Thursday, August 5, 2010

Delhi HC slams marital dispute litigants who go back after taking benefits of compromise deed through mediation, makes it tough to go back on mediation

Delhi HC slams marital dispute litigants who go back after taking benefits of compromise deed through mediation, makes it tough to go back on mediation

Thu, Aug 5 05:32 AM

Touted as an effective tool to cut down the pendency of cases across courts, the mediation mechanism has recently hit a stumbling block as instead of ending multifarious litigation, it has often resulted in a fresh bout of cases. The Delhi High Court has recently witnessed several cases where the litigants, especially those entangled in marital disputes, have wished to reject the compromise deed executed after the mediation.

Of late many parties have been approaching the High Court asking to get their compromise deeds quashed, claiming they were made "under duress/coercion". But, more worryingly, the retraction often comes after one of the parties has already availed the benefits of the compromise deed.

Noting a spurt in such cases, Justice S N Dhingra said a litigant complaining of coercion must be put to stringent test before the compromise is set aside. The judge further noted receipt of the benefits is a factor that should be kept in mind before quashing a deed. "One can understand the retraction of compromise, if no benefit is received. However, the compromises are retracted even after benefits are received by one party," noted the court in its recent order.

Justice Dhingra noted that approaching the court after drawing the benefits of an agreement meant pushing the other party, who chose to comply with the terms, to a state of utmost disadvantage and hence, equity must prevail in such cases so that no injustice is done. "The party has to prove before the court by cogent evidence that the compromise was not entered into with free will and consent and the same was entered into under duress and should be ignored," ruled Justice Dhingra while dismissing two similar petitions.

Backing the court's views, jurists said the sanctity of a compromise deed must be maintained and not challenged by a lame allegation without substance. Retired Delhi High Court judge R S Sodhi told Newsline, "The entire purpose of alternate dispute redressal system is defeated if courts entertain such pleas without concrete arguments. These deeds are the rule of the courts and must be respected."

Balkrishna Sharma, a trial court lawyer who has attended several mediation proceedings, said any litigant should not be allowed to retract from the mediation without strong reasons. "A deed is executed only after willful agreements are arrived at and that too before a judicial officer. Nobody should be at a disadvantage only because he or she opted to follow the orders and honoured the deed."

Mediation process

The mediator — usually a judge — makes the two parties sit across a table and help them resolve the issues amicably before a compromise deed is executed on the terms agreed by both.

Mediation is considered very useful in cases of marital discord and issues of alimony, divorce and compensation are easily sorted out. These compromise deeds are subsequently submitted in the court trying their cases and matters are disposed of accordingly. A similar process is followed at the Lok Adalats.

Defining ‘honour' killing, a challenge to GoM - a political hot potato

Defining ‘honour' killing, a challenge to GoM - a political hot potato

Thursday, Aug 05, 2010

Smita Gupta

NEW DELHI: The tricky issue of defining ‘honour' killings and getting the States on board, as law and order is a State subject, will engage the Group of Ministers (GoM) at its preliminary meeting here on August 6 to discuss how to end the pernicious practice.

In the draft bill under consideration, the expressions ‘dishonour' and ‘perceived to have brought dishonour' have been defined as “acts of any person adopting a dress code which is unacceptable to his or her family or caste or clan or community or caste panchayat,” “choosing to marry within or outside the gotra or caste or clan or community against the wishes of his or her family or caste or clan or community or caste panchayat,” and “engaging in certain sexual relations which are unacceptable to his or her family or caste or clan or community or caste panchayat.”

Key role for States

Any change in the law — in this case a proposed amendment to the Indian Penal Code, the Indian Evidence Act, 1872, and the Special Marriages Act, 1954 — will need to involve the States. Indeed, at the July 8 Cabinet meeting, where the decision to set up the GOM was taken, it was also decided to write to the States, as they will have to implement any new law.

Difficult proviso

Government sources told The Hindu that one of the suggestions made in the draft bill would be both contentious and difficult to implement: This is the proviso that “all members of a body or group of the caste or clan or community or caste panchayat, ordering the commission of an act by which death is caused, shall be deemed guilty of having committed such an act by virtue of their association with such caste panchayat or body or group of the caste or clan or community.”

