JOINDER OF PARTIES

Joinder Of Parties | Compulsory Joinder | Explanation

Joinder of Parties

The question of Joinder of parties may aries either as a regard the plaintiffs or as regards the defendant. An act may be done by a single individual and may adversely affects another individual. In that case, the  “joinder of parties” does not arise. The question of joinder of parties arise only when an act is done by two or more person or it affects two or more persons.

(Also Read: Section 125 or Domestic Violence act here )

Order 1 Rule 1 of Joinder of Parties

What do you mean by Joinder of Plaintiff.

It states that all person may be joined in one suit as a plaintiff if the following two condition are full field:-

  • The right to relief alleged to exist in each plaintiff arise out of same act or same transaction: and
  • The case is of such nature a character that if such person brought separate suit, any common question of law or fact would arises.

 

For Example:-

A and B throw C out of the house.

Cause of Action:- Same, or Both A and B can file a Case jointly.

Order 1 Rule 3 of Joinder of Parties

 

Joiner Of Defendant – Joinder of Parties

It states that all person may be joined in one suit of defendant if the following two condition are full field:-

  • The right to relief alleged to exist in each defendant  arise out of same act or same transaction: and
  • The case is of such nature a character that if such person brought separate suit, any common question of law or fact would arises.

 

For Example:-

A Throw C and D out of the house.

A will Jointly file a plaint against C and D

 

Order 1 Rule 10 under Joinder of parties

Performa Defendant:

  • C throw B and A out of the House.
  • B dose not want to inlove in this case.
  • Then A will make B also as a defendant but only for name sake.

 

A and B are joint owner of the house and C dispossed them since B does not want to be Co- plaintiff in the suit, so A made him Co-defendant.

 

Example:-

Since there is no conflict of interest between A and B. B is merely a performa defendant, bu doing this A is merely examine that B become party to the suitand to avoid the suit to become infrustious.

Whenever there are two or more parties who have jointly interest in the subject matter of the suit and one of them is not willing to become a plaintiff, the other plaintiff can make him the co-defendant, this conflict of interest is with other defendant and not with the plaintiff or with the plaintiff he has a joint interest. Such a defendant who has been a defendant only in order to avoid the suit become infructious on the decree becoming inexcutable, will be called a performa defendant, such a defendant can always be transposed by the court from the position of defendant to that of the plaintiff.

 

Non Joinder ( Joinder Of Parties)

Where a person who is a necessary party to a suit has not been joined as a party to the suit, it is case of non-joinder. If the decree cannot be effective without the absent parties the suit is liable to be dismissed.

 

Miss Joinder – Joinder of Plaintiff

Where there are more plaintiff than one and they are joinder together in one suit but the right to relief alleged to exist in such but the right to relief alleged to exist in such plaintiff does not arise of the same act or transaction and if separate suit were brought no common question of law or fact would arise, it is a case of miss joinder of plaintiff. Miss Joinder of defentant takes place when two or more person are joined as defendants in one suit but the right to relief alleged to exist against such of them does not arise from same act or transaction and there is no common question of law.

 

Disclaimer

All the information provided in the article is to our best of knowledge on the subject. We hold no responsibility, whatsoever, in case of any disparency in the information provided. You could let us know through the comments section or by contacting us through our Contact Us page if you feel anything mentioned above is wrong. Our team of writers tries their best to provide the correct information always with a unique choice of words to deliver the information correctly to you. However, we take no guarantee for it and you’re completely free to trust or ignore the information provided in the article.

what is a summon

What is a Summons or Summons by Court

What is a Summons : Meaning 

 The common question is asked by many people is what is a summons.

when the plaintiff files a suit, the defendant has to be informed that the Suit has been filed against him and that he is required to appear in the Court to defend it. The intimation which is sent to the defendant by the court is technically known as “summons”.

 

Though the said expression (summons) has not been defined in the Code, according to the dictionary meaning,

“A summons is a document issued from the office of a court of justice, calling upon the person to whom it is directed to attend before a judge or ofncer of  the court for a certain purpose.”

The answer of What Is a Summons is explained now we will discuss few things about summons.

(Also read : Codification of Law, Advantages and Disadvantages)

what is a summon  and its Essentials

When a suit is filed by the plaintiff against the defendant and a relief is claimed, the defendant must be given an opportunity as to What he has to say against the prayer made by the plaintiff. This is in consonance with the principle of natural justice as no one can be condemned unheard (audi alteram partem). If the defendant is not served with the summons, a decree passed against him will not bind him and if he don’t know about What is a summons then he will be explained by the person.

 

 Essentials of summons: Rules 1-2

Every summons shall be signed by the judge or such officer appointed by him and shall be sealed with the seal of the court, and must be accompanied by a plaint.

 

Form of summons 

Every summons should be in the Forms prescribed in Appendix B to the (First) Schedule of the Code.

Summons to defendant: Section 27; Order 5 Rule 1 

Order 5 deals with summons (what is a summons) to a defendant while Order 16 deals with summons to witnesses.  When a suit has been duly filed by presentation of a plaint, the court must issue summons to the defendant calling “P0” him to appear and answer the claim of the plaintiff by filing a Wilma statement within thirty days from the date of service of summons. No summons, however, will be issued by the court if, at the time of presentation of a plaint, the defendant is present and admits the plaintiff’s claim.

 

Appearance in person: Rule 3 

A defendant to whom a summons has been issued, may appear (I) in person; or (a) by a pleader duly instructed and able to answer all material questions relating to the suit; or (3) by a pleader accompanied by some person able to answer all such questions.141 The court, however, may order the defendant or plaintiff to appear in person.142

Exemption from appearance in person: Sections 132-33; Rule 4 

No party shall be ordered to appear in person:

(1) unless he resides

(a) within the local limits of the court’s ordinary original jurisdiction or  outside such limits, but at a place less than (i) so miles; or (ii) 200 miles (where public conveyance is available) from the courthouse or

 

(b) who is a woman not appearing in public; or

 

(6) who is entitled to exemption under the Code. 

 

(h) Contents of summons: Rules 5-8

 

The summons must contain a direction whether the date fixed is for settle~ ment of issues only or for final disposal of the suit. In the latter case, the defendant should be directed to produce his witnesses. The court must give sufficient time to the defendant to enable him to appear and answer the claim of the plaintiff on the day fixed. The summons should also contain an order to the defendant to produce all documents or copies thereof in his possession or power upon which he intends to rely on in support of  his case.

(i) Mode of service of summons: CPC Rules 9-30 of summon- Heading – “What is a Summon”

The service of summons is of primary importance as it is a fundamental rule of the law of procedure that a party must have a fair and reasonable notice of the legal proceedings initiated against him so that he can defend hims if. The problem of service of summons is one of the major causes of delay in the progress of the suit. It is common knowledge that defendants try to avoid service of summons. The Law Commission considered a, Problem and it was felt that certain amendments were necessary in Ill; direction and a defendant can be served by a plaintiff or through megt em means of communication. Accordingly, amendments were made in the Code in 1976, 1999 and 2002.

The Code prescribes five principal modes of serving a summons ma defendant:

( 1) Personal or direct service: CPC Rules 10-16, 18 

Rules IO to 16 and I8 deal with personal or direct service of summonS upon the defendant. This is an ordinary mode of service of summons. Here the following principles must be remembered:

 

  • Wherever it is practicable, the summons must be served to the defendant in person or to his authorised agent.”

 

(ii) Where the defendant is absent from his residence at the time of service of summons and there is no likelihood of him being found at his residence Within a reasonable time and he has no authorised agent, the summons may be served on any adult male or female member of the defendant’s family residing with him.” A servant, however, cannot be said to be a family member.”

(iii) In a suit relating to any business or work against a person, not residing within the territorial jurisdiction of the court issuing the summons, it may be served to the manager or agent carrying on such business or work.”

