Criminal Law

Concept of Crime:
Crime is defined as "an act punishable by law as forbidden by statute or injurious
to the public welfare." The basis of criminal law is that there are certain standards
of behaviour of moral principles which society requires to be observed; and the
breach of them is an offence not merely against the person who is injured but
against society as a whole. A crime is a threat to every member of society, even
though it may be, in reality an offence against only one specific person (victim).
The function of criminal law is to preserve public order and decency, to protect
citizens from what is offensive or injurious and to provide sufficient safeguards
against exploitation of others, particularly those who are young and weak.
Object of Criminal Law
There are several objectives to the creation and upholding of criminal law:
 preventing crime; protecting the public;
 punishing and rehabilitating those who commit crimes;
 supporting those who have been victimized by crime; and,
 defining the moral code of society and dictating what is considered proper
or correct behaviour.
 providing order and stability through an established set of criminal laws.
Overall, criminal law is like a guide to the expectations of society.

Definition of Procedural Law

The procedural law can be defined as the law which governs the way in which
court proceedings are undertaken. It explains the methods and practices, that are
followed in the court for a case, i.e. the gradual phases of the lawsuit that will
take place and the way in which case is managed in the court. So, it describes the
series of steps taken in civil, criminal and administrative cases.

Example: Criminal Procedure Code 1973 (CrPC)

Definition of Substantive Law

Substantive law means the written law that states the rights, duties and liabilities
of the citizens and collective bodies.
Substantive law is concerned with the substance of the case. It either helps in suing
someone or defending a person from legal proceedings.

It is that part of the legal system which differentiates between right and wrong
conduct and contains the idea that committing the crime will lead to penalty or
punishment or both (as the case may be) to the wrongdoer.

Example: Indian Penal Code 1860 (IPC)

Differences Between Procedural Law and Substantive Law

1. Procedural law prescribes the methods, procedure and machinery for the
enforcement of rights and obligations. Whereas, substantive law refers to
the law that deals with the subject matter of the case and states the rights
and obligations of the parties concerned.
2. Procedural law oversees the litigation process of the case, whereas the
substantive law deals with the objective and subject matter of the litigation
3. Procedural law expresses how the law is implemented, substantive law
explains the forbidding and mandating conducts as per law. In short
procedural law, is nothing but an add-on of substantive law.

Main systems of Criminal Justice Administration System:

i) Adversarial System:
 The legal system in which, parties, for their legal proceedings develop their
own theory of the case and collect evidence to support their claims, is
known as adversarial system.
 In this system, both the parties (in dispute) are represented by their
respective lawyers who take pro-active role in delivering justice.
 The lawyer should enthusiastically research and investigate all the facts and
evidence related to case in favour of his client and present in the court.
 The judges act as an impartial monitor who ensure that the facts of a case
are presented within established laws and procedures. So, judge plays a
passive role, as he decides the claims based solely on the evidences and
arguments presented by the respective lawyers.
ii) Inquisitorial System:
 In inquisitorial system, judges play an active role by taking a centre-stage
while dispensing justice. Judges determine the issues and facts of
respective dispute and also decide the manner in which the evidence must
be presented before the court.
 It is also known as interventionist/investigative model.
  The prosecutor is obligated to act neutrally, as his/her goal is not to obtain
a conviction but rather to reveal the truth and then apply the respective
law.
 The defence lawyer plays minor roles in this system.
 Further, the trial proceedings are dependent on the faith in the fairness and
good will of the judges.
 Moreover, there is less scope of cross examination and other such
techniques that is often used by advocates to evaluate evidences of their
opposing counsel in adversarial model.
Hierarchy and Classes of Criminal Courts in India
A court is a place where legal trials take place.
It is an institution where several disputes are settled through the legal process.
There are three types of courts: Civil Court, Criminal Court and Revenue Court.
What is a Criminal Court?
A Criminal Court is a court that has the jurisdiction and authority to try and punish
the persons accused of committing a crime as per criminal law. Generally, the
government (State) files a case in Criminal Courts against a person who has
committed any crime.
The reason behind this is that whenever a crime is committed, it is considered an
act against a state as it affects public at large and not just only against the victim.
Hierarchy of Criminal Courts:

Supreme Court

High Court

Sessions Court

Judicial Magistrate First Class,

Metropolitan Magistrates

Judicial Magistrate Second Class

Executive Magistrate

CONCEPT OF PUNISHMENT – THEORIES OF PUNISHMENT

 THEORIES OF PUNISHMENT: Punishments in India and around the world revolve
around five theories. They are the theory of retribution, deterrence,
incapacitation, rehabilitation/reformation and restoration.
i. Retribution theory: Retribution means revenge. It supports that the principle of
‘An eye for an eye and a tooth for a tooth’ is necessary for natural justice. The
underlying implication of retribution is that the offender has to pay for his
wrongdoing. This is based on the primitive vengeance theory, which involved the
infliction of retaliatory harm by the victim to the criminal. According to the
retribution theory, it is the duty of the State to take revenge from the offender on
behalf of the victim of the crime. The theory of retribution focuses on the offence
committed and just treatment of the individual, rather than prevention of crime.
ii. Deterrence/ Preventive theory: The theory of deterrence aims to prevent
individuals from committing a crime by using the fear or threat of punishment.
Deterrent is “the imposition of harsh punishments to deter the
offender from repeating the offense and to threaten those with
criminal tendencies.

 Deterrence serves as a major tool in maintaining the general law and order
in the society, especially from the perspective of crime. Criminal acts are
penalized so as to deter individuals from repeating it or even entering into
it in the first place.

iii. Incapacitation theory: The theory of incapacitation advocates dealing with

offenders in such a way that they are not in a position to re-offend. The focus in
this theory is to put the offender in such a state that he is disabled to commit the
crime in future. The objective of this theory is to segregate the criminals from the
rest of the society. For the crimes committed, they suffer a kind of banishment by
staying in prisons and in some cases, they are also subject to capital punishment.

iv. Compensation / Restoration theory: According to this theory, the objective

behind punishment must not only be the prevention of future crime but also to
compensate the victims of the crime. This is a victim-oriented theory of
punishment. It provides relief to the victims. It is based on the principle that a
victim should be compensated for the wrongs/crimes committed against him/her.
The goal is to repair, through state authority, any injury inflicted upon the victim
by the offender
 v. Reformation/Rehabilitation theory: The theory of reformation aims at
transformation of an offender’s mindset and rehabilitate him into a law -abiding
member of the society. The assumption in this theory is that the offenders are
capable of change and reform. Reformation theory is a major reason behind the
 court's reservations against awarding death penalty. According to this theory,
crime is a mental illness brought on by several anti-social factors.
 Thus, treating criminals mentally rather than punishing them will accomplish the
goal. Criminals who have received education and training will be capable of
exhibiting proper social behaviour. The main motive is to rehabilitate the
offender. Rehabilitation aims at transforming an offender into a valuable member
of society.

COGNIZABLE AND NON-COGNIZABLE OFFENCE

Cognizable Offence:
A cognizable offence means an offence in which the police officer can investigate
and arrest an accused person without obtaining a warrant from the court. These
offences are usually very serious in nature.
For example: murder, rape, waging war against the government, etc.

Non-cognizable offences:
Non-cognizable offences are such offences in which the police have no authority to
arrest without a warrant. The police must wait for the order of a magistrate before
investigating and arresting the accused.
For example: offences relating to criminal defamation, cheating, forgery, etc.
FIR AND COMPLAINT- Meaning and to whom it is made:
First Information Report (FIR)
FIR is the abbreviated form of First Information Report. It is the information
recorded by the police officer on duty, given either by the aggrieved person or any
other person, about the commission of cognizable offence. It sets the criminal law
in motion.
The police cannot refuse to register the complaint. FIR can be filed in the police
station of the concerned area in whose jurisdiction the offence has occurred.
FIR can be registered either on written or verbal statement of complainant which
is later reduced in writing by police officer and is signed by the complainant.
It must be made to the officer-in-charge of the police station and if he is not
available, the Assistant Sub-Inspector is competent to enter the same upon the
investigation. On the basis of the FIR, the police will start its investigation.
 Complaint:
• Complaint means any allegation made orally or in writing to a magistrate,
with a view to his taking action under the code, that some person whether
known or unknown has committed an offence. It, does not include a police
report.

Difference between Complaint and FIR:

• First information report is made to the competent police officer. Complaint
is made to a magistrate.
• First Information Report must relate to a cognizable offence. A complaint
may relate to a cognizable or non-cognizable offence.
• When a FIR is lodged, a policer officer starts with investigating the matter.
Whereas, when complaint is filed no investigation is done by the police
officer until directed by the court.
• There is prescribed format by law for FIR. No prescribed format is given for
filing a complaint.

Rights / entitlements of an arrested person

• i. Every police officer arresting any person without warrant shall
straightaway communicate to the accused full particulars of the offence for
which he is arrested or other grounds for such arrest.
• ii. In bailable cases, the arrested person shall be informed that he is entitled
to be released on bail and that he may arrange for sureties on his behalf.
• iii. It is obligatory on the part of the police officer to inform the relative or
friend of the arrested person about his arrest and also make entry in the
register maintained by the police.
• iv. Arrested person shall be entitled to meet his advocate during
interrogation, though not throughout interrogation.
• v. If the arrested person cannot afford a lawyer, free legal aid shall be
provided.
• vi. An arrested person has to be produced before the Magistrate within 24
hours of his arrest.
vii. The arrested person shall be examined by a medical officer of the State
or Central Government.
 Family Law
1. Mitakshara School:
School of Hindu Law that owes its name to the Vijnaneshwara Commentary. It
prevails over the whole of India except Bengal and Assam. It prevails in Bengal
and Assam on all those matters on which the Dayabhaga School of Law is silent.
Mitakshara, is based on the principle of propinquity, which is the nearest blood
relation. It excludes females from inheritance and is based on agnates over
cognates.
Sones have a right by birth in the joint Hindu family property, and the interest of
each coparcener is fluctuating, as death may augment it and birth may diminish it.
Neither the father nor any other coparcener has right to alienate joint family
property.

2. Dayabhaga School
Owes its name to the Jimutavahana digest. It prevails in Bengal and Assam and
deals only with partition and inheritance.
Based on principles of religious efficacy of spiritual benefit and does not lead to
agnates over cognates. No birthright in terms of succession is given to the son.
There is a specified and ascertained share in the joint family property, and interest
does not fluctuate on birth or death.
The coparcener has full right to alienate his undivided share in a joint family
property.

Who is a Hindu?
To whom Hindu laws applies:
Applies to all the persons who are Hindus but there is still no precise definition of
the term Hindu either in any statute or in any judicial pronouncement. Hindu law
applies to the following categories of persons:-
1. Hindu by Religion: Any person who is a Hindu, Jain, Sikh or Buddhist; including
Virashiva, Lingayat or a follower of Brahmo, Prarthana or Arya Samaj
2.Hindu by Birth: Born of Hindu Parents;
3. Not a Muslim, Christian, Parsi or Jew and not governed by any other law.

HINDU BY BIRTH
1. Both parents are Hindu: Children born of Hindu parents, such a child may be
legitimate or illegitimate. It is immaterial that such a child does or does not
profess, practice or has faith in the religion of its parents.
2. One parent is Hindu:- When one of the parents of a child is Hindu and he is
brought up as a member of Hindu family, he is a Hindu.
HINDU BY RELIGION
Following two types of persons fall in this category:
i) Followers of Hindu Religion: Any person who follows Hindu religion either by
practising.
ii) Converts and Reconverts to Hinduism: Under the codified Hindu law any
person converted to Hinduism, Jainism, Buddhism or Sikhism is a Hindu
iii) Any person not governed by any other laws
Are not Muslims, Christians, Parsis or Jews are governed by Hindu law, unless it is
proved that Hindu law is not applicable to such a person.
Those persons who are atheists or who believe in all faiths may fall under this
class.
Therefore, the modern Hindu law is a body of rules of personal law applicable to
Hindus as well as several non-Hindu communities.
In the modern Hindu law all those persons to whom Hindu law applies are called
"Hindus".

