Posted in Cyber Law

Legally Challenging the Blue Whale Challenge

Introduction

“We have seen the havoc played by unscrupulous internet predatory sites such as the ‘Blue Whale’. It is upto us to empower our children so that they develop the maturity to say no to such exploitative and inhuman tendencies online.”  –  Shri M. Venkaiah Naidu, Vice President of India[1]

At present, the internet has more negative impacts on children than positive. There has been an alarming death rate based on challenges that go trending on social media. A recent example of such trends is the Blue Whale Challenge. This challenge is developed and designed in such a way that players tend to harm themselves either by cutting hands (by carving a picture of a whale) or by jumping from the building, causing grievous injuries which can succumb to death.

The Blue whale Challenge is a suicide game in which the players have to provide proof in the form of photos and are given certain tasks on a daily basis for 50 days and after each task video of the task performed is required to be shared with anonymous curators. The last task leads to the suicide of the player as he or she psychologically gets so much traumatized, addicted and depressed which led to taking their own life. The players are also asked to share photos after finishing each challenge and sometimes the administrator of the challenge threatens to kill the participants if they do not do the next task and hacked their phones and computers as well. Regrettably, the danger of this deadly challenge has been reported to be highest in India.[2]

To deal with the issue, the Madras High Court[3] has taken suo moto cognizance to ban the challenge, while the 3-judge bench of Supreme Court has asked the Centre to start with the awareness programme on the issue[4]. Thereafter, government[5] as well as UNICEF[6] has released an advisory to restrict the consequences of the challenge. What is worrying is the fact that despite the judiciary’s Orders and state’s assurance of banning the challenge in India, yet there exist unfortunate incidents of suicide by the virtue of the said challenge.[7] Certainly, there is a strong need for the for better implementation of laws to restrict such challenge. The paper attempts to analyse the existing laws that could contemplate this challenge and goes on to put forth recommendations to restrict emerging of any such deadly challenges in future.

Analysis of the Legal Framework

  1. Laws on Technology

In India, digital technology is governed by the Information & Technology Act, 2000 which provides preventive and remedial measures for online offences. The Act provides for punishment for any criminally intimidating offensive messages received from any digital source.[8] Section 69-A also confers the powers to the government to block the public access to any information received or generated from any computer source to stop incitement of commission of any cognizable offence.[9]

The Blue Whale is not a freely downloadable challenge. The link of this challenge is circulated through WhatsApp and the player is bound by the anonymous curator to register by submitting his personal information to him. The first stage of the challenge is less challenging, yet dangerous. However, the player gets addicted to the challenge with the subsequent gory stages under the threat of their data getting misused. Curator even captures the personal information of the player and thereby violates the player’s right to privacy under Section 66E of the Act. Section 79 also covers the role of intermediaries and formulates rules to block information that aids in the commission of any unlawful act[10]. Notably, in Registrar’s[11] case, the Supreme Court has directed the state to take necessary action against WhatsApp and other similar ‘Over The Top’ (OTT) services, if they fail to provide information relating Bluewhale to the law enforcement agencies.

  1. Criminal Laws

As inferred from the stages of the Bluewhale, the challenge perfectly falls under the offence of abetment to suicide. Even the Advisory issued by MeitY termed the Bluewhale an as abetment to suicide.[12] This offence is covered under Section 305 for child and insane person as well as under Section 306 of the IPC, 1860[13]. There exist three basic ingredients to the said offence. Firstly, the deceased should have committed suicide; secondly, the accused, as per this Section, have abetted or instigated the deceased to commit such act and; thirdly, there should be direct involvement of the accused in the commission of the alleged act.

The curator can also be held liable for criminal intimidation under Section 507 of IPC as he anonymously threatens the player to do an illegal act which may cause severe injury to him.[14] Moreover, there have been instances where the location of the curator is either unknown or falls outside the territory of the country. As the IPC is only applicable within the territory of the state (except where the subject is governed under extra-territorial operation), it is very difficult to hold any person guilty who has committed the act in some other country. A remedy for this issue is provided by the Effects Doctrine[15], which states that a sovereign has the power to adopt criminal law that applies to crimes that are committed within the territory, even if the accused performs the act outside the territory. With the increase of cybercrime on the Internet, the application of this doctrine has become significantly important.

  1. Child Laws:

The reported age of majority of the players of Bluewhale ranges from 12 to 19 years.[16] Clearly, this deadly challenge is played mostly by children. The Bluewhale may qualify as a crime under Section 16 of the POCSO Act for instigating the child to commit the unlawful offence.[17] The National Policy for Children (NPC), 2013 states the State’s obligation to take measures to safeguard the rights of children in need of s any special protection, as mentioned in as “their specific social, economic and geopolitical situations, including their need for rehabilitation and reintegration”. The same Policy also notes that the State should enact progressive legislation and build a preventive & responsive child protection system.

Integrated Child Protection Scheme (ICPS), 2009 aims to integrate service provision into a range of existing services to cater to the multiple needs of children in difficult circumstances, through an interface with various sectors, including health, education, judiciary et cetera. Systems under ICPS promote the right to privacy[18] and confidentiality of the child and institutionalisation of the child is seen as a measure of last resort.

  1. Position in International Law

The right to life is considered a basic human right and is protected by several international instruments, including Article 3 of the UDHR,[19] Article 6(1) of the ICCPR[20] and Article 6 of the UNCRC.[21] In most of the cases of Bluewhale, the initial stages itself lead to the instant death of the player.

The right to physical integrity, while often associated with the right to freedom from torture, encompasses several broader human rights principles, including the inherent dignity of the person, the right to liberty and security of the person, and the right to privacy. Acts of violence threatening a person’s safety, such as Bluewhale, also violate a person’s right to physical integrity.

