Thursday 21/03/2019

FAQs

Consumers and their Rights

1.      What is the meaning of "Consumer"with reference to Consumer Protection Act 1986?

The Act defines Consumer as:-

•   One who buys goods or hires services for consideration.

•   One who uses the goods or hired services with the approval of the buyer or hirer of the service.

•   One who uses the goods/services to earn livelihood by self-employment.

2.      What are the salient features of Consumer Protection Act?

•   The Act applies to all goods and services unless specially expempted by the Union Government.

•   It covers all sectors-public, private or cooperative.

•   Provisions of the Act are compensatory in nature.

•   It enshrines all consumer rights-to choose, to be heard, to be informed, to safety, education and redressal (CHISER).

•   It empowers consumers seeking discontinuance of trader´s malpratices, defective goods, service deficiencies or withdrawal of hazardous goods from the market.

3.      What does "Consumer Protection"refer to?

•   It refers to protection of consumers against anti consumer trade practices by producers/traders.

•   These anti trade practices include adulteration, sub-standard quality, overcharging, making misleading claims in advertisements, etc.

•   The essence of consumer protection is curbing such practices through legislative and other measures.

4.      Why is the Consumer Protection required ?

Business is a means of Human Welfare:

Business serves the customer and therefore it is a means and not an end in itself. Hence it is in the interest of both the consumer and the businessman to ensure that the business is run well because ignoring the interest of the consumer may be a sure death of the business.

Growth with Social Justice:

We are a secular country and growth with social justice is the cornerstone or our economic philosophy. Exploitation of consumers is against the Directive Principles of State Policy laid down in our Constitution.

Single versus multiple objectives:

Business works for all stakeholders-consumers, shareholders, employees, government, and the public. It is both a social and an economic institution. Therefore it cannot just make profit by ignoring the interest of the society. For the survival and growth of business, it must work for the interests of the stakeholders in general and consumers in particular.

Power Centre:

Business has considerable influence over society and government. Therefore, it has to set standards regarding food, dress habits, living styles, etc which will not damage the cause of society and serve the interst of a few persons only.

Self Interest:

•   Due to liberalization and globalization, firms have to compete with multinationals. Unless they become customer oriented and provide right quality, quantity and price they cannot satisfy a customer and without customer satisfaction no business can survive for long and will be out beaten by competition from multinationals.

•   Moreover, Government has enacted laws to protect the interest of the consumers. Hence if a firm violates the laws they are likely to lose their good will and clients permanently.

Ethical Obligations:

Firms that adapt ethical values, attain glories in the business world. Business without ethical values is nothing but a criminal activity and no civil society will tolerate a business without ethical values for long.

5.      What are the rights of Consumers under the Consumer Protection Act, 1986?

The right to safety:

It refers to the right to be protected against products, production processes and services which are hazardous to health or life. It includes concern for consumer´s immediate and long term needs.

The right to be informed:

Consumers have a right to be informed about the quality, quantity, potency, purity, standard and price of goods or services so that they can make the right decision and protect themselves against malpractices.

The right of choice:

The consumer has the right to be assured of a choice of various goods and services of satisfactory quality and competitive price.

Right to representation (or right to be heard):

It is a right and the responsibility of civil society to ensure that consumer interest prevails while formulating and executing policies which affect the consumers, as well as right to be heard while developing or producing a product or service.

Right to seek redressal of grievances:

The consumer has the right to go to court if he has been unscrupulously exploited against unfair or restictive trade practices and receive compensation for supply of unsatisfactory or shoddy goods.

Right to Consumer Education:

It is the right to acquire knowledge and skills to be an informed consumer because it is easier for the literate to know their rights and to take actions to influence factors that affect consumer´s decisions. The Union and State Governments have accepted the introduction of consumer education in school curriculum.

Right to basic needs:

It is the right to receive the eight basic necessities that are required to survive and lead a dignified life. These eight basic necessities include food, clothing, shelter, health care, sanitation, education, energy and transportation.

Right to Healthy Environment:

It is the right to be protected against environmental pollution and environmental degradation so as to enhance the quality of life of both the present and future generation.

6.      What are the responsibilities of a Consumer?

It is the responsibility of the Consumer to:

•   Be aware of his rights and exercise them with regard to products purchased or services rendered.

•   Be quality conscious and thoroughly examine the product before purchasing it.

         °   Check the quality mark i.e. AGMARK, ISI, PDS, BIS, etc.

         °   Ask for a guarantee card, if there is one.

•   Insist on a cash memo which is required as proof of purchase in case of a complaint.

•   File a complaint for redressal of grievance however small, to discourage malpractices.

•   Do not get carried away by advertisements but check the actual use of the product with that given in the advertisement. If there is a discrepancy, it should be brought to the notice of the sponsor.

•   Form Consumer Awareness Organizations, which can be represented at various committees formed by the Government for the Welfare of the Consumers.

