Code. This provision allows the courts to extend the period of limitation for filing the written statement. However, this is only allowed in exceptional situations that arise from causes outside the control of the defendant. This power cannot be used in ordinary cases.
Now that we are familiar with the provisions of the code, let us look at some important decisions by the judiciary regarding the same matter.
Case laws
Atcom Technologies Ltd. v. Y.A Chunawala and Co. (2018)
Facts
An appeal was filed by the defendant in the Supreme Court against an order made by the Delhi High Court in a revision petition that struck off his right to file a written statement as he had repeatedly delayed the filing in the civil court. The dispute was between two brothers on an agreement to sell off their ancestral property. The ancestral property consisted of a building, where the ground floor was owned by the respondent or the plaintiff, and the first floor was owned by the appellant or the defendant. The brothers entered into an agreement of sale where the appellant or the defendant agreed to sell the first floor to the respondent or the plaintiff. The plaintiff later filed a suit for specific performance of the agreement, claiming that the respondent was attempting to sell the subject matter of the agreement to third parties. Due to the defendant’s failure to file the written statement, the civil court granted several extensions, to the point where it exceeded 90 days. Before appealing to the Supreme Court, the appellant had first approached the Delhi High Court through revision. The Court dismissed the petition by relying on the judgement in Oku Tech Pvt. Ltd. v. Sangeet Agarwal and Ors. (2016), which laid down that courts do not have the discretion to grant an extension beyond 120 days.
Contention of the appellant
The High Court’s decision was erroneous as the Oku Tech judgement is only applicable in the case of commercial disputes. The case here is of non-commercial nature.
The time period prescribed under Order VIII Rule 1 is merely procedural and directory. The appellant also claimed that the same was decided by the Supreme Court in cases such as Salem Advocate Bar Association, T.N. v. Union of India (2005). The time period of 90 days can be extended by the court using its discretionary powers in exceptional cases.
The written statement could not be filed due to the lapse on part of his counsel and that he had appeared before the civil court on all the dates of the hearing.
Contention of the respondent
The defendant was granted several chances to file the written statement. The statutory period of 90 days cannot be extended.
Issues
Is the suit of commercial nature?
Can the statutory period of 90 days be extended?
Is the time period prescribed directory in nature?
Can the appellant be allowed to file the written statement?
Judgement
In this case, the Supreme Court held that in some very exceptional cases of non-commercial nature, the court can extend the period for filing a written statement beyond ninety days. Hence, the prescribed period is a “directory” and not mandatory. The defendant has to prove that there is a strong case that supports such an extension. The court observed that the suit is of a non-commercial nature. The court dismissed the appeal by stating that the appellant was given numerous opportunities but still failed to file the written statement.
Rajendrabhai Maganbhai Koli v. Shantaben Maganbhai Koli (2022)
Facts
The applicant applied for the writ of certiorari against an order passed by the Additional Civil Judge to be allowed to file a written statement. The applicant had been given several opportunities but failed to make an appearance and the court proceeded with the matter. The order was passed as the extension would not be given beyond 120 days.
The right of the applicant to file the written statement does not affect the right of the plaintiff in the case. Hence, allowing the defendant to file the written statement does not jeopardise the plaintiff’s position, but disallowing the defendant from filing the written statement would certainly jeopardise the defendant’s position.
The applicant also stated that he is willing to pay the necessary costs if any.
Issues
Is the time period prescribed for filing the written statement mandatory or directory?
Can the applicant be allowed to file the written statement?
Judgement
In this case, the Gujarat High Court held the view that the ninety-day limit for filing a written statement in non-commercial disputes is directory in nature and not mandatory. The Court stated that it must be used sparingly and not in ordinary cases.
The Court, after examining the merits and circumstances of the case, held that the writ petition is allowed and that the applicant is allowed to file the written statement.
The Court made such an order while taking the pandemic situation into consideration.
The Court, however, ordered the applicant to pay an exemplary cost of Rs. 10,000.
The Court also clarified that the order passed by it will not act as a precedent as it was made with respect to the facts and circumstances of the case.
M/s SCG Contracts India Pvt. Ltd. v. KS Chamankar Infrastructure Pvt. Ltd. (2019)
Facts
A suit was filed by M/S SCG Contracts India Pvt. Ltd., who is the appellant, against K.S. Chamankar Infrastructure Pvt. Ltd., claiming a sum of Rs. 6,94,63,114/-.
The defendant had not filed a written statement even after 120 days. The date on which the period expired was 11 November 2017.
The defendant had filed for the rejection of the plaintiff’s plaint and the Court rejected this application.
The defendant had applied for an extension of the time period for filing the written statement. The Court granted time till 15 December 2017 for the defendant to file the written statement. This order was made on 5 December 2017.
The plaintiff makes an application on the 6th of August 2018, claiming that the extension of the time period beyond 120 days is not supported by the Code of Civil Procedure. The Court issued an order on 24 September 2018 stating that the Order made on 5 December 2017 was final.
The plaintiff or the appellant, in this case, challenged both orders, the one made on 5 December 2017 and the one made on 24 September 2018, by special leave petitions before the Supreme Court.
Issue
Can the defendant file the written statement after 120 days?
Judgement
In this case, the Supreme Court held that in disputes of commercial nature, the written statement must be filed within one hundred and twenty days and not beyond.
The Supreme Court clarified that if the defendant fails to file the written statement within this period, it has the effect of the forfeiture of the right to file a written statement. Even in exceptional cases, this period cannot be extended. The provision in Order VIII Rule 10 clearly states that the time period prescribed for suits of commercial nature in Order VIII Rule 1 cannot be extended. Hence, in commercial suits, the time period prescribed by the code is mandatory and not merely directory.
The Court relied on the judgements of the Delhi High Court in the cases of Oku Tech Pvt Ltd v Sangeet Agarwal & Ors. (2016) and Maja Cosmetics v. Oasis Commercial Pvt. Ltd.(2017) to decide this case. These judgements held that the provision in Order VIII Rule 1 and Rule 10 is mandatory and not merely a directory provision.
Additionally, the Court cited the judgement made in the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal (1961) to reiterate that Section 151 does not precede this provision. The inherent powers of the court provided by Section 151 of the Code of Civil Procedure cannot be used in commercial suits to extend the period of one hundred and twenty days.
M/s Diligent Media Corporation Ltd. v. Sandy Ltd. (2021)
Facts
A commercial summary suit was filed by Sandy Ltd., the plaintiff, against Diligent Media Ltd. A summons was issued to the defendant. While the summons was pending, the defendant made an application on March 15, 2018 for the rejection of the plaint, claiming that the suit was not maintainable as it was barred by limitation. During the pendency of the application, on August 20th, 2018, the defendant was allowed a time period of four weeks to file the written statement. The defendant had failed to file a written statement during the said period. He filed an application for the condonation of delay with the Bombay High Court.
Issues
Can the court, in a commercial summary suit, grant an extension of time to file a written statement beyond the prescribed period of 120 days? Is the procedure for a commercial summary suit different from an ordinary commercial suit?
Judgement
The Bombay High Court stated that the rules of procedure for summary suits are different from that of ordinary suits. The rules of special procedure of summary suits are provided under Order 37 of the Code of Civil Procedure.
The Court clarified that for commercial summary suits, the time period prescribed under Order VIII Rule 1 and Rule 10 does not apply. The time period is meant to be determined by the court as per the provision in Order V Rule 1 of CPC. Or, the time period of ninety days applies and it commences from the date of grant of leave, and not from the date of service of summons.
The Court stated that though the time period is directory and not mandatory for commercial summary suits, the court must exercise its discretion carefully.
The Court approved the contention of the defendant that due to the application made by the defendant to reject the plaint, he could not file the written statement. The Court was of the opinion that the defendant’s application was not mala fide and that he had not attempted to delay the prosecution. The Court allowed the defendant to file the written statement on the ground of interest of justice.
However, the Court imposed a cost of Rs. 1,00,000 on the defendant for the delay of the trial of the suit.
Conclusion
Order VIII Rule 10 of the Code essentially lay down that if the defendant does not file a written statement within the time and manner prescribed by the provisions in the Order, the court shall pass a judgement against him. The provision also makes it clear that the court cannot extend the one-hundred and twenty days duration prescribed under Rule 1 under any circumstances for commercial disputes. The question as to the nature of Rule 10 was answered in various court decisions. For suits involving non-commercial subject matter, Rule 10 is merely a directory provision and not mandatory. That is, in exceptional circumstances, the time period prescribed in Rule 1 can be extended. Such an extension is made by invoking the inherent powers of the court as given in Section 151 of the Code. The extension must be granted in the interest of justice. However, as the rule is mandatory for commercial disputes, such an extension cannot be given in any circumstances.
Frequently Asked Questions (FAQs)
Is the time limit prescribed under Order VIII Rule 10 of the Code of Civil Procedure mandatory or directory?
The time limit prescribed is a directory provision for non-commercial suits as per the decisions in cases such as Kailash v. Nanhku and Ors. (2005) and RajendrabhaiMaganbhai Koli v. Shantaben Maganbhai Koli (2022). However, it is mandatory in commercial disputes as per the decisions in M/s SCG Contracts India Pvt. Ltd. v. KS Chamankar Infrastructure Pvt. Ltd. (2019) and Desh Raj v. Balkishan(D) (2020).
Can the court give an extension beyond the period prescribed in Order VIII Rule 1?
Yes, the court can give an extension beyond the prescribed period for filing a written statement in non-commercial suits in very exceptional situations. This extension is not given in ordinary cases as it would be an abuse of power by the court. However, such an extension is not granted at all in cases involving commercial disputes beyond the 120 days prescribed in Order VIII Rule 1.
What if the defendant does not file a written statement?
If the defendant does not file a written statement, the court will pass an ex parte decree against the defendant. The court, in its discretion, can also grant adjournments for special reasons before passing an ex parte decree, but it cannot be granted more than three times.
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This article is written by Pragya Agrahari of Amity Law School, Lucknow. This article provides a detailed analysis of Rules 1-16 under Order 32 of the Code of Civil Procedure, 1908.
It has been published by Rachit Garg
Table of Contents
Introduction
The Indian Constitution is based on the principles of natural justice, that is, equity, justice, and good conscience. It advocates for equal rights and justice to be served to each and every section of society, irrespective of age, sex, religion, class, caste, gender, etc. The people of the unprivileged class are also not deprived of enjoying such rights. Moreover, it has provided necessary remedies, in the case of violation of such rights. Any person whose rights have been infringed can run to the court by filing suits or petitions to grant such rights.
The Code of Civil Procedure (CPC), 1908, is one such Act dealing with enforcing the civil rights of the people from every section of society. Even the minors and lunatics, who were assumed to have no voices of their own, were not excluded from availing such rights. They have been entitled to special rights and protection under Order 32 of the CPC. Here in this article, we have discussed each provision under this Order which equips such persons to defend their interests before a court of law.
What is Order 32 of the CPC
Order 32 (Rules 1 to 16) of the Code of Civil Procedure (CPC), 1908 deals with the “Suits by or against minors and persons of unsound mind.” It specifically prescribes the procedure for suits to be filed by or against minors or persons of unsound mind. In the early systems of law, it was generally assumed that minors and lunatics had no authority to institute a suit on the ground that such persons lacked reason and understanding to participate in the proceedings, but gradually it was realised that there is a need for such laws for the protection of the interests of such persons. Order 32 has been specially enacted to protect the interests of minors and persons of unsound mind to ensure that they are equally represented in civil suits or proceedings. Order 32 consists of a total of 16 rules, each describing the scope and nature of the rights and liabilities of the person party to the suits and proceedings.
Definition of minor and persons of unsound mind
Minor:
As per Section 3 of the Majority Act of 1875, a minor is a person who has not attained a majority, that is, who has not attained the age of 18 years. But in the case of a minor for whose person or property a guardian is appointed by the court or whose property is under the superintendence of the court of wards, the age of attaining majority is 21 years. A deity is not a minor under this definition, and this Rule does not apply to the suits filed on behalf of or against the deity.
Persons of unsound mind:
Black’s Law Dictionary defines a ‘person of unsound mind’ as an adult who, from infirmity of mind, is incapable of managing himself or his affairs. As per Section 12 of the Indian Contract Act, 1872, a person of sound mind is a person who is capable of understanding and forming a rational judgment as to its effect on his/her interests. Similarly, in Section 84 of the Indian Penal Code, 1860, a person of unsound mind is a person who, by reason of unsoundness of mind, is not able to know the nature and consequence of his/her act, whether it is right or wrong.
Rule 1: Suit in the name of the next friend
Rule 1 of Order 32 provides that every suit shall be instituted in the name of the minor by the ‘next friend’ of the minor. The ‘next friend’ is any person who has attained majority and is in some way related to the minor so as to ascertain his/her interests. The ‘next friend’ will act on behalf of the minor in suits or proceedings before the court and, in a bonafide manner, represent his/her interests. This Rule creates a general principle in a suit in which the party is a minor or a person of unsound mind. In the case of the existence of a separate provision in the statute defining the rights and liabilities of the parties, it will take precedence over the general rule stated in this Order. Hence, in the case of Melabati Tea Estate v. Bhakta Munda (1964), where a minor workman makes a claim under some provision of the Industrial Disputes Act, 1947, he has to be represented by an officer of the trade union as per Section 36 of that Act and this Rule of Order 32 has no application to it.
In the case of State of Rajasthan v. R.D. Singh (1972), it was held that a minor suing through one next friend cannot sue through another next friend in another case, nor can he/she sue for the same cause after attaining a majority. However, the court is empowered to appoint a next friend during the pendency of the suit.
Concept of next friend
The rationale behind the representation of minors or persons of unsound mind through the next friend is that these persons are deemed incapable of prosecuting or defending their interests in the case, so it becomes necessary that their interests should be looked after by an adult to furnish justice to the minor or person of unsound mind. In the case of Rup Chand v. Dasodha (1908), it was clarified that the person representing the interests of a minor or person of unsound mind was not a party to the suit. His/her appointment as a ‘next friend’ was only for procedural purposes and limited to that proceeding for which he/she was recognised by the court.
Liability of a next friend
The ‘next friend’ does not only represent the interests of the minor or person of unsound mind but is also held responsible for other purposes. Where a suit brought by a minor through his next friend is dismissed by a court and it has emerged that the suit was not to the benefit of the minor, the court may direct the next friend personally to pay the costs. But if the court is convinced that there are reasonable grounds for instituting the suit and the next friend has acted in good faith, the court will not hold the next friend liable to pay the costs and will direct the costs to come out of the property of the minor. But the successful defendant is entitled to get his costs from the next friend irrespective of the question of whether the suit was for the benefit of the minor or not.
Where the question of the minority is in dispute
Minor suing as an adult
Where a minor brings a suit without a next friend and the other party was aware of his minority and did not object, and the minor attained a majority before the decree was passed, the decree is binding on all the parties. In the case of Fuli Bibi v. Khokai (1928), it was held that where a minor represents himself as a major and no next friend is appointed on his behalf, the suit will not fail on this ground.
Major claiming himself a minor
When a person is sued as a major and he claims himself to be a minor, it is up to the court to frame an issue for determination on the question of his minority and to appoint the next friend for the alleged minor.
Minor representing himself as major
Where a minor represents himself as a major and performs as a major while collecting rent, selling property, or executing a sale deed, he is estopped from again recovering rents or property by instituting a suit as a minor through his next friend. The reason behind doing this is that the court of equity will deprive the fraudulent minor of being benefited from the plea of a minority. But in the case where the purchaser or the other party was aware of his minority, he could not be said to have been deceived and the suit to set aside the sale would not then be barred (Mohori Bibee v. Dharmodas 1903).
Rule 2: Suit without the next friend
Rule 2 of Order 32 provides the procedure where the suit is instituted by the minor without the next friend. In this case, the defendant can apply for the plaint to be taken off the file by merely showing that the plaintiff is a minor and that the suit was filed without a next friend. This can happen in two cases:
either the fact of the minority is apparent on the face of the plaint, or
it is ascertained by the objection raised by the defendant and the inquiry by the court.
When the fact of the minority is clearly apparent, the practice is to take the plaint off the file, whereas in the case where the fact of the minority can be established after the finding of evidence in the court, the question of whether the minor has knowledge or intention to deceive is ascertained.
In the case where the minor has knowledge or intention to deceive, the practice, according to the Bombay High Court is to direct the plaint to be taken off the file (Rattonbai v. Chabildas 1889) and according to the Calcutta High Court, the suit should be dismissed (Beni Ram Bhutt v. Ram Lal 1886). The difference between the two practices followed by the courts is that in case of dismissal of the suit, there lies the chance of appeal against the decree of the court but in case of a plaint taken off the file, there lies no appeal.
In the case where the minor has no such knowledge or intention to deceive the court, the practice is to provide sufficient time to the minor to enable him/her to be represented by a next friend.
Payment of costs: When the suit is instituted by a minor without a next friend, the pleader or the person presenting the plaint is liable to pay the costs associated with that suit.
Rule 2A: Security to be furnished by the next friend
Rule 2A, vide sub-rule(1) of Order 32, provides that where the suit is instituted by the minor through his next friend, the Court may order the next friend, at any stage of the suit, to furnish the security for the payment of all the costs incurred or for the payment of the costs which are likely to be incurred. The object is to discourage vexatious or frivolous litigation by the next friend of the minor. In the case where the suit is instituted by an indigent person, this security will also include the court fees to be paid to the government (sub-rule 2). Moreover, sub-rule 3 states that Rule 2 of Order 25also applies in this case. However, this Rule does not apply to the suit instituted by persons of unsound mind through their next friend.
Rule 3: Guardian is to be appointed for the minor defendant
The courts play the role of locus parentis (in the place of a parent)for their citizens who are unable to protect their rights and interests due to some infirmity or lack of adulthood. Thus, this rule mandates the court to dwell into the question of minority or unsoundness of mind of the person defending the suit and, upon such satisfaction, appoint a proper person as a ‘guardian ad litem (guardian for the suit)’ for the minor defendant (sub-rule 1). This appointed guardian will represent the minor defendant throughout the whole litigation. But the guardian ad litem is not a party to the suit or appeal. Moreover, the guardian ad litem does not automatically cease to function, the minor on attaining majority should take steps to discharge him.
In the case of Sherija Bi v. Pillai (1976), where the guardian was appointed based on the minority of the defendant and it was later revealed that he was a major at the time of the institution of the suit but was deaf and dumb, the appointment of a guardian was held invalid and the decree passed as void. Moreover, it is imperative for the court to appoint a guardian for the minor defendant. In the case of Dakeshur v. Rewat (1897), it was held if a minor was sued without a guardian ad litem and a decree was passed against him, the decree is null and void and cannot be enforced against him.
Application/notice for appointment
The court orders such an appointment upon the application made in the name or on behalf of the minor (sub-rule 2). This application must be accompanied by an affidavit declaring that the person proposed to be appointed as a guardian has no adverse interest in the matter before the court and that he is fit to be appointed as a guardian for the defendant minor(sub-rule 3). However, according to sub-rule 4, a competent authority can also give notice to the person to be appointed as a guardian ad litem on behalf of the minor. In the absence of such a guardian, the notice is given to the father or mother or natural guardian of the minor, and in their absence, to the person in whose care the minor was. The authorities also entertain any objection urged by the person on whom the notice is served.
The person so appointed as a guardian ad litem of the minor defendant shall represent the minor in all the proceedings unless he is terminated by removal, death or retirement (sub-rule 5).
Rule 3A: Decree against the minor not be set aside unless prejudice has been caused to his interests
This Rule lays down the mandate on the court to not set aside any decree passed against the minor merely for the reason of the next friend or guardian ad litem having an adverse interest in the subject matter of the suit (sub-rule 1). It is mandatory to show that the adverse interest of the next person or guardian ad litem has caused prejudice to the minor’s interests in order to set aside the decree. However, the minor is free to obtain any relief under the law against such next friend or guardian causing prejudice to his/her interests (sub-rule 2).
Rule 4: Conditions to be appointed as next friend or guardian ad litem
Rule 4 consists of various conditions which need to be fulfilled to be appointed as the next friend or guardian ad litem. There are mainly four conditions for a person to be appointed as the next friend or guardian ad litem (sub-rule 1):
A person of sound mind,
A person has attained a majority,
A person has no adverse interest in the subject matter of the minor,
A person is not a defendant in the case of the next friend or not a plaintiff in the case of guardian ad litem.
Guardian appointed by the competent authority
Where a person is declared or appointed by the competent authority as a next friend or guardian ad litem, only that person who is so declared is eligible to be appointed (sub-rule 2). However, another person may be permitted to be appointed by the court as the next friend or guardian ad litem in view of the minor’s welfare, but only in consideration of the reasons recorded. In the case of Budhilal v. Morarji (1907), it was clear that a guardian appointed by the Hindu father in his will for his minor son was not a guardian appointed by the ‘competent authority’ within the meaning of this rule.
