Mentoassociates.com – Legal Articles

JURISDICTION in a lay mans language means ‘The official power to make legal decisions and judgements’. However, in a deeper sense it means ‘The authority given to a court to try cases and rule on legal matters within a particular geographic area over certain types of legal cases’.

SECTION 498(A) OF THE INDIAN PENAL CODE:
Husband or relative of husband of a woman subjecting her to cruelty: Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

“Cruelty” means:
a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

Normally, every criminal offense is inquired into and tried by a court within whose local jurisdiction it is committed. However, as per section 179 of the Code of Criminal Procedure, 1973, an offense can also be tried by a court within whose jurisdiction the consequence of the offense ensues.

Taking the spirit of Section 179 of the Code of Criminal Procedure, 1973, in a landmark judgment in Rupali Devi V State of Uttar Pradesh and Others (AIR 2019 Supreme Court 1790), Supreme Court held that the ‘Complaint alleging cruelty can be filed in the courts where wife takes shelter after leaving or driven away from matrimonial home’
The Hon’ble Supreme Court was of the view that even if the acts of physical cruelty committed in the matrimonial house may have ceased and such acts may not occur at the parental home, there can be no doubt that the mental trauma and psychological distress caused by the acts of the husband including verbal exchanges that compelled the wife to leave the matrimonial home and take shelter with her parents would continue to persist at the parental home. Therefore, the mental cruelty borne out of physical cruelty or abusive and humiliating verbal exchanges would continue in the parental home even though there may not be any overt act of physical cruelty at such place.
It is further opined that, even the silence of the wife may have an underlying element of an emotional distress and mental agony. The wife’s sufferings at the parental home though may be directly attributable to commission of acts of cruelty by the husband at the matrimonial home would, undoubtedly, be the consequences of the acts committed at the matrimonial home. Such consequences, by itself, would amount to distinct offences committed at parental home where she has taken shelter. The adverse effects in the mental health in the parental home though on account of acts committed at the matrimonial home amount to commission of cruelty within the meaning of Section 498-A at the parental home.

The three-judge bench interpreted the legal provision during a reference made in 2012, to decide whether a woman forced to leave her matrimonial home on account of cruelty can initiate and access the legal process within the jurisdiction of the courts where she was forced to take shelter.

In reference, the court held that the case can be lodged by the wife at her parental home even when no overt act of cruelty or harassment is committed by the husband there. The offences of such kind are contemplated under Section 179 CrP.C.

CONCLUSION:
Therefore, the courts at where the wife takes shelter after leaving or driven away from matrimonial home on account of acts of cruelty committed by the husband or his relatives, would, dependent on factual situations, also have jurisdiction to entertain a complaint alleging commission of offences under Section 498-A of Indian Penal Code.

Authored by:
Adv MEGHA MOHAN
Associate
MENTO ASSOCIATES

Many times while traveling by air, we face situations like delayed or cancelled flights, and feel helpless to deal with such situations. This article will highlight obligations of airlines towards its customers and customer rights in such situations.

OBLIGATIONS OF AIRLINES:
The following obligations are applicable to passengers traveling not only on scheduled flights but also on non scheduled flights and foreign carriers operating to /from India if flight is delayed or cancelled or both.

1. Facilities to be offered to Passengers:
If the passenger has checked in on time and if the airline expects a delay beyond its original announced scheduled time of departure or a revised time of departure of 2 or more hours then passengers shall be offered free of charge the following

a. Meals and refreshment in relation to waiting time.
b. Hotel Accommodation when necessary (including transfers).
c. Airlines shall pay particular attention to the needs of persons with reduced, mobility and any other person(s) accompanying them.

2. Compensation:
The passengers have right to get compensation along with facilities mentioned above, if flight is delayed or cancelled or both.

