by LFIAdmin | Jan 21, 2025 | Uncategorized
By Ritabh Singh, Articled Clerk, Vimadalal & Co., Advocates & Solicitors
ritabhsingh44@gmail.com | Jan 21, 2025
INTRODUCTION
In India, marriage is a special event for all those participating in the same. Certain cultures consider marriage to be a sacred vow and an eternal bond, whereas some cultures consider marriage to be a simple contract to live with a spouse. The Indian legal system, however, does not treat marriage as a simple contract, and Parliament has enforced various legislations to regulate and streamline the rights of various parties to a marriage. Post-nuptial and Pre-nuptial agreements, which deal with individual properties of the parties to a marriage, are not legally enforceable in India.
A question then arises; what if parties to a marriage enter a contract to marry wherein the consideration and object for both the parties is the marriage itself, with an additional caveat that if any party refuses to marry the other for any reason, such party shall pay pre-decided mutually aggregated liquidated damages to such other injured party. Will such a contract be enforceable?
STATUTORY PROVISIONS
A contract is defined under Sec 2(h) of the Indian Contract Act, 1872 (“the said Act”) as – “An agreement enforceable by law is a contract”.
An Agreement is defined under Sec 2(e) of the said Act as – “Every promise and every set of promises, forming the consideration for each other, is an agreement”.
Section 10 of the said Act describes what agreements are contracts –
“All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.”
Section 23 of the said Act describes which considerations and objects are lawful –
“The consideration or object of an agreement is lawful, unless— it is forbidden by law; or is of such a nature that if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy
In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void”.
Consideration can simply be understood as “something which is of some value in the eyes of the law. It may be some benefit to the plaintiff or some detriment to the defendant”[1].
The definition of consideration in Section 2(d) of the said Act clearly emphasises that an act or abstinence which is to be a consideration for the promise must be done or promised to be done in accordance with the desire of the promisor. In other words, an act shall not be a good consideration for a promise unless it is done at the desire of the promisor.
The “object” and “consideration” may in some cases be the same thing but usually they are different. The word ‘object’ used in Section 23 of the Act was not used in the same sense as ‘consideration’, but was used as distinguished from consideration to mean ‘purpose’ or ‘design’.
What is “immoral” depends upon the standards of morality prevailing at a particular time and as approved by the courts. But certain kinds of acts have been regarded as immoral since times immemorial and will perhaps always be so regarded.
The term “public policy” in its broadest sense means that sometimes the courts will, on considerations of public interest, refuse to enforce a contract[2].
According to Lord Halsbury, the categories of public policy are fixed and closed[3]. The same view has been adopted in India. One such head of public policy is that of marriage broker contracts. An agreement to procure the marriage of a person in consideration of a sum of money is called a marriage broker contract. Such agreements are void. A typical illustration would be an agreement for the sale of a girl.
ENFORCEMENT OF THE CONTRACT IN WHICH MARRIAGE IS PROMISED
Provided the court considers the consideration and object to be lawful, such a contract should be enforceable to demand the pre-decided mutually aggregated liquidated damages. To illustrate, if “A” and “B” decide to marry, execute a contract on the same and agree in it that if either of them withdraw from the marriage and thereby breaches the contract, the other party shall be entitled to a mutually aggregated liquidated damages amounting to Rs. 50,000/-. Thereafter, if “A” withdraws from the marriage, then “B” shall be entitled to the Rs. 50,000/-. The court may also increase or decrease such an amount after considering the actual expenses of the injured party towards the marriage, i.e., the printing costs, booking costs, mess & food charges etc. These factors are definite as a bill/invoice is usually raised for the same. Indefinite factors, such as mental injury, loss of reputation etc. also play an important part in deciding the actual damages, provided the court is desirous of amending the mutually aggregated liquidated damages as decided in the contract.
On the question of specific performance, the court cannot enforce the same. Section 14 of the Specific Relief Act, 1963, deals with the type of contracts that cannot be specifically enforced[4]. An order directing specific performance to marry would prima facie deprive the party of a fundamental right[5] just to enforce a civil one. Such an order will also be against public policy. Thus, even if the parties have contracted to marry and have provisioned for the specific performance of the same, such a contract will not be enforceable and the only remedy will be that of obtaining damages.
A reference should also be made to Section 26 of the said Act which states that any agreement in restraint of marriage is void. It can be argued that an agreement to marry one individual actually acts as a restraint to marry other individuals and such an agreement forces the parties to marry each other, thus being unenforceable. However, such an argument should fall short since there is no real restraint to marry someone else and the breaching party’s real liability is to pay damages.