Consent of guardian ad litem
This Rule limits the court’s discretion to appoint a guardian ad litem by stating that no person is competent to such an appointment without his/her consent (sub-rule 3). In the case of Chatter Singh v. Tej Singh (1920), the Allahabad High Court held that in a situation where the proposed guardian has not consented but remains silent, his consent will be presumed.
Officer of the court as guardian ad litem
Sub-rule(4) of Rule 4 provides that no one is fit or willing to act as a guardian ad litem, the court can appoint any of its officers as guardian ad litem. In doing so, the court must satisfy itself that such a person is fit for such an appointment and is the proper person to protect the interests of the minor. In such a case, the court may direct the costs incurred by the officer to be borne by the parties to the suit, out of the court’s fund, or out of the minor’s property.
Rule 5: Representation of minor by next friend or guardian ad litem
This Rule, vide sub-rule 1, provides that every application, except the application for a stay of proceedings after the removal of the next friend or the guardian ad litem under sub-rule(2) of Rule 10 of this Order, made to the court on behalf of the minor should be made by the next friend or the guardian ad litem.
Sub-rule 2 of this Rule contemplates the case where the minor is not represented by the next friend or the guardian ad litem. In this case, the court may discharge the order which anyway affects the minor in any event. Moreover, the pleader at whose instance such an order was passed, provided that he knew about the fact of the minority of the minor plaintiff, will furnish the costs to be paid to the court.
Rule 6: Receipt of property by next friend or guardian ad litem
This Rule, vide sub-rule 1, specifies that the next friend or the guardian ad litem should not receive any movable property or money on behalf of the minor, except with the leave of the court. It could be either by way of a compromise order or through an order or decree of the court in favour of the minor. This provision seeks to protect the assets of the minor in the suit. However, this rule is limited to money or movable property. In the case of Sarda Prasad v. Jumna Prasad (1961), where the order was for the delivery of possession of the immovable property, this rule would not apply.
In sub-rule(2) of this Rule, it is provided that where the next friend or the guardian ad litem was not appointed by the competent authority or had been appointed but due to any disability was not able to refuse the receipt of money or movable property, the court may allow him to receive such money or property. But the court may require it from him for the protection of the minor’s property from any wastage and may give directions to ensure its proper application.
However, the court allows the next friend or the guardian ad litem to receive the money or movable property without furnishing security in the following two cases when the next friend or the guardian ad litem is:
The manager of Hindu divided family and order is concerned with the family business or property, or
The parent of the minor.
Rule 7: Agreement or compromise by next friend or guardian ad litem
This Rule cautions the next friend or guardian ad litem to enter into any compromise or agreement on behalf of the minor in the suit without the permission or leave of the court (sub-rule 1). Any such agreement or compromise is voidable against all the parties, except the minor (sub-rule 2).
Application for grant of leave from the court
According to sub-rule 1A, in order to get a grant of leave from the court, the next friend or guardian ad litem is required to apply for the leave of the court. Such an application should be supplemented with an affidavit of the next friend or guardian ad litem and with the certificate of the pleader, in the case of the minor represented by the pleader, confirming that such agreement or compromise is for the benefit of the minor. However, the court is free to examine the question of whether such an agreement or compromise is for the benefit of the minor or not, in spite of the affidavit or certificate declaring so.
It provides the following steps to be taken before entering into a compromise:
Application for the leave of the court,
Affidavit showing that the compromise is for the benefit of the minor,
Certificate by the pleader in the case of a minor represented by a pleader, that the agreement or compromise is for the benefit of the minor,
Court granting the leave if it thinks fit,
Consent of the next friend or guardian ad litem to the proposed agreement or compromise.
However, this Rule does not apply where such an agreement or compromise is not related to the rights of the parties claimed in a suit. The Supreme Court has held that the words ‘with reference to the suit’ indicate that it must limit the rights put at issue in the suit.
Rule 8-11: Retirement, removal or death of the next friend or guardian ad litem
Retirement of next friend
Rule 8 provides the procedure for the retirement of the next friend. It states that the next friend is not allowed to take retirement unless the following conditions are fulfilled:
The court orders for such retirement (sub-rule 1),
The next friend should procure any fit person to be appointed as his/her successor before such retirement (sub-rule 1),
An application for the appointment of his/her successor should be accompanied by an affidavit expressing that the proposed person does not have any adverse interest in the minor (sub-rule 2).
Removal of next friend
Rule 9 provides the circumstances in which the next friend can be removed by the application made on behalf of the minor, by the defendant, or by the guardian. In the case of Sham Singh v. Jaswant Singh (1970), it was stated by the Punjab and Haryana High Court that the principle behind such removal is to safeguard and not prejudice the interest of the minor.
When the next friend is having an adverse interest in the minor (sub-rule 1)
In this case, the next friend is removed by the court on the application of the minor, when it emerges that he is having an adverse interest in the minor or he is so close to the defendant who has an adverse interest in the minor, due to which,
he is not able to protect the interest of the minor, or
ceases to be present in India during the pendency of the suit, or
because of other reasons not being able to perform his duty.
The court, after being satisfied with the reasons stated, passed the order for the removal of the next friend.
When the next friend is not appointed by a competent authority (sub-rule 2)
In this case, the court orders the removal of the next friend who is not appointed or declared by the competent authority on the application of the person who is declared to be appointed as the next friend.
Stay of proceedings
Rule 10 states that upon the retirement, removal, or death of the next friend, the court should stay the further proceedings until the appointment of the new next friend(sub-rule 1). And in case there is a delay in finding the appropriate person to be appointed as the new next friend, any person can apply for such an appointment(sub-rule 2). The court will assess the fitness of the person applied for the appointment and will appoint such a person if it thinks fit. This Rule is attracted only when the death of the next friend is brought to the notice of the court, and where it is not done so, and the appeal was heard in the ignorance of such a fact, the decree passed is not a nullity (Gulabchand Nanulal v. Fulchand Hirachand 1959).
Retirement, removal or death of guardian ad litem
Rule 11 deals with the retirement, removal or death of a guardian ad litem and is similar to rules 8, 9 and 10, which are for the next friend. It provides that the court may allow the guardian ad litem to retire if he desires so and may remove him if he is not performing his duty well (sub-rule 1). Moreover, after such retirement, removal, or in the case of the death of a guardian ad litem, the court should appoint a new one in place of it (sub-rule 2).
Rule 12-13: Minor attaining majority
When during the pendency of the suit or appeal on behalf of the minor, the minor has attained majority, the court comes under the obligation to call for the minor and ascertain his/her wishes as to whether to proceed further with the suit or appeal (Rule 12). This whole process can be stated as follows:
Firstly, it was ascertained whether the minor after attaining a majority, elect to proceed with the suit or not (sub-rule 1),
If he/she wishes not to proceed, the suit or appeal will be dismissed by the court and an order for repayment of the costs will be delivered (sub-rule 4),
If he/she wishes to proceed, an application for the discharge of the next friend is to be made so that he/she can proceed further in his own name (sub-rule 2),
The title of the suit or application will be transformed as: “A, late a minor, by C, his next friend, but now having attained majority” (sub-rule 3),
This application for the discharge of the next friend can be made ex-parte but no order for such discharge should be made without giving notice to the next friend (sub-rule 5).
In the case of a minor co-plaintiff attaining the majority
Rule 13, vide sub-rule 1, provides that when a minor co-plaintiff attains a majority and desires to repudiate the suit, the court may dismiss him from the suit if it thinks he is not a necessary party to the suit. The notice of such dismissal should be provided to the next friend, co-plaintiff in the suit, or the defendant (sub-rule 2). Moreover, the court may direct the parties to pay all the costs incurred during such proceedings (sub-rule 3). For this, the co-plaintiff has to make an application to strike out his name from the suit. But if the court thinks he is a necessary party to the suit, it may direct the party to be made a defendant (sub-rule 4).
Rule 14: Improper or unreasonable suit
This Rule, vide sub-rule 1, further provides rights to the minor sole plaintiff, upon the majority, to apply for dismissal of the suit instituted on his behalf on the ground that it was unreasonable or improper. In this instance, too, the notice should be served to all the parties, and the court may order the payment of all the costs by the parties (sub-rule 2).
Rule 15: Rules applicable to persons of unsound mind
This provision states that all these rules from 1 to 14, except rule 2A, provided specifically for minors, are also applicable to persons of unsound mind, so adjudged by the court. And it is also applicable in this case. They were not adjudged as of unsound mind, but after enquiry done by the court, it appears that they are suffering from mental infirmity due to which they were unable to protect their interests.
Rule 16: Application of the rules
This provision contains directions for the application of these rules under Order 32. It states that these rules do not apply to the ‘Ruler of a foreign state’ (sub-rule 1). Moreover, it was clarified that these rules in no way contradict the local laws providing for the protection of minors or persons of unsound mind (sub-rule 2).
Conclusion
Minors in the public sphere exist as unprotected or vulnerable entities, and they require the help of their parents and guardians to survive and advance their interests in society. The legal institution is well aware of this incapability of minors or other persons who, by reason of unsoundness of mind, or any physical or mental infirmity, are not able to raise their voices for their protection of rights. Order 32 of the CPC specifically aspires to resolve this issue by entitling them with certain rights to sue or appeal in court upon any violation of their civil rights. Rules 1 to 16 are exhaustive enough to deal with the protection of such a vulnerable section of society.
Frequently Asked Questions
Can a decree passed against a lunatic not properly represented be set aside by the court?
In the case of Amulya Ratan Mukherjee v. Kanak Nalini Ghosh (1950), it was held that the decree passed against a lunatic, not properly represented, is not binding on him and may be set aside by the court.
Is Order 32 applicable to deaf and mute persons?
In the case of In Re: Periaswami Goundan (1953), the Madras High Court has stated that the rules under Order 32 apply to a person who is deaf and dumb. The Honourable Justice opinionated, “Rule 15, Order 32 is intended to cover the case of persons who are absolutely deaf and dumb and on that account are incapable of receiving any communications or of communicating their wishes or thoughts to others.”
What is the difference between the guardian appointed under the Hindu Minority and Guardianship Act and the guardian appointed for the suit under the CPC?
Under Rule 4 of Order 32 of the CPC, the guardian for the suit can be anyone who is major, of sound mind, and does not have any adverse interest against the minor. Whereas for the purposes of the Hindu Minority and Guardianship Act, 1956, the guardian should be anyone enlisted in Section 4(b) of the Act. Moreover, the guardian or next friend appointed under Order 32 of the CPC is purely temporary in nature, that is, specifically for representing in a particular suit, unlike the guardian appointed under the Hindu Minority and Guardianship Act.
References
Mulla, The Code of Civil Procedure, Sixteenth Edition (Solil Paul and Anupam Srivastava), Volume III, LexisNexis Butterworths.
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This article is written by Kishita Gupta, a Unitedworld School of Law, Karnavati University, Gandhinagar, graduate. The article deals with a thorough discussion of Sale of Goods Act, 1930. The article will also discuss various case laws on the subject.
It has been published by Rachit Garg.
Table of Contents
Introduction
We are aware that every business entity runs by buying or selling commodities. In India, such sales of goods are governed by the Sale of Goods Act, 1930. This Act has been codified as a separate enactment of the law relating to the sale of goods, which was contained in Sections 76 to 123 of the Indian Contract Act of 1872. Those sections of the Contracts Act have been repealed by the Sale of Goods Act. This was done because the provisions of the Contract Act were found to be inadequate to deal with the new situations that were arising due to an increase in mercantile transactions in the wake of rapid industrialisation. Hence, a new law was formed to deal with the sale of goods which incorporates various provisions of the English Sale of Goods Act, 1893. However, despite the separate legislation in terms of the Sale of Goods Act, the Contract Act continues to apply to the contracts relating to the sale of goods. The Act lacks in defining some of the expressions and words that are otherwise defined in the Contract Act. In this article, the author will be discussing the Sale of Goods Act, 1930 in detail by analysing all the important provisions and case laws.
Definition clause of the Sale of Goods Act, 1930
Let us begin with a thorough understanding of the definition clause of the Act for a better understanding. Section 2 of the Sales of Goods Act of 1930 deals with the definitions relating to the subject. Some of the clauses of Section 2 are mentioned below:
Buyer
In clause 1 of Section 2, the term ‘buyer’ is defined to include both a person who actually purchases the goods and a person who is almost willing to do so. However, it was observed in Helby v. Mathews (1895) that a person is not regarded as a buyer if an agreement essentially grants him the option to purchase the products without subjecting him to any legal obligation to do so.
Delivery
Clause 2 defines the term ‘delivery’ to involve a transaction of a transfer of possession which is done voluntarily. Delivery can be actual or constructive. It becomes ‘actual’ when the buyer receives the actual products or receives the key to the warehouse where the goods are kept. Whereas, when a delivery is made without affecting the custody or actual ownership of the item, such as when attornment (acknowledging) a delivery or making a symbolic delivery, it is said to be a constructive delivery.
Goods
Clause 7 deals with the “goods,” which refers to any movable property that is neither money nor actionable claims.
The following list of items is considered goods as per the interpretations given by the Indian judiciary:
The ‘Standing timber’ on land which was agreed to be severed from the land before the sale, was held to be goods in the case of State of Maharashtra v. Champalal (1971).
The interest of the partners in the partnership assets which consists of any immovable property was considered to be a movable property and thus good in the case of Narayanaapa v. Bhaskar Krishnappa (1966).
The following list of items was considered to be ‘not goods’ under this Section:
The goods supplied by a building contractor in the execution of building construction are not goods as per the case of Mahadeo v. State of Bombay (1959).
Where a person entrusts documents to his lawyer, those documents will not be considered goods under this Section as per the case of R.D. Saxena v. Balram Prasad Sharma (2000).
The sale and purchase of lottery tickets are actionable claims which are excluded from the definition of goods. Therefore, it will not be goods as was held in the case of Union of India v. Martin Lottery Agencies Ltd. (2009).
Specific goods
Clause 14 of Section 2 deals with ‘Specific Goods.’ Specific goods are utilised as an alternative to generic or unascertained goods. The items are specific if they are identified at the moment of sale. However, they are unascertained goods if the items are not identified at the moment of the sale. For example, the sale of a car in a person’s possession would be considered to be the sale of a specific good. Whereas a sale of a car from a showroom that contains different variants of a car is a contract for the sale of unascertained goods.
Formation of a contract
What is a contract of sale
Section 4 of the Act discusses sales and the agreement to sell. The term “contract of sale” is generic in nature. It tends to include both agreements to sell and sale. It was formerly called “bargain and sale.”
Subsection 3 of Section 4 defines the sale and the agreement to sell. The contract of sale is known as a sale when the property in the products is transferred from the seller to the buyer under it, thereby transferring ownership from the seller to the buyer. A sale can also be called an executed contract of sale. However, a contract is referred to as an agreement to sell when the transfer of property in the goods is supposed to happen at a future date or is dependent on the fulfilment of a subsequent condition. An agreement to sell may also be called an executory contract of sale.
Subsection 1 also permits a person who owns the goods partially to sell the goods or transfer the ownership to that extent.
In Camera House, Bombay v. State of Maharashtra (1969), the Bombay High Court ruled that providing a print, processing film, and taking a picture in a studio are all separate transactions. Therefore, it is obvious that the first two contracts call for the use of a photographer’s artistic talent and labour. However, the final contract for providing copies of it to clients is a contract of sale.
Absolute and conditional contracts of sale
A contract of sale may be either absolute or conditional. When the property is actually sold to the buyer and transferred completely, it is considered absolute. If the parties annex conditions to the contract, it is conditional. These situations could be either subsequent or preceding. When a sale is to be completed subject to the fulfilment of a specific condition, the condition is known as a “condition precedent.” It is common for an auction sale of goods to include a clause stating that if the purchase price is not made within a certain period of time, the item may be resold. In this scenario, there is a real sale when the property is transferred to the buyer, but if the transaction is not completed, the seller retains ownership of the goods.
Difference between sale and agreement to sell
A sale results in the transfer of the buyer’s general ownership of the items, or it generates a jus in rem. An agreement to sell does not transfer property; rather, it creates a jus in personam that allows either party to take legal action against the other’s person and general estate if the other fails to uphold his end of the bargain. (Sales Tax Officer v. Buddha Prakash Jai Prakash (1954))
After a sale, if the purchaser does not pay for the items, the seller may file a lawsuit under Section 55 (suit for price) to recover the purchase price. When there is just an agreement to sell anything and the buyer refuses to take delivery of the goods and pay for them, the seller may only bring a claim for damages under Section 56 (damages for non-acceptance).
If there is a sale agreement in place and the seller breaches it, the buyer alone has a claim for damages as their own remedy. The seller is still the rightful owner of the items, and he is free to dispose of them however he sees fit. But if a sale has already been made and the seller breaches it, the buyer is likewise entitled to the same legal recourse against the seller as an owner of the goods would have in relation to the items themselves, such as a suit for conversion or detinue.
If there is a sale agreement and the products are destroyed, the seller is responsible for the loss; nevertheless, if there has been a sale, the buyer is responsible for the loss even though the things may not have actually been in his possession.
What are the formalities of the contract
Section 5 provides for the bare formalities for making “contracts of sale.”
The following prerequisites must be met for a contract to be formed:
The making of a purchase or sale offer and the acceptance of that offer.
Delivery arrangements for goods or services may be immediate, simultaneous, in instalments, or in the future.
Making provisions for the price paid. The fee may be paid in whole immediately, in instalments over time, or all at once.
The basic requirements for a contract of sale are as follows:
It may be in writing.
It may be by word of mouth.
It may be partly oral or written.
It may be implied from the conduct of parties or by the course of their business.
The law allows for official written instruments to be sealed in the case of the government and some statutory corporations “Subject to the provisions of any law for the being in force” applies to this group.
A Constitution Bench determined in Poppatlal Shah v. The State of Madras (1953) that the phrase “sale of goods” is a composite statement made up of several components or ingredients. The exchange of money or the promise to exchange money, the delivery of goods, and the actual transfer of title are the components of a contract of sale. However, until the buyer becomes the legal owner of the goods, the sale has not been completed.
Subject matter of a contract
Existing or future goods
As per Section 6, the following types of existing or future goods form a part of the subject matter of the contract.
The goods may be existing or whose possession will happen in the future.
The goods whose acquisition is dependent on a contingency.
Where there is a present sale of future goods.
Goods perishing before making a contract
Only specific goods are covered under Section 7. It states that the contract is void if the goods have expired at the time of the contract without the seller’s knowledge. This Section is based on the principle that a contract is void if both parties are in error regarding a fact that is material to it.
The Section further states that the contract is void if the products have been sufficiently damaged that they no longer match the contract’s description without the seller’s knowledge. The seller’s knowledge is crucial in this situation.
Goods perishing before sale but after an agreement to sell
Section 8 deals with the case where the goods perish, etc., after the agreement to sell is made and before the risk passes to the buyer. It applies only to specific goods.
What are the conditions and warranties
Sections 14 to 17 of the Sale of Goods Act of 1930 deal with implied conditions and warranties.
Implied conditions
Implied conditions as to title
According to Section 14(a), in every contract of sale, unless the circumstances of the contract are such as to show a different intention, there is an implied condition on the part of the seller that, in the case of a sale, he has a right to sell the goods.
The fundamental yet crucial implied terms on the part of the seller are as follows in any contract of sale:
First off, he is legally authorised to sell the goods.
Second, if there is a sale agreement, he will have the right to sell the products when the contract is fulfilled.
As a result, the buyer has the right to reject the products if the seller does not have the title to sell them. He has the right to receive his entire purchase price back.
The case of Rowland v. Divall (1923) observed that if the seller has no title and the buyer has to give up the goods to the real owner, he is entitled to a return of the price.
Implied condition in sales by description
Section 15 of the Act states that there is an implied condition that the products meet the description in a sale of goods by description. There is a condition that the goods shall meet the description. It is a fundamental requirement of the contract, and if it is breached, the buyer is entitled to reject the goods regardless of whether they can be inspected.
Implied condition as to the quality of fitness
Section 16 lays down exceptions to the rule of caveat emptor. These are as follows:
Implied condition as to the quality or fitness [Section 16(a)]
The following are the essentials of this condition as mentioned in sub-section (1):
The buyer makes known to the seller the particular purpose for which the goods are required.
The buyer relies on the seller’s skill or judgement.
The goods are of a description dealt in by the seller, whether he be the manufacturer or not.
Implied condition as to merchantables.
The second exception, as stated in sub-section (2), is when the goods are purchased by description from a seller, whether or not he is the manufacturer, who deals in goods of that description. There is an implied condition that the goods must be of merchantable quality in such circumstances.
Implied condition on sale by sample
When there is an express or implied clause in the contract to that effect, Section 17 considers the sale to be by sample. The seller expressly assures that the goods sold on a sample sale should match the description of a small parcel approved at the time of the transaction.
Implied warranties
Implied warranty of quiet possession
As per Section 14(b), every contract of sale contains an implied warranty that the buyer will have and that they shall enjoy quiet possession of the goods unless the conditions of the contract indicate a different condition. The seller is responsible for compensating the buyer for any damages if this warranty is breached.
