UNIT 3

Introduction

Women from different sections of the society are placed in very different situations in modern India.
Some women are entering new fields and achieving the same feats as men, while some girls are being
killed even before they are born. In earlier times women were seen only in the household, but this
expectation is changing slowly, as they are coming to the fore and challenging traditional mindsets.

The modern Indian society, impacted by globalization and influenced by values of equality and liberty,
seems to have accepted a more elevated position of women.

Body

Areas where position of women is equal to men

When it comes to political rights, the Indian Constitution grants equal position to men and women, such
as the right to vote, to contest elections, and to citizenship.

Women and men are considered equal in law. They enjoy equal rights and privileges and all rules apply to
them equally. In fact, some legal provisions, such as the law against dowry, seek to improve the current
position of women in society.

Some may also argue that in jobs, salaries, and other economic opportunities women enjoy equal position
as men, bur this can be contested as there is hidden discrimination against women employees while
hiring, offering salaries, etc.

Areas where the position of women is unequal to men

Women enjoy lower status than men in many cultures and families when it comes to deciding whom to
marry, inheriting property, and getting equal pay for equal work among other things.

If we look at development indicators such as health, educational achievements, and wealth/income, it is

clear that Indian women fair worse than Indian men. This points towards systemic bias against women in
the society.

Women face higher levels of violence, unfair treatment in society, and unequal access to resources when
compared with men.

Factors that affect the position of women

Cultural bias against girls and preference for sons majorly undermines position of women in private as
well as public sphere.Like most modern societies, Indian society is patriarchal and this leads to unequal
position of women although that is being challenged and changed.
Future of women’s position in India

The future for women looks positive in modern India if we compare their position vis-a-vis men at the
time of independence to now. Women have better access to education, health, and opportunities than
before even though not equal.

The government has played an important role in hastening the process of women’s empowerment through
various acts, schemes, and provisions, such as reservation in local panchayats, but it needs to continue
aggressive efforts to give equal position to women.

The cultural attitude towards women in India is changing with changing times, as women are getting
educated, proving their mettle, and showing that they can be positioned equal to men if they are given the
same opportunities.

WOMEN EMPOWERMENT

The 73rd Constitutional Amendment Act, 1993 was undertaken especially to give constitutional status to
Panchayati Raj system and introduce it on a uniform basis. But apart from this it also plays a specific role
in women empowerment. The framers of the 73rd constitutional amendment believed that the social and
economic conditions of women could not be improved without granting them political power. The new
Panchayati Raj was an effort to empower women at least at the village level.

One-third reservation of seats for women

The 73rd amendment has made an effort to provide women with some special powers in all the 3 tiers of
Panchayati Raj. As per the act, ⅓ of seats are reserved for women in addition to the seats reserved for SCs
and STs. It was indeed a bold step. The rural women will also be now able to exercise some political
power and play a role in decision making for village affairs.

A brief assessment of the 73rd Constitution Amendment Act

The act has not brought about miraculous changes as expected. Though it has brought awareness on the
part of women but to an extent only. Following drawbacks have been found after analyzing the impact of
the Act’s implementation-

Illiteracy – Due to illiteracy in rural areas women are unable to assert themselves at different tiers of
Panchayati Raj. On the contrary, they are forced to work according to the wishes of male members.

Corrupt bureaucracy – As our bureaucracy is highly corrupt, it becomes very difficult for women to
progress and achieve something in such circumstances.

Non-availability of women – It is very difficult to find out an adequate number of women who are
qualified and are aware of the rights as most of the women are illiterate and ignorant about their rights in
the rural areas.

Factors facilitating the empowerment of women

According to Doshi and Jain, women are empowered by women emancipation, education,
communication, media, political parties and general awakening. Some social, economic and political
factors facilitate the empowerment of women are listed below –

Acknowledging women’s rights

Freedom to take decisions and make choices

Access to education and employment

Opportunities for political participation

Reasons behind the need for empowerment

In a developing country like India where women are treated as a second-grade citizen and inferior to men,
women empowerment is justified. Following are the main causes on account of which government
decided to take such an initiative for women.

Education or literacy – Among the other counties in the world, India is counted as one of the countries
having a maximum number of illiterate people. Women are more illiterate as compared to men. Earlier
they were denied going to schools and have education but now conditions are much more stable. Still,
illiteracy is the biggest weakness of women. Providing them with educational facilities means
empowering them so that they can enjoy their rights and contribute to the progress of the nation.