(iv) In a suit for immovable property, if the service of summons can not be made on the defendant personally and the defendant has no authorised agent, the service may be made on any agent of the defendant in charge of the property?” Where there are two or more defendants, service of summons should be made on each defendant.”

In all the above cases, service of summons should be made by delivering or tendering a copy thereof. Where the serving officer delivers or tenders a copy of summons to the defendant personally or to his agent or othei person on his behalf, the person to whom the copy is delivered or tendered must make an acknowledgment of service of summons.” The serving officer, thereafter, must make an endorsement on the original summon? stating the time and manner of service thereof and the name and address of the person, if any, identifying the person served and witnessing the delivery or tender of summons.

Service by court: CPC Rule 9 

Summons to defendant residing within the jurisdiction of the court shall be served through court officer or approved courier service.“ Summons can. also he served by registered post, speed post, acknowledgment due (RPAD), courier service, fax, message, e-mail service or by any other per-l ,nissible means of transmission.161 Where the defendant is residing out-J side the jurisdiction of the court, the summons shall be served through an officer of the court within whose jurisdiction the defendant resides.

Though there can be no objection in giving an opportunity to the plainv tiff to serve summons on the defendant, there should be sufficient safee guards to avoid false report of service of summons. High Courts should make appropriate rules or issue practice directions to ensure that the pro« visions are properly implemented and there is no abuse of process of law.“

ALSO READ

ARTICLE 18 OF INDIAN CONSTITUTION

ARTICLE 16 OF INDIAN CONSTITUTION

ARTICLE 29 OF INDIAN CONSTITUTION

ARTICLE 1 OF INDIAN CONSTITUTION

 

Service by plaintiff: CPC Rule 9-A 

The court may also permit service of summons by the plaintiff in addition to service of summons by court.

Substituted service: CPC Rules 17, 19-20 

“Substituted service” means the service of summons by a mode which is substituted for the ordinary mode of service of summons. There are two modes of substituted service. They are:

(a) (i) where the defendant or his agent refuses to sign the acknowledgment; or (ii) Where the serving officer, after due and reasonable diligence, cannot and the defendant who is absent from his residence at the time of service of summons and there is no likelihood of him being found at his residence within a reasonable time and there is no authorised agent nor any other person on whom service can be made, the service of summons can be made by afhxing a copy on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works. The serving officer shall then return the original to the court from which it was issued with a report endorsed thereon stating the fact about affixing the copy, the circumstances under which he did so, and the name and address fo the person, if any, by whom the house was identified and in whose presence copy was affixed.“‘ If the court is satisfied, either on the affidavit of the servin§ officer or on his examination on oath, that the summons has been duly served it may either declare that the summons has been duly served or may make further inquiry in the matter as it thinks fit.

(b) Where the court is satisfied that there is reason to believe that the defendant avoids service or for any other reason the summons cannot be served in the ordinary way, the service may be effected in the following manner by affixing a copy of the summons in some conspicuous place in the courthouse; and also upon some conspicuous part of the house in which the defendant is known to have last resided, carried on business or personally worked for gain; or (if) in such manner as the court thinks fit.

It, however, must be remembered that this is not a regular mode of service and hence, it should not normally be allowed and can be effected only as a last resort. Before more than a century ago, in Cohen v. Nursing Dassm, it was stated, “It is true that you may go to a man’s house and not find him, but that is not attempting to find him. You should go to his house, make enquiries and, if necessary, follow him. You should make enquiries to find out when he is likely to be at home, and go to the house at a time when he can be found. Before service like this can be effected it must be shown that proper efforts have been made to find out when and where the defendant is likely to be found-not as seems to be done in this country, to go to his house in a perfunctory way, and because he has not been found there, to affix a copy of the summons on the outer door of his house.”

Where the court orders service by an advertisement in a newspaper, the newspaper should be a daily newspaper circulating in the locality in which the defendant is last known to have actually or voluntarily resided, carried on business or personally worked for grain)” Such service is an effective service, even if the defendant is not the subscriber of the newspaper or is not reading it.

Under Rule 2.0, the service of summons is effected by the order of the court only after the court is satisfied that the defendant avoids service of summons or it cannot be served in the ordinary way. Such satisfaction must be recorded by the court in writing)” Substituted service is as effective as personal service)” The court must fix a time for the appearance of the defendant and give him a reasonable time to appear before the court.

Service by post

When an acknowledgment purporting to be signed by the defendant or his agent is received by the court, or the defendant or his agent refused to take delivery of summons when tendered to him, the court issuing the summons shall declare that the summons had been duly served on the defendant.180 The same principle applies in a case where the summons was properly addressed, prepaid and duly sent by registered post, acknowledgment due, and the acknowledgment is lost or not received by the court within thirty days from the date of issue of the summons. Where the summons sent by registered post is returned with an endorsement “refused”, the burden is on the defendant to prove that the endorsement is false.”‘

 

 

Where the defendant refuses to accept summons. He is deemed to have been served. Similarly, where an acknowledgment or receipt purported to have been signed by the defendant (or his agent) is received by the court that the defendant (or his agent) has refused to take the delivery of summons, the court will proceed treating the defendant as served.

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Reference:-

CIVIL PROCEDURE: C.K TAKWANI 8TH EDITION

INDIAN VISA

INDIAN VISA : CAN FOREIGN NATIONALS STAY IN INDIA BEYOND THE AUTHORISED PERIOD?

In this article, YASH PURVIYA from KIIT School Of Law discusses about INDIAN VISA AND CAN FOREIGN NATIONALS STAY IN INDIA BEYOND THE AUTHORISED PERIOD?

INDIAN VISA : CAN FOREIGN NATIONALS STAY IN INDIA BEYOND THE AUTHORIZED PERIOD?

Formalities for Foreigners for Indian Visa:

  • Foreigners who come to India must having a genuine and valid national passport or other recognized travel document affirmed internationally their nationality and identity and carrying a photograph from abroad. Nepal and Bhutan nationals if they enter India via land or air from Nepal and Bhutan, respectively, do not need a Indian Visa on arrival to enter India . However, they must be in possession of an authorized identity card. Also, if you enter India from a place other than your own country, possession of a national passport is essential. Foreigners need to enter India through an authorized or airport control station. And they are subject to immigration control at the airport or at the lock station. All foreigners entering India or leaving India by air or by sea must provide a true statement of data in the boarding form ‘D’ embarkation card.

 

  • Standards and regulations vary from country to country and time to time depends on the situation and circumstances. However, during the normal state of affairs declared by the Government, the Indian visa can be obtained by the foreigners for the period of six months, one year and ten years depend on the requirement and purpose of the visitors. The validity of the Indian visa issued by the government will be figure up from the date of issuance of the visa and not from the date of entry. India does not provide post-dated visas. The Government of India has makes the provision for issuance of Visas for non-residents. The civil authority of the Government of India can detain any foreigner by invalid passport, insane, convictions or detrimental to the country’s interest, suffering from contagious diseases.

 

  • All the foreign nationals who wish to stay beyond 180 days shall have to register themselves at the Foreigners Registration Officer within 2 weeks of arrival failing which may cause the prosecution under section 5 of the Registration of Foreigners Act, 1939. Under the Registration (Exemption) Order 1957, foreigners children under the age of 16 years residing in India, need not to register their name as they are exempted under this order but they will be given a residential permit for staying in India and at regular interval they need to obtain extension for their stay.

