by LFIAdmin | Nov 25, 2020 | Uncategorized
By Punit Agarwwal, Final Year Student at Jindal Global Law School
16jgls-pmagarwwal@jgu.edu.in | Nov 30, 2020
In these unfortunate times of the Coronavirus pandemic, several state governments have passed notifications to increase workers’ working hours to twelve hours a day [1]. The Labour Ministry is all set to pass rules like the Code on Occupational Safety, Health and Working Conditions (OSH & WC) by January 2021 [2], which allow the extension of working hours of a worker to twelve hours a day, i.e., 72 hours a week. This allowance in the extension of working hours has increased the employers’ scope of exploitation. The employers might exploit the workers to increase productivity to fight the recession or make up for the losses made in the lockdown period. There might be instances where the employer might make some alterations to the weekly holidays, therefore the judgment John Douglas Keith Brown v State of West Bengal read with section 2, 52 and 92 of the Factories Act, 1948 becomes very important. In the year 1964, Justice J.R. Mudholkar, Supreme Court of India, delivered this judgment. The judgment ensures that both the occupier and the manager are held accountable if they fail to comply with Section 52 of the Act. Section 52 indicates a prohibition from requiring or allowing an adult worker to work in a factory on the first day of the week. The prohibition is, however, lifted if the steps under clauses (a) and (b) of that section are taken. The section also prohibits any substitution that results in any worker working for more than ten days consecutively without weekly holidays.
FACTS OF THE CASE
Mr. John Douglas Keith, the appellant, was the Managing Director of Jardine Henderson Ltd., who were the managing agents of the Howrah Mills Company. He was by virtue of his position in the company termed as ‘occupiers’ of the Mill as per the definition under section 2(n) of the Act. On the other hand, Mr. J.P. Bell was the manager of the Mill.
Both John and J.P. Bell were charged with the penalty under section 92 of the Factories Act for contravening the provisions under section 52. However, while the trial was pending in the Sub-Divisional Magistrate’s court, the manager, Mr. Bell, was allowed to go to England. The trial was continued only against the appellant alone. The appellant was then convicted of the offense and sentenced to a fine by the Sub-Divisional Magistrate. The appellant then appealed—both the Sessions Court and the High Court dismissed his appeals. However, the High Court allowed him to appeal to the Supreme Court, deeming the case fit for appeal to the Supreme Court.
APPELLANT’S ARGUMENTS
The appellant made all his arguments by relying on the State Govt. of Madhya Pradesh vs. Maganbhai Dasaibhai case.
Firstly, he argued that the High Court at Nagpur in the Maganbhai case held that –
“An occupier will be liable for a contravention of any of the provisions of the Act or rules if the responsibility for observing the provisions has not been imposed on some other person. If a specific duty is laid on a particular person, the responsibility for the breach will be his. [3]”
Therefore, on the same lines, the appellant stated that Section 52(1)(b) imposes a duty on the manager to give notice to the Office of the Inspector in case a change in weekly holidays is proposed from the first day of the week to any other substituted day. Therefore, the manager’s omission to provide such notice cannot render the occupier liable for penalty under section 92, as the duty was not laid on him by the section.
Secondly, the appellant furthered his above argument by stating that the occupier cannot be held liable for penalty unless shown with evidence that the occupier had any connivance on his part for the manager’s breach or if the occupier had the mens rea to contravene the provision. The Maganbhai case emphasized the necessity of mens rea under section 92 because it is a penal statute, and “Penal statutes have to be strictly construed. It is a cardinal principle of criminal law that unless the statute, either clearly or by necessary implication, rules out ‘mens rea’ as a constituent part of a crime, an accused should not be found guilty of an offense against the criminal law unless he has got a guilty mind. [4]”. Therefore, he stated that because there was no evidence to prove that he was aware of the manager’s omission, his sentence and conviction should be quashed by the court.
COURT’S DECISION
The court, on perusal of clause (b) of section 52(1), held that the requirement to give and display the notice under the clause is only to secure an exemption from the prohibition which the opening part of section 52(1) puts. This requirement should not be equated to the other provisions that put a specific duty on the manager. The clause and the prohibition under the section should be construed in a general sense and should not be confined to the manager only. Thus, meaning that in contravention of section 52(1), both the occupier and the manager will be held liable to the penalties prescribed under the section. Since section 52 does not specify specific penalties under it, section 92 will be applicable.
Secondly, the court also highlighted the evidence to prove that the occupier (appellant) had the knowledge of a violation of section 52(1) and that he did not take any steps to stop the same. The court found two letters sent to the Chief Inspector of Factories by the manager, the copies of both the letters were also sent to the M/s Jardine Henderson Ltd. The fact that the appellant was the Managing Director of M/s Jardine Henderson Ltd., it is deemed that the appellant knew of what was going on and what the manager proposed to do. However, even then, the appellant did not bother to restrain the manager from putting the new schedule in operation without permission. This schedule was itself in violation of the opening line of section 52 since the manager proposed to schedule the working hours on Sundays. The schedule also did not specifically mention the names of the respective workers to work in that shift. Therefore, the court also clarified that section 52 does not grant general permission to alter the weekly holidays for all workmen; instead, it only allows an exception for some workmen.
