Introduction

Adoption has always been considered as a sacred act. As per Merriam-Webster, legal adoption means “to take voluntarily (a child of other parents) as one’s own child especially in compliance with formal legal procedures”.

Adoption can be both legal or illegal. According to Indian law, adoption is a legal partnership between the party willing to adopt and the child who is to be adopted. It is the subject of 'personal law' where Hindu, Buddhist, Jain or Sikhs may make a legal adoption by religious faith. In India, Hindus, Christians and Parsis do not have separate adoption laws, so they are required to file a petition in court for legal adoption under the Guardians and Wards Act, 1890 (hereinafter referred to as “the Act”).

According to Section 2(aa) of the Juvenile Justice (Care and Child Protection of Children) Amendment Act, 2006, "adoption means the process by which the adopted child is permanently separated from its biological parent and becomes the legitimate child of its adoptive parents with all the rights, privileges and responsibilities attached to the relationship".

Who can adopt?

In India, an Indian who is married or is single, a non-resident Indian (NRI), or a person of any kind of nationality (foreigner) may adopt the child. For each group of adoptive parents, guidelines and documentation process can differ.

ELIGIBILITY TO ADOPT A CHILD IN INDIA

According to The Hindu Adoptions and Maintenance Act, 1956 following category of people can make adoptions:

• “Any male Hindu (including Buddhist, Jain or Sikh by religion) who is of sound mind, not a minor and is eligible to adopt a son or a daughter”. But if such male has living spouse at a time of adoption then he can adopt a child only with a consent of his wife (unless she has been declared incompetent to give her consent by the court).
• “Any female Hindu (including Buddhist, Jain or Sikh by religion) who is not married, or if married, whose husband is not alive or her marriage has been dissolved or her husband has been declared incompetent by the court has the capacity to take a son or daughter in adoption”.

Adoption criterias:

       i.           When a Hindu man or woman adopts a son, no living son (whether by legitimate blood relationship or adoption) shall be in the following three generations at the time of its adoption. There must be no living son.

     ii.           When any Hindu male or female adopts a daughter, they should not have a daughter of any child at the time of adoption.

   iii.           Where a male adopts a daughter then the adoptive father should be at least 21 years older than the child.

    iv.           Where a female adopts a son than the adoptive mother should be at least 21 years older than the child.

      v.           Muslim, Christian, Parsis and Jewish personal laws do not accept complete adoption, so if a person belonging to such a religion and wishes to adopt a child, he or she may take adoption in accordance with Section 8 of Act,.

    vi.           This statute only makes a child a ward but not an adopted child. The movement child turns to the age of 21 according to this law, he is no longer considered as a ward and regarded as an individual identity.

  vii.           It was held in "Muhammad Allahdad Khan and Anr. vs Muhammad Ismail Khan And Ors"(1886) ILR 8 All 234 that there is nothing comparable to adoption in the Muslim Law as known in the Hindu tradition. Under Muslim law recognition of paternity is the nearest approach to adoption.

viii.           An adoption can take place from an orphanage, however, by obtaining court approval under the Guardians and Wards Act. Under the Act, Christians can take a child for adoption only under foster care. Once a child is major in foster care, he is free to break all of his links from his adoptive parents.

Inter-country Adoption

In India there is no separate act governing adoption by foreign citizens or NRIs but it is covered by Children's Adoption Guidelines, 2015. Under these guidelines, children are prevented from being abused or illegally used through adoption. According to the Intercountry Adoption Guidelines of the Supreme Court a foreign parent may adopt an Indian child before he/she is 3 years old. The laws of Guardians and Wards Act, 1890 will be observed for adoption in the absence of any substantive act on intercountry adoption.

In the case of the adoption of abandoned, abused and surrendered children, all intercountry adoptions shall be made only in accordance with the provisions of The Juvenile Justice (Care and Protection of Children) Act, 2015 and the adoption regulations framed by the Authority.

The Guardians and Wards Act, 1890, remains silent about orphans being adopted, lost, and surrendered. Chapter VIII of The Juvenile Justice Act (Care and Child Protection) Act, 2015 deals with the adoption of children in such a group. Section 58 of this Act provides that, irrespective of their religion, any Indian citizen if interested in adopting an orphan or abandoned or surrendered child, may apply to a Specialized Adoption Agency in the same manner as provided for in the Authority's adoption regulations.

Section 57 of The Juvenile Justice Act (Care and Child Protection) Act, 2015 deals with Prospective Adoptive Parent Eligibility. According to this clause, the adoptive parents should be physically fit, financially sound, psychologically aware and highly motivated to adopt a child in order to provide him with a good education, and both partners must agree to the adoption. In accordance with the provisions of the adoption regulations established by the Authority, a single or divorced person may also adopt but a single male is not allowed to adopt a girl child.

WHO CAN BE ADOPTED?

As per the Hindu law following child may be adopted namely-

• The child can either be a girl or a boy if he/she is a Hindu.
• He/ She has not been adopted before.
• The age of the child is below 15 years.
• The child should not be married.

As per the Guardianship law and The Juvenile Justice (Care and protection of children) ACT, 2015 following child may be adopted namely-

• Who is not a Hindu?
• Who is minor (not completed the age of 18 years).
• An orphan or abandoned or surrendered child.

PROCEDURE FOR A VALID ADOPTION

Under the Hindu Adoption and Maintenance Act, the party that is willing to adopt will apply to the Child Welfare Agency in 1956. Registration can be done either by an Adoption Coordinating Agency (ACA) located in the capital city of each state, or by a Central Adoption Resource Authority (CARA) accredited agency in New Delhi.

After that, the agency performs a preliminary interview with the adopting couple to understand their purpose behind adoption and motivation.

Once the party decides the child they are going to adopt, they send the petition to the court of appropriate jurisdiction, where there is a court hearing on adoption (the court is required to hand down the adoption case within 2 months).

Once the decision is issued by the Court, approval is finalized.

CONCLUSION

An adoption is a noble act so it should be carried out on a large scale by the people because India is a country where there is too much population and there are a huge number of unwanted children.

Over the past few years, agencies and adoptive parents in India's adoption system have noted a growing preference for the girl child over boys. Adoption is one way of controlling and preventing the raging problem of female foeticides and crimes against women in India. And what better way of giving a nice so normal life to a kid who really needs it.

“A lie can travel halfway around the world while the truth is putting on its shoes.”