(ALSO READ : What is a Summons or Summons by Court)

Kinds of visas OR Indian Visa

Particular Visas are issued according to the requirement and purpose of the applicant. There are many different types of visas which are follows:

  • Tourist visas: Tourist visa is valid for a period 180 days and it is granted for the purpose of tourism. The visa is valid from the date of issue. As per rule, on a tourist visa extension of stay cannot be granted beyond 180 days, except in exceptional cases.
  • Collective visas: There exist also a provision of collective visa, aiming at group tours having at least four or more members and it should be sponsored by a government recognized travel agency. And such group may divide into smaller group for the purpose of visiting different part of India after obtaining a collective license to travel from the immigration authorities in India. However, they must reassemble and depart as the original group.
  • Transit visas: Transit visa is granted for a purpose other than tourism. The Indian Mission abroad granted this Transit Visa for 72 hours within 15 days from the date of issue.
  • Business visas: This visa is refer to multiple entry business visa issued by the Indian embassy which is valid for up to the period of 6 months that can be extended up to five years, however, each visit is limited to 180 days depends on the nature of business.
  • Student visa: This Visa is given to students for the purpose of their study. This visa is given for higher studies to genuine students to pursue their education at the recognized institutions in India. The validity of this visa is for one year but can be extended in India for the duration of the course.
  • Conference visas: This visa is issued for delegates who are attending conferences in India that may take up to four weeks. This visa can be granted for covering conference as well as for tourism purposes in India. Delegates are advised to apply for Conference Visa to Indian Embassies well in advan

Entry Visas: This visa is refers to multiple-entry Visa which is issued only to the persons of Indian origin valid for 6 months to 5 years stay. A members of the family of a person employed in India can also apply for this visa.

Extension or conversion of visa:

If a foreign citizen who holds a valid visa for less than a year who wishes to convert it into a visa valid for more than one period will have to approach the Ministry of Internal Affairs for the said visa conversion .Work permits or employment visas are also extendable in India.

Foreign nationals who want to stay in India beyond the authorized period should apply for Indian visa for extension of stay 90 days before his residential permit is due to expire. The union Government has delegated limited powers to the Foreigner Registration Office to grant extension of stay to foreigners.

In India, the FROs is the central agency to regulate the movement, registration, stay, departure, and also for recommending the extension of a stay in India. In case any request of a foreign national foe extension of visa is forwarded by FRROs or FROs to the Ministry of Home Affairs for approval, FRROs or FROs may grant temporary extension of visa for 3 months and also may grant return visa for visiting their home country. An application for extension of visa is needed to be submitted at least 60 days before the expiry date of their respective visa or residential permits. foreign nationals is liable for prosecution under the Foreigners Act 1946 and shall be liable for a term extend up to 5 years of imprisonment with the fine and expulsion from India in the events of overstay.

 

If there would be any specific stipulation that the foreign national can only live up to 180 days consecutively on the Business Visa issued by the Indian Embassy then the term regarding number of days of staying cannot be altered and the foreign national will have to follow the condition. But if the foreign national due to some reason is not in a position to comply with the rules and leave the country on expiry day of visa then the foreign national will have to contact with FRRO officers with an application which would contain the reason for the extension which the foreign national need and for what period. The FRO will have to examine the matter and on the merits of the case a decision will be taken and the decision will not be subject to appeal by the foreign national.

WHO ARE FOREIGN NATIONALS IN INDIA

 

By the term foreign nationals we could refer to those persons who came from any other country, for temporarily staying in India. They are not a citizen of this country they are staying temporarily only. A foreign national in India is someone who is neither an Indian citizen nor a permanent resident of India. In other words, an individual who is a citizen of any country other than the India, temporarily staying in India.

 

Can foreign nationals stay in India beyond the authorized time period? Indian visa requirements

Foreign nationals who want to stay in India beyond the authorized period should apply for extension of stay 90 days before his residential permit is due to expire. The union Government has delegated limited powers to the Foreigner Registration Office to grant extension of stay to foreigners. If a foreign citizen who holds a valid visa for less than a year who wishes to convert it into a visa valid for more than one period will have to approach the Ministry of Internal Affairs for the said visa conversion. If the Ministry of Home Affairs rejected the request of foreign nationals in the matter of extension of visa then foreigner has no right to stay in India, except under the procedure established by law.

In the latest case of M. Alexander v. Union of India, 2017 where a foreigners application for the further extension of visa was rejected by the Ministry of Home Affairs. The High Court of Himachal Pradesh observed that there is no rule which prescribes automatic extension of visa and there is no law which authorizes a foreigner to remain on this country any moment longer than the period so authorized, in accordance with law, be it for whatever purpose. Under the Foreigner Act, 1946 section-14 provides that “whosoever remains in any area in India, for a period exceeding than so prescribed in the visa, shall be punished with a term which may extend to five years and also pay fine”. the court also directed the petitioners that arrange your flight ticket and exit India to your native country within twelve hours, otherwise strict legal action will be taken against you for violation the provisions of “The Foreigner Act, 1946”.

 

Conclusion:

In India there is a rule if the extension of visa is rejected by Ministry of Home Affairs/FRRO/FRO/State Government/Union Territory Administration then the foreigner shall leave India forthwith on expiry of the period of validity of the visa. If the foreign nationals does not act as per the rule then the person shall be held guilty for violation of rules and will be punished as per the provision laid under Foreigners Act 1946. In the mentioned case the court stated that neither the constitution of India or nor any provision permits the foreigner national to remain in India beyond the authorized period, except under the procedure establish by law.

CORRUPTION

How can PWD Corruption be reduced in India

In this article, Sirmaur Sudhakar from KIIT School Of Law  discusses about How can PWD Corruption be reduced in India?

 

How can PWD Corruption be reduced in India?

 

Corruption:-

The  modes  of  corruption  are  numerous.  As a  result getting  any service  from the  government requires  the  fulfillment  of  procedures  and  formalities  which  take  a  lot  of  time,  sometimes officials also cause delay to charge some bribe or ‘speed money’. Another form of corruption is in  the of  liaison  men who cultivate close relations with senior officers who are in a position to influence the government policies in their favour and in return to get benefits in the form of cash or  kind,  sometimes  private companies  offer  jobs to retired  officials,  contracts of construction, purchases, sales, etc. are well-known forms of providing benefits for consideration of money. We can also told the second meaning of corruption is BRIBE because all the work are done under the table because of corruption. PWD corruption list is very lengthy because in each and every corner there a person who is corrupt. The most corrupt job in India  are PWD Jobs and Most corrupt departments of india are belongs from PWD. The Question arises here How to reduce corruption?  Read Below

There Are Many Department and Laws which deals with Corruption:-

  • Anti Bribery Act
  • SIT

What is Central Public Works Department?

The  CPWD  came  in  July,  1854.  The  same  year Ajmer  Provincial  Division was  set up  and  a central agency for execution for execution of public works was established by Lord Dalhousie. It has been serving the  nation  for  last 162  years through  the professional expertise in disciplines including  Architecture,   Engineering.  Project   Management   coupled   with  comprehensive experience in building construction and maintenance. It is a central government owned authority in charge of public sector works.

It  is  headed  by  the  Director  General(DG)  who  is also  the  Principal Technical Advisor  to the Government of  India.  The  present DG  is Mr.  Abhai Sinha.  The regions are headed by Special DG’s  and  sub-regions  are  headed  by  Additional  DG’s,  while  the  zones  in  all  state  capitals (excluding  a few)  are headed  by  Chief Engineers. The  CPWD  is under  the Ministry of Urban Development.

Whether it  be the  construction of complex projects  in difficult terrain and maintenance in post construction  stage  the  Cpwd has stood  all  the time.  In  the construction of  stadiums and other infrastructure requirements for Asian Games 1982 and Commonwealth Games 2010 the CPWD has been involved.

Passion   and  enthusiasm   of  CPWD   officers  have   taken  the   organization  beyond  national boundaries.

 

What are the units in CPWD?

