Categories
BLAWG

Does Res Judicata apply on bail?

Res Judicata is a Latin term which means ‘putting an end to the litigation’. It means that once the particular matter is being heard by a competent court and judgement is being passed then a subsequent request to hear the plea again by the same court or other competent courts won’t be allowed. The thought behind the maxim is to avoid re-litigation of the same matter which is already being judged. The maxim can be applied by the courts when the same matter comes to the court or the situations resemble to be same as in the previous matter.

Res Judicata come through the English Law and was slowly adopted by the Indian Law System. It was first adopted by the Civil Procedure Code 1908. Sec 11 of Civil Procedure Code 1908 states that when one matter is decided by a competent court, then the subsequent re-opening of the same matter by any party is barred. The principle of Res Judicata bars re-litigation of the same matter by the same parties. In a country like India where cases are pending for 5-6 years, re litigation on the same matter unnecessarily takes up valuable time of courts. The doctrine is based on three conditions

  • The same person should not be vexed twice for the same offence.
  • End of the litigation should be in the interest of the state.
  • The decision pronounced should be accepted as correct.

Illustration

A filed case against B for committing fraud with Bombay High Court and the court ruled in favour of A and dismissed the matter. A cannot file a case against for the same offence with Delhi High court.

According to Merriam-Webster Dictionary, Res Judicata means, “ judgement, decree, award or other determination that is considered final and bars re-litigation of the same matter.[i]

What is Bail?

Bail is a kind of security that the accused will be present during all the court proceedings and includes bail bond. Getting a bail implies that the person accused is let out of the prison, but has to be present during the court proceedings. The person accused is let out on the personal guarantee. The authorities that can approve bail are police and courts. The laws dealing with bail are mentioned in sec 437, sec 438, sec 439 of the Code of Criminal Procedure 1973.

Granting of the bill depends on the factors as basic as the type of offence committed, whether it is a bailable offence or non-bailable offence, the gravity of the offence committed, the possibility of tampering with evidence, etc.

But can the principle of Res Judicata applied to bail? Application of bail can be applied any number of times until the bail is granted. There is no limitation on how many times one can file the bail application. But the basis of filing application of bail should be different every time the application is filed. The law has not mentioned any specific period after which the subsequent bail application can be file, once rejected.

A subsequent bail application after the rejection of the previous bail application can be filed with a court only when there has been changes in the grounds for granting bail. Also, the bail application should be filed with the same judge who previously rejected the bail application.

In Sharad v State of Maharashtra[ii], it was observed by the Supreme Court that a bail application filed with Sessions court is maintainable, even if a prior bail application filed with High Court is revoked.

The court while deciding to grant the bail or declining the bail should look at the evidences or conditions prevailing during the bail application. The court can decide upon factors such as offence committed, the gravity of the offence committed.

The principle of Res Judicata bars re-litigation of the matter already judged. Bail is not any form of judgement or order. It is the release of accused from legal custody. If the accused gets acquitted he will be imprisoned as per the judgement states. Bail does not comes any close with judgement, order or decree. Bail is important for the accused to prove oneself innocent. Also, bail is not easily granted and a subsequent bail application is maintainable only if there are any changes in the situation or grounds from what grounds the previous bail was sought. Just that a considerable amount of time has passed after the first bail application is not a valid ground for subsequent bail application.

Conclusion

Therefore it is clear that the principle of res judicata does not apply to bail. Bail does not in anyway puts an end to any legal court proceeding. It is a security that the person being released from the legal custody will be present to all the further court proceedings and also depends on the discretion of the court to grant bail or not.

“The views of the authors are personal

Reference:

[i] (https://www.merriam-webster.com/dictionary/res%20judicata#legalDictionary, n.d.)

[ii] (https://www.vidhiwise.in/can-accused-present-his-subsequent-bail-application-before-the-sessions-court-if-his-earlier-bail-application-filed-before-the-high-court-has-been-withdrawn-by-him/, n.d.)

Categories
BLAWG

What does shifting of the burden of proof means?

Whenever a plaintiff files a suit with the court of law, it is the responsibility of the plaintiff to prove the facts claimed in the suit, beyond reasonable doubt. Burden of proof is the responsibility of the prosecution to prove the claim is valid.

For example:- A claims that B has stolen money and gold from A. Now A has to prove beyond reasonable doubt that B has done that.