7.      Mr. ´X´ a consumer purchased medicines without noticing the date of expiry. He also did not obtain the cash memo. Do you think he will be able to protect himself by the loss caused due to expired medicine?

No, Mr. ´X´ cannot protect himself from the above loss due to the following reasons:

         °   ´X´should have been a cautious consumer and should have thoroughly examined the product including the expiry date of the medicine before purchasing it and not depended on the seller.

         °   ´X´should have insisted on a cash memo, which is required as proof that he has purchased the medicine from that particular trader, failing which he cannot sue for compensation.

8.      What are the means of Consumer Protection followed in India?

The following are some of the ways and means of consumer protection followed in India:

Lok Adalats:

         •   The Consumer can approach the Adalat with his grievance. The issue is discussed and decision is taken on the spot. This saves time and money.

         •   Lok Adalat has become a speedy, effective and economical redressal system.

         •   Indian Railways, Delhi Transport Corp, Delhi Development Authority, Delhi Vidhyut Board, etc hold Lok Adalat from time to time to sort out problems faced by users.

Publicity Measures:

         •   15th March is celebrated as World Consumer Rights Day all over the world every year.

         •   In 1995, this day was organized at Vigyan Bhawan, New Delhi.

         •   In addition, the Ministry with the help of D.A.V.P undertook a massive outdoor publicity program such as displaying hoardings, banners, bus panels, etc.

         •   Telecasting on Consumer Protection is also done by Doordarshan on a fortnightly basis.

Public Interest Litigation:

The Indian legal system does not provide legal services to large segments of the population such as the environmentalists, consumers, minorities as such. Thus the Public Interest Litigation legally represents such groups with the result that any individual or organization can approach the court for remedial action for effective implementation of the law, environmental protection or any other social evils like bonded labour.

Environmental Friendly Products:

         •   The Ministry of Environment and Forests has introduced an "Eco-Mark" Scheme. It is a label that has a symbol of an earthen pitcher. If this label appears on a product, it means that the manufacturer has satisfied the conditions laid down regarding the production processes and used environmental friendly materials.

         •   This scheme has been started with consumer items like soap, detergents, paints, food items, edible oil, etc.

         •   This scheme is consumer oriented so that people manufacture, use and dispose off products which are least harmful to the environment.

Redressal Fora & Consumer Protection Councils:

Under the Consumer Protection Act 1986, a judicial machinery such as the District Fora, State and National Commissions have been set up to provide speedy, effective and economical redressal of consumer grievances and disputes.

National Youth Award on Consumer Protection:

To encourage consumers and youth to participate in the field of consumer protection, every year the Union Ministry gives two National awards National Award on Consumer Protection and National Youth Award on Consumer Protection. The Ministry also gives a National Woman Award to involve women in outstanding work in the field of consumer protection.

Consumer Welfare Fund:

The Revenue Department of the Union Ministry of Finance has passed the Central Excise and Customs Laws (Amendment) Act 1991. According to this Act, a Consumer Welfare Fund is created and the excess amount of excise/custom duties which is not refundable to manufacturers or importers is credited into this fund and used for:

         •   Promoting the Welfare of the Consumers.

         •   Community based rural awareness projects.

         •   Setting up a Consumer Guidance Bureau to handle complaints, counseling and guidance.

         •   Setting up Consumer Product Testing Laboratories.

9.      When can a Consumer Complaint be filed?

A consumer can file a written complaint depicting therein dispute with respect to one or more of the following:-

         •   On receiving defective goods or deficient services.

         •   Against Restrictive Trade Practice. It includes any trade practice which requires a consumer to buy, hire or avail of any goods or, as the case may be, services as a condition precedent for buying, hiring or availing of other goods or services.

         •   Against Unfair Trade Practice. It includes a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely :-

         °   false or misleading representation

         °   bargain price

         °   offering of gifts, prize, contest, etc

         °   non compliance of product safety standards

         °   hoarding or destruction of goods.

         °   when goods hazardous to life & safety are being offered for sale to public in contravention of provisions of any law for the time being in force.

         °   when a trader charges excess of price

         °   Fixed by or under any law for the time being in force; or

         °   Displayed on goods;or

         °   Displayed on any packet containing such goods.

What constitutes a "defect"?

Defect means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods.

What constitutes a "deficiency"?

Deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.

10.      How to file a Consumer Complaint?

         •   Three(3) copies of the complaint are required to be filed in addition to the number of copies of complaint meant for number of opposite parties.

         •   No stamp paper is required. It can be filed on plain paper.

         •   It can be hand-written or typed .

         •   It can be filed personally through authorized representative or by post.

11.      What is the limitation for filling a Consumer Complaint?

A consumer complaint should be filed within two years from the date on which cause of action has arisen in respective District Forum/State Commission or National Commission.

The consumer has the right to file an appeal within 30 days with the next higher forum if he feels justice has not be done to him.