Health problem of women – Poor health conditions of women is also a hindrance in their progress. The
main reason for such health conditions is the traditional importance given to a male child neglecting the
presence of a female child which leads to less care given to her. Another reason is that women are always
taught to be shy and submissive. This often makes women tolerating thus, they prefer to avoid
complaining about something and rather suffer silently.

Economic Exigencies of women – Indian women are economically weak since education was not given to
them for years and property laws were also not in favour of them. They were dependent on men
financially as all economic power used to be in the hands of men. Thus women require economic power
to stand on their own legs on par with men.

Atrocities against women – Women on all walks of life have been discriminated against men. They
become victims of atrocities in a number of ways as there are cases of sexual harassment, molestation,
kidnapping, dowry harassment and so on.

CONSTITUTIONAL PROVISIONS AND OTHER LEGAL PROVISIONS

Rights and protection to women given under the Constitution of India

The Indian Constitution attempts to provide equal opportunities to women, protect their rights and ensure
justice to them through the following provisions-

Right to Equality– Constitution ensures equality to all its citizens including women (Article 14).

The Constitution ensures that no discrimination shall be made against any person on the basis of caste,
class, creed, sex, race and place of birth [ Article 15(1)].
No discrimination shall be made on any grounds of discrimination including sex for providing
employment opportunities. [Article 16].

The State shall take the responsibility of providing maternity benefits to women employees [Article 42].

Providing harmony and fraternity to people doing away with all customs in respect of women.

One-third reservation of women in the panchayats – There must be separate seats reserved for women in
the panchayats with separate seats for women SCs and STs [Article 243 D (3)].

One-third reservation for women in the presidential posts of the Panchayats – Reserving women seats for
all posts at all the levels of panchayats (Gram Panchayat, Thaluk Panchayat and Zilla Panchayat) [Article
243 D(4)].

One-third reservation in Municipalities – Separate seats for women in all the town municipalities.[Article
243(T) 3].

One-third reservation for women in the presidential posts of Town Municipalities

Legislation safeguarding women’s interests

The Hindu Marriage Act 1955 – The act provides women with equal rights to divorce and remarry. Also,
the act prohibits polygamy, polyandry and child marriage.

The Hindu Succession Act, 1956 – The act provides women with the right and claim over parents
property.

The Hindu Adoption and Maintenance Act, 1956 – It provides a childless woman with the right to adopt a
child and a divorced woman with the right to claim maintenance from her husband.

Special Marriage Act, 1954 – It provides women with the rights to inter-caste marriage, love marriage and
is only permitted for the girls above 18 years.

Dowry Prohibition Act, 1961 – It protects women from exploitation by declaring taking of dowry an
unlawful activity.
CRIME AGAINST WOMEN

November 25 is celebrated as the International Day for the Elimination of Violence against Women.

Due to the silence, stigma, and shame surrounding it, violence against women and girls (VAWG) is one
of the most pervasive, ongoing, and severe human rights violations in our society today. As a result, the
Indian government committed to ending all forms of violence against women.

According to the most recent data from the National Crime Records Bureau (NCRB), in comparison to
prior years, there has been a 15.3% increase in crime against women in 2021.

Most of the cases of violence come from “Cruelty by husband or his relatives’’ (31.8 percent) which is
followed by “Assault on women with intent to outrage her modesty” (20.8 percent), kidnapping and
abduction (17.6 percent), and rape (7.4 percent).

Assam topped states in terms of the rate of crime against women in 2021 (168.3 percent) and is followed
by Odisha, Haryana, Telangana, and Rajasthan.

Types of Violence

Violence against women occurs throughout their life cycle, even before birth, infancy, childhood,
adolescence, adulthood to old age.

Domestic Violence

Domestic violence is also known by the terms domestic abuse or intimate partner violence. It is a pattern
of behavior intended to acquire or maintain power and control over an intimate partner.

It includes any verbal, nonverbal, physical, sexual, emotional, financial, and psychological acts or threats
of acts that have an impact on another person.

It is one of the most prevalent types of violence against women globally.

Femicide

Femicide, which can be defined more generally to cover all murders of women or girls, refers to the
deliberate killing of women for the sole reason that they are women.

Honor killing

The murdering of a family member typically a woman or girl for the alleged reason that the victim has
brought the family dishonor or humiliation is known as “honor killing.” These murders frequently revolve
around sexual purity and supposed transgressions on the part of female family members.