Implied warranty that goods are free from encumbrances
Section 14(c) states that there is an implied warranty from the seller that the goods are unencumbered by any charge or encumbrance. The seller is responsible for compensating the buyer for damages if it is later discovered that the goods are subject to a charge in the favour of a third party.
Expressed conditions and warranties
A provision in a legal agreement that stipulates that something must be done or exist is how the term is defined in the dictionary. The term “expressed conditions” refers to clauses that both parties agree to include in the contract and that are necessary for it to work. Those warranties that are included in the contract and are typically accepted by both parties are referred to as “expressed warranties.”
Effects of the contract
Transfer of property between seller and buyer
Transfer of property in the sale of specific or ascertained goods
In cases where the goods are specific and ascertained as stated in Section 18, Sections 19 to 22 govern their transfer. The following is explained as follows:
Property passes when intended to pass
According to Section 19 of the Act, the property only becomes transferable when both parties to a contract intend it to. Whether that stage has been reached in each case depends on the creation of a contact. Regard must be given to the contract’s terms, the parties’ behaviour, and the case’s circumstances in order to determine the parties’ intentions.
Specific goods in a deliverable state
According to Section 20, in the event of an unconditional contract of sale for specific commodities in a deliverable state, the property in the goods passes to the buyer at the period designated by the parties. When an unconditional contract of sale for “particular things” in a “deliverable state” is made, the property in the goods passes to the buyer at the time the contract is made, according to Section 20, which also contains the first rule for determining the parties’ intention.
Specific goods to be put into a deliverable state
Section 21 states that it is irrelevant if the price payment or the time of delivery of the goods, or both, is delayed where there is an unconditional contract for the sale of specific goods in a deliverable form. The property in the goods goes to the buyer at the time the contract is made.
Specific goods are in a deliverable state but the seller has to do something to ascertain the price
Section 22 states that when there is a contract for the sale of specific goods in a deliverable condition but the seller is required to weigh, measure, test, or carry out another action with regard to the goods in order to determine the price, the property does not transfer until the seller carries out the required action and notifies the buyer of it.
The Supreme Court outlined the structure of the provisions relating to the transfer of title of goods in the case of Contship Container Lines Ltd. v. D.K. Lall (2010). According to Section 19, in a contract of sale of specific or ascertained goods, the property in them is transferred to the buyer at the time specified in the contract by the parties, and for the purpose of determining the parties’ intention, consideration must be given to the contract’s terms, the parties’ behaviour, and the circumstances of the case. The rules for determining the parties’ intentions for the moment at which the property is to pass to the buyer are set forth in Sections 20 to 24 of the aforementioned Act.
Transfer of property in the sale of ascertained goods and appropriation
According to Section 23 of the Act, when goods of that description are unconditionally appropriate to the contract, either by the seller with the assent of the buyer or by the buyer with the assent of the seller, the property in the goods passes to the buyer. This applies when the contract is for the sale of unascertained goods or future goods by description. Additionally, if the seller does not reserve the right to dispose of the goods when delivering them to the buyer, a career, or another bailee for transmission to the buyer, he is believed to have unconditionally appropriated the items to the contract.
The Supreme Court in the case of Arihant Udhyog v. the State of Rajasthan (2017) observed that it is evident from a joint reading of Sections 23 and 24 that title to goods only transfers from the seller to the buyer upon a sale of those things. The purpose of the parties with respect to the conditions of the contract must be determined in order to determine when such a sale fructifies and the property passes. The property in goods passes when they are in a deliverable state and there is an unconditional contract for the sale of certain things, unless it is clear from the terms of the contract that there is no such purpose.
Transfer of title
“Nemo dat quod non habet,” a Latin maxim, states that no one can give what they do not have. The underlying idea behind the transfer of title is this. These rules regarding the transfer of title are outlined in Sections 27 – 30 of the Sale of Goods Act of 1930. Let us have a look at it in detail.
Sale by the person, not the owner
As a general rule, no man can sell goods or give a good title to them unless he is the owner, or someone has his authority or consent, i.e., an agent. The rule is the same, although the sale is accompanied by a transfer of a bill of lading, delivery order, warrant, or similar documents.
The sale by a person who is not the owner is covered under Section 27. Consider a sales contract where the seller –
Is not the rightful owner of the goods.
Does not have the owner’s permission to sell the products.
Has not received permission from the owner to act as his agent in selling the items
In these situations, assuming the owner’s actions disallow the seller’s authorization to sell, the buyer does not obtain a superior title to the goods than the seller did.
Exceptions to Section 27 of the Sale of Goods Act, 1930
The following are the exceptions to the rule that no seller of goods gives to the buyer thereof a better title than his own, namely, –
Sale by a mercantile agent (Section 27)
Consider a mercantile agent who, with the owner’s permission, is in possession of the goods or a document proving ownership of the items. When functioning as a mercantile agent in the regular course of business, such an agent is permitted to sell the products. If the buyer acts in good faith and has no cause to suspect that the seller has the legal authority to sell the items, the sale shall be deemed valid. In this situation, the transfer of title is legitimate.
Sale by one of the joint owners (Section 28)
Goods are usually bought under joint ownership. The goods are frequently held in the possession of one of these joint owners with their consent. If this person, who is the only owner of the goods, sells them, the buyer becomes the new owner of the goods’ property. As long as the buyer acts in good faith and has no grounds to suspect that the seller has the authority to sell the goods, this is permissible.
Section 28 lays down three conditions for validating a sale by one of the co-owner. These are as follows:
He must be in sole possession by permission of his co-owners.
The purchaser acts in good faith, i.e., with honesty.
The purchaser had no notice at the time of the contract of sale that the seller had no authority to sell.
Sale by a person in possession under a voidable contract (Section 29)
Take into account a person who obtains possession of specific goods through a contract that can be cancelled owing to pressure, deception, fraud, or undue influence. The buyer obtains a good title to the goods if this individual sells them before the original owner of the goods terminates the contract. This is covered under Section 29 of the Act.
Sale by a person who has already sold the goods but continues to have possession [Section 30 (1)]
As per Section 30(1), the following conditions enable the seller to pass a good title:
The goods or the documents proving ownership of the goods must remain in the seller’s possession. After the buyer receives the goods, possession of them as a hirer or bailee is not acceptable.
Either the buyer received the goods or received the title documents, whichever came first. A simple sale, commitment, or other disposition arrangement won’t cut it.
Good faith and the second buyer’s lack of knowledge of the first sale.
Sale by buyer obtaining possession before the property in the goods has vested in him [Section 30 (2)]
Consider a buyer who, with the seller’s consent, takes possession of the goods before the property in them is transferred to him. He is free to dispose of the goods by selling, pledging, or giving them away.
The second buyer acquires a fair title to the goods if he accepts delivery of them in good faith without being made aware of the lien or any other claim of the first seller.
A hire-purchase agreement, which gives the beneficiary personal possession of the goods and the option to buy them unless a sale is agreed upon, is an exception to this norm.
Performance of the contract
Seller
Rights of the seller under the Sale of Goods Act, 1930
To reserve the right to dispose of the goods until certain conditions are met in accordance with Section 25(1).
To consider a sale on approval to be completed when the buyer conveys his acceptance, performs an act adopting the sale, or retains the goods after the stated date (or a reasonable amount of time) without providing notice of rejection. (Section 24)
To only deliver the goods upon request from the buyer. (Section 35)
To provide the goods in instalments when agreed upon. [Section 39(1)]
To assert a lien and maintain ownership of the items until the purchase price is paid [Section 47(1)]
Until the price is paid, the goods may be stopped in transit and returned to the owner [Sections 49(2) and 50].
To resell the goods in certain conditions. (Section 54)
Keeping the goods from being delivered until the buyer acquires ownership. [Section 46(2)]
When ownership of the goods has been transferred to the buyer or when the price is due on a specific date under the terms of the contract and the buyer does not make the payment, the seller may bring a price claim against the buyer. [Section 55]
Duties of the seller under the Sale of Goods Act, 1930
To make the necessary arrangements for the buyer to receive ownership of the goods.
Determining and aligning the goods to the sale contract.
To transfer the buyer’s legal and complete ownership of the goods.
To fulfil the contract’s requirements for the delivery of the goods. (Section 31)
To guarantee that the provided goods adhere to any implied or stated conditions or warranties.
To prepare the goods for delivery and deliver them as and when the buyer requests. (Section 35)
The seller must fulfil the obligation to deliver the items on time, or at least by the agreed-upon hour and reasonable time. [Sections 36(2) and (4)]
To pay for all costs associated with and related to making a delivery, up until the point at which the goods are placed in a deliverable state. [Section 36(5)]
To provide the goods in the predetermined quantity. [Section 37(1)]
The seller must ensure that only when the buyer requests it, deliver the goods in phases. [Section 38(1)]
The seller must make insurance arrangements for the goods while they are in the carrier’s care or transfer. [Section 39(2)]
To promptly notify the customer when the goods are being shipped by sea so that he can arrange for insurance [Section 39(3)]
Buyer
Rights of the buyer under the Sale of Goods Act, 1930
To receive the items in accordance with the contract. (Sections 31 & 32)
Rejecting the goods when they don’t match the contract’s specifications for description, quality, or quantity. (Section 37)
When goods are given in instalments without a written agreement to that effect, the contract may be terminated. [Section 38(1)]
The seller must inform the buyer when the goods are being shipped by sea so that the buyer can make insurance arrangements. [Section 39(3)]
To be given a fair chance to inspect the goods and determine whether they are in compliance with the contract. (Section 41)
To file a lawsuit against the seller if they don’t deliver the goods in order to get their money back.
If the seller wrongfully fails or declines to deliver the goods to the customer, the buyer has the right to sue the seller for damages. (Section 57)
To bring a specific performance claim against the seller.
To file a claim against the seller for damages for failing to uphold a warranty or a situation that is deemed to be a violation of a warranty (Section 59)
To file a claim against the seller for damages for a potential violation of the contract (Section 60)
When a seller breaches a contract and must refund the customer’s money, the buyer may sue the seller for interest (Section 61)
Duties of the buyer under the Sale of Goods Act, 1930
Accepting the delivery of the goods when the seller is willing to fulfil their end of the bargain. (Section 31)
To make the required payment in order to obtain the goods.
To submit a delivery request for the goods. (Section 35)
Should insist on getting the goods delivered at a fair time. [Section 36(4)]
Accepting instalment deliveries of the items and paying for them in accordance with the arrangement. [Section 38(2)]
The buyer should accept the risk of deterioration during transit when the goods are to be delivered somewhere other than the location where they were purchased (Section 40)
To notify the seller if the purchaser declines or rejects the products. (Section 43)
After the seller offers delivery, the buyer must accept delivery of the goods in a timely manner (Section 44)
To fulfil the contract’s requirements by paying the amount at the point at which the buyer acquires ownership of the goods. (Section 55)
To cover losses for failing to accept the goods. (Section 56)
Goods were confirmed to have been received in complete and satisfactory functioning condition in State Bank of Mysore v. Machado Computer Services (2009). As a result, it was determined that the plaintiff had exercised his entitlement under Section 41 of the Sale of Goods Act and was considered to have accepted the goods upon making the notification of acceptance to the supplier as specified in the delivery challan. According to Section 42 of the Act, both the quality and quantity of the supplied goods were accepted. Further, the description of the goods as to the make or brand is also deemed to have been accepted upon such acceptance following examination of the goods specifically accepted, and no defect could be stated to be in respect of such brand in accordance with the second proviso to Section 16 of the Act. Therefore, the supplier’s obligation under the sales contract was fulfilled. The goods were accepted by the plaintiff. The plaintiff was therefore obligated to pay for the goods after accepting them in accordance with the injunction granted by Sections 31 and 32 of the Act.
Rights of an unpaid seller under the Sale of Goods Act, 1930
According to Section 45 of the Act of 1930, a seller of goods is considered “unpaid” if he has not received the whole of the price, as well as if the buyer has provided him with a bill for the amount due but the bill is not honoured. The phrase “the whole of the price” refers to the total sum agreed upon with respect to the entire contract, and in the event that the contract is severable, the price of the severable component is divided. In each instance, it is an issue of fact as to whether it was given as an unconditional or conditional payment. Partially unpaid sellers are on par with fully unpaid sellers.
The unpaid seller, by the implications of Section 46, has the following rights:
Right to lien
The lien of an unpaid seller is a right to retain possession of the goods until tender or payment of the price. The unpaid seller is entitled to a lien only in three situations, as mentioned in Section 47 of the Act. These are as follows:
There is no stipulation as to credit. The seller is liable to deliver the goods to the buyer when demanded by the buyer but he has no right to have possession of the goods till he pays the price.
A sale on credit operates as a waiver of the lien during the currency of the credit,
If the buyer becomes insolvent before the price is paid, and the seller is in possession of the goods, he is entitled to retain possession even if the goods are sold on credit and the term of credit has not expired.
As was already noted, a lien depends on the actual ownership of goods. When the possession is removed from the seller, the lien disappears along with it, as noted in Section 49. In the following situations, an unpaid seller of goods loses his lien thereon:
When he transfers ownership of the goods without reserving it to a carrier or other bailee with the intention of delivering it to the buyer.
When the buyer lawfully obtains the possession of the goods.
When the seller expressly or impliedly waives his lien rights.
Rights of stoppage of goods in transit
This right entails stopping the products while they are in a carrier’s control or lodged at any point during transmission to the buyer, regaining ownership of them, and holding onto them until the price is tendered or paid. To exercise the right, the seller must be unpaid, the buyer must be insolvent, the seller must have parted with possession of the goods, and the buyer must not have acquired them.
Additionally, the delinquent seller may use both of his stoppage-in-transit rights:
By assuming actual possession of the goods.
By providing a statement to the seller identifying who is in possession of the goods.
Such instructions may be delivered to the person who actually owns the goods. In the latter scenario, the contract must be reached well in advance to allow the superior to contact his agent or servant in time to deliver the goods to the consumer.
He could be held accountable for the conversion if he offers the goods to the buyer while making an error. The seller must put up with the redelivery expenses.
Suit for breach of contract
Suit for price by the seller against the buyer
Sub-section (1) of Section 55 deals with a contract where the property in the goods has passed irrespective of delivery. This will involve two types of cases:
Suit for the price of goods sold and delivered.
Suit for the price of goods bargained and sold.
The contingent situations contemplated by sub-section (2) are as follows:
Non-delivery
Non-appropriation of the goods to the contract
Property in the goods that are continuing to vest in the seller.
Suit for damages by the seller against the buyer for non-acceptance of the goods
Section 56 says that where the buyer wrongfully neglects or refuses to accept and pay for the goods, the seller may sue him for damages for non-acceptance of the goods.
The Indian Contract Act of 1872’s provisions Section 73 and Section 74 serve as the foundation for calculating the damages. In accordance with Section 73 of the Indian Contract Act, when a contract is broken, the party who suffers as a result of the breach is entitled to receive compensation for any loss suffered by him as a result, which naturally results from the breach in the ordinary course of events or which the parties knew would likely occur when they entered into the contract.
The methods that were available for resolving the discomfort brought on by the contract’s non-performance must also be taken into consideration when calculating the loss or damage brought on by a breach of contract.
The day on which the contract should have been fulfilled by delivery and acceptance as specified by the agreement, or, in the absence of a time frame, at the moment of non-performance, is the date at which the market price is to be determined.
Suit for damages by the buyer against the seller for non-delivery of the goods
The buyer may file a lawsuit against the seller for non-delivery damages if the seller willfully neglects or declines to deliver the goods to the buyer under Section 57. The buyer has all the rights of an owner against individuals who act on the property in a way that violates his rights once it has passed, provided that he is entitled to instant possession. Therefore, if the seller wrongfully resells them, the buyer may bring a lawsuit against both the seller and the second buyer. However, the rights against the latter may be limited by the provisions of sections 30 and 54.
The seller cannot be accused of ignoring or refusing to deliver the goods if the buyer has not made payment for earlier deliveries within 15 days of the date of delivery and the seller withholds delivery. The seller would have the right to demonstrate that it would be impossible for him to fulfil his end of the bargain.
Suit for specific performance by the buyer against the seller
Under Section 58 of the Act, in any suit for breach of contract to deliver specific or ascertained goods, the court may, if it thinks fit, on the application of the plaintiff, by its decree directs that the contract shall be performed specifically, without giving the defendant the option of keeping the goods in exchange for payment of damages. This is subject to the provisions of Chapter II of the Specific Relief Act, of 1877. The plaintiff may file an application at any time prior to the decree, and the court may grant the decree unconditionally or with such terms and conditions as damages, payment of the purchase price, or other matters as it may deem just. This Section is the only one in this Act that deals with the equitable right to a specific performance.
Suit by the buyer against the seller for breach of warranty
Section 59 of the Act deals with four remedies for the breach of warranty. These are as follows:
If the loss caused by the warranty violation is less than the purchase price, the buyer may request a reduction in the price. The rule of a price reduction or extinction is not a set-off and only applies to claims that are cross-subject to the same contract.
If the loss matches the price, the buyer may refuse to pay it at all.
The buyer may refuse to pay the price as well as claim the excess if the loss exceeds the cost.
In each of these scenarios, he has the option of paying the amount or suing the seller for warranty breach damages. The buyer has three options for pursuing his claim: through litigation, set-off, or counterclaim.
A breach of warranty does not give the buyer the right to return the goods, and his only options are those listed in Section 59, which are to hold the seller liable for the breach of the warranty by reducing or eliminating the price or suing the seller for damages as a result. According to the definition of ‘warranty’ provided in Section 12(3), only the buyer has the right to file a claim for damages when the warranty is breached.
This Section outlines the procedures a buyer who, in either scenario, has a claim for damages may use to pursue it. It does not address situations in which a fraudulent misrepresentation may allow the buyer to void the contract or situations in which, according to the contract’s specific terms, the buyer may return the goods in the event of a warranty breach.
Suit for damages by seller or buyer for anticipatory breach of contract
Section 60 outlines the procedure a buyer who, in either scenario, has a claim for damages may use to pursue it. It does not address situations in which a fraudulent misrepresentation may allow the buyer to void the contract or situations in which, according to the contract’s specific terms, the buyer may return the goods in the event of a warranty breach.
Very frequently, situations may emerge where the promisor declares that he will not carry out his share of the performance when the time for performance approaches, even when the performance is to take place in the future. Not doing an act while it is not yet contractually required is not a breach. For this reason, this Section allows the promisee the choice of treating the contract as cancelled in advance or waiting until the day of performance to treat it as subsisting.
Interest by way of damages and special damages
The right to seek interest, extra damages, or money paid in the absence of consideration is preserved under Section 61. The Interest Act of 1839 allowed interest to be awarded in the following circumstances at the going rate:
From the due date specified in the contract, on all debits or certain sums payable at a specific time under a written instrument.
In other situations, interest is charged beginning on the date the written demand is made.
In the case of M/s M.K.M. Moosa Bhai Amin, Kota v. Rajasthan Textile Mills, Bhawanimandi (1974), the plaintiff sued for the cost of the delivered products as well as interest on the unpaid cost. The District Judge rejected the interest claim on the grounds that there was no contract to pay interest if the cost of the supplied items was not paid in full. The plaintiff argued that under Section 61(2) of the Sale of Goods Act, 1930, the plaintiff was entitled to a reasonable interest even in the absence of the contract. The supply had been made up until September 18, 1962, and under normal circumstances, the defendant should have paid the cost of the goods within a reasonable amount of time after delivery. However, the payment was over a year late, forcing the plaintiff to file a lawsuit to recover the money. According to a ruling, in these situations, the lower courts ought to have erred on the side of the plaintiff and applied Section 61(2) of the Sale of Goods Act to grant interest on the amount of the purchase price of the goods. The Rajasthan High Court permitted interest at 6% annually, which was regarded as a reasonable rate of interest.
The Supreme Court in the case of Marwar Tent Factory v. Union of India (1989) observed that an award of interest to a seller on an amount of price not paid by the buyer within a reasonable time cannot be denied merely because in the notice served under Section 80 of the Code of Civil Procedure (CPC), the seller had not claimed interest. The Court held that, on the facts, the seller is entitled to a decree of interest at a rate of 6 percent per annum on the unpaid price from the date of delivery of goods.
The United Nations Convention on Contracts for the International Sale of Goods, 1980
The 11th April 1980 adoption of the United Nations Convention on Contracts for the International Sale of Goods (CISG), commonly known as the Vienna Convention, established a legal text that states in Article 1 that it applies to contracts for the sale of goods between parties whose places of business are in different States (a) when the States are contracting States; or (b) when the principles of private international law require the application of the law of a contracting State.
India has neither signed nor ratified the Convention on the International Sale of Goods, despite a number of other nations have done so. But when handling cases involving parties from two separate countries, the Indian Courts occasionally refer to the Convention.
