This undertaking only implies that the disabled people are treated by the airline operators as goods and not as human beings. The Directorate General of civil aviation, the body in charge of regulating air transport services has not come out with any rules or regulations in respect of safety and protection of rights of the persons with disability or reduced mobility. We therefore have to look into the rules and regulations of other nations.
In this line the first significant regulation is the Regulation (Ec) No 1107/2006 of The European Parliament and of The Council of 5 July 2006, Concerning the Rights of Disabled Persons and Persons with Reduced Mobility when traveling by air. This Regulation establishes rules for the protection of and provision of assistance to disabled persons and persons with reduced mobility travelling by air, both to protect them against discrimination and to ensure that they receive assistance. Art.1
This regulation takes in to account the very vocabulary that is used to describe persons with disability. It defines reduced mobility as disabled person’ or ‘person with reduced mobility’ means any person whose mobility when using transport is reduced due to any physical disability (sensory or locomotor, permanent or temporary), intellectual disability or impairment, or any other cause of disability, or age, and whose situation needs appropriate attention and the adaptation to his or her particular needs of the service made available to all passengers; Art. 2
In this definition the term disability is removed from the context of physical condition to the ability to move in the given built environment. It includes aged and the children within its ambit along with persons with certain physical conditions impairing their free mobility. It therefore uses the term person with reduced mobility.
It recognizes the Right of the persons with reduced mobility to reservation and embarking in flights. Art. 3
An air carrier or its agent or a tour operator shall not refuse, on the grounds of disability or of reduced mobility: (a) to accept a reservation for a flight departing from or arriving at an airport to which this Regulation applies;
(b) to embark a disabled person or a person with reduced mobility at such an airport, provided that the person concerned has a valid ticket and reservation.
In case of specific situations where the embarking cannot be made the regulation in art. 4 Provides as follows:
In the event of refusal to accept a reservation on the grounds referred to under points (a) or (b) of the first subparagraph, the air carrier, its agent or the tour operator shall make reasonable efforts to propose an acceptable alternative to the person in question. A disabled person or a person with reduced mobility who has been denied embarkation on the grounds of his or her disability or reduced mobility and any person accompanying this person pursuant to paragraph 2 of this Article shall be offered the right to reimbursement or re-routing as provided for in Article 8 of Regulation (EC) No 261/2004. The right to the option of a return flight or re-routing shall be conditional upon all safety requirements being met.
The regulations mandates cumpolsory training for all the staffs even if they are employed by a third part contractor.
Art. 11 Air carriers and airport managing bodies shall:
(a) ensure that all their personnel, including those employed by any sub-contractor, providing direct assistance to disabled persons and persons with reduced mobility have knowledge of how to meet the needs of persons having various disabilities or mobility impairments;
(b) provide disability-equality and disability-awareness training to all their personnel working at the airport who deal directly with the travelling public;
(c) ensure that, upon recruitment, all new employees attend disability related training and that personnel receive refresher training courses when appropriate.
Article 12 provides for Compensation for lost or damaged wheelchairs, other mobility equipment and assistive devices whilst being handled at the airport or transported on board aircraft, in accordance with rules of international, Community and national law.
The regulations of the EU provides for filing complaints, appeals, redresses compensations for breach of regulations etc.
Access to Air Travel for Disabled People – Code of Practice ; united kingdom is the ratifying code which ratifies the EU Regulations. It emphasizes that the costs of providing assistance to disabled passengers at airports should not be passed directly to those disabled passengers and that it is cost effective to ensure that access for disabled people is included from the outset as part of the initial design of an aircraft and airport terminal and this directly benefits all customers. for its full text visit www.dft.gov.uk
Sunday, July 22, 2007
Saturday, July 21, 2007
Consumer responsibility in civil aviation - part 1
Rajeev Rajan, Meenakshi and Smith are my motivation for writing this blog. They are the coordinators of the Disability Legislation Unit, South and they themselves are persons with disability (reduced mobility). This unit is a joint project of Vidya Sagar (Formerly Spastics Society of India, Chennai) and National Centre for the Promotion of Employment of Disabled People (NCPEDP), which works towards ensuring the implementation of the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995. These organizations work to raise awareness of the rights of Disabled People in the society and to lobby with the policy makers and the decision makers to frame appropriate policies. Rajeev is also one of the sub committee members of the National Trust a Statutory body formed by the National Trust Act.
These three persons travel extensively throughout the country and even abroad, campaigning for the Rights of the Persons with Disability. Every time they travel by flight they come back with a story of violation and discrimination faced by them from the airliners. The discrimination does normally revolve around accessibility into the aircraft and in the aircraft. The incident on 18th June, 2007 with the air Sahara, now jet light, is totally different than all other previous experiences. Rajeev was totally denied of his right to travel in the aircraft without an escort.
Rajeev is a Person with Cerebral Palsy, a nervous condition affecting the locomotory functions and hence he uses wheel Chair for his mobility. He was invited by the National Trust for a meeting scheduled on 18.06.07, at Delhi to discuss and plan Training on Disability and Equity for the Local Level Committee members. For this he had booked tickets to fly by Air Sahara on 18th June 2007, which was scheduled to take off at 6.35 A.M.
At the time of check in one of the Air Sahara employees came to him and asked him if he had an escort. Rajeev told him that he was a frequent traveller and used to travel alone all time, The Air Sahara Employee did not listen to what was said and took him to the Air Sahara cabin, made him to wait outside the cabin and asked him for his fit to fly certificate. Then they asked for the boarding passes of his previous travel. They also wanted him to give his residence number. Finally, they told him that he can’t travel and tried to push him with the wheel chair. When he told them firmly that he needed to fly. They called the police to send him out of the Air Port. A couple policemen knew him, as he is a frequent flyer. The policemen explained to the Air Sahara personnel, but the flight took off without him. After a long verbal war, The Air Sahara Personnel spoke to the Director of Vidya Sagar and after this offered to fly him by different Air Lines. The Air Sahara at last tried to arrange for the travel through the Spice jet, which is which is another air travel service provider undertaken by Air Shara. Even Spice Jet refused to accommodate him because of his disability.
Due to all these unbearable incidents Rajeev was unable to travel. This patently against the Right to move thought the Indian Territory [Art.(19)(1)(d)] and Right to Equality before the Law and Equal Protection of Law within the territory of India[Art.(14)]Subsequent to the above incident the Disability Activists highlighted these violation Rights through the media. Following the uproar Hindustan Times and the Indian Express and several other local newspapers reported on 21.06.07 that the Jet light apologises for the incident. However, on 22.06.07 it was reported in the Hindustan times, that the air Sahara withdrew the apology.
On 19.01.04 when Rajeev travelled in air Sahara Kolkatta. At that time he was forced to take a tablet by a lady accompanied by the Airhostess. The lady did not even identify herself. Neither of them told the name of the tablet. A Complaint was filed in this regard before the Special Commissioner Disabilities, Chennai which was later forwarded to the Chief Commissioner and it is still pending. We are also able to find out that there are atleast three cases pending against the Air Sahara/ Jet Airways in Case Nos. 3111/05, 3196/06 and 3299/2006 before the Chief Commissioner.
The Chief Commissioner has taken up the recent incident of denial of right to travel Suo motto and has issued summons to the Air Sahara. In this notice the Chief Commissioner office has clearly stated that the persons with Cerebral palsy do not require an escort to travel and that the Cerebral Palsy is not a medical condition.