Cybercrime/Online Violence

Any act of violence against a woman that is committed, assisted, or made worse by the use of information
and communication technology (mobile phones, the Internet, social media, computer games, text
messaging, email, etc.) against her simply because she is a woman is referred to as online or cyber
violence against women.
Sexual violence

Sexual violence refers to any sexual act carried out against the will of the other person, either when the
other person refuses to consent or when consent is impossible due to the other side’s age, mental
condition, or level of intoxication or drug consumption.

Sexual harassment

Rape

Rape culture

Human Trafficking

The acquisition and exploitation of persons through coercion, fraud, force, or deception comprise human
trafficking. Millions of women and girls around the world are caught up in this horrible crime, many of
whom are sexually exploited.

Female genital mutilation

The term “female genital mutilation” (FGM) refers to practices that purposefully damage or modify the
female genital organs for non-medical reasons. It was first classified as violence in 1997 via a joint
statement issued by WHO, UNICEF, and UNFPA.

Child marriage

Child marriage refers to any marriage where one or both of the spouses are below the age of 18. Child
Marriage is a violation of the Universal Declaration of Human Rights, which states that “marriage shall
be entered into only with the free and full consent of the intending spouses.”

GENDER INJUSTICE

Introduction

Gender (or sex) inequality is the common act of civil rights that takes on multiple forms including sexual
embarrassment, unequal pay for women and inequality even in pregnancy. While the Indian Constitution
grants men and women equality and offers fair protection in order to boost women’s status in society,
most women are still unable to benefit from these rights and opportunities that are provided to them.

Defining gender inequality

The idea that men and women are not equal is gender inequality, and that gender influences a person’s
living experiences. Such variations are the product of biological, psychological and cultural differences.
Many of these types are empirically driven, whereas others seem to be socially constructed. Studies have
demonstrated a range of lived gender experience across several fields, including education, life
expectancy, personality, interests, family life. Gender inequality across different cultures is experienced
differently.

Forms of gender injustice

1 employment and earnings

2 ownership and title

3 work more then men

4 survival inequality

5 gender bias injustice

Causes of gender inequality

The world has been closer to achieving equality for men and women over the years. In many parts of the
world, women are better represented in politics, economic opportunities and healthcare. The World
Economic Forum predicts, however, that it will be another century before true gender equality is
achieved. What causes the gender gap? Ten sources of disparity between women are as follows:

Unpalatable access to education

Lack of equality in employment

Segregation of jobs

Lack of legal safeguards

Failure to have body independence

Low medical attention

Lack of political representation

Societal thinking

REMEDIES FOR GENDER INJUSTICE

Constitutional provisions

Gender equality is enshrined in the Preamble, Fundamental Duties and Directive Principles of the Indian
Constitution. India’s constitution has provided many arrangements to protect women’s rights. The
following are a few significant provisions for women:

Article 14: ensures equality between men and women through equal rights and opportunities in the
political, economic and social spheres.

Article 15: forbids discrimination on grounds of sex, ethnicity, colour, caste, etc. against any person.

Article 16 is concerned with equal opportunities.

Article 39: includes the governance principles to be implemented by the State in order to ensure economic
justice.

Article 42: allows the State to make provision for equal and humane working and maternity relief
conditions.

Article 51: imposes on every person a constitutional obligation to renounce activities derogating from the
dignity of women.

Article 325: guarantees women’s political equality.

Legal provisions

India’s government has enacted laws and legislations specific to women and related to women:

The Immoral Traffic (Prevention) Act, 1956;

Maternity Benefit Act, 1961;

Dowry Prohibition Act, 1961;

Indecent Representation of Women (Prohibition) Act, 1986; Commission of Sati (Prevention) Act, 1987;

Protection of Women from Domestic Violence Act, 2005 are only a few women’s relevant statutes and
rules.
UNIT 4
CHILDREN AND LAW
Law is a system of rules that were created and enforced through social or governmental
institutions to regulate behaviour. It is a system that regulates and ensures every individual or a
community adheres to the will of the state. Law is important for a society for it serves as a norm
of conduct for citizens. It also provides proper guidelines and order upon the behaviour of all
citizens and to sustain equality on the three branches of the government. It intends to keep
society running smoothly. Without proper law, there would be chaos and it would be survival of
the fittest. If there are no proper rules or laws in a society then every man would be a judge in his
own case and also the harmony of the society cannot be achieved. We have moved from a police
state to a welfare state by developing laws and bringing about changes in various aspects of our
society. Laws play a pivotal role in the administration of justice and as a fuel for judicial
equality.

