The Maintenance and Welfare of parents and Senior Citizen Act 2007

An Act to provide for more effective provisions  for the maintenance and welfare of parents and senior citizen of parents and senior citizen guaranteed and recognized under the Constitution and for matters concerned therewith or incidental thereto.

Introduction

The Maintenance and Welfare of Parents and Senior Citizen Bill, 2007 was introduced in Lok Sabha on 20 March 2007 and has been referred by Hon’ble Speaker to the Standing Committee on Social Justice and Empowerment to provide for more effective provisions for the maintenance and welfare of Parents and Senior Citizen Guaranteed and recognized under the Constitution and for matters connected therewith or incidental thereto The most important provision of the Bill was in making the maintenance of parents by their family as a legal right.

The Maintenance and Welfare of parents and Senior Citizens Act 2007

The Bill purpose to provide for :

  1. the appropriate mechanism to be set up to provide need-based maintenance to the parents and senior citizens ;
  2. providing better medical facilities to senior citizen ;
  3. for the institutionalization of a suitable mechanism for protection of life and property of older persons; and
  4.  setting up old age homes in every district.

In this Act, unless the context otherwise requires,–


(a) “children” includes son, daughter, grandson, and grand-daughter but does not include a minor;


(b) “maintenance” includes provisions for food, clothing, residence and medical attendance and treatment;


(c) “minor” means a person who, under the provisions of the Majority Act, 1875 (9 of 1875) is deemed not to have attained the age of majority;


(d) “parent” means father or mother whether biological, adoptive or stepfather or stepmother, as the case may be, whether or not the father or the mother is a senior citizen;


(e) “prescribed” means prescribed by rules made by the State Government under this Act;


(f) “property” means property of any kind, whether movable or immovable, ancestral or self-acquired, tangible or intangible, and includes rights or interests in such property;


(g) “relative” means any legal heir of the childless senior citizen who is not a minor and has or would inherit his property after his death;


(h) “senior citizen” means any person being a citizen of India, who has attained the age of sixty years or above;


(i) “State Government”, relation to a Union territory, means the Administrator thereof appointed under article 239 of the Constitution;


(j) “Tribunal’ means the Maintenance Tribunal constituted under section 7;


(k) “welfare” means provision for food, health care, recreation centers, and other amenities necessary for the senior citizens.


                                                       Act to have an overriding effect.

The provisions of this Act shall affect anything inconsistent therewith contained in any enactment other than this Act, or any instrument affecting under any enactment other than this Act.

                                  Maintenance of parents and senior citizens.

(1) A senior citizen including a parent who is unable to maintain himself from his own earning or out of the property owned by him, shall be entitled to make an application under section 5 in case of–


(i) parent or grand-parent, against one or more of his children not being a minor;


(ii) a childless senior citizen, against such of his relative, referred to in clause (g) of section 2.


(2) The obligation of the children or relative, as the case may be, to maintain a senior citizen extends to the needs of such citizens so that senior citizens may lead a normal life.


(3) The obligation of the children to maintain his or her parent extends to the needs of such parent either father or mother or both, as the case may be, so that such parent may lead a normal life.


(4) Any person being a relative of a senior citizen and having sufficient means shall maintain such senior citizen provided he has the property of such citizen or he would inherit the property of such senior citizen:



Provided that where more than one relative is entitled to inherit the property of a senior citizen, the maintenance shall be payable by such relative in the proportion in which they would inherit his property.

1) An application for maintenance under section 4, may be made–


(a) by a senior citizen or a parent, as the case may be; or


(b) if he is incapable, by any other person or organization authorized by him; or


(c) the Tribunal may take cognizance suo motu.



Explanation.–For this section “organization” means any voluntary association registered under the Societies Registration Act, 1860 (21 of 1860) or any other law for the time being in force.



(2) The Tribunal may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this section, order such children or relative to make a monthly allowance for the interim maintenance of such senior citizen including parent and to pay the same to such senior citizen including parent as the Tribunal may from time to time direct.


(3) On receipt of an application for maintenance under subsection (1), after giving notice of the application to the children or relative and after giving the parties an opportunity of being heard, hold an inquiry for determining the amount of maintenance.


(4) An application filed under sub-section

(2) for the monthly allowance for the maintenance and expenses for proceeding shall be disposed of within ninety days from the date of the service of notice of the application to such person:



Provided that the Tribunal may extend the said period, once for a maximum period of thirty days in exceptional circumstances for reasons to be recorded in writing.



(5) An application for maintenance under sub-section

(1) maybe filed against one or more persons:



Provided that such children or relatives may implead the other person liable to maintain parent in the application for maintenance.



(6) Where a maintenance order was made against more than one person, the death of one of them does not affect the liability of others to continue paying maintenance.


(7) Any such allowance for the maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or expenses of the proceeding, as the case may be.


(8) If children or relative so ordered fail, without sufficient cause to comply with the order, any such Tribunal may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person for the whole, or any part of each month’s allowance for the maintenance and expenses of the proceeding, as the case be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made whichever is earlier:



Provided that no warrant shall be issued for the recovery of any amount due under this section unless the application is made to the Tribunal to levy such amount within a period of three months from the date on which it became due.

Jurisdiction and procedure.

The Maintenance and Welfare of parents and Senior Citizens Act 2007

(1) The proceedings under section 5 may be taken against any children or relative in any district–


(a) where he resides or last resided; or


(b) where children or relative resides.


(2) On receipt of the application under section 5, the Tribunal shall issue a process for procuring the presence of children or relatives against whom the application is filed.


(3) For securing the attendance of children or relatives the Tribunal shall have the power of a Judicial Magistrate of first-class as provided under the Code of Criminal Procedure, 1973 (2 of 1974).


(4) All evidence to such proceedings shall be taken in the presence of the children or relative against whom an order for payment of maintenance is proposed to be made, and shall be recorded in the manner prescribed for summons cases:



Provided that if the Tribunal is satisfied that the children or relative against whom an order for payment of maintenance is proposed to be made are willfully avoiding service, or willfully neglecting to attend the Tribunal, the Tribunal may proceed to hear and determine the case ex parte.



(5) Where the children or relative is residing out of India, the summons shall be served by the Tribunal through such authority, as the Central Government may by notification in the Official Gazette, specify in this behalf.


(6) The Tribunal before hearing an application under section 5 may refer the same to a Conciliation Officer and such Conciliation Officer shall submit his findings within one month and if an amicable settlement has been arrived at, the Tribunal shall pass an order to that effect.



Explanation.–For this sub-section “Conciliation Officer” means any person or representative of an organization referred to in Explanation to sub-section (1) of section 5 or the Maintenance Officers designated by the State Government under sub-section (1) of section 18 or any other person nominated by the Tribunal for this purpose.

 

The Maintenance and Welfare of parents and Senior Citizens Act 2007


Harassment and cruelty in connection with demand of dowry

“It is not any cruelty that becomes the subject matter of the provision but it is the cruelty or harassment for or in connection with, demand for dowry”

In this case, the death of a woman has occurred during seven years of her marriage. It is also stated that, at the time of marriage, the dowry has been paid according to the capacity of the complainant. However, after the marriage, the deceased S was harassed for not bringing more dowry. Ten days before the incident the deceased had come to the complainant’s place and stated that her in-laws were demanding Rs. 7,000/- as they wanted to purchase a buffalo. She had further stated that till she brings the desired money, she would not be allowed to reside in her in-laws, place. To establish the offense under Section 304B -IPC the prosecution is obliged to prove that the death of women is caused by any burns or bodily injury or occurs otherwise than under normal circumstances and such death occurs within 7 years of her marriage and if shown that before her death that was subjected to cruelty or harassment by her husband or any relative of her husband. Such harassment and cruelty must be in connection with any demand and dowry?