A Representations was sent by the disability legislation unit of Vidya Sagar to Air Sahara by fax on 23.06.2007 and a reply has been sent by the acting Chief Executive of the Jet light claiming that they acted in the terms of the International Air Transport Association (IATA) Medical Manual and that they have followed all mandatory guide lines set out in the Manual. They also say that Rajeev has not followed the procedure prescribed in Clause 6.3.2. of the manual that requires a MEDIF form. This requires us to go into and study the IATA Medical manual.
The Manual begins with a disclaimer notice. This disclaimer states that:
“The information contained in this publication is subject to constant review in the light of changing government requirements and regulations. No subscriber or other reader should act on the basis of any such information without referring to applicable laws and regulations and/or without taking appropriate professional advice.”
This clearly goes to say that the Manual is only aid to a airline operator and do not specify any guidelines as such. Airline operator has to follow the local laws of the specific country and take expert opinion in each and every case of doubt.
As far as the requirement of the MEDIF IS CONCERNED the manual says as follows.
“6.3.2 MEDIF and FREMEC
If a passenger requires special handling arrangements, Part 1 of the medical information form (MEDIF) is used. If a passenger also requires medical attention, Part 2 is filled in by the attending physician. See Appendix ‘E’.
In Part 2 all medical information shown is strictly confidential. Whenever medical clearance is necessary, this form must be filled in. If no medical clearance is required and only special handling assistance is necessary, only Part 1 of the MEDIF is completed”.
This is very much clear in its plain language that the MEDIF is required only for a person who requires special handling. In the case of Rajeev he does not require special handling and for this reason he does not require MEDIF. Moreover the Air Sahara admits Clause 6.1.2 of the Manual, in para 2 of their reply letter. This clause illustrates kinds of persons requiring medical clearance. This again shows that Rajeev is not a person who requires medical clearance.
The Air Sahara has not showed a single rule or regulation that requires a person with Cerebral Palsy or any other disability of like nature cannot travel without an escort. These facts establishes that the Air Sahara is not ready and willing to provide the service as required by them even under several other provisions of the manual. In the first instance they do not have a medical practitioner team with them as required under the manual if no it would have been sufficient for them to take an expert advice from the medical team in respect of the safety concerns and responsibilities to accommodate a person with Cerebral Palsy. And the medical team would have explained them what Cerebral palsy is all about. It is for this reason that the service of the Air Sahara is against the provisions of the manual, which is projected by them as their sacrosanct document.
AIR DECCAN is no less than Air Sahara. Smitha and Meenakshi flew in Air Deccan flight No. DN 617 from Chennai to Kolkatta on 08.09.2006 to attend the 7th National Women’s Movement Conference held during September, 2006. Smitha has a condition called as Demilination (multiple sclerosis) and Meenakshi has low mobility due to post polio paralyses. Neither of them require mobility assistance in normal circumstances. The floor of the airport had a glazy surface and was too slippery for any one. This made them avail the wheel chair service at a cost of Rs. 200/- for each of them.
For having availed the wheel Chair service they were asked by the Air Deccan officials to sign an undertaking, which read as follows.
“ I the under signed hereby indemnify and hold harmless Air Deccan from and against any liability arising out of any bodily injury and/ or death, damage or loss that may suffer/ experience and also from any damages, payments, expenses, faced or cost which Air Deccan may incur as a result of accepting me on its flight…”
this will continue shortly with
Regulation (Ec) No 1107/2006 of The European Parliament and of The Council of 5 July 2006, Concerning the Rights of Disabled Persons and Persons with Reduced Mobility when traveling by air
and
Access to Air Travel for Disabled People – Code of Practice ; united kingdom
….. visit www.dft.gov.uk
These three persons travel extensively throughout the country and even abroad, campaigning for the Rights of the Persons with Disability. Every time they travel by flight they come back with a story of violation and discrimination faced by them from the airliners. The discrimination does normally revolve around accessibility into the aircraft and in the aircraft. The incident on 18th June, 2007 with the air Sahara, now jet light, is totally different than all other previous experiences. Rajeev was totally denied of his right to travel in the aircraft without an escort.
Rajeev is a Person with Cerebral Palsy, a nervous condition affecting the locomotory functions and hence he uses wheel Chair for his mobility. He was invited by the National Trust for a meeting scheduled on 18.06.07, at Delhi to discuss and plan Training on Disability and Equity for the Local Level Committee members. For this he had booked tickets to fly by Air Sahara on 18th June 2007, which was scheduled to take off at 6.35 A.M.
At the time of check in one of the Air Sahara employees came to him and asked him if he had an escort. Rajeev told him that he was a frequent traveller and used to travel alone all time, The Air Sahara Employee did not listen to what was said and took him to the Air Sahara cabin, made him to wait outside the cabin and asked him for his fit to fly certificate. Then they asked for the boarding passes of his previous travel. They also wanted him to give his residence number. Finally, they told him that he can’t travel and tried to push him with the wheel chair. When he told them firmly that he needed to fly. They called the police to send him out of the Air Port. A couple policemen knew him, as he is a frequent flyer. The policemen explained to the Air Sahara personnel, but the flight took off without him. After a long verbal war, The Air Sahara Personnel spoke to the Director of Vidya Sagar and after this offered to fly him by different Air Lines. The Air Sahara at last tried to arrange for the travel through the Spice jet, which is which is another air travel service provider undertaken by Air Shara. Even Spice Jet refused to accommodate him because of his disability.
Due to all these unbearable incidents Rajeev was unable to travel. This patently against the Right to move thought the Indian Territory [Art.(19)(1)(d)] and Right to Equality before the Law and Equal Protection of Law within the territory of India[Art.(14)]Subsequent to the above incident the Disability Activists highlighted these violation Rights through the media. Following the uproar Hindustan Times and the Indian Express and several other local newspapers reported on 21.06.07 that the Jet light apologises for the incident. However, on 22.06.07 it was reported in the Hindustan times, that the air Sahara withdrew the apology.
On 19.01.04 when Rajeev travelled in air Sahara Kolkatta. At that time he was forced to take a tablet by a lady accompanied by the Airhostess. The lady did not even identify herself. Neither of them told the name of the tablet. A Complaint was filed in this regard before the Special Commissioner Disabilities, Chennai which was later forwarded to the Chief Commissioner and it is still pending. We are also able to find out that there are atleast three cases pending against the Air Sahara/ Jet Airways in Case Nos. 3111/05, 3196/06 and 3299/2006 before the Chief Commissioner.
The Chief Commissioner has taken up the recent incident of denial of right to travel Suo motto and has issued summons to the Air Sahara. In this notice the Chief Commissioner office has clearly stated that the persons with Cerebral palsy do not require an escort to travel and that the Cerebral Palsy is not a medical condition.
A Representations was sent by the disability legislation unit of Vidya Sagar to Air Sahara by fax on 23.06.2007 and a reply has been sent by the acting Chief Executive of the Jet light claiming that they acted in the terms of the International Air Transport Association (IATA) Medical Manual and that they have followed all mandatory guide lines set out in the Manual. They also say that Rajeev has not followed the procedure prescribed in Clause 6.3.2. of the manual that requires a MEDIF form. This requires us to go into and study the IATA Medical manual.
The Manual begins with a disclaimer notice. This disclaimer states that:
“The information contained in this publication is subject to constant review in the light of changing government requirements and regulations. No subscriber or other reader should act on the basis of any such information without referring to applicable laws and regulations and/or without taking appropriate professional advice.”