The two Indian Acts were created many years ago, and as a result, they do not reflect the situations of the present. The clauses in these two Acts are outdated and irreverent, and they do not address the requirements of contemporary sales and contacts that involve a variety of sophisticated aspects. Therefore, the Convention on International Sale of Commodities should be ratified for the reason that it was just established and would assist India to meet the requirements of contemporary contracts and sales of goods. A more uniform and effective way to conduct international sales of commodities would be made possible by the convention, which would also benefit India. The CISG would be very beneficial in addressing the shortcomings and loopholes in the domestic legal framework. This universal law agreement will address elements like cross-border contracts that are not covered by the domestic Sale of Goods Act. Several clauses in the Convention are very helpful in day-to-day business operations.
Conclusion
The article has covered all the important topics and provisions along with case laws. As stated above, the author would like to conclude by stating that it is high time India updated itself by following global standards. The Sale of Goods Act is pre-independence legislation and is mostly inconsistent with today’s trade regimes. If India upgrades the laws as per the United Nations Convention on Contracts for the International Sale of Goods 1980, it will be easier and better to deal with private international laws as well as if there is a conflict of laws, then also globally used legislation would be better to be used, considering exports and imports. There have been very few cases of the Sale of Goods Act in recent years. One of the reasons may be that the provisions are kind of outdated to tackle the new era problems.
Frequently Asked Question (FAQs)
What are the essential things covered under the Sale of Goods Act, 1930?
It is crucial to comprehend the major terminology used in the Sale of Goods Act in order to fully comprehend the Act. The two parties (the buyer and the seller), the mercantile agent, the goods, the price, and the transfer of general property are among them. The Act further deals with the formation and the formalities of a contract. It also covers the suits for breach of contract of sales by both buyer and seller.
What happens if an agreement to sell or a contract of sale is broken?
In essence, when one party fails to complete the sale, the other may claim damages for breach of contract. In the event of a default by the seller, he is required to reimburse the buyer for any additional, justifiable costs. The opposite party might also try to force the wrongdoer to carry out the agreement’s terms. Getting the sale agreement is generally advised from the perspective of the buyer.
What kind of risk is associated with the sale of goods in India?
The owner of the goods bears the risk of loss or damage to goods, according to the common rule in use in India. Res perit domino, a Latin maxim, means the object is lost to the owner of the property. This theory is applicable when selling movable property. According to Section 26 of the Sale of Goods Act of 1930, ownership of the goods remains with the owner if it has not been done so already. The products, however, are at the risk of the buyer if the property has been transferred to them. If the parties to the contract have not agreed to any other explicit provision referencing this in their contract, then this clause will apply. No matter what, this rule is relevant.
References
LexisNexis’s The Sale of Goods Act by Pollock & Mulla – 10th Edition 2012
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This article is written by Amit Garg of National University of Study and Research in Law, Ranchi and Pragya Agrahari of Amity Law School, Lucknow. The author through this article brings out the difference between kidnapping and abduction under the Indian Penal Code.
It has been published by Rachit Garg.
Table of Contents
Introduction
We often see in movies or serials, the criminal forcefully taking away any person to another place in order to extract a ransom from his/her family or beloved. We usually call it a ‘kidnapping.’ But we are less aware of the term ‘abduction.’ Abduction is similar to kidnapping but it needs certain purposes to be accomplished after taking away in order to constitute the crime. Whereas in kidnapping, just doing the act of taking away constitutes a crime.
According to NCRB Crime in India Report 2021, India reported 1,01,707 cases of kidnapping and abduction. It shows a halt of 19.9% in cases as compared to cases reported in 2020. Of those kidnapped and abducted, 17,605 were male, 86,543 were female and one was transgender. The various reasons for kidnapping and abduction, according to statistics are-
Ransom
Forced marriage
Murder
Procuration of minor girls
Purpose of Begging
Exportation of girls to foreign countries
The leading reason for this crime is to compel a girl for marriage which accounts around one-fourth of all the cases.
The Indian Penal Code, 1860 defines both the offences of kidnapping and abduction in Section 359 and Section 362 respectively. They are categorised under the offences affecting the human body (Chapter XVI of IPC, dealing with offences affecting the human body).
Overview of the difference between Abduction and Kidnapping
Grounds of differentiation
Kidnapping
Abduction
Section
Section 359 defines the offence of kidnapping.
Section 362 defines the offence of abduction.
Meaning
Kidnapping refers to taking away a minor or person of unsound mind from its legal guardianship or taking away any person beyond the limits of India.
Abduction refers to compelling or inducing any person by using force or through any deceitful means, to take him/her from one place to another.
Nature of offence
It is not a continuing offence. It is completed soon at the moment a person is separated from lawful guardianship.
It is a continuing offence. It continues till the person is removed from one place to another.
It involves minors, i.e., girls upto the age of 18 years or boys upto the age of 16 years, or persons of unsound mind and a lawful guardian.
It can take place in reference to a person of any age.
Means used
Means used are immaterial.
Force, compulsion or deceitful means should be involved.
Nature of consent
In the case of “kidnapping from lawful guardianship”, the consent of a lawful guardian is relevant to decide the commission of the offence. But in the case of “kidnapping from India”, it must be shown that it was done without the consent of the person or the person legally authorised to give consent on that person’s behalf.
The consent of the person is induced by force or compulsion or means of deceit.
Intention
Intention of the person kidnapping is immaterial.
Intention to commit an offence is essential.
Type of offence
It is a substantive offence. It means merely the act of taking away constitutes kidnapping.
It is not a substantive offence. It constitutes an offence when it was done with the intention to commit other offences.
Punishment
Section 363 prescribes punishment for kidnapping which is imprisonment that may extend to 7 years and a fine.
Mere abduction is not punishable unless done with intent to commit other offences as provided in Sections 364 to 369.
Illustration
A takes away B, a girl of 16 years of age, out of her lawful guardianship without the consent of the guardians. A has committed kidnapping.
A induces B by force to go from one place to another place in order to compel her for marriage. A has committed abduction.
Kidnapping
The word ‘kidnapping’ has come from two words, ‘kid’, which means child and ‘napping’, which means to steal. Thus, it literally means stealing a child.
Section 359 of the Indian Penal Code classifies kidnapping into two categories:
Kidnapping from India
Kidnapping from lawful guardianship
In India, the offence of kidnapping is not confined to only the stealing of children. It has given wider scope to include the act of carrying away a human being without his/her consent or without legal guardians’ consent, in the case of males under 16 years or females under 18 years.
In the case of Thakorlal D. Vadgama v. State of Gujarat (1973), where the accused, Thakori Lal was held liable for kidnapping under Section 363. He kidnapped a minor girl, Mohini from the lawful guardianship of her father by inducing her to leave her father’s place and by encouraging her that he would give her shelter. The Supreme Court in this case held that mere circumstances that his action does not cause her to immediately leave her parental home would not be a defence for the accused to absolve him from the offence of kidnapping.
Types of Kidnapping
Kidnapping from India
Section 360 provides for kidnapping from India. It states, “ Whoever conveys any person beyond the limits of India without the consent of that person, or of some person legally authorised to consent on behalf of that person, is said to kidnap that person from India.”
The necessary elements to constitute this offence are-
Conveying the person beyond the limits of India,
Without the consent of such person or person legally authorised to give consent on behalf of that person.
The offence under this section would not be complete until the person actually reaches not only a foreign territory but his destination as well. Unlike Section 361, this offence is not restricted to minors or persons of unsound mind. It may be committed against any person, male or female, major or minor, irrespective of nationality and age.
Kidnapping from lawful guardianship
Section 361 provides for kidnapping from lawful guardianship. It states, “Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of a such guardian, is said to kidnap such minor or person from lawful guardianship.”
The necessary elements to constitute this offence are-
Taking or enticing a minor or unsound person,
Such minor should be under 16 years of age in case of male or under 18 years of age in case of female,
Taking or enticing out of the keeping of lawful guardian,
Without the consent of the legal guardian.
The offence under this section is complete as soon as a minor or person of unsound mind is actually taken away from legal guardianship. Moreover, the consent of minors in respect of this offence is completely immaterial. One exception provided under this section is that if a person in a good faith believes himself to be a father of an illegitimate child or believes himself to be entitled to the custody of such child, takes away the child out of the custody of the lawful guardianship without their consent, not for any unlawful or immoral purposes, would be exempted from the liability under this section.
Kidnapping for begging (Section 363A)
Section 363A was inserted by the Indian Penal Code (Amendment) Act, 1959 and came into force on 15 January 1960. This section further extends the scope of Section 363 of the Indian Penal Code, which provides punishment for “Kidnapping or maiming a minor for the purposes of begging”. It provides severe punishment for such offence, which may extend to 10 years imprisonment of either description and a fine for kidnapping a minor for purposes of begging and life imprisonment for maiming a minor for purposes of begging.
Moreover, as per Section 86 of the Juvenile Justice Act (Care and Protection of Children), 2015, the offence of kidnapping becomes non-bailable whereas it is bailable under the Indian Penal Code. Section 84 of the Act also removes the upper limit of 16 years on the age of male for the offence of kidnapping and applies to any person, irrespective of gender, under 18 years of age who is kidnapped from a lawful guardian.
In the case of Kashir Ahmed v. State of Himachal Pradesh (2018), the accused of kidnapping has been granted bail. According to the prosecution, the accused kidnapped a 16-year-old girl on the pretext of marriage and took her to Saharanpur, where he allegedly raped her for three days. But after taking evidence and examination of the victim, the court concluded that the victim was on friendly terms with the accused and has gone with the accused of her volition. Hence, the court allowed bail to the accused after furnishing bonds and sureties.
It may be wondered by the common people as to how something heinous like kidnapping has been made bailable. Supreme Court’s observation in the case of Sanjay Chandra v. CBI (2011), with respect to bail, can be used to answer such a false notion-
“ The object of bail is to secure the appearance of the accused person at his trial by a reasonable amount of bail. The object of bail is neither punitive nor preventative.”
Is kidnapping cognizable or non-cognizable?
Section 363 is cognizable under the Indian Penal Code, that is, police officers may arrest an individual without a warrant issued by the Magistrate. After the arrest of the accused, he/she should be presented before the Magistrate within 24 hours excluding the time for the journey in taking the accused to the office of the Magistrate. The offence of kidnapping is triable by the Magistrate of 1st class.
Is kidnapping compoundable or not?
Section 363 of the Indian Penal Code is non-compoundable in nature, that is, the offence of kidnapping cannot be compromised between the parties. However, in some special cases, the Supreme Court may have the power to direct the compoundability of non-compoundable offences.
Moreover, in the case of Ram Pujan v. State of U.P (1973), the High Court in view of compromise between the parties in non-compoundable offences has reduced the amount of imprisonment. Then, the case came to the Supreme Court, where the apex court held that: “The major offence for which the appellant is convicted is no doubt non-compoundable, but the fact of compromise can be taken into account in determining the quantum of sentence.”
Abduction
Abduction means taking away any person by using deceitful tricks for the purpose of committing some offence.
The necessary elements to constitute this offence are-
Use of compelling force or use of any deceitful means,
Inducing the person from one place to another,
With the intention to commit any offence.
The force or compulsion is necessary to constitute the crime of abduction. It means if a girl voluntarily goes out with any person without any force or compulsion, that person will not be tried for the offence of abduction.
The use of ‘deceitful means’ will not only cover fraud or misrepresentation but also the act of taking away someone by inducing him/her on a pretext.
In the case of Kavita Chandrakant Lakhani v. State of Maharashtra (2018), it was well established that the mere abduction of a woman is not sufficient to attract the offence unless it was proved that the accused abducted the woman with an intention to compel her marriage or to force or seduce her to illicit intercourse with another person.
Difference between abduction and kidnapping
Age of the Aggrieved Person
In case of Kidnapping, the age of the aggrieved person as according to Section 361 of the IPC is 16 in case of males and 18 in case of females (as seen in the case of State of Haryana v Raja Ram).
In case of Abduction, there is no such thing as age. Any person either by force has compelled or induced any other person to go from any place irrespective of the age, shall be booked with abduction (as in the case of Bahadur Ali v King Emperor).
Removal from Lawful Guardianship
Here the lawful guardianship shall include any person who has been authorized by law to take care of the person who has yet not attained the age of majority. A lawful guardian may be the parents, in-laws, etc.
As Kidnapping takes into consideration the age of the person being kidnapped, the crime involves the taking away from the guardianship of a lawful person who has been authorized by law to take care of such minor.
Since Abduction considers only the person who has been abducted, lawful guardianship does not come into the picture.
Means
Kidnapping involves taking away or enticement by the kidnapper. The means used for such purpose is irrelevant.
The means used in case of abduction may be force, compulsion, or deceitful means.
Consent
In case of Kidnapping, the consent of the person kidnapped is immaterial as the person being kidnapped is a minor and according to law, such person is unable to provide for free consent. The consent obtained from the person shall be a tainted one (as seen in the case of State of Haryana v Raja Ram).
In case of Abduction, the consent of the person abducted condones the accused from the offence so charged against him/her.
The intention of the Accused
In case of Kidnapping, the intention of the person kidnapping a minor is immaterial so as to the crime committed by the accused (as in the case of Queen v Prince [3]).
In case of Abduction, the intention of the person abducting is a very important factor in determining the guilt of the accused person.
Punishment
Kidnapping is a substantive offence. Section 363 of the IPC provides for a punishment for kidnapping for a descriptive term which may extend to seven years and he/she shall also be liable for fine.
Some specific punishments as provided for kidnapping under the Indian Penal Code are:
Types of Kidnapping
Punishment
Section of IPC
Kidnapping for purpose of begging
10 years + Fine
363A
Kidnapping in order to murder
10 years + Fine
364
Kidnapping for ransom
10 years + Fine
364A
Kidnapping with intent to wrongfully confine a person
7 years + Fine
365
Kidnapping so as to compel a woman to marry
10 years + Fine
366
Kidnapping so as to subject a person to grievous hurt
10 years + Fine
367
Kidnapping a child under 10 years of age in order to steal from a person
7 years + Fine
369
Abduction is only an auxiliary act and is not punishable in itself. Therefore, there is no general punishment for abduction in the Indian Penal Code.
But some specific types of abduction attract the following punishments:
Types of Abduction
Punishment
Section of IPC
Abduction in order to murder
10 years + Fine
364
Abduction with intent to wrongfully confine a person
7 years + Fine
365
Abduction so as to compel a woman to marry
10 years + Fine
366
Abduction so as to subject a person to grievous hurt
10 years + Fine
367
Abducting a child under 10 years of age in order to steal from a person
7 years + Fine
369
Continuity of the Crime
Kidnapping is not a continuing offence. The offence is done as soon as the person accused removes the person from his/her lawful guardianship.
Abduction is a continuing process and it this the person so abducted is removed from one place to another.
References
K.D.Gaur, “Textbook on Indian Penal Code’, Universal Lexis Nexis (7th Edition).
This article is written by Monesh Mehndiratta, a law student at Graphic Era Hill University, Dehradun. The article explains the laws related to Muslim marriage in India along with their important provisions and case laws.
It has been published by Rachit Garg.
Table of Contents
Introduction
Marriage is said to be the union of two people and is seen as the purest and oldest institution in India. The object of marriage for every religion is different. For example, marriage in Hindus is considered to be a ‘dharma’, but every religion places an obligation to get married for some or other reason. Where marriages among Hindus are considered a sacred institution, marriage among Muslims is seen as a contract. Unlike Hindu Law, Mohamedan Law, or Muslim Law is not codified. This leads to chaos and confusion regarding the various ceremonies and authenticity of various things related to marriage, like consent, age, divorce, maintenance, etc. In order to deal with different problems that arose due to the non-codification of Muslim law, the parliament passed various acts. The article explains all these acts and their important provisions. It also describes the nature and essential conditions of a Muslim marriage.
Nature of Muslim marriage
Marriage in Muslim law is known as Nikah. It is an Arabic word which means “union of two people”.Baillie’s Digest defines Muslim marriage as a contract done to legalise sexual relationships and the procreation of children, while on the other hand, in Hedaya (a guide or commentary on Islamic Law), nikah means carnal conjunction in its primitive sense. As said by the Prophet of Islam, marriage is his sunna (practices of the Prophet Muhammad) and his followers must obey his practices and follow them properly.
When we talk about the nature of Muslim marriage, a question that always arises is whether it is a sacrament or a contract. Some jurists opined that marriage in Muslims is a civil contract while others argue that it has a sacrament attached to itself. Thus, while studying the nature of Muslim marriage, three different aspects are taken into consideration. These are:
Legal aspect
Social aspect
Religious aspect
Legal aspect of Muslim marriage
The legal aspect says that among Muslims, marriage is a civil contract because it has similar characteristics to a contract. These are:
Like a contract, there is a proposal i.e., Ijab by one party and acceptance i.e., Qubul by the other party.
In a contract-free consent plays an important role. Similarly, there can be no marriage without the consent of the parties, and such consent must not be obtained through fraud, coercion, force or undue influence.
If a minor is married by their guardians, then the minor has a right to repudiate the marriage on attaining the age of majority, which is the same as the age of puberty in Muslims. This option of puberty is also known as khyar-ul-bulugh. Similarly, a contract entered into by a guardian on behalf of a minor can be set aside or controlled by him on attaining a majority.
The parties to a marriage are allowed to enter into any kind of ante-nuptial or post-nuptial agreement if it is enforceable by law. The only condition is that it must be reasonable and not contrary to their religion.
The terms of marriage in the nikahnama can be altered according to the wishes of the bride and groom, but it must be within the limits of the law.
Like any other marriage, Muslim marriage also has some objectives. These are as follows:
It orders the continuation of domestic life.
Procreation of children.
Care and responsibility for the wife and children.
Perpetuation of the human race.
Attainment of chastity, mutual love, continence, affection and peace.
These objectives indicate that Muslim marriages have a relationship with society and thus have a social aspect attached to them. In the case of Anis Begum v. Mohd. Istafa (1933),CJ Sulaimaan held that Muslim marriage is not only a civil contract because it believes in the union of two people by virtue of affection, love, and a sense of togetherness. He balanced the view by stating that it is both a civil contract and a religious sacrament.
Religious aspect of Muslim marriage
Another view regarding Muslim marriage is that it is a religious sacrament and not a purely civil contract. Some jurists believe that it is an Ibadat, which means a devotional act. The Prophet believes that marriage is essential for every Muslim who is fit and capable of taking responsibility for a wife and children. The reasons that indicate that it is not merely a contract are as follows:
Unlike a civil contract, it is not dependent on future events.
It is done for a limited or specified period, but muta marriage is an exception.
There is no concept of the right to lien in a Muslim marriage, unlike in a civil contract.
The dower, which is given to the wife, is considered a mark of honour and respect.
Thus, it can be said that marriage in Islam is a contract but also regarded as a sacred covenant. The aim is to protect society from foulness and unchastity. Abdul Rahim gave a balanced definition of Muslim marriage. According to him, the institution of Muslim marriage is considered an ibadat or devotional act, and muamlat or dealings among men.
Essentials of Muslim marriage
The following are the essentials of a nikah or Muslim marriage:
Parties must be competent.
All the formalities must be fulfilled properly.
There must be free consent from both parties.
It should be free from any kind of legal disability.
Competency of parties
In order to enter into a nikah, the parties must be:
Major
Sound mind
Muslims
Major
A person is capable of entering into a nikah only when he attains the age of puberty. It is an age when a person is capable of procreating children. According to Hedaya, girls attain puberty at 9 years old while boys attain it at 12 years, but the presumption is that one attains this age at 15 years {Atika Begum v. Muhammad Ibrahim (1912)}. After attaining the age of majority or puberty, the parties are capable of giving their own consent regarding the marriage.
Sound mind
The parties are competent only when they are of sound mind at the time of marriage. An unsound person is not capable of entering into a contract and his consent is not taken into consideration. Thus, an idiot person is not capable of giving his consent and his marriage is void, while the marriage of a lunatic person can be contracted by their guardians at lucid intervals when they are conscious and capable of understanding the formalities and intricacies of marriage.
Religion
Another important element of Muslim marriage is that both parties must be Muslim at the time of marriage. A marriage between a Muslim male and a female of any other religion is regarded as an irregular marriage, while a Muslim female can only marry any Muslim man and no one outside their religion, or else the marriage will be void. The irregularity can be removed from the conversion of females to Islam.
Formalities required in Muslim marriage
The following formalities must be fulfilled in a Muslim marriage:
One party must make a proposal while the other must accept it.
Under Sunni law, the presence of two witnesses is mandatory for a valid marriage. Generally, the two witnesses are males, but in the absence of any male, two females can become witnesses to the marriage. If this formality is not complied with, it will render the marriage irregular. The witnesses must be of sound mind, adults and Muslims. However, in Shia law, no witness is required for a valid marriage.
The parties must sign the nikahnama in the presence of two witnesses.
Dower or Mehr must be given to the wife.
Consent in Muslim marriage
The parties must be capable of giving their consent for the marriage. This consent can either be expressed or implied, but it must not be obtained by means of fraud, force, coercion, or any kind of undue influence. If the consent is obtained on the basis of a mistake of fact, then the marriage is considered invalid, but if it is obtained by fraud, then the marriage is void.