There are a number of specialized units under the CPWD to achieve excellence in its operation. These focus  on specific areas of  operations and  develop specialized expertise in the respective fields.The units and their sub-units are:

Central Designs Organization

  •    Designs
  •    Repairs and Rehabilitation
  •    Technology Application and Development Cell
  •    Computer Cell
  •    Central Laboratory

Contracts Standards and Quality Assurance

  •    Contracts and Manual Unit
  •    Standards and Specifications
  •    Techno-legal cell
  •    Quality Assurance Wing
  • Vigilance
  • Landscape Horticulture Unit
  • Architectural Documentation Center

There are three cadres in CPWD:

1) CAS (Central Architecture Services)

2) CES (Central Engineering Services) for Civil Engineers

3) CEMES (Central Electrical and Mechanical Engineering Services)

These  belong  to  Group  A  Civil  Services.  The  recruitment  is also  made  through  Architecture

Services Examination and Engineering Services Examination conducted by UPSC.

Missions

  1. Sound Planning and Design
  2. Engineered construction
  3. Effective Maintenance
  4. Benchmarking the standards
  5. Capacity Building
  6. Public Private Partnership
  7. Manpower Planning
  8. Transparency in Management

There are State Public Works Department for different states.

As it is not possible to discuss all the state public works department so some of the State Public

Work Departments discussed here are:-

Madhya Pradesh Public Works Department

 The  two  premier  agency  of Government  of Madhya  Pradesh engaged  in Planning, Designing, Construction and Maintenance of Government assets like Roads, Bridges, ROB’s, Fly-Overs and Buildings is Public Works Department (B&R) and Project Implementation Unit (PWD PIU).

The total length of Road network in PWD is about 61,616.00 km in Madhya Pradesh.

Missions

To inject innovative technology in the Construction and Maintenance of road network. To train a team of their Engineers to adopt the latest technology.

Improvement of Road geometrics and safety provisions. To replace existing level crossings by Road over bridges.

To provide sustainable development of Road network in the State.

To provide an adequate and efficient Road system encompassing all transportation needs so as to ensure a smooth and uninterrupted flow of goods and passengers traffic both within the state as well as on interstate routes.

 

West Bengal Public Works Department

The Public Works and Public Works (Roads) Department under the PWD are presently charged with the planning, survey, design, construction and maintenance of Roads, Bridges and Buildings throughout the state as well as having various responsibilities for emergency and relief activities.

Besides  construction  of  buildings/structures,  bridges,  roads  including  both  national  and  state highways, they also carry out works relates to electrification, sanitary plumbing, air-conditioning etc. The Department (PWD) is headed by the Minister-In-Charge.

Missions

To extend the economical activities of the whole state.

Create wealth through improvement in the transportation system.

Alleviate poverty through the construction of various bridges, roads, and public buildings along with extending support for improvement of transportation services.

Department  also  has to undertake  responsibilities in the  social area, with  the allotted sum, the department  in  the   changed  scenario  is  geared  up  to  undertake  any  responsibility  for  the development and progress of the state.

Issues and Problems:-

Poor career prospects of officers and staff

Over  the  years,  it  has  been  seen  that  stagnation  has  crept  in practically all  the  grades of the

CPWD  and  State PWD  and the  officers in  the department lag  behind, in terms  of promotion,their  counterparts   in  other  services.  The  stagnation  in  the  grades  leads  to  heartburn  and disgruntlement amongst the officers and staffs.

 

Administrative approval

No approval accorded

It  provides the  competent authority  an opportunity to take  the  decision regarding  the scope of work, specifications, and cost involved. Otherwise, there is a likelihood of misuse of the powers by the subordinates.

Inflated provisions in the P.E.

It  has been seen that exaggerate provisions are incorporated in the preliminary estimate and the margin  thus  available  is misused for  nonessential works  also  for  awarding the work at  higher rates to the contractor.

Major changes made during execution

The  executing  authorities  change  the  scope  and  specifications  to  give  undue  benefit  to  the contractor  by  allowing  him  to  execute  the  items  at  higher  rates.  Along  with  high  rates,  the contractor gets additional work without competition.

Funds allotted to one head is spent on another

Diverting  of  funds  from  approved  works  to  the  works  that  have  not  been  approved  by  the competent authority. Lack of financial discipline in this case.

Detailed Estimate and Technical Sanction

Complete   details  should   be  prepared  for  each  work  regarding  the  schedule  of  all  items, quantities,  rate  cost,  drawings  specifications,  rate  analysis,  measurement  details.  Also,  the technical  sanction  of  competent  authority  should  be  obtained.  It  ensures  that  the  proposal  is structurally  sound.  No  details  and  reference  to  drawings  for  quantities  adopted  results  in the arbitrary  adoption  of  quantities  in  the  estimate.  This  can  be  a  source  of  corruption  during execution to extend the undue benefit to the contractor.

Consultants   are   appointed   arbitrarily   without   transparent   manner   in   a   few   Government departments. The  contract  is  given arbitrarily  to one  of the  firms at  higher  fee without proper publicity  and  competition. Many times punitive action against the consultants is not taken even though they fail to perform the required services. This leads to project delaying and indirect loss in terms of payment of escalation to the contractor.

 

Preparation of Tender Document

Documents  prepared  by  the  consultants  are  issued  to  the  contractors  without  scrutiny  and approval  by  the competent  authority  of  the  department. These contain conflicting,  vague  and ambiguous provisions resulting in disputes, delays and financial losses.

Inviting and opening of Tenders

In  certain  cases  the  Tenders  were  published  in  newspapers  having  hardly  any  circulation, restricted tenders are invited by some corrupt officials for the “Bribe Money”. In some cases, the bribe money is paid well before invitation of tenders.

There  are also  flaws in the Tender scrutiny and award of works, works agreement, Payment to contractors, site records and quality in construction.

Statistics

The  year 2013  ACB  records  say that  eight  PWD officials  were  under the  scanner for  owning disproportionate  assets worth  a total  of  Rs 17. 87 crore. ACB sources said these eight officials had been caught following complaints filed against them by civilians; in some cases, an inquiry was initiated after they were arrested for taking bribes. After all the complaints were verified, the officials were booked for owning assets disproportionate to their salaries.

How can corruption in PWD be reduced in India?

There are a few ways by which the corruption in PWD can be reduced in India:

  •   By   creating  awareness  among  the  people  regarding  the  anti-corruption  bodies  like

Lokpal,  Lokayukta, Vigilance Commission, CBI etc,;

  • widespread  publicity of dismissals  and removals  and compulsory retirement  of  corrupt officers;   ban  on   government   servants  accepting  private,  commercial  and  industrial employment for a  period of two years after retirement;
  •   simple laws and administrative procedures;
  •   better paid but rigidly supervised officials;

Payment/Wages paid to the public officials should be increased as the expense is also increasing. The reason behind increment in the wage is to keep them away from

indulging into illegal activities. Officers can be supervised by keeping record of their work, getting feedback from the general public who come to office, installing cameras in the office etc.

  •   stricter and quicker punishment for the improper use of public authority;
  •   people’s initiative relating to some reform.

Public interest litigation is the most effective manifestation of such initiatives;

  •   by increasing direct contact between government and governed, through E-governance.

This process will remove the role of any mediator. This is also an era of technology so it would  be  better  if more focus is given to tech savvy processes as it will also save the time and will leave no scope for corruption.

 

The Lokpal:

Composition of Lokpal

The institution of Lokpal is a statutory body without any constitutional backing.

Lokpal is a multimember body, made up of one chairperson and maximum of 8 members.

It conducts the preliminary inquiry into any offense alleged to have been committed by a public servant punishable under the Prevention of Corruption Act, 1988.

Jurisdiction of Lokpal:

Group ‘A’ or Group ‘B’ officers and Group ‘C’ or Group ‘D’ officials

Any person who is or has been in-charge (director/manager/secretary) of anybody/society set up by central act or any other body financed/controlled by central government.

Any other person involved in act of abetting, bribe giving or bribe taking

Some important powers of Lokpal

Lokpal has the powers of confiscate the assets, proceeds, receipts and benefits raised or procured by means of corruption in special circumstances.