Therefore, the appellant’s arguments were not accepted, and the Supreme Court held that both the manager and the appellant were liable for the contravention of section 52 as the occupier had the full knowledge of the conduct of the manager. Thus, the appeal was dismissed.
COMMENTS
Section 52 is an essential part of the Factories Act, 1948. It furthers its objective and purpose by preventing the workers from being exploited and subjected to inhuman treatment in terms of working schedule and hours. It ensures that the workers are given appropriate intervals between working days, like prohibiting a worker’s substitution if he has not been given weekly holidays after working for ten days consecutively. This judgment demonstrates how the Supreme Court also furthers this objective of the legislation by holding both the occupier and the manager liable to penalty under section 92 for any violations of section 52. It makes sure that the occupier does not escape his accountability by claiming that he lacked knowledge of his manager’s conduct with evidence proving otherwise. Thus, ensuring the compliance of the provisions of this Act by both the parties.
The Supreme Court has also, by dismissing the appeal, upheld the Sub-Divisional Magistrate’s decision to hold only the ‘occupier’ of the factory liable. Thus, practically approving the continuation of the prosecution in the absence of the Manager and laying down the principle that under section 92, it is not necessary to have the prosecution proceed or filed against both the manager and the occupier when invoking section 92. The State of Maharashtra vs. V.S. Raghavan case discusses the same principle. The Bombay High Court, in this case, cited the present case while arriving at its decision to hold that “If the prosecution feels that the responsibility lies for the breach only one the Manager, the prosecution u/s 92 can proceed only against the Manager and it cannot be said that even in such event the occupier should also be made accused…merely because if the provisions of Section 92 are construed to mean that a joint prosecution is contemplated in each and every case and neither the occupier nor the Manager can singly be prosecuted. The principle of vicarious liability is negatived. [5]” Therefore, the current position of law is that an occupier will be held liable under section 92 for contravening section 52 if there is evidence that proves that he knew of the contravention. Otherwise, the prosecution can also file individual prosecutions under section 92. Also, section 52 does not grant a general permission to alter the weekly holidays for all workmen; instead, it only allows an exception for some workmen.
[1] https://www.business-standard.com/article/current-affairs/covid-19-how-a-12-hour-shift-for-labourers-will-impact-their-lives-120042700687_1.html
[2]https://www.businesstoday.in/current/economy-politics/labour-ministry-readies-draft-notification-allowing-12-working-hours-a-day/story/422534.html
[3] State Govt.,Madhya Pradesh vs. Maganbhai Dasaibhai (25.04.1952 – NAGPUR) : MANU/NA/0165/1952
[4] State Govt.,Madhya Pradesh vs. Maganbhai Dasaibhai (25.04.1952 – NAGPUR) : MANU/NA/0165/1952
[5] State of Maharashtra vs. V.S. Raghavan (17.11.1988 – BOMHC) MANU/MH/0297/1988
John Douglas Keith Brown v State of West Bengal MANU/SC/0216/1964
by LFIAdmin | Nov 23, 2020 | Uncategorized
By Virti Shah, Advocate
virtimshah@gmail.com | Nov 30, 2020
India has been a regional health care destination for its neighbouring countries such as Afghanistan, Bangladesh, Bhutan, Maldives, Nepal, Pakistan, and the Middle East since the last several years. India is considered a top medical tourism destination, along with Thailand and Singapore, largely because it boasts of advanced medical facilities, skilled medical practitioners – fluent in English – and cheaper treatment costs than in hospitals in the West. The Indian government is promoting medical tourism in many ways. Offering hospitals, marketing development assistance, allowing medical visas, setting up facilitation counters at major airports, launching a website to provide information on medical tourism in the country and constituting a National Medical and Wellness Tourism Board.
India enjoys a dominant position in the medical tourism industry, as evidenced by various statistics according to which, as of 2018, around five lakh foreigners visit India for medical and wellness purposes a year. The number almost doubled between 2015 and 2016. They bring over $25 billion in foreign exchange earnings. Owing to factors like a relatively lower cost of treatment, the abundance of medical health professionals and restorative health options in the form of AYUSH India is at a competitive advantage when it comes to medical tourism.
The scope of Medical Tourism:
India is widely known as a preferred, a low-cost destination for medical tourism among other Asian developing and African countries. In recent years, it has also emerged as a key destination even for citizens of Western countries. Medical tourism in India has a sweeping scope and can be said to cover wellness tourism, cosmetic surgery, advanced healthcare procedures and traditional age-old systems. in India like Ayurveda, Yoga, Unani, Siddha, and Homeopathy. It even covers within its ambit beauty treatments and fertilization procedures. It thus represents an amalgam of modern health care procedures and ancient treatment therapies synonymous with and/peculiar to India. In December 2011, Jack Jones, a Jehovah’s Witness whose faith barred him from having blood transfusions, made headlines for being the first US citizen to undergo a bloodless surgery in India.
