Mentoassociates.com – Legal Articles

An agreement which is not enforceable by law is said to be a void agreement. An agreement which can be enforceable by law is said to be a contract. The Indian Contract Act, 1872, enlists the following cases as void agreements.

1) All agreements are void if considerations and objects are unlawful. The consideration or objects are unlawful, if it is forbidden by law, is fraudulent, involves injury to the person or property of another, is immoral, is against public policy or has tendency to defeat the provisions of any law.
2) An agreement without consideration is void unless it is in writing and registered and is made between closely related parties on account of natural love and affection.
3) Agreement in restraint of marriage, other than that of a minor, is void.
4) Every agreement by which any one is restrained from exercising a lawful profession, trade or business of any kind, is to that extend void.
5) Agreement by which any party is barred from enforcing his rights through legal proceedings is void.
6) When there is no certainty in the agreement, the same is void
7) Agreements by way of wager are void.
8) Contingent agreements on impossible events are void.
9) Where both the parties to an agreement are under a mistake as to a matter of fact essential to an agreement, the agreement is  void.

There are about 20 million People of Indian Origin found all over the world. A PIO is one who has held an Indian passport anytime earlier or whose parents or grandparents or great grand parents were citizens of India having born and permanently resided here. However citizens of Pakistan and Bangladesh cannot be a PIO.

The Government of India started the PIO card scheme with effect from 31-03-99. As per a union home ministry 2002 notification, PIO card is provided even to foreign nationals married to Indian citizens or PIO. There is an international association of PIO called Global Organization of People of Indian Origin (GOPIO). 

There are several advantages for a person with a PIO card. They are entitled for visa free entry into India, have equal rights as NRI over property matters, their children can study in Indian institutions under NRI category. They need not report their presence in FRRO (Foreigners Regional Registration Office) up to 180 days. After 180 days, they need to report their presence to the nearest FRRO, within 30 days. However they have no political or voting rights in India.

PIO who are out of India can apply for the PIO Card, through concerned Indian embassy/High commission /Consulate. Those who are in India on a long term visa for more than one year can apply through concerned FRRO at Delhi, Mumbai, Chennai and Calcutta. Those living in other areas can apply to Joint Secretary (Foreigners), Ministry of Home Affairs located at 1st floor, Loknayak Bhavan, Khan Market, New Delhi. Citizens of Pakistan and Bangladesh cannot get PIO card. Government can reject an application without assigning any reason.

Documents required may include:
A) For applications based on spouse:
a) Original Indian passport of wife/husband
b) Original PIO card of husband / wife
c) Original marriage certificate

B) For applications based on PIO definition:
a) Parent’s birth certificate
b) Grand Parent’s or Great Grand parent’s birth certificate 
Apart from this there may be other documents asked by the authorities at the time of filing of the application.

This is a very important piece of legislation giving vital rights to woman employees. It applies to women employed in factories, mines, plantations, shops or establishments in which 10 or more persons are employed. As per section 4 of the act, employers are prohibited from employing a woman during the six weeks following the day of her delivery, miscarriage or medical termination of pregnancy. Even woman are not permitted to work in any establishment during 6 weeks following the day of her delivery. A pregnant woman has a right to take leave on a request to her employer for a period of one month preceding the period of 6 weeks, before her date of delivery, if she is employed in an arduous work, or one which involves long hours of standing, or something adversely affecting her health or the normal development of the foetus. Every woman is entitled to the payment of maternity benefit at the rate of average daily wage for the period of her actual absence for delivery. The maximum period for which any woman shall be entitled to maternity benefit shall be twelve weeks of which not more than six weeks shall precede the date of her expected delivery. A woman employee can issue a notice to her employer stating that the maternity benefit to which she is entitled may be paid to her or her nominee and that she will not work for the period of maternity benefit. The said notice shall state the date from which she will be absent, date shall not be earlier than six weeks from the date of her expected delivery.Every women entitled to maternity benefit is also entitled to receive from her employer a medical bonus of Rs.250/-. In case of miscarriage or MTP, a woman shall be entitled to leave with wages for a period of 6 weeks following the miscarriage or MTP. In case of tubectomy, a woman shall be entitled to leave with wages for a period of two weeks immediately following the day of tubectomy.A women suffering from illness rising out of pregnancy, delivery, premature birth, miscarriage, MTP or tubectomy shall be, in addition to the normal maternity leave, entitled to leave with wages for a maximum period of 1 month.Every woman, who has delivered  a child, who returns to duty after such delivery is entitled to two breaks for nursing her child, during the daily course of her work, until her child attains the age of 15 months.The act also provides for appointment of inspectors who have wide powers for the enforcement of various provisions of the act. Further there are various penalties imposed on the employers who violate the provisions of the act. In addition, it is the duty of every employer to exhibit an abstract of the Maternity Benefit Act, 1961 in a conspicuous place in every part of an establishment in which women are employed.