Laws related to Children in India

The development index of a country depends on the quality of human resource. Children are the
future of this country and thus, there arises a greater responsibility on part of the state to ensure a
proper development of children of this country. According to the United Nation Convention on
Rights of Child (UNCRD), “a child means every human being below the age of 18 years unless,
under the law applicable to the child, majority is attained earlier”. This gives various countries
freedom to fix the age limit in determining who is a child. In India after passing the Juvenile
Justice Act (care and protection of children) any person below the age of 18 is considered to be a
child as the mental status of a child and adult are different; therefore there is a need to treat them
separately under the different purview of law.
According to Section 361 IPC
Section 369 of IPC
Section 372 of IPC
Section 373 of IPC
Section 376 DA

Section 376 DA

Child Protection and its Importance

Child protection is the protection of children from violence, exploitation, abuse and neglect.
Article 19 of the UN Convention on the Rights of the Child provides for the protection of
children in and out of home. Child protection systems are a set of usually governmental-run
services designed to protect children and young people who are underage and to encourage
family stability. UNICEF defines a child protection system as: the set of laws, policies,
regulations and services needed across all social sectors – especially social welfare, education,
health, security and justice – to support preservation and response to protection – related risks.
MOHORI BIBEE vs DHARMODAS- In the instant case a minor entered a contract with the
defendants and the defendants had adequate knowledge about the same. The mother of the minor
had also informed the defendants not to enter into a contract with his son as he was a minor.
Later on the minor son failed to fulfil the contractual liabilities. The aggrieved defendants filed a
suit for the same and the suit was dismissed because contract with a minor is void under the
Indian Contract Act.

NIRBHAYA CASE- On December 16, 2012 five men and a juvenile had lured in a 23 years old
trainee physiotherapist and her male friend onto a bus in Delhi, where they repeatedly raped the
woman and beat both with a metal bar before dumping them on road. The woman died after two
weeks with injuries. In this case four of the adults were sentenced to death, while the fifth
hanged him-self in prison and the juvenile was sent to remand home for a period of three years.
He was released in December 2015. The death sentence of those four accused was again
challenged in the court.

Problems or Offences against Children

Child labour
Due to economic reasons, especially in poor countries children are forced to work in order to
survive. Child labour often happens in difficult conditions, which are dangerous and impair the
education of the future citizens and increase vulnerability as to adults. That is the age where
children are expected to study and enjoy working in school but unfortunately they are employed
in work. This has a very huge impact on their physical and mental conditions.
Causes of child labour: there are many factors some are – poverty, lack of social security,
illiteracy, the increasing gap between the rich and poor have adversely affected children more
than any other group, population, cheap wages, high cost-of-living, accessibility of goods at
lowest possible price, middlemen benefits etc.

Child Marriage
Age of majority is the threshold of adulthood as recognized or declared in law. That is the age
where minority ceases and a person becomes a major. Thus, it terminates the control and legal
responsibility of parents or guardians over them. Most of the countries set the age of majority as
18 years. The age of majority does not necessarily correspond to the mental or physical maturity
of an individual. Age of majority should not be confused with age of maturity, age of sexual
consent, marriageable age, drinking and smoking age, voting age, driving age, right over
property etc. This determination is independent and differs in each and every case. For example,
the right to vote is guaranteed above 18 years, marriage of a girl is 18 years whereas a boy is 21
years, property rights in few cases are 18 and in few are 21 years, so on etc.
CHILD LABOUR
Child labour refers to the exploitation of children through any form of work that deprives them
of their childhood, interferes with their ability to attend regular school, or is mentally, physically,
socially and morally harmful. Such exploitation is prohibited by legislation worldwide, although
these laws do not consider all work by children as child labour; exceptions include work by child
artists, family duties, supervised training, and some forms of work undertaken
by Amish children, as well as by indigenous children in the Americas.
Child labour has existed to varying extents throughout history. During the 19th and early 20th
centuries, many children aged 5–14 from poorer families worked in Western nations and
their colonies alike. These children mainly worked in agriculture, home-based assembly
operations, factories, mining, and services such as news boys – some worked night shifts lasting
12 hours. With the rise of household income, availability of schools and passage of child labour
laws, the incidence rates of child labour fell.

Adoption and maintenance related problems

Hindu Adoption and Maintenance Act deals with the legal procedure of adoption of children by
Hindu and other legal obligations that follow, including maintenance of children, wife, and in-
laws. In the first part of this article, I will talk about adoption for Hindus and the second part
shall deal with maintenance.
The Act sheds light upon:
What a valid adoption is?