This clearly goes to say that the Manual is only aid to a airline operator and do not specify any guidelines as such. Airline operator has to follow the local laws of the specific country and take expert opinion in each and every case of doubt.
As far as the requirement of the MEDIF IS CONCERNED the manual says as follows.
“6.3.2 MEDIF and FREMEC
If a passenger requires special handling arrangements, Part 1 of the medical information form (MEDIF) is used. If a passenger also requires medical attention, Part 2 is filled in by the attending physician. See Appendix ‘E’.
In Part 2 all medical information shown is strictly confidential. Whenever medical clearance is necessary, this form must be filled in. If no medical clearance is required and only special handling assistance is necessary, only Part 1 of the MEDIF is completed”.
This is very much clear in its plain language that the MEDIF is required only for a person who requires special handling. In the case of Rajeev he does not require special handling and for this reason he does not require MEDIF. Moreover the Air Sahara admits Clause 6.1.2 of the Manual, in para 2 of their reply letter. This clause illustrates kinds of persons requiring medical clearance. This again shows that Rajeev is not a person who requires medical clearance.
The Air Sahara has not showed a single rule or regulation that requires a person with Cerebral Palsy or any other disability of like nature cannot travel without an escort. These facts establishes that the Air Sahara is not ready and willing to provide the service as required by them even under several other provisions of the manual. In the first instance they do not have a medical practitioner team with them as required under the manual if no it would have been sufficient for them to take an expert advice from the medical team in respect of the safety concerns and responsibilities to accommodate a person with Cerebral Palsy. And the medical team would have explained them what Cerebral palsy is all about. It is for this reason that the service of the Air Sahara is against the provisions of the manual, which is projected by them as their sacrosanct document.
AIR DECCAN is no less than Air Sahara. Smitha and Meenakshi flew in Air Deccan flight No. DN 617 from Chennai to Kolkatta on 08.09.2006 to attend the 7th National Women’s Movement Conference held during September, 2006. Smitha has a condition called as Demilination (multiple sclerosis) and Meenakshi has low mobility due to post polio paralyses. Neither of them require mobility assistance in normal circumstances. The floor of the airport had a glazy surface and was too slippery for any one. This made them avail the wheel chair service at a cost of Rs. 200/- for each of them.
For having availed the wheel Chair service they were asked by the Air Deccan officials to sign an undertaking, which read as follows.
“ I the under signed hereby indemnify and hold harmless Air Deccan from and against any liability arising out of any bodily injury and/ or death, damage or loss that may suffer/ experience and also from any damages, payments, expenses, faced or cost which Air Deccan may incur as a result of accepting me on its flight…”
this will continue shortly with
Regulation (Ec) No 1107/2006 of The European Parliament and of The Council of 5 July 2006, Concerning the Rights of Disabled Persons and Persons with Reduced Mobility when traveling by air
and
Access to Air Travel for Disabled People – Code of Practice ; united kingdom
….. visit www.dft.gov.uk
Tuesday, July 3, 2007
Rt. to Information -guide to activist in disability sector
I am very happy to share with you a guide developed by Sakshi Trust and ActionAid India on the use of RTI to get information related to the issues faced by persons with disabilities
Sakshi Trust and ActionAid India have released a Right to information guide to improve government facilities for Disabled People.
Keeping in mind the maxim "Information is Power", this handbook intends to place power in the hands of Persons with Disability. Disabled persons are handicapped not because of their disability, but because of the lack of access to information about their rights, entitlements and procedures to access the entitlements.
Thus through this instrument we wish to empower each Person with Disability their family members, government and non-government development professionals and all other stakeholders to be able to advocate for themselves.
This book intends to provide a stepwise guide on drafting an RTI application in the context of disability. However, the book has been especially designed for use by NGO's, parents of disabled children, caregivers, students or any concerned individual in the Disability. It contains a detailed background on the different benefits that a disabled person is entitled to from the government. The main topics covered are disability certification, education, employment, public access, poverty alleviation schemes, assistive devices and complaint process and as such will be useful to any one seeking general information as well.
A ready to use list of applications have been pre-formatted and drafted and one can use this to seek information from any State or central office. We put down RTI applications for your reference so that you may seek relevant information in an effort to facilitate a more transparent and accountable system of governance.
The guide contains RTI applications for:
1. Obtaining a disability certificate
2. Facilitating barrier free access in government buildings
3. Improving access to public education and employment opportunities for disabled people
4. Ensuring complaints and appeals of disabled people are expedited by the Commissioner PWD
5. Reservation for PWD in poverty alleviation schemes.
You can download it from here:
http://www.actionaidindia.org/RTI_guide_Disability_Issues.htm
Sakshi Trust and ActionAid India have released a Right to information guide to improve government facilities for Disabled People.
Keeping in mind the maxim "Information is Power", this handbook intends to place power in the hands of Persons with Disability. Disabled persons are handicapped not because of their disability, but because of the lack of access to information about their rights, entitlements and procedures to access the entitlements.
Thus through this instrument we wish to empower each Person with Disability their family members, government and non-government development professionals and all other stakeholders to be able to advocate for themselves.
This book intends to provide a stepwise guide on drafting an RTI application in the context of disability. However, the book has been especially designed for use by NGO's, parents of disabled children, caregivers, students or any concerned individual in the Disability. It contains a detailed background on the different benefits that a disabled person is entitled to from the government. The main topics covered are disability certification, education, employment, public access, poverty alleviation schemes, assistive devices and complaint process and as such will be useful to any one seeking general information as well.
A ready to use list of applications have been pre-formatted and drafted and one can use this to seek information from any State or central office. We put down RTI applications for your reference so that you may seek relevant information in an effort to facilitate a more transparent and accountable system of governance.
The guide contains RTI applications for:
1. Obtaining a disability certificate
2. Facilitating barrier free access in government buildings
3. Improving access to public education and employment opportunities for disabled people
4. Ensuring complaints and appeals of disabled people are expedited by the Commissioner PWD
5. Reservation for PWD in poverty alleviation schemes.
You can download it from here:
http://www.actionaidindia.org/RTI_guide_Disability_Issues.htm
Tuesday, June 26, 2007
Property and Document writing
1) What is a document to a property?
A document is a written form of one’s interest in the property. If suppose one person purchases a property he has to get it in writing form the person who wishes to sell the property. Only then he can become the owner of the property.
2) Why do we require a document for the property?
Property Document is the evidence of the transactions that takes place while purchasing a property or taking up a property in mortgage. Ordinarily there can not be any evidence against the contents of a document.
3) How many kinds of documents a property may have?
A property has 2 kinds of documents. They are
i) Title Document ii) Parent Documents
i)Title Document : Title Document is a document under which the owner of the property purchased it. When we purchase the property, the document under which we purchase would be the title document for us.
ii) Parent Documents: Parent Documents are those documents that shows the history of the property and the genuineness of the sellers ownership over the property.
4) What particulars does a document contain?
The document should specify the date on which the document is written and signed, the consideration for the transfer of right in the property, complete details of the seller and purchaser and other terms and conditions mutually agreed upon.
5) What is a transfer of Right in a property?
A transfer of Right means a change in the ownership or the usage of the property. A transfer occurs when a property is mortgaged, gifted, sold or partitioned or subjected to performance of any obligation by an other person, each of these events have their own unique features imparting certain restriction on the owner of the property and therefore have specific terms and conditions to be agreed upon mutually.