12.      What is the Pecuniary Jurisdiction of various Foras and Commissions under the Act?

The Act provides that the consumer can approach the following Three(3) tier judicial machinery depending upon the amount of the loss involved:-

         •   District Forum       If loss is upto Rs. 20 Lakhs.

         •   State Commission        If loss is between Rs. 20 Lakhs to Rs. 1 Crore.

         •   National Commission        If loss is more than Rs. 1 Crore.

         •   The complaint must be disposed off as speedily as possible within Three(3) months or within Five(5) months if testing or analysis of goods is required to be done.

13.      What are the Fees prescribed for filing of a Complaint?

The prescribed fee to file a Complaint is as follows:-

         •   Upto Rs. 1,00,000/-      Rs. 100/- by way of Postal Order or Demand Draft in favour of President, District Forum.

         •   Above Rs. 1,00,000/- to Rs. 5,00,000/-      Rs. 200/- by way of Postal Order or Demand Draft in favour of President, District Forum.

         •   Above Rs. 5,00,000/- to Rs.10,00,000/-      Rs. 400/- by way of Postal Order or Demand Draft in favour of President, District Forum.

         •   Above Rs. 10,00,000/- to Rs.20,00,000/-     Rs. 500/- by way of Postal Order or Demand Draft in favour of President, District Forum.

         •   Above Rs. 20,00,000/- to Rs.50,00,000/-      Rs. 2,000/- by way of Demand Draft in favour of Registrar, State Commission, Delhi.

         •   Above Rs. 50,00,000/- to Rs. 1 Crore      Rs. 4,000/- by way of Demand Draft in favour of Registrar, State Commission, Delhi.

Fees prescribed for filing of an Appeal

The prescribed fee to file an appeal is as follows:

         •   State Commission - 50% of the amount payable or Rs.25,000/- whichever is less

         •   National Commission - 50% of the amount payable or 35% whichever is less

14.      What is the role of Consumer Organizations/Non Govt. Organizations in the area of Consumer Protection?

         •   Bringing out journals, brochures, monographs.

         •   Arranging conferences, seminars, workshops on consumer problems and solutions.

         •   Supporting government agencies against malpractices, adulterated and hazardous goods.

         •   Investigating into the problems of consumers.

         •   Collecting data on different products and testing them.

         •   Filing suits and petitions in the court on behalf of the consumers.

         •   Organizing protests against price rigging, adulteration, underweight selling, etc.

         •   Encouraging consumers to boycott defective bad quality goods.

Right to Information Act, 2005

1.      What is the object of the Act?

         •   To give information which is under the control of Public Authorities.

         •   To promote transparency and accountability in the working of every public authority.

         •   To contain corruption and to hold Governments and their instrumentalities accountable to the governed.

         •   To require every public authority to computerize their records for wide dissemination and to proactively make public certain categories of information so that the citizens need minimum recourse to make a formal request for information.

2.      What kind of information can be sought under this act?

The Right to Information (RTI) includes right to:-

         •   Make request for any information (as defined).

         •   Obtain copies of the documents.

         •   Inspect documents, works and records.

         •   Take certified samples of materials of work.

         •   Obtain information in form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through print outs.

3.      What is the procedure for seeking the information?

Under the Act, by paying the prevailing RTI Application Fee a written request for information can be made to Public Information Officer (PIO) or Assistant Public Information Officer (APIO) of the concerned public authority.

4.      Is there any compulsion to disclose any reasons for seeking the information?

There is no compulsion to disclose the reasons for seeking the information.

5.      What are the modes of depositing the RTI Application Fee?

The RTI Application Fee can be deposited by any of the following modes:-

         •   In person by paying cash (remember to take your receipt).

         •   Demand Draft.

         •   Indian Postal Order.

         •   Money Orders (only in some states).

         •   Affixing Court Fee Stamp (only in some states).

         •   Banker´s Cheque.

5.      What is the time limit under which an RTI Application is to be dealt with?

         •   If the request pertains to another public authority (in whole or part) PIO is required to transfer/forward the request to the concerned other PIO within 5 days of receipt of request for supply of information.

         •   If the request has been made to the PIO, the reply is to be given within 30 days of receipt.

         •   If the request has been made to an APIO, the reply is to be given within 35 days of receipt.

         •   If the PIO transfers the request to another public authority (better concerned with the information requested), the time allowed to reply is 30 days but computed from the day after it is received by the PIO of the transferee authority.

         •   Information concerning corruption and Human Rights violations by scheduled Security Agencies (those listed in the Second Schedule to the Act) is to be provided within 45 days but with the prior approval of the Central Information Commission.

         •   However, if life or liberty of any person is involved, the PIO is expected to reply within 48 hours.

There are certain important points to be kept in mind:

         •   In case PIO has asked for deposit of fees/charges for supply of information by way of supplying copies of some documents then applicant/information seeker is required to deposit the further fees for information. That time is excluded from the time allowed.

         •   If information is not provided within stipulated period, it is treated as deemed refusal. Refusal with or without reasons may be ground for appeal or complaint.