Who can adopt children?

Procedure to adopt children along with other duties and obligations that occur after adoption.

What is Adoption?
The Act has no description of the word “Adoption” per se, but it is a Hindu law derived from
uncodified Hindu laws of Dharamsastra, specifically Manusmriti.
Adoption has been described in Manusmriti as ‘taking someone else’s son and raising him as
one’s own’.
Hindu Adoption and Maintenance Act has made the definition of ‘adoption’ much wider by
using the word ‘child’ instead of ‘son’. Child includes both a girl and a boy child, and not merely
a son.

With the change in society over time a codified and uniform legislation was required to serve the
democracy, so, no adoption can be made without the procedure mentioned in this act. If any
adoption is made neglecting this act, the adoption shall be rendered to be void.
Who can Adopt a child?
In order to adopt a child, the person must be a Hindu and have the capacity to adopt it. A Hindu
male who wishes to adopt a child must meet the requirements provided in Section 7 of the act
and a Hindu female wanting to adopt shall abide by Section 8 of the same.

Section 7 states that a male Hindu who is willing to adopt a child must fulfil the following
conditions:
Attained the age of majority; and
Be of sound mind.
Must have a wife that is alive whose consent is absolutely necessary.
It can be overlooked if the wife is incapable of giving consent due to insanity or other reasons.

If a person has multiple wives, the consent of all the wives is necessary for adoption.
Section 8 of the act states that a Hindu Female willing to adopt a child must:

Have attained the age of minority;

Be of sound mind;
Be either a widow;

Divorced, or
Unmarried in order to adopt.
Who can give a child for adoption?
No one but the parents and guardian of the child can give them up for adoption as per Section 9
of the Hindu Adoption and Maintenance Act.

As per the act:

Only the biological father of a child has the authority to give him up for adoption;
The consent of the child’s biological mother is necessary.
A mother will have the capacity to give the child up for adoption if:
The father is either dead;

Of unsound mind;
Has renounced the world; or
Converted to some other religion.
When is adoption valid?
Under the Hindu law of adoption, only a Hindu can adopt a child if he/she abides by the
essentials prescribed in Section 6 of the act:
The adoptive parent/s have the capacity and rights to adopt;
The person/s giving up the child for adoption has the capacity to do so;
The person being adopted has the capacity to be taken in adoption;
The adoption is made in compliance with the act.

Necessary conditions to be fulfilled for:

The Hindu Adoption and Maintenance Act prescribes a set of rules for a valid adoption, which
must be complied with. Such as:

Adoption of a son
Section 11(i) of the act states that if a Hindu male or female desires to adopt a son, they must not
have a living son, grandson, or even a great-grandson at the time of adoption.
It is irrelevant whether the son is legitimate, illegitimate, or adoptive. They should not already
have a son who is living.

Adoption of a daughter
Similar to the conditions of adopting a son – Section 11(ii) states that one wishing to adopt a
daughter must not have a living daughter or a granddaughter from their son at the time of the
adoption.
It is immaterial whether the daughter or granddaughter is legitimate, illegitimate, or adoptive.
Adoption of a female child by a male
A Hindu male willing to adopt a girl child must have the capacity to adopt a child as prescribed
in Section 7 of the act, and Section 11(iii) states that he must be at least 21 years older than the
girl child that is to be adopted.

Adoption of a male child by a female

If a Hindu female wants to adopt a male child she must first meet the requirements prescribed in
Section 8 of the act and have the capacity to adopt a child.
Effects of adoption
Adoption will completely change the life of a child in many ways. He becomes a part of a new
family and will have rights in the property as well.

Section 12 of the act states:

When a child has been adopted,
– They shall be considered as the child of their adoptive parents for all purposes.

– The adoptive parents shall have all the parental obligations and rights.
– The child shall have all the rights and obligations of a son/daughter.

MAINTENANCE
What is maintenance?
Maintenance has been described in the definition clause of the act i.e, Section 3(b) as something
that can provide for food, clothing, shelter, education and medical expenses.
Basically, it is financial support paid by a husband or a father that covers all basic necessities of
life.
The section also says that if the maintenance is to be provided to an unmarried daughter, it shall
also cover all the reasonable expenses required in her day to day life till the day she gets married.
Maintenance of children and aged parents
People who cannot earn money for themselves due to reasonable grounds need to be given
maintenance in order to meet their basic necessities. Such people can include children and old
people.

