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ARTICLE ON 498A

INTRODUCTIONMarriage is one of the most significant things in a person’s life which binds an individual. It is a social institution where both the spouse has a responsibility to take care and maintain each other. But with marriage comes a burden called ‘dowry’; this is one of the social evil’s which is not new to the society and still exists. Dowry is the reason, because of which women get killed, harassed, divorced and suffers cruelty both physically and mentally.To ensure the safety of women which they suffered behind the walls of their matrimonial house, the Indian penal code, 1860 was amended in the year 1983 and inserted section 498A which deals with the cruelty of husband and his relatives on the wife.In India matrimonial cruelty is a cognizable, non bailable and non-compoundable offence, which is defined U/S 498A of The Indian Penal Code 1860 in chapter XXA.WHAT IS 498A?498A of The Indian Penal Code is an Indian law; it was inserted in IPC to cease cruelty on women. According to this section it is a crime if you are cruel to your wife or to your relative’s wife. According to law cruelty means-a)    Any willful conduct that is done either to cause serious harm to the women or makes the women mentally so disturbed that she wants to kill herself.b)   It makes it a crime to harass women to meet any unlawful demand for any property or valuable security from the bride’s family to the husband’s family.According to the law the person has commit cruelty shall be punished with imprisonment for three years and for a fine.Other laws for the protection of women from cruelty:·       Section 304B IPC 1860·       Section 113-A Indian Evidence Act 1872·       Domestic violence act 2005·       Section 306 IPC 1860TYPES OF CRUELTY ACCORDING TO 498A:a)     Cruelty by unlawful demandb)    Cruelty by committing extra marital affairc)     Cruelty by not accepting female childd)    Cruelty by distressing litigatione)     Cruelty by false attack on purityf)      Cruelty by taking away childreng)    Cruelty by inflicting pain h)    Cruelty that force a person to commits suicideMISUSE OF 498A:India is a patriarchal society where men are subjected as superior and women are subjected as a weaker sex. Cruelty to women by her husband or husband’s relative was not a new issue. In fact, most of the married women suffered from cruelty because of dowry demand and it got so severe that in some situations it became unbearable for the woman who is going through cruelty that they used to end their own life by committing suicide.The ratio of dowry deaths and cruelty by husband or husband’s relative is increasing, and to safeguard the same and to protect them from the violence 498A come into force in the year 1983.According to this section the women who are suffering from cruelty by their husband or husband’s relatives can file a complaint and the officer take prompt action. The offence is cognizable, non bailable and non compoundable who gives security to women that they are safe.The nature of this section is strict the women who are educated know that 498A is non bailable and non compoundable and they misuse it for their personal gain. By using this section, a woman gets to divorce her husband or even gain money as compensation. Sometimes women use this section to take revenge or to get the power of dominance.The section is made to protect women from cruelty and secure their rights but it was misused and because of its strict nature the man who is innocent suffers a lot. It is humiliating for them as it harms their mental health or they become isolated.There are a lot of fake cases registered under this section and the court gives its opinion to find a solution and before arresting a person investigate the matter.The position of women in India is still bad and they need protection but some women do not understand the seriousness of the problem and take undue advantage of the situation which harms the right of others.AMENDMENT:After observing lots of fake cases and heard about the misuse of 498A The Supreme Court amended the section and struck down the family welfare committee, the task of the committee was to examine each case before carrying out the results. Section 498A of the IPC pertains to the domestic violence and dowry harassment faced by the women. The court further said that the police can only arrest the person if they find it necessary and further added that the arrested person can also apply for an anticipatory bail.It was amended in 2018.CASE LAWS:JASBIR KAUR vs. STATE OF HARYANAKANARAJ vs. STATE OF PUNJABSTATE vs. SRIKANTHCONCLUSION:498A was inserted in IPC for the protection of married women from their husband and husband’s relative but now the scenario is different many women took advantage of its non bailable and non compoundable nature and registered a false case.The court has amended the section but still there are loopholes. The section defines cruelty and directs a punishment for 3 years imprisonment and fine also but what about the men who go through mental cruelty because of their wives.The law is equal to both men and women. There are many laws to protect women; to ensure their safety but there is no provision to protect men who is suffering from domestic violence, there should be similar laws to protect harasses husband and his family member from the wife.Laws are made to protect one’s right, but when the people start to misuse it then they should face the consequence. Everything is not a joke, there are women who are helpless and need help from such social evils. They are fighting every day and suffer a lot but because of some women’s foolishness it becomes difficult to grant justice to them. The female who register false case should be penalized with imprisonment and that too rigorousso that the others will not take the provision as a joke and realize the seriousness of the problem.