To whom Hindu laws do not apply

1. Any children whose one parent is Hindu and another parent is Non-Hindu, not
brought up Hindu.
2. Any Hindu who converts himself to any other religion other than Hindu religion.

Connotations under section 3;

Section 3 in The Hindu Marriage Act, 1955
3 Definitions. In this Act, unless the context otherwise requires,
(a) the expressions custom and usages signify any rule which, continuously and
uniformly observe for a long time, obtaining force of law among Hindus in local
area, tribe, community, group or family:
Provided that the rule is certain and not unreasonably opposing to public policy;
Provided further that in the case of a rule applicable only to a family it has not
been discontinued by the family;
(b) district court means, any area for which there is city civil court, that court, and
in any other area the principal civil court of original jurisdiction, and includes
other civil court which may be specified by the State Government, by notification
the Official Gazette, having jurisdiction in respect of the matters dealt with in this
Act;
(c) full blood and half blood: two persons related to each other by full blood when
descended from a common father and mother by half blood when descended
from a common father but by different mother;
(d) uterine blood: two persons are said to be related to each other by uterine
blood when descended from a common mother but by different father;
(e) prescribed means prescribed by rules made under this Act;
(f) (i) sapinda relationship with reference to person extends as far as the third
generation in the line of ascent through mother, and the fifth in the line of ascent
through the father, the line being traced upwards in each case from the person
concerned, who is to be counted as the first generation;
(ii) two persons are said to be sapindas of each other if one is a lineal ascendant
of the other within the limits of sapinda relationship, or if they have a common
lineal ascendant who is within the limits of sapinda relationship with reference to
each of them;
(g) two persons are said to be within the degrees of prohibited relationship
(i) if one is a lineal ascendant of the other;
(ii) if one was the wife or husband of a lineal ascendant or descendant of the
other;
(iii) if one was the wife of the brother or of the father's or mother's brother or of
the grandfather's or grandmother's brother of the other;
(iv) if the two are brother and sister, uncle and niece, aunt and nephew, or
children of brother and sister or of two brothers or of two sisters;
relationship includes—
(i) relationship by half or uterine blood as well as by full blood;
(ii) illegitimate blood relationship as well as legitimate;
(iii) relationship by adoption as well as by blood;
and all terms of relationship in those clauses shall be construed accordingly

Essential conditions of a valid Hindu marriage:

The Hindu marriage Act 1955 has provided five conditions as pre-requisites for
valid Hindu marriage, under section 5 of Act.
If the following conditions are fulfilled:
1. Spouse living at time of the marriage: neither of the parties to marriage should
have any spouse living at the time of marriage.
2. At time of marriage, neither party to marriage should be incapable of giving a
valid consent for the marriage.
3. At the time of marriage, though capable of giving a valid consent, is not
suffering from any mental disorder of any such type or to such extent, that is unfit
for marriage or procreating children.
4. At the time of marriage, has been subject to recurring attacks of insanity.
5. Age of the bridegroom must be 21 and the bride must be 18 years of age.
6. The parties must not be within the degrees of the prohibited relationship.
Exception to this is only provided if the custom allows such a marriage
7. The parties must not be sapindas of each other. Exception to this is provided by
the permission of customs or usages governing the parties.

DESCRIPTION OF CONDITIONS
Following are the conditions required to be fulfilled for a valid Hindu marriage:

1. MONOGAMY:A Hindu before this law could marry any number of wives , even if
he had a wife or wives living. When a wife has more than one husband at one
time this is called polyandry.
1955, Polygamy was recognised in Hindu Law, but polyandry was never permitted.
Section 17[2] would render the offending party liable for prosecution under
section 494 and 495 of IPC ,1860.
A second marriage in the lifetime of a spouse of first marriage, will be against law
and considered void even if second marriage were contracted outside India.
In order to prosecute a person for bigamy it is necessary to prove that he/she
already has a living spouse & prior marriage has been duly celebrated with the
performance of ceremonies.

2. SANITY OR MENTAL CAPACITY: Section 5(ii) provides about the mental

capacity of the spouses at the time of marriage. It was provided that neither party
to a marriage should be idiot or lunatic at the time of marriage.
This clause provides: “at the time of marriage neither party
· should be incapable of giving valid consent to it in consequences of unsoundness
of mind; or
· though capable of giving the valid consent, has been suffering from mental
disorder of such kind or kind to such extent as to be unfit for marriage &
procreation of children; or
· has been subject to recurrent attack of insanity or epilepsy.
Thus, the mental incapacity of any form, affecting the very purpose of marriage
has been ground of voidability of marriage. The mental disorder of insanity must
be in existence at the time of marriage. Such marriages may be declared as
voidable under section 12 of the Act.
But if a person following to the date of marriage suffers from mental disorder or
insanity ,the provision of this clause are not contravened, because it applies to
such case where the parties are insane at the time of marriage.

3. AGE OF PARTIES TO MARRIAGE: According to the Hindu Marriage act 1955,

the age provided for the groom was 18 years & for the bride 15 years. Though
where the age of a bride was below 18, the consent of her guardian was
necessary.
Now, the child Marriage Restraint Act, 1978, has revised the minimum age fixed
for marriage to 21 years in case of groom & 18yrs of age in case of bride.
Any violation of the required age of this clause is not void or even voidable but it
is the breach of condition and their parents and guardians are punishable with
simple imprisonment which may extend to fifteen days, or with fine, or with both
by Section 18(a) of the Act.

4. BEYOND PROHIBITED DEGREE: Section 5(iv) prohibits marriage between the

person who are within the “prohibited degree of relationship with each other”.
Section 3(g) provides,
“two person are said to be within the degree prohibited relationship:
i. If one is lineal ascendant of the other; or
ii. If one was the wife or husband of lineal ascendant or descendant of the other;
or
iii. If one was the wife of the brother or of the father’s or mother’s brother or of
the grandfather’s or grandmother’s brother of the other; or
iv. If the two are brother-and-sister, uncle-and-niece, aunt-and-nephew, or
children of brother and sister or of two brother and sister or of two brothers or
sisters.
It should also be noted that prohibited relationship includes –
i. Relationship by half or uterine blood as well as by full blood,
ii. Illegitimate blood relationship as well as legitimate,
iii. Relationship by adoption as well as by blood; and all of terms of relationship in
those clauses shall be understood accordingly. But if the custom or usage
governing each of parties to the marriage allows the marriage within the degree
of prohibited relationship, then such marriage will be valid & binding.

5. BEYOND SAPINDA RELATIONSHIP: Section 5(v) prohibits marriage between

persons who are sapindas of each other. A marriage in contravention of this
clause, .i.e., it will be void & may be so declared under section 11 and the person
contravening to the provision of this clause would be punishable under section
18. The word “sapinda” means relation connected through same body.
According to section 3(f) Sapinda relationship defined:
i) “sapinda relationship” with reference to any person extends as far as
the 3rd generation (inclusive) in the line of ascent through the mother,
and 5th generation (inclusive) in the line of ascent through father, the
line being traced upwards in each case from the person concerned, who
is to be counted as the first generation.
ii) Two persons are said to be “sapindas” of each other if one is lineal ascendant
of other within the limits of sapinda relationship within the limits of sapinda
relationship with reference each of them.

(iv) Void Marriage & Voidable Marriage - Meaning and Differences

Void Marriages:
A void marriage is a marriage that is unlawful or invalid under the laws of the
jurisdiction where it is entered. A void marriage is invalid from its beginning, and is
generally treated under the law as if it never existed and requires no formal action
to terminate.
Under Section 11 of the Hindu Marriage Act, 1955, a marriage is considered void if
it does not achieve the following conditions:

1. Bigamy: If any of the parties have another spouse living at the time of
marriage. It shall be considered as null and void. Bigamy includes both
polygamy and polyandry. Polygamy permits a male to have more than one
wife simultaneously.
Polyandry permits the female to have more than one husband
simultaneously.
Polygamy and Polyandry have now been abolished and monogamy has
been made a rule for all Hindus.
Degrees of Prohibited relationship
If the parties are within a prohibited relationship, they cannot marry unless
the custom allows it.
In some cases, sapinda relationship and the degrees of prohibited relationship
overlap. They fall under the following four categories.
(1) When one is a direct ascendant of the other. The lineal ascendant means an
ancestor in the unbroken line of ascent. There is no limit of degrees. Under this
category marriage is prohibited with all ancestors(male) or ancestresses(female).
(2) One cannot marry the wife or husband of one's lineal ascendant or
descendant. Again, there is no limit as to degrees. This means that a man cannot
marry his father's wife (stepmother), grandfather's wife or the wife of any of his
ancestors, whether a widow or a divorcee. Similarly, he cannot marry the wife of
his son or of son's son, or the wives of any of the great-grandsons. Similarly,
woman cannot marry her mother's husband, grand-mother's husband and so on.
She can also not marry her daughter's husband or grand-daughter's husband and
so on. It is immaterial that the husbands of these ascendants and descendants are
widowers or divorcees.
(3) Mother's brother, Grandfather's brother, (both on maternal and paternal side),
and Grandmother's brother (both on maternal and paternal side)
(4) Two persons cannot marry, if they stand with each other in any one of the
following relationships:
 (a) Brother and sister,
(b) Uncle and niece (both on paternal and maternal side)
(c) Aunt and nephew (both on paternal and maternal side),
(d) (i) children of two brothers,
(ii) children of two sisters, or
(iii)children of a brother and a sister.
Explanation.- prohibited relationship includes-
(I) relationship by half or uterine blood as well as by full blood;
Full blood: When two persons have common parents (same Father
and Mother) then they are related to each other by full blood.
Half Blood: When two persons have common father between them
but have two different mothers then they are related to each other
by half blood.
Uterine Blood: When two persons have a common mother but have
two different fathers, they both are related to each other by uterine
blood.
(ii) Illegitimate blood relationship as well as legitimate;
(iii) Relationship by adoption as well as by blood; and all terms of
relationship in those clauses shall be construed accordingly.

2. Sapindas
A marriage between the parties who are sapindas or in other words a
marriage between the parties who are blood relations or of the same
family. Where parties to the marriage fall within sapinda relationship i.e.,
same blood. "Sapinda relationship" with reference to any person extends as
far as the third generation(inclusive) in the line of ascent through the
mother, and the fifth (inclusive) in the line of ascent through the father, the
line being traced upwards in each case from the person concerned, who is
to be counted as the first generation;
Consequences of a Void Marriage
The consequences of void marriage are:

 The parties don’t have the position of husband and wife in a void
marriage.
  Children are called legitimate in a void marriage
 Mutual rights and obligations are not present in a void marriage.

Voidable Marriages (Section 12): A voidable marriage (also called an avoidable

marriage) is a marriage that can be cancelled at the option of one of the parties
through annulment. The marriage is valid but is subject to cancellation if
contested in court by one of the parties to the marriage.
It will be valid unless the petition for invalidating the marriage is made. This
marriage is to be declared void by a competent court under the Hindu Marriage
Act, 1955. The parties of such marriage have to decide whether they want to go
with such marriage or make it invalid.

The grounds where marriage can be termed as voidable:

 The party to the marriage is not capable of giving consent due to the
unsoundness of mind.
 The party is dealing with impotency which makes her unfit for
reproduction of children.
 If the party has been suffering from repeated attacks of insanity.
 The consent of marriage by either of the parties is taken by force or by
fraud.
 If either of the parties are under-aged, bridegroom under 21 years of age
and bride under 18 years of age.
 If the respondent is pregnant with a child of someone other than the
bridegroom while marrying.
 The applicant can go for court if the other spouse was
suffering from venereal disease and the disease is
communicable.

DIFFERENCE BETWEEN VOID AND VOIDABLE

MARRIAGE:
 VOID MARRIAGE VOIDABLE MARRIAGE

1. This marriage is void- 1. The marriage is

ab-initio, which means voidable at the option

the marriage was void of the parties.

from the start.

2. Not required to get the 2. The marriage will be

decree of the court to considered void only by

nullify the marriage. the decree of the court.

3. The parties can 3. A spouse cannot

remarry with other remarry until the court

persons without passes the decree to

getting the decree of nullify the marriage.

the court.

4. The wife cannot claim 4.The wife has the right to

maintenance under claim maintenance under

void marriage. voidable marriage.