  1. Deepak vs State Of U.P. on 3 March 2021
  1. If death is a result of burns or bodily injury, or otherwise than under normal circumstances, and it occurs within seven years of the marriage and, it is ‘shown’ in contradistinction to ‘proved’ that soon before her death she was subjected to cruelty or harassment by her husband or his relatives, and the cruelty or harassment is connected with a demand of dowry, it shall be a dowry death, and the husband or relative shall be deemed to have caused her death.
  2. To borrow from Preventive Detention jurisprudence – there must be a live link between the cruelty emanating from a dowry demand and the death of a young married woman, as is sought to be indicated by the words “soon before her death”, to bring Section 304B into operation; the live link will obviously be broken if the said cruelty does not persist in proximity to the untimely and abnormal death. It cannot be confined in terms of time; the query of this Court in the context of condonation of delay in filing an appeal – why not minutes and second – remains apposite.
  1. In this connection, we may refer to the judgment of this Court in Kans Raj v. State of Punjab [(2000) 5 SCC 207: 2000 SCC (Cri) 935] where this Court considered the term “soon before”. The relevant observations are as under: (SCC pp. 222- 23, para 15) ’15. … ‘Soon before’ is a relative term that is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time-limit. This expression is pregnant with the idea of proximity test. The term ‘soon before’ is not synonymous with the term ‘immediately before’ and is the opposite of the expression ‘soon after’ as used and understood in Section 114, Illustration (a) of the Evidence Act.
  2. These words would imply that the interval should not be too long between the time of making the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. About dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be ‘soon before death’ if any other intervening circumstance showing the non-existence of such treatment is not brought on record, before such alleged treatment and the date of death.
  3. It does not, however, mean that such time can be stretched to any period. The proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty, or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough.’ Thus, there must be a nexus between the demand of dowry, cruelty, or harassment, based upon such demand and the date of death. The test of proximity will have to be applied. But, it is not a rigid test. It depends on the facts and circumstances of each case and calls for a pragmatic and sensitive approach of the court within the confines of the law.”
  4. In light of the law as discussed above, the main ingredients of dowry death are harassment and cruelty for the demand of dowry, which should be examined first. As per the prosecution case, the marriage of the victim and appellant herein was solemnized on 10.12.2012. The Factum of marriage was admitted by the accused in his statement under Section 313 Cr. P.C. Even defense witnesses have admitted marriage of the accused-appellant with the victim in the year 2012. There is also no dispute that the victim was found dead within seven years of her marriage. As per the F.I.R. version, on 12.06.2015 father of the victim had received telephonic information from the police concerning his daughter’s death.
  5. The Factum of death had not been disputed by the accused in his defense, which occurred within two and half years of the marriage. The Factum of demand of dowry has been asserted by the prosecution witnesses, though the same has been denied by the accused in his statement under Section 313 Cr.P.C. and the deposition of the defense witnesses.
  6. A perusal of the evidence of prosecution in the totality of surrounding circumstances along with other evidence available on record, in which crime is alleged to have commissioned, it can easily be inferred that the victim was subjected to cruelty and harassment for the demand of dowry and the chain of incidents constitute proximate live link with the death of deceased.
Protection of Women Against Cruelty in India - B&B Associates LLP.
In the facts and circumstances of the present case, it cannot be said that there was a stray incident of demand of dowry. Death of victim within two and half years of marriage in suspicious circumstance wherein seat of injury no.  at the forehead of the deceased and persistent demand of dowry shows that soon before her death, she was subjected to cruelty and harassment by her husband for, or in connecting with, the demand of dowry. The prosecution has successfully discharged its duty and it is obligatory on the Court to raise a presumption that the accused caused the dowry death. No unimpeachable evidence has been adduced by the accused to prove his innocence and rebut his complicity in the commission of the crime of dowry death. There is no illegality, infirmity, or perversity in the impugned judgment and order passed by the Court below warranting interference by this Court in the exercise of its appellate jurisdiction. Learned Court below has rightly held the present appellant guilty under Section 304-B and 498-A IPC and under Section 4 of Dowry Prohibition Act.
Dowry related crimes continue to rise even after 59 years of Dowry Prohibition Act: What are the reasons for this? | by Gatha G Namboothiri | Nyaaya | Medium
Dharam Das vs State Of U.P. on 29 September 2020
  1. At this stage, it would be pertinent to mention that Section 113-B of the Evidence Act mandates the Court has to raise the statutory presumption in a case where it is shown that soon before her death such woman has been subjected to cruelty or harassment for or in connection with any demand of dowry. In the case of Banshi Lal Vs. The state of Haryana, AIR 2011 SC 691, has held that the court has to analyze the facts and circumstances as leading to the death of the victim and decide if there is any proximate connection between the demand of dowry and act of cruelty or harassment and the death. Meaning thereby cruelty or harassment concerning the demand of dowry soon before death is a crucial ingredient to be proved by the prosecution before attracting any provisions of section 304-B I.P.C.
  2. In Mustafa Shahdal Shaikh Vs. In the state of Maharashtra, AIR 2013 SC 851 it was observed by the Hon’ble Apex Court that “soon before death” means the interval between cruelty and death should not be much. There must be the existence of proximate and live links between the effect of cruelty based on dowry demand and the concerned death. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence. Similarly in Kaliyaperumal Vs. State of Tamil Nadu, AIR 2003 SC 3828 it was held that that the expression ‘Soon before her death” used in the substantive Section 304-B I.P.C. and section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression “soon before her death” is not defined. The determination of the period which can come within the term “soon before” is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression ‘soon before’ would normally imply that the interval should not be much between the concerned cruelty or harassment and effect of cruelty based on dowry demand and the concerned death. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence.
  3. In the case in hand, as pointed out earlier, both PW-1 Veer Singh and PW 2 have made consistent statements that after the marriage of the deceased, she was continuously being harassed on account of dowry demand of a buffalo and cash of Rs.40,000/. PW-1 Veer Singh has stated that after 6-7 days of marriage, the deceased visited his house after vidai and told that her husband and his family members were harassing for the demand of dowry and they were not allowing her even to take proper food and other necessary apparels. She has told that accused persons were making a demand of a buffalo and Rs.40,000/. However, after and a half month, the deceased was again sent to her matrimonial home. After that, she used to tell on the phone that accused persons were harassing for said demand. PW-1 Veer Singh has stated that he also used to visit the matrimonial home of the deceased and that she used to complain about the harassment on account of dowry demand. In his cross-examination, PW-1 Veer Singh stated that after her marriage, the deceased visited his house three times, and after that on 25.09.2008, he was informed about the incident.
  4. The version of PW-1 Veer Singh has been corroborated by PW-2 Smt. Krishna Devi. PW-2 Krishna Devi also stated that even when third time her daughter Saroj Devi came from her matrimonial home, she has told that she was being continuously harassed and that accused persons were not allowing her even to take proper food and that her husband Dharam Das used to beat her after consuming liquor. However, the deceased was again sent back to her matrimonial home, and thereafter, on the day of the incident, they were informed that the accused persons have burnt the deceased.
  5. The evidence indicates that after her marriage, the deceased was continuously being harassed for the fulfillment of the alleged demand of dowry. The incident took place within about 7 months of marriage and during this period of 7 months deceased has visited her paternal home three times and on every occasion, she always told her family members that she was being harassed in connection with said dowry demand. During this period of 7 months, besides the three visits of the deceased, PW-1 Veer Singh also used to visit her matrimonial home house.
  6. There are no reasons to doubt this evidence. The accused-appellant has also not taken any such specific plea that the deceased did not visit her maternal home or that PW-1 Veer Singh did not visit his house. Thus, there is evidence that within a short span of 7 months of matrimonial life of the deceased, she visited her parental house three times, and whenever the deceased met her father or brother, she used to tell about the harassment being meted out to her on account of demand of buffalo and cash of Rs. 40,000/ by the accused-appellant. All these facts clearly imply that the deceased was continuously being harassed for demand dowry and there is absolutely nothing to indicate that this cruelty and harassment has ever ceased till the incident.
  7. One important aspect of the matter is that there is evidence in the form of the dying declaration of the deceased that it was the accused-appellant Dharam Das, who has put the deceased on fire and she died after two months of a said incident of burn injuries sustained by her in the alleged incident. Though the accused-appellant was not charged for the offense under section 302 IPC, the fact that she was set ablaze by the accused-appellant, also goes to show that the deceased was being subjected to cruelty till the incident of burning and this cruelty clearly covers ”cruelty soon before her death”.
  8. Considering the entire evidence, it is manifest there is a proximate connection between the demand of dowry and the act of cruelty/harassment meted out to the deceased and the death of the deceased. The interval between cruelty and death of the deceased is not much and such gap has to be examined in the attending facts and circumstances of the matter. There is a proximate and live link between the effect of cruelty based on dowry demand and the death of the deceased. As observed by the Hon’ble Apex Court, the determination of the period which can come within the term “soon before” is to be determined by courts, depending upon facts and circumstances of each case and it normally implies that the interval should not be much between the concerned cruelty or harassment and effect of cruelty based on dowry demand and the concerned death.
  9. Considering the evidence in light of peculiar facts and circumstances of the instant case as well as the position of law, it is established that the deceased was continuously being harassed on account of dowry demand of a buffalo and cash of Rs.40,000/ and the accused-appellant continued the harassment and ill-treatment to the deceased till the incident of her burning.
  10. As noticed earlier there is absolutely nothing to indicate that this cruelty and harassment has ever ceased till the incident. Considering the entire evidence, it is clear that there is a proximate and lives link between the effect of cruelty meted out to the deceased based on dowry demand and the death of the deceased. Thus, it established that the deceased was subjected to cruelty or harassment by her husband / accused-appellant in connection with demand for dowry and that such cruelty or harassment was soon before her death. Because of this evidence, the presumption enshrined under section 113-B Evidence Act can safely be raised against the accused-appellant appellant.