Posted By

sahista aslam

2 weeks ago

THE LEGAL VALIDITY OF MOU IN INDIA

In my previous blogs, I have explained about MOU [better known as MEMORANDUM OF UNDERSTANDING] and how does it work. Also, that a Memorandum of Understanding or “MOU” is used at a variety of places starting from business, divorce, partnership firms, companies, familial relationships, government organisations, between Foreign and Indian Nationals etc. It is the general notion that a “MOU” is non biding and has got no legal validity in India. In my present blog, I shall discuss about another unanswered question which have had contrasting views and try to discuss each aspect and then conclude and comment upon the validity of “MOU” in India. The basic stressing areas shall include the following1.     Introduction to the validity of “MOU”2.     Legal position of “MOU” in Indian Law3.     Enforceability of “MOU”a.      In General b.     International “MOU”c.      “MOU” between two countries 4.     Landmark Judgments 5.     Personal Opinion6.     Conclusion INTRODUCTION TO THE VALIDITY OF “MOU”A “MOU” is generally said to be a ‘non-binding agreement’ which does not have any legal enforceability and thus acts merely as a ‘letter of intent’ between two parties who mutually agree or disagree to do or not to something and on the basis of which another legally binding instrument is executed keeping all the previous understandings outlined in such “MOU” and giving it effect. As such we can decipher two things 1.     A “MOU” is merely a statement of understanding between two or more parties which when made has no enforceability in the eyes of law as such an agreement has no intention to create a legal bond between such persons. As a result of which, if in case there is a breach of such “MOU” there is no relief. 2.     It is a well-established rule of law that – “All contracts are agreements but, all agreements are not contracts”. This is so because for a contract to be valid it needs to fulfil all the essential ingredients mentioned u/s 10 of The Indian Contract Act, 1872. One of which is – “an intention to create legal relationship between the parties to such contract”. However, now the question arises that what if A “MOU” is drafted in such a manner that is fulfills all the ingredients of section 10??? Can such a “MOU” be a valid contract and be legally enforceable in a court of law???Can such a “MOU” compel the other person to oblige to the same and the breach of such “MOU” will be treated similar to that of a breach of contract??? It is also true that ‘Nomenclature’ of a contract or an agreement is not an index to determine the validity or invalidity of the same. Stating an agreement to be a “MOU” does not explicitly denote that such contract is non-binding.LEGAL POSITION OF “MOU” IN INDIAN LAWAs mentioned above, now that we can understand the fact that it is not necessary for a “MOU” to be non-binding. The question of whether such a “MOU” is legally binding or not depends upon the intent of the parties to create a legal relationship to that extent. Therefore, we can say that the legal position of “MOU” in Indian Law depends upon the intent by which such a document is made and thus such an intention of creating a legal relationship by way of such a “MOU” plays a pivotal role in determining the legal position of the same. Also, it must be noted that the construction of such “MOU” holds primary importance in setting the legality and the construction of words play a pivotal role in the same. If the parties intend to create a legal binding effect to a “MOU” then,a.      The construction of the words shall be of such nature ü Use of the word ‘shall’ instead of ‘may’ü ‘would be’ instead of ‘can be’ü ‘should be’ instead of ‘might be’ So, on and so forth. The use of such words tries to create a legal relationship by making the other person liable to do a certain act. The words shall, would, should, instead of may, can, might are of a superior nature and bind the acts which follow after such words. b.     “legal binding clause”ü A “MOU” would be legally binding if the parties thereto agree to insert any such clause, the literal meaning upon reading of which would mean that such a “MOU” intends to create a legal relationship between the parties to the contract and that the breach of such provisions would mean the same as a breach of a contract under the Indian Contract Act, 1872. c.      In consistency with section 10 of the Indian Contract Act, 1872ü If a “MOU” fulfills all the conditions laid down u/s 10 of the Indian Contract Act, 1872 then, such a “MOU” should be treated as a contract as defined in section 2(h) of The Indian Contract Act, 1872. Hence, giving it a legal force. d.     Insertion of a “dispute resolution clause”ü If a “MOU” inserts a dispute resolution clause, then, it binds the parties to perform their obligations as mentioned or specified in such “MOU”. Non performance of which will lead to breach/dispute for which the “MOU” in itself shall contain a clause which shall provide the method in which such dispute shall be resolved in good faith and in an amicable manner. Thus, from the above we can say that – The principle legislation governing “MOU” in India is dealt with the Indian Contract Act, 1872. Also, in order to make a “MOU” legally enforceable it must have a clear intention to bind the parties to a contract whereby both come under specific obligation to perform their part of the duties. ENFORCEABILITY OF “MOU”As has been discussed earlier in this blog, the enforceability of a “MOU” depends upon the principle governing legislation. I.e. The Indian Contract Act, 1872. In light of this, the enforceability of “MOU” can be divided into 3 categories. a.     In General b.     International “MOU”c.      “MOU” between two countries IN GENERALIn the general sense, the enforceability of a “MOU” can be divided into two categories. They are: 1.     When it fulfills the conditions of a Contract as per The Indian Contract Act, 1872.ü If the “MOU” satisfies the conditions laid down u/s 10 of The Indian Contract Act, 1872 then, the performance of such obligations laid down in the “MOU” can be enforced vide The Specific Relief Act, 1963. ü However, such a relief shall only be granted under The Specific Relief Act, 1963 when, the damage caused to the aggrieved party by way of non-performance of obligation cannot be ascertained and compensation for in lieu of such damages fails to become an appropriate remedy. Sen Mukherjee and Co vs. Chhaya Banarjee [AIR 1998 / CAL 252]2.     