Framework in India
Medical Visas
The Government of India recognizes and categorizes medical tourism as niche tourism. The government support towards medical tourism is evident by the introduction of a special category of visa catering to such a segment in the form of medical visa.
Such a visa is valid up to a period of one year or the period of treatment whichever is lesser. However, the prescribed period can be extended where required for another one year by the Ministry of Health Affairs on the recommendation of Foreign Regional Registration Offices and State Governments. In ordinary circumstances, only a maximum of three entries are permissible, the only exception to this being emergency cases where a special permission is to be sought by Foreign Regional Registration Offices or State Governments. Maximum of 2 Attendants/Family members including the spouse can also apply for an MX visa. Further impetus was the launch of e-visa facility for 43 countries in relation to medical tourism.
The conditions for grant of this kind of visa has been specifically laid down to ensure people who are immigrating to India are doing so in pursuance of receiving treatment. The person is to possess requisite medical record stating recommendation or reference of specialized treatment that is sought based on preliminary medical treatment in the home country and secondly, the treatment should be significant in character, for example, neurosurgery, heart surgery, joint replacement or plastic surgery.
The development of medical visa casts a duty upon hospitals and healthcare centres to not entertain tourists who seek medical treatment but have not applied for the medical visa and are visiting under the general tourist visa.
Conversion of Visas
Foreign nationals on a business visa or an employment visa in India can apply to convert their visas to a MV if they fall ill, are unable to travel and require specialized medical treatment in India. A change of visa may be required if the individual falls out of status, for example, if he is on an employment visa and the visa expires. Such individuals will be granted an MV provided they fulfil all the criteria to be eligible for an MV and can provide a medical certificate from a government or government-recognized hospital. In such cases, qualifying members of the principal applicant could apply for an MX, which is usually granted to co-terminate with the principle applicant’s MV. The MV and MXV will bear an endorsement stating that employment or business is not permitted.
Medical Visa is a result of the Government’s recognition of the importance of medical tourism in India. It enables individuals to enter the country to procure medical treatment on valid visas.
Medical malpractice laws in India
The medical malpractice laws in India with a focus on the Consumer Protection Act, 1986 (the “CPA”). There are various laws which are set up under the CPA, and are applied by Indian courts when dealing with medical malpractice cases, and the relevant factors are taken into consideration while awarding compensation, among other issues.
Consumer Protection Act
Briefly stated, a “consumer” who hires or avails of any “services” for consideration is entitled under the CPA to sue for any “deficiency in service” (not being services rendered free of cost or of a personal nature) and claim compensation. “Deficiency” is usually construed to mean any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance of any service.
Until 1996, legal proceedings against doctors for malpractice were relatively few. However, the decision of the Supreme Court of India in Indian Medical Association v. V. P. Shantha (AIR 1996 SC 550) brought doctors and hospitals under the purview of the CPA. After this judgment, doctors and hospitals were allowed to be sued under the CPA for any ”deficiency in service.”
Filing Actions That Can Be Taken Under CPA
The aggrieved person would have recourse to the specially created consumer disputes redressal fora established under the CPA to establish any malpractice of a doctor or hospital and claim compensation.
Depending on the value of the services and/or the compensation claimed, the aggrieved person would have to approach (i) the District Consumer Dispute Redressal Forum (pecuniary limit of up to INR 2,000,000 or approx. USD 40,000); (ii) the Consumer Disputes Redressal Commission of each Indian State or province (the “State Commission”) (which enjoys pecuniary limit above INR 2,000,000 but up to INR 10,000,000 i.e., between approx. USD 40,000 to 200,000); (iii) or the National Consumer Disputes Redressal Commission, New Delhi (the “National Commission”) (pecuniary limit of any amount above INR 10,000,000 or approx. USD 200,000).
When there is a violation of duty and action
Having established the duty and standard of care, the aggrieved patient has to prove that there was a breach of the applicable duty and that the doctor had fallen below the accepted standard of care. The violation of the duty should then be linked to ‘action’, i.e. a link should be established between the act of negligence and the injury suffered by the patient.
Indian courts have applied the ‘but for’ test in order to establish causation. In Geetu Sapra v. B. L. Kapoor Memorial Hospital [(2006) 3 CPJ 1], the ‘but-for’ test was applied to establish that if not for the defective equipment in the hospital, the patient would have not suffered the injury. In Samira Kohli v. Prabha Manchanda [(2008) 2 SCC 1] which deals with “informed consent,” the Supreme Court held that a doctor can be held negligent if proper consent is not taken and the failure to take consent is sufficient to determine causation.