In the case of Mohiuddin v. Khatijabibi (1939), a Shafei girl was contracted to marriage by her father against her will and consent. The Bombay High Court declared the marriage void.
Free from legal disability
A valid Muslim marriage must be free from any kind of disability or restriction. There are 2 types of restrictions on Muslim marriage:
Absolute prohibition
Relative prohibition
Where an absolute prohibition renders the marriage void, a relative prohibition makes it irregular, which can become a valid marriage on the removal of the irregularity.
Absolute prohibition
If the parties to a Muslim marriage are bound by blood relationships or prohibited degrees, then they cannot marry each other. Such marriages are prohibited absolutely, and if done, it renders a marriage void. Absolute prohibition arises from the following relationships:
Consanguinity (Quarabat) – all blood relationships fall under this category and a man is not allowed to marry in his blood relationships. Some examples of such relationships are: his mother or grandmother, his daughter or granddaughter, his niece, etc.
Affinity (Mushaarat) – a marriage within certain close relationships is also prohibited. Example: wife’s mother, daughter, wife of his father, wife of his son, etc.
Fosterage (Riza) – if a child has been breastfed by a woman other than his mother then that woman becomes his foster mother. He cannot marry his foster mother or foster sister. This is absolutely prohibited.
Relative prohibition
Some of the prohibitions in a Muslim marriage are relative, which means that if a marriage is done in contradiction or violation of such prohibitions, then it will be rendered irregular and not void.
The different kinds of relative prohibitions are:
Unlawful conjunction – it means that a man cannot marry two women who are related to each other by consanguinity, affinity or fosterage. Such marriage is prohibited by Muslims. This is done to avoid any kind of confusion about kindred or dual relationships. However, such marriages are irregular in the Sunni but void in the Shia.
Marrying a fifth wife – it is unlawful for a Muslim man to have more than 4 wives and if he marries a fifth woman then, the marriage will be irregular and can be valid only if one of 4 marriages is terminated.
Absence of proper witnesses – witnesses are one of the essentials for a valid marriage in Sunni and if a marriage is contracted in their absence, it renders the marriage irregular. However, the presence of witnesses is not necessary under Shia law.
Difference of religion – a Sunni male can marry a Muslim female of any sect or a kitabia but cannot marry an idolatress or fire-worshipper. Such marriages are irregular in Sunni law and void under Shia law.
Marriage during the iddat period – iddat is the period of seclusion that a wife has to observe if the marriage is terminated. Marrying a woman during her iddat period is prohibited, and if a marriage is contracted, then such a marriage will be irregular in Sunni but void in Shia.
Divorce under Muslim law
Divorce, according to the prophet, is the most unapproved stage of marriage, and he never encouraged it. It can be classified as:
Extrajudicial divorce
Judicial decree of divorce
Extra-judicial divorce is further classified on the basis of who can initiate the divorce. If the husband initiates the divorce, it can either be:
Talaq or,
Talaq is further divided as:
Talaq-ul-Sunnat which is also known as the approved form of talaq. Ahsan and Hasan are two types of talaqs under talaq-ul-Sunnat.
Talaq-ul-biddat which is known as the unapproved form.
Ila (vow of continence) or,
Zihar (injurious assimilation).
If the wife initiates it, it is called talaq-e-tafweez or delegated divorce. If a divorce is mutually initiated by both parties, it can either be:
Khula (redemption) or,
Mubarat (by mutual agreement).
A judicial decree is further divided into two types, namely:
Lian (False charge of adultery).
Fask (cancellation of marriage).
Extra-judicial divorce
There are different types of extra-judicial divorce depending on who can initiate it. These are explained below:
By husband
The husband can dissolve the marriage either by Talaq or Ila or Zihar. Talaq is further divided into Talaq-ul-Biddat and Talaq-ul-Sunnat.
Talaq-ul-Biddat (triple talaq)
This form of talaq is regarded as the most unapproved form. In this form, the husband pronounces the word ‘talaq’ in a single sentence during a tuhr period i.e., the period between two menstruation cycles, with the intention of dissolving the marriage. It becomes irrevocable as soon as the pronouncement is made and the wife has to observe iddat for 3 months if she is menstruating or else 3 lunar months. This form of talaq has been made unconstitutional by the Supreme Court in the case of Shayara Bano v. Union of India (2017).
Talaq-ul-Sunnat
This form of talaq is in accordance with the traditions followed and approved by the prophet. It is further divided into:
Ahasan – the word‘Ahasan’ means most laudable or best. In this form of talaq, the husband pronounces the word ‘talaq’ in a single sentence during a tuhr period and then abstains from sexual intercourse. This form of talaq is revocable during the iddat period, which may either be expressed or implied.
Hasan – In this form, the husband pronounces the word ‘talaq’ in 3 successive tuhr periods and must abstain from sexual intercourse after the first pronouncement. It can be revoked until the third pronouncement but becomes irrevocable after the third pronouncement.
Ila (vow of continence)
When a husband who has attained the age of majority and is of sound mind, swears or vows that he will abstain from sexual intercourse with his wife for 4 continuous months and leaves her to observe iddat, he is said to make ila. The marriage then dissolves after 4 lunar months and 10 days.
Zihar (injurious assimilation)
When a husband compares his wife with his mother or any other female within the prohibited degrees, he is said to have performed zihar, provided that he must be sane and adult. If he agrees to restitution of conjugal rights, he has to perform penance. The penance is:
Free a slave or,
Observe fast for 2 months or,
Feed 60 poor people.
By wife
Talaq-e-Tafweez or delegated divorce, is the only form of extra-judicial divorce which can be initiated by the wife. This power to divorce is delegated to her by her husband either before or after marriage. The conditions under which the wife can initiate this form of talaq must be reasonable and Islamic. Even though it is initiated by the wife, the finality of this talaq lies with the husband. If he refuses, it is deemed as if the divorce never happened.
By mutual consent
Khula (redemption)
The wife, after giving consideration to the husband, can initiate khula. An offer to divorce is made by her and must be accepted by her husband. The only condition is that both must be adults, sane and capable of giving consent. Once the proposal is accepted by the husband, it cannot be revoked. But can be revoked under Shia Law. If the wife fails to pay the consideration amount, the husband can claim it as a creditor, but there will be no effect on the sanctity of the divorce.
Mubarat (by mutual agreement)
It means discharging each other from marriage claims. An offer or proposal for divorce can be made by either spouse. There is no need to give any kind of consideration. However, the wife is entitled to a dower. When the offer is accepted, it is irrevocable and the wife has to observe iddat.
Acts related to Muslim marriages in India
The Dissolution of Muslim Marriage Act, 1939
Under Muslim law, a marriage can be dissolved in different ways, as listed above. Fask or cancellation of marriage by a woman can be done on different grounds. Where under Hanafi law, impotency of the husband is the only ground for fask, other grounds are:
Irregular marriage,
Marriage performed in prohibited degrees, etc.
There is no specific number of grounds on which women can apply for divorce. The legislation felt a need to make legislation which could provide certain specified grounds for divorce for women. In view of this, they enacted The Dissolution of Muslim Marriage Act, 1939. Since the Act has its origin in fask, which is part of Muslim law, its sanctity cannot be questioned.
Application of the Act
The Act applies to all Muslim women, irrespective of their sect or school. Any woman, whether a Shia or Sunni, can apply and seek a divorce on the basis of various grounds specified in the Act.
Grounds of divorce
Section 2 of the Act specifies nine grounds for divorce. These are:
Absence of the husband.
Failure to maintain a wife.
Imprisonment of the husband.
Failure to perform marital obligations.
Impotency of the husband.
Insanity or venereal disease.
Repudiation of marriage.
Cruelty
Residuary grounds.
Absence of the husband
If the husband or his whereabouts are unknown for 4 years or more, the woman is entitled to obtain a decree of divorce, but a decree once passed will not be effective for another 6 months from the date of such decree. This is done to ensure that if the husband comes back within these 6 months, then the decree will not be applicable and set aside if the court is satisfied that he will fulfil conjugal rights. Section 3 of the Act places an obligation to serve notice to the heirs of the husband so that they can be heard if he is missing or his whereabouts are not known.
Failure to maintain the wife
A Muslim woman can seek a divorce if her husband neglects her or fails to maintain her for 2 years for any reason for which she is not responsible. The Karnataka High Court in the case of Mehfoz Allam Dastagirsab Killedar v. Shagufta (2003) held that provisions related to protecting women must be read in their favour even if the woman in the said case left her husband herself.
Imprisonment of the husband
If the husband has committed any crime and has been sentenced to imprisonment of 7 years or more, the wife is entitled to apply for a divorce. However, the court will not pass any decree if the sentence is not final.
Failure to perform marital obligations
A woman can seek a divorce if her husband does not fulfil any marital obligations without any reasonable cause or justification for 3 years.
Impotency of the husband
Another ground for divorce is the impotency of the husband. If at the time of marriage the husband was impotent and continues to be so, the wife can initiate a suit for divorce. But it is mandatory for the court to pass an order on the application of the husband that requires him to prove that he has ceased to be impotent within 1 year of such an order. If the husband is able to satisfy the court that he ceased to be impotent, then no decree of divorce will be passed.
Insanity or venereal disease
If the husband is insane or suffering from any kind of venereal disease and has been in this condition for 2 years before the suit for divorce is filed, the wife is entitled to seek a decree of divorce from the court.
Repudiation of marriage
In case, the marriage was performed by the guardians when the bride was minor, she has a right to repudiate her marriage as soon as she attains the age of puberty. However, this right must be exercised before she attains the age of majority, i.e., 18 years old. This option of puberty is also known as Khyar-ul-Bulugh. This can only be done if the marriage was not consummated.
In the case of Mustafa v. Smt. Khursida (2006), the Rajasthan High Court rejected the contention of the husband about the age of his wife in nikahnama. He argued that his wife is 18 years old according to nikahnama, but the court rejected his argument, stating that nikahnama is evidence of marriage but not the age of the wife. The age of the wife cannot be determined from the nikahnama.
Cruelty
According to Section 2, ‘cruelty’ not only means physical cruelty but mental cruelty is also recognised. A wife can seek a divorce on the following grounds that amount to cruelty:
Habitual assault or her life being made miserable, or any bad conduct by her husband. Such conduct not only means physical ill-treatment but also includes any other such behaviour that amounts to mental cruelty as well.
Wife is associated and compared with women of ill-repute or forced to live an infamous life.
Forced by him to lead an immoral life.
Her property is disposed of against her will and she is not allowed to exercise her legal rights over her property.
She is prevented from observing her religion and faith.
She is not treated equitably like other wives if there is more than one wife.
In the case of K.P. Siddique v. Amina (1996), the Kerala High Court held that when a woman is tortured and forced by her husband to abort her child, it amounts to mental cruelty. In another case of Uz-Zafar Shaikh Hasan v. Mrs. Razia Kalim Shaikh (2001), the Bombay High Court held that the divorce must be granted in a case where the husband had doubts regarding his wife’s infidelity merely on the ground of miscommunication as it amounts to cruelty.
The Allahabad High Court considered the question of whether the second marriage in Muslim would amount to cruelty to the first wife or not, in the case of Itwari v. Smt. Asghari (1960). In this case, the wife alleged that when she went to live with her parents, the husband did not try to bring her back but instead married another woman. She sought divorce on the ground that the husband did not treat her well after his second marriage and left her, which amounted to mental cruelty as well. On the other hand, the husband argued that according to Muslim personal law, a man is allowed to marry four women and argued that the wife refused to return with him when he asked her. He further pleaded for the restitution of conjugal rights.
The Allahabad High Court in this case held that the test to determine cruelty is whether the acts are such that make it difficult and unsafe for the wife to live with her husband. The wife refused to live with her husband when the Court asked whether a decree of restitution of conjugal rights must be passed. In lieu of the response of the wife and her unwillingness to live with her husband, the court decided not to pass any decree for restitution.
Residuary grounds
If a woman tries to seek a divorce on some other grounds that are not mentioned in the Act and the court is satisfied that it is reasonable under Muslim law, then the decree of divorce will be passed. Such grounds will fall under this category and are called residuary grounds. Some of these grounds are:
Ila,
Zihar,
Lian,
Fask, etc.
Conversion of Muslim women to any other religion
According to Section 4 of the Act, if a Muslim woman converts to any other faith or religion, then the husband cannot seek a divorce or leave her merely on the ground that she converted to any other religions. After conversion, she is still entitled to seek a divorce on any of the grounds mentioned in the Act. However, the Section will not apply to any woman who converts to Islam.
According to Section 5, nothing in the Act will affect her right to receive dower or Mehr after the dissolution of marriage.
Muslim Women (Protection of Rights on Divorce) Act, 1986
The Act applies to all Muslim women, irrespective of the sect or school they follow.
Payment of maintenance
According to Section 3 of the Act, a Muslim woman after a divorce is entitled to:
A reasonable and fair amount to be paid by the former husband during her iddat period.
In the case of a child, the former husband has to pay a reasonable and fair amount to maintain the child for two years from the date of birth of the child..
She is entitled to the dower/mehr that was agreed at the time of marriage.
The properties that have been given to her before, during, or at the time of marriage.
If the husband fails to do so, the court will pass an order directing him to fulfil the obligations given in the Section.
Section 4 further gives the order for payment of maintenance.
If the divorced woman is not able to maintain herself and has not remarried, the court will order her relatives having an interest in the property to maintain it until the death of the husband or if he is incapable of doing so.
If she has children, the court will order them to maintain her, but if they are incapable, then such an order will be given to her parents.
In the absence or incapability of her relatives, children or parents, the court will order the State Wakf Board established pursuant to Section 9 of The Wakf Act, 1954 to maintain her.
Muslim Women (Protection of Rights on Marriage) Act, 2019
Triple talaq or Talaq-ul-biddat is considered the unapproved form of talaq because of its irrevocable nature. This talaq becomes irrevocable as soon as it is pronounced, so if the husband wants to marry his wife again, he cannot do so until the wife undergoes nikah halala. This form of talaq was not mentioned in Shariat or Quaran and lacked sanctions. The constitutional validity of this form of talaq was challenged in the case of Shayara Bano v. Union of India (2017)on the ground that it is violative of Article 14, Article 15, Article 21, and Article 25 of the Indian Constitution. The Court, in this case, declared triple talaq unconstitutional on the grounds that it is arbitrary in nature and violates the fundamental rights of Muslim women.
The Act is divided into 3 chapters and 8 sections and is applicable in the whole country. The 3 chapters are:
Chapter 1 – deals with application and definitions.
Chapter 2 – deals with sections declaring triple talaq as void and illegal.
Chapter 3 – deals with the protection of the rights of married Muslim women.
The legality of triple talaq
According to Section 3 of the Act, talaq-ul-biddat is void whether spoken, written or given in any electronic form. Thus, if a husband pronounces talaq in the form of talaq-ul-biddat, it is void and illegal. Section 4 further prescribes the punishment for pronouncing talaq according to talaq-ul-biddat. The punishment includes imprisonment for up to 3 years along with a fine. Section 7 classifies the offence of pronouncing triple talaq as cognizable.
Rights of women divorced according to talaq-ul-biddat or triple talaq
The Act gives the following rights to those women who have been divorced and left by their husbands on the basis of triple talaq:
She has a right to be given a subsistence allowance by her husband to maintain her and her children (Section 5).
According to Section 6 of the Act, such a woman is entitled to the custody of her children.
Section 7 provides that the husband accused of an offence under the Act will not be released on bail unless the Court is satisfied with the reasons.
Landmark judgements
Shayara Bano v. Union of India, 2017
Facts of the case
In this case, Shayara Bano, a Muslim girl, was married to Rizwan Ahmed for 15 years. But in 2016, he divorced her by way of triple talaq without stating any reason. In return, she filed a writ petition in the Hon’ble Supreme Court challenging the constitutionality of talaq-e-biddat asking to hold it along with practices of polygamy and nikah halala unconstitutional as they infringe upon the fundamental rights of women (Article 14, 15, 21 and 25). Women’s rights organisations like BEBAK collective and Bhartiya Muslim Mahila Andolan supported her.
The opposition i.e. All India Muslim Personal law argued on the fact that Muslim law is not codified and hence not subject to judicial review and that divorce is a religious practice under Article 25 of the constitution and is thus, protected. The court accepted the petition by Shyara Bano and formed a five-judge Constitution Bench in 2017. The first hearing was held on May 11, 2017 and on August 22, 2017, it gave its decision in the case.
Issues involved in the case
Whether the practice of talaq-e-biddat (instantaneous triple talaq) an essential practice in Muslim personal law is protected under Article 25 of the Indian Constitution?
Whether the triple talaq infringes the fundamental rights guaranteed under the constitution and is unconstitutional?
Judgement of the Court
The five judges’ bench of the Hon’ble Supreme Court gave its decision in favour of Shayara Bano and others. It declared the practice of Triple Talaq unconstitutional by a 3:2 majority and directed the legislature to take measures against it in order to stop the abuse against women. Both Justice Nariman and Lalit opined that triple talaq is a way by which marital bonds can be broken on the whims of the husband and the wife cannot do anything and is thus violative of Article 14. Justice Rohinton Nariman and Uday Lalit had similar views and declared it unconstitutional on the ground that it is arbitrary.
Shah Bano v. Mohd. Ahmed Khan, 1985
Facts of the case
In this case, a 62-year-old woman named Shah Bano was told by her husband to leave the house, as a result of which she filed a writ petition under Section 125 of the Code of Criminal Procedure, 1973 (CrPC) and asked for maintenance. The husband, in return, divorced her and stated that he had no liability to maintain her after her iddat period.
Issues involved in the case
Whether a wife is entitled to maintenance after the iddat period?
Judgement of the Court
The Supreme Court in this case rejected the plea and argument of the husband and stated that a Muslim wife is entitled to maintenance even after her iddat period if she is incapable of maintaining herself. The husband has the liability to maintain her under Section 125 of the CrPC if she is incapable of doing so until she remarries. The Court also said that the Section applies to women irrespective of their caste or religion.
Daniel Latifi v. Union of India, 2001
Facts of the case
This case challenged the validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986, which was enacted by the Parliament after the judgement of the Hon’ble Supreme Court in the case of Shah Bano v. Union of India (1985). There was an issue in the Act as to when the husband had to make arrangements for the maintenance of the wife and how much amount had to be paid.
Issues involved in the case
The constitutional validity of the Act was in question.
Judgement of the Court
The Hon’ble Supreme Court in this clarified that the husband has to provide a reasonable and fair amount to his wife even after iddat if she is incapable of doing so until she remarries. He must make the arrangements for maintenance during her iddat period only. The Court further clarified that under Section 4, relatives have to maintain her after the death of the husband and if there are no relatives, then the Wakf Board must do so. The Court further said that no provision of the Act is violative and thus upheld the constitutional validity of the Act.
Conclusion
The major problem with Muslim law is that, unlike Hindu law, it is uncodified. Due to this, there have been different interpretations and practices, which have further led to chaos and confusion. Some of its practices were violative of fundamental rights and thus, declared unconstitutional. In order to bring clarity and avoid ambiguity, Parliament enacted certain Acts that have been discussed in detail in the article. However, there is still a scope of ambiguity which needs to be addressed by the courts of law as and when it is brought before them.
Frequently Asked Questions (FAQs)
What are the rules related to the requirement of religion as an essential part of Muslim marriage?
The parties to a marriage must be Muslim but there are certain rules that are different between Shia and Sunnis. A Sunni male is allowed to marry a kitabia but cannot marry an idolatress or fire worshipper. On the other hand, Shia males are not allowed to do so. Muslim women cannot marry anyone outside of their religion, or else the marriage will be void. This can be better understood with the help of a table:
S. no.
Combination
Type of marriage
Muslim male (any sect) + Muslim female (any sect)
Valid marriage
Sunni male + kitabia female
Valid marriage
Sunni male + idolatress or fire worshipper
Irregular marriage
Sunni male + any other female (neither Muslim nor kitabia)
Irregular marriage
Shia male + non-Muslim female (kitabia, idolatress or fire worshipper)
Void marriage, but muta marriage is an exception.
Muslim female + non-Muslim male
Void marriage
What are the different kinds of absolute prohibitions in Muslim marriage?
A Muslim male is not allowed to marry anybody in his blood relations or prohibited degree of relationships. These are absolute prohibitions. It arises from:
Consanguinity (qurabat) – which means blood relationships like mother, daughter, sister, grandmother, etc.
Affinity (mushaarat) – which means close relationships like the wife’s mother, wife of her father, etc. A marriage between close relationships is prohibited under absolute prohibitions.
Fosterage (riza) – which means milk relationship. When a child under the age of 2 years has been fed or suckled by a woman other than the mother, the woman becomes the foster mother. Marriage in these relationships is also prohibited.
What do you mean by muta marriage?
It is a kind of temporary marriage for enjoyment or pleasure, which is recognised by Shia schools. The period of marriage is fixed at the time it is contracted along with the dower. If the term of marriage is fixed but the dower is not fixed, then the marriage is void. A Shia Muslim can contract this type of marriage with a Muslim, Christian, Jewish or fire worshipper woman but not with a Hindu woman. However, a Shia female is not allowed to enter into this type of marriage.