The  power  to recommend  transfer or  suspension of public  servant  who are in connection with allegation of corruption.

Any  complaint would  not  be entertained if  the complaint  is related  to an  offense that dates as back as 7 years or more.

Lokayukta

It  is an anti-corruption  authority constituted  at the  state level which investigates allegations of corruption and mal-administration against public servant.

The public members can directly approach the Lokayukta with complaints regarding corruption, nepotism or any other form of mal-administration against any government official.

Anti-Corruption Bureau

The  Bureau  was established on January 2, 1961, and fnctions directly under the control of the General Administration Department of Andhra Pradesh Government. The Director General, who is a  senior IPS officer of the rank of DGP, heads the Bureau. The ACB is a specialized agency tackling  the  problem  of  corruption  in  various  departments  of  the  Government against  Public Servants and also Private Persons whoever abet the offenses under the Prevention of Corruption Act,  1988.  Also,  the Bureau  conducts inquiries on  the  basis of the  information received  from various agencies like Government, Vigilance Commission, Lokayukta etc.

Every state has its own anti-corruption bureau and their jurisdiction is restricted to the state and they can only accept complaints against state government employees.

Section 7

Public servant taking gratification other than legal remuneration in respect of an official act.

The Hon’ble Justice Ranganath Mishra has observed certain important ingredients in the case of

 

R.S.Nayak v. A.R.Antulay and another to constitute an offence under Section 7. They are

 

[1] that the accused was a public servant;

 

[2]  that  he  must  be  shown  to  have  obtained  or  attempted  to  obtain  from  any  person  any gratification other than  legal remuneration and

[3] that  the  gratification should be as a motive or reward for doing or forbearing to do, in the exercise of his official function, favour or disfavour to any person.

It is immaterial whether amount is received before or after the favour is done’

 

The  section does  not require that  the public  servant must;  in fact.  be in  a  position  to do  the official act, favour or service at the time of the demand or receipt of the gratification.

To constitute an offence under this section, it is enough if-

 

[a] the public servant who accepts the gratification, takes it by inducing a belief or hold out that he would render assistance to the giver with any other public servant, and

[b] the giver gives the gratification under that belief.

 

It is further immaterial if the public servant receiving the gratification does not intend to do the official act favour or forbearance which he holds himself out as capable of doing.

 

Penalty under Section 7

The person shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.

Section 8

Taking gratification, in order, by corrupt or illegal means, to influence public servant

This section says that any gratification taken by a person to induce a public servant for corrupt or illegal means whether the person has succeeded or not in inducing, shall be punishable with imprisonment of not less than 3 years but which may extend to seven years and fine too.

The accused should have the intent at the time he receives the gratification for inducing the public servant.

Section 11

Public servant obtaining valuable thing, without consideration from person concerned in proceeding or business transacted by such public servant

Main ingredients of section 11 was interpreted by Hon’ble Justice Rangnath Misra in the case of

R.S.Nayak v A.R.Antulay. They are;

 

[1]   that the accused was a public servant.

 

[2] that he accepted or obtained or agreed to accept or obtain a valuable thing without consideration or for an inadequate consideration knowing it to be inadequate;

[3] that the person giving the thing must be a person concerned of interested in or related to the person concerned in any proceeding or business transacted or about to be transacted by the

 

government servant or having any connection with the official functions of himself or of any public servant to whom he is subordinate; and

[4] the accused must have knowledge that the person giving the thing is so concerned or interested or related”

Penalty under section 11

He/She shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and shall also be liable to fine.

 

How and where to complain for corruption?

If the complaint is being made to the Anti-Corruption Bureau

 

  • A complaint to the nearby Dy.Superintendent of Police/Inspector of Police, or the senior officers at the Head Office of ACB at Hyderabad can be made by any person.
  • As far as possible, the complaint should be a written one in any of the languages known to the complainant.
  •   Any stamp fees or any other payment is not required for making a complaint.

 

  • In  case  the complainant is illiterate, he can get his complaint written by a scribe, whose name  and  address  should  also  be  written  at  the  end  of  the  complaint,  and  the  scribe should  also  certify  in  writing  that  the  contents  were  read  over  and  explained  to  the complainant and found to be correct.
  •   The complainant’s  left thumb impression should be affixed at the end.

 

  •   If the complainant is literate, his signatures should be taken at the end of the complaint.

 

  • No  actions are taken  over  anonymous and pseudonymous complaints. However, if they contain verifiable and specific allegations, they may be investigated into.

 

  • Written  complaints/information can  also be sent by mail/email, preferably by registered post. The officers of ACB can also be contacted by telephone.

The telephone numbers are as follows:

Tollfree No.: 1064

Tel : (+91 0866) 2428770, and Cell No.7382625589

Complaints/Information can now also be sent by e-mail [email protected]

In case the complaint is being made to the Chief vigilance commission

The complaints can be sent by post to the Commission but have to be signed and should contain the name and address of the complainant.

Procedure to lodge a complaint through e-mail

 

Complaints are invited through e-mail also. If one wants to lodge a complaint against any public servant who fall within the jurisdiction of the Commission, all he/she has to do is to fill in the following information at the following E-mail address:[email protected]

Name of officer against whom complaint is being lodged

 

Designation/Post held of officer against whom complaint is being lodged

 

Organisation/Department of officer against whom complaint is being lodged

 

Details  of  allegations/misconduct/corrupt  act  of  the  officer  against  whom  complaint  is  being lodged

Name and address of the complainant

 

Bonus For you People: If you want to get updated please visit My News Fit, Which is one of the most updated News Portal.

Disclaimer

All the information provided in the article is to our best of knowledge on the subject. We hold no responsibility, whatsoever, in case of any disparency in the information provided. You could let us know through the comments section or by contacting us through our Contact Us page if you feel anything mentioned above is wrong. Our team of writers tries their best to provide the correct information always with a unique choice of words to deliver the information correctly to you. However, we take no guarantee for it and you’re completely free to trust or ignore the information provided in the article.

References

www.cpwd.gov.in

Book on Indian Administration by Singh Hoshiar timesofindia.com

www.economictimes.indiatimes.com

 www.acbap.gov.in

 www.dnaindia.com

cvc.nic.in

The Prevention of Corruption Act, 1988 

www.ndtv.com

mppwd.gov.in pwdwb.in

COUPLE ELOPE

What are the false charges that are usually put against couples who elope and do Love Marriage without their family’s consent?

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In this article, Sirmaur Sudhakar from KIIT  School Of Law “What are the false charges that are usually put against couples who elope and do Love Marriage without their family’s consent?”

Introduction

Couple Elope :In the recent years, there has been a gradual increase in the elopement of the couples in India. It has been seen that even after the couple runaway, still they are subjected to harassment by their family  members or others. This Article will be discussing the reason why the couples elope, problems arising out of the marriage without family consent, why the parents do not want their children to marry without  their consent, the false charges framed by the parents and/or family members. The closing lines of the Article will be discussing the steps that the Government or Judicial bodies have taken up to protect the  couples; things that these couple should really be aware of .

First  and the  foremost thing  that needs to be  discussed is the reason behind a couple’s elopement:

There  are situations where a girl gets pregnant before the marriage and the boy and girl decide to marry each other and they are afraid of their family that they would not accept.

The  lust for  the dowry by  the boy’s family  and pressurizing the  girl’s family usually becomes and obstruction to the marriage but the couples decide to marry knowing the fact that their family would not allow them, so they run away.

It  has been  often seen  that many couples stay  together in a live-in relationship without letting  their families know about it and later on marry  after seeing that they are comfortable with each other.

The  concept  of arranged marriage  is fading now-a-days because of the  reason that the person to whom one is getting married to, does not know about him/her. People are more inclined towards love marriage and if love marriage is agreeable to their family then it’s fine and if not then they feel better to run away.