5. The parties do not 5.Parties have the status of

have any status of husband and wife.

husband and wife.

CONCEPT OF DIVORCE:
Divorce means the dissolution of marriage by a knowledgeable court. Earlier
divorce was unknown to general Hindu law as marriage was regarded as sacred
and an indissoluble union of the husband and wife. Manu declared that a wife
cannot be released by her husband either by sale or by abandonment, implying
that the marital tie cannot be severed in any way. However, this changed when
divorce was introduced in the Hindu Marriage Act, 1955.
To regulate and codify the laws related to marriage among Hindus, the Parliament
of India enacted Hindu Marriage Act in 1955. It is an important law that governs
marriage and divorce among Hindus, Buddhist, Jains and Sikhs and provides a
legal framework for the institution of marriage in these communities. This Act
introduced various provisions that define the concept of marriage and addressed
the issue of divorce. Under this Act, divorce is defined as the legal dissolution of
marriage, and can be sought by a spouse only on the grounds specified in the Act.
Theories of Divorce:
There are basically three theories for divorce-fault theory, mutual consent theory
& irretrievable breakdown of marriage theory.
i) Fault theory or the offences theory or the guilt theory: Under this
theory, marriage can be dissolved only when either party to the
marriage has committed a matrimonial offence. It is necessary to have a
guilty and an innocent party, and the only innocent party can seek the
remedy of divorce. However, the most striking feature and the drawback
is that if both parties have been at fault, there is no remedy available.
ii) Mutual consent Theory: The underlying rationale is that since two
persons can marry by their free will, they should also be allowed to
move out of the relationship of their own free will. However, critics of
this theory say that this approach will promote immorality as it will lead
to hasty divorces and parties would dissolve their marriage even if there
were slight incompatibility of temperament.
iii) Irretrievable breakdown of the marriage: The breakdown of marriage is
defined as “such failure in the matrimonial relationships or such
circumstances adverse to that relationship that no reasonable
probability remains for the spouses again living together as husband &
wife.” Such marriage should be dissolved with maximum fairness &
minimum bitterness, distress & humiliation.
 Some of the grounds available under the Hindu Marriage Act can be said
to be under the theory of frustration by reason of specified
circumstances. These include civil death, renouncement of the world
etc.
Grounds For Divorce Under Hindu Marriage Act
The various grounds on which a decree of divorce can be obtained are as follows-
 Adultery: In adultery there must be voluntary or consensual sexual
intercourse between a married person and another, whether married or
unmarried, of the opposite sex, not being the other’s spouse, during the
subsistence of marriage.
 Cruelty: The concept of cruelty includes mental as well as physical
cruelty. The physical cruelty means when one spouse beats or causes
any bodily injury to the other spouse. But the concept of mental cruelty
was added as the spouse can also be mentally tortured by the other
spouse. Mental Cruelty is lack of kindness which adversely affects the
health of the person.
 Desertion: Desertion means the rejection by one party of all the
obligations of marriage- the permanent forsaking or abandonment of
one spouse by the other without any reasonable cause and without the
consent of the other. It means a total repudiation of marital obligation.
 Insanity: Insanity as a ground of divorce has the following two
requirements1.
a. The respondent has been incurably of unsound mind.
b. The respondent has been suffering continuously or intermittently
from mental disorder of such a kind and to such an extent that
the petitioner cannot reasonably be expected to live with the
respondent.
Leprosy: Leprosy is an infectious disease of the skin, mucous membranes,
nervous system etc. this disease is transmitted from one person to another.
Thus it is considered as the valid ground for divorce.
 Venereal Disease: At present, it is a ground for divorce if it is
communicable by nature irrespective of the period for which the
respondent has suffered from it. The ground is made out if it is shown
that the disease is in communicable form & it is not necessary that it
should have been communicated to the petitioner (even if done
innocently).
  Renunciation: “Renunciation of the world” is a ground for divorce only
under Hindu law, as the renunciation of the world is a typical Hindu
notion. Modern codified Hindu law lays down that a spouse may seek
divorce if the other party has renounced the world and has entered a
holy order. A person who does this is considered as civilly dead. Such
renunciation by entering into a religious order must be unequivocal &
absolute.
 Presumption Of Death Under the Act: A person is presumed to be dead,
if he/she has not been heard of as being alive for a period of at least
seven years. The burden of proof that the whereabouts of the
respondent is not known for the requisite period is on the petitioner
under all the matrimonial laws.
 Conversion: If one of the spouses converts his religion to any other
religion without the consent of the other spouse, then the other spouse
can approach the court and seek the remedy of divorce.

CONCEPT OF RESTITUTION OF CONJUGAL RIGHTS

Introduction: Marriage as an institution gives rise to a relationship
between two partners: This relationship also gives birth to different of
sets rights and obligations. These rights and obligations cumulatively
constitute’ Conjugal rights’ and can be termed as essence of the marital
union. The wife and husband must respect each other's rights and live
together, which is one of marriage's most basic obligations.
Each spouse should act as a support to the other in hard times, should
be there to comfort and love the partner. But if any of the partner
leaves the other without any reasonable or sufficient cause, then the
aggrieved party can knock the doors of the court to seek justice. This is
frequently considered a strategy to keep a marriage intact.
Restitution of Conjugal Rights– Section 9 of The Hindu Marriage Act,
1955
“When either the husband or the wife has, without reasonable excuse, withdrawn
from the society of the other, the aggrieved party may apply, by petition to the
district court, for restitution of conjugal rights and the court, on being satisfied of
the truth of the statements made in such petition and that there is no legal
ground why the application should not be granted, may decree restitution of
conjugal rights accordingly.”.

There are three important requisites to be fulfilled for Section 9

 Spouses must not be staying together.
  Withdrawal of a party from the other must have no reasonable ground for
such withdrawal.
 The aggrieved party must apply for restitution of conjugal rights.

What is Restitution of conjugal rights?

Conjugal rights are legal entitlements that is based on Section 9 of the
Hindu Marriage Act. The aggrieved party may apply to the court for
restitution of conjugal rights if the husband or wife has withdrawn from the
partner’s company without valid reasons. In simple terms, the restitution of
conjugal rights is regaining the companionship of a spouse who has
abandoned the relationship for no apparent reason.

Who can seek relief?

When either the husband or wife has withdrawn from the other’s society
(companionship) without sufficient justification, the aggrieved party may
file a petition in the court for restitution of conjugal rights. The court after
examining the validity of the petition, may grant the decree of restitution of
conjugal rights.

Why is this relief given?

The legislature, in its wisdom, has provided legal remedy for either spouse
to restore the relationship and reclaim the company of the spouse who has
left the company without any valid reason, with the objective of protecting
the sanctity and legality of the institution of marriage.

JUDICIAL SEPARATION

Introduction: Judicial Separation is an alternative to divorce, through which both

the parties to a marriage are given time to resolve their issues and make efforts to
save their failed marriage by living separately.

◦ Judicial Separation is a period of separation mandated by the court before

the divorce proceedings can be started. Under all personal laws, the judicial
separation period is for one year. The period of judicial separation gives
time for resolving the matrimonial disputes and misunderstanding between
the couple.

◦ Judicial separation doesn’t take away the status of a legally wedded

husband and wife.
◦ This provision has been adopted by the Indian legislature because marriage
is considered as a ‘sacrament’ under Hindu Law and to the Court must
prevent the breakdown of such a union.

◦ Even today, courts do not grant divorce that easily. The idea is that
marriage is permanent and divorce is just an option when continuation of
marriage is unthinkable.

Judicial Separation: Section 10 of Hindu Marriage Act, 1955

◦ As the term explains, it is a judicially accepted case of husband and wife

living separately while the marriage still continues.

◦ In other words, it can be understood as “a court decree requiring a

married couple to cease live together but not dissolving the marriage”.

◦ The idea is to give both husband and wife another chance to re-analyse
their marriage.

◦ The couples undergoing judicial separation in Hindu Marriage Act are

allowed to escape matrimonial obligations like sharing.

◦ If parties fail to reconcile with each other and still wish to separate, courts
often grant divorce after judicial separation in India.

◦ Thus, Judicial separation and divorce under Hindu law can be taken as
distinct stages for ending a marriage.

Grounds for Judicial Separation

Either husband or wife may present a petition for judicial separation on
any of the following grounds:

1. Adultery i.e., voluntary sexual intercourse with any person other than his or
her spouse
2. Cruelty including both mental and physical cruelty
3. Desertion for a continuous period of not less than two years without
reasonable cause and consent
4. Conversion from Hinduism to any other religion
5. Unsoundness of mind
6. Suffering continuously or intermittently from mental disorder
7. Suffering from a virulent and incurable form of leprosy
8. Suffering from venereal disease in a communicable form
9. Renunciation of the world by entering any religious order
 10.Not heard of being alive for seven years or more by those persons

Difference Between Judicial Separation and Divorce:

◦ Though the grounds and procedure for judicial separation and divorce are
the same, there are certain differences between the two.

◦ While divorce ends all the obligations and responsibilities associated with
the marital relationship, judicial separation doesn’t take away the legal
status of wedded husband and wife.

◦ Judicial separation doesn’t put an end to the marriage, both partners are
still required to fulfil all the marital obligations except for the fact that
they’re allowed to reside separately.

◦ After one year, if there is no resumption of cohabitation, then the couple

may be granted divorce by the Court.

Why Judicial Separation may be considered beneficial?

1. It doesn’t put an end to the marriage and there is still room for
understanding.
2. It gives both parties time and space to rethink their marriage and make
efforts to save their failed marriage without being compulsorily obliged to
reside together.
3. It prevents erratic and hasty decisions of ending marriages.
4. If they fail to overcome differences, they can apply for divorce after one
year.
5. During judicial separation, the husband cannot force a sexual relationship
with the wife without her consent, it will amount to rape.
CONCEPT OF MAINTENANCE IN HUSBAND WIFE RELATIONSHIP
THE CONCEPT OF MAINTENANCE:
• Maintenance as a concept when considered from the point of view of law
refers to the kind of financial assistance given to either of the litigating
parties on an application made by them and only through an order passed
by the court having jurisdiction to do so.
• The main purpose of granting maintenance is to maintain the standard of
living of the spouse equivalent to that of the other spouse and in
accordance with status prior to the separation.
Interim / Temporary Maintenance: Section 24 of the Hindu Marriage Act,
1955 talks about the maintenance pendente lite and expenses of proceedings.
• Here, the term maintenance refers to the provision of basic needs to a
dependent spouse and ‘pendente lite’ is a Latin term that means “while a
suit is pending” or “while litigation continues”.
• Thus, it can be understood that ‘maintenance pendente lite’ refers to the
provision of living expenses and financial support to the spouse (either wife
or husband) while a suit is pending.