Marital Rape : A Non-criminalized Crime in India

The definition of rape codified in Section 375 of the Indian Penal Code (“IPC”) includes all forms of sexual assault involving non-consensual intercourse with a woman. However, Exception 2 to Section 375 exempts unwilling sexual intercourse between a husband and a wife over fifteen years of age from Section 375’s definition of “rape” and thus immunizes such acts from prosecution. As per current law, a wife is presumed to deliver perpetual consent to have sex with her husband after entering into marital relations.
Dear Supreme Court, Here's Why Marital Rape Should Be Criminalised
While unwilling sexual contact between a husband and a wife is recognized as a criminal offense in almost every country of the world, India is one of the thirty-six countries that still have not criminalized marital rape. The Supreme Court of India and various High Courts are currently flooded with writ petitions challenging the constitutionality of this exception, and in a recent landmark judgment, the Supreme Court criminalized unwilling sexual contact with a wife between fifteen and eighteen years of age. This judgment has in turn led to an increase in other writs challenging the constitutionality of Exception 2 as a whole. In light of ongoing litigation, this Article critically analyses the constitutionality of Exception 2.
  1. Violation of Article 14 of the Indian Constitution
  2. Article 14 of the Indian Constitution ensures that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
  3. Although the Constitution guarantees equality to all, Indian criminal law discriminates against female victims who have been raped by their own husbands

The roots of this doctrine can be traced to British colonial rule in the Victorian era.

India was a British colony during the 19th century. All Indian laws enacted at this time were deeply influenced by English laws and Victorian norms. The marital exception to the IPC’s definition of rape was drafted on the basis of Victorian patriarchal norms that did not recognize men and women as equals, did not allow married women to own property, and merged the identities of husband and wife under the “Doctrine of Coverture.
marital rape
But times have changed. Indian law now affords husbands and wives separate and independent legal identities, and much jurisprudence in the modern era is explicitly concerned with the protection of women. This concern is evident in the plethora of statutes intended to protect women from violence and harassment that have been passed since the turn of the century, including “The Protection of Women from Domestic Violence Act” and the “Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act.
Image result for marital rape images
marital rape
Exception 2 violates the right to equality enshrined in Article 14 insofar as it discriminates against married women by denying them equal protection from rape and sexual harassment. The Exception creates two classes of women based on their marital status and immunizes actions perpetrated by men against their wives. In doing so, the Exception makes possible the victimization of married women for no reason other than their marital status while protecting unmarried women from those same acts.
Exception 2’s distinction between married and unmarried women also violates Article 14 insofar as the classification created has no rational relation to the underlying purpose of the statute.
In Budhan Choudhary v. State of Bihar and State of West Bengal v. Anwar Ali Sarkar the, Supreme Court held that any classification under Article 14 of the Indian Constitution is subject to a reasonableness test that can be passed only if the classification has some rational nexus to the objective that the act seeks to achieve.
But Exception 2 frustrates the purpose of Section 375:to protect women and punish those who engage in the inhumane activity of rape.
Exempting husbands from punishment is entirely contradictory to that objective. Put simply, the consequences of rape are the same whether a woman is married or unmarried. Moreover, married women may actually find it more difficult to escape abusive conditions at home because they are legally and financially tied to their husbands.
In reality, Exception 2 encourages husbands to forcefully enter into sexual intercourse with their wives, as they know that their acts are not discouraged or penalized by law. Because no rational nexus can be deciphered between the classification created by the Exception and the underlying objective of the Act, it does not satisfy the test of reasonableness, and thus violates Article 14 of the Indian Constitution.
Marital Rape in India - iPleaders
Violation of Article 21 ( Marital Rape)

Exception 2 is also a violation of Article 21 of the Indian Constitution.

Article 21 states that “no person shall be denied of his life and personal liberty except according to the procedure established by law.” The Supreme Court has interpreted this clause in various judgments to extend beyond the purely literal guarantee to life and liberty. Instead, it has held that the rights enshrined in Article 21 include the rights to health, privacy, dignity, safe living conditions, and a safe environment, among others. In recent years, courts have begun to acknowledge a right to abstain from sexual intercourse and to be free of unwanted sexual activity enshrined in these broader rights to life and personal liberty. In The State of Karnataka v. Krishnappa, the Supreme Court held that “sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female.”In the same judgment, it held that non-consensual sexual intercourse amounts to physical and sexual violence. Later, in Suchita Srivastava v. Chandigarh Administration, the Supreme Court equated the right to make choices related to sexual activity with rights to personal liberty, privacy, dignity, and bodily integrity under Article 21 of the ConstitutionMost recently, the Supreme Court has explicitly recognized in Article 21 a right to make choices regarding intimate relations. In Justice K.S. Puttuswamy (Retd.) v. Union of India, the Supreme Court recognized the right to privacy as a fundamental right of all citizens and held that the right to privacy includes “decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations.”

Forced sexual cohabitation is a violation of that fundamental right. The above rulings do not distinguish between the rights of married women and unmarried women and there is no contrary ruling stating that the individual’s right to privacy is lost by marital association. Thus, the Supreme Court has recognized the right to abstain from sexual activity for all women, irrespective of their marital status, as a fundamental right conferred by Article 21 of the Constitution.