Flight delayed and cancelled:
a. An amount equal to 200% of booked one-way basic fare plus airline fuel charge, subject to maximum of Rs. 20,000/- in case airline arranges alternate flight that is scheduled to depart within the 24 hours of the booked scheduled departure.
b. An amount equal to 400% of booked one way basic fare plus airline fuel charge, subject to maximum of Rs. 20,000/- in case airline arranges alternate flight that is scheduled to depart more than 24 hours of the booked scheduled departure.
c. In case passenger does not opt for alternate flight , refund of full value of ticket and compensation equal to 400% of booked one way basic fare plus airline fuel charge subject to maximum of Rs. 20,000/-

Flight delayed:
If flight is only delayed, along with the facilities mentioned before, the passenger has right to get alternate flight as acceptable to the passenger or provide compensation in addition to the full refund of air ticket in accordance with the following provisions.
a. Rs. 5,000/- or booked one way basic fare plus airline fuel charge, whichever is less for flights having a block time of up to and including 01 hour.
b. Rs. 7500/- or booked one way basic fare plus airline fuel charge, whichever is less for flights having a block time of more than 01 hour, and up to and including 02 hours.
c. Rs. 10,000/- or booked one way basic fare plus airline fuel charge, whichever is less for flights having a block time more than 02 hour.
Note: No financial compensation shall be payable to passengers who have not provided adequate contact information (email id or Phone number).

NO OBLIGATION ON AIRLINES TO COMPENSATE:
The operating airline would not have any obligation to pay compensation in cases where the cancellations and delays have been caused by an Event(s) of Force Majeure i.e. extraordinary circumstances beyond the control of the airline, the impact of which lead to the cancellation/ delay of flight(s), and which could not have been avoided even if all reasonable measures had been taken by airlines.

Such extraordinary situations are:
a.Political Instability
b.Natural Disaster,
c.Civil war
d.Insurrection or riot
e.Act of God
f.Explosion
g.Government Regulation or order affecting the aircraft.
h.Strike and labour disputes causing cessation
i.Slowdown or interruption of work
j.Meteorological Conditions
k.Security Risks
l.Cancellation or delay attributable to Ari Traffic Control
m.Any other factors that are beyond the control of airlines

PASSENGER REDRESSAL:
a. When affected by a cancellation or a long delay or both the passenger may complain directly to the airline in the event the airline has not provided the compensation and /or reasonable facilities as specified above.
b. The passenger may file the grievance on Air Sewa App or Portal.

YOUR LAST RESORT:
If the Airlines fail to fulfill the obligation to assist you and if you as a passenger are not satisfied with the resolution of grievance by air line and/or Air Sewa, the passenger has liberty to complain to Consumer Courts.

Authored by:
Adv. Shirin Yusuf
Associate,
MENTO ASSOCIATES.

There has been a long-standing confusion as to whether the value of goods/services, as the case may be, or the compensation claimed in the complaint, alone will be considered to determine the pecuniary jurisdiction of the appropriate Consumer Forum.

In the landmark judgment delivered by the National Consumer Disputes Redressal Commission, New Delhi, in the case of Ambrish Kumar Shukla & Ors. v. Ferrous Infrastructure Pvt. Ltd., the issue under consideration, which was res integra, was finally put to rest. In this case, it was decided that a perusal of Sections 21, 17 and 11 of the Consumer Protection Act, 1986, makes it clear that the aggregate of the value of the goods/services, as the case may be and the amount of compensation claimed in the complaint, if any, should be considered for determining the pecuniary jurisdiction of the appropriate Forum. The value of the goods/services, alone, cannot be considered to determine jurisdiction. Similarly, only the amount of compensation claimed in the complaint, if any, cannot be considered to determine jurisdiction. Therefore, the aggregate of the value of goods/services, as the case may be, along with the amount of compensation claimed in the complaint, if any, must be taken into account to ascertain the pecuniary jurisdiction of the appropriate Forum.

In the case of immovable property, the question that arises is, whether the market value of the flat/apartment/immovable property, or the price at which the same was bought by the customer must be considered to determine the pecuniary jurisdiction of the appropriate Forum. This was decided as, the price at which the flat/apartment bought, must be considered and not the market value of the same, as the latter is always subject to change and is therefore, rendered as highly unreliable, although the term ‘value’ used in the specific piece of legislation might suggest to be ‘market price’.

