Category Archive Civil Law Guides

Bydeb

Legal status of Live-In Relationship in India

In India, marriage is considered as a sacramental and perpetual union and the legal consequences of marriage that follow add to the sanctity of the marriage. The concept of live-in relationship was considered as an alien to the Indian custom, a part of glitz and glamour world of western countries and something to be frowned upon. However, over the years the sentiments over live-in have slightly matured down, with courts taking a progressive look over it.

What is Live-in relationship?

A living arrangement in which an unmarried couple lives together under the same roof for a long-term that resembles a marriage is known as a live-in relationship. Thus, it is the type of arrangement in which a man and woman live together without getting married. This form of living together is not recognized by Hindu Marriage Act, 1955 or any other statutory law. While the institution of marriage promotes adjustment; the foundation of live-in-relationships is individual freedom.

Only the laws under the Protection of Women from Domestic Violence Act, 2005 provide for the protection and maintenance thereby granting the right of alimony to an aggrieved live-in partner.

Legal Status of live-in-relationship in India

In India, there is no law that deals with the concept of live-in relationship. But our courts have given certain recognition to such relationships.

Prior to independence, the view of the court on live-in relationship was reflected in a case where the Privy Council laid down a broad rule postulating that “where a man and a woman are proved to have lived together as a man and wife, the law will presume, unless the contrary be clearly proved, that they were living together in consequences of a valid marriage.”

After independence, the Supreme Court in a case recognized the live-in relationship as a valid marriage. Further, in various other judgments, the Supreme Court has gone on record to hold that live-in-relationship is not illegal. However, this position is not all binding as the Delhi High Court, in a recent case has observed that a live-in-relationship is a walk in and walk out relationship.

Rights of Female Partners in Live-in Relationships


The Indian Courts have displayed alacrity to protect the rights of the female partner in such relationship as exhibited by judgments given in a number of cases. The statues like Protection of Women from Domestic Violence Act, 2005 protects both in the categories of wife i.e. relationship by marriage and live in partner i.e. relationship in nature of marriage.

The National Commission for Women recommended to the Ministry of Women and Child Development made a suggestion to include live-in female partners for the right of maintenance under Section 125 of CrPC.


Rights of Children Born Out of Live-in Relationship

The law relating to the right of a child born out of a live-in relationship is still unclear. The Hindu Marriage Act, 1955 gives the status of legitimacy to every child, irrespective of birth out of void or voidable marriage. But live-in relationships do not come under the concept of marriage. So the status of the child born out of such a relationship is still doubtful.

However, recently the Supreme Court in a case has held that a child born out of a live-in relationship may be allowed to succeed inheritance in the property of parents but doesn’t have a claim in the Hindu ancestral coparcenary property.

Bydeb

Separation of powers in administrative law in India

The separation of powers is based on the principle of trias politica, which means separation between three independent powers in nation i.e. Legislature, Administration and Judiciary. The legislature makes laws, the executive enforces them and the judiciary applies them to the specific cases arising out of the breach of law.

Administrative law concerns with powers and procedures of administrative agencies, including judicial review of administrative action. It does not include the enormous mass of substantive law produced by the agencies.
 

Separation of Powers in India

The doctrine of separation of powers has not been accorded a Constitution status. Apart from the directive principles laid down in Article 50 of the constitution which sets out separation of judiciary from the executive functions, the constitutional schemes do not embody any dogmatic division of powers.

In the Indian Constitution, the executive powers are vested with the President, the legislative powers with the Parliament and the judicial powers with the judiciary- the Supreme Court, the High Courts and Subordinate Courts. The President holds his office for a fixed period. His functions and powers are enumerated in the Constitution itself. Parliament of India is competent to make any law, subject to the provisions of the constitution and it can also amend the law prospectively or even retrospectively but it cannot declare a judgment delivered by a competent court void or of no effect.

The judiciary is independent in its field and there can be no interference with its judicial functions either by the executive or the legislature. The Supreme Court and High Courts are given the power of judicial review and they can declare any law passed by Parliament or Legislature as ultra vires or unconstitutional.

Taking into account these facts, the judiciary has from time to time upheld the principle of separation of powers and accommodated the flexibilities of its function.

In Kartar Singh v. State of Punjab, it was held “It is the basic postulate under the Indian Constitution that the legal sovereign power has been distributed between the legislature to make law, the executive to implement the law and the judiciary to interpret the law within the limits set down by the Constitution.”

The Supreme Court in Ram Jawaya Kapur v. State of Punjab, held that: “Indian Constitution has not indeed recognized the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the governments have been sufficiently differentiated.”