Additionally, Exception 2 violates Article 21’s right to live a healthy and dignified life. As mentioned above, it is well settled that the “right to life” envisaged in Article 21 is not merely a right to exist. For example, there can be no dispute that every citizen of India has the right to receive healthcare or that the state is required to provide for the health of its constituents
In this vein, the courts have repeatedly held that the “right to life” encompasses a right to live with human dignity.
Yet the very existence of Exception 2, which fails to deter husbands from engaging in acts of forced sexual contact with their wives, adversely affects the physical and mental health of women and undermines their ability to live with dignity.
The above conclusions clearly reflect that Exception 2 to Section 375 of the IPC is an infringement of Articles 14 and 21 of the Constitution. It is time that Indian jurisprudence understands the inhumane nature of this provision of law and strikes it down.
Footnotes
Sarthak Makkar is a second-year student at Gujarat National Law University, India. He serves as an editor for The GNLU Law Review, associate editor of the GNLU Journal of Law and Economics, and Student Editor for Supremo Amicus. He has previously interned at the Supreme Court of India with Senior Advocates Mr. Jayant Bhushan and Ms. Geeta Luthra and at Nishith Desai Associates.
Indian Penal Code § 375, No. 45 of 1860, India Code.
Marital Rape in India: 36 countries where marital rape is not a crime, India Today, Mar. 12, 2016.
Independent Thought v. Union of India, (2013) 382 SCC (2017) (India).
India Const. art. 14.
Protection of Women from Domestic Violence Act, 2005, No. 43, Acts of Parliament, 2005 (India); Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, No. 14, Acts of Parliament, 2013 (India).

Domestic Relationships(Inference of domestic relationship)

What is a Domestic Relationship?

Section 2(f) of the DV Act defines “domestic relationship”, extending its ambit to “relationship in the nature of marriage” and thus extending its protection to women whose marriage are invalid or void under law, or who haven’t gone through a formal marriage with their partners (live-in relationships) but are otherwise as good as a married couple.

SA to bring in Clare's Law for partners to get access to domestic violence criminal history - ABC News

 

What is the Difference between Live-In relationships and Relationships in the Nature of Marriage?

It was cleared by the Supreme Court that merely spending weekends together or one-night stands, exchanging sexual favors in return for financial favors are not considered to be “relationship in nature of marriage”. In Indra Sarma v. V.K.V Sarma, the Supreme Court differentiated between a relationship in the nature of marriage and a live-in relationship. The Supreme Court gave eight factors that should be considered while deciding whether a relationship can be covered as one in the nature of marriage:

  1. Duration of a relationship: a reasonable period of time. It may vary from case to case and fact to fact.
  2. Shared Household
  3. Pooling resources and shared financial arrangements
  4. Domestic Arrangements
  5. Sexual Relationship
  6. Children
  7. Public Socialization
  8. Intention and conduct

Brief History of Domestic Relations Law

relationship

Terms:

Marriage:
The legal union of one man and one woman as husband and wife, united in law for life, or until divorced. The word also signifies the act, ceremony, or formal proceeding by which persons take each other for husband and wife.

Divorce:
The legal separation of husband and wife, effected by the judgment or decree of a court, and either totally dissolving the marriage relation, or suspending its effects so far as it concerns the cohabitation of the parties.

Miscegenation:
A term formerly applied to marriage between persons of different races. Statutes prohibiting marriage between persons of different races have been held to be invalid as contrary to the equal protection clause of the Constitution.

Polygamy:
The offense of having several wives or husbands at the same time, or more than one wife or husband at the same time. Polygamy is a crime in all states.

Family Law in Modern America

Domestic relations law is just another name for family law. Yet, this area of the law extends beyond merely the family. Rather, it deals with the laws governing the familial relationship, which has changed substantially over the years.

The traditional ideal of the “nuclear family,” made up of a married couple raising their 2.2 children, is fading, down from 40 percent of all households in 1970 to less than 25 percent in 2000. Even the U.S. Supreme Court has acknowledged that “demographic changes . . . make it difficult to speak of an average American family.” See Troxel v. Granville, 530 U.S. 57, 64 (2000).

Since this area of law touches on so many substantive subject areas, to be well versed in family law, one must consult various sources to determine the solution to some particularly vexing situations

relationships

Sources of Family Law

Family law emanates from five sources:

  1. Each state’s statutory and constitutional law.
  2. United States Constitution.
  3. Federal law directly addressing family-law matters, ranging from child support enforcement to interstate custody disputes.
  4. Tax and welfare laws, both federal and state, provide or withhold benefits on the basis of marital status, dependency, and family configuration.
  5. Regulation, such as zoning laws (e.g., restricting a large proportion of living space to “single-family” uses).

Yet, despite the variety of sources regulating family law subjects, family law remains overwhelmingly in the hands of the states, less because of constitutional barriers to federal intervention than because of longstanding wariness on the part of federal legislators and judges to enter the thicket of family regulation. Given that marriage involves an institution of public interest, states may regulate this type of conduct.

An example of state regulation involves the formalities involved in obtaining a marriage license. Historically, before couples were granted a marriage license, a blood test or other health examination of both parties (to screen for sexually transmitted diseases) was often required as a prerequisite. Today, the number of states requiring blood tests has declined.

Inference of domestic relationship – Domestic relationship can be inferred between the parties who have shared household and consensual sex.

Violence affects 60% of teen relationships and 150 young people were killed by partners in 13 years | Daily Mail Online

Indra Sarma vs V.K.V.Sarma on 26 November, 2013

In order to examine as to whether there has been any act, omission, or commission or conduct so as to constitute domestic violence, it is necessary to examine some of the definition clauses under Section 2 of the DV Act. Section 2(a) of the DV Act defines the expression “aggrieved person” as follows:

“2(a). “Aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.” Section 2(f) defines the expression “domestic relationship” as follows:

“2(f). “Domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.” Section 2(q) defines the expression “respondent” as follows:

“2(q). “Respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:

one couple man and woman domestic violence - De Rebus

b) Domestic relationship between an unmarried woman and a married adult male: Situations may arise when an unmarried adult women knowingly enters into a relationship with a married adult male. The question is whether such a relationship is a relationship “in the nature of marriage” so as to fall within the definition of Section 2(f) of the DV Act.

c) Domestic relationship between a married adult woman and an unmarried adult male: Situations may also arise where an adult married woman, knowingly enters into a relationship with an unmarried adult male, the question is whether such a relationship would fall within the expression relationship “in the nature of marriage”.

relationships

Hindu Marriage Act ,1955 (Divorce and Ground of Cruelty)

                                                                                       SECTION 13

                 Divorce and Ground of Cruelty

The conduct by either of the spouse should be of such a nature which should fall in the ambit of cruelty under the Matrimonial Law. The Court needs to look after all the background and circumstances because of which the couple wants to get separated. Basically, the Court has to investigate the reason for the deterioration of the marriage.

Section 13- Divorce on Ground Of Cruelty – Appeal filing of a complaint by the wife under the Domestic Violence Act itself can never be considered as an act of cruelty unless it is found by positive evidence that it was a false complaint No case made out for decree of divorce on the ground of cruelty – Appeal allowed.

Section 13- Divorce on the ground of cruelty – Appeal When it is not in dispute that husband used to come late at nights, that in her presence husband  himself admitted that the fact that said women to his friend and on basis of said circumstances if the wife has doubted the relationship, it can not be said that such doubt was without any basis case made out for decree of divorce on the ground of cruelty- Appeal allowed

Cruelty for the purpose of Divorce | Lexspeak Legal

What is cruelty?