6) When a property is sold to whom holds the property Document?
It depends upon the extent of the sale. If the whole property is sold then the purchasor has the Right to hold the parent documents. If only a portion is sold, the seller holds the documents. If a property is sold in several portions to different purchases then the holder of the portion of larger value holds the documents.
A document is a written form of one’s interest in the property. If suppose one person purchases a property he has to get it in writing form the person who wishes to sell the property. Only then he can become the owner of the property.
2) Why do we require a document for the property?
Property Document is the evidence of the transactions that takes place while purchasing a property or taking up a property in mortgage. Ordinarily there can not be any evidence against the contents of a document.
3) How many kinds of documents a property may have?
A property has 2 kinds of documents. They are
i) Title Document ii) Parent Documents
i)Title Document : Title Document is a document under which the owner of the property purchased it. When we purchase the property, the document under which we purchase would be the title document for us.
ii) Parent Documents: Parent Documents are those documents that shows the history of the property and the genuineness of the sellers ownership over the property.
4) What particulars does a document contain?
The document should specify the date on which the document is written and signed, the consideration for the transfer of right in the property, complete details of the seller and purchaser and other terms and conditions mutually agreed upon.
5) What is a transfer of Right in a property?
A transfer of Right means a change in the ownership or the usage of the property. A transfer occurs when a property is mortgaged, gifted, sold or partitioned or subjected to performance of any obligation by an other person, each of these events have their own unique features imparting certain restriction on the owner of the property and therefore have specific terms and conditions to be agreed upon mutually.
6) When a property is sold to whom holds the property Document?
It depends upon the extent of the sale. If the whole property is sold then the purchasor has the Right to hold the parent documents. If only a portion is sold, the seller holds the documents. If a property is sold in several portions to different purchases then the holder of the portion of larger value holds the documents.
ADR system in India
Though the Alternate Dispute Resolution system have gained momentum only in the recent years that to specifically said to be the resultant of globalisation and liberelisation, the System was very much present and well organized in the Ancient Indian Legal System more particularly the Hindu law.
1. Who conducted the Arbitration Proceedings in Ancient India?
There were systemised hierarchical boards to decide the disputes. There were also Panchayats which functioned as subordinate authorities to the regular Courts and their decisions were binding as a decision of a Court of Law.
2. How were these boards named?
Kula the groups of persons bound by family ties. Sreni or Assemblies of tradesmen and artisans belonging to different tribes but connected in some way with each other. Puga or a Board of persons belonging to different sects and tribes but residing in the same locality;
The decision of Kula or Kinsman was subject to revision by Sreni which in turn could be revised by the Puga. From the decision of the Puga, appeal was maintainable to Pradvivaca and finally to the sovereign, and prince.
3. How advantageous was the Panchayat system?
The advantage of this system lay in its location. In a rural settings it was difficult for a witness to conceal the truth before his co- villagers, Panchayats, however, were often influenced by local sentiments and factions and thereby became susceptible to prejudice and bias. Harsh and unfair decisions of village Panchayats relating to caste matters are notorious. The simple and informal system of arbitration through panchayats though useful was ineffective to deal with the complexities arising out of the social and economic changes.
4. How did Panchayats evolved to its present position.
The system of Alternate dispute redressal was found not only as a convenient procedure but was also seen as a politically safe and significant in the days of British/ Company Raj. Hence, There were several regulations and legislation that were brought in resulting considerable changes from 1772. Few among them are:
Bengal Regulations - The regulation of 1781 contained a provision that “the judge do recommend, and so far as he can without compulsion, prevail upon the parties to submit to the arbitration of one person to be mutually agreed upon by the parties.” And that “no award of any arbitrator of arbitrators, can be set aside, except upon full proof made by oath of the credible witness that arbitrators have been guilty of gross corruption or partiality to the cause in which they had made their awards.”
The Regulation of 1787 empowered the court to refer suits to arbitration with the consent of parties.
The Regulation of 1793 authorised the court to promote references of cases not exceeding Rs. 200 in value to arbitration and disputes relating to partnership account, debts, disputed bargain and breach of contract. The procedure for conducting the arbitration proceedings was also stipulated.
In 1795, the regulation of 1793 was extended to Benaras and the regulation of 1802, 1814, 1822 and 1883 extended the limits and jurisdiction of arbitration proceedings in various ways.
Madras Presidency Regulation VII of 1816 authorised the Districts Munsiffs to convene districts panchayats for the determination of Civil Suits relating to real and personal property. The Regulation was repealed by Act VII of 1870.
Bombay Presidency Regulation VII of 1827 provided for arbitration of civil disputes. The arbitration had to be in writing to a named arbitrator, wherein the time for making the award had to be mentioned.
Under the Charter Act of 1833 the Legislative Council for India was established in 1834 It Passed Act IX of 1840. But the aforesaid Regulations of Bengal, Madras and Bombay continued to operate till 1859.
The Act VIII of 1857 codified the procedure of Civil Courts except those established by the Royal Charter. Sections 312 to 325 dealt with arbitration in suits. Sections 326 and 327 provided for arbitration without the intervention of the court. The Act VIII of 1857 was replaced by Act X of 1877.
The Code of Civil Procedure was revised in the year 1882 and by the Act XIV of 1882 the provisions relating to arbitration were reproduced verbatim in sections 506 to 526. No change in the law of arbitration was effected by the said acts of 1877 and 1882.
The Indian Arbitration Act IX of 1899 was based on the English Arbitration Act of 1889. Act IX of 1899. It was the first substantive law on the subject of arbitration but its application was limited to the Presidency – towns of Calcutta, Bombay and Madras. Act, however suffered from many defects and was subjected to severe judicial criticisms.
In 1908 the Code of Civil Procedure was re-enacted. The Code made no substantial changes in the law of arbitration.
The Arbitration Act of 1940 was enacted replacing the Indian Arbitration Act of 1899 and section 89 and clauses (a) to (f) of section 104(1) and the Second Schedule of the Code of Civil procedure 1908. It amended and consolidated the law relating to arbitration in British India and remained a comprehensive law on Arbitration even in the Republican India until 1996.
The changing international Political and Economic situations emphasised need for further changes in the lawand thereby The Arbitration and Conciliation Act, 1996 was passed. This was particularly guided by the UNCITRAL Model Law, 1985 and the UNCITRAL Conciliation Rules, 1980.
5. What is Arbitration?
The law lexicon by N.M. Mulchandani, defines Arbitration as The hearing and determining of a dispute between parties by persons chosen or agreed to by them.
6. What is conciliation?
Conciliation is a process of facilitating an amicable settlement between the parties. Unlike the Arbitration there is no determination of a dispute. There need not be a prior agreement and it cannot be forced on a party not intending for conciliation.
7. When can an Arbitrator be appointed?
An Arbitrator can be appointed if there is a written agreement by the contracting parties either as a separate agreement or as one of the clause in the main contract. There can be an agreement by exchange of letters or any other mode of communication which can be recorded.
8. Who appoints an Arbitrator?
Either party to a dispute can appoint an arbitrator. If there is an agreement for appointment of an Arbitrator for settlement of dispute and one party do not agrees to refer the matter for Arbitration then the party willing to refer the matter to Arbitration can approach the Chief Justice of the concerned High Court for appointment of an Arbitrator. When there is a dispute in the performance of a contract in which there is a clause for reference to Arbitration and one party ignores the arbitration clause and proceeds with a civil suit before a judicial authority then the other party if prefers to refer the matter to Arbitration can apply to the same court before he files his defence statement for referring the matter to the Arbitration.