Section 20 of the act states:

A Hindu male or female is obligated to maintain their children whether they are legitimate or
illegitimate.
Children shall claim for maintenance from their parents as long as they are minor.
An unmarried daughter shall be entitled to maintenance even after attaining the age of majority,
till the day she gets married.

The section further prescribes that:

Parents who are old or have physical or mental weakness need to be maintained if they are not
able to maintain themselves.

A childless stepmother will also be considered a ‘parent’ in the context of this section.
In the case of Mst. Samu Bai & anr v. Shahji Magan Lal, the High Court of Andhra Pradesh held
that:
The maintenance to aged and infirm parents must only be provided if the parents have no means
to sustain themselves, or are unable to maintain themselves out of their own property or earnings.
So, we can infer that if the old parents have enough means to maintain themselves, the obligation
of children to maintain them can be relaxed.

Maintenance of dependants
Dependents of a deceased must be maintained if they do not have the capacity to do so by
themselves. Section 21 of the act defines dependents and Section 22 states that such persons shall
be entitled to maintenance.

Who are dependents?

Dependent is someone who relies on parents, brother or some other relative for sustaining
themselves.

Section 21 of the act says that in the context of this act dependents refer to the following relatives
of the deceased:
A father.
A mother.

A widow who has not remarried.

A minor son, grandson, or great-grandson with predeceased father and grandfather. Provided he
has not been able to obtain maintenance from any other source.
Unmarried daughter, granddaughter, or great-granddaughter with predeceased father and
grandfather. Provided she has not been able to obtain maintenance from any other source.
A widowed daughter who has not been able to obtain maintenance from the estate of her
husband, children, or from her in-laws.
Widowed daughter-in-law, or widowed granddaughter-in-law, who has not been able to obtain
maintenance from any other sources.
An illegitimate minor son or illegitimate unmarried daughter.

Do dependents need to be maintained?

Now that we have already seen who dependents are and why they need maintenance, let us
proceed further and see how to maintain them and who is obligated to maintain them.

Section 22 of the act states:

That dependents of a deceased Hindu must be maintained by his heirs with the aid of the estate
that they inherited from the deceased.

When the dependents have not been left with any share in the property or estate by way of will or
succession, they are still entitled to be maintained by whoever takes over the estate.
If multiple persons have taken over the property of the deceased, each one of them will be liable
to maintain the dependents.
The amount of maintenance to be paid will be divided among them depending on the value of the
share they hold in that property.

In case a dependent has obtained some part of share in the property of the deceased, they will not
be liable to maintain other dependents.
Others who have taken over the property will still have to maintain other dependents but the
dependent holding a share shall be excluded and maintenance will now be paid from the
remaining property.
Amount of Maintenance

There is no fixed amount for maintenance that shall be paid. It is at the discretion of the court to
determine the amount of maintenance.

Section 23 of the act states that while deciding the amount of maintenance to be awarded to
a wife, children, or old and infirm parents – the court must do so considering the following:

Status of parties and their current position;

The claims of the parties within reasonable limits;

If the claimant living separately have justified grounds in doing do;

All sources of income of the claimant and the value of their property;
The number of people that are entitled to be maintained.
Section 23(3) further simplifies the process of deciding the amount of maintenance payable to
other dependents. It says that the amount of payment to be made should be with regard to:
The net value of the deceased’s property after clearing off all his debts;
Will of the deceased if any;
Degree of the relationship between the claimant and the deceased and their past relationship;
What the dependents want within reasonable limits;

All sources of income of the dependent and the total value of all their properties;
The number of dependents that can be entitled to maintenance.

PLEA BARGAINING
Meaning of Plea Bargaining
Plea bargaining is a pretrial negotiation between the accused and the prosecution where the
accused agrees to plead guilty in exchange for certain concessions by the prosecution. It is a
bargain where a defendant pleads guilty to a lesser charge and the prosecutors in return drop
more serious charges. It is not available for all types of crime e.g. a person cannot claim plea
bargaining after committing heinous crimes or for the crimes which are punishable with death or
life imprisonment.

History of Plea Bargaining

In the Jury System, the need for plea bargaining was not felt because there was no legal
representation. Later on, in 1960 legal representation was allowed and the need for Plea
Bargaining was felt. Although the traces of the origin of the concept of Plea Bargaining is in
American legal history. This concept has been used since the 19th century. Judges used this
bargaining to encourage confessions.