Section 24 of Hindu Marriage Act, 1955

• Section 24 of the Hindu Marriage Act, 1955 (hereinafter ‘HMA,1955’) states
that in any proceeding under the HMA, 1955, if a court believes that either
the husband or the wife has no source of independent income to provide
for his or her support and the required expenses of the proceedings then
the court may, on the application of such dependent spouse, order the
other spouse to pay –
• The expenses of the proceedings
• The monthly sum during such proceedings as the court finds reasonable
with regard to the income of both the spouses.
Objective of Section 24 of the Hindu Marriage Act, 1955
• The maintenance pendente lite provides for the personal support of the
claimant spouse and the required expenses of the proceeding.
• The objective of maintenance pendente lite and expenses under Section 24
of HMA, 1955 is primarily to provide financial assistance to the claimant
spouse in order for them to carry on with the proceedings and maintain
themselves.
• It must be understood that pendente lite maintenance is provided to either
of the spouses under HMA, 1955 i.e., either of the spouses can claim
maintenance.
• However, under other statutes such as the Special Marriage Act (1954),
Criminal Procedure Code (1973), etc., the claim for maintenance can only
be made by the wife and not the husband.
Power of the court under Section 24 of Hindu Marriage Act, 1955
 • The courts have the discretion in passing an order regarding the interim
maintenance amount that a spouse may be required to pay to the other
based on reasonable grounds.
• In order to exercise this discretion, the court considers the income of the
spouse who has made the application for interim maintenance and the
income of the other spouse who is required to pay such interim
maintenance and expenses.
Quantum of maintenance under Section 24
• The Hindu Marriage Act, 1955 under Section 24 does not lay down any rigid
rule for deciding the quantum of interim maintenance. However, the
quantum for such interim maintenance depends upon the following factors:
• The duration of the marriage.
• The means and conduct of the spouses.
• The ability of the spouse to earn.
• Education and maintenance of children.
• Other such reasonable needs of the claimant.
• It is to be noted that in the matters of granting maintenance pendente lite,
the Court exercises a wide discretion, however, this discretion is not to be
exercised in an arbitrary manner.
Expenses of the proceedings
• A spouse can claim interim maintenance along with the necessary expenses
of the proceedings under Section 24 of the HMA, 1955.
• This provision ensures that the spouse is provided with sufficient funds to
meet the expenses of the proceedings.
• The scope of ‘expenses of the proceedings’ is wide; it includes court fees,
lawyer’s fees, expenditure incurred in getting services of the witnesses,
xerox and typing charges, process fees, etc.
Section 25 of Hindu Marriage Act, 1955
• This Section talks about permanent maintenance and alimony stating that:
 Any court that has jurisdiction under this Act shall on an application made
by either the wife or the husband for grant of maintenance, order the
respondent to pay for the maintenance and support of the applicant, either
 a yearly or monthly sum for a term not exceeding the life of the applicant,
with regards to the respondent’s income and property, and any such
payment may also be secured by charging the respondent’s immovable
property.
 If the court is satisfied that there is a change in the current situation after
passing the order, then the court may modify, or rescind the order at the
instance of either party.
 If the court is satisfied that the party in whose name the order is placed has
re-married, or if the wife has not remained faithful, or if the husband has
had sexual intercourse with any another woman, then the court at the
instance of the party may modify, rescind the order.
Permanent maintenance
• Permanent alimony and maintenance are given under Section 25 of the
Hindu Marriage Act,1955.
• This type of maintenance is given at the time of passing an order for
divorce.
Difference between alimony and maintenance
• The alimony is paid in the form of cash or property whereas maintenance is
paid in form of cash.
• Alimony is a one-time payment made to either the husband or wife
whereas maintenance can be monthly, annually or instalments fixed by the
court.
• Further, alimony is mostly referred to when divorce is done by mutual
consent. Maintenance is given in cases where one party has filed for
divorce and the other party has contested it in court
Can a wife claim maintenance without getting divorced?
• Even before the divorce, if the wife has separated from her husband, she
can claim maintenance. However, the only criteria for which the wife is not
entitled to claim maintenance is as follows:
 If the wife is living with another man, she cannot claim maintenance under
Section 25 of the Hindu Marriage Act
 If there isn’t any genuine reason for the separation between the wife and
the husband, maintenance cannot be claimed.
  When husband and wife are living separately by mutual consent, they
cannot claim maintenance.

Consumer Protection Act

We buy a variety of goods and services in their day-to-day life.
Whatever we buy, we have to pay for it and derive satisfaction from its
consumption and use.
But sometimes we do not feel satisfied with the product we buy.
This may be on account of poor quality of the product, overcharging by the
shopkeeper, lower quantity of contents, misleading advertisement, and so on.
Who is a consumer?
Consumer is a person who consumes or uses any goods or services.
Goods may be consumables like wheat flour, salt, sugar, fruit etc. or durable items
like television, refrigerator, toaster, mixer, bicycle etc.
Services refer to items like electricity, cooking gas, telephone, transportation, film
show, entertainment etc.
Normally, it is the consumption or use of goods and services that makes the
person to be called as 'consumer.
But in the eyes of law, both the person who buys any goods or hires any service
for consideration(price) and the one who uses such goods and services with the
approval of the buyer are termed as consumers.
For example, when your father buys apple for you and you consume them, your
father as well as yourself are treated as consumers. The same thing applies to
hiring a taxi to go to your school.
In other words, even the buyer of goods and services whether he uses them
himself or purchases them for consumption or use by some other person(s) is
treated as consumer in the eyes of law.
However, a person who buys goods for resale (like wholesaler, retailer, etc.) or for
any commercial purpose is not treated as consumer.

• Under the Consumer Protection Act 1986, the word Consumer has been defined
separately for the purpose of goods and services.
Concept of Consumer Protection
Consumer protection means safeguarding the interest and rights of consumers.
In other words, it refers to the measures adopted for the protection of consumers
from unscrupulous and unethical malpractices by the business and to provide
them speedy redressal of their grievances.
The Consumer Protection Act, 1986
In order to protect the interest of the Consumer number of legislations are
enacted.
One of the most important social security legislations is The Consumer Protection
Act, 1986.
Object: Act is to provide for better protection of the interests of consumers and
for that purpose to make provision for the establishment of consumer councils
and other authorities for the settlement of consumers' disputes, namely District
Consumer Dispute Redressal Forum, State Consumer Dispute Redressal
Commission and National Consumer Dispute Redressal Commission.
Rights of the Consumers (origin)
John F. Kennedy, the former USA President, in his message to consumer had given
FOUR rights to consumers on March 15th 1962.
These rights are- (i) right to safety, (ii) right to be informed, (iii) right to choose and
(iv) right to be heard.
March 15th World Consumer Rights Day.
24th December - National Consumers Rights Day.
These rights had paved the way for organized consumer movement in the USA
and later it spread all over the world.
In India, the Consumer Protection Act, 1986 has also provided for the same rights
to consumers.
These rights are:
(i) Right to safety,
 Right to safety against such goods and services which are hazardous
 Has right to safety appliance made of low quality raw material
(ii) Right to be informed,
  Right to be provided with all the information on the basis of goods and
services.
 Related to quality, purity, date of manufacture
 To project the consumer from not being cheated upon
(iii) Right to choose,
 Right to choose any goods or services of their choice among other goods
 No seller can influence his choice in an unfair manner
 If done so, it will be confirmed as interference to their right choice
(iv) Right to be heard,
 The consumer can file a complaint against all those against their interest
 “The rights mentioned above have relevance only if the consumer has the
right to file his complaint”
 Several large organizations have set up Consumer Services Cells with a view
to provide the consumer the right to be heard
(v) Right to seek redress
 Provides compensation to the consumer against unfair trade practice of
seller
 Several redressal are available to the consumer by way of compensation
such as free repair of the product, taking back of the product with refund of
money changing of the product by the sellar
(vi) Right to consumer education.
 Consumer education refers to educating the consumer constantly with
regard to their rights.
 Consumers must be aware of the rights they enjoy against the loss they
suffer on account of goods and services purchased by them.
 Government policy makers are expected to educate and inform consumers
about their rights and reliefs available to them
Government has taken several measures to educate the consumers.

For instance, Ministry of Civil Supplies publishes a quarterly magazine under the
title "Upbhokta Jagran".
Doordarshan telecasts a programme like the "Sanrakshan Upbhokta Ka" and apart
from this, Consumer Day is observed on March 15 every year.

Who is a Consumer?
Sec.2(d)Consumer means any person who-
(i) Buys any goods for a consideration which has been paid or promised or partly
paid and partly promised, or under any system of deferred payment and includes
any user of such goods other than the person who buys such goods for
consideration paid or promised or partly paid or partly promised, or under any
system of deferred payment when such use is made with the approval of such
person, but does not include a person who obtains such goods for resale or for
any commercial purpose; or
(ii) Hires or avails of any services for a consideration which has been paid or
promised or partly paid and partly promised, or under any system of deferred
payment and includes any beneficiary of such services other than the person who
hires or avails of the services for consideration paid or promised, or partly paid
and partly promised, or under any system of deferred payments, when such
services are availed of with the approval of the first-mentioned person;
Explanation: For the purposes of sub-clause (i), "commercial purpose" does not
include use by a consumer of goods bought and used by him exclusively for the
purpose of earning his livelihood, by means of self-employment.

Sec. 2(e) "consumer dispute" means a dispute where the person against whom a
complaint has been made, denies or disputes the allegations contained in the
complaint;
Sec. 2 (f) "defect" means any fault, imperfection or shortcoming in the quality,
quantity, potency, purity or standard which is required to be maintained by or
under any law for the time being in force or under any contract, express or
implied, or as is claimed by the trader in any manner whatsoever in relation to any
goods; Ex: Turmeric powder sold with mixture of yellow colour.
Sec. 2 (g) "deficiency" means any fault, imperfection, shortcoming or inadequacy
in the quality, nature and manner of performance which is required to be
maintained by or under any law for the time being in force or has been
undertaken to be performed by a person in pursuance of a contract or otherwise
in relation to any service; EX: A passenger traveled in a deluxe bus but the seat
was uncomfortable.
Goods and Services
It covers all types of movable property other than money and includes stocks and
shares, growing crops, etc.
The term 'service' means service of any description made available to potential
users and includes banking, financing, housing construction, insurance,
entertainment, transport, supply of electrical and other energy, boarding and
lodging, amusement, etc.
The services of doctors, engineers, architects, lawyers etc. are included under the
provisions of Consumer Protection Act.
Instances of Consumer exploitations
The most common business malpractices leading to consumer exploitation are
given below.
(a) Sale of adulterated goods i.e., adding something inferior to the product being
sold.
(b) Sale of spurious goods i.e., selling something of little value instead of the real
product.
(c) Sale of sub-standard goods i.e., sale of goods which do not confirm to
prescribed quality standards.
(d) Sale of duplicate goods.
(e) Use of false weights and measures leading to underweight.
(f) Hoarding and black-marketing leading to scarcity and rise in price.
(g) Charging more than the Maximum Retail Price (MRP) fixed for the product.
(h) Supply of defective goods.

LAW OF CIVIL PROCEDURE

The Code of Civil Procedure (CPC) is a code that regulates the procedure to be
followed in courts in a civil case.
It is divided into two parts: the first part contains 158 sections and the second part
is comprised of the First Schedule that contains 51 Orders and Rules.
The sections provide provisions regarding the general principles of jurisdiction,
whereas, the orders and rules state the procedure and method to govern civil
proceedings in India.
It is a procedural law that prescribes the procedure and machinery to be followed
by the courts for the enforcement of the rights and liabilities in a civil issue.
PLEADINGS: Pleadings are the statements which are the backbone of every civil
suit. No civil suit will come into existence if there are no Pleadings. Pleading shall
be Plaint or Written Statements. Plaint is the statements filed by the Plaintiff in a
Civil Court to prove his claim whereas Written statements are filed by the
defendant for his defence.
PLAINT: A Plaint is a legal document that contains the content of any civil suit
which shows the Plaintiff's claim after filing suit. The plaint is the first step of the
Plaintiff in the form of a legal document for the commencement of suit and it
shows what the Plaintiff wants from that suit. Through the help of the plaint, the
plaintiff narrates or describes the cause of action and related information which is
considered as essential from the viewpoint of the suit. A plaint is considered an
important concept because it is the foremost and initial stage to initiate any
lawsuit and helps to find a civil court of appropriate jurisdiction.
WRITTEN STATEMENT: The written statement can be considered as the answer to
the plaint. It is filed by the defendant or his agent who has the power of attorney.
The plaint and written statements are part of civil litigation. In a case where there
is more than one defendant, each defendant can submit a different written
statement or one. The written statement filed by one defendant is not binding for
other defendants. A written statement is the statement of the defendant in his
defence in which he either admits the claims or denies the facts alleged by
plaintiff in his plaint. The defendant can state new facts of the case and legal
objections against the claim asked by the plaintiff.

