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Topics - advgaurav.sharma

Pages: [1] 2
1
Divorce Laws / Plea against divorce is pending Second marriage valid
« on: August 27, 2018, 01:00:40 AM »
Second marriage valid even if plea against divorce is pending: Supreme court, The SC set aside a HC ruling that held any marriage solemnized by a party during pendency of appeal wherein the operation of the decree of divorce was stayed would be in contravention of Section 5 (1) of the act.

Supreme court passed the order on an appeal filed by a man challenging HC verdict which had declared his second marriage void on a plea of his 2nd wife.

The Supreme Court has clarified that the second marriage would not be void if solemnized during the pendency of the divorce appeal. 

The "incapacity to marriage" as mentioned under the Hindu Marriage Act would not lead to nullity of second marriage.

Interpreting section 15 of Hindu Marriage Act, SC bench observed that restriction placed on the second marriage in Section 15 of the Act till the dismissal of an appeal would not apply to a case where parties have settled and decided not to pursue the matter.

The top court overturned a judgment of the Delhi High Court, which declared a man's marriage during the pendency of his appeal against a decree of divorce as void.

Facts
The man got married the second time when his appeal against divorce from his first wife was pending in High Court. During the pendency of his plea, he had settled dispute with his first wife and filed an application for accepting the divorce and sought withdrawal of his appeal.

Section 5(1) of the HMA places a bar on marriage by a person who has a spouse living at the time of the marriage.

While Section 11 makes such a marriage null and void. Section 15 tells when a divorcee can marry again.

"The Hindu Marriage Act is a social welfare legislation and a beneficent legislation and it has to be interpreted in a manner which advances the object of the legislation,"

2
498A IPC / Supreme court guidelines on illegal arrests under section 498a
« on: November 21, 2015, 04:23:49 AM »
No arrests under anti-dowry law without magistrate’s nod: SC

In order to prevent illegal arrests or similar threats of the section 498A accused, the Supreme Court in its latest judgement on 2nd July, 2014.

Has enforced a 9 point checklist for police under section 41 of the Criminal Procedure Code.

The checklist prescribes Do’s and Don’t’s, to be referred to by the police before arresting the accused.  Further, in case the arrest is made, then the magistrate should allow the detention only if the checklist validates so, or else he can authorize the release of the accused.

This new development in the context of section 498A was long overdue and is a welcome news of relief. We can only hope that there are no further legal loopholes or new judgements to bypass the section 41 and give undue advantage to the section 498A.

3
Company laws / Identical Company name cannot be registered in India
« on: December 28, 2013, 09:14:26 PM »
As Corporate lawyers registering Company almost every day till recently we knew that Identical Company name cannot be registered, The ROC officials will also tell you that is not possible.

Then how come the ROC has approve identical Company name Registration in this following case:

# World Book Company Pvt. Ltd
# World Book India Pvt ltd


How was this allowed against the ROC Guidelines.

Can anyone justify this.

What is most shocking is that Indian News agencies are not picking up this story.

the wide ranging implication of this is that established business companies such as Tata, Birla etc can be badly affected.

How can that happen say for example there is Tata Pvt ltd you can now register Tata India.pvt ltd some one else can register TaTa services Pvt ltd

thereby creating confusion amongst the Consumer which is the real TATA Company.

Our entire Business set up is on the verge of Collapse and the Indian news agencies are not bothered reporting it.



4
Copyright laws in India / Noc for copyrighting audio and video
« on: December 19, 2013, 12:00:18 AM »
Now with the present amendments to Sound recording and cinematography category, NOC will be required from all the people involved in making it.

now they are asking even those people who had registered before the amendment this has brought in a lot of hardship to lot many musicians and filmmakers this is NOt done at all.

this law should apply for future registers not for past.

whats you say on this

5
Divorce Laws / Judgment on Child Visitation right of father
« on: September 18, 2013, 09:33:05 PM »
Child Visitation right to father.