CONCLUSION
What prima facie appears as a void agreement can in actuality be an enforceable contract. If the consideration or object for the marriage is money, property or some other tangible or intangible asset, such an agreement would be considered against public policy or immoral by the court, as it can be inferred that the purpose of the marriage was not to marry but to obtain that particular asset.
However, in a contract where both parties are truly desirous of marrying each other and they then put the same in writing and subsequently execute such writing as a contract, knowing and intending the legal consequences thereof, then such a contract would allow the injured party, in case of a breach, to claim and receive the mutually aggregated liquidated damages as decided and mentioned in the executed contract. The court will, under no circumstance, permit specific performance of the contract, even if the same has been agreed upon and provisioned in the contract.
Although such cases are rare, it is crucial to understand the legal principles governing the enforceability of such contracts[6].
[1] JusticePatterson: Thomas v Thomas, (1842)
[2] The subject of public policy has been considered in several articles and essays. See generally Lord Wright, Legal Essays And Addresses; Winfield, Public Policy in the English Common Law, (1928) 42 Har L Rev 76-102.
[3] See Parke B in Egerton v Brownlow, 10 ER 359, 408: (1853) 4 HLC 1, 123.
[4] Contracts not specifically enforceable.—The following contracts cannot be specifically enforced, namely:— (a) where a party to the contract has obtained substituted performance of contract in accordance with the provisions of section 20; (b) a contract, the performance of which involves the performance of a continuous duty which the court cannot supervise; (c) a contract which is so dependent on the personal qualifications of the parties that the court cannot enforce specific performance of its material terms; and (d) a contract which is in its nature determinable.
[5] Article 21 of the Indian Constitution
[6] Para 18, S.Valarmathi vs S.Elangovan on 13 November, 2014
by LFIAdmin | Sep 20, 2024 | Uncategorized
Written by- Mr. Sandip Vimadalal, Advocate & Solicitor. Assisted by- Ritabh Singh, 5th year Law Student, Government Law College
20th September, 2024
INTRODUCTION
Social media has indeed been a boon for the society. A lesser talked evil of the use of social media has been its impact on children, especially the long-term effects which are thought not to have a direct connection with the use of social media. The short-term negative effects such as depression and suicides have been increasing[1] and the same applies to the long-term negative impacts. Indian lawmakers must focus their attention on this aspect of society to ensure the proper development and mental well-being of children.
PROBLEMS ASSOCIATED WITH SOCIAL MEDIA
An addiction is an activity in which a person finds it increasingly difficult to stop himself from indulging in the activity, even if the effects are known to be harmful. Society in general has developed Obsessive-Compulsive Disorder (OCD) to use social media, the biggest victims being children[2].
Puberty, being the age where most human development happens, is the age where children today venture on social media, i.e., a large group of strangers and an endless flow of all sorts of content. Social Media algorithm rewards extremism. The simple science is that consumption of such media leads to a spike of dopamine which, after going offline, leads to a great crash, creating a craving for the same activity. The current format of short videos is the best example of intermittent reinforcement, which makes the most intense and uncontrolled craving[3], leading to compulsive and thoughtless use.
Add to that highly unfiltered content and individuals freely contacting each other, the victims of which are mostly females and children. Graphic and violent content which is shared or viewed results in a traumatizing experience for developing brains, leaving a long-term negative impact[4].
One last problem to mention is reduced social interaction. Children are unable to develop necessary social skills which are developed through social interactions and sports. The possibility of proper brain development is reduced and so are the chances of making any meaningful bonds with others, leading to depression, anxiety, isolation and various mental disorders[5].
LEGISLATIONS IN THE WORLD
The Online Safety Act, 2023 has been passed by the parliament of the United Kingdom to curtail the risks of social media and to protect children.
The purposes that the Act aims to achieve include, but are not limited to –
(i) imposing duties on providers of services which are regulated by the Act to identify, mitigate and manage the risks of harm from—
(a) illegal content and activity;
(b) content and activity that is harmful to children.
(ii) conferring new functions and powers on the regulatory body to regulate such providers of services as well as the provided services.
Certain duties imposed on providers of services by the Act seek to secure, among other things, that the services regulated by the Act are—
(i) safe by design; and
(ii) designed and operated in such a way that—
(a) a higher standard of protection is provided for children than for adults;
(b) users’ rights to freedom of expression and privacy are protected; and
(c) transparency and accountability are provided for those services.