Hospitals could be held liable
In India, corporate hospitals (as opposed to government or village hospitals, which are unlikely to attract medical tourism) have been held liable by applying the tort law principle of ”vicarious liability” for any malpractice or ”deficiency in service” on the part of the doctors or nurses employed in such hospitals. Indian courts have ruled that a hospital cannot escape liability merely by arguing that it only provides infrastructural facilities and services of nursing and support staff to the consultant doctor and that the hospital cannot perform or recommend an operation on its own [Rekha Gupta v. Bombay Hospital Trust and Another (2003) 2 CPJ 160)].
Compensation under the CPA
If it is determined that a doctor or hospital had been negligent, the aggrieved person is entitled to claim damages or compensation under the CPA. While determining the amount of compensation to be awarded under the CPA, Indian courts normally take into consideration the following key factors:
• Pain and suffering endured by the patient (including the duration and intensity) as a result of the negligence of the doctor;
• Loss of earnings or future earnings; and
• Expenses incurred for the medical treatment.
Recently, the National Commission in Kunal Saha v. Sukumar Mukherjee and Others [Original Petition No. 240 of 1999], awarded compensation of INR 13,465,750 (approx. USD 270,000) to the plaintiff, out of which the hospital was directed to pay a sum of INR 4,040,000 (approx. USD 80,800) and the remaining amount by the defendant doctors. The National Commission apportioned liability based on the degree of negligence of each doctor and the hospital. In this case, the hospital was found to be one of the main negligent parties.
Execution Proceedings And Remitting Compensation Abroad
Under Indian law, upon award of final compensation (i.e., all appeal remedies have been exhausted), if the defendant has not voluntarily rendered compensation, the aggrieved party is entitled to commence proceedings to execute the award. In such proceedings, the court is empowered to seize and sell (by public auction) any property belonging to the defendant to ensure that the aggrieved person is paid due compensation. Courts are also empowered to imprison the defendant for any non-payment of the award.
In cases involving foreigners, since the proceedings are in India, a concern relates to actual remittance and receipt of the awarded compensation amount by the foreigners abroad. In this regard, it is pertinent to note that India’s foreign exchange laws have been substantially liberalised over the years. It is now possible for bankers to rely on court orders to allow the defendants to remit the compensation amount to the aggrieved person abroad.
Criminal Negligence Of Doctors
In India, in addition to an action under the CPA, a doctor can also be liable under penal laws for criminal negligence. This happens if such a doctor is shown to have been rash and negligent, resulting in the death of the patient [Section 304A of the Indian Penal Code]. A person convicted under Section 304A may be subject either too simple or rigorous imprisonment for a term of up to two years, or with fine, or with both.
India is equipped with skilled professionals, comparatively lower cost of medical treatment and supported by various government initiatives. These factors are conducive to the development of medical tourism in India. The entire rationale of medical tourism is driven by the costs, aspects of safety, ethical practice, credibility and legal issues arising from medical negligence and malpractice are often are put on the backburner. The growth of medical tourism in India, therefore, will be incumbent on the effectiveness of the regulatory framework. This protects the interests and rights of patients and monitors hospitals and healthcare institutions.
by LFIAdmin | Dec 1, 2020 | Uncategorized
By Admin, LegalFormatsIndia.com
Dec 8, 2020
A. (i) Under Section 10 of The Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (“MOFA”) read with Rule 8 of The Maharashtra Ownership Flats (Regulation of the Promotion of Construction, etc.) Rules, 1964 (“the said Rules”) , the Promoters/ Developers are required to form a society within 4 (four) months from the date on which minimum number of persons required to form such organization have taken premises/flats.
(ii) Under Section 11 of MOFA, the Promoters/Developers are required to convey the land and the building to the society or body of the purchasers within the period agreed upon in the agreement executed under Section 4 of MOFA or within prescribed period being 4 months from the date of incorporation of the society as per Rule 9 of the said Rules.
B. If the Developers fail to “convey” the land and building by executing the Deed of Conveyance and/or Deed of Assignment as may be the case, in that event the society and/or any other body of the flat Purchasers can follow the procedure for obtaining “Deemed Conveyance” as provided in Section 11 (3) to 11 (5) of MOFA.
C. Procedure for obtaining “Deemed Conveyance”
(i) The society should first collect and organize all the relevant documents such as society Registration Certificate, Property Card or 7/12 extract, sanctioned plans, IOC, CC and OC, copies of all the Agreements for Sale of initial Purchasers, Registration Receipt, Stamp Duty payment proof etc.
(ii) The Society should call General Body Meeting (AGM or SGM) of the members of the Society and to interalia pass the following resolutions, namely: –
(a) To apply for Deemed Conveyance;
(b) To authorize certain representatives of the society to sign necessary papers, documents including Deed of conveyance etc. as may be required for the purpose and also authorize them to adopt and do all necessary acts, deeds and things as may be required for the purpose including the appointment of Advocate/s, Counsel, Architects, Consultants etc.