What do you mean by iddat and what is the duration of any iddat period?
Iddat is a period of seclusion that a woman has to observe if the marriage is terminated either by divorce or the death of the husband. The reason behind observing this period is to ascertain the pregnancy of a woman and avoid confusion related to paternity. The duration of the iddat period is as follows:
When the husband dies, the wife has to observe an iddat of 4 months and 10 days and if she is pregnant then till delivery.
In case of divorce, the iddat period is 3 months if the wife is menstruating for 3 lunar months.
The period begins from the date of divorce or death of the husband.
In case of irregular marriage, if it has not been consummated then no iddat has to be observed.
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The United States of America has stringent norms on traffic management. Yet, notwithstanding this, the country experienced 4136 accident cases this year. This is an alarming condition, to say the least.
Suppose your car collided with a truck on the highway; of course, the result is quite evident. You will receive the lion’s share of the damage. You must get all the compensation enforced by the state and federal law because it is your right. But you literally need to snatch your rights in court. You need to establish that you are innocent and must get all the claims.
The article discusses different ways to strengthen your evidence so that you end up can strengthen your claims.
Know your rights after the truck accident
Accidents cause not only physical and economic damage but also emotional damage. You need treatment, medication, and rehabilitation to literally come back to the path of normalcy. But first, you need to know what kinds of rights you are entitled to.
Medical bills include surgeries, medication, rehabilitation, and mental health services.
Lost wages that you suffer for not attending office during the injury period.
Loss of employment, in case you completely end up damaging some of the vital parts of your organ.
The funeral, wage, medical, and other costs of the loved ones who were killed in the accident.
Now we come to the main section of our topic, how to strengthen your claims after you meet with a truck accident on the highway. So let’s get started.
1. Utilize Your Phone
It is quite natural; when you meet with an accident, you will not be completely stressed out. Come to your senses and try to best utilize your phone. Take down the numbers of the truck.
Also, procure the details of the truck driver’s insurance. Store all the vital information that is mandatory for strengthening your case.
2. Take Detailed Pictures
Pictures are great proof evidence to strengthen your case. So after the accident, you can take pictures of the accident spot in detail when things come to normal. Also, take snapshots of the surrounding areas.
Your lawyer needs them to strengthen your case so that you get the claims you deserve. After you collect the pictures in detail, you need to consult a salt lake city truck accident lawyer. You get the most professional services that you need.
3. Preserve The Information On Your Computer
After you collect all the photographic evidence, you need to preserve them safely on your computer. Remember, the safety of your evidence must be considered your first priority. Negligence and any kind of lenient attitude are really dangerous for you.
Therefore, you need to manage your things so that you preserve all the vital information on your hard drives. These are vital in strengthening your claims. Therefore, try to preserve the information to get it at the right time. Talk to your lawyer. A salt lake city truck accident lawyer can help you out.
4. Be mindful To What You Say
Try your utmost with your speech. Remember that the attorney of the defendant will try to gather some vital information. Therefore, any important statement completely robs your case.
Therefore, try your utmost not to give statements like, “I am sorry.” It completely mars all your efforts, and they all go in vain. So don’t give them the opportunity to score.
5. Not To Sign Anything Before Talking To Attorney
Do’s are important, but more important are the don’t. Remember, the lawyer of the defendant will try out all tricks to get your signature with some vital confirmation. This is dangerous and will completely take away all of your cases.
Therefore, never sign any one of the things prior to taking the permission of your appointed attorney. This will provide safeguards to all your evidence. Any such signature will completely rob you of all the powers of your evidence. So act smartly.
Wrapping It Up
Remember, the collection of evidence is difficult, but preserving the evidence is more difficult. Therefore the individual that received all the pain needs to exploit the evidence so that they extract maximum claims from the defendant.
Finally, it’s always safe to consult a salt lake city truck accident lawyer to strengthen the claim.
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Are you looking for a quality immigration lawyer in the USA?
You can get many there, but you are looking for real quality ones, right? In such a case, you need to be highly cautious of some of the skills and competencies, and they can help you find some bonafide immigration attorney.
Remember, experienced lawyers like the immigration lawyer Atlanta are well-equipped to help you under any circumstances. They have carved out a niche in their realm because they possess essential characteristic traits. So if you too are searching for some high-quality services, you need to focus on some of the core qualities. Remember, there are no shortcuts to it.
Essential qualities of an immigration lawyer that you should be looking for
There are some essential qualities of a promising immigration lawyer. If you are searching for one such, you need to look at these and consider from among them. They might help you reach your destination. So let us discuss things here.
1. Excellent Communication Skills
The immigration process is quite lengthy and goes through legal entanglements. Therefore, they are not that easy to manage all the time. Moreover, you need to establish good communication with the different stakeholders. They make your work easy.
A quality immigration law firm in Atlanta is armed with professionals who possess excellent communication skills to manage things for you- be it paperwork, certificates, or permissions. With excellent communication, only they build a network. They work effectively in solving your needs in different cases.
2. An Eye For Detail
U.S. Citizenship and Immigration Services (USCIS) requires adhering to complex procedures. These include filing different forms and applications.
Immigration Lawyer Atlanta has the skills, knowledge, and understanding to help you fill the paper on your behalf. Remember, any major mistakes in filling the requisites can delay the entire procedure for months.
Therefore, bank on competent people and stay away from stress. These professional firms are well-equipped to handle extensive filings accurately and without mistakes and delays.
3. Listening Skill
Be it an immigration lawyer or any other, they must have excellent listening skills. If a lawyer is devoid of it, then they can really not turn out to do well here. Clients come with specific problems to a lawyer.
Each and every case is different most of the time. The best lawyers will listen to the problems with an icy eye. This can help sort out matters fast. The quality and concentration that the lawyer invests in listening to the problem turn out to be a determining factor in solving the cases.
Therefore, you must have to search for this essential quality that can help you out of the situation.
4. Experienced In Immigration
This is a must-require skill when it comes to the selection of an immigration lawyer.
The problem with clients like you is that you search for information on the internet and get befooled by hidden information.
Eventually, you end up searching for a good lawyer with zero knowledge and skills in immigration. Bank on some competent Immigration Lawyer Atlanta that can serve your needs and solve your matter timely.
Please keep in mind that the experienced lawyer can handle cases of immigration with the utmost knowledge, which is why they turn out to be super effective.
5. Excellent Reputation And Reference
When you are searching for competent immigration law firms, bank on their reputation and also select them based on references from your close acquaintance; if they are beneficial, they will definitely refer you to the lawyer for services.
But if you are searching for some good lawyers on the internet, you can get them. But it involves risks and uncertainties. For example, the reviews and comments posted against them can be manipulated.
So, it’s much safer that you go by reputation as well as reference. Quality law firms possess both of them.
Anything else?
Other than these qualities, you can also look for other qualities when you are searching for an immigration lawyer.
Speak to them and try to know their approach. You will find that successful lawyers try to come up with some Creative solutions to the cases. You can also look at their people skills. They also come in handy in solving cases.
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This article is written by Kartikeya Kaul, a first-year student pursuing BA.LLB. from Symbiosis Law School, Noida and Oishika Banerji of Amity Law School, Kolkata. This is an exhaustive article dealing with The Maternity Benefit Act, 1961 and Maternity Benefit (Amendment) Act, 2017 and creche facility.
It has been published by Rachit Garg.
Table of Contents
Introduction
The Maternity Benefit Act, 1961 is a legislation that protects the employment of women at the time of her maternity. It entitles women employees of ‘maternity benefit’ which is fully paid wages during the absence from work and to take care of her child. The Act is applicable to the establishments employing 10 or more employees. The Maternity Benefit Act, 1961 has been amended through the Maternity (Amendment) Bill 2017 which was passed in the Lok Sabha on March 09, 2017. Thereafter, the said Bill was passed in Rajya Sabha on August 11, 2016. Further, it received assent from the President of India on March 27, 2017. The provisions of the Maternity Benefit (Amendment) Act, 2017 (“Amendment Act”) came into effect on April 1, 2017, and the provision with regard to crèche facility (Section 111 A) came into effect with effect from July 1, 2017.
The advantages that women receive during pregnancy and to encourage child care are known as maternity benefits. India is on the level with international conventions, according to the latest study in this area in India. This article summarises the benefits suggested by international standards and provides a summary of maternity benefits available in the nation. It also strives to compile all recent studies on the subject that are pertinent to India and offers a limited comparison with other nations on the same. Maternity benefits are an essential component of a woman’s employment since they give her the support she needs to think about establishing a family. The laws are in place to help parents after childbirth and during their recuperation period before returning to work. As they guarantee benefits in addition to the mother’s job security and compensation, they also provide peace of mind during this period. The article also aims to give country residents a fundamental grasp of the legislation.
An overview of the Maternity Benefit Act, 1961
The Maternity Benefits Act of 1961 was passed by the Union of India on December 12, 1961, following the country’s independence. The statute included conditional benefits for pregnancy, childbirth, and complications related to those, in conformity with the then-current international standards. The Act covered a lot of areas with meticulous precision and care was paid to many dimensions of considerations influencing maternity benefits, despite the fact that India was still a developing nation and in its 14th year of independence. The Maternity Benefit Act, 1961 governs maternity benefits in India. Every organisation with ten (10) or more employees is subject to the Act. According to the Act, maternity benefits are available to any woman who has worked for an organisation for at least eighty (80) days. The Maternity Benefit Act, 1961 aims to provide all the facilities to a working woman in a dignified manner, so that she may overcome the “state of motherhood honourably, peacefully, undeterred by the fear of being victimised for forced absence during the pre or postnatal period”, as was observed by the Supreme Court in the case of Municipal Corporation of Delhi v. Female Workers (Muster Roll)(2000). According to the Maternity Benefit Act of 1961, the employer must pay the beneficiary a medical bonus of up to 1,000 rupees if there is no prenatal confinement and no paid postpartum care. The Central Government has raised the medical bonus to 25,000 rupees. If the woman experiences a miscarriage or any other pregnancy-related complications, she is entitled to paid leave. A 30-day extra leave with pay is offered to the beneficiary upon verification of any ailment related to pregnancy. After reporting back to work, the mother is entitled to a break and is allowed two breaks to feed the child until they are 15 months old. The “facility of a crèche” has also been mandated to be available in convenient locations in every firm with fifty or more female employees. Women will be allowed to leave with pay for their tubectomy operation based on the proof provided. According to the Act, it is against the law for an employer to fire or dismiss a pregnant woman while she is away or on account of her pregnancy, or to give notice of a termination on a day when the notice will expire while she is away, or to change any of the terms of her employment to their detriment. According to the law, light work allotted to pregnant women and breaks for child feeding are not grounds for wage deductions. The statute is applicable to all businesses, including those that belonged to the government and those that employed people to do equestrian, acrobatic, and other acts for display in factories, mines, and plantations. Additionally, it applied to any store or business with ten or more employees. The inclusion of provisions for industrial, agricultural, and commercial establishments marked the act as a significant improvement over the rudimentary one from 1928. The Act covers all maternity benefits in the following sections:
Section 4: Employment of, or work of, women prohibited during certain periods.
Section 5: Right to payment of maternity benefits.
Section 7: Payment of Maternity Benefits in case of death of a woman.
Section 8: Payment of Medical Bonus.
Section 9: Leave for miscarriage, etc.
Section 10: Leave for illness arising out of pregnancy, delivery, premature birth of a child, miscarriage, medical termination of pregnancy or tubectomy operation.
Section 11: Nursing Breaks.
Section 12: Dismissal during absence of pregnancy.
Section 13: No deduction of wages in certain cases.
Section 18: Forfeiture of maternity benefits.
The Act was revised by the Indian Government in 2017 to give women more inclusive maternity benefits. Among other amendments, a new clause, Section 5(5), was added to the Act, under which women who requested maternity leave might benefit from working from home. According to Section 5(5) of the Act, an employer may authorise nursing mothers to work from home if the nature of the work that is given to them permits it, under mutually agreed-upon terms.
Features of the Maternity Benefit Act, 1961
Duration of leave: A woman is entitled to twelve weeks of maternity leave under the terms of the Act, not more than six weeks of which may come before the due date. The ILO guideline at the time took this into account.
Job protection: According to the guidelines of the 1961 Act, it has been ruled unlawful for an employer to fire or let go of a woman at any time during or because of her absence. However, the employer may notify the employee in writing if the dismissal or discharge is the result of serious wrongdoing.
Remuneration during leave: Women who meet the requirements for maternity leave outlined in the legislation are entitled to maternity benefits at the rate of the average daily salary for the time that they are really absent from work.
Financial benefits: According to this law, every woman is entitled to maternity benefits and the option of receiving a medical bonus from her employer in the event that neither prenatal nor postpartum care is provided by the latter at no cost to the employee. The employer is responsible for paying all debts, including maternity benefits, to the woman’s nominee or legal representative in the event of her death.
Benefits covered under the Maternity Benefit Act of 1961
The Act requires the employee to refrain from hiring any known women in any place for the six weeks immediately following the day of the employee’s delivery, miscarriage, or medical termination of pregnancy. During the six weeks immediately following the day of delivery or miscarriage, no woman shall work in any company. The employer shall not require such women to perform any work unless requested to do so by the employed lady.
Which negatively affects her pregnancy or the foetus’s development normally,
Any work that could result in her miscarrying or otherwise have a negative impact on her health.
Every woman has the right to maternity benefits, and her employer is responsible for paying them at the amount of the average daily income for the time she was actually away from work, i.e.,:
The time leading up to the day of her delivery.
On the day she gave birth and for the period immediately afterwards.
Period of granting maternity benefit
The maximum time a woman may get maternity benefits is twenty-six weeks, not including the eight weeks prior to the due date of her anticipated delivery, as per Section 5 (3), as amended by the Maternity Benefit (Amendment) Act 2017. Furthermore, in the event that a woman passes away within this time, the maternity benefit will only be paid for the days leading up to and including the day of her passing. According to subsection (4) of Section 5, a woman who legally adopts a child under the age of three months or a mother who commissions an adoption will be eligible for maternity benefits for a period of twelve weeks starting on the day the child is given to the adopting mother or the commissioning mother, as applicable. In accordance with subsection (5) of Section 5, if a woman’s job requires her to work from home, the employer may permit her to do so after she has claimed the maternity benefit for the time period and on the conditions that they may mutually agree upon.
Conditions for claiming maternity benefit
Only when a woman has really worked for the employer from whom she claims maternity benefits for a period of not less than eighty days in the twelve months immediately preceding the date of her anticipated delivery is she eligible to receive maternity benefits.
Methods of claiming maternity benefit
Any woman wishing to exercise the right to maternity benefit must submit a notice to her employer in the manner and on the form required by the business she is employed with in order to be eligible to claim the maternity benefit as provided for by the 1961 Act. This information should be included in the notice along with:
The maternity benefit and any additional funds to which she may be entitled in accordance with this Act.
The name of the individual who should receive such payments.
A statement stating that she will not work at the company while collecting these maternity benefits.
The day her absence from work officially started.
Following the woman’s provision of documentation proving her pregnancy, the employer is required to pay the woman’s maternity benefit in advance.
What happens if a woman dies in the duration of the period of maternity leave
The maternity benefit that applies to a woman only lasts up to the date of her death if she passes away within the above-mentioned term of maternity leave. The complete maternity benefit would be payable if the mother passes away soon after giving birth, resulting in the child’s survival. The employer is required to pay the maternity benefit that was in effect as of the date of the child’s death if the child passes away while the mother is still eligible for it. When a woman passes away, these payments must be made to the person she specified in the notification she gave under Section 6 (1) of the Act, or if she did not nominate anybody, to her legal representative.
Filing of a complaint under the Maternity Benefit Act of 1961
A woman has sixty days to appeal the decision if she is denied maternity benefits or medical benefits, released from her job, or expelled while on maternity leave. She may do this by approaching an inspector designated by the Maternity Benefit Act, 1961. In the unlikely event that she disagrees with the inspector’s requests, she has thirty days to make a counteroffer to the suggested expert. If she disagrees with the inspector’s requests or if a more significant legal issue is raised, she may also file a lawsuit within a year.
Advantages and disadvantages of the Maternity Benefit Act, 1961
The existence of a maternity benefit law is crucial for women’s rights and financial stability. This section of the article will draw attention to a few key advantages and shortcomings that specifically relate to Indian law.
First and foremost, it is certain that every female employee in every store, factory, mine, or on the other hand, manor, is covered by the Maternity Benefit Act, 1961. This means there are no standards to evaluate the type of work women do in these work contexts in order to determine if they are qualified. It is also important to keep in mind that the Act of 1961 permits the state governments to extend the Act to another foundation. For instance, the Keralan government has expanded all of the Maternity Benefit Act, 1961 provisions so that they now embrace foundations classified as business foundations under the Kerala Shops and Commercial Establishments Act, 1960. A business foundation is defined in this example as “a business, modern, exchanging, managing, or protecting foundation, a foundation or authoritative administration in which the people utilised are primarily engaged in office work, lodging, eatery, boarding or eating house, bistro or any other refreshment house, theatre or some other place of open beguilement or entertainment.”
The Act of 1961 provides full pay (100 percent of salary) for women on maternity leave since it states that female representatives may be paid at the amount of their typical daily remuneration. The maternity legislation, therefore, is more dynamic than the corresponding component in the legislation of several European and other formed nations. The provisions on payment of the Act of 1961 also comply with ILO Convention No. 183, which states that maternity benefits must be based on past earnings and cannot be less than 66% of the woman’s prior earnings.
Because of the financial independence that salaried work gives women, it also gives them options when faced with violent behaviour at home. Although it might be a result of financial stress, imbalances, or neediness, work drive investment is considered as not being fundamentally positive because it can place a double burden of labour on women who are responsible for all domestic duties in the family. In this sense, corporate perks, especially maternity benefits, are important additions to women’s salaried labour. Maternity leave can create a space that improves a woman worker’s capacity to balance work and family obligations.
Applicability
Upon reading Section 2 along with Section 3 (e) of Maternity Benefits Act, 1961 (“Act”), it can be safely concluded that the Act is applicable to establishments such as factories, (“factory” as defined in the Factories Act, 1948), mines (“mine” as defined in the Mines Act, 1952) and plantations (“plantation” means a plantation as defined in the Plantations Labour Act,1951).
The Maternity Benefit Act also applies to establishments belonging to Government and establishments wherein persons are employed for the exhibition of equestrian, acrobatic and other performances as per section 2(b). The said Act is also applicable to every shop or establishment defined under law, wherein ten or more persons are employed on a day during the preceding twelve months and which is applicable in relation to shops and establishments in a particular state.
Thus, considering the above, in Delhi, the Act applies to all “establishments” and “commercial establishments” which are covered under the ambit of Section 2(9) and 2(5) respectively of the Delhi Shops and Establishments Act, 1954.
Further, as per the proviso of Section 2 of the Maternity Benefit Act, the State Government may, subject to obtaining approval from the Central Government, declare that the provisions of Act be applicable to any other establishment or class of establishments which are either carrying out industrial, commercial or agricultural activities or otherwise any other activity.
It may be noted that the provisions contained in this Act, save as otherwise provided in sections 5A and 5B, shall not be attracted to any factory or other establishments to which the provisions of the Employees’ State Insurance Act, 1948, as per Section 2(2) of the Act. Further, as per Section 26 of the Act, the appropriate Government has the power to exempt through a notification, an establishment, from the ambit of the Act subject to the conditions laid down in Section 26.
Eligibility
A woman must be working as an employee in an establishment for a period of at least 80 days in the past 12 months to be entitled to maternity benefit under the provisions of the Maternity Benefit Act.
Main Highlights of the Amendment in Material Benefit
The Maternity Benefits (Amendment) Bill, 2017 was approved by the Rajya Sabha and Lok Sabha on August 11, 2016, and the President of India gave his assent on March 27, 2017. The Maternity Benefits (Amendment) Act 2017’s provisions become operative in India on April 1, 2017. However, the clauses relating to the childcare facility (Section 11) came into force on July 1, 2017. The Act after the change still adheres to its fundamental principles but offers better benefits and promotes better child care. According to our investigation, the four levels of this statute have undergone the following changes:
Duration of leave: The amendment offers 26 weeks of maternity leave, not to exceed 8 weeks prior to the anticipated due date unless they have two or more living children. The overall period of maternity leave is shown to have increased by 117% since the previous Act. Additionally, it complies with the ILO’s suggestion of 18 weeks or more. This amendment was passed in order to provide mothers enough time for self-healing and to improve child care, both of which would lower the rate of infant mortality. Adoption is an exception to this rule. A commissioning mother or a woman who adopts a child under three months old is eligible for twelve weeks of maternity leave.
Job protection: The original Act’s discharge and dismissal clause remain unchanged.