Recently an order was passed by the Central Government which will benefit women working in government sector. Accordingly a women is entitled for a maternity leave of 180 days and paid leave upto two years for child care.

A marriage between an Indian citizen and a foreign citizen can be registered in India, under the Special Marriage Act, 1954. The conditions are:

a) The male should complete 21 years and the female should complete 18 years.

b) Both the parties should have soundness of mind to give a valid consent and they should not be having any mental disorder or insanity.

c) The parties should not have a spouse living at the time of the marriage.

The parties shall give a notice of intention of their marriage to the marriage officer within whose jurisdiction, at least one of them reside. The marriage officer will publish a copy of such notice in his office and will also send a copy of the notice to the office of the marriage officer, within whose jurisdiction the other party resides. Any person having any objection to the marriage should intimate the marriage officer, within 30 days of the publication of the above notice. On receipt of any objection, the marriage officer shall enquire into the same and pass an order in this regard. If the marriage officer upholds objection and refuses to solemnize the marriage, then the aggrieved party has to approach the district court for an appeal.  If the marriage officer overrules the objections, then the marriage can be solemnized. Three witnesses are required to sign a declaration witnessing the solemnization of the marriage. After the solemnization, the marriage officer will issue a certificate of marriage. The normal documents required are age proof, address proof and identity proof documents, in addition to photographs.

NRIs and PIOs can purchase residential and commercial property in India. To purchase agricultural and plantation lands, they require special permission of the Reserve Bank of India.Foreign nationals of non-Indian origin, who are resident outside India, cannot purchase immovable property in India. But they can take a property on lease for residential purpose, for a term not exceeding more than 5 years. A foreign national who is a person resident in India can purchase immovable property, provided they take all the approvals from the concerned state government and other authorities. However, this benefit is not applicable for the citizens of Nepal, Bhutan, Bangladesh, Afghanistan, Pakistan, Sri Lanka, Iran and China. Citizens of these countries require prior permission from Reserve Bank of India.A foreign company which has a place of business in India is entitled to acquire immovable property in India for the purpose of undertaking activities of such a company. Again companies which are incorporated in Nepal, Bhutan, Bangladesh, Afghanistan, Pakistan, Sri Lanka, Iran and China having place of business in India need prior approval of Reserve Bank of India  to acquire immovable property.

NRIs and PIOs can acquire immovable property in India by way of gift from a person resident in India, NRI or a PIO. However, only residential and commercial properties can be acquired by way of gift. Agricultural and plantation properties cannot be acquired by way of gift. NRIs and PIOs and can inherit immovable property from a person resident in India, NRI or a PIO. However citizens of Nepal, Bhutan, Bangladesh, Afghanistan, Pakistan, Sri Lanka, Iran and China need prior permission of the Reserve Bank of India in this regard. For NRIs and PIOs, the payments required for purchasing immovable property in India shall come through funds remitted through normal banking channels or from funds in NRE, NRO, FCNR (B) accounts of the person held in India. No payment can be made outside India for this purpose. The funds required for the property purchase by a foreign company having a place of business in India shall come through foreign inward remittance. After the purchase of the property, necessary intimation shall be given to the Reserve Bank of India in this regard. The sale proceeds of such a property can be repatriated only with the permission Of Reserve Bank of India.

With the Stamp Duty on various instruments in Karnataka being on the higher side, people have a tendency to undervalue the market value of the properties for the sake of saving the stamp duty and registration fee. This is particularly in the case of instruments of conveyance, gift, exchange etc.The Deputy Commissioner of Stamps can on his own call for and examine an instrument to check the correctness of the market value of the property and also the duty payable on the market value. This suo moto power can be exercised by the Deputy Commissioner only within two years, from the date of registration of the instrument. Even if, the market value of the property shown in the instrument is equal to or slightly more than the guidance value,the Deputy commissioner has the power to call for and examine the instruments.The Deputy Commissioner normally issue a notice to the parties concerned  and after hearing them and examining the documents produced by the parties, he may pass an order determining the correct market value of the property, if according to him, the market value of the property was not truly set forth in the instrument. The Deputy Commissioner can also order the difference in the stamp duty to be paid by the person. If the person so directed does not pay the differential stamp duty within 90 days from the date of the order, interest is applicable at the rate of 12% per annum.