“In the application dated 9.5.2008 filed before the Additional District Judge, Delhi, the mother made it clear in paragraph 12 that she is ready to furnish any undertaking or bond in order to ensure her return to India and to make available to the father, his visitation rights subject to the education of the child. This Court finds that so far as the order which had been passed by the High Court, affirming the order of the Trial Court, the visitation rights of the appellant-father have been so structured as to be compatible with the educational career of the child. This Court finds that in this matter judicial discretion has been properly balanced between the rights of the appellant and those of the respondent.”

refer judgment: # Vikram Vir Vohra Versus Shalini Bhalla - http://www.legalservicesindia.com/forum/topic283-vikram-vir-vohra-versus-shalini-bhalla-visitation-rights-to-father.html
# Kumar V. Jahgirdar vs Chethana Ramatheertha - Child custody in favour of husband: http://www.legalservicesindia.com/forum/topic280-kumar-v-jahgirdar-vs-chethana-ramatheertha-child-custody-in-favour-of-husband.html

6
In addition to generic marks, several other categories of marks never receive legal protection. If you adopt one of these marks, anybody can copy your mark without consequence. These are sometimes referred to as prohibited or forbidden trademarks, and include:

(1) Immoral, or scandalous marks;
(2) Marks which disparage any person, institution, belief or national symbol;
(3) Marks consisting of a living person's name, portrait or signature, unless written permission has been granted;
(4) Deceptive marks (i.e. those that are either used intentionally to deceive or in fact cause consumers to rely upon the deceptive aspect when making purchasing decisions).
(5) Marks consisting of a deceased Famous persons names, portrait or signature unless that President's spouse has granted written permission or is no longer alive;
(6) Marks consisting of a flag, coat of arms or other national insignia; and
(7) Marks which are primarily functional (i.e. those where the feature for which protection is sought has a primarily utilitarian purpose to improve the salability of the product).

7
Marks that acquire their distinctiveness, as opposed to those that are inherently distinctive, generally receive less protection from the courts, and are said to be weaker than inherently distinctive marks. Furthermore, there is a continuum of legal strength even among inherently distinctive marks. Fanciful marks are the strongest legally, and receive the greatest amount of legal protection from the courts, while arbitrary marks are only slightly less strong, and suggestive marks even less strong. The difference between a mark that is legally strong versus one that is legally weak is that the weaker marks cannot exclude other uses as broadly.

For instance, in order for there to be infringement of a weak mark, the infringing mark must be a lot more similar in look, sound or meaning than is necessary for infringement of a stronger mark. Also, where products are not exactly similar, but are closely related, the owner of the stronger mark will be able to exclude similar marks, while the owner of a weaker mark will not be able to do so.

8
Trademark laws / What is a Distinctive TradeMark
« on: September 18, 2013, 07:07:41 PM »
Distinctiveness is a prerequisite to obtaining protection through the court system and for registration of a trademark.

The legal definition of distinctiveness is fairly obtuse, namely, the ability to communicate the source of goods or services to consumers immediately upon first use of a trademark. Thus, it may be more insightful to describe distinctiveness in terms of examples. A mark is "inherently distinctive" if it is:

# Fanciful, or completely made up (e.g. Colgate);

# Arbitrary with respect to the underlying goods or services (e.g. PANGUINE for Books), or

# Suggestive of the the qualities of the underlying goods or services

Some trademarks that are not fanciful, arbitrary or suggestive may become distinctive through extensive use and/or advertising.

Where such use or advertising results in a trademark permeating the marketplace, and gaining a requisite level of market recognition among consumers, then the trademark is said to have acquired secondary meaning.

As such, it is capable of receiving protection from the courts, and can be registered with the Registrar of Trademarks in the same manner as inherently distinctive marks.

9
"National Human Rights Commission of India is one of the most effective Rights Commissions in the world which has established its credentials as a statutory independent body within a short span of one year.

There was a growing awareness in the society about the human rights and the people want to seek redressal of various kinds of abuses including child abuse and custodial deaths. The Commission till date has received more than 5000 complaints which have been attended properly.

The daily average of complaints received by the Commission varied from 50 to 60. The complaints poured in from all parts of the country—from individuals and organizations.

The Government cannot wash away the recommendations made by the Commission. The Commission's role might be recommendatory, advisory, yet the Government considers the cases forwarded by it."