In criminal proceedings, the burden is always on the prosecution to prove that the accused has beyond reasonable doubt, has harmed the plaintiff. Failure of proving that results in acquittal of the accused. Sec 101 of Indian Evidence Act states that whoever desires the Court to give any judgment based on the facts the person asserts, to any legal right or liability, must prove that such facts exist. This is known as the “burden of proof”. Normally the one who files a suit or complaint has to prove that the accused has done the act with proper valid evidence. As the legal system is based on the phrase “innocent until proven guilty”, it puts an obligation on the prosecution to prove that the defendant has or the guilty party has done the act. Throughout the trial the burden of proof keeps on shifting from one person to another. The parties need to prove whatever they say in the court of law, with the help of valid evidences and witnesses.

The rule of burden of proof is different in civil and criminal cases as in civil cases the party who alleges anything needs to only prove the fact, but not necessary that such facts are proved beyond reasonable doubts. But in criminal cases, it is mandatory to prove any facts beyond reasonable doubts or the defendant might get the benefit of the doubt and will be acquitted.

In Jarnail v State of Punjab AIR 1996, the Supreme Court observed that in all the criminal cases the responsibility of proving that the defendant has committed the crime beyond all the reasonable doubts is upon the plaintiff to prove and it cannot depend on the evidence brought by the accused to prove that the defendant has committed the crime. The prosecution cannot just prove the facts claimed by the defendant as untrue.

When the prosecution has fulfilled his obligation of proving the facts claimed by them, then it is the responsibility of the defendant to rebut such facts by producing contradictory evidence. This situation where the burden primarily borne by the plaintiff shifts onto the shoulders of the defendant is called as ‘shifting of the burden of proof”. In a criminal proceeding after the prosecution has proved the facts beyond any doubts, the onus is then shifted on the defendant to prove the facts or he might get acquitted. This also ensures that a fair trial is being conducted and the defendant has been given opportunities to prove his innocence. If the defendant or defense does not prove the facts otherwise, then the defense stands to lose the case and the defendant is acquitted.

The important thing to note here is the burden of proof never shifts but the onus of proof keeps on shifting throughout the trial. Every fact proved first by the prosecution can be rebutted by the defense.

Illustration

A files case against B that B has committed crime against A and wants B is punished and also presents the evidence against B. Now B has the onus on his shoulder to rebut and prove his innocence by putting up evidence. This is the onus of proof which is borne by the defendant.

The thing to note is that the onus or duty of proof shifts on the defense only after the prosecution has established a prima facie case against the defendant. During the trial the prosecution might show some piece of evidence recovered from the defendant’s house and which can be of significant importance in the case and maybe also charged with the charge of theft. Now the defendant has to present some evidence or testimony that the evidence in question was purchased or owned by the defendant.

The burden of proof and shifting the burden of proof during the trial helps both the parties to put forth their arguments and evidences and assists in conducting a fair trial.

Conclusion

The shifting of the burden of proof is the duty on the shoulder of the defendant to rebut the facts or show contradictory evidence to the pieces of evidence put forth by the prosecution. The onus is on the shoulders of the defense to rebut the claims and evidence only after the prosecution has established a prima facie case against the defendant. The onus of the proof ensures that the defendant is not wrongly accused of any crime and has been given enough opportunity to make his case.

“The views of the authors are personal

Categories
BLAWG

Can you cancel a Registered Trademark?

Registered Trademark

Business is dynamic in nature. And in this changing business environment, it is really necessary to have stability in its working. For working of the business, it needs to have a recognition mark. Such a mark is the registered trademark.

 A Registered Trademark is a unique symbol or mark that a person or a company has for itself so that it can show its distinction from others. Trademark is officially registered by the owners with the government. It is generally represented with ® in the ending. A trademark when registered is valid for a period of ten (10) years. 

Such a trademark is approved only when it satisfies the eligibility of the applicant under the Trademarks Act, 1999. Once a trademark is approved, it is necessary to make sure that the applicant registering such a trademark uses it in good faith only.

Need for Registering Trademark

  • It is not only for the monetary benefits, but also for the expansion of the mark and the business.
  • It is also necessary to quality check the brand, because if it is not done, then it will destroy the reputation.
  • Section 49 of Trademarks Act lays down that the owner of the mark and the proposed user should jointly apply for the prospective user to become a registered user of the said mark.