9. Who and How many Arbitrators can be appointed to resolve a dispute?
Person of any nationality can be appointed as an Arbitrator but he should possess necessary qualification to understand the nature of dispute. An Arbitrator need not be a graduate in law. The parties to the contract can agree on the number of Arbitrators. But the condition is that it should be an odd number.
10. Can we challenge the appointment of an Arbitrator?
Yes, if we can prove that he is not qualified to handle that particular dispute or if we could show that he is interested in deciding the dispute in favour of either of the parties his appointment can be challenged. The objections should be raised before the same Arbitrator within 15 days of his appointment or within 15 days from the date on which we come to know the existence of either of these conditions. The Arbitrator would himself decide his jurisdiction.
11. Can an Arbitrator pass an interim order?
Yes, he can pass an interim order, direct to produce sureties and even appoint an expert committee to deal with specific issues if necessary.
12. Is there any Appeal against the award of the Arbitrator?
There is an appeal against the grant or refusal of interim measures, on issues relating to the Jurisdiction of the Arbitrator and on determination of the issue relating to scope of Arbitration. Appeal is also allowed against the Order in the Application to set aside the Arbitral Award.
13. When can an Arbitral Award be set aside?
If it can be proved that the Arbitration Agreement is not valid under the law or the party preferring to set aside the Arbitral Award was prevented by some justifiable reasons from presenting his case or that the Award was beyond the scope of submission to dispute or either the composition of the Arbitral tribunal or the procedures of the Tribunal was different from what has been agreed by the parties.
1. Who conducted the Arbitration Proceedings in Ancient India?
There were systemised hierarchical boards to decide the disputes. There were also Panchayats which functioned as subordinate authorities to the regular Courts and their decisions were binding as a decision of a Court of Law.
2. How were these boards named?
Kula the groups of persons bound by family ties. Sreni or Assemblies of tradesmen and artisans belonging to different tribes but connected in some way with each other. Puga or a Board of persons belonging to different sects and tribes but residing in the same locality;
The decision of Kula or Kinsman was subject to revision by Sreni which in turn could be revised by the Puga. From the decision of the Puga, appeal was maintainable to Pradvivaca and finally to the sovereign, and prince.
3. How advantageous was the Panchayat system?
The advantage of this system lay in its location. In a rural settings it was difficult for a witness to conceal the truth before his co- villagers, Panchayats, however, were often influenced by local sentiments and factions and thereby became susceptible to prejudice and bias. Harsh and unfair decisions of village Panchayats relating to caste matters are notorious. The simple and informal system of arbitration through panchayats though useful was ineffective to deal with the complexities arising out of the social and economic changes.
4. How did Panchayats evolved to its present position.
The system of Alternate dispute redressal was found not only as a convenient procedure but was also seen as a politically safe and significant in the days of British/ Company Raj. Hence, There were several regulations and legislation that were brought in resulting considerable changes from 1772. Few among them are:
Bengal Regulations - The regulation of 1781 contained a provision that “the judge do recommend, and so far as he can without compulsion, prevail upon the parties to submit to the arbitration of one person to be mutually agreed upon by the parties.” And that “no award of any arbitrator of arbitrators, can be set aside, except upon full proof made by oath of the credible witness that arbitrators have been guilty of gross corruption or partiality to the cause in which they had made their awards.”
The Regulation of 1787 empowered the court to refer suits to arbitration with the consent of parties.
The Regulation of 1793 authorised the court to promote references of cases not exceeding Rs. 200 in value to arbitration and disputes relating to partnership account, debts, disputed bargain and breach of contract. The procedure for conducting the arbitration proceedings was also stipulated.
In 1795, the regulation of 1793 was extended to Benaras and the regulation of 1802, 1814, 1822 and 1883 extended the limits and jurisdiction of arbitration proceedings in various ways.
Madras Presidency Regulation VII of 1816 authorised the Districts Munsiffs to convene districts panchayats for the determination of Civil Suits relating to real and personal property. The Regulation was repealed by Act VII of 1870.
Bombay Presidency Regulation VII of 1827 provided for arbitration of civil disputes. The arbitration had to be in writing to a named arbitrator, wherein the time for making the award had to be mentioned.
Under the Charter Act of 1833 the Legislative Council for India was established in 1834 It Passed Act IX of 1840. But the aforesaid Regulations of Bengal, Madras and Bombay continued to operate till 1859.
The Act VIII of 1857 codified the procedure of Civil Courts except those established by the Royal Charter. Sections 312 to 325 dealt with arbitration in suits. Sections 326 and 327 provided for arbitration without the intervention of the court. The Act VIII of 1857 was replaced by Act X of 1877.
The Code of Civil Procedure was revised in the year 1882 and by the Act XIV of 1882 the provisions relating to arbitration were reproduced verbatim in sections 506 to 526. No change in the law of arbitration was effected by the said acts of 1877 and 1882.
The Indian Arbitration Act IX of 1899 was based on the English Arbitration Act of 1889. Act IX of 1899. It was the first substantive law on the subject of arbitration but its application was limited to the Presidency – towns of Calcutta, Bombay and Madras. Act, however suffered from many defects and was subjected to severe judicial criticisms.
In 1908 the Code of Civil Procedure was re-enacted. The Code made no substantial changes in the law of arbitration.
The Arbitration Act of 1940 was enacted replacing the Indian Arbitration Act of 1899 and section 89 and clauses (a) to (f) of section 104(1) and the Second Schedule of the Code of Civil procedure 1908. It amended and consolidated the law relating to arbitration in British India and remained a comprehensive law on Arbitration even in the Republican India until 1996.
The changing international Political and Economic situations emphasised need for further changes in the lawand thereby The Arbitration and Conciliation Act, 1996 was passed. This was particularly guided by the UNCITRAL Model Law, 1985 and the UNCITRAL Conciliation Rules, 1980.
5. What is Arbitration?
The law lexicon by N.M. Mulchandani, defines Arbitration as The hearing and determining of a dispute between parties by persons chosen or agreed to by them.
6. What is conciliation?
Conciliation is a process of facilitating an amicable settlement between the parties. Unlike the Arbitration there is no determination of a dispute. There need not be a prior agreement and it cannot be forced on a party not intending for conciliation.
7. When can an Arbitrator be appointed?
An Arbitrator can be appointed if there is a written agreement by the contracting parties either as a separate agreement or as one of the clause in the main contract. There can be an agreement by exchange of letters or any other mode of communication which can be recorded.
8. Who appoints an Arbitrator?
Either party to a dispute can appoint an arbitrator. If there is an agreement for appointment of an Arbitrator for settlement of dispute and one party do not agrees to refer the matter for Arbitration then the party willing to refer the matter to Arbitration can approach the Chief Justice of the concerned High Court for appointment of an Arbitrator. When there is a dispute in the performance of a contract in which there is a clause for reference to Arbitration and one party ignores the arbitration clause and proceeds with a civil suit before a judicial authority then the other party if prefers to refer the matter to Arbitration can apply to the same court before he files his defence statement for referring the matter to the Arbitration.
9. Who and How many Arbitrators can be appointed to resolve a dispute?
Person of any nationality can be appointed as an Arbitrator but he should possess necessary qualification to understand the nature of dispute. An Arbitrator need not be a graduate in law. The parties to the contract can agree on the number of Arbitrators. But the condition is that it should be an odd number.