The act further defines what “user-to-user service” is and what “search service” is along with providing stringent regulations on the same.
The Act also imposes duties of care on providers of user-to-user services and search services and requires the created regulatory body to issue codes of practice relating to some of those duties.
A bill known as the “Social Media Child Protection Act”[6] has been tabled in the House of Representatives of the U.S. Congress providing that social media platforms are to prohibit children under the age of 16 from accessing such social media platforms. Such social media platforms are also to verify the age of their users by valid documents issued by the Federal or State government. The Bill also defines what “social media” is and has specifically included platforms like Facebook, Twitter, Instagram, Snapchat and TikTok.
Recently, Australian Prime Minister Anthony Albanese announced his intention to ban the use of social media for those under the age of 16, although a Bill is yet to be tabled[7].
Thus, it is internationally realized that children need to be protected from the harmful effects of social media.
REQUIRED LEGISLATIONS IN INDIA
Indian lawmakers are yet to consider this aspect of proper development and protection of children. Due to the nature of the effects of unfettered use of social media, our lawmakers will be committing a grave mistake by further pushing back this issue.
Social media can be used in many ways but is primarily used for content creation and communication. Thus, lawmakers have to inspect and frame specific laws for different types of social media. A few possible suggestions to curtail the abuse of social media and for the protection of children are as under –
(i) Adopting a strong Know Your Customer (KYC) system for creating a social media account can ensure a one-person-one account system while identifying and debarring bullies and trolls.
(ii) For a particular age bracket, compulsory parental consent should be mandated along with providing parents with parental controls and limited or customized data sharing.
(iii) Social media organizations shall be held heavily liable if any harmful content is shared or if any KYC norm or individual privacy is breached.
(iv) A regulatory body shall be established for the protection of children from online dangers and for acting as a tribunal for redressal and enforcement of necessary laws and to regulate social media organizations.
(v) Social media itself has to be made a safer place by restricting dangerous content while maintaining a delicate balance with freedom of expression.
OTHER INITIATIVES REQUIRED
Laws are usually a function of norms. If both are not in sync, great disagreement and conflict arise. Thus, any extreme move contrary to established norms will not fructify. The correct approach is to promote a subtle change of norms by incorporating the following methods –
(i) Schools must impart education on the proper use of social media, its advantages and disadvantages with a focus on the holistic development of children.
(ii) Parents themselves are important role models who must abstain from needless use of social media and indulge in fun family activities.
(iii) The government must take an active role in holding educational and awareness programmes on proper use of the same.
(iv) Society must encourage children’s participation in summer camps and field trips wherein they can bond without social media and develop meaningful bonds and experiences.
CONCLUSION
To avoid accidents, one does not stop riding a bike but wears a helmet. Applying this analogy, banning social media will be a regressive step. Proper regulation is the need of the hour for ensuring the protection of children.
Indian lawmakers must unite on this aspect and address the same in a unanimous voice.
[1] The role of online social networking on deliberate self-harm and suicidality in adolescents: A systematized review of literature – Aksha M. Memon, Shiva G. Sharma, Satyajit S. Mohite and Shailesh Jain – National Library of Medicine
[2] Social network sites and obsessive-compulsive disorder: An investigation with suppression analyses – Soon Li Lee
[3] The impact of the digital revolution on human brain and behavior: where do we stand?
- Martin Korte, PhD – National Library of Medicine
[4] The Use of Social Media in Children and Adolescents: Scoping Review on the Potential Risks – Elena Bozzola and others – National Library of Medicine
[5] Brain health consequences of digital technology use
- Gary W. Small, MD – National Library of Medicine
[6] H.R.821 – Social Media Child Protection Act –Congress.Gov
[7] https://www.zawya.com/en/world/china-and-asia-pacific/australian-pm-announces-plan-to-ban-children-from-social-media-ah0av079
by LFIAdmin | Jul 26, 2024 | Uncategorized
DHRUTI KAPADIA, PHD STUDENT AND MEDIATOR
26th July, 2024
How you behave with human beings also depends on how your culture weaves in you and how stakeholders’ culture in disputes brings spark in the mediation process. It is relevant to how you adapt to socially connected resources that impact resolving disputes.