         •   Further, information not provided in the time prescribed is to be provided free of charge.

6.      What information is exempted from disclosure?

The information which is expressly exempted from disclosure under Section 8 of the RTI is as follows:-

         •   Information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the Security, "Strategic, Scientific or Economic" interests of the State, relation with foreign State of lead to incitement of an offense.

         •   Information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of Court.

         •   Information, the disclosure of which would cause a breach of privilege of Parliament of the State Legislature.

         •   Information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information.

         •   Information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information.

         •   Information, the disclosure of which would endanger the life or physical safety of any person or identity the source of information or assistance given in confidence for law enforcement or security purposes.

         •   Information which would impede the process of investigation or apprehension or prosecution of offenders.

         •   Information which relates to personal informaton the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual (but it is also provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied by this exemption).

         •   Not withstanding any of the exemptions listed above, a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. (NB: This provision is qualified by the provison to sub-section 11(1) of the Act which exempts disclosure of "trade or commercial secrets protected by law" under this clause when read along with 8(1)(d)).

7.      Can an appeal be filed again the decision of CPIO?

Yes, a first appeal can be made before the First Appellate Authority of the concerned Public Authority in case:-

         •   No decision has been received from PIO within the specified time period.

         •   Decision of PIO is not acceptable.

The First Appellate Authority is required to dispose of the appeal within 30 to 45 days from the date of filing of appeal:-

         •   First Appeal is to be made within 30 days from the date of making of application (in case no decision is received from PIO).

         •   First Appeal is to be made within 30 days from the date of decision of CPIO (in case decision has been received from CPIO but is not acceptable).

8.      Is there any provision for filing a Second Appeal?

Yes, a Second Appeal can be made before the concerned State or Central Information Commission constituted under the RTI Act in case:-

         •   No decision has been received from First Appellate Authority within the specified time period.

         •   Decision of First Appellate Authority is not acceptable.

9.      What is the limitation period for making a Second Appeal?

         •   Within 90 days from the date of making of First Appeal (in case no decision is received from First Appellate Authority).

         •   Within 90 days from the date of decision of First Appellate Authority (in case decision has been received from First Appellate Authority but is not acceptable).

9.      Is the applicant required to deposit the Fee for seeking information if he is a below Poverty Line Card Holder?

If the applicant is a below Poverty Line Card Holder, then he is not required to deposit any Fee. Such BPL Card Holders have to provide a copy of their BPL card along with their application to the Public Authority.

Adoption under Hindu Adoptions and Maintenance Act, 1956

1.      Who can adopt?

For a valid adoption, the adopter must have the capacity and right to adopt:-

         •   Adoption by a Male Hindu:-

             Any male Hindu who is of sound mind and is not a minor i.e. he has completed the age of 18 years has the capacity to take a son or a daughter in adoption. Adoption made in violation conditions is void ab initio. In case he has a wife living, he cannot adopt except with the consent of his wife.

         •   Adoption by a Female Hindu:-

             A Female Hindu who is of sound mind, has completed the age of 18 years and is unmarried is competent to adopt a son or a daughter to herself in her own right.

2.      Can the consent of a wife be dispensed with?

Yes, the consent of the wife may be dispensed with under three circumstance, namely:-

         •   She has completely and finally renounced the world,or

         •   She has ceased to ba a Hindu, or

         •   She has declared by a Court of competent jurisdiction to be of unsound mind.

3.      What is the procedure if a Husband has more than one wife?

If a husband has more than one wife living at the time of adoption, the consent of all the wives is necessary, unless any of the wives is suffering from any of disqualifications aforementioned.

4.      Can a married woman adopt a child?

Normally a married woman cannot adopt a child even with the consent of her husband.

But, in case of a married woman, whose marrige has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a Court of competent jurisdiction to be unsound mind, has the capacity to take a son or daughter in adoption.

5.      Who can give in adoption?

As per the Act, three persons who are competent to give in adoption are namely:-

         •   Father.

         •   Mother.

         •   Guardian of the Child.

             Father:-

             The expression ´Father´ does not include the adoptive Father or Step father. The primary or the preferential right to give the child in adoption is that of a Father. But his right is not absolute, it is not absolute, it is subject to the consent of the Mother.

             The Mother´s consent can be excluded if she has completely and finally renounced the world or has ceased to be a Hindu or has been declared to be of unsound mind by a Court of competent jurisdiction.

             Mother:-

             The ´Mother´ does not mean and include the Step mother or adoptive mother. The mother has the right to give the child in adoption if the father is dead or has completely and finaly renounced the or has ceased to be a Hindu or has been declared by a Court of competent jurisdiction to be of unsound mind.

             Guardian:-

             The Guardian is empowered to give the child in adoption where both the parents are dead or have completely and finally renounced the world or have abandoned the child or have been declared by a Court of competent jurisdiction to be of unsound mind or where the parentage of the child is not known.