Inter-caste, inter-religion  marriages are increasing in the society and the couples do not want to get any problem so they elope to avoid religious and cultural clashes.

There  may be  stress within  one of the families and  the bride and the groom feel that avoiding a large family gathering is the safer option to avoid any debate on their special day.

Changing religion to marry someone and the family is not happy about it, as a result they runaway.

  Sometimes extra-marital affairs also lead to the eloping.

What problems arise because of the marriage of couples without the family consent?

Falling  in love can be a risky undertaking in India’s towns and villages where caste and tradition   maintain tremendous power. Families and village councils do not allow marriages within the  same village and clan or outside the caste and community. Killing transgressing couples to save the family’s  ‘honour‘ is not uncommon in Haryana and Punjab. There are no government stats over such killings.

As reported  in the Hindustan Times,  “According  to Honour Based Violence Awareness Network, an  international digital resource centre working to advance understanding of honour-based violence and forced marriage, around 1000 honour killings occur in India every year”.

Also, the villagers boycott the families of couples. Because of this, the families are compelled to leave the place and shift to another place.

If the couple goes to a police officer for help then they simply ask to call up their parents and, hands them over. They in spite of protecting them, push them to trauma. The Police officers have got totally mixed with the society and think it to be true.

Why do the Parents not allow their children to marry without their consent?

The parents think that it is their right and responsibility to look after their child in every situation of their life even if they are getting married. In India, parents treat their children as a small child even if they have become matured enough to take their decisions.

The  families  believe that  marrying in the  same caste to people  belonging to the same village are taboo because of a relationship of brotherhood”.

The  parents  think that  this would result  in the downfall of the  name and fame of the family.

  They have a fear that the marital relationship of their children would not last longer.

A family belonging to a high caste would never let a member belonging to inferior class become his/her family member. The same is with the religion too.

The  main thing about  which the parents are concerned more than the happiness of their children  is the society, “what society will say, we won’t be able to show our faces to anyone”.

What  are the  false charges  that are usually  put against couples who elope or marry without family’s consent?

An educated family does not take such steps, they either accept the marriage or leave the couple to  live their life freely without any interference from their side. But their are certain areas in India where the false charges are being framed. Most of these type of cases are seen in the state of Haryana, Punjab, Chandigarh and Uttar Pradesh.

From Girl’s family side

The  charge under  Section 366 of IPC–  It is a very primary charge framed by the girl’s family side. Section 366 has been defined as follows:-

Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be  likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or  knowing it to be likely that she will be forced or seduced to illicit intercourse and whoever by means of criminal intimidation as defined in this Code or of abuse of authority or any method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person.

The section 366 makes it clear that there has to be kidnapping or abduction of a woman and the intention on the part of the offender must be to compel her to marry any person against her will or  to force or seduce her to illicit intercourse. If there is no such intention then there has to be knowledge on the part of the offender that the victim will be compelled to marry any person against her will or that she will be forced or seduced to illicit intercourse.

A charge relating to rape is often framed by the girl family members just to bring the boy to the judicial custody and harass him and his family members.

In  certain cases,  it has been seen that the parents misrepresent the age of their daughter just to strengthen the charges framed against the boy and/or his family members.

Also, it  is often seen  that the family members of the girl are engaged in honor killings, and  instead of admitting to that, they choose to frame the boy for  it, in the name of murder.

For instance, If the boy is a divorced, then in that situation the family members of the girl being aware of this still file a false charge of bigamy.

All  the false charges  framed are mainly done for harassing the boy and/or his family members and,  to bring back the girl to the father and mother. They believe that this will bring back the right to them to choose a better boy for their daughter.

From Boy’s family side

False charge of kidnapping by the girl’s family is reported. Allegations are made relating to forceful marriage, compulsion, wrongful confinement by the girl’s family.

The same form of false charge of murder goes from the boy’s family side although, being an honour killing.

Apart  from the above mentioned  a charge relating to theft is also framed by the parents/family members. They say that the boy/girl has taken all the jewellery and ran away. The charge may be true or false.

What  are the  steps that  Government and  Judicial bodies have taken to curb the problems relating to such marriages?

The Punjab and Haryana High Court has directed the state of Punjab, Haryana, and Chandigarh to  not register FIR on charges of Abduction against the couple who have married without their family consent.

Directed the Police  officers of Punjab, Haryana, and Chandigarh not to harass the couples who were in love or had got married in such circumstances.

Justice Ranjit Singh remarked that in the cases where the age of the girl is less than 18 years then the marriage is not void, it is voidable at the option of the girl.

If  the girl  does not agrees  to go with her parent then  in that case she will be shifted  to “Nari

Niketan” or other shelter homes.

In case the girl is a major(more than 18 year), then she cannot be forcibly taken away by police to be handed over to her parents against her consent, also criminal force against the boy cannot be used.

In  the case of  Lata Singh vs. State  of U.P & Ors. (2006) 5 SCC 475 where the woman named Lata belonging to high-caste, married a man from a dalit community, the Court quashed all the cases against her husband and his family, also instructed that criminal proceedings be instituted against  any one who issued threats or committed acts of violence against such couples. They

 

stated that their is nothing honourable in honour killings, it is nothing but barbaric and shameful murder.

In Arumugam Servai vs. State of Tamilnadu(2011) 6 SCC 405, the Supreme Court said that they have  heard of Khaap panchayat(known as “katta Panchayats” in Tamil Nadu) which often encourage  honour killings or other atrocities in an institutionalised way on boys and girls of different castes and religion, who wish to get married or have been married, or interfere with the personal lives  of the people. They expressed this as totally illegal and to be ruthlessly stamped out. The atrocities committed by brutal, feudal-minded persons deserve harsh punishment. This is the only way to eradicate such acts of  barbarism and feudal mentality. The SC directed the administrative and police officials to take strong measures to prevent such atrocious acts.

In  the 242nd  report of the  Law Commission of  India on Prevention  of Interference with the  Freedom of Matrimonial Alliances,  they suggested that:

In   order  to keep  a check on  the high-handed  and unwarranted interference  by the caste assemblies or panchayats  with sagotra, inter-caste or inter-religious  marriages, which are otherwise lawful, this legislation has  been proposed so as to prevent the acts endangering the liberty  of the couple married or intending to marry and their family members. It is considered necessary  that there should be a strict action against the congregation or assembly for the purpose of disapproving such marriage / intended marriage and the conduct of the young couple. The members gathering for such purpose, i.e., for condemning the marriage with a view to take necessary consequential action, are to be treated as members of the unlawful assembly for which a mandatory minimum punishment has been prescribed.

The reason behind the proposing of this legislation is to prevent the acts that endanger the liberty of  the couple who are married or are intending to marry and also their family members.

A mandatory  minimum sentence has  been prescribed for the acts of  criminal intimidation by the members  of unlawful assembly or the others  who act at their instance. The section 6  of the proposed bill provides a presumption that a person participating in an unlawful assembly shall be presumed to have also intended to commit or abet the commission of offenses.

The  Sub-Divisional/District  Magistrate have been provided  power to prohibit the unlawful assemblies and to take preventive measures. Furthermore, an SDM/DM is enjoined to receive a request  or information from any person seeking protection from the assembly of persons or members of any family who are likely to or who have been objecting to the lawful marriage.

The  provisions  of this proposed Bill does not impair the provisions of Indian Penal Code. Care has been taken,  as far as possible, to see that there is no overlapping with the provisions of the general penal law. In other words, the criminal acts other than those specifically falling under the proposed Bill are punishable under the general penal law.

The offenses are cognizable, non-bailable and non-compoundable and will be tried by the Court of Session.

Accordingly, the Prohibition of Interference with the Freedom of Matrimonial Alliances Bill 20 has been prepared in order to effectively check the existing social malady.