The registering officer who has the power to register a document has the power to communicate the esteemed market value of a property to the parties. If the parties are not ready to pay the communicated market value, he has the power to keep pending the process of registration and refer the matter to Deputy Commissioner for determination of the market value and the stamp duty.

 Any person aggrieved by the order of the Deputy Commissioner may prefer an appeal before the District judge within 2 months from the date of communication of the Deputy Commissioner’s order provided; he has deposited 50% of the difference in the amount of duties as determined by the Deputy Commissioner.

    All duties required to be paid by a person under the Karnataka stamp act along with the interest thereon may be recovered by the Deputy commissioner by distress and sale of the movable property of the person from whome the same are due or by any other process for the time being in force for the recovery of arrears of land revenues. 

For a residential complex to be eligible for levy of Service tax, it should have the following three essential features:

 a) Should have more than 12 units

 b) Should have a common area

 c) Should have common facility or services like park, community hall, lift etc.

There are several cases where a person can avail exemption from the imposition of Service tax. Service tax is not applicable, in the following cases.

a) If the residential complex is shaving only 12 or less than 12 units.

b) If the residential complex is constructed by an individual for his personal use.

c) Direct purchase of residential unit from a builder without availing the service of a building contractor.

Post construction services pertaining to residential complex are also treated as construction activity for the purpose of Service tax.

 If the builder constructs a residential complex without engaging the services of a contractor (service provider), then he cannot claim the service tax from the apartment purchasers. Similarly, it is the primary duty of the contractor to pay the service tax, and not the builder or the apartment purchaser. If the condition to pay the service tax is not mentioned in the sale agreement, then the apartment purchasers need not pay the service tax to the builder. 

As per traditional rules,a Muslim husband can divorce his wife when ever he desires without assigning any specific reasons. Divorce petition initiated by a Muslim husband is called Talak. The Talak may be oral or in writing. A divorce by Muslim husband through spoken words is oral Talak. When it is through a written document, it is called a Talaknama. For an oral Talak there are no specific words prescribed. The words of Talak should be clear and it should convey the intention of divorce. The Talak need not be pronounced in the presence of the wife.A deed of divorce by a Muslim husband is called a Talaknama. Normally Talaknama is executed in the presence of Kazi or the wife’s father or other witnesses. The Talak may be effected by a simple pronouncement or by three pronouncements. A husband may delegate the power to divorce to the wife or to a third party and such a delegate may pronounce the divorce. In general the Talak is a divorce proceeding that is initiated by a husband wherein the wife has no say in the proceedings.

Supreme Court in Shamim Ara-vs- State of UP and another has held that talak shall be preceded by attempts for reconciliation and shall be for a reasonable cause. The reconciliation between the husband and wife shall be conducted by two arbiters, one chosen by the wife from her family and the other by the husband from his family. Any talak, in violation of the same can be legally challenged by the wife. Hence there is no more absolute power on a Muslim husband to divorce his wife at his whims and fancies. The Karnataka High Court in Zulekha Begum @ Rahmathunnissa Begum -vs-Abdul Raheem held that a Mohammedan husband cannot divorce his wife at his whim or caprice.

A Muslim marriage may also be dissolved by an agreement between the husband and wife. There are two types of divorces by mutual consent: Khula and Mubarat.

 In Khula divorce, the proceedings are at the instance of the wife wherein the wife agrees to give a consideration to the husband to release her from the marriage. 

Mubarrat is another form of consent divorce between a Muslim husband and wife. Here the initiative may be taken from either husband or wife. This also takes place with an agreement.

A Muslim wife may file a suit for the dissolution of marriage before the competent court under the dissolution of Muslim Marriage Act 1939.  The following are the grounds under which a Muslim wife can obtain a decree for the dissolution of her marriage.

1) that the whereabouts of the husband have not been known for a period of four years.

2) that the husband has been sentenced to imprisonment for a period of seven years or upwards

3) that the husband has neglected or has filed to provide her maintenance fir a period of two years.

4) that the husband has failed to perform without reasonable cause his marital obligations for a period    of three years.

5) that the husband was impotent at the time of marriage and continues to be so

6) that the husband is suffering from leprosy or virulent venerable diseases.

7) That she, having been given marriage by her father or other guardian before she attain the age of    fifteen years, repudiated the marriage before attaining the age of eighteen years.