The right to the highest attainable standard of physical and mental health is enshrined in many international and regional instruments particularly Article 25 of the UDHR.[22] Further, Article 12 of the ICESCR[23] states that all State parties to Covenant recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.  Information collected of children under 13 years of age are protected under the Children Online Privacy Protection Act (COPPA), 1998. Many countries like Egypt, U.A.E, Ukraine etc have completely banned the challenge from their online sources.[24] Russia, assumed to be the founder of this challenge, introduced three new articles in its Criminal Code providing punishment for inciting or assisting minors to commit suicide.[25]

The Road Ahead

It is suggested that appropriate steps be taken by the State towards prevention and awareness generation. The following measures may be considered in this regard:

  1. The Bluewhale should be banned from all the online sources, including the proxy websites. A team of techno-legal experts should be appointed to check the proper implementation of the Supreme Court’s and High Courts’ mandate.
  2. Specific amendments may be made in the IT Act, 2000 stating that Bluewhale or any other similar challenges as a form of misconduct making the curator liable for disciplinary proceedings.
  3. The law should provide for the participation of the practising population in the process of review, law-making and the development of strategies. The law should be made widely available, child-friendly and translated in the appropriate local languages.
  4. Efforts should be made to pass a law which is indistinguishable to COPPA, 1998 to protect the online privacy of the children.

[1] Available at http://www.pib.nic.in/PressReleseDetail.aspx?PRID=1550607 (Accessed on June 28, 2019).

[2] Available at https://www.rediff.com/getahead/report/blue-whale-challenge-blue-whale-game-google-trends-search-highest-in-india-rank-no1/20170901.htm (Accessed on June 28, 2019).

[3] The Registrar (Judicial), Madurai Bench of Madras High Court v. The Secretary to Government, Union Ministry of Communications, Government of India, New Delhi and Ors. [2018] (1) CTC 506.

[4] Sneha Kalita v. Union of India & Ors. [2018] 12 SCC 674.

[5] Available at https://meity.gov.in/advisory-blue-whale-challenge-challenge (Accessed on June 28, 2019).

[6] Available at http://unicef.in/Uploads/Publications/Resources/pub_doc148.pdf (Accessed on June 28, 2019).

[7] Available at https://www.indiatvnews.com/news/india-suicidal-games-are-back-suspected-cases-of-momo-and-blue-whale-challenges-surface-in-odisha-tn-461651 (Accessed on June 28, 2019).

[8] Information & Technology Act, 200, s. 66-A

[9] Information & Technology Act, 200, s 69-A.

[10] Information & Technology Act, 200, s. 79.

[11] Supra at [3].

[12] Supra at [5].

[13] Indian Penal Code, 1860, s. 306.

[14] Indian Penal Code, 1860, s. 507.

[15] United States v. Ivanov 175 F. Supp.2d 367 (D. Conn. 2001).

[16] Supra at [6].

[17] Protection of Children from Sexual Offences Act, 2012, s. 16.

[18] Justice K.S. Puttaswamy (Retd.) v. Union of India [2017] 10 SCC 1.

[19] Universal Declaration on Human Rights, Article 3

[20] International Covenant on Civil and Political Rights, Article 6(1).

[21] United Nations Convention on Rights of the Child, Article 6.

[22] Universal Declaration on Human Rights, Article 25.

[23] International Covenant on Economic, Social and Cultural Rights, Article 12.

[24] Available at https://www.unian.info/society/2319441-ukrainian-cyber-police-block-over-1000-pro-suicide-social-media-groups-stop-deadly-challenge.html (Accessed on June 28, 2019).

[25] Available at https://www.themoscowtimes.com/2017/05/26/bill-outlawing-pro-suicide-groups-in-social-networks-adopted-by-russian-parliament-a58098 (Accessed on June 28, 2019).


ABOUT THE AUTHOR

Anirudh Vijay

Author Photo - Anirudh Vijay

Anirudh Vijay is currently a 4th year law student at Faculty of Law, Jamia Millia Islamia, New Delhi (Batch of 2016-21). His areas of interest include international law, cyber law and the intersection of technology & civil liberties. During his first year, he interned with Teach for India, wherein he taught in a government school as well as worked for child welfare. The idea of writing this paper came to him after interacting with his tech-savvy school students.

Vaibhav Sharma

Author Photo - Vaibhav Sharma

Vaibhav Sharma is currently a 4th year law student at Faculty of Law, Jamia Millia Islamia, New Delhi (Batch of 2016-21). He finds his interests in constitutional and criminal laws. He has participated in many quiz competitions in the past.

Posted in Insolvency and Bankruptcy Law

Scope of Moratorium under Insolvency and Bankruptcy Code, 2016: Arbitration and the Test of Detrimental Effect

It is an interesting observation in the realm of insolvency that the subject of moratorium under Section 14 of the Insolvency and Bankruptcy Code, 2016 (“Code”) has seen many instances of interpretation. The specific issue most of the times relates to the exclusion or inclusion of a particular proceeding under the ambit of moratorium.

The aim and function of a Moratorium is defined under Bankruptcy Law Reform Committee Report as:

One of the goals of having an insolvency law is to ensure the suspension of debt collection actions by the creditors, and provide time for the debtors and creditors to re-negotiate their contract. This requires a moratorium period in which there is no collection or other action by creditors against debtors.[1]

The case of Alchemist Asset Reconstruction Company Limited vs. M/s. Hotel Gaudavan Private Limited & others[2] is yet another pertinent judgement on the subject of moratorium. It has cleared a conundrum regarding clash of arbitration with insolvency proceedings under the Code. Before the analysis of the case is done it is important to know the facts of the case. The facts of the case, in brief, were as :-