10. Can we challenge the appointment of an Arbitrator?
Yes, if we can prove that he is not qualified to handle that particular dispute or if we could show that he is interested in deciding the dispute in favour of either of the parties his appointment can be challenged. The objections should be raised before the same Arbitrator within 15 days of his appointment or within 15 days from the date on which we come to know the existence of either of these conditions. The Arbitrator would himself decide his jurisdiction.
11. Can an Arbitrator pass an interim order?
Yes, he can pass an interim order, direct to produce sureties and even appoint an expert committee to deal with specific issues if necessary.
12. Is there any Appeal against the award of the Arbitrator?
There is an appeal against the grant or refusal of interim measures, on issues relating to the Jurisdiction of the Arbitrator and on determination of the issue relating to scope of Arbitration. Appeal is also allowed against the Order in the Application to set aside the Arbitral Award.
13. When can an Arbitral Award be set aside?
If it can be proved that the Arbitration Agreement is not valid under the law or the party preferring to set aside the Arbitral Award was prevented by some justifiable reasons from presenting his case or that the Award was beyond the scope of submission to dispute or either the composition of the Arbitral tribunal or the procedures of the Tribunal was different from what has been agreed by the parties.
Mental Health Act and Guardian Ship
The Mental Health Act was passed in the year 1987. The scope of the Act is to regulate the treatment and care of the mentally ill person. It also provides measures for the better management of their property and affairs and other incidental masters. This Act Repeals The Indian Lunacy Act, 1912 and the Lunacy Act, 1977. Chapter VI of the Act provides for the procedure to appoint a guardian to look after the mentally ill person and a manager to look after his properties.
1. Who appoints a guardian for a mentally ill person.
If the mentally ill person cannot look after himself, then the District Court will appoint a guardian to take care of him. If the District Collector has already been directed by the District court to take care of the properties of the mentally ill person then the District Collector shall appointed a guardian took look after the person also.(S.53)
property by himself it shall be taken charge by a court of ward. For this the District Court shall pass suitable directions.
2. Who will appoint a manager to a look after a mentally ill person’s property:
If a particular land can be taken care of by the Court of Wards then the District Collector shall direct the court of ward to take charge of the mentally ill person’s property. When such property cannot be given to the care of the court of wards then the district judge with the consultation of the collector shall issue suitable directions to the him for taking charge of the property and person of the mentally ill person and there after the District collector shall appoint a manager. In doing so the state government shall monitor his work.(S.54)
3. Who can file an application for a judicial inquisition on the mental condition of an alleged mentally ill person.
i) Any of his relatives (or)
ii) A public curator appointed under the Indian Succession Act,1925 (or)
iii) The Advocate General of the State in which the alleged mentally ill
person resides (or)
iv) The district collector.(S.50)
Procedures for in quest :- (S.50)
On receipt of an application the District Court shall, send a notice on the alleged mentally ill person to appear before it, or send a notice on the person having the custody of the alleged mentally ill person to produce such person before it, for being examined
If the alleged mentally ill person is a woman, who according to the custom prevailing in the area where she resides or according to the religion to which she belongs, ought not to be compelled to appear in public, the District Court may appoint A commissioner as provided in the Code of Civil Procedure, 1908.
For the purpose of conducting the inquisition applied for, the District Court may appoint two or more persons to act as assessors.
4. On what points will a district court conduct an enquiry: (S.51)
(i) Whether the alleged mentally ill person is in fact mentally ill or not,
(ii) Whether he is incapable of taking care of himself and of managing his property, or incapable of managing his property only.
5.What are the necessary conditions for a person to qualify for being appointed as a manager or Gaurdian.
i) The District Court or, the collector should considers that such appointment is for the benefit of the mentally ill person.
ii) Such person should enter into a bond for a value with such sureties that the appointing authority, may specify to account for all receipts from the property of the mentally ill person.
6. who will fix the remuneration of guardians and managers:-
(1) The appointing authority may determine their salary and allowances and it shall be paid, from out of the property of the mentally ill person,
7. What are duties of guardian and manager:-
(1) They shall be responsible for the care and maintenance of the mentally ill person or his property, or of both and of such members of his family as are dependent on him.
(2) Where the person appointed as guardian of a mentally ill person is different from the person appointed as the manager of his property, the manager shall pay to the guardian for his salary, allowance, for the maintenance of the mentally ill person and of such members of his family as are dependent on him.
(3) Manager appointed under this Act shall within a period of six months from the date of his appointment deliver to the authority, which appointed him an inventory of the immovable property belonging to the mentally ill person and of all assets and other movable property received on behalf of the mentally ill person, together with a statement of all claims due to and all debts and liabilities due by, such mentally ill person.
(4) Furnish to the appointing authority within a period of three months of the close of every financial year, an account of the property and assets in his charge, the sums received and disbursed on account of the mentally ill person and the balance remaining with him.
(5) The manager shall act in the same manner as the mentally ill person would have acted if such person had not become mentally ill. Manager shall realise all claims due to the estate of the mentally ill person and pay all debts and discharges all liabilities legally due from that estate:
(6) The manager shall not mortgage, create any charge on, or, transfer by sale, gift, exchange or otherwise any immovable property of the mentally ill person or lease out any such property for a period exceeding five years, unless he obtains the permission of the District Court.
(7) The District Court may, on an application made by the manager, grant him permission under conditions it may think proper in each circumstances. Before granting permission it may send notice to all the relatives and friends of the mentally ill person and here their objections.
(8) Whether the manager assumes responsibilities on contracts entered by the mentally ill person befor becoming ill;
Yes , Even then he should get suitable directions and permission from the district court.
1. Who appoints a guardian for a mentally ill person.
If the mentally ill person cannot look after himself, then the District Court will appoint a guardian to take care of him. If the District Collector has already been directed by the District court to take care of the properties of the mentally ill person then the District Collector shall appointed a guardian took look after the person also.(S.53)
property by himself it shall be taken charge by a court of ward. For this the District Court shall pass suitable directions.
2. Who will appoint a manager to a look after a mentally ill person’s property:
If a particular land can be taken care of by the Court of Wards then the District Collector shall direct the court of ward to take charge of the mentally ill person’s property. When such property cannot be given to the care of the court of wards then the district judge with the consultation of the collector shall issue suitable directions to the him for taking charge of the property and person of the mentally ill person and there after the District collector shall appoint a manager. In doing so the state government shall monitor his work.(S.54)
3. Who can file an application for a judicial inquisition on the mental condition of an alleged mentally ill person.
i) Any of his relatives (or)
ii) A public curator appointed under the Indian Succession Act,1925 (or)
iii) The Advocate General of the State in which the alleged mentally ill
person resides (or)
iv) The district collector.(S.50)
Procedures for in quest :- (S.50)
On receipt of an application the District Court shall, send a notice on the alleged mentally ill person to appear before it, or send a notice on the person having the custody of the alleged mentally ill person to produce such person before it, for being examined
If the alleged mentally ill person is a woman, who according to the custom prevailing in the area where she resides or according to the religion to which she belongs, ought not to be compelled to appear in public, the District Court may appoint A commissioner as provided in the Code of Civil Procedure, 1908.
For the purpose of conducting the inquisition applied for, the District Court may appoint two or more persons to act as assessors.