Cruelty refers to violent acts. However, a mere quarrel, petty outrageous behavior, or differences between the spouses does not come in the ambit of cruelty because this is something that is common in day-to-day married life. Conducts that would amount to cruelty should be grave and severe in nature. Grave violence doesn’t always mean physical violence. Though physical violence is an essential factor that constitutes cruelty but apart from that a continuous process of ill-treatment or mental or physical torture to either of the spouse would also amount to cruelty.

Bombay HC Upholds Divorce On Grounds Of Cruelty Towards Husband Whose Wife Filed False 498A Case [Read Judgment]

Cruelty as a ground for Divorce 

The day to day situations in a matrimonial life creates an ambiguity within the couples to lead their life with each other peacefully. Although there is no such exhaustive definition to what all condition would lead to an offense of cruelty if we go through a case of marital abuse happening around us, then we can conclude of certain conditions such as:

  • The physical violence on the spouse.
  • Having affairs or committing adultery with not just the spouse’s knowledge but even publically accepting it.
  • And also in cases where either of the spouses is falsely accused of committing adultery.
  • The constant manifestation of agony, rage with the addition of yelling or abusing at the spouse.
  • Demoralizing and restricting the spouse by every means to be an independent individual and compelling the spouse to be in a marital relationship where the spouse is left with no other option but to depend on the other.
  • Not disclosing any fact or incident of an acquired sexually transmitted disease while they are already into marital life. And the list goes on.

The conduct by either of the spouse should be of such a nature which should fall in the ambit of cruelty under the Matrimonial Law. The Court needs to look after all the background and circumstances because of which the couple wants to get separated. Basically, the Court has to investigate the reason for the deterioration of the marriage.

Grounds of Divorce as per The Hindu Marriage Act

Adultery

The concept of Adultery may not be considered an offense in many countries. But as per the Hindu Marriage Act, in the matrimonial offense, adultery is considered as one of the most important grounds for seeking a divorce. Adultery means the consensual and voluntary intercourse between a married person with another person, married or unmarried, of the opposite sex. Even the intercourse between the husband and his second wife i.e. if their marriage is considered under bigamy, the person is liable for the Adultery.

Essentials of Adultery

  1. One of the spouses involved in the intercourse with another person, married or unmarried, of the opposite sex.
  2. Intercourse should be voluntary and consensual.
  3. At the time of the act, the marriage was subsisting.
  4. There must be sufficient circumstantial evidence to prove the liability of another spouse.

Cruelty

The concept of cruelty includes mental as well as physical cruelty. Physical cruelty means when one spouse beats or causes any bodily injury to the other spouse. But the concept of mental cruelty was added as the spouse can also be mentally tortured by the other spouse. Mental Cruelty is a lack of kindness that adversely affects the health of the person. Well it is easy to determine the nature of physical cruelty but difficult to say about mental cruelty

  1. What is considered as Mental Cruelty against Husband by wife:
  2. Humiliating the husband in front of his family and friends.
  3. Undertaking the termination of pregnancy without husband consent.
  4. Making false allegations against him.
  5. Denial for Martial Physical Relationship without a valid reason.
  6. Wife having affair.
  7. Wife living an immoral life.
  8. The constant demand for money.
  9. Aggressive and uncontrollable behavior of Wife.
  10. Ill-treatment to the husband’s parents and family.Cruelty to Women [S. 498-A IPC and allied sections] | SCC Blog

What considered as Mental Cruelty against wife by Husband

  1. False accusation of adultery.
  2. The demand for dowry.
  3. Impotency of Husband.
  4. Force to abort the child.
  5. The problem of drunkenness of husband.
  6. Husband having affairs.
  7. The husband lives an immoral life.
  8. Aggressive and uncontrollable behavior of the husband.

Sexual Intercourse Offenses(ACT)

Sexual offences in the ACT are governed by the Crimes  Act 1900. As well as including numerous offences against children below the age of consent, the act sets out various categories of offences involving sexual intercourse with adults. In most sexual offences against adults, an absence of consent is an essential element.

A person who commits this offence in company with another person commits an offence punishable by 14 years.

Sexual Harassment

Sexual intercourse is defined as the penetration, to any extent, of the genitalia or anus of a person by any part of the body of another person, except penetration for medical or other lawful purposes. It also encompasses penetration of the genitalia or anus of a person by an object carried out by another person, except for medical purposes or as otherwise authorised by law (Section 50).

sexual harrasement

Consent

Consent is defined as free agreement. A person is not taken to have consented to sex if their consent was obtained by violence, threats of violence, threats to publicly humiliate or disgrace or by the effect of alcohol, drugs or fraud (Section 67).

Acts of Indecency

A range of offences exists in the ACT relating to acts of indecency.

A person who inflicts grievous bodily harm on another person with the intent to commit an act of indecency is guilty of a crime punishable by imprisonment for 15 years (Section 57). If the offender inflicts actual bodily harm with intent to commit an act of indecency, the offence is punishable by imprisonment for 12 years. If the offender assaults or threatens to inflict harm on the other person with the intent to commit an act of indecency, the offence is punishable by imprisonment for 10 years.

An act of indecency committed on a person without the person’s consent is an offence punishable by imprisonment for 7 years. If the act of indecency is committed in company with another person, the offence is punishable by imprisonment for 9 years.

Abduction

A person who abducts another person by force or unlawfully detains another person with the intent to have sexual intercourse with the person is guilty of an offence punishable by imprisonment for 10 years (Section 63).

Sexual assault offences

sexual harassement

Unlike other Australian states and territories, the ACT provides for different categories of physical assaults with intent to have sexual intercourse, depending on the circumstances of the assault and the level of harm inflicted.

Sexual assault in the first degree

Section 51 of the Crimes Act makes it an offence punishable by 17 years imprisonment to inflict grievous bodily harm on another person with the intent to engage in sexual intercourse with that other person or with a third person who is present or nearby. A penalty of 20 years applies for this offence if it is committed in company with another person

Sexual assault in the second degree

Section 52 makes it an offence punishable by 14 years imprisonment to inflict actual bodily harm on a person with the intent to engage in sexual intercourse with that person or with a third person who is present or nearby.

IS SEXUAL INTERCOURSE ON THE FALSE PROMISE OF MARRIAGE ALWAYS A RAPE IN INDIA?

Sexual assault in the third degree

A person who assaults or threatens another person with bodily harm with intent to engage in sexual intercourse with that person or with a third person who is present or nearby is guilty of an offence punishable by 12 years imprisonment (Section 53). If this offence is committed in company with another person, it is punishable by imprisonment for 14 years.Law amended in Haryana: Sex with minor wife is rape | India News,The Indian Express

 

Sexual servitude and sexual services

A range of sexual offences exists in the ACT relating to sexual servitude and the provision of sexual services.

It is an offence to intentionally or recklessly cause another person to be held in sexual servitude. It is an offence to conduct a business that involves the sexual servitude of others (Section 79). It is an offence to use deception to recruit a person to provide sexual services (Section 80).

Incest

A person commits an offence if he or she has sexual intercourse with a person knowing that person to be his or her lineal ancestor, lineal descendant, sister, brother or half-sister or half-brother. This offence is punishable by imprisonment for 10 years where the other person is an adult and by longer penalties where the other person is a child.

A person can be found guilty of incest regardless of whether the other person consented to sex.