Facts of the case

  1. Hotel Gaudavan Private Limited (“Corporate Debtor”) was given a loan of Rs 24,00,00,000 (Rupees Twenty Four Crore only) and limited credit of INR 1,00,00,000 (Rupees One Crore only) by the State Bank of India (“SBI”) (“Financial Creditor”) on January 4, 2008.
  2. The Corporate Debtor became irregular on repaying the loan and interest amount.
  3. Subsequently, the bank looking at the irregularity gave notice to the Corporate Debtor calling back the loan amount. A petition was filed before the Debt Recovery Tribunal, Jaipur, (“DRT”) to recover the amount of loan.
  4. State Bank of India (“SBI”) through an assignment agreement under Section 5 of the Securities and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 assigned the debt of the Corporate Debtor to a company named as Alchemist Asset Reconstruction Company Limited.
  5. In effect, the Financial Creditor had replaced SBI in the ongoing proceedings in DRT, Jaipur.
  6. The Financial Creditor then approached the Principal Bench of the National Company Law Tribunal at New Delhi by making an application under Section 7 of Code. This application was accepted and admitted by the bench and the tribunal declared Moratorium against Corporate Debtor under Section 14 of Code.
  7. Once the Moratorium was declared, the Corporate Debtor invoked the arbitration clause between the Financial Creditor and the Corporate Debtor and appointed an arbitrator as per the loan agreement.
  8. The bench decided that the appointment of an arbitrator and the arbitration proceeding were unlawful and not tenable. Moreover, the bench restrained from holding any arbitration proceeding against the Corporate Debtor.
  9. Even after the above ruling, the Corporate Debtor filed an appeal before the District Court of Jaisalmer, Rajasthan under Section 37 of the Arbitration and Conciliation Act, 1996 (“Arbitration Act, 1996”) and the court passed an order for the appeal to be registered and a notice seeking reply was issued.
  10. It was against the admission of this application that an appeal was preferred before the Supreme Court.

Findings of the Supreme Court

The Court observed that the mandate of the Code is that the moment an insolvency petition is admitted, the moratorium period stands initiated under Section 14 (1) (a) of the Code, and then it bars any admission of fresh proceedings or continuation of any pending suit against a Corporate Debtor.

Section 14(1)(a) of the Code reads as:-

“14. (1) Subject to provisions of sub-sections (2) and (3), on the insolvency commencement date, the Adjudicating Authority shall by order declare moratorium for prohibiting all of the following, namely-

  1. The institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority”

The court observed that the effect of Section 14 (1) (a) is that the arbitration that has been instituted after the Moratorium is “non est” in law. On such findings, the Court set aside the order of the District Court of Jaisalmer.

Analysis

The issue in such cases relates to the word “proceedings” used in Section 14(1)(a) of the Code, that it be interpreted so as to include ‘all legal proceedings’ or should it be construed to mean a particular or specific type of legal proceeding such as debt recovery proceedings which may have a detrimental effect on the debtor’s assets during the ongoing insolvency proceedings.

The plain reading of Section 14 makes it clear that it includes legal proceedings of any nature. The intention of the legislature with regards to moratorium is that there must be a standstill period during which actions of debt recovery cannot be initiated against the debtor. If any legal action against the debtor is allowed it will nullify the very object of the insolvency proceedings under the Code.

The issue of arbitration proceedings as against the period of moratorium arose earlier in the case of Power Grid Corporation of India Ltd. v. Jyoti Structures Ltd.[3]  In this case, a petition was filed under Section 34 of the Arbitration and Conciliation Act, 1996, for setting aside the arbitral award passed by the arbitral tribunal in favour of a Corporate Debtor. The locus classicus argument given by the respondent (Corporate Debtor) was that if the arbitration proceedings are stayed, the respondent would be unable to execute the arbitration award and recover his own debts, thereby further affecting his financial condition.

Delhi High Court ruled in the favour of the respondent and also observed that the object of the Code is to provide relief to the corporate debtor by providing a standstill period and as a supplement, during which it can strengthen its financial position to pay off the debts. It was observed that rendering the award not executable would prevent the corporate debtor from recovering money due to it and adding to its financial woes. Thus, moratorium under Section 14 of the Code would not apply to the proceedings which are for the benefit of the corporate debtor as these proceedings cannot be labelled as a debt recovery action.

Therefore, whether a moratorium under Section 14 of the Code shall apply in arbitration proceedings ultimately depends upon the nature of arbitration proceedings and peculiar facts and circumstances of each case, if the proceedings are in detriment to the financial position of the Corporate Debtor the moratorium shall have an effect and in case it does not have such an effect the moratorium shall not apply.

[1] The report of the Bankruptcy Law Reforms Committee Volume I: Rationale and Design, November 2015.

[2] Alchemist Asset Reconstruction Company Limited vs. M/s. Hotel Gaudavan Private Limited & others (IB)-23(PB)/2017, decided on 13.12.2017.

[3] Power Grid Corporation of India Ltd. v. Jyoti Structures Ltd, O.M.P. (COMM) 397/2016, decided on 19.12.2017.


ABOUT THE AUTHOR

Jai Bajpai

Capture

Jai Bajpai is a student at School of Law, University of Petroleum and Energy Studies, Dehradun.

Posted in Constitution of India

Constitutional feminism: A misconstrued idea?

Introduction

The Constitution of India allows for special provisions to be made for women under Article 15(3). It further doesn’t elaborate upon the nature and kind of these special provisions and delegates the task onto the legislature and the judiciary to interpret the scope of the provision, in light of the scheme of the Constitution. The judicial approach, so far, is seen as interpreting these “special provisions” as a window to protect women and in turn, cater to the stereotypical notions of gender roles.

The purpose of this article is to discuss and critique, how the Indian judiciary has approached this idea of “constitutional feminism” enshrined in Article 15(3), to protect women in situations that don’t warrant differential treatment (it goes against both the genders – it identifies the female gender as weak and fragile, and it restricts and violates the right of the male gender to not be discriminated against on grounds only of sex) and promote gender bias.