- Mark Twain

Defamation and Social Media

When individuals feel their credibility is hurt by a careless comment made on social media like Facebook, Twitter or other online channels, they can consider pursuing a complaint against the offending party for defamation. We may be able to recoup money for the losses we have suffered through a libel lawsuit.

Online Defamation

During the 21st century social media grew exponentially with the emergence of different social media channels. In addition, online comment platforms like Yelp and review sites have allowed individuals to leave feedback that encourage thousands of people to read their comments. Many social media sites exist on the idea that information needs to be shared between users. This sharing often occurs without thinking about the truth of the information, or without regulatory oversight. Furthermore, anonymous profiles and websites allowed individuals to post instantly what they really thought. Some users assume a completely different FIND MORE LEGAL ARTICLES personality type any word(s) than they show in the real world. Commentators online may be rewarded with attention and public support when they blast other people. Most sites may check for inappropriate or pornographic content, but many do not screen for potentially defamatory content.

Potential Defamation

 While some plaintiffs may intend to prosecute Internet service providers or website servers in the hope of going after deep pockets, a federal law called the Communications Decency Act forbids defamation suits against those organizations.

Elements of Defamation

Although the laws of each state can differ, the central elements of a defamation suit are explained below. Generally speaking, defamation is a false statement that is made public and injurious to the reputation of the victim.

False Statement

A survivor has to be able to prove the statement was false. The reality is that a defamation lawsuit is a complete defense. The burden of proof for defamation lawsuits rests on the plaintiff party.

Fact

It must present the alleged defamatory statement as a fact and not as an opinion. Nonetheless, an opinion may be considered a statement of fact if it would have been viewed as such by a reasonable person.

Published

Published can mean literally in print, for instance in a newspaper or on a website.  Proving that a message has been released is typically not difficult for a case involving social media, provided the claimant can prove by writing it out that the material was on the website. Similarly, the content is considered published whether it is read by three people on an obscure website, or read by 300,000 people on a popular social media account.

Damage

In order for a plaintiff to prevail in a defamation lawsuit, he or she must be able to demonstrate that the defamatory statement has in some way damaged him or her. This can be interpreted as proving the harm was substantial, quantifiable and recorded. This is usually achieved by showing the damage to the victim's image. If the individual being attacked online was running a business, the loss of business or income will show damage. Many comments are so inherently harmful that a victim may not have to demonstrate any actual harm, such as statements accusing the person of committing a crime, being incompetent in his or her occupation, having some sexual behavior or possessing an infectious disease. A common test to determine whether a person's credibility has been harmed is whether that statement will cause the peers of the individual to think less about him or her.

Example of Online Defamation

Not every statement which is untrue or unkind is actionable. Yet there are many statements. For example, if you accused a person of abusing his or her spouse or children on social media, that statement would probably be considered defamatory if it were not true. Even if an individual posts partially true and partially false information, he or she may be held liable for defamation. For example, a person can claim to have been fired for assault on an individual. The person could have been fired for harassment but not. Despite any truth to the assertion the court may found defamation still existed.

Let's say you've got a blog and you wrote that, two weeks ago, ‘A’ hit his wife. If that statement isn't true (remember, truth is one of defamation's absolute defenses), it's defamatory. There's no way this statement isn't defamatory if it's false.

Are Opinions Protected?

But let's get this statement qualified. Let's say you wrote, "I think ‘A’ hit his wife two weeks ago." Opinion statements are not statements of fact, and thus are theoretically protected from libel suits. But, is this really an opinion statement? Sometimes statements of opinion are really seen as factual statements, depending on the circumstances. The average person may very well look at your statement as a statement of fact in this case, depending on how well you know ‘A’ and his wife, and why you think ‘A’  hit his wife.

The bottom line: Just because you're phrasing something as an opinion statement — "I think" or "I believe" — doesn't automatically protect you from a claim for defamation.

What if the statement is only in part true?

Let's take one more example. Let's say you wrote on someone else's Facebook page that ‘X’ had been fired from her job because she made a serious mistake and her company lost a significant client as a result. Again, it's almost certainly defamatory when this is a false statement. But what if it's true she made the mistake but the company didn't lose the customer? What if its company actually fired her to appease the customer? You certainly wrote something that was false (at least in part), but it may not have been defamatory overall.

The bottom line on this type of situation: if you're blogging or writing on your Facebook page, or submitting comments on someone else's blog or Facebook page, make sure you've got all the facts right before posting your statement on the internet. When you click on "submit," you will not be able to take it back.

If it's a close call, or, better, why mention it at all? To use our example, why do you need to write about ‘X’ being shot on someone else's Facebook page? You don't know all of the facts unless you are the one who fired her. It is a good idea to exercise utmost caution when posting posts or comments online or on social media, and avoid making any "gray area" claims that might be construed as defamation.

Problems of Online Defamation

The internet and social media are definitely a great thing for people and society at large, but they are also a fascinating breeding ground for potentially libelous comments.

Most people have learned (to their dismay) that the internet makes it almost too easy for people to speak out. The internet is chock-full of interesting websites where somebody could leave a potentially defamatory comment or post intentionally or accidentally.

Few of these locations are :

·         Letters to local newspaper publisher

·         Public comments on media websites (i.e., newspapers or magazines)

·         Blogs and comments concerning blog posts

·         Social media like Facebook, Twitter, Linkedin

·         Chat rooms or mailing lists

While some websites screen posts for inflammatory or illegal content, screening systems aren't geared to examining every post for defamatory content, and so many defamatory posts end up online.

What State’s Law Applies?

This is a complicated issue that depends on the state in which you live, the state in which the suspected defamer resides, and if any, the interactions the defamer has had with your State. When you believe you have been defamed online, you can contact a professional lawyer to discuss your legal options and best course of action as soon as possible.

Can You Sue The Service Provide?

One reason that you may want to sue the website's host or internet service provider (ISP) who posted a defamatory statement is the "deep pockets" argument.

ISPs or website hosts could have more money— and hence more ability to pay a judgment— than some blogger posting a defamatory statement about you. However, for better or worse, a federal law called the Communications Decency Act specifically exempted website hosts and ISPs from most claims of defamation.

The primary function of filing FIR is to record all the minute details and put the case into motion as was held in State of U.P Vs Krishna Mater & Ors, 2010 (2) L.S 42 (SC). The clause concerning FIR in Indian law is Section-154 of the CrPC, 1973. The report you file under Section-154 is known as FIR. One point to consider when filing an FIR is that it must be filed in conjunction with identifiable crimes. The plaintiff or anyone on his behalf usually files this, but in some cases it may be filled by the defendant too. An FIR must be in writing and a complaint must be entered in a book which will be kept at the police station.