Conclusion

Lawyers in Chandigarh, the Punjab and Haryana High Court receives as many as 50 applications per day from couples seeking state protection, anticipatory bail or restriction orders against their parents  and other relatives; they fear for their lives for having defied their families and community.

It is a fundamental right of a person guaranteed under the Indian Constitution, Article 21 to have the freedom of life and liberty but still, the couples are harassed by their families by implicating false charges or are subjected to honour killing.

The  same ‘gotra’  marriage is not an offence  or prohibited under the law.  To clarify the doubt with regard  to these marriage, the Hindu Marriage Disablities Removal Act, 1946 was enacted. This Act validates the same ‘gotra’ or ‘pravara’ or different sub-division of same caste marriage between the Hindus.

The sagotra or Inter caste marriage has not been prohibited by the Hindu Marriage Act also. Therefore,  the best solution to this problem would be educating more and more families about the changing pattern   of living and also create awareness among the people about the consequences of the filing of false cases. Also, counseling of the parents should be done.

According  to a report of  tribuneindia, Protection homes  were set up in the year 2010 in each district  of Haryana on the High Court’s order that also covered Punjab and Chandigarh for the runaway couples. The number of such couples in the protection homes was just 366 in 2010 and later in 2013 it rose to 1,221.

Official  data examined  by The Indian Express  show that 1,465 such couples were  housed in protection homes in Haryana in 2014.

References:-

supremecourtofIndia.nic.in

Indian Penal Code, 1860

Tribuneindia.com

The Indian Express

THE  PROHIBITION  OF INTERFERENCE  WITH THE FREEDOM  OF MATRIMONIAL ALLIANCES  BILL, 2015

 

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In this article, Sirmaur Sudhakar from KIIT  School Of Law “What are the false charges that are usually put against couples who elope and do Love Marriage without their family’s consent?”

Introduction

Couple Elope :In the recent years, there has been a gradual increase in the elopement of the couples in India. It has been seen that even after the couple runaway, still they are subjected to harassment by their family  members or others. This Article will be discussing the reason why the couples elope, problems arising out of the marriage without family consent, why the parents do not want their children to marry without  their consent, the false charges framed by the parents and/or family members. The closing lines of the Article will be discussing the steps that the Government or Judicial bodies have taken up to protect the  couples; things that these couple should really be aware of .

First  and the  foremost thing  that needs to be  discussed is the reason behind a couple’s elopement:

There  are situations  where a girl gets pregnant before the marriage and the boy and girl decide to marry each other and they are afraid of their family that they would not accept.

The  lust for  the dowry by  the boy’s family and pressurizing the  girl’s family usually becomes and obstruction to the marriage but the couples decide to marry knowing the fact that their family would not allow them, so they run away.

It  has been  often seen  that many couples stay  together in a live-in relationship without letting  their families know about it and later on marry  after seeing that they are comfortable with each other.

The  concept  of arranged marriage  is fading now-a-days because of the  reason that the person to whom one is getting married to, does not know about him/her. People are more inclined towards love marriage and if love marriage is agreeable to their family then it’s fine and if not then they feel better to run away.

Inter-caste, inter-religion  marriages are increasing in the society and the couples do not want to get any problem so they elope to avoid religious and cultural clashes.

There  may be  stress within  one of the families and  the bride and the groom feel that avoiding a large family gathering is the safer option to avoid any debate on their special day.

Changing religion to marry someone and the family is not happy about it, as a result they runaway.

  Sometimes extra-marital affairs also lead to the eloping.

What problems arise because of the marriage of couples without the family consent?

Falling  in love can be a risky undertaking in India’s towns and villages where caste and tradition   maintain tremendous power. Families and village councils do not allow marriages within the  same village and clan or outside the caste and community. Killing transgressing couples to save the family’s  ‘honour‘ is not uncommon in Haryana and Punjab. There are no government stats over such killings.

As reported  in the Hindustan Times,  “According  to Honour Based Violence Awareness Network, an  international digital resource centre working to advance understanding of honour-based violence and forced marriage, around 1000 honour killings occur in India every year”.

Also, the villagers boycott the families of couples. Because of this, the families are compelled to leave the place and shift to another place.

If the couple goes to a police officer for help then they simply ask to call up their parents and, hands them over. They in spite of protecting them, push them to trauma. The Police officers have got totally mixed with the society and think it to be true.

Why do the Parents not allow their children to marry without their consent?

The parents think that it is their right and responsibility to look after their child in every situation of their life even if they are getting married. In India, parents treat their children as a small child even if they have become matured enough to take their decisions.

The  families  believe that  marrying in the  same caste to people  belonging to the same village are taboo because of a relationship of brotherhood”.

The  parents  think that  this would result  in the downfall of the  name and fame of the family.

  They have a fear that the marital relationship of their children would not last longer.

A family belonging to a high caste would never let a member belonging to inferior class become his/her family member. The same is with the religion too.

The  main thing about  which the parents are concerned more than the happiness of their children  is the society, “what society will say, we won’t be able to show our faces to anyone”.

What  are the  false charges  that are usually  put against couples who elope or marry without family’s consent?

An educated family does not take such steps, they either accept the marriage or leave the couple to  live their life freely without any interference from their side. But their are certain areas in India where the false charges are being framed. Most of these type of cases are seen in the state of Haryana, Punjab, Chandigarh and Uttar Pradesh.

From Girl’s family side

The  charge under  Section 366 of IPC–  It is a very primary charge framed by the girl’s family side. Section 366 has been defined as follows:-

Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be  likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or  knowing it to be likely that she will be forced or seduced to illicit intercourse and whoever by means of criminal intimidation as defined in this Code or of abuse of authority or any method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person.

The section 366 makes it clear that there has to be kidnapping or abduction of a woman and the intention on the part of the offender must be to compel her to marry any person against her will or  to force or seduce her to illicit intercourse. If there is no such intention then there has to be knowledge on the part of the offender that the victim will be compelled to marry any person against her will or that she will be forced or seduced to illicit intercourse.

A charge relating to rape is often framed by the girl family members just to bring the boy to the judicial custody and harass him and his family members.

In  certain cases,  it has been seen that the parents misrepresent the age of their daughter just to strengthen the charges framed against the boy and/or his family members.

Also, it  is often seen  that the family members of the girl are engaged in honor killings, and  instead of admitting to that, they choose to frame the boy for  it, in the name of murder.

For instance, If the boy is a divorced, then in that situation the family members of the girl being aware of this still file a false charge of bigamy.

All  the false charges  framed are mainly done for harassing the boy and/or his family members and,  to bring back the girl to the father and mother. They believe that this will bring back the right to them to choose a better boy for their daughter.

From Boy’s family side

False charge of kidnapping by the girl’s family is reported. Allegations are made relating to forceful marriage, compulsion, wrongful confinement by the girl’s family.

The same form of false charge of murder goes from the boy’s family side although, being an honour killing.

Apart  from the above mentioned  a charge relating to theft is also framed by the parents/family members. They say that the boy/girl has taken all the jewellery and ran away. The charge may be true or false.

What  are the  steps that  Government and  Judicial bodies have taken to curb the problems relating to such marriages?

The Punjab and Haryana High Court has directed the state of Punjab, Haryana, and Chandigarh to  not register FIR on charges of Abduction against the couple who have married without their family consent.

Directed the Police  officers of Punjab, Haryana, and Chandigarh not to harass the couples who were in love or had got married in such circumstances.

Justice Ranjit Singh remarked that in the cases where the age of the girl is less than 18 years then the marriage is not void, it is voidable at the option of the girl.

If  the girl  does not agrees  to go with her parent then  in that case she will be shifted  to “Nari

Niketan” or other shelter homes.

In case the girl is a major(more than 18 year), then she cannot be forcibly taken away by police to be handed over to her parents against her consent, also criminal force against the boy cannot be used.