Kinds of Jurisdiction of Civil Courts:

Territorial Jurisdiction
Pecuniary Jurisdiction
Subject Matter Jurisdiction

1.Territorial Jurisdiction: When a court exercises its powers within its territory
then it is called the territorial jurisdiction. This Court can decide within a
geographical limit of the jurisdiction of the court and it cannot exercise its powers
outside the geographical limit. For example, Sikkim will have jurisdiction to decide
matters arising within Sikkim only and not outside.
According to Section 16 of Civil Procedure Code, where the subject matter is
situated or located, the suit must be instituted there. Hence, for the suits relating
to immovable property, shall be instituted in the Court within the local limits of
whose jurisdiction the property is situated. Furthermore, it provides that in case
of a suit to obtain relief or compensation for wrong with respect to immovable
property, can be instituted within the Court’s local limits of whose jurisdiction the
property is situated or within the jurisdiction of the court where the defendant
resides, or carries on business, or personally works for gain.
ii) Pecuniary Jurisdiction: As the name suggests, this jurisdiction takes the
monetary value of the case or suit into consideration. Only if the court has the
authority in terms of the suit’s financial value to try the suit, the suit would be
instituted in that court. Section 15 of the CPC talks about the pecuniary
jurisdiction of civil courts. It states every suit shall be instituted in the Court of the
lowest grade competent to try it.” Under this jurisdiction, the Court has the
authority to hear and decide the cases on the basis of the monetary value or the
amount of the case or the suit in question. This tries to reduce the burden of a
court of a higher level.

iii) Subject Matter Jurisdiction: The subject matter of the suit is of immense value
and importance while deciding the jurisdiction. Certain courts do not possess the
Authority to try certain issues pertaining to a particular subject matter. If it is
determined that a court does not possess the jurisdiction to try that specific
subject matter, no suit can be instituted in that particular court. In other words, it
means that some courts are banned from hearing cases of a certain nature.
For example- cases related to family matters can only be dealt with by the Family
Courts. Only the Consumer forum has the jurisdiction to try consumer related
cases and not the District Civil Court.

HIERARCHY OF CIVIL COURTS

Supreme Court
 High Court

District Court and Additional District Judges

Subordinate Judge I Class

Subordinate Judge II Class

Court of Small Causes Munsif's Court or

for Metropolitan Cities Court of Sub Judge III Class

Copyright Law
Section 13 of the Copyright Act 1957: Works in which copyright subsists.-
(1) Subject to the provisions of this section and the other provisions of this Act,
copyright shall subsist throughout India in the following classes of works, that
is to say,-
(a) original literary, dramatic, musical and artistic works;
(b) cinematograph films; and
(c) sound recordings;
(2) Copyright shall not subsist in any work unless,-
(i) in the case of a published work, the work is first published in India,
or where the work is first published outside India, the author is at the
date of such publication, or in a case where the author was dead at
that date, was at the time of his death, a citizen of India;
(ii) in the case of an unpublished work other than a [work of
architecture] the author is at the date of the making of the work a
citizen of India or domiciled in India; and in the case of [work of
architecture] the work is located in India.
 Explanation.- in the case of a work of joint authorship, the conditions
conferring copyright specified in this sub-section shall be satisfied by
all the authors of the work.
(3) Copyright shall not subsist-
(a) in any cinematograph film a substantial part of the film is an
infringement of the copyright in any other work;
(b) in any [sound recording] made in respect of a literary, dramatic or
musical work, if in making the [sound recording], copyright in such
work has been infringed.
(4) The copyright in a cinematograph film or a [sound recording] shall
not affect the separate copyright in any work in respect of which or a
substantial part of which, the film, or as the case may be, the [sound
recording] is made.
(5) In the case of a [work of architecture] copyright shall subsist only
in the artistic character and design and shall not extent to processes
or methods of construction.
Section 14 of the Copyright Act 1957: Meaning of copyright.-
For the purposes of this Act, "copyright" means the exclusive right
subject to the provisions of this Act, to do or authorise the doing of
any of the following acts in respect of a work or any substantial part
thereof, namely:-
(a) in the case of a literary, dramatic or musical work, not being a computer
programme, -
(i) to reproduce the work in any material form including the storing
of it in any medium by electronic means;
(ii) to issue copies of the work to the public not being copies already
in circulation;
(iii) to perform the work in public, or communicate it to the public;
(iv) to make any cinematograph film or sound recording in respect of
the work;
(v) to make any translation of the work;
(vi) to make any adaptation of the work;
(vii) to do, in relation to a translation or an adaptation of the work,
any of the acts specified in relation to the work in sub-clauses (i) to
(vi);
(b) in the case of a computer programme,-
(i) to do any of the acts specified in clause (a);
(ii) to sell or give on commercial rental or offer for sale or for
commercial rental any copy of the computer programme: Provided
that such commercial rental does not apply in respect of computer
programmes where the programme itself is not the essential object
of the rental.”
(c) in the case of an artistic work,-
(i) to reproduce the work in any material form including depiction in
three dimensions of a two-dimensional work or in two dimensions of
a three-dimensional work;
(ii) to communicate the work to the public;
to issue copies of the work to the public not being copies already in
circulation;
(iii) to include the work in any cinematograph film;to make any
adaptation of the work;
(iv) to do in relation to an adaptation of the work any of the acts
specified in relation to the work in sub-clauses (i) to (iv);
(d) In the case of cinematograph film, -
(i) to make a copy of the film, including a photograph of any image
forming part thereof;
(ii) to sell or give on hire, or offer for sale or hire, any copy of the film,
regardless of whether such copy has been sold or given on hire on
earlier occasions;
(iii) to communicate the film to the public;
(e) In the case of sound recording, -
(i) to make any other sound recording embodying it;
(ii) to sell or give on hire, or offer for sale or hire, any copy of the
sound recording regardless of whether such copy has been sold or
given on hire on earlier occasions;
(iii) to communicate the sound recording to the public.
Explanation: For the purposes of this section, a copy which has been
sold once shall be deemed to be a copy already in circulation.
Conditions for the Grant of Copyright Registration
1. The Work Should Be Tangible
Copyright registration is granted to an original creator only for their tangible
work. In other words, you cannot obtain copyright registration for ideas,
thoughts, or concepts. Copyrights come into existence after the concept or
idea is materialised or fixed into something that can be read, or heard.
However, it can be a draft or a completed work, published or unpublished
work. So, you need to arrange your ideas and fix them into tangible form to
obtain copyright registration.

2. The Work Should Be Original

Only original work can be copyrighted. However, for this, neither uniqueness
nor quality is required. Even if the work is bad, it is still subject to copyright
protection. Similar works independently created are also individually subject to
copyright protection. However, the work should be created by inspiration
rather than borrowing from other sources.

3. The Work Should Be Creative

The mere hard work of the creator is not enough to gain copyright protection.
The work should be at least minimally creative. For example, A simple list of
cooking ingredients is probably not subject to copyright. However, a detailed
recipe of food that can be made with the ingredients may be subject to
copyright protection.

4. Other Miscellaneous Criteria for Copyright


o The original work should not have been published before
o For the work of an author who has passed by, the author
should have been a citizen of India, at the time of death
o If the work is published in India, the author has to be a citizen
of India during the publication.
Understanding Authorship and Ownership of Copyright in India

The basic essentials of Authorship and Ownership of Copyright in India have

been stated below for better understanding:

Ownership of Copyright

Ownership of copyright differs from ownership of physical materials in which a

work is fixed. The ownership of a book, for instance, does not necessarily entail
ownership of the copyright associated with it.

In the general context, the author is initially the copyright holder. However,
exceptions to this rule exist within Copyright Laws, highlighting the need to
differentiate between Ownership and Authorship of Copyright.

To clarify, if a painting, photograph, or portrait is created under the direction

of someone else in exchange for compensation, that individual becomes the
primary copyright owner.

Determining Authorship in Various Work Types

The Copyright Act, 1957, defines the author based on the work type:
 For literary or dramatic works, the author is the creator.

 For musical works, the composer holds authorship.

 For artistic works (except photographs), the artist is the author.
 For photographs, the photographer is the author.
 For cinematographic films, the producer is the author.
 For sound recordings, the producer is the author.
 For computer-generated works of literature, drama, music, or art, the
individual commissioning the work is the author.
Copyright Office
• The Copyright Act also provides for the establishment of a copyright
office which administers the provisions of the copyright law in India.
• The Registrar of Copyrights appointed by the Government of India heads
the Copyright Office situated in Delhi.
• The Copyright Office maintains the Register of Copyright which keeps the
record of all copyright issued by the office.
Registration of Copyright
• Copyright comes into existence as soon as a work is created and no
formality is required to be completed for acquiring copyright.
• However, the certificate of registration of copyright and the entries made
therein serve as prima facie evidence in a court of law with reference to
dispute relating to ownership of copyright.
• Any individual who is an author or rights owner or assignee or legal heir
can file an application for copyright of a work either at the Copyright
Office or by post or through the e-filing facility of the Copyright Office
website by complying with the requirements of application and fees.
Duration of Copyright
• Literary, dramatic, musical or artistic works enjoy copyright protection
for the lifetime of the author plus 60 years after his/her death.
• In the case of joint authorship which implies collaboration of two or
more authors in the production of the work, the term of copyright is to
be construed as a reference to the author who dies last.
• In the case of cinematograph films, sound recordings, photographs,
posthumous(after death) publications, anonymous and pseudonymous
(nick name) publications, works of government and works of
international organizations, the 60-year period is counted from the date
of publication.
 Jurisprudence