The whole mechanism of mediation is entirely processed with the stakeholder’s culture benefits as culture shows gestures and acceptance to somebody and non-acceptance to somebody else. Therefore, from which state you belong, which region you fall in, and from which country and your nationality can also be a vivid point in deciding your adaptation of the mediation mechanism.
Any disrespect and offers that can disturb the inbuilt beliefs of an individual or a stakeholder while the negotiation or the mediation process is ongoing would mean that you are breaking the shield and letting this pain of disputes aggregate rather than reducing it. It’s more on the mindset and personality of stakeholders that would mean the mediator would have to be very careful and would have to scrutinize who belongs to which nation and what usually is the way they greet each other because if the perfect greetings start, then the ideal conversation is much closer and accessible.
The sensitivity is so profound that forgiveness only comes if one understands what is accepted and what is not and how the whole process can proceed forward for a goal point of settlement. If cultures into cultures and multi-cultures have to mingle in the mediation process, it becomes complicated for the mediator to control our situation where the volcano of sensitivity shoots up. The parties would want to drop out of the process; therefore, do not let this situation happen. It will be essential that the mediators be watchful and ensure that every culture is well engraved and cumulated in the process without any left-out cases. Cultural sameness is impetuous to communicate and network with each other. It also lays the groundwork for productive mediations and negotiations that arise. It helps limit problems that arise not only from a business or personal dispute but also due to the unwillingness to acknowledge cultural differences.
To stimulate the process and come to a conflict resolution solution via mediation, it reflects heavily on the cultural benefits and cultural ingredients so that the same case studies of cultural benefits can be utilised in further processes if similar kinds of stakeholders are involved in the dispute resolution process, particularly more so in mediation.
There are international parties involved in commercial disputes. There are issues about language and also about greets; therefore, the mediator would be a vital role player in making the parties feel comfortable and welcoming as per their own cultures by reading them in a tone that they would appreciate and making them feel comfortable by greeting them as per his tone which the parties may understand.
Making the parties feel very comfortable in the mediation process would lead to an easy solution, allowing them to give up disputes rather than continue the arguments, as comfort zones can be both mental and physical. For that, appreciation must be whenever the stakeholders want to put out their point, even if not accepted from his point of view.
Mediation is a cultural reflection because it shows how the party behaves and where they belong, and that is how the dialogues are in the process. Also, the conclusive settlement comes forward if a peacemaking option is available. There are some cultures where forgiveness will not be an option. Still, there are some cultures where they can apologise and close it well.
To mediate without understanding the cultures of the stakeholders would be a failure process as culture plays a crucial role in mediating the disputes. The colour sheets of culture always play within and outside the human minds, and that is so deeply engraved in each human being that for a moment, if they have to compromise on culture, they will not be willing to do that, therefore respecting the parties’ cultures and accepting the way it will make mediation process easy.
by LFIAdmin | Mar 22, 2024 | Home
By Nazaqat Lal, Advocate & Solicitor
nazaqat_lal@hotmail.com | Mar 22, 2024
INTRODUCTION
Execution of a lease effectively results in the transfer of property for a specified time period, after which, the property reverts back to the lessor or if the lease deed provides, the lessee may have the option to purchase the property on the terms and conditions mentioned in the lease deed. In a leave and license, there is no transfer of property and on termination of the license or expiry of the license period, the licensee’s right to use comes to an end. The distinction between a lease and leave and license becomes important in a dispute situation as it has a bearing on the rights of the parties and the reliefs granted.
DEFINITIONS AND GOVERNING LAW
Lease is governed by the Transfer of Property Act, 1882 and is defined as “a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.”
Leave and license is governed by the Easements Act, 1882 and license is defined as “Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license.”
CASE LAW DISTINGUISHING LEASE AND LEAVE & LICENSE
In the cases of Associated Hotels of India Ltd. v. R.N. Kapoor and C.M. Beena , the question before the Supreme Court was whether it was a case of license or a case of tenancy wherein the license was a camouflage for evading the applicability of rent control legislation. In order to answer this question, the Supreme Court relied upon the tests to distinguish between a lease and leave and license and determined the rights of the parties accordingly.
In Associated Hotels, the Supreme Court held as follows.
“28. …The following propositions may, therefore, be taken as well established : (1) To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form; (2) the real test is the intention of the parties – whether they intended to create a lease or a license; (3) if the document creates an interest in the property, it is a lease; but, if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence; and (4) if under the document a party gets exclusive possession of the property, prima facie, he is considered to be a tenant; but circumstances may be established which negative the intention to create a lease. …”
Following the decision in Associated Hotels, the Supreme Court of India in the case of C.M. Beena held as under.