(c) To approve the budget/cost for the same;
(iii) To issue a notice to the concerned Promoters/Developers/Builders calling upon them to execute and/or cause to be executed the Conveyance of the subject land and the Building in favour of the society.
(iv) If the Promoters/Developers/Builders fails or refuses to execute the conveyance, to make an Application in writing to the Competent Authority (alongwith all the relevant documents as also resolution of the society) appointed under MOFA for issuing a Certificate/Order that the Society’s is entitled to have unilateral Deemed Conveyance in their favour and to have it registered.
(v) The Competent Authority after making necessary enquiry, verifying the authenticity of the given documents and giving the Developers/Builders a reasonable opportunity of being heard, may certify, in reasonable time, that it is a fit case for enforcing unilateral execution of conveyance Deed conveying the land and building in favour of the society.
(vi) After the said Order /certificate is passed, the society should submit the draft Deed of Conveyance for approval of the Competent Authority.
(vii) Once the draft Deed of Conveyance is approved by the Competent Authority, the society should submit the same to the Collector of Stamps for determining the stamp duty on the same. If there is any deficit in the payment of stamp duty to pay the same and obtain the duly stamped Deed from the Collector of Stamps office.
(viii) Thereafter, the society should lodge the said duly stamped Deed of Conveyance alongwith the certificate/ certified order for registration.
(ix) The Registering Authority (Registrar/Sub-Registrar) shall, after following the due process, issue summons to the Developer to show cause why such unilateral Deed of Conveyance should not be registered as “Deemed Conveyance” and after giving a reasonable opportunity of being heard to all the concerned, the Registering Authority will register the document of “Deemed Conveyance”.
(x) Thereafter on the basis, of the registered document of “Deemed Conveyance”, the society can apply for entering their name in property card and/or 7/12 extracts and other revenue records of the Government as Owner of the property.
D. Advantages of Deemed Conveyance:-
(i) Society gets clear title to the property with full right to own and re-develop the same of its own with all the development benefits attached to the property including FSI, TDR etc. without any reference and/or recourse to the old Developers/Builders.
(ii) The society can raise the loan from the Banks for self-re-development of the property.
(iii) The Society can appoint new Developers/Builders to re-develop the said property without investing any amount.
E. Disadvantages of Deemed Conveyance:-
(i) Nominal cost (compare to the benefits) and efforts involved.
by LFIAdmin | Dec 9, 2020 | Uncategorized
By Amritha Vyas, Associate Advocate Gajria and Co, Advocates and Solicitor
amritha@rgajria.com | Dec 7, 2020
“Cinema constantly remakes itself, but whether this is understood as homage, imitation or theft depends upon historically specific technologies such as copyright law and authorship, film reviewing and exhibition practices.”
In the matter of copyright infringement for a film, there has been a mixture of decisions by the Indian courts, each presenting a diverse opinion on the point – On one hand, A single judge of the Bombay High Court has in Star India Private Limited v. Leo Burnett (India) Pvt. Ltd. (2003) 27 PTC 81 (Bom) held that – ‘to make a copy of the film’ would mean to make a physical copy of the film itself and not another film which merely resembles the film contrary to which, the Division Bench of the Calcutta High Court in Shree Venkatesh Films Pvt. Ltd. v. Vipul Amrutlal Shah, 2009 SCC OnLine Cal 2113 has held that – ‘a film must not be a copy of any other work, including any other film.’
The infringing copy in case of cinematographic film has to be an exact copy made by the process of duplication or whether it refers to another work which substantially, fundamentally, essentially and materially resembles the original film.
The above two cases were considered by the Delhi High Court in MRF Limited vs. METRO Tyres Limited.
Facts pertaining to the case:
MRF Limited, engaged in the business of manufacture, marketing and sale of tyres. In order to widely promote, publicise and advertise a particular product of its range of tyres, MRF Limited produced an audio-visual advertisement on TV media and YouTube in June 2015.
In October 2016, MRF noticed that METRO Tyres Limited , which was also involved in the business of manufacturing and marketing of tyres, had produced an advertisement, which MRF considered to be a material copy of their advertisement thereby infringing their copyright. Thus, MRF filed a suit before the Delhi High Court for copyright infringement.
The issue was whether the said advertisement constituted a ‘cinematograph work’ under the Copyright Act, 1957? And was the Plaintiff entitled to protect it under Section 14 of the Copyright Act, 1957?
Plaintiff stated that the Defendant’s advertisement showed a similar sequence, form and expression as compared to the Plaintiff’s advertisement. Plaintiff submitted that in a suit for copyright infringement of a cinematography film, there is an overall view and not a micro analysis.
The Defendant emphasized on the word ‘original’ which is not used with respect to cinematograph film as per the Copyright Act, 1957. The Defendant contended that a cinematograph film is treated differently under Section 13(3) of the Copyright Act, 1957 as all the underlying works which contribute to the making of a film are protected independently. The Defendant submitted that the expression ‘to make a copy of the film’ meant to make a physical copy of the film itself and not another film which merely resembled the original film.