6.      Who may be adopted?

The following are essential conditions to be fulfilled before a child is taken in adoption:-

         •   Child is a Hindu:-

             The Act permits adoption by a Hindu alone. Law does not recognize an adoption by a Hindu of person other than a Hindu.

         •   Child not already adopted:-

             An adopted child can not be adopted again. The Act provides that an adoption once made not be cancelled. Neither adopted child can renounce his status nor the adoptive parents can give the child in adoption.

         •   Child must not be married:-

             The child should not married unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption.

         •   Child has not completed the age of fifteen years:-

             The child must not have completed the age of fifteen years at the time of adoption unless custom or usage governing the aprties permits them.

7.      What are the other conditions for a valid adoption?

Some vital rules and conditions relating to adoption are as follows:-

         •   Adoption of a son can be only by a person who does not have a grandson or great grandson.

         •   Adoption of a daughter can be only by a person who does not have a daughter or grand daughter.

         •   The adopter who wants to adopt a child of different sex than his own, the difference of age between him/her and the adopted child must be at least of 21 years.

For Example:-      A male Hindu wants to adopt a daughter. The age difference between the two must be at least 21 years.

SImilarly, if a female Hindu wants to adopt a son. The age difference of 21 years is mandatory.

8.      Can the same child be adopted by two or more persons?

No, the Act prohibits the adoption of the same child by two or more persons simultaneously.

9.      What are the ceremonies incidental to adoption?

The child to be adopted must be actually given and taken in adoption by the Parents or Guardian concerned or under their authority with intent to transfer the child from the family of his/her birth or in the case of an abandoned child or the child whose parentage is not known, from the place where his/her has been brought up to the family of his/her adoption.

10.      Is there any particular mode of giving the child in Adoption?

No, there is no particular mode of giving the child in Adoption.

11.      Is registration of adoption is essential?

No, the registration of adoption is not essential. However, it is always better to get the documents of adoption registered. Whenever there is a duly registered document of adoption, the court presumes that the adoption has been made according to law and is valid.

12.      What is the effect of the adoption on the Child?

The adoption confers upon the adopted child the same rights and privileges in the adoptive family as the legitimate natural born child for all purposes with effect from the date of adoption.

13.      Are there any restrictions on the child after adoption?

Yes, there certain restrictions on the child after adoption:-

         •   The child cannot marry any person whom he or she could not have married if he or she had continued in the family of his birth.

         •   The adopted child shall not divert any person of any estate which is vested in him or her before the adoption.

         •   Any property which vested in the adopted child before the adoption continues to vest in him.

Adoption by a Foreign National

1.      What is Adoption?

Adoption is a process whereby a person assumes the parenting for another and, in so doing, permanently transfers all rights and responsibilities from the original parent or parents.

2.      Are there some guidelines for adoption by a Foreign National?

In the matter of L.K. Pandey V/s Union of India (1984) 2 SCC244, the Hon´ble Supreme Court of India has laid down certain guidelines that have to be followed in the case of foreign adoption in an attempt to safeguard the interests of the children which are as follows:-

         •   A foreign national adopts an Indian child under the provisions of the Guardian and Wards Act, 1890.

         •   The Indian Court will appoint the foreigner as the child´s guardian.

         •   The foreign national will take the child to his own country and adopt him or her as per the laws of his country.

3.      How to access the fitness of the applicant?

A Social or Child Welfare Agency licensed or recognized by the government of the country in which the foreigner resides must sponsor every application of a foreigner for adoption of an Indian child. Such agency will appoint a professional social worker to prepare a Home Study Report that will indicate the basis for the sponsorship fo the foreigner´s application.

4.      What should the Home Study Report contain?

The Home Study Report will include the following details:-

         •   The applicant´s family background, marital status, his education and employment history.

         •   His financial status and dwelling conditions.

         •   His health profile.

         •   Information about other off springs, if any, and

         •   References.

The agency must access whether the applicant is fit and suitable and has the capacity to parent a child coming from a different racial and cultural milieu and whether the child will be able to fit into the environment of the adoptive family and the community in which he lives.

5.      What documents are required alongwith his application for adoption?

The foreign national is required to submit supporting documents along with his applicaiton for adoption which include:-

         •   A recent family photograph.

         •   His marriage certificate.

         •   A declaration of the applicant´s physcial fitness duly certified by a medical doctor.

         •   A declaration of the applicant´s financial status with corroborating documents such as an Employment Certificate, Income Tax Returns, Bank References.

         •   Particulars of property owned by them.

         •   A declaration of willingness.

         •   He will also have to furnish an undertaking that he will adopt the child in accordance with the law of the country in which he resides at the earliest, but not later than two years from the date of the child´s arrival in his country.

         •   The applicant must also declare that he will maintain the child and provide him with necessary education and upbrining according to their status.