When it does not fulfill the conditions of a Contract as per The Indian Contract Act, 1872.ü In certain cases, the courts may find that the “MOU” lacks certain requirements to form a valid Contracts and hence the same cannot be enforced. ü However, even in the above circumstance a person has the right to approach to the court on the basis of: Ø Principles of promissory estoppel     &Ø EquityMotilal Padampat Sugar Mills Co. Ltd. vs. State of Uttar Pradesh   [AIR 1979, SC 621]ü Even beyond that, a “MOU” can be held as enforceable merely on the grounds of equity and on the basis of the general principles of equity irrespective of whatever deficiency it holds is still held to be a contract. Subimalchandra Chatterji vs. Radhanath Ray [AIR 1934, CAL 235]INTERNATIONAL “MOU”ü Any International “MOU” is executed in the form of a treaty or a covenant which is then registered under the ‘United Nations Treaty Collection’.ü These International “MOU” should be registered and by doing so one avoids political diplomacy and secrecy.ü The enforceability of a National or International “MOU” does not differ. In both the cases, the enforceability is dependent upon the intention so conveyed through the construction of such “MOU” ü The title of such International “MOU” nowhere mentions whether it is a legally binding document or whether it is non-binding document. It is prudent to mention here that, The International Court of Justice in the year 1994, July 1st [Quatar vs. Bahrain] has expressed their views upon the legality of “MOU” and had also provided various standards to be maintained for the legality of such “MOU”INTERNATIONAL “MOU” BETWEEN COUNTRIESü As it has already been mentioned and is clear now that no “MOU” is legally binding without the clear intention of it making it as binding. ü Nevertheless, there are “MOU” between countries for a variety of reasons and some of them can be as follows. The “MOU” entered between two countries can have the object and purpose of: - 1.     Exchanging resources between themselves 2.     Exchanging technology between themselves 3.     Student exchange programs4.     Exchange of technical support 5.     Military Support 6.     Understanding of peace 7.     Understanding of trade 8.     Understanding of allies          ETCü The above list though not exhaustive, mentions some of the reasons why two countries enter into a “MOU” and act accordingly. ü Also, every “MOU” must not be formally designed and executed, but those which have been formally designed and executed must be registered and include the exchange of some monetary value with the same. LANDMARK JUDGMENTSGiven below are a list of landmark judgments which have been held to be useful in deciding the legality or non-legality of “MOU” CASE LAWS WHERE “MOU” HAS BEEN DECLARED AS A LEGALLY BINDING DOCUMENT 1.     BrikramKishore Parida v. Penudhar Jena2.     Structural Waterproofing & Ors. v. Mr. Amit Gupta3.     Jai Beverages Pvt. Ltd. v. State of Jammu and Kashmir and Ors4.     Millenia Realtors Private Limited v. SJR Infrastructure Private Limited 5.     Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh6.     M/s. Nanak Builders and Investors Pvt. Ltd. v Vinod Kumar Alag7.     Kollipara Sriramulu vs. T. Aswathanarayana &OrsCASE LAWS WHERE “MOU” HAS NOT BEEN DECLARED AS A LEGALLY BINDING DOCUMENT 1.     Monnet Ispat and Energy Ltd. v. Union of India and Ors2.     Jyoti Brothers v. Shree Durga Mining Co PERSONAL OPINIONAfter going through all the above details, facts, and decisions one can conclusively conclude that a “MOU” is generally a non-binding agreement made for the purpose of making another agreement which shall rely upon the principles of such “MOU” and then carter them into a legally binding agreement. Going by the same logic it is stated by the courts that any agreement which is made for the purpose of making another agreement cannot be given the legal status of an agreement. So, to say, an agreement for an agreement is not enforceable. However, now the question arises that – if a “MOU” which is said to be an agreement on the basis of which another agreement is made which then becomes a contract and the breach of such contract shall be legally bending but not a “MOU”. Then, would it be right to say that 1.     A pre-mortgage agreement 2.     A pre-sale agreement 3.     A pre-lease agreement           ETCOr, any such agreement which has the same purpose that which of a “MOU” merely having different names as mentioned above shall also come under the same purview and shall not be legally binding? To which I can deduce the following: - 1.     Mere heading of any agreement shall not be used as an index to come to the decision of its legality or illegality. The contents of the same shall hold value and the agreement in full shall be taken into consideration with respect to equity and principles of promissory estoppel. 2.     The construction and use of words in such agreement shall also be taken into consideration which will further help the reader to analyse the same and conclude whether such agreement was made with an intention to comply with or was it made just for namesake and was merely a promise. 3.     Insertion of various clauses like “legal binding” “indemnification” “damage” “breach” which shall show the clear intention to make such agreement legally binding would play a pivotal role. 4.     A “MOU” is said to be an agreement which needs to fulfil the valid requisites of a contract u/s 10 of The Indian Contract Act, 1872 as it is the guiding principle legislation. Hence it can be said that if any agreement [irrespective of its nomenclature] fulfils the conditions as laid down u/s 10 of such act shall be deemed to be legal and enforceable. CONCLUSION From the above we can finally come to the conclusion that: - 1.     Any agreement to be a contract shall fulfil the provisions of section 10 of The Indian Contract Act, 1872. 2.     An agreement may or may not be legally binding depending upon the intention between the parties who enter into a contract. 3.     In its generic definition a “MOU” is defined to be a non-binding document, however, if there lies a clear intention of compliance then such “MOU” shall be binding. 4.     It is a well-established rule of law that if a “MOU” fulfils all the conditions laid down u/s 10 of The Indian Contract Act, 1872 then, such a “MOU” shall be legally binding. 5.     Apart from everything a “MOU” can be enforceable in spite of deficiencies on the grounds of equity and promissory estoppel as held in the case of Subimalchandra Chatterji vs. Radhanath Ray [AIR 1934, CAL 235]. 