Where a class or representative complaint is instituted, the aggregate of the value of the goods/services, as the case may be, along with the compensation claimed, if any, in the complaint will be considered to determine jurisdiction. It was held that the whole object and purpose of a representative complaint would be destroyed if the value of the goods/services and compensation of only an individual customer was considered and not the aggregate of all the customers who have the same interest against the same respondent.

A plethora of cases, namely, Ravi Misra v. Amit C. Prabhu, etc, have followed the decision rendered in this case, and rightly so.

AUTHORED BY:
VISHNU P V
Associate,
MENTO ASSOCIATES.

BBMP is the agency to approve building plans and issue commencement and occupancy certificates for all residential and commercial buildings in lay outs developed by various government agencies( including BDA, KHB, BMICAPA) in its limits except those developed by KIADB and KSSIDC.

1. Section 35 of The Karnataka Education Act, 1983 has provisions for the Registration of Tutorial Institutions. Under the above mentioned Act, the Karnataka Tutorial Institutions (Registration & Regulation) Rules, 2001 has been brought about. Rule 3 of the above mentioned rules, lays down the procedure for registration of tutorial institutions which is as follows-

• An application to be made before the registering authority under S.35 of the Karnataka Education Act, 1983.

• Such application must be made along with a prescribed registration fee as per the table mentioned below, either through an account payee cheque or demand draft which shall be non-refundable.

1. Upto lower primary institutions (Class I-VII) Rs.5,000
2. Secondary School Rs.10,000
3. Pre-University Rs.25,000
4. Degree Courses Rs.25,000
5. Other Courses Rs.25,000

• Conditions for registration of Tutorial Institutions are given under Rule 5. Some conditions are suitable building; not more than 30 students per class; 5-7 sq. ft. space per student, adequate number of teachers possessing prescribed qualifications, sanitation facilities with proper ventilation and safe drinking water. A certificate shall be obtained from the appropriate authority of the Municipal Corporation, Municipal Council or Local Authority regarding sanitary conditions of the building and it shall be produced before registering authority along with the application.

Authored by:
RAHUL M
Intern

The Ministry of External Affairs attests original documents or true copies of documents for use in abroad.

Apostille is an authentication of a signature on a document that is recognized by an international body. It is the legalization of a document for international use under the terms of the 1961 Hague Convention abolishing the requirement of legalization for Foreign Public Documents. The country of destination determines whether the authentication is an apostille or certification. The apostille ensures that public documents issued in one signatory country will be recognized as valid in another signatory country.

Apostille is done for personal documents like birth/death/marriage certificates, Affidavits, Power of Attorney, etc. and educational documents like degree, diploma, matriculation and secondary level certificates etc.

Apostille is first authenticated by the designated authorities of the State/Union Territory from where the document has been issued. Thereafter Ministry of External Affairs legalizes the document on the basis of the signature of the designated signing authorities of the State Government/Union Territory.

Authored by:
Shrinivas Mudagannavar
Attorney
Mento Associates

The Supreme Court in Arneshkumar v/s State of Bihar and another, observed that there is rampant misuse of the provisions of Sec. 498-A of IPC and Sec 3 & 4 of Dowry Prohibition Act. In order to bring the situation under control the Supreme Court has passed the following guidelines.
The Supreme Court, through this judgement ensures that –
i. The Police officers do not arrest accused unnecessarily and
ii. The Magistrate do not authorise detention casually and mechanically.
The State Governments are directed by this Judgement:
1. To instruct the Police officers not to automatically arrest when the case is registered under section 498-A of the IPC and Dowry Prohibition Act, until it satisfies the necessity for arrest under the parameters laid down in section 41 of CrPC.
2. The Police Officers to be provided with the check list containing specified sub-clauses under section 41(1)(b)(ii) of CrPC. The said check list shall be duly filled and the police officer shall furnish the reasons and materials which necessitated the arrest, while producing the accused before magistrate for further detention.
3. The Magistrate on inspecting the report furnished by the Police officer, only after recording its satisfaction, shall authorise the detention of the accused.
4. The decision not to arrest an accused is to be forwarded to the Magistrate within 2 weeks from the date of institution of case with a copy to Superintendent of Police which may be extended by the superintendent of Police for reasons to be recorded in writing.
5. Notice of appearance in terms of section 41 CrPC shall be served to accused within 2 weeks of institution of the case, which may be extended by the Superintendent of Police of District for the reasons to be recorded in writing.
6. Failure to comply with the directions given above, the police officer concerned shall be liable for departmental action and punished and , the contempt of court is to be instituted against them before the High Court having territorial jurisdiction.
7. Authorising detention without recording reasons as above said, by the Judicial Magistrate concerned, shall make the Magistrate liable for departmental action by the appropriate High Court.