Though the FIR is an important document in the initiation stage of a case but it is also provided that it cannot be used as evidence against the accused but it can be used to corroborate or contradict the informant under Section-157 and Section-145 of the Evidence Act 1872, if he/she is listed as a witness of a case.  

Unless the maker gives a satisfactory explanation, a delay in filing FIR will not be permissible. Where the maker offers adequate explanation such as the complainant's physical condition, natural calamities, the complainant's law ignorance, or any compensation he has provided for FIR filing. Though it is advised to file an FIR immediately as any delay may arouse suspicion on the complainant’s part.

Usually, an FIR is filed at a police station but in special circumstances it can be filed at the residence of a person as mentioned in Section-154.

With the introduction of internet services, in some states a person can also file an online FIR, but the traditional method mentioned in CrPC in Section-154 and is stated below:

·         The police must write down the information on the commission of a known crime told orally by the complainant.

·         As a person who provides or reports, it is your right to request that the information submitted by you to the police be read to you.

·         Upon recording the information by police, the individual providing the information must sign the report.

·         A complainant must verify that the information the police has recorded is according to the information that he/she provided and subsequently sign the report.

·         Those unable to read or write, after being sure that it is an accurate record, need to make their left thumbprint on the paper.

·         Always ask the police officials to handle you a copy of the FIR, unless you are provided by the officials. You are allowed to have it free of charge.

Now filing of an FIR is also done digitally. It is done to provide convenience to the aggrieved people. The procedure for the same is mentioned below:

 FIR (online or offline), must be filed immediately after an offence has been committed and in case of any delay in filing, it must be duly mentioned in the report. A Constitution Bench of the Supreme Court in the case of Lalita Kumari v Govt of U.P [W.P. (Crl) No; 68/2008] gave certain guidelines and held that, according to Section 154 of the Code of Criminal Procedure, registration of the first information report is compulsory where it discloses commission of an offence that is cognizable and no preliminary inquiry is required in this situation. In the case of a cognizable crime and the need of investigation, the information received may only be reviewed in advance in order to see if a cognizable offence is or is not revealed.

"A WOMAN CANNOT BE TERMINATED FROM WORK WHILE BEING PREGNANT"

RIGHTS OF A PREGNANT WOMAN AT WORK :

·         Safety at work and restoration- Employers have to keep your job open when you're out for a pregnancy-related absence, and they have to keep your place open at least as long as they would for any workers on maternity leave. Furthermore, you are entitled to any rights of reinstatement enjoyed by other employees when they are out for medical reasons. For example, if your employer offers paid leave to an employee recovering from a heart attack, you deserve the same benefits while away from your job due to pregnancy and related medical issues.

·         Unpaid leave from work benefits- Under FMLA, you are permitted to take 12 weeks of leave each year for the birth and care of your newborn child; you are also permitted to take time off to adopt a foster care child. The PLA allows employers with six or more workers to give at least eight weeks for giving birth or having an adopted child under 18.

Remember that neither law specifically mandates the employer to pay you for time off; instead, they protect your job security and re-establishment rights under the same terms that other workers receive while taking leave. Hence, if you pay other workers when away from work, you qualify for the same benefits.

·         Split Leave as needed- Most pregnant women experience different medical conditions before and after giving birth, and as members of the family transition into their new reality adoptive parents go through various issues. State and federal legislation understand the need for flexibility, so there are provisions that encourage qualified workers to divide the weeks of leave they are entitled to receive.

·         Marriage is NOT Definition- You do not need to be married at both the federal and state levels to take advantage of pregnancy-related leave and benefits. The Massachusetts law, in addition, acknowledges numerous differences in family dynamics, so the laws are gender neutral. Fathers are entitled to the same rights as mothers when they take leave to have a child born or adopted.

·         Safe and secure Pump- Pregnancy discrimination laws require employers to give reasonable break time for a nursing mother to express breast milk for up to one year after birth. The same statutes make it mandatory for employers to provide a place that is sheltered from view, other than a restroom, and relatively private for pumping.

·         Stay with the Job- While many discrimination laws concentrate on requiring leave if required to resolve pregnancy-related medical problems, many women experience the opposite treatment: an employer wants them to take time off to take care of their own and the child's health needs. However, if you are able to perform the routine tasks required by your position, you cannot be forced to take some time off.

·         Abortion and Endurance- Under federal and Massachusetts law, it is illegal for an employer to fire you for the abortion option. In addition, you are entitled to benefit from an abortion-related physical or mental disability to the same degree that your employer offers these benefits to other workers.  Again, employers are not required to provide benefits; they are only required to apply such policies in the same way to all workers.

·         Discrimination is unlawful- If you think you have been discriminated against because of a condition associated with pregnancy, you have rights. You can file a claim of discrimination.

·         Rights on pre-maternity leave- Before the baby is born, it may be necessary to be away from your job and during this time, the law protects your rights. The pre-maternity leave is subject to the same rules as other pregnancy-related absences.

·         Benefits To all employees- If there is one lesson linked to discrimination in pregnancy, it is because a qualified employee is entitled to the same benefits other workers with medical conditions receive. Employers may not be required to pay maternity leave or provide other benefits related to pregnancy, but they must extend appropriate policies to all staff.

EARNINGS AND LEAVES :

The Maternity Benefit Act provides that in the three months preceding their maternity leave, a woman will be paid maternity benefit at the rate of her average daily salary. The woman also needs to have worked for the employer in the 12 months preceding the date of her expected delivery for at least 80 days.

The Maternity Benefit Act originally provided 12-week maternity benefit, of which up to six weeks before delivery could be claimed. The law was amended in 2017, in order to extend the period to 26 weeks. Up to eight weeks may be claimed from the 26 weeks prior to delivery. However, you don't need to structure your leaves this way — instead you can take the whole 26 weeks of leave after delivery. These are also overall compensation periods and you can demand the value for a lesser amount of time as well.

If the mother has more than two surviving children, then the maternity benefit is only available for 12 weeks. The legislation has also been changed to expand maternity benefits to commissioning and adoptive mothers now entitled to 12 weeks ' leave from the day the child is adopted by the mother.