Meaning of the term Law and Jurisprudence

The English word “Jurisprudence” has been taken from a Latin word
“Jurisprudentia”. ‘Juris’ means ‘law’ and ‘Prudentia’ means ‘knowledge’.
Jurisprudence, therefore literally means ‘Knowledge of Law’.
Understanding the connotations of Law through different perspectives:
Jurists and legal scholars have not arrived at a unanimous definition of law. Some
jurists consider law a ‘divinely ordered rule’ or as ‘a reflection of divine reasons.’ It
is because of these different approaches that different concepts of law and
consequently various schools of law have emerged. Jurists hold different
perceptions and understanding of what constitutes the law and legal systems.
Aristotle defined law as “an embodiment of reasons whether in individual or the
community”. St. Thomas Aquinas classified law into Eternal Law, Natural Law and
Human Law.
Till the medieval times scholars aimed to understand law as emerging from God or
Nature. They were only required to be declared by the King to his subjects.
Later, during the 18th century, a British philosopher named Jeremy Bentham
defined law from a more secular and practical point of view. John Austin, another
British philosopher, defined law as a general command of the Sovereign backed by
sanction. H.L.A argued that law is a rule. According to Von Savigny, “Law grows
with the growth, and strengthens with the strength of the people, and finally dies
away as the nation loses its nationality.
SCHOOLS OF LAW:
Sometimes there are some fundamental similarities in the views of philosophers.
On the basis of such similarity in their views, the philosophers are categorized as
belonging to a school of law. Thus, the expression ‘school’ indicates some
fundamental line of thinking about law which is adhered to by some philosophers
1)NATURAL LAW SCHOOL: ‘Law of nature, divine law, a law which is eternal and
universal.’ Natural law is believed to exist independent of human will. It is
considered natural in the sense that it is not created by man but is found through
nature. The central idea of the Natural law states that, there is a higher law based
on morality against which the moral or legal validity of human law can be
measured. Natural law theory asserts that there is an essential connection
between law and morality. The law is not simply what is enacted in statutes, and if
legislation is not moral, then it is not law. Exponents of natural law believe that
law and morality are linked. They believe that an unjust law is not a true law. It
was also asserted that, if it is not a true law then there is no need to follow it.
Natural law is universal and common to all humanity. It goes beyond the
difference in culture, religion and various formulation of the moral law. The
Articles 14, 19, 21 of the Indian Constitution have been widely interpreted in the
Indian scenario especially by the Indian judiciary largely due to the impact of
Natural Law Theory.
Features of Natural Law School:
1. This school of jurisprudence represents the belief that they are
inherent laws that is common to all societies.
2. Natural law is also known as the moral law, divine law, the law of the
God, law of reason, law of nature, universal law and unwritten law.
3. This school of thought tells us that the law is rational and reasonable.
Natural law proposes that laws are a logical progression from morals.
Therefore, actions that are considered to be morally wrong will be
against the law.
The sources of Natural law are: God, Nature and reasons.
2)ANALYTICAL/ POSITIVIST SCHOOL: This school is also referred to as the positive
or imperative school of jurisprudence. According to this theory, law is a type of
command laid down by the political sovereign and enforceable by sanction. The
idea of positivism emphasizes the separation of law and morality. According to the
exponents of this school, law is man-made, or enacted by the legislature. Natural
law thinkers proposed that if a law is not moral, no one is under any duty to obey
it, while positivists believe that a duly enacted law, until changed, remains law and
should be so obeyed. John Austin propounded that law is the command of the
sovereign, backed by threat of punishment. Commands are prescribed modes of
conduct by the ‘sovereign’. He further viewed sovereign as a person or group of
persons, to whom a society gives habitual obedience and who gives no such
obedience to others. This idea of command and punishment for disobeying the
command is the most prominent and distinctive character of positive law. The
analytical school was basically rejected because it gave too much emphasis on
‘law as a command’ and rejected morality and custom as a source of law. The
most powerful criticism about legal positivism revolves around the premise that it
fails to give morality its due importance.
3)HISTORICAL SCHOOL: Laws are the creation of interactions between the local
situation and conditions of the people. Law should conform to the local needs and
feelings of the society. The historical school lays emphasis on the study of
historical growth of the society from which the law needs to be deduced.
Friedrich Carl von Savigny, German, propounded that the nature of any particular
system of law was a reflection of the spirit of the people who evolved it. Historical
school pays greater emphasis on custom as a source of law. As custom reflects the
spirit of the people more than the legislation, it is believed that between a custom
and a legislation, it is the custom that is a superior source of law.
The main ideas of Historical school may be summed up as follows:
1. Law is not to be made by the Sovereign; it is to be found in
customs.
2. Law is society specific. Like language, it is not universal.
3. Law grows with the growth of the society and may finally die if
the nation loses its nationality.
4. Legislation is subordinate to customs.
5. If a legislation is made ignoring the custom, it will not be
accepted by the people and will create difficulty.
6. Legislation can never exhaustively cover all the aspects on
which there is a need for regulation by law.
7. Having no legislation is better than having a bad or insufficient
legislation.
Historical school does not totally oppose legislations. There are many problems
with this approach and it was rejected on the ground of its vague,
parochial(narrow-minded) and unscientific explanation of the law.
4)SOCIOLOGICAL SCHOOL: Consider law as a social phenomenon. It visualizes law
from the perceptions of people in the society. This approach emphasizes on
balancing the conflicting interests in society. The sociological school considers law
as a tool for social change. Law is considered as a social institution to satisfy social
wants. There is a need to order the society in such a manner that maximum of the
wants get satisfied with the minimum of sacrifice. The task of categorizing and
prioritizing is to be done by the legislators with the help of law. In this way, the
scholars of sociological school consider law as a tool to satisfy maximum possible
wants. Leon Duguit, a French jurist, considered law as a tool for enhancing social
solidarity i.e. interdependence of human beings on one another. Eugene Ehrlich,
Austrian legal scholar and sociologist of law, emphasized the importance of social
sciences to understand the law. He considered law as a social institution created
to satisfy individual and social wants. Most of the thinkers of the sociological
school also emphasize the fact that law is a tool of social engineering (to shape
the society and regulate human conduct) to balance conflicting interests.
According to Roscoe Pound, an American jurist, the main features of the
sociological school can be summarized as follows:
 It highlights the purpose and function of law rather than its content,
 Law is a social institution designed for social need.
 Law is a tool to balance conflicting interests of society.
M ain criticism; The terms ‘social solidarity’ and ‘social engineering’ are vague and
create confusion.
5)REALIST SCHOOL: Realists consider laws made by judges as the real law. They
give less importance to the traditional rules and concepts as real sources of law.
Realist do not give much importance to laws enacted by legislative bodies and
consider the judge-made laws as the actual law. Realists place great emphasis on
the role of judges in the implementation, interpretation and development of law.
Realists believe that the social, economic and psychological background of a judge
plays an important part in his decision-making.
Realist school can be further divided into two parts:
i) American Realism
ii) Scandinavian Realism
Karl Llewellyn, a prominent American jurist, had identified some of the main
features of the realist school as follows:
i) Law is not static as it keeps on changing
 ii) Law is a means to a social end
iii) Society changes faster than the law
iv) Law cannot be certain. Decisions of the courts depend on many factors
like the psychological, social and economic background of the judges.
v) Case studies are important and the court room is a laboratory of law.
Major criticisms of the realist school are:
 It ignores the importance of legal rules and enactments which can lead
to confusion.
 It is incorrect to think that law evolves and develops only through
courts.
 Unwarranted emphasis on judge’s behaviour in judicial decisions.
Conclusion: From the above description of the major approaches or schools of
law, it may be interpreted that these approaches can neither be accepted in
totality nor rejected completely. Every school has its own approach of
understanding and explaining law. These theories are products of certain times
and places, which are relevant only in a given setting.

SOURCES OF LAW:
Where does law come from?
Classification of Sources: If we look around and examine the contemporary legal
systems, it may be seen that most legal systems are based on legislations. At the
same time, it is equally true that sometimes customs play a significant role in the
legal system of a country. In some of the legal systems, court decisions are binding
law.
Three major sources of law can be identified in modern society:
i) Custom
ii) Judicial Precedent
iii) Legislation
i)CUSTOM AS A SOURCE OF LAW: A custom, to be valid, must be observed
continuously for a very long time without any interruption, it must also be
supported by the opinion of the general public and morality.
However, every custom need not become law. For example, the Hindu Marriage
Act, 1955 prohibits marriages which are within the prohibited degrees of
relationship. However, the Act still permits marriages within the prohibited degree
of relationship if there is a proven custom within a certain community. Custom can
simply be explained as those long-established practices or unwritten rules which
have acquired binding or obligatory character.
ESSENTIALS OF A VALID CUSTOM:
All customs cannot be accepted as sources of law, nor can all customs be
recognized and enforced by the courts. The jurists and courts have laid down
some essential tests for customs to be recognized as valid sources of law.
 Antiquity: It should have been in practice since time immemorial.
 Continuous: It must have been enjoyed without any kind of
interruption.
 Exercised as a matter of right: Custom must be enjoyed openly and with
the knowledge of the community. It should not have been practiced
secretly
 Reasonableness: A custom must conform to the norms of justice and
public utility. A custom, to be valid, should be based on rationality and
reason.
 Morality: A custom which is immoral or opposed to public policy cannot
be a valid custom. Courts have declared many customs as invalid as they
were practiced for immoral purpose or were opposed to public policy.
(Devdasi)
 Must not be opposed to legislation: It is imperative that a custom must
not be opposed or contrary to legislation. The customary practice of
child marriage has been declared as an offence.
ii)JUDICIAL PRECEDENT AS A SOURCE OF LAW: In simple words, judicial
precedent refers to previously decided judgments of the superior courts, such as
the High Courts and the Supreme Court, which judges are bound to follow. In
most of the developed legal systems, judiciary is considered to be an important
organ of the State. In modern societies, rights are generally conferred on the
citizens by legislation and the main function of the judiciary is to adjudicate upon
these rights. The judges decide those matters on the basis of the legislations and
prevailing custom but while doing so, they also play a creative role by interpreting
the law. Given this background, it is important to understand the extent to which
the courts are guided by precedents. It is equally important to understand what
really constitutes the judicial decision in a case and which part of the decision is
actually binding on the lower courts.
i) Ratio decidendi (Reason of Decision): ‘Ratio Decidendi’ refers to the
binding part of a judgment. ‘Ratio Decidendi’ literally means reasons for
 the decision. It becomes generally binding on the lower courts in future
cases involving similar questions of law.
ii) Obiter dicta (said by the way): An ‘obiter dictum’ refers to parts of
judicial decisions which are general observations of the judge and do
not have any binding authority. However, obiter of a higher judiciary is
given due consideration by lower courts and has persuasive value.
Having considered the various aspects of the precedent i.e. ratio and obiter, it is
clear that the system of precedent is based on the hierarchy of courts. Therefore,
it becomes important to understand the hierarchy of courts in order to
understand precedent. In India, the doctrine of precedent is based on the concept
of hierarchy of courts. Under the hierarchy of courts, the decision given by the
Supreme Court is binding on all the courts throughout the territory of India. While
the decision given by the High Courts are binding on the subordinate courts within
the jurisdiction of that particular High Court, the decisions of the High Courts are
not binding beyond their respective jurisdictions. It is important to note that the
Supreme Court is not bound by its previous decisions; with an exception that a
smaller bench is bound by the decision of the larger bench and that of co-equal
bench.
iii)LEGISLATION AS A SOURCE OF LAW: Legislation by its very nature is written.
Thus, the law found in legislations is certain. It is easier to prove the existence of
rights, duties, powers and procedures, etc. if they are mentioned in the
legislations. This makes the legislation as the most important and most reliable
source of law. There are much less chances of disputes regarding the existence of
a claim which is based on legislation. Unlike the precedents which are set by the
judges, the legislations are made by the chosen representatives of the people.
This gives more legitimacy and acceptance to the legislations as a source of law.
Kinds of Legislation: 1.Supreme Legislation
When the supreme authority of a State makes a legislation, it is called the
supreme legislation. Such legislation cannot be repealed, annulled or controlled
by any other legislative authority. In India the laws made by the Parliament or the
State Legislature fall in this category. However, such laws cannot be in
contravention of Part III of the Constitution. Despite their supreme nature, the
legislations have to be in consonance with the basic structure which cannot be
altered or destroyed through amendments including fundamental rights of the
Constitution.
2.Subordinate Legislation:
Any legislation made by any authority other than the Sovereign authority is called
a subordinate legislation. They are made because the Sovereign authority
delegates the law-making power to other authorities.
Reasons for subordinate legislations are:
a) Convenience: To save time of Parliament.
b) Technicality of the subject-matter: When it is felt that the matter that is to be
dealt with in the legislation is too technical and should be dealt with a
particular body having better expertise in the matter.
c) Flexibility: In order to allow faster changes that are required to keep pace
with the changing needs of the society.
d) Expediency: To allow faster law-making when it is needed.
There are five forms of subordinate legislation which are made by five authorities
other than the Sovereign
i) Executive: As an administrative necessity the Executive is
vested with some law-making power.
ii) Judicial: For the administration of courts, the Judiciary has the
power to make rules. Especially the higher courts have to
exercise this power.
iii) Municipal: Municipal bodies have to make by-laws to ensure
that the provisions of principle legislation are smoothly
enforced.
iv) Autonomous: The autonomous bodies also have to make rules
for their administration.
DYNAMICS OF THE LAW BRINGING CHANGES IN SOCIETY AND THE SOCIETY
FORCING LAW TO CHANGE:
Law is the supreme authority in the hands of the states to regulate what is right
and what is wrong in society. Law is not only present to provide the society with a
set of rules according to which a society should function but also regulations
which the society is supposed to adopt in its own way in order to ensure welfare
to the people living there.The law should not be viewed as a definite instrument
trying to bring in social change but as a flexible instrument of a necessity to bring
in the welfare of the society. This is the essence of the Indian Constitution as well.
Law can serve society to bring in social change in two different ways which are
provided below:
1. By providing stability in society and maintain an orderly life within the
society
2. Bring in social change by changing itself so as to adjust with the demands
and needs of the society and its people.
Both these points conclude that the establishment of the rule of law for any
society is important for any democratic country like India. Law is a helpful agency
of the State that brings in a social order that the people have to abide by in order
to avoid unnecessary conflicts that can act as an obstacle for the overall
development of the society. Law can behave as a weapon of the State to create
fear in the minds of the people so that they do not by their actions infringe the
law of the land. Law, therefore, makes a society a place worth living. The second
point is Law changing itself so as to adjust with the demands and needs of the
society and its people. An outstanding example of public opinion moulding the
law is regarding the Farm laws that the Modi government wanted to bring about
but subsequently had removed the idea of doing so as there was opposition from
the public’s end regarding the bill. Thus, law can be adjusted in whichever way the
society wants it to be so as to use it as an instrument in creating a social change.
Ways in which law can be used as an instrument for creating social change: Law as
an instrument for creating social change can be used in two broad ways namely:
The society is bringing in a change in the law: When one says that laws are
bringing in a change in the society it means that law is making the society follow it
in order to bring in a difference or a change in the atmosphere that is already in
existence. For example, untouchability has been a long drawn social issue. Article
17 of the Constitution of India declares that untouchability should be prohibited.
Therefore, the law in a way brought in a social change by abolishing the social
issue to a great extent. Whereas when the society brings in a change in the law it
means that society is adjusting itself to law the way it wants. Sati was a practice
that forced the wives to be burnt alive along with her dead husband. This custom
was mandatory to be followed among the Hindus. The society brought in reforms
to abolish this practice.
Law as an instrument of social change in India: Law has been a very influential
instrument for the nation to bring in social change both in the past as well as in
the present. Several judgments have also been passed by the Indian courts
relating to social issues that have made people aware of the laws that are existing
so as to prevent themselves from getting affected by social issues.
Some of the social changes that have been created by law being an instrument
of the same have been provided below.
1.Fundamental Rights in the Indian Constitution: Fundamental rights enforced
right to live freely under Article 21, right to free and compulsory education, right
to equality under Article 14, right to freedom under Article 19 and several other
rights that prove to be essential to make a difference in the existing society. The
fundamental rights are enforceable in the court of law which says that the people
can approach the court if there is any contravention with the fundamental rights.
Right to free and compulsory Education under Article 21A was a new addition
under the right to life in the year 2002. The society felt the need to educate its
children in order to make them more aware of the social change taking place
around him or her so as to make education a compulsory necessity for all children
up to 14 years of age.
2.Public Interest Litigation: Public interest litigation serves as an instrument using
which a person representing a group of people can approach the court on grounds
that they are affected by something which is necessary to be prevented to avoid
further sufferings. The Supreme Court has been able to reduce the extent of the
locus standi thereby enabling any public-spirited person to approach the court
without any hesitation. This was indeed a great social change brought by the
Indian judiciary once again proving that law can be used as an instrument to
create social change in a way as and when required by the society.
3.Child marriage: Child marriage used to prevail until the coming of the Child
Marriage Restraint Act, 1929. This Act was further amended in the year 2006 and
came to be known as the Prohibition of the Child Marriage Act, 2006. The legal
force was necessary in order to remove this social issue from society because
society was in need of the same. Therefore, legislation was brought in for the
society to follow in order to create a social change.
4.Rape: Sexual exploitation of a person by another person for the satisfaction of
the latter. It is only through law can there be a change in the mentality of
individuals in the society so as to stop committing such a heinous offence. India
has seen a steep rise in rape cases among the females which also say that before
making the girls of our society aware, it is necessary to educate our body on the
larger part. A social change by bringing change in the minds of the people can be
brought about by creating a strong deterrent for the offenders which can as well
act as fear for them and make them think before committing anything of this sort.
5.Section 377: Section 377 of the Indian Penal Code,1860 that used to criminalise
unnatural offences that is if intercourse takes place between two men or between
two women, the same will be declared as an offence under this provision was
scraped off by the Supreme Court of India on the grounds that homosexuality is
no more an offence in the eyes of law. Supreme Court in the landmark judgment
of Navtej Singh Johar v. Union of India decriminalised all kinds of consensual sex
among adults which were inclusive of homosexual sex also. It was a welcoming
judgment for the majority of the people especially the queer community. The
Supreme Court in a way established Article 21 once again placing that every
individual has a right to life and personal liberty which should not be curbed due
to societal norms.
Loopholes in the law to make a social change: It is now necessary to point out the
drawbacks of law as an instrument for creating a social change so that such
drawbacks can be taken care of in order to enable law as an efficient instrument in
bringing about a social difference. As social issues take time to remove, the law
should be strong enough to accelerate that change. Rape laws have been laid
down but rapes are not decreasing. Every other day in the newspaper there will
be a rape incident that has taken place. This clearly states that the laws that are
already present are not strong enough to bring about social change. Racial
discrimination and caste discrimination are being faced by the world until today.
Protests, mass gatherings, everything are failing because the laws that are present
are not having a strong root to bring in a social impact. Homosexuality has been
brought to the mainstream but not many accept the same as it goes against the
social norms. It is, therefore, necessary to address these social issues with
stronger law enforcement so that people start taking the laws seriously and
carefully.
 Trademark
Trademark is a branch of intellectual property rights. Intellectual property rights
permit people to maintain ownership rights of their innovative product and
creative activity.
A trademark includes a name, word, or sign that differentiates goods from the
goods of other enterprises. Marketing of goods or services by the procedure
becomes much easier with a trademark because recognition of product with the
trademark is assured and easier. The owner can prevent the use of his mark or
sign by another competitor.