         •   The foreign national is also required to sign an undertaking stating that he will send the Indian Agency and the court a progress report and a photograph of the child monthly in the first year, quarterly in the second year, and half yearly up to five years.

         •   In addition, the foreigner is expected to sign a power of attorney in favour of an officer of the Social or Child Welfare Agency in India so that the officer can process the case.

All the certificates, declaration and documents that are attached to the foreigner´s application are required to be duly notarized by a Notary Public. The notary´s signature, in turn, will have to be duly attested either by an officer of the Ministry of External Affairs or Justice or Social Welfare of the country of which the foreigner is a resident. An officer of the Indian Embassy or High Commission or Consulate in that country can also attest the notary´s signature.

6.      What is the role of a Social an Child Welfare Agency?

The Social and Child Welfare Agency sponsoring the application of the foreigner must:-

         •   Certify that the foreigner seeking to adopt a child is permitted to as per the laws of his country.

         •   The agency msut undertake to ensure the adoption of the child by the foreigner according to the law of his country within a period of two years.

         •   Once the adoption procedure is complete, it is the duty of the agency to send two certified copies of the adoption order to the Social and Child Welfare Agency in India through which the application for guardianship was processed.

One copy of the adoption order will have to be filed in court and the other will remain with the Indian agency for their records.

         •   The agency sponsoring the guardianship application must also agree to send progress reports of the child to the Indian agency.

         •   These reports will be sent quarterly in the first year and half yearly in the following years till the adoption has been effected.

         •   The foreign agency will also have to undertake that in the event of the disruption of the adopting family before the completion of the adoption procedure, it will take care of the child and find a suitable alternative placement for it with the approval of the Indian agency.

In the case of an alternative placement becoming necessary, this development will be reported to the court handling the guardianship proceedings and this information will be passed on by the court and the Indian agency to the Secretary, Ministry of Social Welfare, Government of India, New Delhi.

7.      What is the procedure to be followed in the Court of Law?

The following is the procedure to be followed by the Court of Law:-

         •   The application for guardianship must be made before the court of the District Judge within whose jurisdiction the Social and Welfare Child Agency in India that is processing the application of the foreigner is located.

         •   The application will be filed by the Indian Welfare Agency or a person duly authorized by the agency in this regard.

         •   Next the court issues notices to the Indian Council for Child Welfare (ICCW) and the Indian Council for Social Welfare (ICSW) in order that they scrutinize the guardianship application.

         •   These organisations are expected to give their considered opinion whether they believe that adoption by the foreign national is in the child´s best interests.

         •   The ICCW or ICSW make their representation to the court after carefully studying the application with all the annexures, the Home Study Report, and the Child Study Report and making all necessary inquiries.

         •   The court will first hear all the concerned parties and examine all the documents.

         •   The court must be satisifed that the foreigner will be a suitable adoptive parent for the child and will provide the child a secure and loving home.

         •   The court must also be convinced that the child will be able to assimilate itself into the family and community of the foreigner.

         •   If the court is satisifed on all these counts, it will pass an order appointing the foreigner as the child´ guardian and the foreigner will be allowed to take the child back to his country with a view to eventual adoption.

         •   In some cases, the court may even put a condition that the foreign national make provision by way of deposit or bond for the repatriation of the child to India should such a situation arise. The photograph of the child is attached to the order and counter-signed by the judge.

8.      Is there any time limit for diposal of the application?

The Hon´ble Supreme Court of India, in the matter of L.K.Pandey V/s Union of India, (supra) has fixed a maximum period of two months for the disposal by the courts of application made under the Guardians and Wards Act, 1890.

9.      Is the personal appearance of a Foreign National (Applicant) before the Court is required?

In L.K. Pandey V/s Union of India (supra). The Hon´ble Supreme Court has categorically dispensed with the personal presence of the foreign national for the purpose of completing legal formalities.

10.      Which is the nodal Central Body for adoption of children from India to foreign countries?

The Central Adoption Resource Authority (CARA) is the nodal Central body. It has its Head office in New Delhi.

Will

1.      What is a ´Will´?

´Will´ means the legal declaration of the intention or the desire of a person as to how he wants his property to be dealt with after his death.

2.      Who can make a Will?

A person of sound mind not being a minor can make his Will.

3.      How to Execute/Write a Will?

Will can be executed even on a plain paper. It can be hand written or typed. If the testator (the person who is executing the Will) is writing himself, he has to sign it. If somebody else has written/typed the Will, he should mention that it has been done so on the dictation of the testator. In that eventuality, the testator should also mention above his signatures that he has gone through the text and that it is as per his wish.

4.      Whether a Will requires witnesses?

Yes, it is compulsory that execution of a Will is witnessed by atleast two persons (Endeavour should be to have witness from the locality/from amongst relations but none of them should be beneficiary.

5.      Whether a Will requires registration?

A Will does not require compulsory registration. An un-registered Will is as good as a registered Will. However registration of Will has its own advantages.