4. On what points will a district court conduct an enquiry: (S.51)
(i) Whether the alleged mentally ill person is in fact mentally ill or not,
(ii) Whether he is incapable of taking care of himself and of managing his property, or incapable of managing his property only.
5.What are the necessary conditions for a person to qualify for being appointed as a manager or Gaurdian.
i) The District Court or, the collector should considers that such appointment is for the benefit of the mentally ill person.
ii) Such person should enter into a bond for a value with such sureties that the appointing authority, may specify to account for all receipts from the property of the mentally ill person.
6. who will fix the remuneration of guardians and managers:-
(1) The appointing authority may determine their salary and allowances and it shall be paid, from out of the property of the mentally ill person,
7. What are duties of guardian and manager:-
(1) They shall be responsible for the care and maintenance of the mentally ill person or his property, or of both and of such members of his family as are dependent on him.
(2) Where the person appointed as guardian of a mentally ill person is different from the person appointed as the manager of his property, the manager shall pay to the guardian for his salary, allowance, for the maintenance of the mentally ill person and of such members of his family as are dependent on him.
(3) Manager appointed under this Act shall within a period of six months from the date of his appointment deliver to the authority, which appointed him an inventory of the immovable property belonging to the mentally ill person and of all assets and other movable property received on behalf of the mentally ill person, together with a statement of all claims due to and all debts and liabilities due by, such mentally ill person.
(4) Furnish to the appointing authority within a period of three months of the close of every financial year, an account of the property and assets in his charge, the sums received and disbursed on account of the mentally ill person and the balance remaining with him.
(5) The manager shall act in the same manner as the mentally ill person would have acted if such person had not become mentally ill. Manager shall realise all claims due to the estate of the mentally ill person and pay all debts and discharges all liabilities legally due from that estate:
(6) The manager shall not mortgage, create any charge on, or, transfer by sale, gift, exchange or otherwise any immovable property of the mentally ill person or lease out any such property for a period exceeding five years, unless he obtains the permission of the District Court.
(7) The District Court may, on an application made by the manager, grant him permission under conditions it may think proper in each circumstances. Before granting permission it may send notice to all the relatives and friends of the mentally ill person and here their objections.
(8) Whether the manager assumes responsibilities on contracts entered by the mentally ill person befor becoming ill;
Yes , Even then he should get suitable directions and permission from the district court.
adoption
Law of adoption relating to Hindus
Adoption among the Hindu is governed under the Hindu adoptions and maintenance Act, 1956. Muslims, Christians, Passions Jews are not governed by this Act, and hence when they either wish to give in adoption or take in adoption shall have to look into laws which govern their respective religious and personnel affairs. Further, It is pertinent to note that the term Hindu has not been defined precisely in any of the Personal laws of the Hindu and neither is there any definition or conditions qualifying a person to the a Hindu in the Religious tenants and customs. The law only gives a wider and inclusive categories of persons who may be called as a Hindu and only fetter is that such person shall not be a Muslim, Christian, Parsi or a Jew . Hence if it is for sore that a child does not belong to either of there religions then we can solely conduce that the child is a Hindu. – Then -
Questions:
1. Who is a Hindu?
Any person, who is a Hindu by religion in any of its forms or developments, including a veerashiva, a lingayat or a follower of the Bramho, Prathana, or Arya Samaj, or who is a Buddhist, Jaina or sikh or any other person not being a Muslim, Christian, Parsi or a Jew will be taken as a Hindu.
2. In case of children how can we fix their religion if there parents belong to different religion?
In such case either of the parent (mother or father) should be a Hindu and the child should have been brought up as a Hindu. Then the child will also be regarded as a Hindu.
3. How can a child in a child care Institution be identified as a Hindu?
An only criterion is to see that whether the child is brought up as a Hindu.
4. What is Adoption?
The Tamil Nadu rules framed under the Juvenile Justice Act, defines adoption as the “the transfer of rights and responsibilities of a child from its birth parents to adoptive parents.”
5. How can a child be given in adoption legally and validly?
Who ever wisher to give a child in adoption must be assured that he / she / they have the capacity to give the child in adoption. The person who offers to take the child in adoption should also posses the capacity and Right to take the child in adoption. It should also be ensured that the person being given in adoption is capable of being adopted.
6. What are the conditions for a Male Hindu to take a child in adoption?
A male Hindu who wishes to take a child in adoption should have completed 18 years of age and he should be able to understand the seriousness and consequences of things he does. If he is a Married person he should take the consent of his wife. The consent of his wife can be dispensed with only if it is shown that the wife has converted her religion and does not continue as a Hindu, renounced the world or has been declared by a component Court as to have become insane. If it appear that a person has morethan one wife living at the time of adoption he should take the consent of all his wife. If he is taking a female child in adoption, he should be 21 years older in age.
7. What are the conditions of a female Hindu to take in adoption ?
She should be above the age of 18 years, and should be able to understand the seriousness and consequences of things she does. She should be 21 years older to the child if she adopts a male child.
8. Can married women take a child in adoption?
No., a married woman cannot take a child in adoption. But if her marriage has been dissolved by a competent court or her husband has renounced the would or if she has become a widow or if the husband has converted his religion and does not continue as a Hindu or has been declared by s county law to be of an sound mind then she can adopt a child.
9. Are there any other conditions applicable in general?
Yes, a part from this, a child can be taken in adoption only as a son or daughter. If a son is being adopted, the adoptive father or mother by whom the adoption is made must not have a Hindu son, grand son or great grand son living at the time of adoption. If a daughter is adopted, the adoptive father or mother must not have a daughter or grand daughter living at the time of adoption. Some child cannot be adopted by 2 or more persons.
10. Who can be adopted?
Any person who is a Hindu, not completed fifteen years of age and not married can be adopted. How ever, if the custom and usage of the parties to the adoption permits, a person above the age of 15 or who has been married can be adopted.
11. Who can give a child in adoption?
It is either the father or mother or the guardian of the child. It father is alive he alone can give the child in adoption unless he has renounced the world finally unless he was declared insane by the court. How ever he cannot give the child in adoption without the consent of the wife. The consent of the wife can be dispensed on the same grounds. The guardian of the child can give in adoption if both the biological parents are either not alive or their identify is not known. In such case the permission of the court is necessary.
12. Who can be called as a guardian?
A person who has the care of the child or both the child and its property is a guardian of the child. Such guardian may be a one who is appointed by a will of the child’s father or mother or one who is appointed by or declared by a district court.
13. Should religious ceremonies be preformed to validate adoption? - No
14. How an adoption is effected?
Adoption is usually recorded by a Deed of adoption and registered. Sometimes it is done either thro religious ceremonies on thro family arrangements.
15. Does the law requires the adoption to be registered?
No. Law does not compel the registration of adoption. But since an adoption results in changing the course of succession depriving wives and daughters of their rights and transferring the properties to comparatively strangers or more remote relations it is necessary that the evidence to support it be such that it is fro from all suspicion of fraud and so consistent and probable as to leave no occasion for doubling its truth. Hence registration is advisable as mandatory.
16. What are the consequences of an adoption?
An adopted child should be deemed to be the child of his or her adoptive parents for all purposes with effect from the date of adoption and from such date all his or her ties with the family of his birth gets reserved. How ever the child cannot marry any person Whom he or she could not have married if he or she had continued in the original family. The property which were entitlement of the child should continue to be its entitlement subject to the obligation attached to the property. The adoption shall not affect the rights of the relatives of the adopting parents in their share in the property.