Trademark law in India

The Indian Trademark law was enforced in 1940. After the enforcement of the
trademark law, demand for protection of trademarks increased as there was
major growth in trade and commerce.
 The Trademark law was replaced with the Trademark and Merchandise Act,
1958. It provides better protection of trademark and prevents misuse or
fraudulent use of marks on merchandise. The Act provides registration of
the trademark so that the owner of the trademark may get a legal right for
its exclusive use.
 This previous Act got replaced with the Trademark Act, 1999 by the
government of India by complying it with TRIPS (Trade-related aspects of
intellectual property rights) obligation recommended by the World Trade
Organization. The aim of the Trademark Act is to grant protection to the
users of trademark and direct the conditions on the property and also
provide legal remedies for the implementation of trademark rights.

Trademark is defined in the Trademark Act, 1999 under Section 2(1) (i) (viii)
(zb) as, “trademark means a mark capable of being represented graphically and
which is capable of distinguishing the goods or services of one person from those
of others and may include the shape of goods, their packaging and combination of
colours.” Such a mark may include numerous things such as signatures, names,
labels, headings etc.
Trademark Symbols
 TM symbol: used to inform others that you think that the word is your
trademark, however not registered.
 R symbol: means that your trademark is registered in a country.
 SM symbol: used when you sell service and not physical products.

Word Mark
In this type of trademark, words of the brand name may be used in unique
designed way.
Word mark includes one or more words, letters, numerals or anything written in
standard character. A word mark could be a text of Name, Brand, Slogan or
tagline without design.
For eg; Apple, Google, Microsoft, Tata, KFC, IBM, NDTV etc.

Shape marks and trade dress

 These trademarks differentiate a product on the basis of the shape of their
packaging or the shape of the product itself.
 For example, Toblerone chocolates have a triangle shape, or Coca Cola
bottles have a protected shape.
 ‘Package’ includes any case, box, container, covering, folder, receptacle,
vessel. Casket, bottle, wrapper, label, band, ticket, reel, frame, capsule,
cap, lid, stopper and cork.
 Trade dress covers all elements that make up the overall image of a
product or service. This includes the color, shape, size, configuration, and
packaging of a product. Trade dress can also apply to anything else that
makes the presentation of a product or service distinctive and its used to
promote a product or service.

Logos and Symbols

 These are the most common forms of trademarks.
 You must have noticed the Apple logo, KFC logo, or the logo of Nike.
 These are all designed uniquely so that consumers are able to identify a
particular product’s quality and characteristics on the basis of the logo
itself.
 It also becomes a status symbol for some.

Service Marks
 A brand name or a logo that identifies a service is known as a service mark.
These service marks are used to distinguish between the services provided
by many businesses and, therefore, serve the same purpose as a
trademark. It can consist of certain words, symbols, signs, marks, designs,
or phrases, or combinations of these.
  These service marks are intangible assets of a business that form part of
intellectual property protection because they protect the business’s
services from competing businesses using names that may confuse
customers.These service marks are legally binding as they carry
infringement rights and can prevent the theft of intellectual property under
the law and provide monetary compensation to the owner of the mark.
Certification Trademark
 A certification trademark is "a mark capable of distinguishing the goods or
services in connection with which it is used in the course of trade which are
certified by the proprietor of the mark in respect of origin, material, mode
of manufacture of goods or performance of services, quality, accuracy or
other characteristics from goods or services not so certified".
 Thus, the sole purpose of a certification trademark is to indicate that
certain standards set by the proprietor of the mark have been met.

Collective Mark
 A collective mark is a trademark owned and managed by a group or
organization. It is used to identify and distinguish the goods or services of
members of the group or organization from those of others.
 Collective marks are often used by trade unions, professional associations,
or other types of organizations to identify their members and promote the
quality of their products or services.
 Collective marks differ from respective trademarks in that they are owned
and controlled by the group or organization rather than by an individual.

Well-known Trademarks
 In relation to any goods or services, it means a mark which has become so
to the substantial segment of the public which uses such goods or receives
that the use of such mark in relation to other goods or services would be
likely to be taken as indicating a connection in the course of trade or
rendering of services between those goods or services and a person using
the mark in relation to the first mentioned goods or services.
Importance of protecting trademarks
 A trademark protects the brand and provides the brand owner with the
tools to prevent someone from riding on the back of their business
(referred to as freeriding).
 Without a trademark, there would have been so much of a confusion
between different producers of the same product; for example; Coca Cola,
Pepsi and Thumps Up.
 When your trademark is identifiable, either by its uniqueness or reputation,
customers will immediately know that when they see your mark, they are
getting something specific.
  A registered trademark also provides a clear path for expansion into other
markets, both domestic and foreign.
 Having a distinctive trademark simplifies marketing and advertising.

Trademark Authority
 The Trade Marks Registry was established in India in 1940. Its head office is
located at Mumbai and branches are located in Kolkata, Chennai,
Ahmedabad and New Delhi.
 It comes under the overall supervision of the Office of the Controller
General of Patents, Designs and Trade Marks (CGPDTM), which also
supervises the functioning of registries under the Patents Act, 1970 and the
Designs Act, 2000 as well as the GI Registry.
 Trade Marks Registry maintains the Register of Trademarks which contains
information about all registered trademarks with names, addresses and
descriptions of registered users, conditions, limitations and such other
matters relating to registered trademarks.

Registration of Trademark
 The application has to contain a clear reproduction of the sign filed for the
registration, which may include, colour, design or any other three-
dimensional features.
 The list of goods or services to which this sign will apply also has to be
included in this application.
 The sign should fulfill the conditions in order to be protected under
trademark law. It should be distinctive from any other signs so that, the
consumers can identify the products.
 It is to be ensured that the signs must not be misleading or in any way
deceive the customers.
 Lastly, the rights applied for cannot be similar to that granted to another
trademark owner. This has to be ensured by the national officials.

Prerequisite of being a Trademark

 Firstly, an application for the registration of trademark has to be filed with
the appropriate national authority, national and regional.
 The application has to contain a clear reproduction of the sign filed for the
registration, which may include, colour, design or any other three-
dimensional features.
 The list of goods or services to which this sign will apply also has to be
included in this application.
 The sign should fulfill the conditions in order to be protected under
trademark law. It should be distinctive from any other signs so that, the
consumers can identify the products.
  It is to be ensured that the signs must not be misleading or in any way
deceive the customers.
 Lastly, the rights applied for cannot be similar to that granted to another
trademark owner. This has to be ensured by the national officials.

Duration of a Trademark
 A Trademark’s validity is limited up to 10 years from the date of filing of an
application.
 After that, it must be renewed if you want to continue with the legal
protection for your asset. Trademark renewal request must be filed within
6 months prior to the expiration of the registration.
 You will receive a notice of a reminder about the expiry of your trademark
registration from the registrar of trademarks.
 The letter will include the conditions of the expiration and the payment of
the fees required for the trademark renewal.
 If the registration or renewal is not obtained as mentioned in the
conditions, the Registrar will remove your trademark for the official
Trademark Register, known as the Trademark Journal.
 Once the application for renewal is approved, the trademark will be
republished in the official Trademark journal. It will give the owner further
legal protection on his/her asset while extending the trademark
registration duration for another 10 years.

Rights of a trademark holder

 A trademark registration will confer an exclusive right to the use of the
registered trademark.
 This implies that the trademark can be exclusively used by its owner, or
licensed to another party for use in return for payment.
 Registration provides legal certainty and reinforces the position of the
rights holder, for example, in case of litigation.

Trademark infringement
The trademark registration certificate gives exclusive rights to the owner to use
the brand name for their business activity which falls under the class in which it’s
registered. If a third party makes use of the brand name in course of trade
without taking permission of the possessor, it is an infringement of the right of
the owner and is termed as the infringement of Trademark.
A trademark infringement may happen in several ways:
i. by applying false trademark;
ii. Selling goods with false trade mark
iii. Falsely claiming trademark registration;
iv. Advertising, use in the course of trade, a mark which is identical with, or
deceptively similarly to the trademark in relation to goods or services in respect of
which the trademark is registered, etc.
v. Using closely or misleadingly identical brand names or logos for related
products and services; and using a mark that makes a false impression or
confusion with the registered trademark.