Financial benefits: No immediate financial benefits have been put into practice. However, the amendment stipulates that a woman has the right to work from home provided both her employer and she mutually agrees to this. Every business with 50 or more employees should include a crèche facility, either independently or as part of the common areas. This is another benefit. The employer will permit the woman four visits to the childcare provider.
The most important modification extends maternity leave from 12 to 26 weeks. According to the WHO, a child should be nursed for 24 weeks after birth to lower the death risk. Additionally, it ought to lower the number of women quitting their jobs as a result of insufficient maternity leave. Additionally, the longer leave period is in accordance with the Maternity Benefits Convention’s suggestion (no. 183). The addition of maternity leave for commissioning and adopting women is an important one that allows them to take care of themselves and their children while also honouring their parenthood. Due to these changes, India now ranks third globally in terms of the number of maternity benefits available to women, behind Canada and Norway.
Impact of the Maternity Benefit (Amendment) Act, 2017 on employability
The effects of the Maternity Benefit (Amendment) Act, 2017 on employability have been listed hereunder:
Many employers in private companies may refrain from hiring such women who may be about to become pregnant because they are required to give them maternity leave and compensation for that time (up to 26 weeks). Since the amendment, many firms view hiring women as a hardship. The exclusive obligation of the employer to pay all wages in full during the allotted time increases production costs for employers.
A rise in production cost occurs as the exclusive obligation of the employer to pay all wages in full during the allotted time increases costs for employers.
The provision makes employers worry about their financial stability, which can lead to a predilection for hiring men over women.
Losses brought on by extended maternity leave, which helps businesses that generally hire female employees.
Reduces the employment chances for women employees since businesses are either reluctant to hire them or ask them to quit right before giving birth in order to avoid further liability.
Creche Facility Introduced by Maternity Benefit (Amendment) Act, 2017
In terms of Section 11A of the Maternity Benefit Act, every establishment to which the Act applies and have fifty or more employees must establish a Crèche facility within such distance as may be prescribed through notification. The Creche must be established either separately or along with common facilities. The employer must allow women at least four visits a day to the crèche and it shall also include the interval for rest allowed to her. Every establishment is required to intimate in writing and electronically to every woman at the time of appointing her initially regarding every benefit available under the Maternity Benefit Act.
National Guidelines for setting up and running creches under the Maternity Benefit (Amendment) Act, 2017
Section 11A mandates the establishment of crèches within such distance as may be prescribed, either separately or along with common facilities. As per Section 2(l), “prescribed” means prescribed by rules made under this Act. Further, as per Section 28 of the Act, rules can be prescribed by the State or Central Government as the case may be for carrying out the purposes of the Act. The following are some of the key guidelines published in the Gazette by the Ministry of Women and Child Development.
Crèche For Whom
The use of a crèche facility is proposed to be extended to children of the age group of 6 months to 6 years of all employees including temporary, daily wage, consultant and contractual personnel.
Crèche Location
The center should be near/at the workplace site or in the beneficiaries’ neighborhood, within 500 meters.
Timings
The crèche preferably should open for 8 hours to 10 hours. In this case, the workers can follow a shift system. In case the establishment has day and night shifts, then the crèche should also be run in shifts.
Facilities to be provided
Crèches should be concrete, with a min space of 10-12 sq.ft. per child, with ventilation, drinking water and with no unsafe places such as open drains, pits, garbage bins near the center. Further, other facilities to be provided include:
A guard, who should have undergone police verification.
Ramps and handrails.
Every Creche should have one supervisor per crèche.
The Creche should have a minimum of one trained worker for every 10 children who are under three years of age.
For every 20 children above the age of three, the creche should have one trained worker along with a helper.
No plumbers, drivers, and electricians and other outside persons should be allowed inside the crèche when children are present.
A Crèche monitoring committee should be formed having representations from among crèche workers, parents, and administration.
Forming a grievance redressal committee for inquiring into instances of sexual abuse.
Maternity Benefit (Mines and Circus) Amendment Rules 2019
It is pertinent to note these rules do not apply to Crèches established in Mines and Circus establishments. Crèches in Mines are regulated by the Maternity Benefit (Mines and Circus) Amendment Rules 2019. Some of the key provisions include:
Rule 2 (b) – The crèches are set up for children under 6 years of age.
Rule 4- The crèches are divided into 4 Types (A, B, C, D) based on the number of women employed.
Rule 4- Basic Standard requirements to be provided.
Rule 8- The crèches shall be open during the whole day and open at night if the women employees are at the office.
Rule 9- Restriction of access to outsiders.
Rule 10- Guidelines for medical arrangements.
Are creche facilities mandatory?
The language of Section 11A of the Amendment Act, 2017 is that Crèche facilities shall be established at “every establishment”. Thus, going by the rule of literal interpretation, it can be inferred that the section mandates to establish crèches only in those “establishments” covered under the definition of “establishment” under Section 3 (e) of the Act.
Further, it can also be inferred that an “establishment” excluded under Section 2(2) or excluded by notification under Section 26 of the Act, is not obliged to set up a crèche as mandated.
As mentioned above, Section 11A’s mandate to set crèches applies to “establishments” under the ambit of the Maternity Benefit Act, 1961. Further, the clarification notification issued on behalf of The Maternity Benefit (Amendment) Act, 2017, clarified that as Section 2 has not undergone an amendment, there are no changes regarding the application of the Act of 1961. As per Section 2(b), an “establishment” includes every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State.
Consequently, crèches are mandatory in all establishments covered under Delhi Shops and Establishment Act, 1954. As per Section 2(5) of the 1954 Act, “commercial establishment” means any premises wherein any trade, business or profession or any work in connection with, or incidental or ancillary thereto is carried on..”. Further, as per Section 2(9) of the Act of 1954, “ ‘establishment’ means a shop, a commercial establishment…”.
Thus, Crèches are mandatory in companies, firms and consultant companies even though they may be incorporated or registered under The Partnership Act, 1932 or Companies Act, 2013.
A look into National Maternity Benefit Schemes (NMBS) under the Indian government
Under the NMBS, women of households below the poverty line who are 19 years of age or older are given cash help of Rs. 500/- up to their first two live births. This assistance includes both pre-delivery payment and post-delivery payment. The plan has been in operation since 1995. The programme attempts to guarantee financial assistance to underprivileged women during their pregnancies, and in the event that the baby dies, the women can still get the benefit of the programme. The NBMS was replaced by a new programme called “Janani Suraksha Yojana” (JSY) to increase its effectiveness and coverage.
Janani Suraksha Yojana
The National Rural Health Mission launched the Janani Suraksha Yojana in 2005 with the primary goal of reducing maternal and newborn mortality by encouraging institutional delivery among women who belong to vulnerable groups in society. Depending on the pre-programme level of institutional deliveries, the Yojana classifies states as low-performing (LPS) or high-performing (HPS). Frontline healthcare providers known as Accredited Social Health Activists were introduced by the Janani Suraksha Program (ASHAs). The targeted recipients are given financial aid for delivery and postpartum care.
Vande Mataram Scheme
Any obstetric and gynaecological association in India as well as private clinics are welcome to participate in this voluntary programme to provide safe motherhood services. The program’s goal is to decrease maternal mortality and morbidity among expectant and pregnant women by harnessing the extensive pool of skilled workers and specialists that the private sector has to offer. The programme aims to offer free prenatal and postnatal checks, dietary counselling, breastfeeding support through public-private partnerships, etc.
Pradhan Mantri Matru Vandana Yojana
With effect from 2017, the Indian Government launched the Pradhan Mantri Matru Vandana Yojana, a maternity benefit scheme that offers monetary incentives of Rs. 5000 to expectant mothers and nursing mothers. The Yojana intends to offer financial support as partial compensation for wage loss so that the woman can have enough rest before and after giving birth to the first living child. Women who hold regular employment with the federal, state, or public sector undertakings (PSUs), or who get benefits of a similar nature under any other law, are not eligible for the benefit under the scheme.
Pradhan Mantri Surakshit Matritva Abhiyan
To ensure that pregnant women in the country receive high-quality antenatal care, a sort of preventative healthcare, the Indian Government launched the Pradhan Mantri Surakshit Matritva Abhiyan. In order to encourage healthy lifestyles that benefit both mother and child, the Abhiyan provides the beneficiaries with a minimal package of preventive healthcare services on the ninth day of every month at the Pradhan Mantri Surakshit Matritva Clinics.
Maternity benefits in India vis-a-vis foreign nations
The Maternity Benefit Act, 2017, was put in place to help and protect female employees who were expecting by providing them with maternity benefits like pay while they were expecting and bonuses. However, it is only applicable to businesses with 10 or more employees. A woman who has worked as an employee in one of the aforementioned areas for at least 80 days in the previous 12 months is eligible for maternity benefits under the Maternity Benefit Act, 1961. They will get a salary based on their actual absence and the average daily wage base. Since the first of April 2017, this Act has been governing the subject matter of maternity benefits. Some specific advantages of this law include:
The amount of time that pregnant women can take maternity leave has been expanded by the government from 12 weeks to 26 weeks; the leave can be taken in two parts, namely, 8 weeks before delivery and the remaining time after delivery. After delivery, the leave is used to care for the newborn. Only 12 weeks of leave may be taken for the delivery of a third child; the time is divided between 6 weeks prior to delivery and 6 weeks following delivery. If the child is under three months old, the biological mother of the child who was adopted is also qualified to receive 12 weeks of leave, as is the woman who used her egg to develop an embryo that was implanted in another woman.
Women who have postpartum illnesses have the option of working from home. Women may be permitted to work from home if they are unable to extend their leave, depending on the nature of their job and their level of comfort. Actually, it takes place as agreed upon by both employers and employees.
This law enables moms to periodically visit the nursery to care for their children. Women who work in a place of business are permitted to visit their children four times a day, including breaks.
Maternity benefits in China
A summarised version of the maternity benefits in China has been listed hereunder:
According to the Labour Law of the People’s Republic of China Act, 1995, which was created and enforced to protect workers, pregnant women who are Chinese citizens are entitled to 90 days of leave following the birth of their child. Although there are numerous programmes for female employees in different Chinese cities, this study focuses on the leave and benefits practises in Shanghai as the same has been in discussion on grounds of maternity benefits.
Pregnant women in Shanghai are granted 98 days of leave, of which they may use up to 15 days before giving birth. In the event that there are any delivery problems, an additional 15 days of leave may be granted. Additionally, if the lady has twins, she will receive an additional 15 days of leave.
If a woman naturally miscarried during the first four months of pregnancy, she is entitled to 15 days of leave to rest. She can take 42 days off if the pregnancy is terminated after the first four months. With mutual consent between the employer and the employee, several perks may be granted. Depending on the nature and circumstances of the job, women may request lactation leave if her pregnancy proves challenging with the employer’s approval. 6.5 months of leave will be given with the flexibility of work.
One hour of break time during work hours is an extra benefit of postpartum. Depending on the distance to the parking area and the schedule of the car trip, two pauses for feeding the newborn can be taken after birth, each lasting 30 minutes. A 15-day leave of absence for the new baby’s father is possible. The 98 days of leave permitted are not extended to include any national holidays; the rejoining date will be moved back in accordance with the national holidays that fall during the pregnancy leave term. The woman’s basic wage is determined by her employer or if she asked for insurance, the insurance company.
Every woman in India is entitled to 12-26 weeks of leave, which is converted into days (182 days), but in China, the maternity term lasts 90 days. When expressed as a percentage, China offers 33% of 100%, while India offers 67% of 100%. Thus, it is clear why India offers longer leave periods in contrast to China.
Maternity benefits in Australia
In Australia, a pregnant woman can take up to 18 paid weeks off to take care of herself and her unborn child. Among the requirements for receiving maternity leave are:
It is open to both expectant mothers and mothers of adopted children.
Her individual income should be less than $150,000, according to the most recent financial year (2021-2022). Following her request for leave, she is not permitted to work during her pregnancy.
She needs a permanent special category visa and to be an Australian citizen in order to live there.
With rare exceptions, a woman who has just arrived in Australia or who is a new resident is not eligible to receive maternity benefits until two years have passed since she has been living there.
Even so, she is still eligible for maternity benefits if the child dies soon after birth or is stillborn.
Additionally, the baby’s father can obtain 2 weeks of paid leave, making a total of 20 weeks of leave for the parents to care for the child. She must take a work test within 13 months of the child’s birth.
A job keeper is someone who works full- or part-time at an establishment. If a person meets the requirements and is eligible, she may receive job keeper compensation.
She needed to have been employed by the company for at least two years without holding a permanent employment position.
The family should not be expecting to get any other payments at the same time, such as government paternity leave, partner pay, dad pay, or Australian compensation law.
One cannot receive both parental and job keeper payments simultaneously.
The mother has the option of transferring her remaining leave to someone else who is caring for her child, and the father’s and partner’s leave may also be used for the same infant.
It is only possible if you stay in touch with your company and depend on the environment at work.
Australia provides less maternity leave for female employees than India does. In India, maternity leave for women is granted for 26 weeks, while in Australia it is only 18 weeks. When expressed as a percentage, Australia offers 40% of 100%, while India offers 60% of 100%. So it makes sense that India grants more leave time and Australia grants less when compared to India.
Maternity benefits in Singapore
A working woman in Singapore who wants to receive maternity benefits from her employer and the government must meet the following requirements:
If the child is a Singaporean citizen, the working mother must have worked continuously for at least three months before becoming pregnant or for three months prior to giving birth if she was self-employed.
She needs to be officially married to the child’s father.
The employee was required to provide notification of the employee’s level of maternity leave to the employer prior to one week.
Working women who fall into these categories are entitled to 16 weeks of paid maternity leave. The company will cover the salary for the first eight weeks of leave. After paying the employee for the upcoming 8 weeks of leave, the government will refund the employer that same amount. Only 12 weeks of leave may be taken if the infant is not a Singaporean citizen. For the first eight weeks of leave in this category, the employee will receive their actual income. Depending on the contract that the company and the employee sign, the second four weeks of leave may be granted as unpaid time off. Some of the exceptions that apply to the above-discussed matter are listed hereunder:
The mother is entitled to the entire amount of maternity leave if the child is stillborn or dies soon after birth, and it is not counted when she applies for leave for her subsequent child.
The advantages for the mother of twins are the same as those for a single child.
If the pregnancy ends in abortion or a baby is lost after 20 weeks, the working woman may be eligible for a solo sick day. It is not covered by the programme for maternity benefits.
Indian companies provide female employees with more maternity leave than Singapore does. In Singapore, the maximum leave period is 16 weeks, compared to 12 to 26 weeks in India. When converted to a percentage, India offers 62% of the total. Singapore is providing 38% of the total. Thus, it seems to make sense that India offers a longer leave duration.
An overview of maternity benefits of contractual workers
Employees recruited under a contract are individuals that are employed for a specific period of time until the project or work is finished. Maternity benefits are those that are provided to female workers in order to safeguard their rights throughout pregnancy and after childbirth. Only organisations with 10 or more workers and women who worked at least 80 days in the 12 months prior to the projected date of delivery are subject to the Act’s rules. Women who were employed under a contract did not have protection under the 1961 Act and were therefore not eligible for maternity leave benefits. In the case of Dr. Mandeep Kaur v. Union of India (2020), the Himachal Pradesh High Court ruled that contractual employees are also entitled to maternity benefits in addition to all consequential benefits, such as a continuation of service.
Facts of the case
The Respondents hired the Petitioner on a temporary basis to serve as a medical officer. She requested maternity leave for 180 days, and she received all related perks, such as continued employment. The Respondents, on the other hand, disputed her claim by pointing to the parties’ employment contract, which lacked the clause that would have given her the right to maternity leave. The Himachal Pradesh High Court determined in its ruling on July 15, 2020, that the Petitioner was entitled to maternity leave benefits notwithstanding the fact that the contract did not contain a covenant with respect to the claim. Even though she was employed contractually, the Court ruled that denying her the benefit of maternity leave would be a breach of Article 21 of the Indian Constitution’s intentions. The Municipal Corporation of Delhi v. Female Workers & Anr (2000), which gave a “clear mandate” about the access to maternity leave for women employees who are employed on a daily pay, was one of many rulings on which the Court relied. Additionally, the Court cited two rulings, namely, Rasitha C. H. v. State of Kerala (2018) and Rakhi v. State of Kerala (2017), both of which upheld the right of contractual workers to benefits under the Maternity Benefit Act of 1961.
Provisions discussed in the case
The Maternity Benefits Act of 1961 contains the pertinent sections in this case. Section 2 of the Act lists all the circumstances in which it is applicable. The Act is mentioned as being applicable to industries, mines, or plantations, as well as government-owned facilities where workers are engaged for equestrian, acrobatic, and other performance exhibitions. It also applies to any other store or business with ten or more employees that fall under the purview of any currently in effect statute. Another clause that applies in this situation is Article 21 of the Indian Constitution, which stipulates that no one may be deprived of their life or personal freedom unless they are doing so in accordance with a legal process.
Judgement delivered by the Himachal Pradesh High Court
The Court ruled that every establishment with 10 or more employees has the right to receive maternity benefits under Section 2 of the Maternity Benefit Act of 1961.
The Court ruled that although she worked at the ECHS clinic, she was still entitled to maternity benefits under Section 2 of the Maternity Benefit Act of 1961.
The Court also ruled that even though she was a contractual employee, she was still eligible for benefits under this statute because all women employees, regardless of whether they had a permanent or contract position, are entitled to maternity leave.
Critical analysis of the judgement
In relation to India, this judgement is the appropriate step in securing and advancing working women’s rights. The nation had approved the Maternity (Amendment) Bill, 2017, which expanded the amount of time that working women were entitled to paid maternity leave from 12 weeks to 26 weeks, the third-highest amount in the world. Although the government took this laudable action for working women, it was regrettable that just 1% of all working women were able to take advantage of this “phantom legislation”. Only those who work for companies with at least 10 workers were covered by the rule, which represents a minuscule part of the small number of working women in India. According to estimates, 84% of women work for businesses with fewer than 10 employees, meaning they are not covered by the Act as it is now written. Prior to the verdict, women who were working under a contract were likewise not eligible for maternity leave benefits. This suggests that the bulk of the Act’s beneficiaries would not be able to take advantage of its provisions. However, a lot more working women in India would be able to take maternity leave as a result of the Himachal Pradesh High Court’s ruling. Additionally, the decision is a breath of fresh air for working pregnant women because it guarantees them not only maternity leave till delivery but also other perks, such as keeping their jobs. Even after giving birth, women can still benefit from this. The Court correctly held that denying maternity leave to someone who is employed under a contract would constitute a violation of the right guaranteed by Article 21 of the Constitution. Regardless of the nature of their profession, all working women have the right to be treated with respect and dignity at the workplace, and as such, they must be given all the resources necessary to uphold that standard. It’s possible that a pregnant woman won’t even be able to do her job well if she is made to work while having the baby inside her. Even if that is a valid point, it is not the most crucial one in this situation. In order to safeguard their fundamental right to life, women must take maternity leave. Additionally, if she is forced to work while pregnant, the health of the unborn child may also be harmed, which would again be a breach of the mother’s and the foetus’s rights to life. As a result, it’s imperative that all working women receive the benefits of maternity leave.
Indian judiciary and its take on maternity benefit laws
The judiciary has been crucial in ensuring that women in India receive maternity benefits by interpreting the genuine intentions of laws and programmes. Some of the crucial judgments concerning maternity benefits have been discussed in summary hereunder.
B. Shah v. Presiding Officer, Labour Court Coimbatore (1978)
The Supreme Court noted in B. Shah v. Presiding Officer, Labour Court Coimbatore (1978) that it must be remembered when interpreting the terms of helpful laws like the Maternity Benefit Act, 1961, which is intended to achieve the goal of ensuring social justice to female employees employed in the plantation and which squarely falls under the purview of Article 42 of the Indian Constitution. The question of whether Sundays, which are paid holidays, should be factored into the maternity benefit period computation came up in court. The Maternity Benefit Act, 1961, when taken into account with Article 42 of the Indian Constitution, was intended to assist women in protecting not just their maternity rights but also their ability to work effectively and maintain a stable level of efficiency, as was observed by the Supreme Court of India. She consequently requests any sum that may become due to her in place of paying for the child’s health and medical costs. To help women effectively manage their roles as mothers and workers, the law makes maternity benefits mandatory. Therefore, the Court declared that Sundays would be included in the indicated time in accordance with the rule of advantageous construction.
Municipal Corporation of Delhi v. Female Workers (Muster Roll) and another (2000)
The Supreme Court ruled in Municipal Corporation of Delhi v. Female Workers (Muster Roll) and Others (2000) that there is nothing in the 1961 Act that restricts the right to maternity leave to only regular female employees and excludes other female employees who are employed on a casual basis or on the muster roll on a daily wage basis. This is because the most natural thing in a woman’s life is to have children. Whatever is required to make it easier for a working woman to give birth to a child, the employer must be sympathetic and considerate of the same. They must also be aware of the physical challenges a working woman would face in carrying out her duties at the workplace while carrying a baby in the womb or while rearing the child after birth. The Maternity Benefit Act of 1961 intends to provide all these advantages to a working woman in a dignified manner so that she may successfully navigate motherhood without being deterred by the fear of being victimised for being absent for an extended period of time before or after childbirth.