In Delhi Development Authority v M/s UEE Electricals Engg. Pvt. Ltd, the Supreme Court made the observation that “One can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground is “illegality”, the second “irrationality” and the third “procedural impropriety”.

In Indira Nehru Gandhi v. Raj Narain Ray, the Chief Justice, also observed that in the Indian Constitution there is separation of powers in a broad sense only.

Therefore, in conclusion, we see that organs of the state remain separated and this position of separation of powers doctrine has been upheld by the rulings made by the courts. No organs can encroach upon the others ambit of powers, and in case an attempt is made even by way of an amendment it has been struck down to uphold the basic structure doctrine.

Applicability of the Doctrine in current times

In current times the Separation of Powers not only includes organs such as the Executive, the legislature and the judiciary but also institutions like the press and academic institutions. The organs of an open society which hold power have thus increased with the media playing a huge role. Thus, in a modern society, implementation of Separation of Powers doctrine in its absolute terms is an extremely difficult task. Since vesting any one organ with too much power may be very dangerous, a system of checks and balances has been developed over the years, which has even been consistent with many rulings of the Supreme Court as has been discussed previously. Hence though the doctrine of separation of powers is a theoretical concept and may be very difficult to follow completely a compromised version of it is used in our country.

Bydeb

Lok Adalats in India

Lok Adalat in India, as the name suggests, means the People’s Court. “Lok” stands for “people” and “Adalat” is the court. India has a long history of such methods being practiced in the society at the grassroots level. These are called panchayat and in the legal terminology, these are called arbitration.

Other alternative methods being used are Lok Adalat (People’s Court), where justice is dispensed summarily without too much emphasis on legal technicalities. It has been proved to be a very effective alternative to litigation.

The features of this form of dispute resolution are participation, accommodation, fairness, expectation, voluntariness, neighborliness, transparency, efficiency and lack of animosity.

Lok Adalats were initially started in the state of Gujarat in 1982. The first Lok Adalat was organized on 14th March 1982 at Junagarh. Maharashtra commenced the Lok Nyayalaya in 1984. The movement has now subsequently spread to the entire country. The reason behind its growth was only the pending cases and to give relief to the litigants who were in a queue to get justice.

Statutory Provisions

Article 39 A of the Constitution of India provides for equal justice and free legal aid. It is, therefore clear that the State has a responsibility to secure a legal system, which promotes justice on the basis of equal opportunity. The language of Article-39 A is understood in mandatory terms. This is made more than clear by the use of the word “shall” in Art-39 A.

The Indian judiciary has many a time emphasized the need for free legal aid to the poor. Legal Aid is a kind of human right in the context of conflicts and contradictory interests.

In Hussainara Khatoon v. State of Bihar, the Supreme Court observed:

Today, unfortunately, in our country the poor are priced out of the judicial system with the result that they are losing faith in the capacity of our legal system to bring about changes in their living conditions and to deliver justice to them. The poor in their contact with the legal system has always been on the wrong side of the line. They have always come across “law for the poor” rather than “law of the poor”. The law is regarded by them as something mysterious and forbidding–always taking something away from them and not as a positive and constructive social device for changing the social economic order and improving their living conditions by conferring rights and benefits on them. The result is that the legal system has lost its credibility for the weaker section of the community. It is, therefore, necessary that we should inject equal justice into the legality and that can be done only by dynamic and activist scheme of legal services.
 
Legal Services Authorities Act, 1987 gave a statutory status to Lok Adalats, pursuant to the constitutional mandate in Article 39-A of the Constitution of India, contains various provisions for the settlement of disputes through Lok Adalat. It ordains legal services authorities to provide free and competent legal services to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities, and to organize Lok Adalats to secure that the operation of the legal system promotes justice on a basis of equal opportunity.

Cases Suitable for Lok Adalats

  • Compoundable civil, revenue and criminal cases.
  • Motor accident compensation claims cases
  • Partition Claims
  • Damages Cases
  • Matrimonial and family disputes
  • Mutation of lands case
  • Land Pattas cases
  • Bonded Labour cases
  • Land acquisition disputes
  • Bank’s unpaid loan cases
  • Arrears of retirement benefits cases
  • Family Court cases
  • Cases which are not sub-judice

Procedure at Lok Adalat

The procedure followed at a Lok Adalat is very simple and shorn of almost all legal formalism and rituals. The Lok Adalat is presided over by a sitting or retired judicial officer as the chairman, with two other members, usually a lawyer and a social worker.