Understanding the Constitutional Mandate of Equality

The Constitution of India under Article 15(1)[i] prohibits the state from discriminating against any citizen on grounds only of religion, race, caste, sex, and place of birth or any of them. Parallelly, it allows for special provisions to be made for women (and children) under Article 15(3)[ii]. This dichotomous stand of the Constitution can be reconciled by the realisation that both these provisions are nestled in its scheme of equality. Article 15(3), is therefore not a window, that can be used to override the concept of gender equality, and promote gender bias; rather it is tool that the Constitution makers have instituted to establish “gender sensitivity”, to establish “substantive equality” (and not a mere formal equality) and in turn achieve the long term goal of “gender equality”.

Article 15(3): Tracing the judicial approach

The approach used by the Indian Courts in several cases, however, has misconstrued this provision. For instance, in the case of Mt. Choki vs The State[iii], wherein the provision of Section 437, Criminal Procedure Code was under challenge on the ground that it is gender discriminatory, as it creates an exception for the class of women, infirm, and sick, people under the age of sixteen years in a situation, when the rest don’t have a right to bail. The Court, however, rebuked this contention and justified the provision as an application of the constitutional mandate under Article 15(3). It didn’t adduce any explanation in furtherance of such justification, except stating that the position in the Constitution appears to be that it is open to the State to make laws containing special provisions for women and children.

It is seen that Indian judiciary has been saving various legislative enactments from the challenge of constitutional validity, under the umbrella of this term “special provisions”. In the veil of protecting women and thereby creating special provisions for (apparently, for) women, the courts have rooted their understanding of the society in the stereotypes of gender roles and capabilities. This is evident from the judgement of the Bombay High Court in the case of Ramesh Gajanan Reje v Gauri Ramesh Reje[iv], wherein the provision of S. 20(3) of the Hindu Adoptions and Maintenance Act was under challenge on grounds of violating Article 14, 15, Constitution of India. Under Sections 20(1) and 20(2), a Hindu is bound to maintain his children as long as they are minors. Section 20(3) provides, however, that an unmarried daughter is to be maintained as long as she is unable to maintain herself out of her own earnings or property. The court dismissed the petition on the ground that Sub-section (3) of Section 20 is a special provision within the meaning of clause (3) of Article 15. Another such example is the Calcutta High Court judgement of Purnananda Banerjee vs Sm. Swapna Banerjee And Anr.[v], wherein Section 37 of the Special Marriage Act,1954 was under challenge for violating Article 14 and 15, Constitution of India, as it provides for the claim of permanent alimony and maintenance only to the wife, and not to the husband. The Court, while dismissing the challenge, held as follows:

“Section 37, Special Marriage Act is a special provision and even if it is opposed to the provision of Clause (1) of Article 15 of the Constitution which, in our opinion, is not, it is protected under Clause (3) of Article 15.

The conceptual fallacy in these judgements, protecting differential treatment on the basis of gender under the shield of “special provisions” can be understood in a better way, in light of a foreign case, which massively changed the course of the American sex jurisprudence, Frontiero vs Richardson[vi]. According to the US force Rules, serviceman could claim their wives as dependants, and get the requisite maintenance automatically. However, servicewomen had to prove the fact that their husbands as dependants to obtain the maintenance sum for them. So, while women could enjoy the benefits of their partners being in service, easily and smoothly, men had rigorous provisions for the same. This gender discriminatory aspect of the US service rules was challenged in the Court. The Supreme Court, while holding the impugned provision unconstitutional, held as follows: 

There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination. However, the sex characteristic frequently bears no relation to ability to perform or contribute to society. As a result, statutory distinctions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members”

The court pointed out the gender discrimination of such nature (as is there in the impugned provision) is rooted in the stereotypical belief that “the husband in our society is generally the “breadwinner” in the family – and the wife typically the “dependent partner”

Juxtaposing the position in the U.S. with that of India would lead us to realise the erroneous approach followed by the Indian judiciary, to make provisions in favour of one class. The purpose of the institution of Article 15(3) was to instil in substantive equality[vii], and in order to achieve that object, it constitutionalises differential treatment in the requisite areas. Using stereotypical grounds as a basis to differentiate between the two genders would totally defeat the purpose.

One path-breaking judgement in this respect is the Anuj Garg v Union of India[viii], wherein the Constitutional validity of Section 30 of the Punjab Excise Act, 1914 prohibiting employment of “any man under the age of 25 years” or “any woman” in any part of such premises in which liquor or intoxicating drug is consumed by the public was under challenge for violating Article 14, 15, Constitution of India. The Court held the provision to be unconstitutional on the ground of sex discrimination and violation of Article 15 and scrutinised the “double edged-sword like” nature of protective discrimination:

“It is to be borne in mind that legislation which pronounced “protective discrimination”, such as this one, potentially serve as double-edged swords. The impugned legislation suffers from incurable fixations of stereotype morality and conception of sexual role. The perspective thus arrived at is outmoded in content and stifling in means.”

However, this understanding of the legal principles, in this case, has not percolated in a lot of the later judgements, as is evident.

Conclusion:

It must be understood that the provision of Section 15(3) has been instituted to further the object of equality, and therefore, its ambit and applicability must be determined in the light of the same. Using this provision arbitrarily to favour women against men, would shake the identity of the “female gender”, prompting us to believe them as weak, and would destroy the constitutional mandate of equality, rather than promoting it.

It is, therefore, of extreme pertinence to gauge the meaning and scope of this provision which though is shrouded in the veil of unequal treatment, has equality in its core, in order to protect the constitutional value of equality, in the way it was instituted.

[i] INDIA CONST. art 15, cl. 1.

[ii] INDIA CONST. art 15, cl. 3.

[iii] Mt. Choki vs The State, AIR 1957 Raj 10

[iv] Ramesh Gajanan Reje v Gauri Ramesh Reje, 2015 SCC OnLine Bom 2436.

[v] Purnananda Banerjee vs Sm. Swapna Banerjee And Anr, AIR 1981 Cal 123.