6.      Whether a testator can disinherit his family member?

Yes, but it will be proper if he gives reasons for that in the Will itself.

7.      Can a Karta of a Joint Hindu Family execute will in respect of the entire property of joint family?

No, he can execute will only in respect of the share which he would have got if partition had taken place during his life time.

7.      What happens if a person dies without executing a Will?

If a person dies without executing a will then the property will go to his heirs as per the Law of succession as applicable to him.

SUGGESTIONS:-

1.      The testator (the maker of Will) should ensure that his signatures on the Will can easily be compared with his signatures elsewhere e.g. signatures in the bank records.

2.      If the testator (the maker of Will) is not in perfect state of health, it should be ensured that he executes the Will in the presence of a reputed Doctor who certified on the Will itself that testator was in a position to understand and comprehend.

Registration of Marriage

1.      Under which law, a Marriage is registered?

Marriage already solemnized is registered under the Hindu Marriage Act, 1955.

2.      What are the Eligibility conditions for the Registration of Marriage?

The following are the eligibility conditions:-

         •   Either Bride or the Bridegroom must be a resident of the Tehsil in which the marriage is to be registered.

         •   At the time of Marriage, the Bridgegroom must have completed the age of 21 years and Bride the age of 18 years.

         •   Both must be Hindus.

3.      What is the procedure of Registration of a Marriage?

At the time of Registration of Marriage:-

         •   The applicant submits an application in prescribed form stamped with requisite Court Fee.

         •   This marriage is registered under the Hindu Marriage Act, 1955 on the identification of village numberdar.

4.      What are the documents required for Registration?

The following are the documents which are required for registration:-

         •   Application on the prescribed proforma.

         •   Proof of age of bride and the bridegroom.

         •   Statement of bride-bridegroom and their parents.

         •   Certificate in support of age.

         •   Marriage ceremony photographs.

         •   Marriage card or any other proof in support of marriage solemnized.

5.      What is the prescribed time schedule for the registration of marriage?

No time limit is specified for marriage registration. Registration is possible immediately after the above formalities are completed.

6.      Who is the sanctioning authority for the Registration of marriage?

Tehsildar-cum-Registrar of Marriages.

7.      Where can the individual register his grievance?

He/She can go to the Deputy Commissioner-cum-Marriage Officer of the area concerned.

Public Interest Litigation

1.      What is Public Interest Litigation (PIL)?

Public Interest Litigation (PIL) is actually litigation for Public Interest. PIL was started to protect the fundamental rights of people who are poor, ignorant or in socially/economically disadvantaged position. It is different from the ordinary litigation, in that it is not filed by one private person against another for the enforcement of a personal right.

The provision of free legal services to the poor through forums under Legal Services Authorities Act and some other Legislation have also contributed considerably in this field.

2.      What are the guidelines to be followed while filing the PIL?

The Hon´ble Supreme Court of India issued many guidelines in 1998 describing the Public Interest to be followed for entertaining letters or petitions received in the Court as Public Interest Litigation and suggested that the following issues are regarded to be something in Public Interest:

         •   Bonded labour matters.

         •   Neglected children.

         •   Non-payment of minimum wages to workers and exploitation of casual workers and complaints of violation of labour laws (except in individual cases)

         •   Petitions from jails complaining of harassment for premature release and seeking release after having completed 14 years in jail, death in jail, transfer, release on personal bond, speedy trial as a fundamental right.

         •   Petitions against police for refusing to register a case, harassment by police and death in police custody.

         •   Petitions against atrocities on women, in particular harassment of bride, bride-burning, kidnapping etc.

         •   Petitions complaining of harassment or torture of villagers by co-villagers or by police from persons belonging to Scheduled Castes and Scheduled Tribes and Economically Backward Classes.

         •   Petitions pertaining to environmental pollution, disturbance of ecological balance, drugs, food, adulteration, maintenance of heritage and culture, antiques, forest and wildlife and other matters of public importance.

         •   Petitions from riot-victims.

         •   Family pension.

3.      What are the conditions of filing a PIL?

A PIL can be filed when the following conditions are fulfilled:-

         •   The presence of ´Public Interest´ is important to file a PIL.

         •   There must be a public injury and public wrong caused by the wrongful act or omission of the state or public authority.

         •   It is for the enforcement of basic human rights of weaker sections of the community who are down trodden, ignorant and whose fundamental and constitutional rights have been infringed.

         •   It must not be frivolous litigation by persons having vested interests.

4.      Who may file a PIL?

The Hon´ble Supreme Court of India (SC), through its successive judgments has relaxed the strict rule of ´Locus Standi´ applicable to private litigation.

Any person can file a PIL provided:-

         •   He is a member of the public acting bona fide and having sufficient interest in instituting an action for redressal of public wrong or public injury.

         •   He is not a mere busy body or meddlesome interloper.

         •   His action is not motivated by personal gain or any other oblique consideration.