Judgement:
The Delhi High Court’s observation was that copyright subsists in a ‘cinematographic film’ as a work independent of underlying works that come together to constitute a film and though the copyright subsists in the constituent parts, yet the copyright vests separately and independently in the composite whole – the film.
Copyright subsists in a ‘cinematograph film’ as a work independent of underlying works that come together to constitute it. A film must not be a copy of any other work, including any other film.
A cinematograph film is normally an original work as it is an ‘intellectual creation’. The Court pointed out that it was not about controlling the idea or a subject or the underlying work but of protecting the ‘intellectual creation’.
The decision passed by the Supreme Court of India in the case of R.G. Anand v. M/s Delux Films and Ors. 3 was considered important and was relied upon, as it elucidated that in order to be actionable, the copy must be substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy. The test of infringement is of an overall impression of an average viewer and not a microscopic analysis. The Court thus held that the test laid down in R.G. Anand’s was not confined to a literary work and was of general application and had been applied as such since then.
Further, it held that ‘to make a copy of the film’ does not mean just to make a physical copy of the film by a process of duplication, but it also refers to another film which substantially, fundamentally, essentially and materially resembles/reproduces the original film. Accordingly, it held that the blatant copying of fundamental/essential/distinctive features of the plaintiff’s advertisement on purpose would amount to copyright infringement.
Consequently, the Court had to compare the substance and the foundation of the two advertisements to consider whether one was “by and large a copy” of the other and whether an average viewer would get an unmistakable impression that one work was a copy of the other.
The Court was also of the opinion that the Copyrights Act, 1957 has to be interpreted in consonance with the Berne Convention which protects the film as an original work and that the owner of copyright in a cinematographic work shall enjoy the same rights as the author of an original work.
Conclusion:
The expression ‘to make a copy of the film’ does not mean just to make a physical copy of the film by a process of duplication, but it also refers to another film which substantially, fundamentally, essentially and materially resembles/reproduces the original film.
However, after applying the test laid down in R.G. Anand v. Deluxe Films, Hon’ble Justice Manmohan held that the two advertisements are neither substantially, materially or essentially similar. Hence, the Plaintiff’s plea for injunction was dismissed.
by LFIAdmin | Dec 10, 2020 | Uncategorized
By Isha Thakur, Law Student, SNDT Law School
ishav1998@gmail.com | Dec 10, 2020
According to the Hindu religious codes/tenets, marriage is considered to be a religious sacrament, sanctified in the presence of gods. Marriage, being regarded as sacrosanct, is an obligation meant for procreation and preservation of the familial legacy as per the Hindu Dharma. In the pre-independence era, the term ‘divorce’ was a peculiar concept and traditionally there was no concept of divorce. Husband and wife were expected to live together in a conjugal relation despite of grave disagreements or infliction of unethical and immoral behaviour.
British India had only one enactment regulating the matrimonial laws which specifically governed the individuals professing Christianity. It was in 1955 that the Parliament of India thought it necessary to legislate a law on Hindu marriage and its dissolution and subsequently, the Hindu Marriage Act, 1955 was enacted. Under ancient Hindu law, divorce was not recognized and under the Act of 1995 also, divorce is not favoured or encouraged and permitted only on certain serious, specific grounds which are provided as below.
Who can apply for divorce (Applicability) under the Hindu Marriage Act, 1955:
The Hindu Marriage Act, 1955 governs the following categories of persons: –
1. Any person who is a Hindu, Buddhist, Jain or Sikh by religion;
2. Any person who is domiciled in India, who is not a Muslim, Christian, Parsi or Jew by religion and who is not governed by any other law; or
3. Any child (legitimate or illegitimate) whose both or one of the parents is a Hindu, Buddhist, Jain or Sikh by religion (provided that incase of one parent professing the herein mentioned religions, the child is brought up as a Hindu, Sikh, Jain or Buddhist).
Grounds for Divorce under Hindu Law or the Hindu Marriage Act, 1955:
ADULTERY
A petition for divorce can be presented by one party on the ground that the other party has indulged in an act of sexual intercourse with a third party, however, such an act must be voluntary and consensual and without the prior approval/consent of the spouse. A single act of adultery is sufficient to invoke this ground, however, an attempt to commit adultery is insufficient. Adultery is no longer a criminal offence and circumstantial evidence is enough to prove the commission of the act.
CRUELTY
It constitutes any act, conduct or behaviour which causes apprehension to one’s life or causes harm to one’s health and/or reputation or causes mental agony. However, such an act/conduct/behaviour must be so grave that it should not be possible for any reasonable person to tolerate such conduct. Cruelty can be physical as well as mental. Lack of mutual love, respect and understanding amounts to cruelty but it has to be differentiated from general depletion of marital bond.
DESERTION
An act of voluntary abandonment of spouse for a minimum period of two years without any just and reasonable cause. It is important that the abandoned spouse has not consented to such desertion. Desertion can be actual (physical desertion) and constructive (mental/emotional abandonment).