[vi] Frontiero vs Richardson, 411 U.S. 677 (1973)

[vii] Smt. Shikha Srakar vs The State of West Bengal, W.P. 9776(W) of 2018

[viii] Anuj Garg v. Union of India, AIR 2008 SC 663


ABOUT THE AUTHOR

Paras Ahuja

IMG_20190619_232117_408

Paras Ahuja is a third-year law undergraduate at the National Law University, Jodhpur. She has immense interest in the field of Constitutional law and writes generally on the intersection of law and social issues.

Posted in Family Law

Fraud in Hindu Marriages: The Enlarged Understanding (Part II)

This is the second part in a series of two articles which discussed the idea of ‘Fraud in Hindu Marriages’. The first part can be found here, which dealt with the introductory part, and also the concepts of ‘Pre-requisites of Marriage’, ‘Fraud as a ground for dissolving marriages’, and ‘Annulment of Marriage’. This second and final part shall be dealing with the question of ‘Material fact’ and the conclusion.

Material Fact

Now, it becomes an important question as to what would constitute a material fact so as to constitute fraud under the said provision. Under Hindu law, fraud is considered to take place had the full disclosures of the fact prevented the marriage from manifestation at the first place.[1]

The Allahabad High Court has laid down the explanation in the case of Pradeep Kumar Maheshwari v. Anita Agarwal stating that [2] the term cannot be inflexibly or specifically laid down. Hence the parameters to categorise a fact as a material fact are given by the court as follows-

It (Material Fact) varies from one family to another, according to culture, ethos and social system in ages and situation. For example in a conservative family having attachment with puritan society in a marriage inevitable and unerring expectation is that both the bride and groom must not have any record of prior marriage in any sense nor will have any marriage in any sense, not even any premarital affairs with other boy or girl (as the case may be). They cannot think of even marrying outside their caste and community, conversely, a family with liberal and cosmopolitan approach, thought, particularly in urban area will not mind in case of marriage even having knowledge of background of prior marriage or premarital affair with other counter sex outside their caste and community. In case of former, concealment of caste, community or background of prior marriage or premarital affairs before or at the time of marriage is obviously extremely material and it amounts to fraud in obtaining consent.”

Such a rendition of the material fact opens flood gates for interpretations and constructions. One may always argue, hence, that the pre marital status of a party at the time of the marriage would not amount to be a material fact if the context is of an urban mileu and metropolitan arena. Hence while navigating through the decisions of the courts of law, one may get the perspective in which the laws have changed and taken different facts to be material facts.

Before 1976

Under the then provision, the law was clear which said that if the person freely consents to the solemnisation of marriage under the Act with the other party in accordance with customary ceremonies, later the marriage cannot be objected to on grounds of fraudulent representation or concealment.[3]

In the landmark case of Anath Nath De v. Smt. Lajjabati Devi[4], the concealment of the fact by the wife that she suffered from curable tuberculosis was not held to be fraud for nullifying the marriage. The court came to the conclusion relying on the proposition that fraudulent misrepresentation, or concealment, does not affect the validity of a marriage to which the parties freely consented with knowledge of the nature of the contract.[5]

‘Chastity of woman’ came in question and it was contended that the same should be considered a material fact in the case of Surjit Kumar Harichand v. Smt. Raj Kumari[6]. But the Hon’ble High Court categorically held that suppression of such a fact, which is a mere personal quality do not relate to the existence of marriage, hence it won’t amount to fraud.

Taking further the limited understanding of the material fact and fraudulent representation, the Madhya Pradesh High Court in Rajaram Vishwakarma v. Deepabai,[7] the fact that husband had been married in the past and had a wife was not considered to be a material fact since the “fraud” pertains only to the solemnisation of marriage.

After 1976

In the case of Balbir Kaur v. Meghar Singh, the fact of the left side of the wife being deformed was not being disclosed. Since she was found disabled and the court took notice of the conscience of the Parliament in inserting new grounds for categorising an action as fraud in 1976, the same was held to be fraud and the marriage was dissolved.

Contrary to the view taken in the earlier cases as shown above, the Calcutta High Court recently ruled in the case of Saswati Chattopadhyaya v. Avik Chattopadhyaya[8] that the premarital status is a material fact since the same is related to the position of the person and the definition of fraud is no more limited to the solemnisation of marriage. The same was earlier held by the Delhi High Court as well in the case of Rajinder Singh v. Pomilla.[9]

Similarly, non-disclosure of illness is again a material fact contrary to the Calcutta High Court ruling in Ananth Nath case as cited above. The same was held in the case of Govindan Embranthiri v. Poolakkal House[10] by the Hon’ble Kerala High Court. Similarly, insanity is also a material fact under the law now as held by the same High Court.[11]

Conclusion

The said exposition of the law related to the ground of fraud for invalidating the Hindu Marriage leads to the conclusion that the provision is balanced and wide enough to cure wide forms of injustice. The 59th Law Commission of India Report, 1974,[12] which led to the said amendment in 1976 stated the purpose for the insertion of the additional clauses, as “No doubt scope should not be left for all kinds of flimsy excuses for avoiding the marriage on the ground of fraud. But, at the same time, serious injustice is likely to result if fraud affecting vital matters (such as absence of a particular disease) is totally disregarded”. The Commission did not find any reason for non- interference if one party is cheated by the other party on grounds of essential matters. Hence, the law had been modified accordingly.

But at the same time, a humane and equitable approach has also been found in the effort of the courts to conserve the institution of marriage. In the case of V. Shankar Ram v. Sukanya[13], where the husband raised the plea of impotency of the wife not being disclosed to him, apart from insufficiency of evidence, the court also considered the fact that the Hindu Brahmin wife likes her husband and still wants to live with him. Thus, the court dismissed the appeal with the interesting observation that “marriages are made in heaven”. The court called on the parties to forget the past and always look for the possibility of reconciliation. This gives an optimist turn to the otherwise derailing institution of marriage as it so appears. But as the times are changing, lots of questions are in front of all of us whether this heaven made institution is sustainable or not. I think only the time will aptly answer this question.