10
Patent laws / working of patents and ssuance of compulsory licences
« on: July 31, 2013, 03:23:22 AM »
The patent Act should define the term working of patents as it is crucial in matters related to the issuance of compulsory licences.

Sections 83/84 of the Patent Act is silent on any clear definition on "working of patents".

These changes would ensure India's compliance with TRIPS and also protect national interests in a balanced and equitable manner

11
In Ramesh Chandra Ram Pratap Daga Vs. Rameshwari Ramesh Chandra Daga, The Supreme court observed that:

in interpreting the provision of Section 25 of Hindu Marriage Act the expression 'at the passing of passing any decree,' as has been used in Section 25 of Hindu Marriage Act, includes a decree of nullity of marriage and the court is empowered to grant alimony or maintenance at that juncture. Therefore when a court passes a decree of nullity, at that time the court can grant alimony and maintenance to such spouse based on the fact and circumstances of the case.

Who else other than the Wife can claim Maintenance?
Besides the wife other relations who are economically dependent are also entitled to maintenance under the Criminal Procedure Code as well as the Hindu Adoption & Maintenance Act. Under the Hindu Adoption & Maintenance Act a widowed daughter-in-law is entitled maintenance from her father-in-law to the extent of the share of her deceased husband had the property.

The minor children of a Hindu, whether legitimate or illegitimate, are entitled to claim maintenance from their parents. Similarly, the aged and infirm parents of a Hindu are entitled to claim maintenance from their children.

An issueless stepmother is considered to be parent for the purpose of the maintenance.

From the foregoing it is amply clear that the laws discussed above cover almost all family relations wherein or who are economically dependent on someone for their survival and provides a right to seek maintenance to such relations.

12
Cheque Bounce / I.C.D.S. Ltd., v. Beemna Shabeer
« on: July 31, 2013, 03:12:22 AM »
apex court held that the cheques which are issued by guarantor attract the prosecution u/s 138 of Negotiable Instruments Act. But Karnataka High Court rejected the plea and held that this case has no application to the facts of the present case.

13
where appellant company was supplying the products on credit to dealers. The respondent –accused is one of the dealers of the appellant. Cheque issued by dealer was dishonoured but it was admitted that company has issued circular instructions to all its dealers to deposit signed blank cheques as a security for credit supply. The object of such insistence is to see that, if there is default on the part of dealer; the company would fill up the cheque showing the amount due as on that day payable by the dealer as a measure for effective recovery of dues, Karnataka High Court held:
 
The very scheme of procedure adopted shows that cheques are not issued in respect of any current existing ascertained liability. The word “for discharge of any debt or other liability” in Section 138 of the Negotiable Instruments Act should be interpreted to mean current and existing liability or past ascertained liabilities. The cheque issued in respect of future liabilities not in existence as on the date of cheque would not attract prosecution u/s 138 of Negotiable Instruments Act.”

14
Cheque Bounce / Sreenivasan v. State Of Kerala
« on: July 31, 2013, 03:11:09 AM »
A comparative reading of the principle laid down by the Andhra Pradesh High Court and the mandatory provisions laid down in Section 138 of the Negotiable Instruments Act is crystal clear that when a cheque has been issued as a security, no complaint will lie under Section 138 of the Negotiable Instruments Act.

15
Cheque Bounce / Taher N. Khambati v. Vinayak Enterprises
« on: July 31, 2013, 03:10:38 AM »
where in a loan transaction, a blank signed cheque was given as security, the Andhra Pradesh High Court held that the provision of s. 138 of the Act were not attracted in such a case. The Andhra Pradesh High Court held that it could not be construed that the cheque had been issued voluntarily for the discharge of any debt or legal liability as envisaged under s.138 of the Act. In the instant case, the appellant advanced some money to the respondents and obtained a pro-note. It was stipulated that the respondent should pay interest every month. At the same time appellant-creditor took a blank signed cheque from the respondents with the understanding that the complainant could fill the other columns in the cheque and present it if the respondents committed default in payment of interest. So, the appellant has obtained this blank signed cheque with a view to make use of it, as a threat to the respondents for realisation of the amount.

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