A Lok Adalat has the jurisdiction to settle, by way of effecting a compromise between the parties, any matter which may be pending before any court, as well as disputes which have not yet been formally instituted in any Court of Law. Such matters may be civil or criminal in nature, but any matter relating to an offense not compoundable under any law cannot be decided by the Lok Adalat even if the parties involved therein agree to settle the same.

Finality of Lok Adalat award

During the Lok Adalat, the parties agree to abide by the decision of the judge at the Lok Adalat. Thus, the award of the Lok Adalat is deemed to be decrees of Court and therefore the courts have all the powers in relation thereto as it has in relation to a decree passed by itself. This includes the powers to extend the time in appropriate cases.

The award passed by the Lok Adalat is the decision of the court itself though arrived at by the simpler method of conciliation instead of the process of arguments in court.

Benefits of Lok Adalat

  • No court fee and if any fee is paid, it will be refunded if the dispute is settled at the Lok Adalat.
  • No strict application of the procedural laws and the Evidence Act while assessing the merits of the claim by the Lok Adalat. The parties to the disputes though represented by their advocate can interact with the Lok Adalat judge directly and explain their stand in the dispute and the reasons, therefore, which is not possible in a regular court of law.
Bydeb

Indian law relating to Ad Posters

It is a very common scene in India to find posters and banners splattered across the walls, buildings houses, buses etc. Often we see these posted on places not meant to host them. Public places like parks, bus/railway/metro stations, colleges, government buildings are the most common targets of these unwarranted posters. Owing to this, the States have local advertisement laws and by-laws and municipal Acts which prevent and penalise defacement of public property by putting up posters and banners.

It has also been categorically held in various cases that putting up of posters/banners hampers the right to a hygienic environment which is an integral facet of healthy life. The right to live in a humane and healthy environment is violated by the illegalities committed by the people who put up such posters/banners on public and private properties.

The Supreme Court (SC) has also held in its various judgement that as posters should be regulated for both public and private properties since public life is affected under both the circumstances.  The Delhi High Court too, in one of its judgments, held that for putting up unlicensed posters and banners, no parallel can be drawn with the right to freedom of speech and expression.
 

Law governing Ad posters in India?

The earliest laws in this regard are the West Bengal Prevention of Defacement of Property Act, 1976 which defines defacement of property as interfering with the appearance of any erection in any manner whatsoever. The Act penalises such interference with a punishment of imprisonment up to 6 months or a fine of Rs. 1000 or both.

This Act was also extended to the NCT of Delhi in 1983 until its own advertisement law came up in 2008. Apart from the aforementioned 1976 Act, the Delhi Prevention of Defacement of Property Act, 2007 was passed by the Government of NCT of Delhi in 2008 and lays down stricter punishment for defacement of property.
 

What is the Punishment imposed by the law?

Under the Delhi Prevention of Defacement of Property Act, 2007, the punishment for defacing property is an imprisonment up to a period of one year or a fine up to Rs. 50, 000 or both.

Under West Bengal Prevention of Defacement of Property Act, 1976, the punishment for defacement only done by writing or marking with ink, chalk or paint or any other material under Section 3 of the Act entails a maximum punishment of six months’ imprisonment and a fine of Rs 1,000.

Putting of banners or posters will not attract the liability of the wrongdoer as the said banner or poster, under normal circumstances, can be removed without affecting the basic structure or appearance of the article on which they are affixed.

Bydeb

Here is what you can do to fight Noise Pollution

Have you ever been inconvenienced by a party or festival celebration in your neighbourhood where music was being played till late at night? Have you been annoyed by incessant honking on roads? Have you suffered from construction noises?


With an ever increasing number of motor vehicles, constructions and music at functions, noise pollution has become a part of daily life in India. Noise pollution means annoying levels of noise that have a harmful impact. It can cause lasting psychological and physiological damage. 
We tend to think that the noise pollution around us is out of our hands but this is not true. Noise pollution is a public nuisance and thus a civil wrong. The law provides several suitable remedies for the same.

 

Here is what you can do to address such situations- 

  1. The first step you should take is calling the police. Give them coherent details about the problem. Tell them how the noise is causing annoyance, the time since it has been going on and the address. You may do so anonymously. 
  2. A complaint can also be filed with the Pollution Control Board, as noise pollution has been classified as an air pollutant.