[1] J.D.M. Derrett, Introduction to Modern Hindu Law 193 (Oxford University Press 1963).

[2] Pradeep Kumar Maheshwari v. Anita Agarwal, 2018 (131) ALR 566.

[3] Raghunath Gopal Daftardar v. Vijaya Raghunath Daftardar (1970) 73 Bom. L.R. 840.

[4] AIR 1959 Cal 778.

[5] Rayden, Rayden on Divorce 72 (Butterworths Law 1998).

[6] AIR 1967 P&H 172.

[7] AIR 1974 MP 52.

[8] F.A. 337 of 2007 (Cal HC).

[9] AIR 1987 Del 285.

[10] AIR 2017 Ker 168.

[11] Joy v. Shilly 1995 KHC 349.

[12], 59th Law Commission of India Report on Hindu Marriage Act, 1955 and Special Marriage Act, 1954, March, 1974, 63, Law Commission of India.

[13] AIR 1997 Mad 394.


ABOUT THE AUTHOR

Rishab Aggarwal

20190705_135950

Rishab is a third-year law student from Gujarat National Law University. He is the Editor of International Review of Human Rights law and was adjudged Best Student Advocate at the Symbiosis International Criminal Trial Advocacy Competition 2019. He has interned under Hon’ble Chief Justice of Punjab and Haryana High Court and Senior Advocate Geeta Luthra.

Posted in Family Law

Fraud in Hindu Marriages: The Enlarged Understanding (Part – I)

As referred to as a “partnership” between husband and wife,[1]  marriage has been considered as a linchpin of the social and moral order.[2] It has been termed as a ‘significant’ social institution which has various aspects in its social history.[3] It is ‘a human institution which is regulated by law and protected by the Constitution and which, in turn, creates genuine legal duties.[4] Such duties envelope the person either in the form of a sacrament, as Hindus put it, or as a holy union or contract as others describe it’.[5]

In this article, we shall explore into the breach of such duty created in law for Hindus. In doing so, we’ll be dealing with the subject matter in two parts (the second part is available here), and following sections, for the convenience of the reader:

  1. Pre-requisites of Marriage
  2. Fraud as a ground
  3. Annulment of marriage
  4. Material fact
  5. Conclusion

Pre-requisites of marriage

Hindu marriages, according to Vedas, is an ‘indissoluble’ union of “bones with bones, flesh with flesh and skin with skin, the husband and wife become as if they are one person.”[6]As referred to as indissoluble, even after the death of the husband, the tie is not dissolved. But, in ancient texts, in case of five calamities, the wife is permitted to have another husband, i.e., in the cases of-

  1. Husband being missing
  2. Husband being dead
  3. Husband retired from the world
  4. Husband being impotent
  5. Husband as degraded

In the modern realm, Parliament has enacted certain conditions for the effectuation of marriage for the Hindus.[7] The conditions are as follows-

(i) neither party has a spouse living at the time of the marriage;

2 [(ii) at the time of the marriage, neither party—

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c) has been subject to recurrent attacks of insanity 3 [***];]

(iii) the bridegroom has completed the age of 4 [twenty-one years] and the bride, the age of 5[eighteen years] at the time of the marriage;

(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;

(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;

The marriage can be nullified on the ground of non-fulfilment of these conditions which renders the marriage as void[8] or voidable[9] as the case may be. One such occurrence takes place in the case of fraud as mentioned in section 12 (1) (c). It makes the marriage as voidable, i.e. valid until the court declares it invalid.

Fraud as a ground

From being a vitiating factor in invalidating the contracts to being a ground for imprisoning the party at default, fraud is a reverberating concept across different laws. Primarily and distinguishably present in Section 17 of the Indian Contract Act,[10]  which elaborately juxtaposes various elements of fraud as under-

‘Fraud’ means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent1, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract\:—”

(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;

(2) the active concealment of a fact by one having knowledge or belief of the fact;

(3) a promise made without any intention of performing it;

(4) any other act fitted to deceive;

(5) any such act or omission as the law specially declares to be fraudulent.

Even under the Criminal law, fraud finds a mention through Section 25 of the Indian Penal Code which defines “fraudulently” as doing a thing with “intent to defraud” but not otherwise, hence stressing on the “mens rea” of the person. The cliché legal jargon of “Chaar Sau Bees” that finds constant mention in movies and conversational references, is the Section 420, Indian Penal Code[11] that is a special case of occurrence of cheating and dishonest misappropriation of property. Through Sections 421, 422, 423 and 424 of Indian Penal Code, Fraud runs as the sea bed of the different curves of legal illustrations for punishing the fraudulent exercise.

The same element if present in the creation of the institution of marriage can lead it to be dissolved. Under Section 19 of the Indian Divorce Act, the High Court is empowered to pass the decree for nullity of marriage if the consent of either party was obtained by force or fraud.[12] For Hindu marriages, the marriage can be nullified as being voidable if the consent of either party or his guardian, as the case may be, was obtained from force or fraud. In 1976, this was amended with the Marriage Laws (Amendment) Act, 1976, adding the terminology ahead of fraud, “as to the nature of ceremony or as to any material fact or circumstance concerning the respondent”[13]. This shows that the definition of fraud includes the consent, not only to marry but also to marry a particular person.[14] Such a tool goes to attack the very inception of marriage and demolishes its institution.