History of Plea Bargaining

In the Jury System, the need for plea bargaining was not felt because there was no legal
representation. Later on, in 1960 legal representation was allowed and the need for Plea
Bargaining was felt. Although the traces of the origin of the concept of Plea Bargaining is in
American legal history. This concept has been used since the 19th century. Judges used this
bargaining to encourage confessions.

Criminal Procedure Code and Plea Bargaining

Section 265A to 265L, Chapter XXIA of the Criminal Procedure Code deals with the concept of
Plea Bargaining. It was inserted into the Criminal Law (Amendment) Act, 2005. It allows plea
bargaining for cases:
1 Where the maximum punishment is imprisonment for 7 years;
2 Where the offenses don’t affect the socio-economic condition of the country;
3 When the offenses are not committed against a woman or a child below 14 are excluded
Finally, it introduced Chapter XXIA Section 265A to 265L and brought the concept of plea
bargaining in India. The following are provisions which it added:-

Section 265-A (Application of Chapter) the plea bargaining shall be available to the accused who
is charged with any offense other than offenses punishable with death or imprisonment or for life
or of an imprisonment for a term exceeding to seven years. Section 265 A (2) of the Code gives
the power to notify the offenses to the Central Government.

The Central Government issued Notification No. SO1042 (II) dated 11-7/2006 specifying the
offenses affecting the socio-economic condition of the country.

Section 265-B (Application for Plea Bargaining)

A person accused of an offense may file the application of plea bargaining in trails which are
pending.
The application for plea bargaining is to be filed by the accused containing brief details about the
case relating to which such application is filed. It includes the offences to which the case relates
and shall be accompanied by an affidavit sworn by the accused stating therein that he has
voluntarily preferred the application, the plea bargaining the nature and extent of the punishment
provided under the law for the offence, the plea bargaining in his case that he has not previously
been convicted by a court in a case in which he had been charged with the same offence.
The court will thereafter issue the notice to the public prosecutor concerned, investigating officer
of the case, the victim of the case and the accused of the date fixed for the plea bargaining.

When the parties appear, the court shall examine the accused in-camera wherein the other parties
in the case shall not be present, with the motive to satisfy itself that the accused has filed the
application voluntarily.
Section 265-C (Guidelines for Mutually satisfactory disposition) It lays down the procedure to be
followed by the court in mutually satisfactory disposition. In a case instituted on a police report,
the court shall issue the notice to the public prosecutor concerned, investigating officer of the
case, and the victim of the case and the accused to participate in the meeting to work out a
satisfactory disposition of the case. In a complaint case, the Court shall issue a notice to the
accused and the victim of the case.
Section 265-D (Report of the mutually satisfactory disposition) This provision talks about the
preparation of the report of mutually satisfactory disposition and submission of the same. Two
situations may arise here namely

If in a meeting under section 265-C, a satisfactory disposition of the case has been worked out,
the report of such disposition is to be prepared by the court. It shall be signed by the presiding
officer of the Courts and all other persons who participated in the meeting.
If no such disposition has been worked out, the Court shall record such observation and proceed
further in accordance with the provisions of this Code from the stage the application under sub-
section (1) of section 265-B has been filed in such case.
Section 265-E (Disposal of the case) prescribes the procedure to be followed in disposing of the
cases when a satisfactory disposition of the case is worked out. After completion of proceedings
under Section 265-D, by preparing a report signed by the presiding officer of the Court and
parties in the meeting, the Court has to hear the parties on the quantum of the punishment or
accused entitlement of release on probation of good conduct or after admonition. Court can
either release the accused on probation under the provisions of Section 360 of the Code or under
the Probation of Offenders Act, 1958 or under any other legal provisions in force or punish the
accused, passing the sentence. While punishing the accused, the Court, at its discretion, can pass
sentence of minimum punishment, if the law provides such minimum punishment for the
offenses committed by the accused or if such minimum punishment is not provided, can pass a
sentence of one-fourth of the punishment provided for such offense. ”
Section 265-F (Judgment of the Court) talks about the pronouncement of judgment in terms of
mutually satisfactory disposition.
Section 265-G (Finality of Judgment) says that no appeal shall be against such judgment but
Special Leave Petition (Article 136) or writ petition (under Article 226 or 227) can be filed.