Remedies
 The possessor of the Registered Trademark could start legal proceedings
against the violator who had infringed the registered trademark by stating
the unfair business actions.
 In India, Section 29 and Section 30 of the Trade Marks Act, 1999 states the
remedies for infringement of trademarks.
 There are two categories of remedies that are available to the possessor of
the trademark against the unauthorized usage of its restriction by the third
party. The Trade Marks Act 1999 shields the trademark with civil and
criminal remedies.

Civil Remedies for Trademark infringement

 1.Injunction: An injunction is stated as stopping one individual from
carrying out particular activity or action through the judicial procedure.
Regarding trademark infringement, it is limiting an individual from
unauthorized usage of the trademark. By means of a temporary or
permanent stay, the Court allows protection towards the trademark
holder.
 2.Damages: Damages state towards the recovery of loss suffered by the
trademark holder through the trademark infringement. The sum of
damages would be allowed by the court after considering the actual as well
as the expected loss of the owner because of infringement.
 3.Custody of infringing materials: This type of remedy proposes that the
Court might ask the violator to deliver all the products or products that are
categorized with the brand name. In such cases, the Court might direct the
authorities to withhold the associated materials accounts and destruct all
such products. Where the trademark relates towards services, that is if a
Service Mark has been infringed; the order might be passed to stop the
provision of the services instantly by the violator.

Criminal remedies for infringement of Trademark

 Offences under the Trademarks Act are punishable with imprisonment for a
term which shall not be less than six months but which may extend to
three years.
  A penalty of fifty thousand rupees which could be increased to an extent of
two lakhs may be imposed in case any person is found to contravene the
trademark rights.
 A seizure of powers of the individual responsible for infringing could be
carried out as a criminal remedy by the police for proving the infringement.

Cyber Law
What is Cyber Law?
Cyber law handles the issues of intellectual property, contract, jurisdiction, data
protection laws, privacy, and freedom of expression in the digital space.
Help to prevent people from cybercriminal activities on a large scale from
unauthorized people, freedom of speech related to the use of the Internet,
privacy, communications, email, websites, intellectual property, hardware and
software, such as data storage devices.
Internet traffic is increased rapidly day by day, leads to higher percentage of legal
issues worldwide.
Cyberlaw offers legal protections for people who are using the Internet as well as
running an online business.
In India, cyber laws are contained in the Information Technology Act, 2000 (“IT
Act”) which came into force on October 17, 2000.
The main purpose of the Act is to provide legal recognition to electronic
commerce and to facilitate filing of electronic records with the Government.

Need for Cyber law

The world is becoming more and more digitally sophisticated and so are the
crimes. It became more transactional with e-business, e-commerce, e-governance
and e-procurement etc.
All legal issues related to internet crime are dealt with through cyber laws.
In today's highly digitalized world, almost everyone is affected by cyber law.
For example:
- Almost all transactions in shares are in demat form.
-Almost all companies extensively keep their valuable data in electronic form.
-Government forms like income tax returns, company law forms etc. are now filled
in electronic form.
-Consumers are increasingly using credit cards for shopping.
-Most people are using email, cell phones and SMS messages for communication.
-Even in "non-cyber-crime" cases, important evidence is found in computers / cell
phones e.g. in cases of divorce, murder, kidnapping, tax evasion, organized crime,
terrorist operations, etc.
-Cyber-crime cases such as online banking frauds, online share trading fraud,
source code theft, credit card fraud, tax evasion, virus attacks, cyber sabotage,
phishing attacks, email hijacking, denial of service, hacking, pornography etc are
becoming common.
-Digital signatures and e-contracts are fast replacing conventional methods of
transacting business.
Since it touches all the aspects of transactions and activities on and concerning
the Internet, the World Wide Web and Cyberspace therefore Cyber law is
extremely important.
Cyber law is created to protect online organizations and malicious people on the
network from unauthorized access and abuse.

What is Cyber Safety and Security?

Cyber safety is the practice of defending our computers, servers, mobile devices,
electronic systems, any kind of network, from malicious attacks initiated by
antisocial groups and organisations.
The cyber attackers try to get access to our personal information related to
money, work or personal information and extract money or threaten our secrets
to get public.
The attackers may try to put our computers, servers and networks offline and
make them unavailable to the general public, they can access our financial or work
databases.
Cyber Security professionals are responsible for protecting our digital assets by
detecting and stopping cyber-attacks, recovering digital resources or providing
timely warnings of potential threats.

What is Cyber-Crime?
A unlawful act where the computer network is used either as a tool, or target or
both. In other terms, cyber-crimes in India can be defined as an unauthorized
access to some computer system without the permission of rightful owner or
place of criminal activity and include everything from online cracking to denial of,
service attacks.
Some examples of cyber-crime include crimes like phishing, Credit card frauds,
bank robbery, illegal downloading, industrial espionage, child pornography, online
transaction fraud, cyber defamation, scams, cyber terrorism, creation and or
distribution of viruses, spam and so on.
Cyber criminals always choose an easy way to make big money. They target rich
people or rich organizations like banks, casinos and financial firms where the
transaction of a huge amount of money is made on an everyday basis and hack
sensitive information.
Catching such criminals is difficult. Hence, that increases the number of cyber-
crimes. Computers are vulnerable, so laws are required to protect and safeguard
them against cyber criminals.
Categories of Cybercrime
There are three major categories that cybercrime falls into: individual, property
and government. The types of methods used and difficulty levels vary depending
on the category.
i. Property: Illegally possessing an individual’s bank or credit card details.
The hacker steals a person’s bank details to gain access to funds, make
purchases online or run phishing scams to get people to give away their
information. They could also use a malicious software to gain access to a
web page with confidential information.
ii. Individual: One individual distributing malicious or illegal information
online. This can include cyberstalking, distributing pornography and
trafficking.
 iii. Government: This is the least common cybercrime, but is the most
serious offense. A crime against the government is also known as cyber
terrorism. Government cybercrime includes hacking government
websites, military websites or distributing propaganda. These criminals
are usually terrorists or enemy governments of other nations.

Specific Types of Cybercrimes: Examples

1. Child Pornography OR Child sexually abusive material (CSAM)

Material containing sexual images in any form, of a child who is abused or sexually
exploited. Section 67 (B) of the IT Act states that “it is punishable for publishing or
transmitting of material depicting children in the sexually explicit act, etc. in
electronic form.
Child Pornography:
The Internet is being highly used as a medium to sexually abuse children. The
children are viable victim to the cyber-crime. Computers and internet having
become a necessity of every household, the children have got an easy access to
the internet.
Pedophiles lure children by distributing pornographic material and then they try
to meet them for sex or to take their nude photographs including their
engagement in sexual positions.
Some contact children in the chat rooms posing as teenagers or a child of similar
age and then they start becoming friendlier with them and win their confidence.
They start sexual chat to help children shed their inhibitions about sex and then
call them out for personal interaction. Then starts actual exploitation of the
children by offering them some money or falsely promising them good
opportunities in life. The pedophiles then sexually exploit the children either by
using them as sexual objects or by taking their pornographic pictures in order to
sell those over the internet.

2. Cyber Bullying
The use of electronic communication to harass, threaten, or humiliate someone
including sending mean texts or emails, posting hurtful messages on social media
sites, or spreading rumours online.

3. Cyber Stalking:
The repeated acts of harassment targeting the victim such as following the victim,
making harassing phone calls, vandalizing victim’s property, leaving written
messages or objects.
Cyberstalking is the use of electronic communication by a person to follow a
person, or attempts to contact a person to foster personal interaction repeatedly
despite a clear indication of disinterest by such person; or monitors the internet,
email or any other form of electronic communication commits the offence of
stalking, involves repeated acts of harassment or threatening behaviour of the
cyber-criminal towards the victim by using internet services. Both kind of Stalkers
i.e., Online & Offline – have desire to control the victim’s life. Involves online
harassment where the user is subjected to a plethora of online messages and
emails. Typically, cyber-stalkers use social media, websites and search engines to
intimidate a user and instil fear.

4. Cyber Grooming
Befriending a child online for sexual abuse, sexual exploitation or trafficking.
To gain trust from the child, to obtain intimate and personal data in order to
threaten and blackmail for further inappropriate material. Perpetrators often
take on fake identities of a child or teen and approach their victims in child-
friendly websites, leaving children vulnerable and unaware of the fact that
they have been approached for purposes of cyber grooming.

5. Online Job Fraud

An attempt to defraud people who are in need of employment by giving them
false hope/ promise of better employment with higher wages. Job frauds are a
sophisticated fraud, offering fictitious job opportunities to job seekers. This type
of fraud is normally done through online services such as bogus websites, or
through unsolicited e-mails claiming to be from known companies or brands.

6. Online Sextortion
When a fraudster threatens to circulate your private and sensitive material online
using an electronic medium, if you do not provide images of a sexual nature,
sexual favours, or money.
The cybercriminal makes use of various channels like instant messaging apps,
SMS, online dating apps, social media platforms etc., to lure the users into
intimate chats and makes them pose nude or obtains revealing pictures from
them. The fraudsters later make use of this material to harass, embarrass,
threaten, exploit and blackmail the victims.

7. Phishing: Phishing is a type of fraud that involves stealing personal information

such as Customer ID, IPIN, Credit/Debit Card number, Card expiry date, CVV
number, etc. through emails that appear to be from a legitimate source. The act of
sending an e-mail to a user falsely claiming to be an established legitimate
enterprise in an attempt to scam the user into surrendering private information
that will be used for identity theft. The e-mail directs the user to visit a web site
where they are asked to update personal information, such as passwords and
credit card, social security, and bank account numbers that the legitimate
organization already has. The Web site, however, is bogus and set up only to steal
the user’s information.

8. Vishing: Vishing is an attempt where fraudsters try to seek personal information

like Customer ID, Net Banking password, ATM PIN, OTP, Card expiry date, CVV etc.
through a phone call.
The use of phone calls and voice messages to convince individuals to reveal
private information such as bank details and passwords. To convince the target
to provide information the attacker can use for financial gain, from stealing a
credit card to stealing an individual’s identity.

9. Smishing:
It is a type of phishing attack that interacts with its victims through fraudulent
text messages to lure victims into calling back on a fraudulent phone number,
visiting fraudulent websites or downloading malicious content via phone or web.
A type of phishing attack, smishing often involves sending bogus text messages
that appear to come from a legitimate source, such as a bank or a social media
site.

10. Sexting
Sex texting or sexting is sharing of sexually explicit images and videos, text
messages, or e-mails usually through internet or via electronic devices such as cell
phones.

11. Credit Card Fraud or Debit Card Fraud

Credit card fraud involves the unauthorized use of another’s credit or debit card
information for the purpose of purchases or withdrawing funds from it.

12. Impersonation and identity theft

An act of fraudulently or dishonestly making use of the electronic signature,
password or any other unique identification feature of any other person. Occurs
when a criminal gains access to a user’s personal information to steal funds,
access confidential information, or participate in tax or health insurance fraud.
They can also open a phone/internet account in your name, use your name to
plan a criminal activity and claim government benefits in your name. They may do
this by finding out user’s passwords through hacking, retrieving personal
information from social media, or sending phishing emails.

13. Ransomware
Ransomware is a type of computer malware that encrypts the files, storage media
on communication devices like desktops, Laptops, Mobile phones etc., holding
data/information as a hostage. The victim is asked to pay the demanded ransom
to get his device decrypts

Why is Cybercrime considered a grave offense?

There are many privacy concerns surrounding cybercrime when sensitive
information is intercepted and leaked to the public, legally or otherwise. Some of
that information may include data about military deployments, internal
government communications, and even private data about high-value individuals.
Cybercrime is not confined to individuals alone. Internationally, both
governmental and non-state actors engage in cybercrimes, including espionage,
financial theft, and other cross-border crimes. Cybercrimes crossing international
borders and involving the actions of at least one nation-state is sometimes
referred to as cyberwarfare.