Women undergoing tubectomy (a medical procedure to stop future pregnancies) also get two weeks ' paid leave after surgery. In the case of abortion or surgical termination of pregnancy, the law allows women to leave for six weeks after the procedure. In the case of a post delivery disease, abortion, termination of pregnancy or tubectomy. A woman may demand a pay leave for a further duration of one month, more than what is allowed.

ADDITIONAL BENEFITS :

In addition to the maternity bonus period, the legislation also allows employers to require women employees to work from home if the nature of the work permits that.

In 2017 the law was further amended to make the establishment of creches mandatory for establishments with more than 50 workers. Mom's allowed to visit the creches up to four times a day and in addition to any other breaks available as a matter of course, two breastfeeding breaks per day until the infant reaches the age of 15 months.

EMPLOYER'S COMPLIANCE REQUIREMENTS :

·         Review and update maternity leave policies for workers to reflect the benefits extended under the 2017 Amendment Act

·         Update and include relevant references in employment contracts about maternity benefits – representing the current maternity benefit entitlements and responsibilities under the law

·         Developing structures, processes and policies that allow working mothers to work at home

·         Developing the framework for mandatory child care facilities for working mothers

·         Create a non-discriminatory performance management framework that acknowledges the absence of female employees

Taking into account new mothers ' health and safety initiatives, the Act also requires employers to ensure that no woman works immediately after the day of birth or miscarriage during the six weeks that follow. It is also illegal for an employer to fire or refuse a woman employee because of such absence.

In addition, the employer shall not hire a pregnant woman employee to perform any job of an arduous nature or work requiring long standing hours.

Where an employer contravenes the provisions or regulations of the Act, the Act provides for penalties either for one year's imprisonment or for a fine that may amount to Rs 5000, or for both.

EMPLOYER'S CHALLENGES :

One of the main challenges for employers in India who provide maternity benefits is that they have to bear the cost of it on their own. Whereas in most other countries, both the employer and the state government share the cost of maternity benefits.

Under the amended Act, the introduction of full payment of maternity leave salaries and the construction of mandatory care facilities further raises employers ' costs – increasing employers ' preference for recruiting male workers.

India's labor ministry recently proposed a proposal to help employers with the extra financial burden and ensure equal participation of women at work.

While the proposal is yet to be finalized, it seeks to reimburse employers for the wages charged for seven of the additional 14 weeks of maternity leave to female workers in the Rs 15,000 pay class who have been 12-month subscribers to the Employee Provident Fund Organization (EPFO).

ALTERNATIVE LAWS IN INDIA WHICH PROVIDE MATERNITY BENEFITS :

In addition to the Maternity Benefit Act, several other laws exist in India which provide for maternity benefits in India.

The Employees ' State Insurance (ESI), a self-financing program for employees ' social security and health insurance, offers maternity benefits for women in low-income jobs. This refers to workers who earn Rs 15,000 or less per month, with the employer contributing 4.75%, and the employee contributing 1.75%..

Instead of the Maternity Benefits Act, those who qualify can receive maternity benefits under the ESI scheme.

Certain regulations that provide maternity benefits include the Working Journalists (Conditions of Service) and the 1955 Miscellaneous Provisions Act, which grants 12 weeks of maternity benefits; and the 1948 Factories Act, which grants 12 weeks of full-time maternity leave.

Cognizance under Code of Criminal Procedure

The Code of Criminal Procedure has not specified what cognizance is. Literally, it means 'to be aware of' but when used in respect to a trial or a magistrate it means 'Judicial notice of an offence' Actually, taking cognizance does not require any formal action by the judge or magistrate, because as long as a magistrate turns his mind to the alleged crime of an offence for the purpose of taking further actions under the Code of Criminal Procedure, such as summoning an accused on the basis of the information available for prosecution or trial, cognizance can be said to have been taken.

In simple terms, cognizance can be interpreted as looking through a narrow keyhole and evaluating whether or not an offence has been committed, and if it has been committed at all, then whether certain parts of the IPC or any other special statute are attracted or not. The underlying principle in law or aim of cognizance is to maintain a 'judicial check' on the police, as a judicial officer by taking cognizance examines whether or not the crimes have actually been committed. Thus, in the Code, the word cognizance is used to denote the points when the Magistrate or Judge first takes legal notice of an offence. It is an infinite term of import, which may not always be used in precisely the same context.

COGNIZANCE OF OFFENCES BY MAGISTRATE

Any First class Magistrate and any Second Class Magistrate can acknowledge any offence. Section 190-199 of the code defines the procedures by which various criminal courts are entitled to take cognizance of offences, and the restrictions under which they are entitled.

(a)   Section 190 of CrPC "Cognizance of offences by Magistrates"

(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under subsection (2), may take cognizance of any offence-

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under subsection (1) of such offences as are within his competence to inquire into or try.

(b)   Section 191 of CrPC "Transfer on application of the accused"

When a Magistrate takes cognizance of an offence under clause (c) of sub-section (1) of section 190, the accused shall, before any evidence is taken, be informed that he is entitled to have the case inquired into or tried by another Magistrate, and if the accused or any of the accused, if there be more than one, objects to further proceedings before the Magistrate taking cognizance, the case shall be transferred to such other Magistrate as may be specified by the Chief Judicial Magistrate in this behalf.

(c)   Section 192 of CrPC "Making over of cases to Magistrates"

(1) Any Chief Judicial Magistrate may, after taking cognizance of an offence, makeover the case for enquiry or trial to any competent Magistrate subordinate to him.
(2) Any Magistrate of the first class empowered in this behalf by the Chief Judicial Magistrate may, after taking cognizance of an offence, makeover the case for enquiry or trial to such other competent Magistrate as the Chief Judicial Magistrate may, by general or special order, specify, and thereupon such Magistrate may hold the inquiry or trial.

Tula Ram & Ors vs Kishore Singh: 1977 AIR 2401, 1978 SCR (1) 615

Taking cognizance does not require any formal procedure, or indeed intervention of any kind, but happens as soon as a judge, as such turns his mind to the suspected crime of an offence for the purpose of continuing to take further steps towards damage or trial. Furthermore, when a Magistrate applies his mind not for the purpose of proceeding as mentioned above but for taking action of some other kind, such as directing an investigation or issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of the offence.

COGNIZANCE TAKEN BY A MAGISTRATE NOT EMPOWERED

If any magistrate were not allowed to recognize an offence under Section 190(1)(a) and 190(1)(b), if an offence is wrongly accepted in good faith, the proceedings shall not be set aside solely on the ground that it is not permitted to do so. On the other hand, if a magistrate who is not empowered to take cognizance of an offence takes cognizance by information received or his own knowledge pursuant to section 190(1)(c), his proceedings shall be null and void. In such a case it is immaterial whether he was acting erroneously in good faith or otherwise.