While law enforcement officers say this proviso — that is holding all members of a khap panchayat guilty of murder — will be difficult to implement, it will be a political hot potato in States like Haryana, where there has been a rash of ‘honour' killings, as many political parties and leaders there derive their strength from khap panchayats.

Indeed, at the July 8 Cabinet meeting, there were differences, with Human Resource Development Minister Kapil Sibal, Sports Minister M.S. Gill and Surface Transport Minister Kamal Nath pointing out the difficulties in making all members of a khap panchayat accountable for one crime.

“Changes needed in evidence Act” - Moily

“Changes needed in evidence Act”

Vidya Subrahmaniam

“Government in process of creating judicial academies”

“In practice we are unable to defend women and other vulnerable classes against discrimination”

New Delhi: Union Law Minister Veerappa Moily, on Wednesday, asked women's groups fighting for justice for marginalised women not to aim for utopia but to direct their movement towards procuring vehicles for getting the various laws implemented.

The Minister was addressing a three-day conference of women leaders from marginalised communities organised by the National Alliance of Women (NAWO). His remark was swiftly countered by President of NAWO Ruth Manorma who pointed out that marginalised women could hardly ensure the implementation of the law. “Implementation is not in our hands, sir. Nothing moves for us.”

Mr. Moily admitted that the situation on the ground was a far cry from the vision of social justice set out in the Constitution. The goals of social and economic justice were envisaged in the preamble and further amplified in the fundamental rights and the directive principles, and yet “in practice we have not been able to defend women and other vulnerable classes against discrimination,” he said. The minister said the problem arose in part because The Evidence Act was not geared towards facilitating gender justice.

The Minister said the United Progressive Alliance government had taken the lead in enacting gender-specific legislation and was in the process of finalising a comprehensive bill against sexual violence. “However, I always insist that the Evidence Act is also amended so that the intended objective of the law is met.”

Hundreds of women representing the marginalised groups of Dalits, minorities and Muslims from across the country are participating in the conference which has been organised on the theme of “denial, discrimination and deprivation.”

Mr. Moily said the law by itself could not deliver justice without a sensitised support system. “We need to ensure that the institutions, the implementing authorities, and the judiciary are sensitised.” He said the government was in the process of creating judicial academies.

Union Minister of State for Minorities Salman Khursheed argued that the time had come to move beyond quotas and such and embrace the “great idea of an Equal Opportunities Commission.”

Periyakulam Sub-Judge suspended

Periyakulam Sub-Judge suspended

Thursday, Aug 05, 2010

Staff Reporter

THENI: Periyakulam Sub-Judge G. Mohan was suspended here on Wednesday on the charges of irregularities during his tenure in other districts.

District Judge K. Sivanandha Jothi served the order issued by the Registrar of Madras High Court to the sub-judge.

Court sources said that the suspension order was served after an inquiry on irregularities during his tenure as judicial magistrate in Manamadurai and Sathankulam.

Women to get equal rights to adopt kids?

NEW DELHI: In a big step forward towards empowering the women across religious divide, a parliamentary Standing Committee has unanimously recommended that women be given equal rights in guardianship and adoption of children.

In its report on the Personal Laws Amendment Bill, 2010 -- introduced in the Rajya Sabha on April 22 -- the Standing Committee on Law and Justice has said personal laws cannot be kept away from the principles of gender equality and gender justice. "The committee is of the view that the amendments proposed in the bill would place the mother on an equal footing with the father with respect to the right of guardianship and the right to adopt," it said.

The bill, which seeks to amend the Guardians and Wards Act (GWA), 1890, and the Hindu Adoption Maintenance Act, 1956, is likely to be tabled in the Lok Sabha during the ongoing monsoon session.

According to GWA, which applies to Christians, Muslims, Parsis and Jews, if a couple adopts a child, the father is the natural guardian.

The proposed amendment to the 120-year-old Act allows the mother along with the father to be appointed as a guardian, making the process gender neutral. The bill provides for the mother to be appointed as a guardian along with the father so that the courts do not appoint anyone else in case the father dies.