 Another ground for a Muslim wife to approach the court of law for dissolution of marriage is cruelty  from the part of her husband. The court will consider cruelty as a ground to dissolve the marriage if  the husband

a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does     not amount to physical ill-treatment               

b) associates with women of evil repute or leads an infamous life              

c) attempts to force her to lead an immoral life

d) disposes her property  or prevent her exercising her legal rights over it,

e) obstructs her in the observance of her religious profession or practice

f) if he has more wives than one, does not treat her equitably in accordance with the instructions of the Quran.

After the divorce proceedings are completed, the parties have the right to enter into another marriage. If the marriage was consummated the wife has to wait for the completion of iddat before her remarriage. If the marriage is not consummated, she may marry immediately. On divorce being completed the amount of dower due to a wife becomes immediately payable. 

There is a prescribed time period within which a person, who has been denied of any rights or who wants any particular relief from a court or an authority shall apply to the concerned authority. Law does not come to the assistance of a person who sleeps over his rights. With these objectives, The Limitation Act, 1963 was enacted.

 
 There is a bar of limitation for suits, appeals and applications which are made after a prescribed period and if made after the prescribed period, then they will be dismissed. If the prescribed period for a suit, appeal or application expires on a day when the court is closed, the same may be instituted on the day the court re-opens.

 A court has the power to admit an appeal or an application made after the prescribed period, if the party satisfies the court that he had sufficient cause for not preferring the appeal or application within the specified period. If a person has a legal disability, like insanity or minority, he can file a suit or apply to execute a decree, within the period of limitation after the legal disability ceases.

 While computing the period of limitation, the time period spent in obtaining the certified copy of the order of the lower court, which is being challenged, can be excluded.

 In calculating the period of limitation for which a notice has been given or which the previous sanction of the government or any authority is required, the period of such notice or the time required for such consent shall be excluded.

 In computing the period of limitation of any suit the time during which the defendant has been absent from India shall be excluded. If a person who has the right to institute a suit or make an application dies before the right accrues, then the period of limitation will be computed from the time when there is a legal representative of the deceased.

 In the case of any suit or application which is based upon the fraud of the respondent or is based on the consequences of a mistake the period of limitation shall begin from the point the applicant has discovered the fraud or mistake. Where after the institution of the suit, a new plaintiff or defendant is substituted or added, the suit shall as regards him be deemed to have been instituted when he was so made a party.

 In the case of a suit for compensation for an act, which does not give rise to a cause of action unless some specific injury actually results there from, the period of limitation shall be computed from the time when the injury results.

Information Technology Act 2000 enlists various cyber offences and their punishments. The Acts gives serious punishment for tampering with computer source documents. Whoever intentionally conceals, destroys or alters any computer source code is liable for punishment with imprisonment up to 3 years or with fine which may extend up to Rs.2 lakh or with both. 

The Act views hacking with utmost seriousness. Whoever with intension to cause a wrongful damage to the public or any person destroys, deletes or alters any information residing in a computer resource commit hacking. Whoever commits hacking shall be punished with imprisonment up to 3 years or with fine which may extend upto Rs.2 lakh or with both.

  Whoever publishes information which is obscene in electronic form shall be punished with imprisonment which may extend to 5 years and with fine which may extend to Rs.1 lakh.  In the event of a second conviction for a similar offence, then imprisonment may extend to 10 years and with fine which may extend to Rs.2 lakhs.

  A certifying authority or any employee of such authority who fails to comply with an order of the controller may be punished with   imprisonment for a term not exceeding 3 years and also with fine not exceeding Rs.2 lakhs or both.

 If the subscriber or any person in-charge of any computer resource fails to assist any agency of the government when ordered to intercept any information transmitted through any computer resource, he may be punished with imprisonment for a term which may extend to 7 years. Similarly any person who secures access or attends to secure access, to a protected system will be punished with imprisonment for a term which may extend to 10 years and also be liable to fine.

Whoever makes any misrepresentation to or suppresses any material fact from the controller or the Certifying Authority for obtaining any license or Digital Signature Certificate, may be punished with imprisonment which may extend to 2 years or with fine which may extend to 1 lakh or with both.

Whoever knowingly creates, publishes or otherwise makes available a Digital Signature Certificate for any fraudulent or unlawful purpose shall be punished with imprisonment for a term which may extend to 2 years or with fine which may extend to 1 lakh or with both. The Information Technology Act also applies to an offence or contravention committed outside India by any person if the act or conduct constituting the offence or contravention involves a computer, computer system or computer network located in India.

 Any computer, computer system, floppies, compact discs, tape drives or any other accessories related thereto, in respect of which any provision of the Information Technology Act, rules, orders or regulations made there under has been or is been contravened, shall be liable to confiscation.