COGNIZANCE OF OFFENCES BY COURT OF SESSION

According to Section 193, "Courts of Session are not permitted to take note of any crime (as a court of original jurisdiction) unless the case is committed by a Magistrate." If it is specifically established by this code or by any other statute, then only Courts of Session are permitted.

LIMITATION ON THE POWER TO TAKE COGNIZANCE

Sections 195-199 are exceptions to the general rule that, even though he is not personally interested or impaired by the crime, any person with knowledge of the conduct of an offence that sets the law in motion by a complaint. The general rule is that any person with knowledge of an offence commission may put the law into motion through a complaint even though he is not personally interested in or affected by the offence. Sections 195 to 199 of the CrPC provide exceptions to this general rule because they prohibit cognizance of the offences referred to therein except where a complaint is lodged by the Court or the relevant public servant. The provisions of these sections are obligatory and a Court has no authority to recognize any of the offences listed therein unless there is a written complaint as provided by the section in question.

Prosecutions for contempt of the lawful authority of public servants

According to section 195(1)(a), "Court shall not take cognizance of those cases which are punishable under section 172 to section 188 of the Indian Penal Code unless a public servant makes a written complaint." Section 172 to 188 of the IPC deals with offences related to public servant contempt. In case of an attempt, conspiracy abetment of offence set out in IPC section 172 to 188, the court will not take cognizance.

According to Section 195(2), ' ' Court will not proceed further with the trial when a superior official of a public servant (who has complained) gives the order of withdrawal. '' Provided that no such withdrawal is ordered after a trial has been completed in court.

Prosecution for offences against public justice

According to Section 195(1)(b)(i),'' Court shall not take cognizance of offensive cases pursuant to Sections 193 to 196, 199, 200, 205 to 211 and 228 of the Indian Penal Code unless a formal complaint is filed by that court or by some other court to which that court is subordinate.' In the event of an attempt, conspiracy, abetment of offences against public justice, the court will not take cognizance.

Prosecution for offences relating to documents given in evidence

According to Section 195(1)(b)(ii),'' Court shall not accept those cases which are offensive according to Section 463 or punishable according to Section 471, 475 or 476 of the IPC unless a formal complaint is lodged by that court or by any other court to which it is subordinate.' In case of an attempt, conspiracy, abetment of offences relating to documents provided in evidence, the court will not take cognizance.

The definition of' court' in Section 195(1)(b) is addressed in paragraph 195(3). Court' means a Civil, Revenue or Criminal Court, which involves, for the purposes of this section, a tribunal created by or under a Central Provincial or State Act where that Act has been declared a Tribunal.

Section 195(4) deals with the definition in Section 195(1)(b) of the superior court and subordinate court. If Court ' A' has the authority to appeal the decision granted by Court' B' we will then presume Court' B' is subordinate to Court' A.'

Prosecution for offences against the state

According to Section 196(1), ‘‘Court will not take cognizance to those cases which punishable under Chapter VI (Of Offences against the State) or under Section 153A, Section 153B, Section 295A or Section 505 of Indian Penal Code except with the consent of the Central Government or of the State Government.”

The listed IPC sections deal with state offences. Chapter VI of IPC describes the state offence. Section 153A of the IPC deals with harmony 295A deals with the offence of comments leading to violations of religious belief. Section 505 deals with an offence related to public mischief.

Prosecution for the offence of criminal conspiracy

According to Section 196(2), “Court will not take cognizance to offences of any criminal conspiracy under Section 120B of Indian Penal Code (other than a criminal conspiracy to commit a cognizable offence punishable with death, imprisonment for life or rigorous imprisonment for two a term of two years or upwards) unless consent in writing is given by the State Government or the District Magistrate to initiation of the proceedings.”

Conclusion

In the Code of Criminal Procedure, the term 'Cognizance' is not specified. This basically means adding the judicial mind to a suspected crime commission CrPC Chapter XIV deals with' Conditions Required to begin proceedings' and CrPC Chapter XV deals with 'Complaints to Magistrates'.

Name of the case : NAVTEJ SINGH JOHAR AND ORS. V UNION OF INDIA(section 377 of IPC,1860)

Section 377 of the Indian Penal Code states- "Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine"

Issues raised :

·         The Section 377 of the IPC is in violation of the equality right secured by Article 14 of the Constitution. Freedom of speech and expression under Article 19 of the Constitution on the right to privacy and the right to live with dignity under Article 21.

·         Whether it is arbitrary to make consensual relationship a crime contrary to the order of nature as per section 377 of the IPC?

·         Whether the fact that the law discriminates against people on the basis of sexual orientation is in violation of Article 15 of the Constitution?

Arguments :

Side Petitioner :

The plaintiff counsel relied on the ratio in Case K. S. Puttaswamy v. Union of India which stipulated that "sexual orientation is also an important privacy attribute. Protecting an individual's sexual orientation and his or her right to privacy is therefore extremely important, even without enjoying such personal and constitutional freedoms , individual identity may lose meaning, a feeling of trepidation will take over, and their life would be reduced to mere survival. "That the right to privacy often applies to LGBTs who have the right to exercise their choice without any fear of exposing themselves. No one has the power to direct how a person chooses to go to bed as if.

In the case of the Naz Foundation, though reaffirming the judgment of the Delhi HC, the counsel also put emphasis on the case of Manoj Narula v. Union of India as an example of cases in which constitutional morality had been averted. The Supreme Court is the protector of the Constitution, and this SC is "the ultimate arbiter of constitutional rights" and should uphold constitutional integrity and eradicate social disregard.

The petitioner's counsel, Francis Coralie Mullin v. Administrator, Union Territory of Delhi and others and Common Cause (A Registered Society) v. Union of India and another, in which the bench held that Article 21 guarantees the right to life and freedom, and liberty. And it is useless if it can not impose on everyone, including the LGBT community, human autonomy and positive self-expression.

The petitioners drew the Court's attention to the Committee on Criminal Law Amendments, J.S. Verma, which had found that "sex" arising in Article 15 includes sexual orientation and, according to the petitioners, Section 377 was also in violation of Article 15 of the Constitution on that count.

It was also claimed that when the LGBT people announced their identities, they feared punishment and persecution and therefore never addressed the court. They seek help from parents, teachers, non-governmental organizations, to speak on their behalf.