Reasons for cancelling a Trademark by owner (Section 50 (1)(b))

  • The owner of the trademark registered the mark of identity without the bona fide intention to use it.
  • If the trademark is not used for 3 months prior to the date of application of registration or if the trademark is not continuously used for 5 years from the exact date of registration.
  • Conflicts any existing brand mark.
  • Becomes less or of no use
  • Deceives public interest
  • Creates confusion with other marks etc.

The application for the cancellation of a registered trademark is to be filed before the Trademark Registry.

Reasons for rectificatoin of Trademark

  • Not adhering to the condition entered in the Register.
  • The entered trademark was wrongly registered leading to confusion
  • Error defect in any entry made in Registry.
  • If the renewal fees are not paid.

Who can file cancellation of Trademark?

  • The aggrieved party who also registered for same mark
  • Any person who wants the mark to be removed off
  • However, it cannot be filed anonymously

Cancellation of a registered trademark by others (Section 50 (1)(c))

  • Cancellation is not an automatic process, but a petition has to be filed.
  • The aggrieved party can file the cancellation petition before the Registrar of Trade Mark or before the Intellectual Property Appellate Board.
  • The decision of the Registrar of Trade Marks is appealable before the IPAB.  The Trade Marks Act does not provide for any appeal against the order of IPAB.  However, a writ petition is maintainable before the jurisdictional High Court. 
  • When it is being used by any person other that is its registered owner for any other purpose not related to the registered trademark agreement formed Section 49 (1)(a).
  • When it deceives or confuses any existing trademark.
  • When it has been applied falsely or on the basis of unjustified reasons by its registered owner.
  • When it is being used for some other purpose or with some different intention other than the actual reason for which it was applied.

Forms used for cancelling a registered trademark

  • Form TM – O: For filling appeal for cancellation of trademark violating provisions under Geographical Indication of Goods (Regulation and Protection) Act, 1999.
  • Form TM – U: For filling appeal for cancellation of trademark registration by the registered owner or by any other person opposing the registered trademark under Section 50 of the Trademark Act.
  • Form TM – P: For filing a request for making amendments required in the register of Trademark Registrar related to cancelled or cancellation of trademark or registered owner.

The official fee for filing an online application for cancellation is Rs 4500 per mark. And the other court charges need to be borne by the petitioner.

Cancellation by trademark authorities

In cases of non-usage or inappropriate use of Trademark, the trademark authorities can issue an order for cancellation of registration of Trademark and levy a penalty under Section 103 of the Trademark Act, 1999 on its registered owner.

 Such a cancellation is however appealable before the Intellectual Property Appellate Board (IPAB).

“The views of the authors are personal

Categories
Events

RGNUL EXAGIUM 2020 International Essay Writing Competition: Submit by September 6

About RGNUL EXAGIUM

Rajiv Gandhi National University of Law, Punjab invites essay entries to Online International Essay Writing Competition, RGNUL EXAGIUM 2020. The 5th edition of this competition is being organised in collaboration with Department of English and Cultural Studies, Panjab University, Chandigarh. This competition engages students and Professionals of different disciplines in the reading of fictional and non-fictional texts.

Who all can apply?

The Competition is open to the Students pursuing Undergraduate (B.A.LL.B/BA/B.Sc./B.Com/BBA/B.Tech/MBBS) or any other Undergraduate and Postgraduate courses (MA/LL.M//MSc./MPhil/PhD) in any University/College across the globe. Competition is open to Professionals also.

Submission Guidelines

  • Only Original essays on the selected book/title that have not been published or have not been accepted for publication should be mailed to exagium2020@gmail.com
  • The Essay must be type-written in English, in Times New Roman, 12 font size and1.5lines spacing with both sides justified The citation References must be in MLA Style.
  • The Essay must be submitted in MS-Word format.
  • Word limit for the Essay in Group A is 2500-3500 words (inclusive of Bibliography)
  • Word limit for the Essay in Group B is 3000-6000 words
  • Only two co-authors shall be allowed.

Note

  • Online Registration Portal will be active from 6th August to 6th September 2020.
  • Participants will Register Online and Submit Soft Copy of the Abstract (500 words) along with a brief Bio-note by 17th August 2020.
  • Participants should observe Covid-19 Protocol/ Govt. Guidelines and avoid Hard Copy Submission. Soft Copy of Essay must be submitted on or before 6 September 2020.