 

After hearing the arguments advanced by the learned counsel on behalf of the parties, the trial court came to the conclusion that in the circumstances narrated by the witnesses of the prosecution and the evidence on record the charge levelled against accused

– Naushad under Section 376 of the IPC stands proved. Vide order dated 05.10.2005 of the Session’s Judge, the accused was convicted of the offence of rape under Section 376 of the IPC on the ground that the consent given by P.W.1

Shabana did not consent for sexual intercourse in the eyes of law. She had given consent on the ground that the accused had promised to marry her and thus this consent was obtained by the misconception of fact and therefore the case is covered under section 376 of the IPC.

The trial court held that as the facts of this case are of a very grave nature, the accused was awarded maximum sentence of life imprisonment and further stated that the victim and the accused are related to each other and the accused took undue advantage of the victim due to this relationship by keeping her under the misconception that he would marry her and committed rape on her as a result of which she became pregnant and later on gave birth to a baby daughter.

In view of the circumstances, the trial court awarded the sentence of life imprisonment for the accused and to pay a fine of 10,000/-.

 

Medical Jurisprudence Toxicology and Forensic Pathology (History of Forensic Medicine)

History of Forensic Medicine

The extent and range of the role of a forensic physician are variable–many may limit themselves to specific aspects of clinical forensic medicine–for example, sexual assault or child protection and safeguarding.

illustrates the vast range of roles that may be applicable to forensic physicians.

Some practitioners of clinical forensic medicine may only perform part of these functions, whereas others may have a more extensive role, which may be dependent on geographical location and local statute.

Part of a forensic pathologist and forensic physician’sremit must be to have a good knowledge of medical jurisprudence’–the application of medical science and related specialties to the law.

The function and role of forensic pathologists and forensic physicians can differ widely or overlap, depending on local judicial systems or statutes, and in many cases result in the need for a special understanding of medical law and medical ethics.

Forensic medicine enhances clinical forensic pathology and medical jurisprudence and whether the term used emphasizes the link between medicine and the law and judicial systems. The development of forensic medicine has a long history going back thousands of years. It is generally considered that the framework of the field originated in China. This chapter develops key elements of its development and identifies relevant factors and issues from around the world.

history of forensic medicine

  • Forensic medicine, legal medicine, and forensic path-ology are terms that have been used interchangeably around the world.
    It now seems appropriate to use the terms forensic medicine and legal medicine together to indicate all branches of medicine and related specialties that interact with legal processes, either directly or indirectly.
    The actual usage of the terms may vary from country to country.
    Forensic medicine can be divided into forensic pathology, which investigates unnatural, unexpected, or violent death, and clinical forensic medicine (a term that has become widely used only in the last two decades), which is used to refer to that branch of medicine which involves an interaction between the living person, medicine, and legal processes.
  • In general terms, a forensic pathologist doesn’t (in general) deal with living individuals, whereas a forensic physician does not deal with the deceased.
  • There are, however, many medical practitioners who are involved in both clinical and pathological aspects of forensic medicine.
  • Many practitioners have qualifications or training in medicine, law, and science.SARS-CoV-2 and viral sepsis: observations and hypotheses - The Lancet

There are many areas where both clinical and pathological aspects of forensic medicine overlap, and this is reflected in the history and development of the specialty as a whole.
The term forensic pathologist is used generally to describe those pathologists who undertake autopsies performed on the instructions and request of legal bodies responsible for the investigation of sudden, suspicious, obscure, unnatural, litigious, or criminal deaths.

The legal bodies that may make these requests may be agents of the state, the judiciary, the police, lawyers representing those arrested for murder, those involved in legal action, health and safety organizations, and many other possible sources.

The forensic pathologist under-takes the examinations to assist and advise the stateor other investigating agencies in the interpretation ofthefindings and to recommend further relevant investi-gation. The practitioners of clinical forensic medicinehave been given many different names over the years,but the term forensic physician is now accepted.
Othernames that have been used (often to reflect the particularrole) include police surgeon, forensic medical officer,and forensic medical examiner.

The extent and range ofthe role of a forensic physician is variable–many maylimit themselves to specific aspects of clinical forensicmedicine–for example, sexual assault or child pro-tection and safeguarding.

illustrates the vastrange of roles which may be applicable to forensicphysicians.

Some practitioners of clinical forensic medi-cine may only perform part of these functions, whereasothers may have a more extensive role, which may bedependent on geographical location and local statute.

Part of a forensic pathologist and forensic physician’sremit must be to have a good knowledge of‘medicaljurisprudence’–the application of medical science andrelated specialties to the law.

The function and role offorensic pathologists and forensic physicians can differwidely or overlap, depending on local judicial systems orstatute, and in many cases result in the need for a specialunderstanding of medical law and medical ethics.

PDF] WEB HISTORY VISUALISATION FOR FORENSIC INVESTIGATIONS | Semantic Scholar

Contemporary Forensic Pathology  (History of Forensic Medicine)

Forensic pathology is practiced by those in general witha background in histopathology or anatomical path-ology. The forensic pathologist’s work is directed toassisting in predominantly judicial or legal processesby establishing manner, time, and cause of death.

Theirpathological skills must be supported by an abilityto integrate the medical aspects of the workload withtoxicological, scientific, and legal issues. Forensic path-ologists are assigned a variety of names around theworld, for example, legal medicine specialists, medicalexaminers–but all are primarily involved in theinvestigation of death–by the use of autopsy andassociated procedures.

Forensic pathologists may workin academic departments, state or government insti-tutions, or independently. It is to be expected that theirwork and the reporting of their work is and is seen tobe independent of any body or organization, whetherpolice or governmental, and free from political inter-ference.

A forensic pathologist may be expected tohave special knowledge in the following areas: anatomy,cytopathology, hematology, microbiology, immunology,chemical pathology, and toxicology. Many forensicpathologists around the world will also have specialrelationships with public health, occupational health,and community health issues, reflecting for some, thehistorical origins of the workload. Many forensic path-ologists will also have workloads relating to the clinicalaspects of forensic medicine.

The Food Safety And Standards Act , 2006 ( consolidate)

An act to consolidate the laws, relating to food and to establish the Food Safety Standard Authority of India for laying down science-based standards for articles of food and to regulate their manufacture, storage, distribution, sale, and import to ensure availability of safe and wholesome food for human consumption and for matters connected therewith or incidental thereto.

Be it enacted by Parliament in the Fifty-seventh Year of the Republic of India as follows-:

                                            PRELIMINARY(c0nsolidate)

Food safety Standard Authority of  India

  1. Short title, extent, and commencement.- This act may be called food safety and standard acts, 2006.
  2. It extends the whole of India.

3.It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different provisions of this Act shall be construed as a reference to the coming into force of that provision   

This section provides for the short title of this act its extent and commencement subclause

(2) of clause 1 makes a provision that it extends to the whole of India.

consolidate

                                                                                      Comments

This Section defines various expression used in this Act Some of the important definitions includes the definitions os unsafe food,’ advertisement ‘, containment .’food’, primary food, ‘food safety,’ infant food,’ manufacture, misbranded food,’ risk analysis, ‘sale,’ and ‘substandard.’

FOOD SAFETY LEGISLATION –

The need……
FOOD SAFETY AND STANDARDS AUTHORITY OF INDIA
•The safety of food is vital to all consumers and food businesses
.•Consumers must have confidence that the food they buy and eat will be what they expect,
•Food will do them no harm and that they areprotectedfromadulteration/fraud.
TheimportanceofFOOD SAFETY AND STANDARDS AUTHORITY OF INDIAprotectedfromadulteration/fraud. Theimportanceofthis confidence cannot be underestimated for businesses.
•Although food safety legislation affects everyone in the country, it is particularly relevant to anyone working in the production, processing, storage, distribution, and sale of food, no matter how large or small the business. This includes non-profit making organizations also.