Here are some steps you can take further –

  1. Noise pollution is a public nuisance and is a civil wrong. Section 91 of the Civil Procedure Code (CPC) says that you can initiate a civil suit for the offense of Public nuisance. Under this section, a member of the community who is being inconvenienced can initiate a suit for appropriate relief, eg.- an injunction. This means that one can have their rights declared and as a consequence, be granted an injunction. The injunction would order the person at whom it is directed to do or stop doing a certain thing, in this case, the nuisance.
  2. As the above section also says that you can seek simultaneous relief under the criminal jurisdiction, through Section 133 of the Code of Criminal Procedure (CrPC). Under this section, the magistrate is allowed to stop the situation that is causing the nuisance. This means that the Magistrate can order the nuisance-causing activity to cease.
  3. You can also file a Public Interest Litigation if the situation requires. Article 32 of the Indian Constitution speaks of this tool which directly connects the public with the judiciary. Through a PIL, a member of the public is given the right to file a suit. This is judicial activism. The member of public filing the PIL may be an individual, an institution or a nongovernmental organization. A PIL can be filed in any High Court or directly in the Supreme Court. Under Section 133 of CrPC, a PIL may be filed in front of a magistrate as well.
Bydeb

How to file a complaint in National Green Tribunal (NGT)?

Many of you would have heard of the National Green Tribunal (NGT) and it has been observed that people are becoming more and more aware about the Green Laws and  their Rights. This short primer explains how, when and where to approach the NGT.
 

National Green Tribunal

The NGT was established on October 18, 2010 under the National Green Tribunal Act 2010, passed by the Central Government. The stated objective of the Central Government was to provide a specialized forum for effective and speedy disposal of cases pertaining to environment protection, conservation of forests and for seeking compensation for damages caused to people or property due to violation of environmental laws or conditions specified while granting permissions.

The NGT has the power to hear all civil cases relating to environmental issues and questions that are linked to the implementation of laws listed in Schedule I of the NGT Act. These include the following:
 

  • The Water (Prevention and Control of Pollution) Act, 1974;
  • The Water (Prevention and Control of Pollution) Cess Act, 1977;
  • The Forest (Conservation) Act, 1980;
  • The Air (Prevention and Control of Pollution) Act, 1981;
  • The Environment (Protection) Act, 1986;
  • The Public Liability Insurance Act, 1991;
  • The  Biological Diversity Act, 2002.


This means that any violations pertaining only to these laws, or any order / decision taken by the Government under these laws can be challenged before the NGT. Importantly, the NGT has not been vested with powers to hear any matter relating to the Wildlife (Protection) Act, 1972, the Indian Forest Act, 1927 and various laws enacted by States relating to forests, tree preservation etc. Therefore, specific and substantial issues related to these laws cannot be raised before the NGT. You will have to approach the State High Court or the Supreme Court through a Writ Petition (PIL) or file an Original Suit before an appropriate Civil Judge of the taluk where the project that you intend to challenge is located.

The NGT follows a very simple procedure to file an application seeking compensation for environmental damage or an appeal against an order or decision of the Government.  

For every application / appeal where no claim for compensation is involved, a fee of Rs. 1000/- is to be paid. In case where compensation is being claimed, the fee will be one percent of the amount of compensation subject to a minimum of Rs. 1000/-.
 

When can a claim for compensation be made?

A claim for compensation can be made in the following scenarios:
 

  • Relief/compensation to the victims of pollution and other environmental damage including accidents involving hazardous substances;
  • Restitution of property damaged;
  • Restitution of the environment for such areas as determined by the NGT.
  • No application for grant of any compensation or relief or restitution of property or environment shall be entertained unless it is made within a period of five years from the date on which the cause for such compensation or relief first arose.
     

Principles of Justice adopted by NGT

The NGT is not bound by the procedure laid down under the Code of Civil Procedure, 1908, but shall be guided by principles of natural justice. Further, NGT is also not bound by the rules of evidence as enshrined in the Indian Evidence Act, 1872. Thus, it will be relatively easier (as opposed to approaching a court) for conservation groups to present facts and issues before the NGT, including pointing out technical flaws in a project, or proposing alternatives that could minimize environmental damage but which have not been considered. While passing Orders/decisions/awards, the NGT will apply the principles of sustainable development, the precautionary principle and the polluter pays principles. However, it must be noted that if the NGT holds that a claim is false, it can impose costs including lost benefits due to any interim injunction.

Common Issues in the National Green Tribunal include matters pertaining to Environmental Clearance, Forest Clearance, Mining, Forest Conservation , Coastal Zone Regulation , Cutting of trees, Illegal Constructions , Industrial Pollution and other Pollution issues. Any individual on either side of the forum i.e. A conservationist or be the one summoned by the Tribunal can avail remedies by being represented  through their legal representative . It should not be  misunderstood that the object of Green Laws in our Country and the aim  of the Tribunal is to regularize the functioning and not bar or cause hindrance for Common People, Entrepreneurs ,Industrialist etc.