Registration Fee

Students(National) Group A or Group B  Rs.1000/-(Single Author); Rs. 1500/-(Co-Author)
Professionals(National) Group A or Group B  Rs.2000/-(Single Author); Rs. 3000/-(Co-Author)
Professionals(International)30 USD (Single Author); 55 USD (Co-Author)

No Registration Fees for International Participants (Students)

Awards

  • Prize Cheques and Certificates of Merit shall be awarded to 3 best essays.
  • Certificates of Participation shall be given to all Authors.
  • 1st Prize: 5000 INR
  • 2nd Prize: 4000 INR
  • 3rd Prize: 3000 INR
  • Special prize Exagium Ambassador : 3000 INR

Important Dates

  • Soft copy of Abstract: 17th August 2020
  • Soft copy of Essay: 6th September 2020
  • Declaration of Result: November 2020

Contact

Student Coordinators:

Dikshi Arora: 09024559982

Raghav Chandak: 07023314128

Pushpendra Sharma: 07300252667

Behlin Kaur: 08544824708

Important Links:-

Flyer :-  https://www.rgnul.ac.in/PDF/901c6244-fe67-4ef0-bef0-eb56a18ba10a.jpg

Brochure:-  https://www.rgnul.ac.in/PDF/92331d8f-44d8-4903-820f-24fcf1ac23ef.pdf

Registration Form :- https://www.rgnul.ac.in/PDF/f336031f-6205-4bb5-a68a-e1f6ce723d41.pdf

Website :-  https://www.rgnul.ac.in/events.aspx?ref_id=86

Categories
Events

Expressions@RGNUL – Online International Inter-University Competition

ABOUT  RGNUL

Rajiv Gandhi National University of Law (RGNUL) Punjab is a premier education institute. It has been established by State Legislature of Punjab by Punjab Act No. 12 of 2006. The University acquired the approval of the Bar Council of India (BCI) in July 2006. In 2007, the University got registered with the University Grants Commission (UGC), New Delhi and under Section 2(f) of the UGC Act, 1956. The university has been credited with ‘A’ grade by NAAC in 2015.

ABOUT Expressions@RGNUL

Rajiv Gandhi National University of Law, Punjab (Established under Punjab Act No. 12 of 2006) (Accredited with ‘A’ Grade by NAAC) in collaboration with Kamaljit Neuropsychiatry Centre Mukerian, Punjab organises EXPRESSIONS@RGNUL Online International Inter-University Competition 29th – 31st August 2020. Expressions@RGNUL is an academic event with a vision to promote new ideas. It provides a platform to the young minds to test their perspectives on various issues. The third edition of the event, in testing and challenging times of Covid19, is an endeavour to engage students in creative activities. It will provide them an opportunity to test their reading, writing and speaking skills. RGNUL invites Undergraduates, Postgraduates and Research Scholars of all disciplines to articulate their thoughts on the theme: Lockdown Times and E-Learning.

WHO CAN PARTICIPATE?

  • Undergraduates, Postgraduates and Research Scholars of all disciplines from National and International Institutes.
  • Students enrolled for courses in September 2020 are also eligible for participation.

 ACTIVITIES

1. ESSAY WRITING COMPETITION (ENGLISH)

2. DEBATE

 3. POETRY RECITATION (HINDI, ENGLISH OR PUNJABI)

4. ELOCUTION

5. BOOK TALK (ENGLISH & HINDI )

6. POSTER MAKING

REGISTRATION

  • Single Activity- Rs. 1,000/-
  • Three Activities- Rs. 2,500/-
  • Co- Author (Essay)- Rs. 1,500/-
  • Debate Teammates- Rs. 2,000/-

No Registration Fee for International Participants

In case Co-Authors/ Debate Teammates are participating in additional activities(1+2=3), they must fill separate form for the same and Registration Fee Rs. 1,500/- (Total 1,000+1,500 = 2,500/- for 3 activities)

IMPORTANT DATES

  • Last Date for Registration : 17th August 2020.
  • Preliminary Rounds 20th August 2020 onwards.
  • Registration Form and Online Link for Payment available on www.rgnul.ac.in.