Side Respondent :

The counsel argued that Article 15 of the Constitution was not infringed as it only forbids discrimination on the grounds of religion, ethnicity, caste, age, birthplace or any of them but not sexual orientation.

He put emphasis on the case of Fazal Rab Choudhary v. Bihar State, in which it was observed that the section indicated sexual perversity, or sexual bestiality that was contrary to nature's order and that it was very well within the power of the State to impose ' reasonable restrictions ' on disruptive, perversive or immoral acts between a man and a woman.

Placing emphasis on the decision in State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and others, the counsel contended that the interest of the state, country or culture as a whole is primary to the interest of an individual citizen despite how significant the citizen's interests are.

Firstly, the Court has no power to modify, add or delete language from a legislative clause. Traditionally thought to occur between a male and a female, it will create a number of social issues that the government is unable to address at this point in time, and these issues will also pose a threat to existing laws.

Judgement:
( DATED 6TH SEPTEMBER 2018 )

The 5 judge bench unanimously ruled Section 377 to be discriminatory to the degree that it criminalized, two people of the same sexual orientation had consensual sexual intercourse, and that is a matter of utmost privacy. In Suresh Koushal v Naz Foundation it overruled the bench's verdict.

The Court relied on its own decision in National Legal Services Authority v. Union of India, where it reiterated that “gender identity is intrinsic to one’s personality and denying the same would be violative of one’s dignity.” When we discriminate between the LGBT on the basis that they represent a minority of the population, it would violate their constitutional right to privacy.

The bench also touched on Shafin Jahan v. Asokan K.M., saying that it is the right of an adult to choose his or her life partner on their own.

Something that two members of the LGBT community want to do secretly in no way damages "public decency or morality."

The Chief Justice relied on the “principles of transformative constitutionalism and progressive realization of rights and held that the constitution must guide society’s transformation from an archaic to a pragmatic society where fundamental rights are fiercely guarded.” He further stated, “constitutional morality would prevail over social morality”. They also affirmed that homosexuality was “not an aberration but a variation in the sexual orientation of an individual”.

Effect of the judgement :

The judgment put emphasis on the principle of democratic constitutionalism that has paved the way for a plethora of very important legal changes and reforms. It was a landmark decision in the country's history, since it acknowledges not only the identity of individuals belonging to the LGBT community but it also confers global social recognition on them. After this relief through a landmark ruling, the next battle in the history of the legal arena would have the right to marry a person of the same sex or any other of their choosing for the social and economic arrangements for such individuals.

WRIT OF MANDAMUS

INTRODUCTION

Mandamus is a Latin word, which means "We Command". Mandamus is an order from the Supreme Court or High Court to a lower court or tribunal or public authority to perform a public or statutory duty. This writ of command is issued by the Supreme Court or High court when any government, court, corporation or any public authority has to do a public duty but fails to do so. Writ of Mandamus can be used to order a job to be done, or it may allow an operation to be stopped in other situations.

TYPES OF WRITS OF MANDAMUS

1.      Alternative Mandamus

As the first step in the writ of Mandamus process, an alternative mandamus is issued. The alternative Mandamus requires the defendant to execute the required act, or appear in court to justify why it was not done.

2.      Peremptory Mandamus

A peremptory mandamus is issued when the defendant fails to demonstrate sufficient grounds for failing to carry out the act in question to comply with the alternative mandamus.

3.      Continuing Mandamus

A continuing mandamus is issued to a lower public authority requesting that it perform its required tasks to prevent a miscarriage of justice.

ORIGIN OF MANDAMUS IN INDIA

A continuing mandamus is issued to a lower public authority requesting it to perform its tasks in order to avoid a miscarriage of justice. In India the writ of Mandamus follows the English pattern. In pre-independent India, the three Supreme Courts derived the power to issue a Mandamus Writ within the towns of the Presidency by the respective charters. The letters patent creating the Supreme Court at Calcutta in 1773 introduced Mandamus in India. The Supreme Courts were empowered to grant the writ in the cities of the Presidency. In 1877, the Specific Relief Act replaced an order in the nature of mandamus in place of the Writ of the mandamus for the purpose of' requiring any specific act to be done or forborne by any person holding a public office within the local limits of his ordinary civil jurisdiction.

In a Leading case Raman & Raman v. State of Madras, A.l.R. 1959 S.C. 694 & State of Assam v. Ajit Kumar, A.l.R. 1965 S.C. 1196, it was said that “Mandamus will not issue to enforce departmental manuals or instructions not having any statutory force which do not give rise to any legal right in favour of the petitioner”

In a case Binny Limited V. Sadasivan, 2005 AIR (SC) 3202, it was said “A writ of mandamus or remedy is pre -eminently a public law remedy and is not generally available against private wrongs. It is used for enforcement of various rights of the public or to compel the public statutory authorities to discharge their duties and to act within the bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties.”

TO WHOM MANDMUS WILL NOT APPLY

In India it will not lie in their personal capacities on the President and the Governor of a State. The Constitution, however, expressly provides that appropriate proceedings may be brought against the Government of India and a State Government. Furthermore, the Constitution empowers the courts "to issue to any person or authority, including, where appropriate, any government" any of the writings mentioned in it. Then Mandamus is given against the Government

The term ‘subsidy’ comes from the Latin word subsidy, meaning 'reserve-stationed soldiers’, which essentially means ‘support from behind’. Subsidy means grant in the most common sense. This grant can be either in the form of cash or kind and is usually given to support an economic policy.

Subsidy is generally understood to be a Government-issued grant but this is not a very strict definition. The various forms of subsidy include direct subsidies such as cash grants, interest-free loans, indirect subsidies such as tax breaks, premium-free insurance, low interest loans, write-offs on depreciation, rent rebates etc. Subsidies have been recognized extensively around the world as a tool for enforcing government policies.

Objective of a subsidy and understanding Revenue and Capital receipts

The basic objective of granting a subsidy is to compensate the extra amount of expenditure incurred by the assessee.  Subsidies can be given for many reasons such as setting up of industries etc. Talking about capital receipts and sales receipts in this report, simply put, capital receipts don't impact the company's profit or loss, for example, we might say long-term asset sales are one kind of capital receipts.

Yet tax receipts do impact a company's profit or loss. As an example, it may be assumed that revenue receipts are the selling of goods, the commission obtained etc. The nature and function of capital receipts and revenue receipts are completely different.