The Food Safety & Standards Act 2006 is an Act to consolidate the laws relating to food and to establish the Food Safety and Standards Authority of India for laying down science-based standards for articles of food and to regulate their manufacture, storage distribution, sale, and import, to ensure availability of safe and wholesome food for human consumption and for matters connected therewith or incidental thereto.

All About FSSAI Registration

FOOD SAFETY AND STANDARDS AUTHORITY OF INDIA

Prevention of Food Adulteration Act, 1954Prevention of Food Adulteration Act, 1954Fruit Products Order, 1955Fruit Products Order, 1955Meat Food Products Order, 1973Meat Food Products Order, 1973Vegetable Oil Products (Control) Order, 1947Vegetable Oil Products (Control) Order, 1947Edible Oils Packaging (Regulation) Order, 1988, Edible Oils Packaging (Regulation) Order, 1988, Solvent Extracted Oil, De-oiled Meal and Edible Flour (Control) Order, 1967Solvent Extracted Oil, De-oiled Meal and Edible Flour (Control) Order, 1967Milk and Milk Products Order, 1992 Milk and Milk Products Order, 1992 Any order under Essential Commodities Act, 1955 relating to food. Any order under the Essential Commodities Act, 1955 relating to food.incidental thereto.

SALIENT FEATURE OF THE ACT……………

FOOD SAFETY AND STANDARDS AUTHORITY OF INDIA

Movement from multi-level and multi-department control toa single line of command FSSAI as a single reference point for all matters relating to food Safety and Standards, Regulations and EnforcementIntegrated response to strategic issues like Novel foods, HealthFoods, Nutraceuticals, GMfoods, international trade food SAFETY AND STANDARDS AUTHORITY OF INDIAHealthFoods, Nutraceuticals, GMfoods, international trade, etc.Decentralization of licensing for the manufacture of food productsAchieve a high degree of consumer confidence in quality &safety of foodInvestors friendly regulatory mechanism with emphasis on self-regulation and capacity building.

Functions of FSSAI (Food Safety and Standards Authority of India)

SALIENT FEATURE OF THE ACT……………FOOD SAFETY AND STANDARDS AUTHORITY OF INDIA

Enforcement of the legislation by the State Governments/UTs through the State Commissioner for Food Safety, his officers, and Panchayati Raj/Municipal bodiesEmphasis on the gradual shift from regulatory regime to self-compliance through food safety management system.Consistency between domestic and international food policy.

FOOD SAFETY AND STANDARDS AUTHORITY OF INDIAConsistencybetweendomesticandinternationalfoodpolicymeasures without reducing safeguards to public health and consumer protectionAdequate information dissemination on food to enable consumers to make informed choices.Compounding and Adjudication of cases – to reduce Court’sworkload and expedite the disposal of casesGraded penalty depending upon the gravity of offenses

NEW PROVISIONS UNDER THE ACT……………

FOOD SAFETY AND STANDARDS AUTHORITY OF INDIARegulation of food imported in the country.
Provision for food recall.
Surveillance
New enforcement structure food
Envisages a large network of food labs.
New justice dispensation system for fast-track disposal of cases.
Harmonization of domestic standards with international food standards.
Covering Health Foods, supplements, nutraceuticals.

                                                                THE ACT…in a nutshell.

FOOD SAFETY AND STANDARDS AUTHORITY OF INDIA
The Act, inter alia, incorporates the salient provisions of the PFA Act, 1954, and is based on international legislation and instrumentalities.
In a nutshell, the Act takes care of international practices and envisages an overreaching policy framework and provision of a single window to guide and regulate persons engaged in the manufacture, marketing, FOOD SAFETY, AND STANDARDS AUTHORITY OF INDIAregulate persons engaged in the manufacture, marketing, processing, handling, transportation, import and sale of food.•
The Act is contemporary, comprehensive, and intends to ensure better consumer safety through Food SafetyManagement Systems and setting standards based on science and transparency as also to meet the dynamic requirements of Indian Food Trade and Industry and international trade.
LAST BUT NOT LEAST……….
FOOD SAFETY AND STANDARDS AUTHORITY OF India the food safety regulator’s primary responsibility is to protect the consumer by ensuring compliance with food safety laws and regulations, given that the public’s well-being is the ultimate objective of a national food safety system.
Producers and processors, in contrast, are in business to make a profit, and that priority may well mpairtheirperceptionof
Therefore, it is also the food safety regulator’s duty to remind producers and processors of their responsibility to produce safe foods. This message can be made more relevant by explaining to food producers and processors that the safety of their products not only fulfills their responsibility towards society– but may also be determinant in developing their business.
FSSAI Penalty for Restaurants and Food Businesses
  1. Framing of Regulations to lay down food safety standards
  2. Laying down guidelines for accreditation of laboratories for food testing
  3. Providing scientific advice and technical support to the Central Government
  4. Contributing to the development of international technical standards in food
  5. Collecting and collating data regarding food consumption, contamination, emerging risks, etc.
  6. Disseminating information and promoting awareness about food safety and nutrition in India.
  7. FSSAI is located in 5 regions
    1. Northern Region – With head office at New Delhi.
    2. Eastern Region.
    3. North Eastern Region.
    4. Western region.
    5. Southern Region.

    Departments

    1. Import Division
    2. Eat Right India Movement
    3. International Co-operation
    4. Regulatory Compliance Division (RCD)
    5. Food Safety Management System (FSMS) Division
    6. Risk Assessment and R&D division (RARD)
    7. Information Education Communication (IEC) Division
    8. Regulation and Codex Division
    9. Quality Assurance/ lab Division
    10. HR Division
    11. Standards Division

Standards

Standards framed by FSSAI are prescribed under Food Safety and Standards (Food Product Standards and Food Additives) Regulation, 2011, Food Safety and Standards (Packaging and Labelling) Regulation, 2011 and Food Safety and Standards (Contaminants, Toxins, and Residues) Regulations, 2011.

The FSSAI has prescribed standards for the following:

  • Dairy products and analogs
  • Fats, oils, and fat emulsions
  • Fruits and vegetable products
  • Cereal and cereal products
  • Meat and meat products
  • Fish and fish products
  • Sweets & confectionery
  • Sweetening agents including honey
  • Salt, spices, condiments and related products
  • Beverages, (other than dairy and fruits & vegetables based)
  • Other food product and ingredients
  • Proprietary food
  • Irradiation of food
  • Fortification of staple foods i.e. vegetable oil, milk, salt, rice, and wheat flour/maida

Law of Post-Mortem (Cause of Death)

                                              PostMortem 

The principal aim of an autopsy is to determine the cause of death the state of health of the person before he or she died, and whether any medical diagnosis and treatment before death were appropriate.

In most Western countries the number of autopsies performed in hospitals has been decreasing every year since 1955. Critics, including pathologist and former JAMA editor George Lundberg, have charged that the reduction in autopsies is negatively affecting the care delivered in hospitals because when mistakes result in death, they are often not investigated and lessons, therefore, remain unlearned.

When a person has given permission in advance of their death , autopsies may also be carried out for the purposes of teaching or medical research .

File:Post-mortem pathology; a manual of post-mortem examinations and the interpretations to be drawn therefrom; a practical treatise for students and practitioners (1905) (14598084867).jpg - Wikimedia Commons

The post-mortem examination on the dead body is not absoulutely necessaary to prove murder. Even in the absence of dead body , murder may otherwise be proved by creadible evidence . It is not at all necessary for the autopsy surgeonto open all the cavities in the body of the deceased , where the cause of death is otherwise ascertainable . Post- Mortem report is still belivable even if no X – ray was done .