In  the case of  Lata Singh vs. State  of U.P & Ors. (2006) 5 SCC 475 where the woman named Lata belonging to high-caste, married a man from a dalit community, the Court quashed all the cases against her husband and his family, also instructed that criminal proceedings be instituted against  any one who issued threats or committed acts of violence against such couples. They

 

stated that their is nothing honourable in honour killings, it is nothing but barbaric and shameful murder.

In Arumugam Servai vs. State of Tamilnadu(2011) 6 SCC 405, the Supreme Court said that they have  heard of Khaap panchayat(known as “katta Panchayats” in Tamil Nadu) which often encourage  honour killings or other atrocities in an institutionalised way on boys and girls of different castes and religion, who wish to get married or have been married, or interfere with the personal lives  of the people. They expressed this as totally illegal and to be ruthlessly stamped out. The atrocities committed by brutal, feudal-minded persons deserve harsh punishment. This is the only way to eradicate such acts of  barbarism and feudal mentality. The SC directed the administrative and police officials to take strong measures to prevent such atrocious acts.

In  the 242nd  report of the  Law Commission of  India on Prevention  of Interference with the  Freedom of Matrimonial Alliances,  they suggested that:

In   order  to keep  a check on  the high-handed  and unwarranted interference  by the caste assemblies or panchayats  with sagotra, inter-caste or inter-religious  marriages, which are otherwise lawful, this legislation has  been proposed so as to prevent the acts endangering the liberty  of the couple married or intending to marry and their family members. It is considered necessary  that there should be a strict action against the congregation or assembly for the purpose of disapproving such marriage / intended marriage and the conduct of the young couple. The members gathering for such purpose, i.e., for condemning the marriage with a view to take necessary consequential action, are to be treated as members of the unlawful assembly for which a mandatory minimum punishment has been prescribed.

The reason behind the proposing of this legislation is to prevent the acts that endanger the liberty of  the couple who are married or are intending to marry and also their family members.

A mandatory  minimum sentence has  been prescribed for the acts of  criminal intimidation by the members  of unlawful assembly or the others  who act at their instance. The section 6  of the proposed bill provides a presumption that a person participating in an unlawful assembly shall be presumed to have also intended to commit or abet the commission of offenses.

The  Sub-Divisional/District  Magistrate have been provided  power to prohibit the unlawful assemblies and to take preventive measures. Furthermore, an SDM/DM is enjoined to receive a request  or information from any person seeking protection from the assembly of persons or members of any family who are likely to or who have been objecting to the lawful marriage.

The  provisions  of this proposed Bill does not impair the provisions of Indian Penal Code. Care has been taken,  as far as possible, to see that there is no overlapping with the provisions of the general penal law. In other words, the criminal acts other than those specifically falling under the proposed Bill are punishable under the general penal law.

The offenses are cognizable, non-bailable and non-compoundable and will be tried by the Court of Session.

Accordingly, the Prohibition of Interference with the Freedom of Matrimonial Alliances Bill 20 has been prepared in order to effectively check the existing social malady.

Conclusion

Lawyers in Chandigarh, the Punjab and Haryana High Court receives as many as 50 applications per day from couples seeking state protection, anticipatory bail or restriction orders against their parents  and other relatives; they fear for their lives for having defied their families and community.

It is a fundamental right of a person guaranteed under the Indian Constitution, Article 21 to have the freedom of life and liberty but still, the couples are harassed by their families by implicating false charges or are subjected to honour killing.

The  same ‘gotra’  marriage is not an offence  or prohibited under the law.  To clarify the doubt with regard  to these marriage, the Hindu Marriage Disablities Removal Act, 1946 was enacted. This Act validates the same ‘gotra’ or ‘pravara’ or different sub-division of same caste marriage between the Hindus.

The sagotra or Inter caste marriage has not been prohibited by the Hindu Marriage Act also. Therefore,  the best solution to this problem would be educating more and more families about the changing pattern   of living and also create awareness among the people about the consequences of the filing of false cases. Also, counseling of the parents should be done.

According  to a report of  tribuneindia, Protection homes  were set up in the year 2010 in each district  of Haryana on the High Court’s order that also covered Punjab and Chandigarh for the runaway couples. The number of such couples in the protection homes was just 366 in 2010 and later in 2013 it rose to 1,221.

Official  data examined  by The Indian Express  show that 1,465 such couples were  housed in protection homes in Haryana in 2014.

References:-

supremecourtofIndia.nic.in

Indian Penal Code, 1860

Tribuneindia.com

The Indian Express

THE  PROHIBITION  OF INTERFERENCE  WITH THE FREEDOM  OF MATRIMONIAL ALLIANCES  BILL, 2015

 

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Codification of Law

Codification of Law | Meaning | Advantages and Disadvantages of codification | Condition for codification | classidication of code and codification

MEANING OF CODIFICATION

The first question will arise that what is a codification of law, for that first we have to know about code. In dictionary meaning code is a systematic collection of statutes, body of law, so arranged as to avoid inconsistency and overlapping. In fact, codification is the systematic process and reduction of the whole body of law into a code in the form of enacted law. Thus, the law which previously was in the shape of customs, ancient texts, judicial decision and fragmentary statutes is collected at one place and presented in systematic arrangement which is known as code.Salmond defines codification as “the reduction of the whole corpus juis, so far as practicable to form enacted law.”

THE CONDITION FOR CODIFICATION

For codification, a certain background and a certain stage of social development are necessary.

Roscoe pound has laid down certain important condition.

Codification exist where the legal institution have completely mature or or where or where the country has no juristic past.

The uncertainty and archaic character of the existing law.

The development of the efficient organ of legislation.

The need for one uniform law in a political community, whose several subdivision had developed or received divergent local laws.

Classification of codes.

Codes may be of following kinds:-

Creative- Creative code is that code, which makes a law for the first time without any reference to any other law. It is lawmaking by legislation. For example – IPC

Consolidated- Code is that code, which consolidates the whole law- statutory, customary and precedent on a particular subject and declares it. This is done systematizing and simplifying the law.

Creative and consolidating- The code which makes law as well as consolidates the existing law on a particular subject fall under this class. For Example- Recent Hindu legislation.

Advantage of codification of Law.

 Certainty:-

By codification, law becomes certain and uncertain as it generally is in precedent and custom.

Simplicity-The codification of Law makes law simple and accessible to everybody. By codification of law on any particular point is made accessible and known to everyone, so that the citizen come in a position to know their rights and duties well.

Logical Agreement:- By codification law is logically arranged in a coherent form nad there occurs no chance of conflicts arising among the different provision of law.

Stability:- The codification makes the law simple and stable. Stability is very essential for law so that the people may have confidence in it and the legal transaction may be made easily.

Planned Development:- Codification bring uniformity, which in turn helps in the planned development of the country.

Unity: Codified Law have uniform and wider application. This helps in developing affinity and unity among the people, who are governed by the same laws.

Disadvantage of Codification

 Rigidity:-

 The codification cause rigidity in the law. In the changing condition of the society it becomes necessary for the law to keep pace with time and charging condition, but once law is codified it becomes difficult to keep pace with such changes.

Codified laws can be changed only by amendments, but making of an amendment is no easy and it is also time consuming

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Incompletence :- 

Since it is not possible to anticipate all the problem that might arise in future, the codes are generally incomplete. When any new problem arises it becomes difficult for the people and the courts to tackle it.

Hardship:- The code generally gives uniform laws, which are applicable to all within the territory of the country or as a part of it. Its application rarely varies on the grounds of the customs and habits of the individual. This in some cases, causes great hardship.

We also know that in many countries they follow codified laws and Uncodified laws. The country which follows codified laws are those constitutions is not written in clear language. The language will be a blur. Because of this, there is lot of ambiguity.

Many Codified Laws are not applicable to Jammu and Kashmir Why?

Disclaimer

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