Posted By

Shreyash Mohta

4 weeks ago

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  • What is domestic violence?
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What is domestic violence?


Domestic Violence refers to any form of abuse which causes harm/injury to the mental and/or physical health of a woman which compromises her life and safety. Any form of harassment in lieu of dowry demands also constitutes domestic violence.

Indian laws aim at the deterrence and removal of domestic violence. To achieve this, a legislation called The Protection of Domestic Violence Act was passed which came into force in 2005. It aims at upholding the constitutional principles enshrined in Article 14, 15, 21 and the other policies which are in force in India.

As per The Protection of Women from Domestic Violence Act, 2005, every aggrieved woman or a child who is, or has been, in a domestic relationship with the perpetrator or the aggressor of the domestic violence, can avail the facilities provided by the act.

Domestic Relationship refers to a relationship between two persons who live or have, at any time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in nature of a marriage, adoption or are family members living together as a joint family.

There are several recognised forms of domestic violence, some of them are physical violence, emotional abuse, sexual assault, dowry harassment, and so on.

The Protection of Women from Domestic Violence Act, 2005 provides several reliefs, some of them are monetary reliefs, custody orders, ex-parte and interim orders, right of residence, and so on. An order made under The Protection of Women from Domestic Violence Act, 2005 is enforceable throughout India. If a person experiences domestic violence, then they must file a First Information Report (F.I.R), they can make use of The Protection of Women from Domestic Violence Act, 2005 and register a Domestic Incident Report (D.I.R). The Magistrate can also be directly approached in instances of domestic violence. Section 498A of the Indian Penal Code recognises cruelty to a woman as an offence. It is indicative of the Indian Law’s stance on the issue of domestic violence. Section 498A says the following –

Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may exten

d to three years and shall also be liable to fine. The offence is Cognizable, non- compoundable and non-bailable.

Domestic violence is a heinous crime in which the victims often end up concealing the crime with their silence. Such crimes are psychologically damaging and act as a hindrance in achieving a healthy society. Appropriate steps must be taken to keep this social wrong in check.

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