The second amendment, proposed in the Hindu Adoption Maintenance Act, 1956, (applicable to Hindus, Jains, Buddhists and Sikhs) aims to remove the hurdles in the way of a married woman to adopt and also give a child for adoption. At present, unmarried and divorced women as also widows are allowed to adopt a child but women separated from their husbands and engaged in lengthy divorce battles cannot adopt a child.

The amendment would allow a married woman separated from her husband to adopt with the consent of her husband even during the time of divorce proceedings. However, if he changes his religion or is declared to be of unsound mind, no consent from the estranged husband will be required.

Amendments will not do, stand-alone law needed to curb ‘honour' crimes, irretrievable breakdown of marriage against women : AIDWA

Amendments will not do, stand-alone law needed to curb ‘honour' crimes, irretrievable breakdown of marriage against women : AIDWA

The All-India Democratic Women's Association (AIDWA) has presented to Law Minister M. Veerappa Moily a comprehensive draft law that seeks to make private parties culpable for violation of fundamental rights in crimes and killings committed in the name of “honour.”

All kinds of harassment, and curbing of choice, association, and movement would come within the ambit of this law.

Apart from defining crimes in the name of “honour,” the draft makes eulogising or glorification of these offences and killings punishable. The onus of proof is on the accused. The law seeks to protect young couples who declare their intention to marry before a government officer, and also suggests measures to stop self-proclaimed panchayats and other community bodies from issuing diktats.

Led by Brinda Karat, MP, a delegation, which met the Minister on Tuesday, pointed out that the amendments proposed to the existing laws did not sufficiently address all crimes of violence perpetrated in the name of “honour,” and highlighted the need for a separate, stand-alone law. The proposed amendments made an entire community punishable for a crime committed by some, the delegation pointed out and suggested that the law penalise only those community members present at the spot where illegal action was taken.

Mr. Moily assured the AIDWA that he would take up the important issues it raised with the Group of Ministers formed to look at legislative changes to address “honour” killings, said general secretary Sudha Sundararaman.

A memorandum was handed over to the Minister, pointing out the extremely limited rights available to women who had separated or were divorced, and their misery and sufferings due to financial constraints.

The delegation emphasised that the Bill to make irretrievable breakdown of marriage a ground for divorce would act against the majority of women in the existing economic and social reality of unequal status.

Adequate financial safeguards must be mandated for women before this Bill was passed, said the delegation, which included AIDWA legal convener Kirti Singh, national assistant secretary Ashalata and member Asha Sharma .

It appealed for supportive legislation to provide financial security to women by bringing in a law on matrimonial property rights immediately.

Allow compounding of cognisable offences including 498A cases, says SC

Allow compounding of cognisable offences including 498A cases, says SC

TNN, Aug 5, 2010, 03.28am IST

NEW DELHI: To lessen the huge pendency of cases and encourage conciliation among warring litigants, Supreme Court has urged the Centre and Law Commission to examine whether non-compoundable offences under IPC, including those under Section 498A, could be closed after the parties settled.

At present, cases in which a husband or his relative is booked under Section 498A for subjecting a woman to cruelty or anyone charged under Section 326 for causing grievous hurt by dangerous weapon or means fall under the non-compoundable category and courts are barred from closing the cases even after the opposing parties have reached an amicable settlement.

Looking at similar cases before the court and in particular a case under Section 326 where the parties had arrived at an amicable settlement, a Bench comprising Justices Markandey Katju and T S Thakur said, "There are several offences under the IPC that are currently non-compoundable. These include offences punishable under Sections 498A, 326 etc. Some such offences can be made compoundable by introducing a suitable amendment in the statute."

It added, "We are of the opinion that the Law Commission of India could examine whether a suitable proposal can be sent to the Union government in this regard. Any such step would not only relieve the courts of the burden of deciding cases in which the aggrieved parties have themselves arrived at a settlement, but may also encourage the process of reconciliation between them. We, accordingly, request the Law Commission and the government of India to examine all these aspects and take such steps as may be considered feasible."

The court asked the SC secretary general to send a copy of the order to the Law Commission and the law secretary. The Bench requested the law secretary to place this order before law minister Veerappa Moily.