Section 265-H (Power of the Court in Plea Bargaining) talks about the powers of the court in
plea bargaining. These powers include powers in respect of bail, the trial of offenses and other
matters relating to the disposal of a case in such court under Criminal Procedure Code.
Section 265-I (Period of detention undergone by the accused to be set off against the sentence of
imprisonment) says that Section 428 of CrPC is applicable for setting off the period of detention
undergone by the accused against the sentence of imprisonment imposed under this chapter.
265-J (Savings) talks about the provisions of the chapter which shall have effect notwithstanding
anything inconsistent therewith contained in any other provisions of the Code and nothing in
such other provisions shall be construed to contain the meaning of any provision of chapter XXI-
A
Section 265-K (Statement of the accused to be used) specifies that the statements or facts stated
by the accused in an application under section 265-B shall not be used for any other purpose
except for the purpose as mentioned in the chapter.
Section 265-L (Non-application of the chapter) makes it clear that this chapter will not be
applicable in case of any juvenile or child as defined in Section 2(k) of Juvenile Justice (Care
and Protection of Children) Act, 2000.
Types of Plea Bargaining
Plea Bargaining is generally of three types namely:-
Sentence bargaining;
Charge bargaining;

Fact bargaining.

CIVIL LAW (ADR)

The term ADR or Alternative Dispute Resolution signifies any out of court processes adopted to
solve disputes. Arbitration, mediation, conciliation, and negotiation are usually the most
common methods of ADR. When the courts are understaffed and overburdened with cases, ADR
serves the purpose of providing faster and simpler means of dispute resolution.

Arbitration
Arbitration is outside the court settlement of a dispute by one or more (odd number) persons who
are appointed as arbitrators by both the parties. According to Section 2(1)(a) of the Arbitration
and Conciliation Act, 1996 “Arbitration means any arbitration whether or not administered by
permanent arbitral institution”.

Mediation
Mediation usually involves a neutral third party who tries to facilitate the issues between the
parties and guides them through dialogue to a win-win situation. Mediation settlements are non-
binding in nature.

Negotiation
Negotiation is a type of ADR where usually no third parties like lawyers, arbitrators, or
mediators are involved. The two parties in dispute sit down and discuss terms that best serve
their mutual interests. When both parties are willing to come to a compromise, usually the
negotiation becomes successful.

Conciliation
Conciliation is a flexible and informal process of ADR where the disputing parties resolve their
disputes with the aid of one or more conciliators who act in an impartial manner and aid the
parties in reaching an amicable settlement.
Issues Arbitration Mediation Conciliation Negotiation

Conciliation is a Negotiation is a type

Mediation involves flexible and informal of ADR where
usually a neutral process of ADR where usually no third
Arbitration is outside the third party who the disputing parties parties like lawyers,
court settlement of a tries to facilitate resolve their disputes arbitrators or
dispute by one or more (odd the issues between by the aid of one or mediators are
Definition
number) persons who are the parties and more conciliators involved and the
appointed as arbitrators by guides them who act in an two parties at
both the parties. through dialogues impartial manner and dispute sit down and
to a win-win aid the parties in discuss terms that
situation. reaching an amicable best serve their
settlement. mutual interests.

Mediation Bill, Part III of the

Governing Part I and II of the
2021 after it is Arbitration and Principles of natural
law in Arbitration and Conciliation
passed and comes Conciliation Act, justice.
India Act, 1996.
into force. 1996.

Mutually decided by the

parties; in case
of institutional
arbitration the institutional
Mutually decided Subject to Part III of
rules are usually adopted; in
by the parties; the Arbitration and
case of ad hoc Mutually decided by
Procedural usually CEDR Conciliation Act,
arbitration the parties the parties based on
rules Model Mediation 1996, the procedural
mutually decide the arbitral the principles of
followed Procedure or their rules are mutually
rules to be followed i.e. natural justice.
equivalents are decided by the
the seat of arbitration is
followed. parties.
decided by the parties. E.g:
the parties may agree to
follow the UNCITRAL
Arbitration Rules.

Usually non- Usually non-binding, Becomes binding

Nature of Binding and thus mostly
binding, unless a unless a court order only after the
outcome enforceable. court order directs directs to the negotiated deal is
to the contrary. contrary. ratified by a
competent court of
law.

The third party, i.e.,

The third party, i.e.,
the conciliator, is
the mediator,
more proactive
Roughly speaking, the third engages in talks
Role of compared to a
party, i.e., the arbitrator(s) with both parties No third party is
third mediator. The
who constitute the arbitral and helps both involved.
parties conciliator proposes
tribunal act like a civil judge. parties come to a
solutions that are
win-win solution to
acceptable to both
the dispute.
parties.