PRIZES

  • Essay Writing: 1st Prize: 2500 INR, 2nd Prize: 1500 INR
  • Debate (Team): 1st Prize: 6000 INR, 2nd Prize: 4000 INR
  • Elocution: 1st Prize: 3,000 INR,  2nd Prize: 2,000 INR
  • Book Talk: 1st Prize: 2500 INR,  2nd Prize: 1500 INR 3rd Prize: 1000 INR
  • Poetry Recitation: 1st Prize: 2500 INR, 2nd Prize: 1500 INR 3rd Prize: 1000 INR
  • Poster Making: 1st Prize: 2000 INR, 2nd Prize: 1000 INR

SPECIAL PRIZES:

Best Speaker: 3000 INR, Best Team : 5000 INR

Ambassador Expressions@RGNUL : 5000 INR

CONTACT/QUERIES

E-mail Id:- expressions@rgnul.ac.in

STUDENT COORDINATORS

Sakshi Sonker- 08968317207

Sukhandeep Singh – 07696327313

Important links:-

Website- https://www.rgnul.ac.in/events.aspx?ref_id=92

Poster-https://www.rgnul.ac.in/PDF/2e71b188-da64-429b-938c-9d7ddc2d3f12.pdf

Registration Form-https://www.rgnul.ac.in/PDF/4c4aa415-fe3d-4a5b-9c75-e6d1b83849c1.pdf

Brochure- https://www.rgnul.ac.in/PDF/b53453e1-91ee-4b75-b6c9-c90e8fe12ce6.pdf

Institutional Registration :- https://www.rgnul.ac.in/PDF/4c4aa415-fe3d-4a5b-9c75-e6d1b83849c1.pdf

Categories
BLAWG

What to do when any E-Commerce website refuses to pay refund?

E-Commerce

An E-Commerce website is a kind of a software application, which provides a platform for those who want to spread their business online through online marketing and sales.

There are 3 main ways to classify the different types of ecommerce platforms:

a. Open-Source: Hosting Environment: Cloud or On-Premise, though all patches and platform updates require manual implementation across the board. Open-source ecommerce platforms are ecommerce solutions in which you can modify all aspects of the code.

b. SaaS (Software as a Service): SaaS ecommerce platforms remove much of the complexity from running an online business because instead of managing the software yourself. Instead of building and developing a custom solution or an open-source solution, you essentially “rent” the platform.

c. Headless Commerce: Headless Commerce is a version of CaaS ecommerce in which the shopping cart is decoupled from the Control Management System (CMS).

The two types of web hosting environments are:

a. Cloud: Hosted Elsewhere.

b. On-Premise: Self-hosted on your business premises.

Self-hosted ecommerce platforms: Self-hosted ecommerce platforms require online store owners to find hosting, deal with installations and oftentimes perform updates to the software manually.

Cloud-hosted ecommerce platforms: Cloud-hosted ecommerce platforms offer hosting for their customers via off-site solutions like Amazon Web Services. This means the cloud platform manages uptime for the brand.

Benefits Of E-Commerce

It helps the business owners to customise their products as they wish for, and this benefits the business owners as well as the customers.

Key Features

  • Run on a single, unified platform.
  • Provide a 360° customer view
  • Intelligently managing orders. 
  • Deliver innovative customer experiences. 
  • Support unlimited expansion. 

Law Governing E-Commerce

  • Consumer Protection Act, 1986
  • Information Technology Amendment Act, 2008
  • Policies laid down by regulatory bodies like Reserve Bank of India, Indian Medical Association (IMA) etc, depending on the product/service sold. For example, IMA regulations will apply in cases where medicines are sold online.

What if the E-Commerce platform refuses to refund?

a. If you are within the refund time period, and paid through your credit card, and they are ignoring your refund request, then contact your credit card company who have the leverage to take your money back from them on your behalf. This process is called chargebacks.

b. Another way is to damage the e-commerce business’ image on social media and reach out to large public regarding the same, and they will refund your money, so that you stop defaming them.

c. It is advisable to have a written communication with them, if oral communication does not work, as this becomes a proof for further use. If, even after the written communication they do not attend to your grievance, then file a case in the consumer court. 

d. If you don’t get any response after the deadline, approach the consumer forum/commission. Take help from a local consumer group if needed. According to an order from the Supreme Court dated August 2017, e-commerce consumers can file complaints at the consumer forum in their own city.

