Archive for the 'Indian Courts' Category

Orr vs Orr: The US Supreme Court Landmark Judgment On Alimony-Mar ’79

The significance of this judgment is that it rejected the premise that married women are necessarily dependent upon their husbands for financial support.

Lillian and William Orr divorced in Alabama on 26 February 1974. The decree directed William to pay Lillian $1,240 per month in alimony. Soon he either fell behind or stopped paying altogether, and Lillian brought contempt proceedings against him in the Circuit Court of Lee County, Alabama, demanding back payments.
In defense, William claimed that Alabama’s alimony statutes violated the Equal Protection Clause of the Fourteenth Amendment, since they required only husbands–never wives–to pay alimony. Lillian believed the law was constitutional. The court agreed with her and ordered William to pay the back alimony plus Lillian’s legal fees. William promptly appealed the judgment to the Court of Civil Appeals of Alabama.
On 16 March 1977, the court ruled that alimony laws–“designed” to help “the wife of a broken marriage who needs financial assistance”–were constitutional. The judgment against William must stand. William next petitioned the Supreme Court of Alabama for a writ of certiorari–an order that the lower court send the trial records to the superior court for review. In May, the state supreme court granted this writ–only to reverse itself six months later, saying the writ had been “improvidently granted.” William then appealed to the U.S. Supreme Court, which agreed to hear the case.

The US Supreme Court concluded the discussion with a few remarks about women’s “proper place”:

“Legislative classifications which distribute benefits and burdens on the basis of gender carry the inherent risk of reinforcing stereotypes about the “proper place” of women and their need for special protection .. . Thus, even statutes purportedly designed to compensate for and amelioratethe effects of past discrimination must be carefully tailored. Where, as here, the State’s compensatory and ameliorative purposes are as well served by agender-neutral classification as one that gender classifies and therefore carries with it the baggage of sexual stereotypes, the State cannot be permitted to classify on the basis of sex.”

A Divorce Decision Changes the Meaning of Marriage
The laws governing marriage are more often evaluated during divorce proceedings than during the life of an intact marriage. Thus, in settling the Orrs’ dispute about their divorce decree, the Supreme Court radically changed the legal basis of marriage in America. As editor Leslie Friedman Goldstein points out, Anglo-American law had held that the “legal core” of marriage was a woman’s obligation to provide sexual and domestic services and a man’s obligation to provide financial support. The Court’s ruling in Orr v. Orr was a complete rejection of such assumptions and one that, in Goldstein’s words, “seismically altered” the marriage institution.”

Here is the link to the analysis of this judgment: Orr v. Orr

Here is the link to the full text : Orr Vs Orr, Full Text

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Justice Dhingra Orders A CBI Inquiry Into The Conduct Of Some Corrupt Delhi Cops

Here is the news coverage. This judgment has a significant importance to me as the cops and the bastard of a magistrate pulled a similar stunt with my family.

High Court directs CBI to inquire into Delhi Police conduct Monday, February 25, 2008 :

Taking exception to the manner in which the Delhi police is handling petty cases and pushing the innocent behind bars, Delhi High Courthas directed the Central CBI to inquire into the conduct of the police in this matter. Justice S N Dhingra directed the Delhi Government to pay a compensation of Rs 25,000 each to two people who were confined illegally in police custody, for petty offences just because the police official wanted to settle scores with them. The incident related to one Sanjeev Kumar Singh and his friend, who were picked up by the Delhi police on February 4, 2007, at Samaypur Badali police station. They were apprehended by the police under Section 107/151, CrPC on the charge of abusing, threatening and quarrelling with each other. They were produced before ACP J S Vaid, who was working as Special Executive Magistrate (SEM) on February 4. The SEM sent them to Judicial Custody (JC) till February 17. Though they were asked to furnish a surety of Rs 5000 each, the record showed that the bail bond was accepted by furnishing a surety of Rs 15000 from each. In his petition, Sanjeev Kumar had alleged that the police officials had not only incorporated these sections to illegally detain and harass them, but have also encroached upon their fundamental right. They were friends but the police wanted to settle scores with them and booked them illegally. Justice Dhingra observed the case showed high-handedness of the police and the SEM concerned. The petitioner was kept in illegal confinement because of the SEM’s illegal action of not accepting the bail bond on the same day. The court directed the CBI to investigate the matter and submit its report to the Metropilitan Magistrate concerned within 120 days.

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Allahabad HC-No Arbitrary Arrests In Cognizable Cases – 2004

Here is a judgment by Justice Markandeya Katju while he was serving as a judge of the Allahabad HC.
He says:
“After the promulgation of the Constitution individual liberty has become of great importance particularly in view of Article 21, which is a fundamental right. Hence it cannot be lightly interfered with. Moreover, section 157(1) Cr.P.C. States :-

“157. Procedure for investigation – (1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officer not being below such rank as the State Government may, by general or special order, prescribe in this behalf to proceed, to the spot to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender.”

The above provision clearly shows that it is not necessary to arrest in every case wherever a FIR of cognizable offence has been registered. No doubt investigation has to be made in every case where a cognizable offence is disclosed but in our opinion investigation does not necessarily include arrest. Often the investigation can be done without arresting a person, and this legal position becomes clear from section 157(1) of the Cr.P.C. because that provision states that the Police Officer has to investigate the case, and, if necessary, to take measures for the arrest of the offender. The use of words ‘ if necessary’ clearly indicates that the Police Officer does not have to arrest in every case wherever FIR has been lodged and this position has been clarified in Joginder Kumar’s case (supra).

In our country unfortunately whenever an FIR of a cognizable offence is lodged the police immediately goes to arrest the accused. This practice in our opinion is illegal as it s against the decision of the Supreme Court in Joginder Kumar’s case, and it is also in violation of Article 21 of theConstitution as well as section 157 (1) Cr.P.C. No doubt section 157(1) Cr.P.C. gives a police officer discretion to arrest or not, but this discretion cannot be exercised arbitrarily and it must be exercised in accordance with the principles laid down in Joginder Kumar’s case (supra).”

Here is the judgment: Allahabad HC-No Arbitrary Arrests In Cognizable Cases

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e-Governance In Indian Courts

Here is the link which details what is going on with the computerisation of the Indian courts.

http://legalbanter.wordpress.com/2007/10/08/e-governance-in-indian-courts/ 

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Some Interesting Stats On Arrests Of Women

In 1930, the British govt arrested 17,000 women for their involvement in the Dandi Yatra (Salt March). During 1937 to 1947 (10 Years), they arrested 5,000 women involved in the freedom struggle. From 2004 to 2006, the govt of India arrested 90,000 women of all ages under 498A. On the average, 27,000 women per year are being arrested under this flawed law. These are stats from the NCRB.

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Disclaimer:

The family of the writer was tortured by the Indian Police in an attempt to extort over a $100,000 by holding them in custody for over a week. The police, in cahoots with the magistrate and the PP, did this due to the ridiculous allegations made in a 498A case by his embittered ex-wife. She filed the case years after he and his family had last seen her. Thousands of 498A cases are filed each year in India by women seeking to wreak vengeance on their husbands and in-laws. Enormous sums are extorted from intimidated families implicated in these cases by corrupt Indian police officers and elements of the Indian judiciary. The author and his family haven't bribed any public official nor have they given in to the extortion. This blog aims to raise awareness of due process in India. The content of this blog constitutes, opinions, observations, and publicly available documents. The intent is not to slander or defame anyone or any institution and is the manifestation of the author's right to freedom of expression – with all the protections this right guarantees.

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