Adoption under the Juvenile Justice Act.
The Juvenile Justice Act acknowledges that the primary responsibility for providing care and protection to children shall be that of their family and therefore views adoption as one among the measures to rehabilitate and reintegrate a child who are orphaned, abandoned neglected and abused thro institutional and non-institutional methods.
The Juvenile Justice Act is a secular legislation made in the lines of UNCRC and shall apply to all children who are coming within its purview irrespective of religion, caste or creed. In the light of section 41(3) of the Act, The Juvenile Justice Board is deemed to be the guardian of such children and it shall give in adoption keeping in mind various guidelines issued by the it State Government and Supreme Court from time to time.
This would obviously imply that though the religion of the child may not be material at the time of adoption the religious and personal laws of the adopting parents cannot be ignored as it relies on the capacity of the adopting parents to take the child in adoption. The Juvenile Justice Act, has ruled out several restrictions on adoptions. Under the Act the Board may allow a child to be given in adoption to a single parent and to adopt a child of same gender irrespective of the number of living bio logical son’s or daughters. Child may also be given in adoption to fit persons and fit institutions on the suitable directions.
Adoption among the Hindu is governed under the Hindu adoptions and maintenance Act, 1956. Muslims, Christians, Passions Jews are not governed by this Act, and hence when they either wish to give in adoption or take in adoption shall have to look into laws which govern their respective religious and personnel affairs. Further, It is pertinent to note that the term Hindu has not been defined precisely in any of the Personal laws of the Hindu and neither is there any definition or conditions qualifying a person to the a Hindu in the Religious tenants and customs. The law only gives a wider and inclusive categories of persons who may be called as a Hindu and only fetter is that such person shall not be a Muslim, Christian, Parsi or a Jew . Hence if it is for sore that a child does not belong to either of there religions then we can solely conduce that the child is a Hindu. – Then -
Questions:
1. Who is a Hindu?
Any person, who is a Hindu by religion in any of its forms or developments, including a veerashiva, a lingayat or a follower of the Bramho, Prathana, or Arya Samaj, or who is a Buddhist, Jaina or sikh or any other person not being a Muslim, Christian, Parsi or a Jew will be taken as a Hindu.
2. In case of children how can we fix their religion if there parents belong to different religion?
In such case either of the parent (mother or father) should be a Hindu and the child should have been brought up as a Hindu. Then the child will also be regarded as a Hindu.
3. How can a child in a child care Institution be identified as a Hindu?
An only criterion is to see that whether the child is brought up as a Hindu.
4. What is Adoption?
The Tamil Nadu rules framed under the Juvenile Justice Act, defines adoption as the “the transfer of rights and responsibilities of a child from its birth parents to adoptive parents.”
5. How can a child be given in adoption legally and validly?
Who ever wisher to give a child in adoption must be assured that he / she / they have the capacity to give the child in adoption. The person who offers to take the child in adoption should also posses the capacity and Right to take the child in adoption. It should also be ensured that the person being given in adoption is capable of being adopted.
6. What are the conditions for a Male Hindu to take a child in adoption?
A male Hindu who wishes to take a child in adoption should have completed 18 years of age and he should be able to understand the seriousness and consequences of things he does. If he is a Married person he should take the consent of his wife. The consent of his wife can be dispensed with only if it is shown that the wife has converted her religion and does not continue as a Hindu, renounced the world or has been declared by a component Court as to have become insane. If it appear that a person has morethan one wife living at the time of adoption he should take the consent of all his wife. If he is taking a female child in adoption, he should be 21 years older in age.
7. What are the conditions of a female Hindu to take in adoption ?
She should be above the age of 18 years, and should be able to understand the seriousness and consequences of things she does. She should be 21 years older to the child if she adopts a male child.
8. Can married women take a child in adoption?
No., a married woman cannot take a child in adoption. But if her marriage has been dissolved by a competent court or her husband has renounced the would or if she has become a widow or if the husband has converted his religion and does not continue as a Hindu or has been declared by s county law to be of an sound mind then she can adopt a child.
9. Are there any other conditions applicable in general?
Yes, a part from this, a child can be taken in adoption only as a son or daughter. If a son is being adopted, the adoptive father or mother by whom the adoption is made must not have a Hindu son, grand son or great grand son living at the time of adoption. If a daughter is adopted, the adoptive father or mother must not have a daughter or grand daughter living at the time of adoption. Some child cannot be adopted by 2 or more persons.
10. Who can be adopted?
Any person who is a Hindu, not completed fifteen years of age and not married can be adopted. How ever, if the custom and usage of the parties to the adoption permits, a person above the age of 15 or who has been married can be adopted.
11. Who can give a child in adoption?
It is either the father or mother or the guardian of the child. It father is alive he alone can give the child in adoption unless he has renounced the world finally unless he was declared insane by the court. How ever he cannot give the child in adoption without the consent of the wife. The consent of the wife can be dispensed on the same grounds. The guardian of the child can give in adoption if both the biological parents are either not alive or their identify is not known. In such case the permission of the court is necessary.
12. Who can be called as a guardian?
A person who has the care of the child or both the child and its property is a guardian of the child. Such guardian may be a one who is appointed by a will of the child’s father or mother or one who is appointed by or declared by a district court.
13. Should religious ceremonies be preformed to validate adoption? - No
14. How an adoption is effected?
Adoption is usually recorded by a Deed of adoption and registered. Sometimes it is done either thro religious ceremonies on thro family arrangements.
15. Does the law requires the adoption to be registered?
No. Law does not compel the registration of adoption. But since an adoption results in changing the course of succession depriving wives and daughters of their rights and transferring the properties to comparatively strangers or more remote relations it is necessary that the evidence to support it be such that it is fro from all suspicion of fraud and so consistent and probable as to leave no occasion for doubling its truth. Hence registration is advisable as mandatory.
16. What are the consequences of an adoption?
An adopted child should be deemed to be the child of his or her adoptive parents for all purposes with effect from the date of adoption and from such date all his or her ties with the family of his birth gets reserved. How ever the child cannot marry any person Whom he or she could not have married if he or she had continued in the original family. The property which were entitlement of the child should continue to be its entitlement subject to the obligation attached to the property. The adoption shall not affect the rights of the relatives of the adopting parents in their share in the property.
Adoption under the Juvenile Justice Act.
The Juvenile Justice Act acknowledges that the primary responsibility for providing care and protection to children shall be that of their family and therefore views adoption as one among the measures to rehabilitate and reintegrate a child who are orphaned, abandoned neglected and abused thro institutional and non-institutional methods.
The Juvenile Justice Act is a secular legislation made in the lines of UNCRC and shall apply to all children who are coming within its purview irrespective of religion, caste or creed. In the light of section 41(3) of the Act, The Juvenile Justice Board is deemed to be the guardian of such children and it shall give in adoption keeping in mind various guidelines issued by the it State Government and Supreme Court from time to time.
This would obviously imply that though the religion of the child may not be material at the time of adoption the religious and personal laws of the adopting parents cannot be ignored as it relies on the capacity of the adopting parents to take the child in adoption. The Juvenile Justice Act, has ruled out several restrictions on adoptions. Under the Act the Board may allow a child to be given in adoption to a single parent and to adopt a child of same gender irrespective of the number of living bio logical son’s or daughters. Child may also be given in adoption to fit persons and fit institutions on the suitable directions.
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