In the case of State of Delhi v. Mohd. Afzal & Others[1]  the Courts held that Electronic records are admissible as evidence and further observed that if someone challenges the accuracy of a computer evidence or electronic record on the grounds of misuse of system or operating failure or interpolation, then the person challenging it must prove the same beyond reasonable doubt. 

e. In some cases, e-commerce companies that are intermediaries, try to pass on the liability to the manufacturer saying that the payment finally goes to them. But there are provisions, such as in the IT Act, that require e-commerce companies to exercise due diligence.

“The views of the authors are personal

Reference

[1] 107 (2003) DLT 385

Categories
Intellectual Property Rights

Difference between Copyright and Design Protection

To start with, the main divisions of the intellectual property rights are: –

  • Trademark rights which are available for name, shape, logo etc.;
  • Copyright which is available for artistic creative works in art, literary, music etc.;
  • Patent that grants monopoly to use and exploit a particular product or process for a certain period; and
  • Designs rights which gives protection for the 3D objects like cutlery, trade dress, motifs and patterns on fabric/ceramic etc.

Copyright

This means that the owner of the intellectual property has complete rights over it, and no other person can copy it directly. Copyrights law protects the original content of the owner from being infringed or duplicated. An original work is when, the owner, with his own thoughts writes a content, void of duplication. This type of work is known as an Original Work of Authorship (OWA). Any person with his original work, done by his intellect, has a copyright automatically. But the owner can get it registered if he wants to, so that there would not be any legal problems in the future.

Although copyrights, trademarks, and patents are frequently used interchangeably, they offer different forms of protection for intellectual property.

For the copyright in Australia, it is an automatic process, i.e. you do not have to apply for copyrights protection like in India. It gets protected as soon as it takes a physical form. However, it is necessary to understand that one cannot protect mere ideas. It has to have a tangible form to protect it.

Once it is protected, one has to get the author’s authorization to reuse it, else, it is called infringing the owners right. But it is necessary that for infringing the owners right, the person should have used a substantial part of it. Every rule has an exception, so does this. One can use these without the consent of the owner for the following purposes:

  • As a study material
  • Criticism of the owner’s view
  • Reporting to media, etc.

It is also important to make sure that, the content material should be fair, the degree of which differs from case-to-case.

Protection in copyright is granted from the moment it is created.

Design protection

This includes making, offering, putting on the market, importing/ exporting a particular design that can be used only after the authorization is given by the owner of the design.

Once you create a design that meets the needs of the person who asks you for the design, then, such a plan can be implemented/ executed, only after the registration of such.

As per Indian Law, under the Design Act of 2000, Industrial Design protection is a type of intellectual property right that gives the exclusive right to make, sell, and use articles that embody the protected design, to selected people only.

The pre-requisites for a design to qualify for protection are as follows:

  • It should be novel and original.
  •  It should be applicable to a functional article.
  •  It should be visible on a finished article.
  •  It should be non-obvious.
  • There should be no prior publication or disclosure of the design.

Designs have the shortest term of 15 years–10 years further extendable to another 5.

Say, you write sown a tune of your own, with your own intellect, and you protect it under Copyrights Act of 1957. But later, you upload it, or use it for some other purpose, and many people listen to it and use it, then it loses its copyright and comes under the realms of design law.

It was held in the case of Samsonite Corp vs Vijay Sales[1] that once an object has been sold in over 50 units, the only protection is under the Designs Act. The design sought for protection must be new or original, i.e., not disclosed to the public in India or elsewhere in the world by prior publication or by prior use or in any other way. Furthermore, the design shall not include any scandalous or obscene matter or any feature that is purely functional in nature.

Differences

  • Copyright is an automatic right which protects original literary, dramatic, musical and artistic works. A Design right protects the visual appearance of an object or part of an object.
  • A bare perusal of the Copyright Act, 1957 (“Copyright Act”) would reveal that a copyright subsists is any original work which grants the author an exclusive right over such work. The Designs Act, 2000 (“Designs Act”) defines a design as an external feature that is applied to an article and judged solely by the eye.
  • Protection under copyright starts when the work gets a tangible form, but only when the design is registered it is protected.
  • Copyright is an inherent right, whereas the design is a statutory right. 
  • An owner of a design will have to forego protection under copyright law, once the design has been granted registration.