CONVERSION
If a party ceases to be a Hindu by converting to another religion (i.e., a non-Hindu religion), in such circumstance, the other party can file a divorce petition on this ground. The converting spouse must, however, complete all the requisite formalities/rituals for such conversion and should actually preach the new religion.
INSANITY
If a party is suffering continuously or intermittently from a mental disorder to such an extent that its’ not reasonably possible to live with him, then the other party can file a petition for divorce by invoking such a ground. However, a marriage shall be treated as voidable if a person had been suffering from mental disorder before solemnization of marriage, without the knowledge of his/her spouse.
LEPROSY
A party can file a divorce petition on this ground only if his/her spouse is suffering from ’virulent’ and ‘incurable’ form of leprosy. No duration is specified in the Act for this purpose.
VENERAL DISEASE
These are the sexually transmitted diseases. A person can file a divorce petition on this ground if his/her spouse is suffering from a venereal disease in a communicable form. However, the spouse must not have contracted the disease from such person itself. The defense of curability or innocence cannot be taken in such case.
RENUNCIATION
If a spouse renounces the world and enters into religious order, the other spouse can file a petition for divorce. A person is considered to have entered into religious order when he performs all the ceremonies/rituals prescribed by such order.
PRESUMPTION OF DEATH
If a person has not been heard of being alive for a continuous period of seven years by individuals who would have naturally heard of him, then his/her spouse can file a divorce petition on this ground.
NON-COMPLIANCE WITH THE DECREE OF JUDICIAL SEPARATION
When a decree of judicial separation is passed under the Act and even after one-year cohabitation has not resumed between the parties, in such case, either party can file a petition for divorce.
NON-COMPLIANCE WITH THE DECREE OF RESTITUTION OF CONJUGAL RIGHTS
When such a decree has been passed under the Act and even after one year of passing the decree, there has been no restitution of conjugal rights/obligations, either party can file a divorce petition.
Grounds for divorce (available only to wife):
The wife can seek divorce on any of the following grounds: –
1. If the marriage is solemnized under the Hindu Marriage Act, 1955 and the husband marries another woman in spite of his first wife being alive, in such case, the first wife can file a petition for divorce.
2. If the husband has committed an offence relating to rape, sodomy or bestiality.
3. If cohabitation has not resumed even after one year of passing of the decree of maintenance in favour of the wife.
4. If the wife got married prior to attaining the age of fifteen then after attaining fifteen years but before eighteen years of age, the wife can repudiate the marriage irrespective of the fact of consummation of marriage.
Both husband and wife may jointly file a divorce petition before a District Court on the grounds that:
1. they have been living separately for a minimum period of one year;
2. they have not been able to live together; and
3. they have mutually decided that their marriage should be dissolved.
After presentation of the petition, the parties have to wait for a period of six months (‘Cooling Period’), however, not exceeding eighteen months from the date of filing the petition. After the aforesaid period, they are collectively/jointly required to move a motion in the Court that divorce be granted.
The Court, on being satisfied that the averments contained in the petition are true, shall pass a decree of divorce thereby dissolving the marriage. It is important to note that the parties to a divorce petition by mutual consent have the liberty to withdraw the consent at any time during the proceedings until the divorce decree is passed.
by LFIAdmin | Dec 23, 2020 | Uncategorized
By Isha Thakur, Law Student, SNDT Law School
ishav1998@gmail.com | Dec 23, 2020
India is prominent for being a country of cultural extravaganza and religious diversity constituting a socially pluralistic and multiethnic democracy, as such interfaith marriages were inevitable. With modernization coupled with westernization, liberal education and intellect independence, there has been a constant rise in the percentage of individuals tying knots outside their own communities. People of our country are increasingly keener to find a partner of their choice rather than giving in the familial pressure of marrying within the barricades of their own caste as arranged traditionally.
However, inter-caste marriages are still associated with a lot of stigmas. With a view to eradicate such notions, the Special Marriage Act, 1954 was enacted to provide for special form of unrestricted inter-religious marriages which could not be solemnized under the various religious customs. The applicability of the Special Marriage Act, 1954 extends to every individual who is a Hindu, Muslim, Sikh, Christian, Jew, Buddhist living in India as well as Indian nationals residing overseas. Hence, the Act allows marriage between two individuals irrespective of the caste and religion they follow and without the need to renounce their religion which the antecedent enactment required.
In order to bridge the gap contained in the Act of 1872 and to bring it at par with prevailing personal laws, the Act contains special provisions for registration of marriages, its dissolution and other relating aspects as enumerated below.
Requisites of a Valid Marriage under the Act:
1. The parties must have completed the minimum age limit to marry i.e., 21 years for bridegroom and 18 years for the bride;
2. Neither party must be married or have any living spouse;
3. The parties must be capable of giving valid consent i.e., they must not suffer from unsoundness of mind or mental disorder; and
4. The parties must not be within the prohibited degrees of relationship.
The abovementioned conditions clearly showcase the lack of hindrance of religion and caste formalities. Any person desiring a civil form of marriage can get married under this Act. In fact, two individuals belonging to different nationalities come under the ambit of this Act as well.