In the landmark case of Sahney Steel and Works Ltd. v Commissioner of Income Tax, Andhra Pradesh 1997 228 ITR 253 (SC), in the above case, Hon'ble Supreme Court held that if the object (of subsidy) is to assist the assessee in setting up his business or expanding a project, the money must be regarded as obtained for capital purpose. But if the assessee receives money to assist him in carrying out the business operation and the money is only provided after and conditional upon the start of production, these subsidies must be regarded as aid for the purpose of trade and must be subject to taxes as those subsidies directly affect the profits of the company. The Supreme Court said that ‘motive’ and ‘purpose’ test needs to be applied to determine the nature of subsidy.

In this case the Andhra Pradesh Government gave certain relaxations to the company with regards to its operations. Benefits such as refund on sales tax on raw materials, machinery and finished goods, subsidies relating to power consumption, exemption of water bill when water is taken from sources not maintained by any govt or local body, etc.

In furtherance to this, there were certain conditions regarding the grant of subsidies under this scheme; (1) the subsidies will only be granted when the production has commenced, (2) the availability of incentives would be limited to only 5 years from the date of commencement of production.

Mr. Ganesh who was appearing for the assessee i.e. Sahney Steel Works contented that these incentives were given for rapid industrialisation in the State and the main objective of the incentives were to encourage industrialisation. There they must not be subjected to tax.

The Supreme Court finally held, that the incentives were granted after the company started the production and that the incentives provided were also subject to a time limit. These grants were not just given for setting up of an industry but were provided for conducting smooth production and granting relaxations such as reduced water and electricity bill and reduced  rate of sales tax which could ultimately result in increase in the profits of the company. By observing these points Supreme Court concluded that   these aspects must be treated as revenue receipts and shall be subjected to tax. Hence making it clear that the subsidies provided by the Government would be subjected to tax.

Authors of this post:

1.    Lakshay Parmar

2.    Dilpreet Singh 

Introduction

In India, various acts provide for favorable arrangements for the protection of children. These laws are intended to achieve a social purpose and to prevent vagrancy and destitution and to provide a quick, affordable and rapid mechanism for providing support and maintenance to children.

Statutory Provisions

Hindu Marriage Act, 1955, Section 26  – 

The court may pass orders relating to the custody, maintenance, and education of minor children during the proceedings under the Act. Under this Act, both parents (father, mother, or any of them) are liable to keep the children as ordered by the court. While making such orders, as far as possible the court takes into account the children's wishes. These orders and provisions may be altered from time to time. Any request for the protection and education of minor children during the proceedings pending under the Act shall be determined, as far as possible, within sixty days from the date of notification service to the respondent.

Hindu Adoption and Maintenance Act, 1956, Section 20-

 A Hindu male or female is bound to maintain his or her legitimate/illegitimate minor children and aged/infirm parents. Aged or infirm parent (which includes childless stepmother) or unmarried daughter have to be maintained if they are unable to maintain themselves. 

Criminal Procedure Code, 1973, Section 125 – Magistrate may order a person to make monthly allowance for maintenance in a case where any person who despite having sufficient means neglects or refuses to maintain –

(i)                 his legitimate or illegitimate minor child who is unable to maintain itself

(ii)               legitimate or illegitimate major child (not being a married daughter) unable to maintain itself due to any physical or mental abnormality/injury

(iii)             married daughter till she attains majority if her husband is not able to maintain her

(iv)              his/her father or mother who are unable to maintain themselves.

This section also makes a provision for maintenance during the pendency of proceedings regarding monthly allowance for maintenance. Also, application for interim maintenance during pending proceedings is to be decided by the Magistrate, as far as possible, within sixty days of the date of service of notice of application to such person. A person who fails to comply with the order of the Magistrate without showing sufficient cause may also be sent to prison. The order of maintenance passed under this section may be altered by the Magistrate on proof of change in circumstances.

In India, child maintenance is accepted under Section 125 CrPC. It was given the child can claim maintenance from the father in India. Section 26 of the Hindu Marriage Act also makes provision for child maintenance under Hindu law.

The provision of the Act specifies that a minor child is entitled to receive maintenance from the father if, or otherwise, a child's custody has been granted to the mother during the divorce proceeding.

Recently, Indian courts have also said that, under Indian family law, a major child, whether a daughter or a son, also has the right to receive maintenance from his / her father if they are dependent on their parents.

Mohan Singh Mawri v. Smt. Haripriya Mawri

The Uttarakhand High Court,while revising the amount of maintenance given to the wife, observed that although an adult son can not demand maintenance from his parents as a matter of right, in the Indian culture we can not forget the fact that the parents have to hold their adult child until he gets a suitable job and that it is a social duty on the parents to keep the adult child One can not equate this Indian culture and custom with European culture and custom.

Jayvardhan Sinh Chapotkat vs. Ajayveer Chapotkat MANU / MH/2581/2014

 Bombay High Court held that under the Hindu Marriage Act, a major son may not be entitled to maintenance. The Petitioner has, in the present case, made a specific application for educational expenses which he can use until he reaches the age of 18. And, as far as age is concerned, the son / claimant will reach a majority, it would not be the right age to become economically independent so as to make his living. In the facts given in the case, a major son of the well-educated and economically sound parents may claim educational expenses from his father or mother regardless of the fact that he has attained majority. It is not strictly maintenance as contemplated under Section 125 of the Code of Criminal Procedure or maintenance as contemplated under section 20(2) of  the Hindu Marriage Act.

T.Vimala vs S.Ramakrishnan Crl.R.C.(MD)No.180 of 2014

The Madras High Court Bench held that fathers are liable to pay maintenance to children who had attained majority even if the latter were not suffering from any mental or physical abnormalities and yet do not have sufficient financial capacity to maintain themselves.
Children who become major and do not suffer from any disability can also claim maintenance from their fathers like children under the age of 18. They can get educational expenses as well under section 125 of the Cr.P.C. in the state.
The Madurai bench of the Madras high court passed an order in the T, Vimala and others versus S Ramakrishnan case taking note of section 20 of the Hindu Adoption and Maintenance Act, by Justice P. Devadass.
It was held that:
“Education is an important aspect in children’s life... No father is expected to bring up a criminal or a disorderly person. Section 125 is not just for food for life, it should also be for food for thought. Otherwise, so far as children are concerned, we will be doing violence to the very object of Section 125.”