“8. …Generally speaking, the difference between a “lease” and “license” is to be determined by finding out the real intention of the parties as decipherable from a complete reading of the document, if any, executed between the parties and the surrounding circumstances. Only a right to use the property in a particular way or under certain terms given to the occupant while the owner retains the control or possession over the premises results in a licence being created; for the owner retains legal possession while all that the licensee gets is a permission to use the premises for a particular purpose or in a particular manner and but for the permission so given the occupation would have been unlawful.”
“10. Given the facts and circumstances of a case, particularly when there is a written document executed between the parties, question arises as to what are the tests which would enable pronouncing upon the nature of relationship between the parties. Evans & Smith state in The Law of Landlord and Tenant (4th Edn.) –
“A lease, because it confers an estate in land, is much more than a mere personal or contractual agreement for the occupation of a freeholder’s land by a tenant. A lease, whether fixed-term or periodic, confers a right in property, enabling the tenant to exclude all third parties, including the landlord, from possession, for the duration of the lease, in return for which a rent or periodical payment is reserved out of the land. A contractual license confers no more than a permission on the occupier to do some act on the owner’s land which would otherwise constitute a trespass. If exclusive possession is not conferred by an agreement, it is a license. … [T]he fundamental difference between a tenant and a licensee is that a tenant, who has exclusive possession, has an estate in land, as opposed to a personal permission to occupy. If, however, the owner of land proves that he never intended to accept the occupier as tenant, then the fact that the occupier pays regular sums for his occupation does not make the occupier a tenant.” (at p. 33)”
CONCLUSION
Courts will place reliance on the intention of the parties, circumstances before and after execution of the document and whether exclusive possession was transferred under the document to determine whether the document in question is a lease or license. The answer to this question becomes fundamental to determining the rights of the parties and reliefs that will consequently be granted. The dividing line between a lease and leave and license is clear though it can often get blurred.
by LFIAdmin | Mar 22, 2024 | Home
By Nazaqat Lal, Advocate & Solicitor
nazaqat_lal@hotmail.com | Mar 22, 2024
- What is a private trust?
A private trust is a separate legal entity created or brought into existence for the purpose of holding property (movable or immovable) for a limited period, after which, such property vests in the beneficiaries of the trust.
A private trust is formed for a small number of beneficiaries as opposed to a public trust, which is formed for the benefit of a larger section or class of people.
“A “trust” is an obligation annexed to the ownership of property, and arising out of a confidence reposed in an accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner:” (Section 3, Indian Trusts Act, 1882)
- What law governs private trusts?
Private trusts are governed by the Indian Trusts Act, 1882 (“the Act”).
- How is a private trust created?
A private trust comes into existence on the execution of a trust deed. This is usually followed by obtaining a PAN Card in the name of the trust and opening a bank account. Trust properties are usually transferred thereafter to the trust.
- Author/settlor, trustees, and beneficiaries
Formation of a trust involves identifying the (i) author/settlor, (ii) trustees and (iii) beneficiaries.
The author or settlor of the trust is the person who creates the trust and transfers property (movable or immovable) to the trust to be held by the trust for the beneficiaries.
The trustees are persons appointed to manage the trust and the trust properties from the time of the creation of the trust till the time the trust properties vest in the beneficiaries. Trustees are usually persons known to the author or settlor of the trust and persons whom the author or settlor has faith in to manage and hold the trust properties till such time as the properties can vest in the beneficiaries.
The beneficiaries are the persons for whom the trust is created and in whom the trust properties eventually vest.
- Why are private trusts created?
Private trusts are primarily created for the preservation of property till the property can be transferred to or vest in the beneficiaries. The following are some examples of when private trusts are created:
(i) for the benefit of children who are presently minors,
(ii) to protect certain assets during family disputes,
(iii) to protect certain assets from becoming the subject matter of matrimonial disputes, etc.
- What are the duties of the trustees?
The duties of trustees include managing the trust property, protecting the title of the trust property, maintaining accounts, and furnishing information to the beneficiaries from time to time, etc. Chapter III of the Act sets out in detail the duties of the trustees.
- How does a private trust come to an end?
A private trust may come to an end in any of the following ways; (i) when its purpose is completely fulfilled, (ii) when its purpose becomes unlawful, (iii) when the fulfillment of its purpose becomes impossible and (iv) when the trust, being revocable is expressly revoked.