Divorce under the Act:
A person can file a petition for divorce in the District Court under the Special Marriage Act, 1954 only if his/her marriage has been solemnized under the Act after satisfying the abovementioned requisites. The Act provides for several instances whereby the parties may desire to terminate the marital bond, such grounds maybe divided into three parts as follows:
Grounds for Divorce (available to both the parties):
Adultery
A single act of consensual extramarital intercourse would be sufficient to constitute the ground of adultery. It is to be noted that a mere attempt to commit such an act doesn’t constitute adultery. Though the Act provides for adultery as a ground of divorce, it is, however, backed by traditional religious principles since committing such an act often destroys the sanctity and scaredness of marriage.
Desertion
Desertion can be defined as “complete repudiation of marital obligations”. A petition for divorce can be filed on the ground of willful withdrawal of a spouse from the marital bond without any reasonable cause for a continuous period of two years. However, such a withdrawal must not be consented to by the abandoned spouse. To constitute the ground of desertion, there must be intention to desert plus actual physical or mental abandonment.
Imprisonment
If a spouse is convicted for a period of seven years or more for an offence under the Indian Penal Code, the other spouse can file a petition for divorce on such ground. However, a decree of divorce shall not be granted if such petition is filed after competition of three years of the seven year or more imprisonment.
Cruelty
The term ‘cruelty’ is construed according to the definition laid down in Russell v. Russell (1897 AC 395). According to such definition, cruelty can be defined as any act, conduct or behaviour which causes apprehension to one’s life or causes harm to one’s health and/or reputation or causes mental agony. Here, more than the intention of the spouse, the behaviour and conduct is taken into consideration where such a conduct/behaviour must be so grave that it should not be possible for any reasonable person to tolerate such conduct.
Insanity
If a party is suffering continuously or intermittently from a mental disorder to such an extent that its’ not reasonably possible to live with him, then the other party can file a petition for divorce by invoking such a ground. However, a marriage shall be treated as voidable if a person had been suffering from mental disorder before solemnization of marriage, without the knowledge of his/her spouse.
Venereal Disease
These types of diseases are more commonly referred to as sexually transmitted diseases. A party suffering from a venereal disease in a virulent and communicable form is sufficient ground for filling a petition for divorce. However, such party must not have contracted the disease in question from his/her spouse. The Act does not specify the duration of the disease to subsist neither does it mention curability or lack if it.
Leprosy
A petition for divorce can be filed on the ground that the spouse has been suffering from leprosy considering that it has not be contracted from the other spouse. It is to be noted that leprosy under the Act need not be ‘virulent’ or ‘incurable’ in nature as required under the Hindu Marriage Act, 1955.
Presumption of death
A party can file a divorce petition on the ground that the other party to the marriage has not been heard of being alive for a period of seven years or more by those who would have naturally heard of him.
Non-Resumption of Cohabitation after a decree of Judicial Separation
The principle behind Judicial Separation is to distance the parties from each other for contemplation so as to encourage the possibility of reconciliation. But if even after one year from the date of decree of Judicial Separation cohabitation has not resumed, either party can file a divorce petition on such ground. It is to be noted that single act of cohabitation doesn’t constitute ‘resumption’.
Non-compliance with a decree for restitution of conjugal rights
When such a decree has been passed under the Act and even after one year of passing the decree, there has been no restitution of conjugal rights/obligations, either party can file a divorce petition.
Grounds for Divorce (available only to wife):
The wife can seek divorce on any of the following grounds: –
1. If the husband has committed an offence relating to rape, sodomy or bestiality. A decree of divorce shall, however, be granted only when the husband’s guilt is proved before the court of law and he’s convicted for committing such an offence.
2. If cohabitation has not resumed even after one year of passing of the decree of maintenance in favour of the wife.
Both the parties to a marriage may jointly present a petition for divorce before the District Court on the grounds that:
1. they have been living separately for a minimum period of one year;
2. they have not been able to live together; and
3. they have mutually decided that their marriage should be dissolved.
Six months after the presentation of the petition but not later then eighteen months, both parties are required to move a motion in the Court for seeking a decree of divorce. Before granting a decree of divorce, the Court shall take the following factors into consideration:
1. That the petition has not been withdrawn.
2. That the marriage is solemnized in accordance with the provisions contained in the Act.
3. That the averments contained in the petition are true.
4. That the consent of either party to the divorce has not been obtained through fraud, coercion or undue influence.
5. That the petition is filed within the specified time limit.
The Court, on being satisfied with the abovementioned considerations, shall pass a decree for dissolution of marriage. It is imperative to note that the petition can, however, be filed only after one year of solemnization of marriage i.e. from the date appearing on the wedding certificate in the marriage certificate book.