The Hon’ble Supreme Court also clarifies that the directions aforesaid shall not only apply to the cases under sec. 498-A of the IPC or sec. 4 of the Dowry Prohibition Act, but also to such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.
Authored by:
Shrinivasreddy Mudagannavar
Intern
Mento Associates

Bangalore City police has issued a set of guidelines for all schools to follow in the wake of the Vibgyor High School incident. The police commissioner has set August 31 2014 as deadline to comply with the norms. The following are the guidelines:

1) The school buses operated by private players for managements should appoint a male and a female staff to accompany students until they are dropped at their doorsteps. The bus should not ferry more than the number prescribed by the transport department. Every bus should have a global positioning system (GPS) facility, which should be functional always. The managements should verify driving licences of drivers and get more information about antecedents of drivers from jurisdictional police. Every bus should have a CCTV cameras facility, which should be functional always.

2) The managements should enter into written agreements with vehicle owners that the owners would be solely responsible for violation of norms by their drivers. The vehicles should have valid documents and validity cards.

3) The managements should issue strict instructions to drivers to stay in their vehicles and buses. They should be warned not to move on the school premises and try to drag children into conversation unnecessarily. They should be warned not to affect peace and honour of the children.

4) Teachers concerned and super visors alone should be present at grounds, swimming pool, laboratories, library, dancing hall and gym. Other staff should be instructed not to unnecessarily enter those places where they have no work.

5) The managements should appoint a floor vigilance officer (FVO) for every floor including ground floor and top floor. lf possible, woman teacher or senior woman staff should be appointed as FVO. A transparent glass cabin should be set up for them so that they could monitor activities taking place in all directions. The FVO should monitor movement of suspicious persons and take action against them.

6) The managements should prepare a report on the number of locations for installation of CCTV cameras and ensure they are always functional. The footage should be kept for 60 days. Staff should be appointed for monitoring and the local police should be immediately alerted about special and rare incidents. The footage should be handed over to police if need be.

7) Identity cards with photos of students should be given to their parents. The parents should give a specific cellphone number for contacting during emergencies. The teacher should respond to calls or messages originating from such numbers. The management should inform about this to the parents and issue necessary instructions.

8) Identity cards should be given to staff, office-bearers of management, security guards, attenders after verifying their antecedents from the police. Everyone should be directed to display their ID cards while in school.

9) Required number of staff including women security personnel should be appointed for access control room, gates, and night shift besides three security supervisors and one chief supervisor to work between 8 am and 2 pm and between 2pm and 8pm and night patrolling. Security staff should submit a report to their heads once in two hours about latest safety status.

The Reserve Bank of India on 7-5-14 gave a directive to banks not to levy any penalty for pre-paying floating loans. The floating loans include housing, corporate, vehicle and personal loans.

In a recent landmark judgment, the Supreme Court has held that children born out of live-in relationships shall be considered as legitimate off springs. Such kids will have all the rights of children born to legally wedded parents. These children will get the right to inherit the property left behind by their parents. The overall legal position regarding live-in relationships is still fluid in the absence of specific legislation in this regard. However, the Supreme Court through its various judgments have filled this lacuna to some extent.