A case in Delhi High Court[2] held that that a copyright in an unregistered design shall cease, as soon as the article to which the design has been applied, has been reproduced more than fifty times by an industrial process.[3]

“The views of the authors are personal

Reference:

[1] 73 (1998) DLT 732

[2] Ritika Private Limited v Biba Apparels Private Limited MANU/DE/0784/2016

[3] Section 15(2) of Copyrights Act, 1957

Categories
BLAWG

Do daughters have a Right on their Father’s Property?

This article will be divided into:

a. Hindu Succession Act, 1956; Hindi Succession (Amendment) Act, 2005

b. Inheritance under Muslim Law

Hindu Succession (Amendment) Act, 2005

As per Hindu Succession Act, 1956, Hindu female had no rights on the property once she is married. This means that she can enjoy her father’s property till she is unmarried. Only the male members of the family were given succession. This is because, once she gets married, she is treated as the member of her husband’s family.

Under Hindu law, a Hindu Undivided family (HUF) consisted of all those members/ lineal descendants of a common ancestor. Only the members of the HUF get the right of property. So, when a woman gets married, she ceases to be the part of the family. But this was curtailing her rights on her parental property. On 9th September 2005, this was thus amended, and the daughters were given the same rights as sons had. Woman, married or unmarried, was considered as the member of HUF, after the Hindu Succession (Amendment) Act, 2005.

In spite of the amendment, there was a condition that the daughter can avail the benefit of the 2005 amendment, if her father and daughter were alive on 9th September, 2005. But, the Supreme Court 2nd February, 2018, made a general rule that the daughters dead or alive after the amendment can avail the benefit of the amendment. If she was dead at the time of the amendment, her children can claim her share of the property.

If the property is ancestral:

Ancestral property is essentially four generations of an inherited undivided property with male heredity. Descendants, regardless of a daughter or son, has the birth-right to an equal share in the property. This means that the daughter cannot be deprived the right of getting her share from the ancestral property.

If the property is self-acquired by the father:

If the property is bought by the earnings of the father, it is said to self-acquired by him. Nobody can demand their right on these self-acquired properties. It is at his wish and will to give the right to any person he wishes to. If the father wishes, he can even write it for a beggar, if he wishes to.

Death of father intestate:

If the father dies without writing his will for his property, every Class I heir i.e. mother, son and daughter; everyone has an equal right on that property.

For married daughters:

After the 2005 amendment, the daughter has been recognised as a coparcener and her marital status makes no difference to her right over the fathers property. However, before this amendment, after her marriage, she seized to be the coparcener.

Muslim Law of inheritance

The Muslim lawof inheritance derives its principles from four principal sources of Islamic law which are: the holy Koran, the Sunna i.e. the practice of the Prophet, the Ijma i.e. the consensus of the learned men of a community on a particular point of law and the Qiya i.e. the analogical deductions of what holds just and right and in line with the principles of God. The Muslim Personal Law (Shariat) Application Act, 1937 is applicable to non-testamentary succession, i.e. succession in the absence of a will. For testamentary succession, which is when the deceased has made a will, then the Muslim Shariat Law is applied to succession, as practiced by the Sunni and Shia Muslims.

There is also no difference between a self-acquired property or ancestral property in Muslim law. When a Muslim person dies, all the property that the person may have acquired in his lifetime and also any property that the person may have inherited from his ancestors can be inherited by his heirs.

Types of heirs:

There are two types of heirs in under Muslim law: Sharers and Reliquaries. Sharers are entitled to specific fractions of the property of the deceased whereas Reliquaries, as the name suggests, are distributed any residual share in the property.

No right by birth:

Under the Hindu law, a coparcenary gains an interest or right in the property of the deceased the moment such a coparcenary is born. But because there is no concept of a joint family under Muslim law, there is no concept of right to property by birth either. Muslim Lawfollows the principle of ‘nemo est haeres viventis’ i.e. nobody can become an heir to a living person.

Inheritance rights of Females:

Unlike Hindu Law, there is no difference between the right to inheritance between men and women under Muslim law. Under Shia law, women usually receive half of the share amount that the males get. This is reasoned so because Muslim women receive maintenance and also mehr at the time of marriage whereas Muslim men are entitled only to ancestral property. However, whether or not this actually qualifies as equality between men and women is debatable.