A study that focused on mycordial infraction ( heart attack) as a cause of death found significnt errors of omission and commission i.e a sizable number cases ascribed to mycordial infrractions (MIs) were not MIs and a significant number of non- MIs were actually MIs .

A systematic review of studies of the autopsy calculated that in about 25 % of autopsies a major diagnostic error will be revealed. However, this rate has decreased over time and the study projects that in contemporary US institution 8, 4 % to 24. 4% of autopsies will detect major diagnostic errors.

Post mortem guidelines - Gribbles Veterinary

A large meta-analysis suggested that approximately one-third of death certificates are incorrect and that half of the autopsies performed produces findings that were not suspected before the person died. Also, it is thought that over one-fifth of unsex- an autopsy, and that approximately one-quarter of unexpected findings, or 5 % of all findings, are major and can similarly only be diagnosed from the tissue.http://autposies

One study found that out of 694 diagnoses ” Autopsies revealed 171 missed diagnoses, including 21 cancers, 12 strokes, 11 myocardial infractions, 10 pulmonary emboli and 9 endocarditic

cause of death

Focusing on intubated patients one study found ” abdominal pathological conditions – abscesses, bowel perfections, or infraction were as frequent as pulmonary emboli as a cause of class errors.

While patients with abdominal pathological conditions generally complained of abdominal pain, results of an examination of the abdomen were considered unremarkable in most patients, and the symptom was not persued

The autopsy report reveals there were five injuries on the dead body of the deceased. According to the doctor injury no . 1 was a contusion and injury no . 2 was an incised wound on the left scapular region. There were no injuries found on the person of the accused therefore, it was enough to dispel the plea of private defense.

The Autopsy of the dead body was conducted by a doctor. As the ante – mortem injuries noticed by the doctor on the dead body have some implications as to the conclusions to be drawn, which is reproduced below.

(1) Swelling 9 cms x 9 cms on the left temporal region extending to the left parietal margin. On dissection, there was extensive hame-time underneath. Muscles were contused. There was an irregular horizontal line of fracture on the left temporal bone going downwards and towards the base of the skull. The fracture was turning transversely, through both the anterior cranial fossa extending to the right zygomatic bone. . There was an extensive collection of blood in the cranial cavity, and corresponding there tissues were contused.

(2) Abrasion 3 cms x at the base of neck left side, 8 cms medial to the tin of the shoulder joint. On dissection, the clavicle was found fractured.

(3) Multiple abrasion in an area of 9 cms in diameter on the right lateral side of the abdomen, 4 cms, above the right iliac crest.

(4) Abrasions 5 cms x 3 cms on the front and lateral aspect of the right knee.

(5) Abrasion 1cm x 1cm . on front and medial aspect of right foot, 4cms below the medial malleolus.

(6) Abrasions 4 cms x 4 cms irregular in front of the left leg just above the knee joint.

(7) Abrasion 19 cms x 9 cms on the lateral aspect of the left ankle joint, just above the lateral malleolus. its edge was contused.

It is true, in cross-examination Doctor said that those injuries could as well have been caused even in a motor accident. But closer scrutiny of the injuries impels us to rule out the possibility of motor accidents because all these injuries e.g, fractures on the ribs 5 to 10 have no corresponding external injuries. But if the deceased was mishandled by the assailants with bare hands and legs those fractures could have been caused without causing any correspondence external injury. That apart, the minor damage noticed on the scooter is impactable with the theory of doctor accident resulting in such number of injuries.

Where a wife every time gives a threat to committee suicide

                                                                 Hindu Marriage Act, 1955

Section 13 (1) – Divorce – Ground of cruelty -(Suicicde)

Where a Wife every time gives a threat of committing suicide, such conduct has to be held to be amounting to cruelty and conduct which is annoying -Wife has given threat of committing suicide and filled false complaint under S. 498A IPC against husband – Conduct of wife amounts to cruelty entitling husband a decree of divorce-Appeal allowed.

Divorce - Ground of cruelty

This is an appeal by the original petitioner, whose petition for divorce was dismissed by both the courts below.

The facts given a ride to appeal are as follows. The petitioner-appellant was married to the respondent /wife on 19/4/1980 at Nagpur After the marriage, the petitioner went with his wife to his native place Ramtek. 

Thereafter, the petitioner was in service as a Survey in the office of the Tahsildar. They were living happily. On 15/08/1980 the respondent to Nagpur for the festival of Rakhi. The portioner suggested that the festival is too far away and it would be better if she is taken later sometime.

The respondent’s father, however, instead and took her away with him along with ornaments, etc. Two days thereafter, the father of the petitioner fell ill. He was, therefore to required to go to Ramtek. On way, he wants to Nagpur at the house of the respondent’s father where the portioner noticed a drastic change in the attitude of the respondent’s father where the portioner notices a drastic change in the attitude of the respondent.

He came to know there that the respondent’s father wanted the portioner to reside at Nagpur Nagpur and commute between the place of service and Nagpur . after waiting for some time the petitioner sends his brother to bring the respondent back from Nagpur. She came on 29/08/1980.

yeh kaisa insaaf ha?

                                                                Cruelty Against Husband

The respondent once again expressed that demand and since then it is alleged that the respondent was frequently being required to be given medical treatment while they were leaving at Soeanr, the respondent was giving a threat to the petitioner that if he does not shift to Nagpur, she will commit suicide by throwing herself in a well. On 16/09/1980, the petitioner, therefore, informed the neighbors to keep watch on the respondent and left for the office.

When he comes back, the petitioner along with the respondent came to Ramtek for festivals Dussehra at Ramtek, the respondent picked up the quarrel with the mother of the petitioner and once again started threatening that she will commit suicide if she is not taken to Nagpur.

The petitioner took her to Nagpur. The parents of the respondent, however, turned deafer to the insistence of the respondent and the petitioner all alone ca, back to Sooner.

The petitioner gave several messages to the respondent to come to Sonar but she did not on 21/12/1980, she was brought to Sonar by her father. The respondent apologize for a lapse on her part and promised to live happily. She, however, lived happily for a period of one and a half months and again started retreating her demand for living at Nagpur. On 27/02/1981, the portioner again went to Sonar along with the respondent as he was transferred from Sonar to Ramtek.

The respondent was then pregnant She was admitted to the hospital. She delivered her female child on 14/04/1981 in the hospital at Nagpur After she came to Ramtek on 07/06/1981 and 08/06/1981 the respondent tried to set herself on fire after pursuing kerosene on her own parents.

The petitioner snatched away the bottle from her and at her request, the petitioner send a telegram to the respondent’s father and called him at Ramtek. Her brother, however, came to Ramtek and even in the presence the respondent tried to set herself on fire The portioner again reported the matter to the police.

This happened on 26/06/1981. On 28/06/1981 however the respondent left for Nagpur along with the child and since then she has not come back to the petitioner, therefore seeks a decree for divorce on the ground of cruelty or in the alternative ground of desertion. It is alleged by the petitioner further that after filling out this petition the respondent had filed under Section 498A of the Indian Penal Code against him. He was tried for the same offense and has been acquitted.

suicide

The learned judge of the trial court found that the petitioner had failed to prove the cruelty or desertion. He, therefore, dismissed the petition for a divorce.

The appellate court concurred with the findings and dismissed the appeal preferred by the petitioner. Hence this second appeal

This second appeal was admitted initially by this court on the following substantial question of law

” Wheather the courts below have correctly taken into consideration the post-petition circumstances?

At the time of the final hearing, it was found that it was necessary to frame another question of law and an application to that effect was filled by the applicant. Accordingly, one more question of law was formulated which is as follows.” Whether the courts below have erred in holding that there was no cruelty on the part of the respondent to the petitioner/appellant by misreading the evidence?