Scope of the Protection of Women from Domestic Violence Act,

The significance of this piece of legislation was clarified by the High Courts and the Supreme Court in India in a series of judgments. In a recent judgment, the Gujarat High Court in the case of Bhartiben Bipinbhai Tamboli v. Gujrat State and Ors, R/SCR.A/5672/2016 after reviewing thoroughly the provisions of the Domestic Violence Act,  has held that:

In this country, domestic violence is rampant and several women encounter violence in some form or the other, or almost daily. It is the least-reported type of cruel behavior, however. A woman resigns her fate as a daughter, a sister, a wife, a mom, a husband, a single woman in her lifetime to the never  ending cycle of enduring violence and discrimination.

This non-women's retaliation coupled with the absence of legislation addressing women's issues, ignorance of existing women's laws, and societal attitude makes women vulnerable. The reason why most cases of domestic violence are never recorded is due to the social stigma of the society and the mindset of the women themselves, where women are expected to be subordinate, not only to their male counterparts but also to the male relatives.

The remedies available to a victim of domestic violence have been limited until the year 2005. Either the women had to go to the civil court for a divorce decree or initiate prosecution in the criminal court for the offense punishable under IPC Section498A. No emergency relief for the victim is available in both proceedings. There was also no recognition of the relationships outside of the marriage.

This set of circumstances ensured a majority of women preferred to suffer in silence, not out of choice but out of compulsion. With all these facts in mind, Parliament considered it fit to enact an came to be known as The Protection of Women from Domestic Violence Act, 2005(hereinafter known as “The Act”). The Act's main object is to protect women from a man or / and a woman's violence. It is a progressive law whose sole purpose is to protect women regardless of the relationship that she shares with the accused. Under the Act, the concept of an aggrieved individual is so broad that it includes even women who live in a relationship with their partners within its purview.

Domestic Violence – Section 3 of the Act, describes the term 'domestic violence.' The definition has a large range and encompasses all types of abuse against women. This includes physical, sexual, verbal and emotional abuse, as well as economic abuse.

The sections read as follows-

For this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it—

1. Harms or injures or endangers the health, safety, life, limb or well‑being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse, and economic abuse; or

2.      Harasses, harms, injures or endangers the aggrieved person to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

3.       Has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

4.      Otherwise, injuries or causes harm, whether physical or mental, to the aggrieved person.

1.      Who is allowed to make a complaint under the Act?

Section 2(a) of the Domestic Violence Act defines “aggrieved person” as 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.

The Act protects not only those women who are or have been in a relationship with the abuser, but also those women who have lived together in a shared household and who are linked through consanguinity, or through a marriage or adoption arrangement.

In the Act, even those women who are sisters, widows, mothers, single women or living in any other relationship with the abuser have the right to legal protection.

Women in Live in relationships covered under the Act

The Supreme Court in the case D. Veluswamy v. D. Patchaiammal (2010) 10 SCC 469,  placed a broader meaning on an "aggrieved individual" under Section 2(a) of the Domestic Violence Act in which the Court mentioned as follows five ingredients of a living in relationship:

1.      The parties must behave as husbands and wives and are known in front of society as husbands and wives.

2.      They must be of a valid legal age of marriage.

3.      At the time of entering a relationship, no partner should have a sous living.

4.      They must have willingly cohabited for a significant period of time.

5.      They must have lived together in a shared household.

The Supreme Court also observed that not all live-­in­-relationships   will   amount   to   a relationship in the nature of marriage to get the benefit of Domestic Violence Act. The above-mentioned conditions shall be satisfied in order to obtain such profit and this must be proven by proof.

Status of a Keep- The Court stated that if a man has a' keep' which he financially retains and uses only for sexual purposes and/or a servant it would not be a partnership in the nature of marriage.

The Court also referred in this case to the word "palimony" which means providing maintenance to a woman who has lived with a man without marriage for a substantial period of time, and who is then abandoned by him.

Against whom can the complaint be filed under the Domestic Violence Act?

The Act defines “respondent” as 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:

Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.

In view of the scope of the term respondent covering an adult male person, the judiciary has been confronted time and time again with the contention that an aggrieved person can file a complaint only against an adult male person under the Domestic Violence Act and not against the husband's female relatives, i.e. mother-in-law, sister-in-law.

However, in Sandhya Wankhede v. Manoj Bhimrao Wankhede (2011) 3 SCC 650 case, the Supreme Court put the issue to rest on the grounds that the provisions of Section 2(q) do not preclude husband's or male partner's female relatives from the scope of a lawsuit that may be lodged under the Domestic Violence Act.

Not only men but women can also be prosecuted under the Domestic Violence Protection Act (DV). The Supreme Court revoked the words "adult male" from the relevant provision in the DV Act to establish that a woman may also lodge a complaint against another woman, accusing her of domestic violence.

Under Section 2(q) of the 2005 Act, a complaint may only be lodged against an "adult male individual," thus insulating women from being convicted of the offenses referred to in the statute.

But a bench of Justices Kurian Joseph and Rohinton F Nariman ruled that this clause violated the legislation's purpose because "domestic violence perpetrators and abettors" can also be women.

It acknowledged that the statutory intent to provide effective protection for women's rights could easily be defeated by an adult male person who is not in the forefront, but brings forward female persons who could forcefully evict a woman or defeat any other order passed under the act without fear of calling for prosecution.

The bench held:

“The microscopic difference between male and female, adult and non-adult, regard had to the object sought to be achieved by the 2005 Act, is neither real or substantial nor does it have any rational relation to the object of the legislation. In fact, the words ‘adult male person’ are contrary to the object of affording protection to women who have suffered from domestic violence of any kind” 

The court ruled “We, therefore, strike down the words ‘adult male’ before the word ‘person’ in Section 2(q), as these words discriminate between persons similarly situated, and far from being in tune with, are contrary to the object sought to be achieved by the 2005 Act,”

The bench resorted to the "doctrine of severability" and only struck down that part of Section 2(q) which produced a gender-based distinction in relation to offenders under the Act. “Application of the aforesaid severability principle would make it clear that having struck down the expression ‘adult male’ in Section 2(q), the rest of the Act is left intact and can be enforced to achieve the object of the legislation without the offending words,” it held

Hiral P. Harsora And Ors vs Kusum Narottamdas Harsora And Ors, Ct. 28 CRR 1795 of 2017 

“Pursuant to the provisions of the DV Act, a complaint against a daughter-in-law, a daughter or a sister could be maintained if they were a co-respondent in a complaint against an adult male who is or has been in a domestic relationship with the complainant and that co-respondent.”