Annulment of Marriage

As pointed out above in the provision of contract law, the two important elements of fraud are found in the form of suggestio falsi (suggestion of falsehood)[15] and suppresio veri (suppression of fact)[16]. Their existence in the marriage laws is found through the courts’ considerations and decisions for annulling the marriage. If the fact that the husband had major children at the marriage was not disclosed, it has been considered to be tantamount to fraud under Section 12 (1) (c) of the Hindu Marriage Act, 1955.[17] Similarly, if the age of the bridegroom has been suggested falsely to the bride’s side, it would take the umbrage of fraud and become a ground of nullity of marriage.[18]

But this collocation must not be understood to take both the provisions as pari passu. It has been categorically held by the courts that the definition of fraud as provided under Section 17, Indian Contract Act cannot be attributed in a same meaning to the mention of fraud under Section 12 (1) (c) of the Hindu Marriage Act.[19] The simple reason is the latter being a special enactment and the earlier being a general law.[20] On this ground, the single bench decision of Madhya Pradesh High Court in Bimla Bai v. Shankerlal[21], wherein the marriage was invalidated on grounds of fraudulent misrepresentation under the Indian Contract Act, was dissented to later by the Bombay High Court in the case of Raghunath v. Vijaya[22]. The Division Bench of the Madhya Pradesh High Court later itself approved the latter.[23]

Hence the distinguishing thread between the two doctrines is that the fraud under the marriage law must be interpreted to mean such circumstances or conditions as to show want of real consent to the marriage.[24] ‘Fraud’ within the meaning of Section 12 (1) (c) is such which procures the appearance without the reality of consent and thereby becomes an act fitted to deceive.[25] If the person freely consented to the solemnisation of marriage with full knowledge of the nature of ceremonies and intention to marry, then the objection of the validity of the marriage cannot be taken.[26]

The rationale is to secure a free consent of the party entering into marriage. Hence the intention has to be respected. As has been categorically held that if a party underwent the ceremony of marriage without any intention to regard it as a real marriage, the marriage would be liable to be annulled.[27] On similar lines, the marriage with of an English girl with an Indian was held to be void since no intention existed to marry, since she understood the ceremony to be the one of her conversion to Hindu faith.[28] Same was the fate of a marriage which was considered to be a mere engagement ceremony.[29] Thus, intention is a crucial element that has to be fair and pure for the marriage to exist and survive.

Hence, the provision under the Section 12 (1) (c) balances between the wide and narrow interpretation of the term, “fraud”, since, the provision neither speaks of fraud in a general way nor does it include every concealment or misrepresentation so to say. As defined as “deceit”[30], before the 1976 amendment, the marriage could be invalidated only if the consent is taken on account of deceiving for marriage. But after the amendment, the emphasis is no more on the factum of marriage but to any case where there is a deception as to any material fact or circumstances concerning the respondent.[31] This is an enlargement of the scope for invalidating the marriage for the parties so engaged in wedlock.

In the next part, we shall delve into discussing what shall constitute a material fact so as to constitute fraud.

[1] R. v. R., (1991) 4 All ER 481 (HL).

[2] Bonnie G. Smith, The Oxford Encyclopaedia of Women in World History 30 (Oxford University Press 2008).

[3] Joseph Shine v. Union of India, (2019) 3 SCC 39.

[4] De v. Rh, (2015) 5 SA 83 (CC).

[5] Amarjit Paul Singh v. Kiran Bala, PLR (1985) 88 P&H 151.

[6] 2 Shyama Charan Sarkar Vidya Bhusha, Vyavastha Chandrika, a Digest of Hindu Law, as Current in All the Provinces of India, Except Bengal Proper, Comprising Vyavasthas or Principles Deduced From Sanskrit Books of Paramount Authority, Viz:- The Mitakshara, Vira- Mitrodaya 480 (Gale, Making of Modern Law 2013).

[7] Hindu Marriage Act, 1955, § 5, No. 25, Acts of Parliament, 1955 (India).

[8] Hindu Marriage Act, 1955, § 11, No. 25, Acts of Parliament, 1955 (India).

[9] Hindu Marriage Act, 1955, § 12, No. 25, Acts of Parliament, 1955 (India).

[10] Indian Contract Act, 1872, § 17, No. 9, Acts of Parliament, 1872 (India).

[11] Indian Penal Code, 1860, § 420, No. 45, Acts of Parliament, 1860 (India).

[12] Indian Divorce Act, 1869, § 19, No. 4, Acts of Parliament, 1869 (India).

[13] Hindu Marriage Act, 1955, § 12 (1)(c), No. 25, Acts of Parliament, 1955 (India).

[14] D. Tolstoy, Law and Practice of Divorce and Matrimonial Causes 112 (Sweet & Maxwell 1951).

[15] Indian Contract Act, 1872, § 17 (1), No. 9, Acts of Parliament, 1872 (India).

[16] Indian Contract Act, 1872, § 17 (2), No. 9, Acts of Parliament, 1872 (India).

[17] Sunder Lal Soni v. Smt. Namita Jain, AIR 2006 MP 51.

[18] Babui Panmate v. Ram Agya Singh, AIR 1968 Pat 190.

[19] Anurag Anand v. Sunita Anand, AIR 1997 Del 94.

[20] Nandkishore vs Smt. Munnibai, AIR 1979 MP 45.

[21] AIR 1959 MP 8.

[22] AIR 1972 Bom 132.

[23] Madhusudan v. Chandrika, 1975 MPLJ 381.

[24] Smt. Renu Singh vs Brijendra Singh, W.P.(Art. 227)No.739/2016 (Chh HC).

[25] Id.

[26] Dinshaw Fardunji Mulla et. al., Hindu Law 682 (Lexis Nexis 2013).

[27] Shireen v. Taylor, AIR 1952 P&H 277.

[28] Mehta v. Mehta, (1945) 2 All ER 690.

[29] Kelly v. Kelly, (1933) 148 LT 143.

[30] Chambers, The Chambers Dictionary 435 (John Murray Learning 2011).

[31] Nalini Kumari v. K.S. Bopaiah, 2007 (1) Kar LJ 342.


ABOUT THE AUTHOR

Rishab Aggarwal

20190705_135950

Rishab is a third-year law student from Gujarat National Law University. He is the Editor of International Review of Human Rights law and was adjudged Best Student Advocate at the Symbiosis International Criminal Trial Advocacy Competition 2019. He has interned under Hon’ble Chief Justice of Punjab and Haryana High Court and Senior Advocate Geeta Luthra.