5.      How to file a PIL?

A PIL may be filed like a Civil Writ Petition. However, in the past the Hon´ble Supreme Court of India has treated even letters addressed to the court as PIL. In "Peopl´s Democratic Union V/s Union of Inidia", a letter addressed by the petitioner organization seeking a direction against the respondents for ensuring observance of the provisions of famous labour laws in relation to workmen employed in the construction work of projects connected with the Asian games was entertained as a PIL.

6.      When can a Private Interest Litigation be taken as Public Interest Litigation or Social Interest Litigation (PIL/SIL)?

In an appropirate case, where the petitioner might have moved a court in her private interest and for redressal of the personal grievance, the court in furtherance of Public Interest may treat it a necessity to enquire into the state of affairs of the subject of litigation in the interest of justice. Thus a private interest case can also be treated as public interest case.

A new branch of proceedings known as ´Social Interest Litigation´ or ´Public Interest Litigation´ was evolved with a view to render complete justice to the aforementioned classes of personal. The courts exercising power of judicial review found to its dismay that the poorest of the poor, depraved, the illiterate, the urban and rural unorganized labour sector, women, children, handicapped by ´ignorance, indigence and illiteracy´ and other down trodden have either no access to justice or had been denied justice.

First Information Report

1.      What is an F.I.R.?

F.I.R. is a short form of "First Information Report". It is information recorded by the police given by any person about the commission of an alleged cognizable offence. On the basis of F.I.R, the police commences its investigation. It is a report of information that reaches the police first in point of time and that is why it is called First Information Report.

2.      Who can file an F.I.R.?

Any person who knows about the commission of a cognizable offence can file an F.I.R.. He need not be an aggrieved person or the victim of the crime. F.I.R. need not by the person who has first hand knowledge of the facts. However it is generally lodged with the police by the victim or by someone on his/her behalf. A police officer who comes to know about commission of a cognizable offence can file an F.I.R himself. Even accused person can file an F.I.R. You can file an F.I.R. if:-

         •   You are the victim against whom the offence has been committed.

         •   You know about commission of an offence against anybody.

         •   You have seen any offence being committed.

3.      Where to file an F.I.R.?

An F.I.R. should be normally filed in the police station of the concerned area in whose jurisdiction the offence has been committed. It should be made to the officer-in-charge of the police station.

4.      For which offences can an F.I.R. be filed?

An F.I.R. can be filed regarding Cognizable Offences only. A cognizable offence is one in which the police may arrest a person without warrant [Section 2(c), Criminal Procedure Code, 1973]. Police is authorized to start investigation into a cognizable case on its own and does not require any order from the court. F.I.R. cannot be filed regarding Non-Cognizable Offence. A non-cognizable offence is an offence in which a police officer has no authority to arrest without warrant [Section 2(1),Criminal Procedure Code, 1973 ]. The police cannot investigate such an offence without the orders of the court.

5.      What should you mention in the F.I.R.?

Step by step in an orderly sequence narrate to the officer information relating to the commission of the offence. You should specifically mention:-

         •   Your name and address.

         •   Date, time and location of the incident you are reporting.

         •   The true facts of the incident as they occured

         •   Names and description of the accused/persons involved in the incident.

         •   Witnesses, if any.

6.      How to lodge an F.I.R.?

The procedure of lodging an F.I.R. is precribed in Section 154 of the Criminal Procedure Code, 1973. F.I.R. is filed in the following manner:-

         •   Go to the police station and meet the officer-incharge/Station House Officer (S.H.O.).

         •   When information is given orally, the police must write it down.

         •   It is your right as a person filing F.I.R. to demand that the information recorded by the police is read over to you.

         •   The information given must be signed by you.

         •   The information given shall be entered in a book to be kept by the officer.

7.      Can an F.I.R. be registered by a telephone?

F.I.R. can be also be registered on telephone provided the person giving the information is an ascertained one or is capable of being ascertained.

8.      How to get a copy of an F.I.R.?

A copy of the F.I.R. has to be given free of cost to the informant. Always ask for a copy of the F.I.R.. It is your right to get a copy of F.I.R. free of cost.[Section 154(2), Cr.P.C.]

9.      What if S.H.O. refuses to lodge the F.I.R.?

If the police/S.H.O. does not lodge the F.I.R., an aggrieved person can avail following remedies:-

         •   The information may be sent in writing and by post, to the Superintendent of Polie (S.P.) concerned who, if satisfied that such information discloses the Commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by an police officer subordinate to him.[Section 154(3), Cr.P.C.]

         •   You can seek directions from the Court to the police to lodge an F.I.R. [Section 156(3), Cr.P.C.]

         •   You can file a private complaint before the Court having jurisdiction.[Section 190, Cr.P.C.]

         •   You can also make a complaint to the State Human Rights Commission or the National or State Human Rights Commission if the police does nothing to enforce the law.

10.      What happens after F.I.R.?

Once the F.I.R. has been registered, the investigation in the case shall begin.

11.      Wh