Distribution of property under Muslim Law:

a. Per capita distribution: Per capita distribution of property is mainly followed by the Sunni Muslims. In per capita distribution, the property is divided equally among all the heirs. This means that the number of heirs of the deceased determines the amount of share for each heir in the property of the deceased. The branch of the family to which the heir belongs to does not influence the inheritance that he or she is subjected to receive.

b. Per Stripe’s distribution: Per stripes distribution of property is followed by the Shia branch of Islam. Under per stripes distribution, a property is distributed among the heirs of a branch (strip) of the family. Accordingly, the family branch and the number of people that exist in that particular branch of the family will determine the amount of share in the property of the family members.

Right of the widow:

Widows are also entitled to property in a succession as per Muslim law.

If the widow does not have any children, then she will be entitled to one- fourth of the property that her deceased would receive. The amount that she will actually receive would be calculated after paying off the debts and legal and funeral expenses of her husband.

If the widow does have children or grandchildren, then she will be entitled to one- eighth of the share of her husband’s property.

But a widow has no right to inheritance if she had married her husband while the husband was ill and died at a later point of time.

“The views of the authors are personal

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Case Summary

Court on its own motion vs The State

In the High Court of Delhi, New Delhi
CLR.REF 2/2019
Petitioner
Court on its own motion
Respondents
The State
Date of Judgement
28 February 2020
Bench
Hon’ble Mr. Justice Manmohan; Hon’ble Ms. Justice Sangita Dhingra Sehgal  

Fact of the case

It was brought to the attention of the courts that Ministry of Home Affairs (MHA) issued Comprehensive Guidelines regarding service of summons/notice/judicial process on persons residing abroad that laid down the procedure for the service of summons on witness residing abroad for the purpose of recording their evidence. The guidelines clarifies that MHA on behalf of Central Government had entered into reciprocal arrangements with foreign Government for service of summons/notice/ judicial processes as required under section 105 of CrPC. The reciprocal arrangements were in the form of Mutual Legal Assistance Treaties with other countries.

Arguments Advanced

Arguments from the Respondents

During the pendency of proceedings, the MHA revised and updated the guidelines to cover within its scope the issuance of letter Rogatory, mutual legal assistance request, service of summons, notice, judicial processes including request for video conferencing, protection and preservation of data, extradition request. The comprehensive and updated guidelines on Legal Assistance in Criminal Matters was approved by MHA and placed before the court. Salient features of the said report was handed over by Amicus Curiae and Union of India and Government of NCT of Delhi were directed to file response. Union of India filed the response and Delhi police also filed a status report.

Response by amicus Curiae (court on its own motion)

Report submitted recommended that the investigating officer should collect relevant personal information of witnesses residing in abroad so that the process of summoning shall immediately commence.

Issue

Whether amendments are necessary in Delhi Criminal Court Rules 2015 to incorporate the costs and payments for transmission of summons, notice, judicial processes, payment of witness including expert witnesses etc.

Decision

The following as directed by Amicus Curiae:

  • Amendment of rules stating expenses for service of summons, notice, judicial processes on person residing abroad and for recording of statement or collecting evidence through video conference
  • Guidelines laying down the procedure of video conference
  • To replace the existing rule 3.4(i) and incorporate rule 6.12 which is to be placed before Information Technology Committee of the Court for consideration
  • practice directions to all trial courts in case of person residing abroad
  • for the purpose of service of summons etc MHA guidelines to be followed
  • execution of non bailable warrant of arrest to be forwarded by Ministry of External Affairs
  • for service of summons etc trail court should ensure compliance of Fig. 4.6 of MHA guidelines under its sign and seal and requirements of checklist in Fig 4.3 should also be complied
  • whether evidence is to be recorded through video conference should be mentioned at the time of issuance of summon
  • Maintaining of adequate time gap between the issuance of summon and recording the evidence and after receiving information follow the process, as mentioned. Trial court should ensure date as fixed after following rules used productively.
  • Direction to Delhi police – In view of Para 4 of status report given by Delhi police no further orders were issued. However the Investigating officers ordered to ensure the information regarding service of summons and details pertaining video conferencing links are provided to the trial court after obtaining the same from MHA.
  • Direction for training – the training sessions for judicial officers, technical staff, and police officers must be conducted to familiarize with the above mentioned guidelines.

Judgement

Copy of MHA guidelines 2019 must be uploaded on websites of the court and District courts.

“The views of the authors are personal