Posted in Criminal Law

Violence against Doctors: Will Stricter Laws be Enough?

Background:

On June 10, 2019, a doctor and an intern were seriously assaulted by the relatives of a deceased patient, who alleged medical negligence on the part of the healthcare staff, at the NRS Medical College and Hospital, Kolkata. This sparked off a week-long face-off between the doctors and the government in the State of West Bengal. The medical fraternity protested against the inaction of the government and went on a strike, paralysing the health care system of the State. The protests garnered solidarity of the entire country, and similar strikes followed in other cities, orchestrated by the Doctors’ Associations.

Such incidents of sickening violence against healthcare workers have become a regular occurrence, and have traced similar course with no respite and addressal to the underlying problem. According to the reports of the Indian Medical Association, more than 75% of the doctors have faced some form of violence.[1]

Violence against healthcare workers is a global occurrence, and the numbers are only soaring everywhere, including the USA[2] and the UK[3]. The Universal Declaration of Human Rights, in Article 3, guarantees the right to life, liberty and security to everyone. However, this basic human right has remained elusive to the healthcare fraternity over the years.

Constitutional Rights of Healthcare Workers:

The doctors and the other healthcare workers are constitutionally entitled to be protected from violence. Apart from holding the perpetrators of violence liable under criminal law, which has been primarily done in most cases, it is important that the State is also brought to question for failure to protect the fundamental rights of the healthcare personnel.

Article 19(1)(g)[4] of the Indian Constitution guarantees the right to practice any profession. In Vishaka v. State of Rajasthan,[5] the Supreme Court had held that the fundamental right to carry on any profession depends on the availability of a ‘safe’ working environment, which has not been a case for the healthcare personnel. Violence against them is, further, a clear violation of Article 21’s Right to life and Liberty[6], which the State was obligated to protect.

Need for Changes in Policy Structure:

The incidents of violence against doctors meet the characteristically same fate, almost every time. The Junior doctors go on strike, senior doctors pay token heed to their cause, medical associations provide meagre participation, and this, finally, ends with a demand for stricter laws and increased security, which are only formally agreed to by the government. The present case was no different, according to the reports.[7] Even the Supreme Court declined[8] an urgent hearing of the PIL regarding safety and security of doctors at government hospitals, as the strike had been called off by the doctors, pointing to the ignorance of the judiciary of the ground realities of the vulnerability of the healthcare personnel.

Nineteen Indian States have adopted certain legislations in order to “prohibit violence against medicare service persons and damage to property of Medicare service institutions.” However, there is a lack of a central legislation dealing with the issues of such violence. India being a plethora of legislations, with a quite dismal rate of application and enforcement of these laws, it is no wonder that even the existing laws haven’t been implemented efficiently.

However, the more pertinent question remains is that will stricter criminal law against the violent relatives of the patients, suffice in curbing the issues of violence. Such assaults are not pre-meditated, and rather are impulsive responses in emotional moments, which is clearly irrational. Any stricter law would not bring him back to rationality in such moments, and hence, the need is to address the policy structures, rather than merely punishing the perpetrators under criminal law, who himself is a victim of flawed policies of the State.

The Way Forward:

In India, the increased vulnerability of the doctors based on the perception that the doctors are negligent while rendering their services, and needs to be addressed, by bridging the communication gap between the stakeholders.

It can also be associated with the high costs of healthcare services, for a relatively and absolutely poor population. The public institutions lack enough resources to provide efficient healthcare, due to a meagre healthcare budget of the State. Hence, the people are forced to seek services of private institutions, which are costly and increases the expectations of the people to unrealistic levels, at times.

The requirement of reviewing the policies for the safety of healthcare workers is urgent, and it can be protected only by means of increasing the efficiency of the public institutions, the security of institutions and setting up an effective grievance redressal mechanism for the patients if there is a dismal quality of service provided to her. In the present case, there has been relatively less discussion about setting up an efficient grievance redressal mechanism, which could have become a viable alternative for patients to get their concerns addressed, rather than resorting to violence.

Adding yet another legislation to the growing pile would certainly not be enough to ensure the safety of the healthcare personnel. The need for policy changes at the very ground level is very imminent, which needs to be recognised by the State.

[1] N. Nagpal, Incidents of violence against doctors in India: Can these be prevented?, 30 National Medical Journal of India 97 (2017).

[2] J.P. Phillips, Workplace violence against health care workers in the United States, 374 New England Journal of Medicine, 1661 (2016).

[3] Robert Pigott, NHS Health Check: ‘Most staff have been attacked’, doctor says, BBC News, February 10, 2017, https://www.bbc.com/news/health-38917156.

[4] India Const. art. 19, § 1, cl. g.

[5] AIR 1997 SC 3011.

[6] India Const. art. 21.

[7] Ahead of meeting with Mamata Banerjee, doctors put forward 12 new demands, India Today, June 17, 2019, https://www.indiatoday.in/india/story/ahead-of-meeting-with-mamata-banerjee-doctors-put-forward-12-new-demands-1550562-2019-06-17

[8] Day after doctors call off strike, SC refuses urgent hearing on plea seeking increased security, Indian Express, June 19, 2019, https://indianexpress.com/article/india/supreme-court-doctors-security-protest-west-bengal-5786060/.


ABOUT THE AUTHOR

Isha Goel

IMG-20190703-WA0002_01

Isha Goel is a third-year law student from National Law University, Delhi. She has a keen interest in commercial laws and is an arbitration enthusiast.

Nitesh Mishra

IMG_20171125_131842_754

Nitesh Mishra is a third-year law student from National Law University, Delhi. His keen interests lie in criminal law and IPR. He is an active legal blogger and also a Student Fellow at Centre for Innovation, Intellectual Property and Competition (CIIPC).