Mrs. Savita Ahuja v. State of Haryana & others (1998)
In Mrs. Savita Ahuja v. State of Haryana & Others (1998), the Hon’ble Punjab and Haryana High Court ruled that the petitioner should not be denied the right to maternity leave just because her job was solely temporary or ad hoc in nature. She is entitled to maternity leave with full pay for the duration of her confinement, and it was illegal to fire her from her job due to her pregnancy. Therefore, these female government workers who were hired on an as-needed basis should also be eligible for maternity leave.
J. Sharmila v. The Secretary to Government, Edu. Deptt. Madras (2009)
In J. Sharmila v. The Secretary to Government, Education Dept. Madras (2009), the issue at hand was whether a married government employee was entitled to full payment for whatever maternity leave she took if she already had two living children. The petitioner had twins at her first birth and a single child at her second. Consequently, the maternity leave was limited to the delivery of the second child and was not dependent on the norm for the third child. According to the Court, it is sufficient to say that if the state government wants to provide protection for the woman at her second delivery, it shouldn’t be based on how many children she has had throughout those two pregnancies. The importance must only be viewed from the perspective of the health of the female government employee, not from the perspective of how many children are delivered during each delivery. The petitioner is entitled to receive her entire wage for the time she took maternity leave during her second pregnancy.
K.C Chandrika v. Indian Red Cross Society (2006)
The petitioner’s position as a clerk employed by the Red Cross Society in K.C. Chandrika v. Indian Red Cross Society (2006) is of a temporary nature but is likely to last indefinitely. The respondent granted the petitioner’s request for maternity leave after she made it. Three months were allotted for the leave. The petitioner was shocked to receive a notification from the respondents informing her that her services had been terminated while she was on leave. The issue to be decided was whether K. Chandrika’s service termination was valid or not. The Hon’ble Court determined that the respondent was required to restore the petitioner in service with continuity of service for the computation of service benefits after taking into account all pertinent facts. Therefore, the worker may be called up to make a sacrifice that would only be for the benefit of the public and deserves to be paid wages as far as the grant of back wages is concerned.
Smt. Archana Panedy v. State of M.P & others (2016)
The issue in Smt. Archana Panedy v. State of M.P. & others (2016) was about whether the petitioners, as contractual employees, were eligible for maternity leave benefits. After considering the various judgments, the Madhya Pradesh High Court concluded that the Constitution requires her employer to give her access to all the amenities she needs to give birth and that there is no reason why a woman who works as a contract employee should not receive the benefits of the Maternity Benefit Act. The petitioner is to be given maternity benefits by the respondents.
Dr. Rachna Chaurasiya v. State of U.P. and others passed (2017)
In the present case, the state government was ordered by a division bench of the High Court of Madras to provide 180 days of paid maternity leave to all women, regardless of the type of employment they hold, permanent, temporary/ad hoc, or on a contractual basis. All female employees who are hired regularly, contractually, ad hoc, or temporarily and who have minor children who must be 18 years of age or younger and must be granted a 730-day childcare leave, according to supplementary instructions given to the state response. Maternity leave shouldn’t be separated from or excluded from a woman employee’s employment term.
Prachi Sen v. Ministry of Defence (2021)
The Karnataka High Court reaffirmed that the work-from-home advantage under Section 5(5) of the revised 2017 Act may only be granted in circumstances where the nature of the task provided to the woman permits her to do so, in the case of Prachi Sen v. Ministry of Defence (2021). At the Semiconductor Technology and Applied Research Centre (STARC), a division of the Indian Ministry of Defence, the petitioner held the position of executive engineer. Following her maternity leave, the petitioner had not gone back to work. She sought to work from home instead, in accordance with the Government of India’s advice and asked STARC for childcare leave. After the petitioner had been out of the office for two months without authorization, STARC sent her a communication asking her to return. A petitioner who was seeking benefits under the Act and contesting the communication, therefore, appeared before the Court. The Court emphasised that the employee was engaged in sensitive and challenging scientific work. Sensitive in the sense that it involved defence research, which was private and was not allowed to be made public. As a result, the petitioner’s work was of a type that prevented work from home from being feasible. The Karnataka High Court’s ruling specifies the circumstances under which female employees may use the work-from-home benefit provided by Section 5(5) of the Act. It can be said that the ruling was a good first step toward comprehending the restrictions placed on some companies’ ability to offer benefits under the Act. The ruling should not, however, be seen as giving employers the go-ahead to refuse the benefits under Section 5(5) of the Act whenever the nature of the work is enabled. Employers should take the initiative to accommodate nursing moms and make sure that there are sufficient childcare services on-site or nearby. As a result, the court determined that the work-from-home benefit under Section 5(5) of the Act would not be available in this particular instance. However, the Court ordered STARC to show compassion for working moms of newborns while taking the pandemic situation into consideration and to provide them with suitable childcare facilities.
General recommendations and suggestions
Maternity benefits are an important component of legislation or policy that offers a pregnant worker employment, health care, and financial stability. The government should develop a plan to provide an efficient process that strives to ensure the benefits of employers so that the competitiveness of the private sector is not damaged by burdening the entrepreneur. The Government of India recently proposed funding half of the paid leave amount that companies provide in the extended maternity leave benefit scheme in order to lessen the load placed solely on the employers. The plan is awaiting approval. According to the idea, the government is prepared to cover the wage for seven weeks of additional leave under the provisions for new mothers. Despite the benefits of the various maternity benefit laws and programmes, they can have some negatives, including:
Only the majority of women employed in the organised sector were able to take advantage of the Maternity Benefit Act of 1961’s benefits. Of the total number of women working in India, only 4% are employed in the formal sector. When a woman gets pregnant, she is immediately viewed as a burden. The Act has a biassed nature in favour of those who work in the formal labour force.
The Act does not include a provision for paternity leave and places the burden of raising the child solely on the mother. The addition of paternity leave is seen as crucial in order to develop a system that allows for a balance to be struck between obligations.
The paid maternity leave term is unfair because it is only 12 weeks for mothers who adopt or commission children while it is 26 weeks for biological mothers. It is significant to notice that the amount of time and focus needed to get up and take care of the child is comparable in both scenarios.
In the event of a third birth, the number of paid weeks is reduced to twelve; this has a negative effect on the child’s upbringing.
Extended maternity leave puts a financial strain on companies.
The amount paid under different programmes is insufficient to cover all of a pregnant woman’s needs.
The Act/schemes should be made known to the public through a variety of channels at the local level to raise more awareness.
A separate group should be established to examine how the Act is being used and how it is developing.
Conclusion
The Amendment Act has come into force with effect from 1 April 2017. All establishments covered under the Amendment Act were supposed to amend their existing maternity benefit policies to bring it in line with the Amendment Act with effect from 1 April 2017. The changes brought through the Amendment Act are applauded by everyone. However, there are different aspects of the Amendment Act that require clarity. It is not clear whether increased maternity benefits will also be applicable to women who are currently undergoing maternity leave. Furthermore, the justification for having separate effective date for implementing “work from home” option is not clear, for the reason that works from home is an enabling provision brought into force to inspire employers to provide such choice to a woman depending upon the nature of work being handled by her and not a statutory requirement under the MB Amendment Act. The requirements like creche facilities require more capital and operating expenditure on the part of the employer. The establishments will have to bear the whole cost of providing leave to employees. In most countries, the cost of maternity leave is shared by the government, employer, insurance agency and other social security programs.
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This article is written by Hardeep Sodhi, an Engineer, MBA and Legal expert. It is based on his experience and research in medical negligence cases, including his own.
It has been published by Rachit Garg.
Table of Contents
Introduction
This article seeks to address in a concise manner one aspect of a rather complex field of law – medical jurisprudence. Common understanding as well as laws as they exist are summarised, and the difficulty of their applicability to the medical field is elaborated.
Consent – as usually understood
Consent is a term very widely used and generally, with no difficulties in such usage. It usually means “to give assent or approval, to agree“. Pre-requisites of consent are an understanding of the issue at hand, and free will.
Consent as per Indian law
Under the Indian Contract Act (ICA), Consent can be clearly understood. It is defined in S. 13 as:
Two or more persons are said to consent when they agree upon the same thing in the same sense.
And “ free” consent is one of the key elements for any valid contract to take place. As set out in iS. 14 of the Indian Contract Act, Consent caused by coercion, undue influence, fraud, misrepresentation or mistake is not free.
In most of the above situations, the affected party can claim damages. In case of a mistake of fact made by one party, the contract is not voidable merely due this reason (S. 22), if made by both parties, it is void (S. 20) . If it is a mistake of law ( S. 21), it may still be executable ( it is not voidable). But if the mistake is that of material foreign law, it has the same effect as a mistake of fact. ( Sections indicated in brackets refer to the Indian Contract Act )
Add into the mix the aspect of “ competence to contract “. S. 11 sets defines a competent person as one or the age of majority, having a sound mind and not disqualified from contracting by any law to which he is subject.
If the damages are not due to any reasons set out above but due to the ‘negligence’ of one party, compensation for the same lies under the law of Torts. The principle here is that of “Restitutio ad integrum”. Simply put, this principle mandates that the amount of compensation awarded ( to one who has suffered due negligence ) should put him/her in the same position that would have been the case if the tortious action had not been committed. So the sufferer may, for example, be awarded damages for direct expenses such as medical bills and property repairs and the loss of future earnings attributable to the injury. This is, of course, highly subjective and controversial.
Not only in the Indian Contract Act, but consent also finds a central place in many other Acts. For instance, Hindu Marriage Act ( Sections 5, 11, and 12(c) ), and several provisions of the Indian Penal Code ( S. 90, for example ). Generally, the provisions may be understood and applied without much difficulty.
So far so good, usually, but difficulties start emerging when the peculiarities of the Medical Field are considered.
Peculiarities of consent in the medical field
Consent in medical situations is a far more complicated matter. Medical negligence is a crime punishable. However, it differs much from our usual perception of a ‘crime’. It is done usually without ‘independent’ witnesses, away from public eyes (in operation theatres). Specifically, in aspects of consent, the following are the stark differences.
Firstly, the two parties (a doctor and a patient) are usually not on an equal footing. On one side is a patient who has implicit trust in the doctor since supposedly, the doctor has the expertise and knowledge to give the patient help that the patient desperately needs. On the other side is a doctor who is, many times, almost like “ God” to the patient. A robust fiduciary relationship exists – indeed it must exist for the possibility of a cure. Try as one might, a patient can never equal an expert doctor as to the facts of his disease and treatments for it.
So, two aspects of invalid consent – undue influence and mistake of fact (at least by the patient) are almost inherently present.
To avoid the possibility of a mistake of fact/misrepresentation a doctor should explain the risks and rewards of his suggested procedure ( operation ) to the patient. This Is supposed to satisfy the criteria of “informed consent” as is required in all cases and elaborated upon by the Honourable Supreme Court as well (as set out in the Samira Kohli case discussed hereunder). Risk, however, by its very definition is a probability and not a certainty. And depends upon factors that can not be completely considered. To a doctor less experienced the same operation may be highly risky while another considers it as having little risk. Likewise, if a patient has undergone, say, a heart stent procedure before, he may consider the next stenting less risky than for someone who is undergoing stenting the first time.
Secondly, in the highly commercial world that we live in, doctors are not left untouched. A doctor – just like any businessman – has commercial considerations. This does not mean there is necessarily a dishonest intent. For example, a surgeon may genuinely believe a cure lies in surgery. Commercial considerations, however, may require him to suggest this surgery as an immediate and only option. In extreme cases, however, this may be due to dishonest intent as well, or overconfidence.
Indeed these considerations may make the doctor consciously or subconsciously downplay the risk of an operation. This is never expressed but presents the doctor with a strong dilemma. If the doctor tells a patient an operation is too risky, the patient may just refuse the operation. A commercial loss. Or, worse, the patient may seek another opinion and the next doctor may say he will manage the risks well. The operation may be a success. And the patient may recount his experience with both the doctors/ hospitals to countless others. Directly affecting reputations and monies each doctor/ hospital may charge.
The commercial considerations (and for which the Hospital may be more at fault than the doctor) may also reflect in many other not-so-apparent aspects – a doctor giving very little time to listen properly to a patient, misdiagnosis, reading the reports wrong (or not even asking for such reports), hurriedly done operations where the skills required may simply not be provided.
Thirdly, usually, the element of “ Mens rea” is taken to be lacking. Which is a necessary element of many crimes. Why would a doctor wish his patient wrong? Instead, the doctor’s reputation (and further $$$) relies upon treating a case successfully. So there is an implied understanding that “the doctor must be right”, thereby making the task of an inexperienced litigant (patient) all the more difficult when he seeks to establish medical negligence. The landmark Supreme Court Judgement – in Jacob Mathew Vs. State of Punjab & Anr. ( Crl. Appeal 144-145 of 2004 ) which is still settled law in India makes this very clear when it sets out stringent parameters to be followed before a case of medical negligence may be set out against a doctor.
Also, as can be readily understood, the guiding principle of “Restitutio ad integrum” which is very prevalent in cases where harm is suffered by someone simply may not hold in medical cases. One person dies on the operation table or is paralyzed. A female is rendered sterile for life. A patient is rendered blind. And many, many similar situations make clear that no amount of compensation awarded can put one who has suffered damage in the same position that would have been the case if the tortious action had not been committed. Of course, this tortious action could well be not explaining the risks of the surgery/treatment well – i.e. a case of misinformation and/or misrepresentation, if not outright fraud.
Above all these considerations is the fact that the human body is not a machine and yet not fully understood by doctors.
What does the Medical Council of India say about consent?
The Medical Council of India (now replaced by the National Medical Council) has hardly any elaboration on consent. All it says in its (Professional Conduct, Etiquette and Ethics) Regulations, 2002 about Consent as it applies to usual medical cases is: 7.16 Before performing an operation the physician should obtain in writing consent from the husband or wife, parent or guardian in the case of a minor, or the patient himself as the case may be. In an operation which may result in sterility, the consent of both husband and wife is needed.
So, if there is NO operation, there is no need for consent. This is confusing to some extent. What about injections, and tests ( some of which may be invasive and quite risky )? And when and how is this consent to be taken? How much risk is to be elaborated upon? How to evaluate the competence of the patient to give consent? How to make sure that the patient is sufficiently informed so as to give informed consent? The rule is silent on all these aspects. But, it is what it is.
What is the correct procedure for taking consent for medical treatment?
As is clear from the discussions above, the issue of consent in the medical field presents us with a very confusing landscape. The laws as set out (provisions of the Indian Contract Act, for example) cannot be applied as they are to this field although they set out the basic framework. Indeed no totally objective and verifiable laws may be made. Only attempts may be made to make the process of consent in medical cases as close to ‘valid’ consent as possible
To make matters worse, the country’s premium body tasked with ensuring proper conduct of the doctors – the National Medical Council – has chosen to remain largely silent on this very vexing issue.
Hence our only resort is the plethora of case laws arrived at from cases that have been adjudicated over the issue of consent in the medical field and the general guidelines we can glean from that.
Judicial reasoning on medical consent
The landmark case in Indian courts that has elaborated fairly comprehensively on the issue of medical consent is the Honourable Supreme Court Judgement in Samira Kohli vs Dr Prabha Manchanda & Anr, ( Civil Appeal No. 1949 of 2004) delivered on 16 January 2008. The Honourable Court thoroughly evaluated medical jurisprudence as it has evolved in India, the US, and the UK and finally concluded principles of consent (at Para 32). These are paraphrased as under:
All treatments including surgery require consent. The person consenting should have the capacity and competence to consent, should consent voluntarily and should have adequate information concerning the nature of his treatment.
This “ adequate information” has to be provided by the treating doctor or member of his team. The essence is to enable the patient to make a balanced judgement as to whether he should undergo the treatment being suggested by the treating doctor or not. So the doctor should explain the nature, procedure and purpose of the suggested treatment, and alternatives available, and outline of substantial risks and adverse consequences of refusing treatment. In explaining risks remote or theoretical risks that may cause the patient to be frightened enough to refuse treatment being suggested need not be described.
Consent for only a diagnostic procedure does not extend to a therapeutic treatment. Likewise, consent for a specific treatment does not mean consent for any other treatment, even if performed for the possible benefit of the patient. The only exception to this is when, during surgery on an unconscious patient, the other/additional treatment is necessary to save the life and/or the health of the patient and the other/additional treatment cannot be delayed till the patient regains consciousness.
If common diagnostic and operative procedures are being contemplated, common consent for the same may be taken. Similarly, common consent may be taken for a surgical procedure as well as additional or further procedures that may become necessary during the course of surgery.
The nature and extent of information to be furnished by the doctor to the patient to secure the consent need not be of the stringent and high degree mentioned in Canterbury but should be of the extent which is accepted as normal and proper by a body of medical men skilled and experienced in the particular field. It will depend upon the physical and mental condition of the patient, the nature of the treatment, and the risk and consequences attached to the treatment.
The emphasis in bold and underline above is provided by me for clarity.
This judgement leaves open many issues. It discards the doctrine of informed consent as was developed in the US in 1971, in the case of Canterbury Vs Spence. Instead, it stresses upon informing the patient only as much as may be “needed”, per the doctor’s perception, of what is ‘good’ for the patient ( at the time of the Canterbury decision Doctors were rather reticent in clearly elaborating on the risks and in testifying against one another, practices that continue even today). To reach this conclusion, the Hon’ble Supreme Court chose to rely more on the “Bolam test” which evolved in British Jurisprudence in 1957’s case of Bolam vs. Friern Hospital Management Committee. Under this test, standards of professional conduct ( including that pertaining to consent) are to be evaluated as compared to those of peers. And the peers need not be the “ best “ in their field but only the average. Hence, it is left to the doctor to decide how much risk to tell a patient and, if his body of “ reasonable peers skilled in the art” agreed with his actions, he is not at fault!
“84. Furthermore, because the extent to which a doctor may be inclined to discuss risks with a patient is not determined by medical learning or experience, the application of the Bolam test to this question is liable to result in the sanctioning of differences in practice which are attributable not too divergent schools of thought in medical science, but merely to divergent attitudes among doctors as to the degree of respect owed to their patients.
87. ……The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.”
Thus, as can be seen, this case imposes a much stronger duty on the doctor to make as complete a disclosure as possible to the patient.
In India, however, Bolam still continues to be a good law!
Hence, as can be seen in the Samira Kohli judgement, there is no mention of “ complete information “ above, only “adequate information “ needs to be given to the patient. This, of course, is highly subjective and suffers from many pitfalls, some of which are elaborated on above.
Further, in the Samira Kohli judgement, the doctor is tasked with the duty of disclosing “alternatives if any are available”. In actual practice, this has a host of issues.
Let us take an example to understand this better. Many people suffer from Obesity. And there are many treatments for the same -dieting and exercising being the usual ones. However, Sometimes bariatric surgery is an option that is explored.
A bariatric surgeon, well-reputed, is approached. He charges a good amount of fees and operates in a reputed hospital.
What will be the response of this surgeon to the efficacy and risk of the treatment offered by him? Will he elaborate completely on the risks? Most probably no, since he has confidence in his abilities and by elaborating completely on the risks he may just frighten the patient away. Again, for obvious reasons, the answer is no!
This is notwithstanding the commercial interest both he and his hospital have in having the patient come in and consent to the operation.
Going further, will this Doctor suggest the alternative of dieting and exercise to the patient? Remember he is NOT an expert in these. So, can he, to begin with, recommend these treatments? And if he does, he loses the patient, obviously.
So, as can be seen, with the best of intentions and recommendations even from the highest court of the land, things are not as straightforward as they seem. Indeed, each situation is almost unique in its own context and there are a plethora of case laws on the subject of ‘ informed consent’ that have evolved over the years. Some of which I hope to discuss in another article!
Conclusion – Consent in the Medical Field is complicated!
As the discussion above sets out, the issue of proper medical consent continues to confound medical jurisprudence. While there are broad guidelines as per the settled case of Samira Kohli case, that case itself in turn relies upon conclusions arrived at in the Bolam case, which is no longer considered good law even in its country of origin!
Hence it is time that the Indian jurisprudence also took note of the fast-changing, more and more commercialised aspect of medical practice in India and changed its laws accordingly. Hopefully, someone is listening!
References
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“Bariatric surgery.” Mayo Clinic, https://www.mayoclinic.org/tests-procedures/bariatric-surgery/about/pac-20394258. Accessed 4 October 2022.
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“Section Details.” India Code: Section Details, https://www.indiacode.nic.in/show-data?actid=AC_CEN_3_20_00035_187209_1523268996428§ionId=38617§ionno=14&orderno=14. Accessed 4 October 2022.
“Section Details.” India Code: Section Details, https://www.indiacode.nic.in/show-data?actid=AC_CEN_3_20_00035_187209_1523268996428§ionId=38614§ionno=11&orderno=11. Accessed 4 October 2022.
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